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ENCYCLOPAEDIA 

OK 

For  Businass    Man,    Fanners,    Mechanics,    Landlords,    Tenants,   Working    Men, 

Capitalists,  and   all  who  have  Business   Transactions  of  any  kind, 

as  well  as  for  LAWYERS  AND  CONVEYANCERS. 


REPRESENTING    THE    STUDY  AND    DECISIONS    OF    MOST   ABLE    LAW- 
VERS  AND  SUPREME  JUDICIAIv  AUTHORITIES. 


FOR 


ALL  THE   STATES   AND  CANADA. 


WITH   NOTES  AND   AUTHORITIES. 


BY 

HON.    HUGH     Nl.    SPALDING, 

Author  of  Spalding's  Treatise  upon  the  Law  of  Personal  Property,  Practice,  etc.,  for  the  State 
of  Ohio; — Treatise  for  the  State  of  Indiana ;— Treatise  for  the  State  of  Kentucky;— 
Treatise  for  the  State  of  Kansas,  etc. ;— Civil  Service  of  the  State  of  Penn- 
sylvania ;— Judicial  and  Public  Records ;— Legal  Forms,  etc.,  etc.,  etc. 


REVIS60    6DITI0N. 

p.  W.  ZIEGLER  &  CO., 

PHrLADEI,PHTA  AND  CHICAGO. 
1899. 


Copyright  1880 

BY 
P.  W.  ZiEGLER  &  Co. 

Copyright  1895 

BY 
p.  W.  ZlKGI,ER  &  Co. 


PREFACE. 


No  species  of  knowledge  is  more  in   demand,  or  confers 
more  real  and  constant  usefulness  than  that  of  the  law  and 
its  practical  application  in  both  the  private  and  public  affairs  of 
each  individual : — and  no  species  of  knowledge  is  more  difficult 
to  obtain  at  the  desired  moment.     There  are  times  and  circum- 
stances when  the  necessary  legal  counsel  cannot  be  had ;  and 
times  and  circumstances  which  render  it  advisable  to  be  one's 
own  legal  counsellor;  there  are  matters  of  minor  importance 
which  may  not  justify  or  require  the  expense  or  formality  of 
a  legal  consultation ;  there  are  private  affairs  which  it  may  be 
neither  prudent  nor  desirable  to  disclose,  but  which  require  some 
legal  light  for  satisfactory  solution   or  adjustment;    there  are 
business  difficulties,  enterprises,  ventures,  controverted  and  vexed 
questions,  which  constantly  demand  some  knowledge  of  the  law 
to  successfully  master,  and  which  are  otherwise  fruitful  of  annoy- 
ance,  distress   and   doubt.     These  and   many  other  examples 
demonstrate  the  utility  of  a  work  of  this  character,  a  book  which 
enables  one  to  combine  practical  law  with  personal  knowledge 
and  experience.     The  primary  necessity  of  convenient  reference 
to  legal  subject?  is  demonstrated  by  the  well-known  and  univer- 
sal rule  of  law  that  '*  ignorance  of  law  is  no  excuse  ;  "  every  one 
is  presumed  to  know  the  law  ;   hence  the  defence  of  ignorance 
avails  nothing :  one  must  suffer  for  every  infraction, — and  know 
better  afterwards.     In  this  work  will  be  found  a  very  complete 
law  library,  compiled  with  much  care,  and  containing  the  essence 
of  the  various  subjects  of  the  law  compressed  into  a  comprehen- 
sive and  convenient  form,  with  its  value  greatly  enhanced  by  foot- 
notes to  leading  authorities,  to  which,  when  necessary,  easy  ref- 
erence in  any  law  library  may  be  had.     Forms  are  given  in  great 
profusion  and  variety  ;  they  have  been  selected  and  framed  with 
the  utmost  care  and  simplicity,  and  adapted  to  the  practical  and 
common  necessities  of  actual,  every-day  use. 

1  H.  M.  S. 


AN 


ENCYCLOPEDIA 


OF 


Law  and  Forms. 


ABAHrDOWjflEBrT.  SeeDivoRCK;  Insurance; 
Makkiage;  Parent  and  Child;  Rights  ;  Wife. 

Abandonment  is  confined  to  an  individual's 
property  and  legal  and  equitable  rights  ;*  it 
is  a  relinquishment  on  the  part  of  the  owner, 
without  regard  to  its  future  possession,  and 
with  an  intention  to  abandon.* 

When  a  person,  considering  an  article  worth- 
less, casts  it  away,  with  an  intention  of  aban- 
doning it,  he  thereby  divests  himself  of  his 
title  in  it,  and  has  no  more  cause  to  complain, 
if  it  be  taken  by  another,  than  if  he  had  never 
owned  it,  unless  indeed  he  reclaims  it  without 
violating  the  rights  of  others,  or  before  they 
take  it.« 

Mere  nonuser  does  not  necessarily  or  usually 
constitute  abandonment  ;•*  there  must  be  an  in- 
tention to  abandon ;"  and  such  intention  is  to 
be  determined  as  a  question  of  fact  from  all  the 
circumstances  attending  the  owner's  acts.' 

Abandonment  combined  with  a  sufficiently 
long  possession  by  another  party  destroys  the 
original  owner's  rights.* 

Where  an  abandonment  is  acted  upon  in  good 
faith  by  another,  it  destroys  the  owner's  rights. 

Legal  rights  once  vested  must  be  divested 
according  to  law.  Equitable  rights  may  be 
abandoned  at  pleasure. 

Abatement.  See  Contracts  ;  Duties  ;  Nui- 
sance; Pleading;  Practice;  Taxes. 

Abator.    See  Nuisance. 

Abbreviation.    See  Authorities. 

Abduction.    See  Criminal  Law. 

Abet.    See  Criminal  Law. 

Abeyance.    See  Advisement;  Contingency. 

Abortion.    See  Medical  Law. 

Abridg'nient.    See  Copyright. 
,  Abrof^ations.    See  Statute  Law. 

Absconding;.  See  Concealment;  Debtors; 
Process. 

Absence.  See  Concealment  ;  Death;  Domicil. 

Abstract  of  Title.    See  Conveyances. 

Abuse.    See  Criminal  Law. 

a-2  Wash.  io6:  5  W.  &  S.  i88;  25  Penn.  St.  259. 
b-14  M.  &  W.  789 ;  9  Met.  (Mass.)  789 ;  36  Cal.  333.  c 
11  111.  58S.  d-io  Pick  310;  23  Id.  141;  3  Strobh.  224; 
5  Rich.  405;  i6  Barb,  mo;  24  Id.  44;  Tudor  L.  Cas. 
vta  130:  2  Washb.  R.  Prop.  83-85.  e-14  M.  &  W.  789 ; 
9  Met.  (Mass.)  395,  789  ;    36  Cal.  333.     f-4  Yeates,  330, 


ACCEPTANCE.    Sec  Bills  op  Exchange  ani> 

Promissory  Notes,  etc.  ;  Contracts;  Insukanob; 
Rent  ;  Statute  of  Frauds  ;  Tender. 

Acceptance  is  the  receipt  with  an  intention 
to  retain  it  of  a  thing  offered  by  another.'' 
An  agreeing  to  an  act  or  contract  of  another 
by  some  act  which  binds  the  person  in  law. 

Where  a  landlord  takes  rent  reserved  on  a 
lease  made  by  his  predecessor,  it  is  an  accept- 
ance of  the  terms  of  the  lease  and  binds  the 
party. 

As  distinguished  from  assent,  acceptance  de- 
notes the  receipt  of  something  in  compliance 
with  and  satisfactory  fulfilment  of  an  under- 
taking to  which  assent  had  been  previously 
given. 

A  receipt  with  an  intention  to  retain  is  in- 
dispensable to  every  acceptance,  though  a  man- 
ual taking  is  not  necessary.  The  intention  to 
retain  may  exist  at  the  time  of  receipt  or  after- 
wards ;  and  may  be  indicated  by  acts,  words  or 
otherwise,  and  will  in  many  instances  be  im- 
plied by  circumstances. 

Access.    See  Medical  Law. 

Accessary.    See  Criminal  Law. 

Accessions.    See  Property,  etc. 

Accessory.    See  Criminal  Law. 

Accessory  Contract.    See  Contracts. 

ACCIDENT.  See  Practice;  Remedies. 
An  accident  is  that  which  takes  place  with, 
out  one's  expectation  or  foresight;  an  event 
which  proceeds  from  an  unknown  cause ;  or 
is  an  unusual  effect  from  a  known  cause,  and 
therefore  not  expected.  It  is  the  happening  of 
an  event  without  the  concurrence  of  the  will 
of  the  person  by  whose  agency  it  was  caused, 
as  the  burning  of  a  house  from  kindling  a  fire 
for  domestic  purposes;  or  the  happening  of  an 
event  without  any  human  agency,  as  the  burn 
ing  of  a  house  by  lightning.  •  It  is  such  an 
unforeseen    act,    event,    loss,     misfortune    or 

534;  5  W.  &S.284;  9  Penn.  St.  273  ;  30  Cal.  630;  36  Id. 
333  ;  Necessity  of  intention  under  Spanish  land  cases, 
12  Mo.  238.  lf-6  Cal.  510;  II  111.  588  ;  10  Watts,  102  ; 
2  Met.  (Mass.)  32  ;  6  Id.  337  ;  31  Me.  381 ;  2  Washb. 
R.  Prop.  ll>3  Parsons'  Contr.  221.  i-Fonbl.  EUj. 
374,  375,  n. 


ACCIDENT— ACCOUNTS. 


omission  as  is  not  the  result  of  any  miscon- 
<liict  or  negligence.^ 

An  accident  which  arises  from  a  cause 
which  operates  without  the  aid  or  interference 
of  man  is  called  an  act  of  God.^  Accidents 
which  are  produced  by  physical  causes,  such 
as  loss  by  lightning,  and  storms,  perils  of  the 
sea,  inundations,  earthquakes,  sudden  death,  ill- 
ness, and  the  like,  are  called  fortuitous  events.' 
That  which  happens  by  a  cause  which  can- 
not be  resisted,™  which  neither  of  the  parties 
has  occasioned  or  can  prevent,"  and  unfor- 
scen  events  which  cannot  be  prevented,"  are 
alike  called  fortuitous  events  and  inevitable 
accidents.'  Unforeseen  circumstances  which 
cannot  be  guarded  against  by  any  human 
agency,  and  in  which  man  takes  no  part, 
are  called  casualties  or  inevitable  accidents. <i 
Interposition  of  human  agency,  as  the  inroad 
of  a  hostile  army  which  from  its  nature  and 
power  is  absolutely  uncontrollable,  is  denomi- 
nated irresistible  force.' 

Generally,  no  one  is  responsible  for  that 
which  is  the  result  of  superior  force  or  inevi- 
table accident ;  but  a  man  may  be  so  where  he 
has  stipulated  that  he  would,  and  also  where 
he  has  been  guilty  of  fraud  or  deceit ;'  for  no 
man  may  take  advantage  of  his  own  wrong. 

Where  in  the  performance  of  a  lawful  act, 
without  any  intention  to  do  harm,  and  after 
using  due  precaution  to  prevent  danger,  a 
person  unfortunately  kills  another,  it  is  an  acci- 
dent or  misadventure  for  which  he  cannot  be 
held  amenable.  Examples  of  this  are :  When 
death  ensues:  I.  From  innocent  recreations. 
2.  From  moderate  and  lawful  correction  in  the 
domestic  relation.  3.  From  acts  lawful  and 
innocent  in  themselves,  done  with  proper  and 
ordinary  caution.'  An  act  upon  which  death 
ensues  must  have  been  neither  bad  in  itself, 
wrong  in  its  nature,  nor  a  prohibited  evil  or 
offence, 

Aceommodation  Paper.  See  Bills  of  Ex- 
change AND  Promissory  Notes,  etc 

Accomplice.    See  Criminal  Law. 

Accord.    See  Contracts  ;  Debtors. 

Accoachment.    See  Medical  Law 

ACCOUBrTS.    See  Evidence. 

ACCOUNTS.  An  Account  is  a  registry 
of  debts  and  credits,  or  charges ;  an  entry  in  a 
book  or  on  paper  of  things  bought  or  sold,  of 
payments,  services,  etc.,  including  the  names 
of  parties  to  the  transaction,  date  and  price  or 
value  of  the  article.  A  detailed  statement  of 
the  mutual  demands  in  the  nature  of  debt  and 
credit  between  parties,  arising  out  of  contracts 
•r  some  fiduciary  relation.'' 

A  bank  account  is  the  statement  of  the 
•mount  deposited  and  drawn,  which  is  kept  in 
duplicate,  one  in  the  depositor's  bank  book 
and  the  other  in  the  books  of  the  bank. 

J-Francis'  Max.  87  ;  Story  Eq.  Jur.  ?  78.  k-Parsons' 
Contr.  635;  I  T.  R.  27.  1-Story  Bailm.  25;  Lois  des 
Biit.  Pt.  2,  ch.  2,  §1.  m-La.  Code,  Art.  2522,  No.  7. 
m-Lois  des  B.i.t.  Pt.  2,  ch.  2.  o-Dict.  Juris.  1>-Sce 
19  Miss.  572.  q-Story  Bailm.  §240;  i  Parsons'  Contr. 
543-547-  r-Story  Bailm.  J  2s;  Lois  des  Bit.  Pt.  2,  ch. 
*,t  '•  »-2  Kent  Comm.  448  ;  Poth;  Story  Bailm.  |  25. 
ft-4  BL  Comm.  182;  i  East  PI.  Cr.  aax.     b-i  Met.  316; 


An  open  account  is  one  in  which  some  Item 
of  the  contract  is  not  settled  by  the  parties, 
whether  the  account  consist  of  one  item  or 
many.'  Thus,  where  five  loads  of  corn  were 
sold  at  the  same  time  and  delivered,  and  there 
was  no  stipulation  as  to  the  price,  it  is  an 
open  account.*  So,  also,  when  there  are  run- 
ning or  current  dealings  between  the  parties 
which  are  kept  unclosed  with  the  expectation 
of  fresher  transactions.'  If  the  plaintiff  brings 
two  suits  on  an  open  account,  it  is  not  im- 
proper to  admit  on  the  trial  of  the  second 
action,  testimony  of  payments  that  were  in 
evidence  on  the  first  trial ;  but  the  defend- 
ant cannot  be  twice  allowed  for  the  same 
payments.' 

An  account  stated  is  an  agreed  balance  of 
accounts.  An  account  which  has  been  exam- 
ined and  accepted  by  the  parties.* 

An  original  entry  of  account  is  the  first  entry 
made  by  a  merchant,  tradesman,  or  other  per- 
son in  his  account  books,  charging  another 
with  merchandise,  materials,  work  or  labor,  or 
cash,  on  a  contract  made  between  them. 

Entries  in  books  of  account  may  be  admitted 
in  evidence,  when  it  is  made  to  appear  by  the 
oath  of  the  person  who  made  the  entries,  that 
such  entries  are  correct,  and  were  made  at  or 
near  the  time  of  the  transaction  to  which  they 
relate,  or  upon  proof  of  the  handwriting  of  the 
person  who  made  the  entries,  in  case  of  his 
death  or  absence  from  the  country.^  The 
books  must  have  been  kept  for  the  purpose, 
and  the  entries  must  have  been  made  contem- 
poraneous with  the  delivery  of  the  goods,  and 
by  the  person  whose  duty  it  was,  for  the  time 
being,  to  make  them.J 

The  charges  of  an  account  book  should  be 
in  such  a  state  that  they  may  be  presumed  to 
have  been  the  daily  minutes  of  the  business 
or  transactions  of  the  party ,^  and  such  book 
may  be  considered  as  the  original,  though  tran- 
scribed from  a  slate;  the  slate  contaming 
merely  memoranda,  not  intended  to  be  per- 
manent.' So,  also,  from  memoranda  made  by 
a  servant."  The  form  of  keeping  the  book  is 
not  material,"  but  it  must  be  a  registry  of  the 
business  actually  done,"  and  the  charges  therein 
must  be  specific  and  particular,?  and  made  at 
or  near  the  time  of  the  transaction  to  which 
they  relate.i  If  the  party  keeps  a.  ledger,  or 
the  account  book  has  marks,  showing  that 
the  items  have  been  transferred  to  a  ledger, 
the  ledger  must  also  be  produced,  that  the 
other  party  may  have  the  advant.ige  of  an/ 
items  entered  therein  to  his  credit.''  If  an 
account  book  appear  to  be  manifestly  erased 
and  altered  in  a  material  point,  the  charges 
will  not  be  admitted,  unless  the  alteration  is 
satisfactorily  explained.* 

I  Hempst.  114;  32  Penn  St.  202.  c-i  Ala.  (N.  S.)  62. 
d-Id.  e-6  Id.  438.  f-6  Kas.  471.  jf-2  Atk.  Ch.  251; 
27  Miss.  267.  j-Greenl.  Ev.  g§  115-118.  k-4  Mass.  455. 
I-13  Mass.  427;  II  Pick.  139;  6  Whart.  189.  in-9  Serg. 
&  Rawle,  285.  n-13  Mass.  427;  8  Met.  169:  3  Hal- 
stead,  68.  0-5  Watts,  258;  Wright,  319  ;  4  Yeates,  341. 
p-i  Nott  &  M'Cord,  1:^0.  q-G.  S.  1868,  Ch.  80,  {  387, 
r-a  Mass.  569.    b-6  Whart.  10& 


ACCOUNTS. 


An  Original  Entry,  to  be  admissible  as 
•vidence,  must  be  made  in  the  proper  book. 
In  general,  the  books  in  which  the  first  entries 
are  made,  belonging  to  a  merchant,  tradesman, 
or  mechanic,  in  which  are  charged  goods  sold 
and  delivered,  or  work  and  labor  done,  are  re- 
ceived in  evidence.  There  are  many  books 
which  are  not  evidence.  A  book  made  up 
by  transcribing  entries  made  on  a  slate  by  a 
journeyman,  the  transcript  being  made  on  the 
same  evening,  or  sometimes  not  until  nearly 
two  weeks  after  the  work  was  done,  is  not  a 
book  of  original  entries.'  A  book  purporting 
to  be  a  book  of  original  entries,  containing  an 
entry  of  the  sale  of  goods  when  they  were 
ordered,  but  before  they  were  delivered,  is  not 
a  book  of  original  entries.™  And  unconnected 
scraps  of  paper,  containing,  as  alleged,  original 
entries  of  sales  by  an  agent,  on  account  of  his 
principal,  and  appearing  on  their  face  to  be 
irregularly  kept,  are  not  to  be  considered  as  a 
book  of  original  entries." 

The  entry  must  be  made  in  the  course  of 
business,  and  with  the  intention  of  making  a 
charge  for  goods  sold  and  work  done;  they 
ought  not  to  be  made  after  the  lapse  of  one 
day."  A  book  in  which  the  charges  are  made 
when  the  goods  are  ordered  is  not  admissible.? 

The  entry  must  be  made  in  an  intelligible 
manner,  and  not  in  figures  or  hieroglyphics 
which  are  understood  by  the  seller  only.i  A 
charge  made  in  gross  as  "  190  days'  work,"'  or 
"  for  medicine  and  attendance,"  or  "  thirteen 
dollars  for  medicine  and  attendance  on  one  of 
the  general's  daughters  in  curing  the  whooping- 
cough,"*  were  rejected.  An  entry  of  goods 
without  carrying  out  any  prices  proves,  at  most, 
only  a  sale ;  and  the  jury  cannot,  without  other 
evidence,  fix  any  price.*  The  charges  should 
be  specific,  and  denote  the  particular  work  or  ser- 
vice charged  as  it  arises  daily,  and  the  quantity, 
number,  weight,  or  other  distinct  designation 
of  the  materials  or  articles  sold  or  furnished, 
and  attach  the  price  and  value  to  each  item." 

The  entry  must,  of  course,  have  been  made 
by  a  person  having  authority  to  make  it,'^  and 
with  a  view  to  charge  the  party.'' 

The  proof  of  the  entry  must  be  made  by  the 

person  who  made  it.     If  made  by  the  seller, 

he  is  competent  to  prove  it  from  the  necessity 

of  the  case,  although  he  has  an  interest  in  the 

l-i  Rawie,  435  ;  4  Id.  408;  2  Watts,  451 ;  4  Id.  258; 

5  Id.  432;  6  Whart.  189;  2  Miles,  268.  m-4  Rawle, 
404.  n-13  Serg.  &  R.  126;  see  2  Whart.  33;  4  M'Cord, 
76;  2  Wend.  72;  I   Yeates,  98;    4  Id.  341.     o-i   Nott 

6  M'Cord,  130;  4  Id.  77;  4  Serg.  &  R.  s;  9  Id.  285; 
8  Watts,  545.  p-4  Rawle,  404;  3  Dev.  449.  q-4 
Rawle,  404.  r-i  Nott  &  M'Cord,  130.  s-2  Const.  476. 
t-i  South.  370.  n-2  Const.  745;  2  Bail.  449;  i  Nott 
&  M'Cord,  130.  v-4  Rawle,  404.  w-8  Watts,  545.  x- 
5  Conn.  496:  12  Johns.  461  :  i  Dall.  230;  4  Kas.  211. 
.V-2  WatLs  &  S.  137.  J5-I  Yeates,  347;  Swift  Ev.  84;  3 
Vt.  463  ;   I  M'Cord,  481 ;  2  Root,  59 ;   i  Cooke,  38.     a- 

1  Day,  104;  I  Aik.  73,  74;  Kirb.  489.  b-i  Browne,  257. 
C-2  Whart.  33.  d-8  Wheat.  326;  3  Campb.  305,  377;  2 
Perr.  &  D.  573  ;  15  Mass.  380  :  20  Johns.  168  :  7  Wend. 
160  ;  15  Conn.  206 ;  7  Serg.  &  R.  116 ;  16  Id.  89 ;  2  Harr. 
8t  J.  77;  2  Rand.  87:  i  Younge  &  C.  Exch.  53.  e-2 
Martin  (N.  S.)  508  :  4  Id.  383;  2  Mass.  217;  i  Dall.  239; 

2  Bay.  173,  362;  5  Vt.  313;  I  Phill.  Ev.  266:  Cow.  & 
H,  no??.    f-See  i  jfohns.  3^.    Jp-3  Jones  E<^.  10^ ;  3  Grant 


matter  in  dispute."  When  made  by  a  clerk,  it 
must  be  proven  by  him.  But  in  either  case, 
when  the  person  who  made  the  entry  is  out  of 
the  reach  of  the  process  of  the  court,  as  in  the 
case  of  death,  or  absence  out  of  the  State  c« 
county,  the  handwriting  may  be  proved  by  a 
person  acquainted  with  the  handwriting  of  the 
person  who  made  the  entry. y 

The  books  and  original  entries,  when  proved 
by  the  supplementary  oath  of  the  party,  is 
prima  facie  evidence  of  the  sale  and  delivery 
of  goods,  and  work  and  labor  done.*  But 
they  are  not  evidence  of  money  lent  or  cash 
paid,*  nor  of  the  time  a  vessel  lay  at  the  plain- 
tiff's wharf,**  nor  of  the  delivery  of  goods  to  be 
sold  on  commission." 

These  entries  are  evidence  in  suits  between 
third  parties,^  and  also  in  favor  of  the  party 
himself.* 

An  account  stated  is  in  the  nature  of  a 
new  promise,''  and  is  conclusive  as  to  the  lia- 
bility of  the  parties,  with  reference  to  the  trans- 
actions included  in  it,«  except  in  cases  of  fraud 
or  manifest  error.'' 

Acceptance  may  be  inferred  from  circum- 
stances ;  as  where  an  account  is  rendered  to  a 
merchant  and  no  objection  is  made,  after  suffi- 
cient time.*  In  general,  when  a  party  indebted 
upon  an  account  receives  and  retains  it  beyond 
such  time  as  is  reasonable  under  the  circum- 
stances and  according  to  the  usage  of  the  busi- 
ness, for  examining  and  returning  it,  without 
communicating  any  objections,  he  is  considered 
to  acquiesce  in  its  correctness,  and  he  becomes 
bound  by  it  as  an  account  stated.  Signature 
to  the  account,  or  express  admission  is  not 
necessary .J  This  rule  is  held  applicable  to  ac- 
counts between  merchants  residing  in  different 
countries.*  Such  an  account  is  deemed  con- 
clusive between  the  parties,'  to  the  extent 
agreed  upon,™  unless  some  fraud,  mistake,  or 
plain  error  is  shown,"  and  in  such  case,  gener- 
ally, the  account  will  not  be  opened,  but  liberty 
to  surcharge  or  falsify  will  be  given."  But  in 
cases  of  gross  fraud,  or  gross  mistake,  or  undue 
advantage,  or  imposition  made  palpable  to  the 
court,  the  court  will  direct  the  whole  account 
to  be  opened  and  taken  anew.P  Acceptance 
by  the  party  to  be  charged  must  be  shown  by 

the  one  who  relies  upon  the  account.'     The 

• 

Cas.  195.     h-i  Esp.  159 ;  24  Conn.  591 ;  4  Wis.  219 ;  5 

Fla.  478  ;_  6  Coldw.  56 ;  see  4  Sandf  (N.  Y.)  311 ;   16  Mo. 


226;  37  111.  512;  6  Conn.  447;  II  Wheat,  237;  Addis. 
260,  334.  1-2  Vern.  Ch.  276:  i  Sim.  &  S.  Ch.  333;  3 
Johns.  Ch.  569;  7  Cranch,  147;  M'Cord  Ch.  156;  3 
Md.  Ch.  433.  j-7  Cranch.  147;  6  Ala.  518:  13  Cal. 
427;  10  Iowa,  238:  18  La.  An.  124;  2  Md.  Ch.  433;  8 
N.  J.  Eq.  795;  26  Miss.  212;  3  Johns.  Ch.  569,  587;  1 
Edw.  Ch.  417;  2  Id.  I  ;  11  N.  Y.  170;  2  Barb.  586;  10 
Id.  213;  12  Id.  288;  45  Id.  490:  I  M'Cord,  156;  15  Vt. 
105.  k-7  Cranch.  147  25  Miss.  267  ;  3  Johns.  Ch.  569. 
1-2  Brown  Ch.  62,  310;  2  Ves.  Ch.  566,  837  ;  i  Swanst. 
Ch.  460;  6  Madd.Ch.  146;  20  Ala.  (N.  S.)  747;  3  Johns. 
Ch.  587;  I  Gill.  3So;  3  Jones  Ch.  109  ;  see2  Edw.  Ch.  i ; 
10  Barb.  213;  4  Sandf.  311:  3W.  &  S.  109;  31  N.  Y.498; 
10 Humph.  238;  18N.  Y.285;  12  La.  An.2o;  18  Id.  356; 
50  Me.  102  ;  2  Bosw.  188 ;  13  Ohio  St.  168.  m-i  Hopk. 
239 ;  4  Mich.  336.  n-i  Parsons  Contr.  174 ;  i  Johns.  Ch. 
550;  I  M'Cord,  156.  0-2  Atk.  Ch.  119;  9  Ves.  Ch.  2*5; 
I  Schoales  &  L.  Eq.  192 ;  7 Gill.  119;  1  Md.  Ch.  306  pi 
0  Coldw.  56.     tl-io  H^mph.  (Tenn  )  938;  la  111.  ui. 


ACCOUNTS. 


acknowledgment  that  the  sum  is  due  is  suffi- 
cient,* though  there  be  but  a  single  item  in  the 
account.''  Acceptance  may  also  be  inferred 
from  retaining  the  account  a  sufficient  time 
without  making  objection,'  and  from  other  cir- 
cumstances.J  The  acceptance  of  the  account 
is  an  acknowledgment  of  a  debt  due  for  the 
balance,^  and  it  is  not  necessary  to  prove  the 
items,  but  only  to  prove  an  existing  debt  or  de- 
mand, and  the  stating  of  the  account.' 
■  Any  admission  of  a  balance  or  acknowledg- 
ment made  by  one  party  to  another,  that  a  sum 
•f  money  is  due  to  the  latter,  is  sufficient 
prima  facie  evidence  to  entitle  him  to  recover 
that  sum  on  an  account  stated ;™  so  where  the 
defendant  stated  that  he  would  call  and  settle  the 
amount  of  the  debt  sent  in,"  or  where  he  sent 
money  on  account,  stating  he  would  pay  the 
remainder  next  week."  But  a  mere  qualified 
acknowledgment  is  not.P 

An  acceptance  of  a  bill  is  evidence  of  an  ac- 
count stated  by  the  acceptor  with  the  holder  ;i 
at  all  events  it  is  so  in  an  action  at  the  suit  of 
the  drawer,'  or  at  the  suit  of  a  payee,  who  is 
also  drawer."  A  promissory  note  is  evidence  as 
an  account  stated,  in  an  action  by  the  payee 
against  the  maker.'  An  I.  O.  U.  is  evidence 
of  an  account  stated."  Where  accounts  are 
submitted  to  an  arbiter,  not  by  bond,  his  award 
may  be  given  in  evidence  under  an  account 
stated.^  Stating  an  account  will,  in  general, 
amount  to  an  admission  of  the  title  of  the  party 
to  receive  the  money.* 

TTie  account  must  be  stated  by  a  competent 
person,  excluding  infants  and  those  who  are 
of  unsound  mind.*  Husband  and  wife  may 
join  and  state  an  account  with  a  third  person.' 
An  agent  may  bind  his  principal.*  Proof  of  an 
account  stated  with  the  plaintiff's  agent  is  suffi- 
cient, proving  the  party  to  be  such  agent ;  so  a 
plaintiff  may  recover  on  an  account  stated  by 
the  defendant  with  the  plaintiff's  wife,  or  an 
account  stated  by  the  defendant's  wife,*  if  she 
proved  to  be  the  party's  agent.  Partners  may 
state  accounts,  and  an  action  lies  for  the  party 
entitled  to  the  balance.'* 

The  subject-matter*^  of  the  account  must  be 
proved  to  have  been  money  and  a  debt.  A 
definite  ascertained  sum  must  be  stated  to  be 
due.*  It  is  sufficient  to  prove  an  account 
stated,  without  giving  evidence  of  the  severaF 
items  constituting  the  account,*  it  is  not  neces- 
sary that  there  should  be  cross  demands  between 
/khe  parties,  or  that  the  defendant's  admission 
bhould  relate  to  more  than  one  item  or  trans- 
action.'  Accounting  in  a  particular  character 
admits   that    character.*     An    account    stated 

g-3  Mod.  44;  2  Term.  480.  Il-t3  East.  349;  5 
Maule  &  S  65:  1  Show.  215.  I-7  Cranch,  147;  3 
Watts.  &  S.  109;  10  Barb.  213  :  i  Sandf.  311 ;  see  22 
Penn.  St.  454.  j-i  Gill.  234.  k-n  Eng.  L.  &  Eq.  421. 
I-16  Ala.  (N.  S.)  742.  in-2  Mod.  44;  i  T.  R.  42 ;  i 
Esp.  159;  6  Id.  24.  11-3  Stark.  10.  o-io  Ea.st.  104 
p-i  R.  &  M.  239:  4  B.  &C.  235,  6D.  &  R.  306,  S.C. 
q-i  H.  Bl.  239;  3  Kast.  169;  3  B.  &  P.  559:  t  East. 98. 
r-5  M.  &  S.  65.  s-5  B.  &  A.  245 :  5  B.  C.  360.  t-2  Str. 
719;  Chitt.  Bill,  366.  u-5  M.  &  S  65.  v-i  Esp.  194  ; 
t  Chitt.  PI.  308.  w-4  Moore,  73.  x-i  T.  R.  40.  y-2 
f.  R.  483 ;  t^  Eng.  t.  9i  Ecj.  290.    1-3  Johns.  Qh.  569. 


does  not  alter  the  nature  of  the  original 
debt." 

An  account  stated  is  not,  in  general,  conclu- 
sive evidence  against  the  party  admitting  the 
balance  to  be  against  him.'  He  would  be  al- 
lowed to  show  a  gross  error  or  mistake  in  the 
account,  or  any  fraud  or  misrepresentation  by 
the  other  party,  if  he  could  adduce  clear  evi- 
dence of  that  fact.  But  where  an  account  is 
settled,  and  the  party  gives  a  bill  for  the 
amount,  which  bill  is  not  paid,  he  cannot,  on 
an  action  brought,  impeach  the  charges  in  the 
first  account  which  he  has  setlled.J  And  where 
parties  having  cross  demands,  settle  and  balance 
their  accounts,  though  part  of  the  plaintiff's 
demand  could  not  be  recovered  in  the  action, 
the  settlement  of  accounts  will  bind  the  defend- 
ant, so  that  he  cannot  set  up  that  defence  to  an 
action  for  the  balance.^ 

The  material  allegations  in  an  action  upon 
an  account  stated  are :  ( i )  That  plaintiff  and 
defendant  came  to  an  accounting  together,  (2) 
in  such  accounting  defendant  was  found  in- 
debted to  plaintiff,  (3)  which  defendant  prom- 
ised to  pay,  (4)  and  has  not  paid. 

ACCOUNT  FORMS. 
Accounts— Administrator's. 

See  title  Affidavits,  post. 
See  Account — Executor  s,  below. 
The  account  of  A.  D.  and  A.  R.,  administrators 
of  all  and  singular  the  goods  and  chattels,  right* 

and  credits  which  \vere  of  D.  D.,  late  of ,  in 

the  county  of ,  merchant,  deceased. 


The  said 
accountants 
charge  them- 
selves with 
all  and  singu- 
lar the  goods 
and  chattels, 
rights  and 
credits  which 
were  of  said 
dec'd,  agree- 
ably to  an  in- 
vent'y  there- 
of filed  in  the 

—  office  in 
amounting  to 

To  divid'd 
received    on 

—  stock  — 
To  rent  of 

T.T.for  — 


Tobal. 


8325 


760 


No. 


The  said 
accountan  t  s 
credit  them- 
selves for  the 
followingdis- 
burseme  n  ts 
made  out  of 
and  on  acc't 
of  the  estate 
[aforesaid.vij! 
Fees  for 
letters  of  ad- 
ministration 

Funeral  ex. 

Last  s i ck- 
ness,      .     . 

Attendance 
last  sickness 

Dec  r  e  a  s  e 
in  sale  of 
goods,  etc. 

Etc.,  etc. 


By  bal. 


56 


■073 


n-B.  N.  P.  190.  b-4  DaH  434:  »  Wash. C.  C  43S :  H 
Vt.  169.  C-5  Moore,  114,  no.  d-io  Serg.  &  R.  241. 
e-i  T.  R.  42 ;  8  Taunt.  688.  r-13  East.  349 ;  5  M.  & 
S.  65.  g-io  East.  104.  h-AIleyn,  72,  73.  l-i  T  R. 
43 ;  see  2  Edw.  Ch.  393 ;  6  Ired.  Eq.  197.  As  to  effect 
of  stipulation  by  the  words  "  errors  excepted  "  or  other- 
wise,  reserving  leave  to  interpose  objections  in  future  to 
an  account ;  see  9  Cal.  353 ;  Hopk.  Ch.  230 ;  6  Harr.  ft 

i.  43.  J-i  Esp.  159;  I  Stark,  151;  3  Id.  51;  Chittf 
ills,  72,  see  note  o,  and  cases  noted  for  examioatioa. 
k-6  Esp.  24 :  la  M9.  $17,  Cb.  C  199;  SCO  r^ferasM  ip 
preceding  note 


ACCOUNTS. 


Final  {or  partial)  account  of 
of  the  estate  of  D.  D.,  of  — 


A.  R.,  administrator 
-,  deceased. 


Said  ad- 
ministrator 
charges  him- 
self with  the 
amt.  of  the 
inven'rj'  and 
appraisem '  t 
on  file,  .     . 

Shares  of 
stock  as  fol- 
lows {descri- 
bing them.") 

Promissory 
notes  as  fol- 
lows (descri- 
bingihtm.) 

Cash. 

Etc.,  etc. 

To  bal. 


S73I 


No. 


Said  ad- 
mi  nistrator 
claims  credit 
as  follows : 

Diff'cebet. 
sale  bill  and 
inven'ry  and 
appraisem't 

Desperate 
claims  re- 
ported, .     . 

Etc.,  etc. 


By  bal. 


1231 
730 


A.  R.,  administrator  of  the  estate  of  D.  D.,  de- 
ceased, in  account  current  for  partial  {or  final  set- 
tlement). 


Accountant 
charges  him- 
self as  fol- 
lows: 

To  bal. 


Accountant 
claims  credit 
as  follows : 


By  bal. 


Acconnts— Assli^ee's. 

See  title  Affidavits,  post. 
The  mccount  of  A.  A.,  assignee  of  I.  T.,  mer- 
chant, of ,  by  deed  of  voluntary  assignment, 

dated  the day  of . 


The  said  as- 
sig'ee  ch'rgs 
himself  with 
all  and  sin- 
gular the  as- 
signed est'te, 
real,  person'! 
and  mixed, 
of  said  as- 
signor, I.  T., 
according  to 
an  inventory 
and  appraise- 
ment tnereof 
filed  in  the 
—  office  on 
the  —  day  of 
— ,  amount- 
ing  t  ^  the 
sum  of — . 

Said  as'g'ee 
further  ch'gs 
himself  as 
follows,  etc. 

To  bal. 


V'cher 


No.  1 


The  said  as- 
sig'ee  claims 
credit  and  al- 
lowance for 
the  following 
pa  y  m  e  n  t  s, 
etc.,  viz. 


By  bal 


$ 


Account  of  A.  A.,  assignee  of  I.  T.,  insolvent. 


O     Said  as- 

S  sig'ee  ch'rgs 

"  hi  mself  as 

follows : 

Amount  of 
inven'ry  and 
appraisem'nt 

Ifliade  the  — 
day  of — . 
To  bal. 


N«.  I 


Said  as- 
sig'ee  claims 
credit  as  fol- 
lows, viz. : 


6^  bal. 


In  the  matter  of  the) 
assignment  of  I.  T. ,  >In  the court. 

merchant.  ) 

Account  of  A.  A.,  assignee  of  said  insolvent. 


Said  as- 
sig'ee  ch'rgs 
himself  as 
f  o  1 1  ows,  to- 
wit,  etc. 


Said  as 
sig'ee  claims 
credit  as  fol- 
lows,   viz., 
etc. 


Accounts— Ctnardinn's. 

See  title  Affidavits,  post. 

The  account  for  settlement  with  the  court  should  be  a 
true  transcript  of  the  books  kept  by  the  guardian.  It 
should  clearly  show  the  debits  and  credits  of  the  guar- 
dian, and  should  clearly  refer  by  number  or  otherwise  to 
thevouchers  produced  for  each  item,  and  be  so  complete 
that  any  person,  without  explanation,  can  understand 
the  precise  condition  of  the  account. 

G.  N.,  guardian  of  I.  D.,one  of  the  children 

and  heirs  of  D.  D.,  of ,  deceased,  in  account 

with  the  estate  of  said  D.  D. 


Said  guar- 
dian charges 
hims'f  as  fol- 
lows, viz. : 

Amount  re- 
ceived from 
E.  A.,  exec- 
utor {or  ad- 
ministrato  r ) 
of  said  D. 
D., being  the 
proportion  of 
personal  es 
\s.X.c{or  other 
•wise)  due  the 
said  I.  D.,as 
one  of  the 
heirs  of  said 
D.  D.,  .     . 

Cash  from 
R.  R.  for  one 
year's  rent  of 
— ,  etc.,  etc, 

Etc.,  etc. 


Total, 


I 


Said  guar- 
dian credits 
himself  for 
the  following 
sums,  paid 
o  n  account 
of  his  said 
ward,  as  per 
vouchers  on 
file,  viz.  : 

PaidC.  C, 
clerk's  fees. 

Paid  A.  Y., 
at'ney's  fees. 

Paid  B.  G., 
for  6  months' 
b'rd  for  ward 

PaidT.N., 

for  6  months' 

tuition,  etc.. 

Etc.,  etc. 


Total, 


96 


The  guardian  should  add  to  the  credits  the  amount 
that  the  court  allows  him  as  compensation. 


G.  N.,  guardian  of  the  person  and  estate  of  L 
D.,  minor  heir  of  D.  D.,  deceased,  account  of  re- 
ceipts and  expenditures. 


Said  guar- 
dian credits 
said  estate 
with — . 

Etc.,  etc.. 


Tobjd. 


Said  guar- 
dian charges 
said  estate 
with  the  fol- 
lowing pay- 
ments on 
vou'ers  filed. 

Etc.,  etc. 


Bjrb^. 


$ 


ACCOUNTS. 


O.  N.,  guardlaa,  In  account  with  I.  D.,  his  ward. 
Cr.  Dr. 


To  amount 
received  of 
E.  A.,  ad- 
mini  strator 
of  ward's  fa- 
ther, .     .     . 

To  amount 
of  note  of  P. 
N.,  to  ward, 
secured  by 
mortgage, 

To  rent  re- 
ceived of  T. 
T.,  for,  etc. 

Etc.,  etc. 


1076 

8930 
750 


By  costs 
and  expenses 
of  guardian- 
ship as  per 
schedule  A, 
hereunto  at- 
tached, .     . 

By  amount 
paid  for  the 
maintenance 
and  tuition 
of  ward,  re- 
pairs on  real 
estate,  taxes, 
etc.,  as  per 
schedule  B, 
hereunto  an- 
nexed,   .     . 

By  balance 
on  Kand,  etc. 


Accounts — Execator*s. 

See  title  Affidavits,  post. 
The  first  and  partial  (or  final)  account  of  E.  X., 
executor  of  the  last  will  and  testament  of  D.  D., 
of ,  in  the  county  of .merchant,  deceased. 


Oj  The  said 
£  accountants 
"  [charge them- 
iselves  with 
all  and  singu- 
lar the  goods 
and  chattels, 
jrights  and 
cr'dits  which 
were  of  the 
said  dec'd, 
agreeably  to 
an  inventory 
filed  in  the 
j  —  office,  etc. 
amounting  to 
I  To  an  in- 
crease on  the 
sale  of  goods, 

etc 

Etc.,  etc. 
To  bal. 


60 


The  said 
accountan  t  s 
credit  them- 
selves for  the 
following  dis- 
bursements 
made  out  of 
the  estate 
aforesaid,  viz 
By  cash  pd. 
f o  r  probate 
of  will,  etc., 
etc.,  .     .     . 

By  amount 
of  goods  be- 
qu'thed  wid- 
ow, etc.,  etc. 


By  bal. 


$     c 


The  second  and  final  (<?r  3d,  4th,  etc.,  final, partial, 
#r  supplementary)  account  of  E.  X.,T.  S., executors 

of  the  last  will  and  testament  of  D.  D.,  of , 

farmer,  deceased. 


Oj  The  said 
K  I  accountan  t  s 
•"  1  charge  them- 
selves as  fol- 
lows, viz. : 

The  amt. 
of  personal 
est'e  remain- 
ing in  their 
hands  at  the 
close  of  the 
first  partial 
(or  oiner)  ac- 
count filed 
and  audited 
(or  allowed) 
on  the  —  day 
of-,  .  . 
Balance  of 
cash  on  hand 
at  the  close 
of  the  first 
(#ro/A*r)  ac- 
count,   .     . 

The   said 
accountants 


1673 


M  No.  of 
Vcher 


The  said 
accountan  ts 
claim  credit 
and  allow'ce 
for  the  fol- 
lowing pay- 
ments, etc., 
viz. : 

Etc.,  etc. 


further  ch'ge 
themselves 
with  the  fol- 
lowing sums 
received  i  n 
cash  since 
the  filing  of 
the  first  (or 
other)  acc't, 
viz. : 
Etc.,  etc. 
To  bal. 


By  bal, 


The  final  (or  other)  account  of  E.  X.,  executo* 

of  the  last  will  and  testament  of  D.  D.,  of , 

deceased. 


O 


Said  exec- 
utor charges 
himself  with 
the  amount 
of  the  inven- 
tory and  ap- 
praisement 
as  filed  in  the 
office  of  the 
— ,  etc., 

17,500 

Less  inter- 
est in  special 
partnership, 
with  —  not 
rec'd,  ^3,000 

To  cash,  6 
mos.  interest 
on  jio,ooo  at 
6  perct.  loan 
of  — ,  etc., 
due  — ,  *6oo 

Less  State 
tax,  $11 

Etc.,  etc. 


588 


Said  exec- 
utor claims 
credit  for  the 
follw'g  pay- 
m'nts.ch'rgs 
anddisb'rse- 
ments  made 
on  account 
of  said  es- 
tate, viz.: 

By  cash 
paid,  etc. 


$      c 


Final  (er  Partial)  account  of  E.  X. ,  executor  of  the 
last  will  and  testament  of  D.  D. ,  of ,  deceased. 

And  acc'nt- 
ant  claims 
credit  for  the 
follw'g  pay, 
ments  made 
on  behalf  of 
said  estate : 

Paid . 

Paid  by  bal- 
ance, etc. 


To  balance 


No. 


Statements  of  Acconat. 

In  Detail,  for  Collection,  etc. 

See  tide  Affidavits,  post. 

Mr.  A.  B. ,  of .    Bought  of  C.  D. ,  of . 


Dates.        Items  and  description  of  things    I  Amount*, 
purchased.  i — j — ~ 


Order,  No. .  New  York, , 

Mr.  A.  B.,  No. , St. 

Bought  of  C.  D.  &  Co.,  Importers,  etc.,  No.  — — , 
St. 

Terms  cash.  Purchases  not  giving  satisfaction  muM 
be  returned  at  once,  when  the  price  will  be  refunded. 


Dates.  I         Items  of  goods  ptux:hased. 


Amounts. 


ACCOUNTS. 


BOOK-KEEPING'  is  the  science  of  re- 
coniing  business  iiansactions  in  such  a  manner 
that  a  person  may  at  any  time  know  the  exact 
Slate  of  his  business  affairs. 

There  are  two  methods  of  book-keeping  in 
general  use :  single  and  double  entry. 
SINGLE  ENTRY. 
In  single  entry,  accounts  are  kept  with  persons 
tnly,  and  the  amounts  entered  but  once  in  the 
ledger. 

BOOK-KEEPINO  FORMS. 
Day  Book— Sinj^le  or  Double  Entry. 
Daily  Entries. 
Philadelphia,"  January  ist,  1876. 


Commenced  business  this  day 
with  a  cash  capital  of 


Bought  of  J.  H.  Warren,  for 
cash, 
Mdse.  as  per  invoice,  .    . 


Sold  R.  Stevens,  for  cash, 
Mdse.  as  per  bill,    .     . 
3 


Sold  J.  C.  Anderson,  for  cash, 
Mdse.  as  per  bill,    .     .     . 

4 


Sold  Geo.  Brown,  on  his  note 
at  10  days, 

Mdse.  as  per  bill,     .     .     . 
5 


Bought  of  H.  C.  Wright,  on 
my  note  at  10  days, 
Mdse.  as  per  invoice,   .     . 
6 


Paid  for    painting   counters, 
shelves,  etc. , 


Paid  for  ton  of  «oal  for  store, 
8 


Sold  T.  C.  Mann,  for  cash, 
3o  yds.  blk.  cassimere, 

@  $3-5° 

Bought  of  Saml.  Mills,  on  my 
note  at  30  days, 
50  yds.  fancy  cas.,  @  82.00 
65    "      blk.  doc.,    @    3.25 


Bought  for  cash, 
10  shares  R.  R.  stk.,' 


Sold  Geo.  E.  Oberer,  on  his 
note  at  10  days, 
10  yds.  fancy  cass., 

@  82.50 
20  yds.  blk.  doe.,  @    4.12}^ 
13 


Sold  J.  C.  Abbott,  for  cash, 
2  shares  stk.,  @  850 

15 


Paid    for   washing  windows, 

counters,  etc 

16 


Sold  O.  L.  Smith,  on  his  note 
at  30  days, 
20  yds.  fancy  cass., 

©82.3754 
100  yds.  fancy  cass., 

©82.75 
50  yds.  blk.  doe.,  @    4.45 
17 


Rcc'd  cash  for  Geo.  Brown's 
note,  due  this  day,  .     . 


Sold  T.  L.  Clark,  for  cash, 
125  yds.  fancy  cass., 

@$30o 
x8. 


Paid  my  note,  l^ror  of  H.  C. 
Wright,  due  this  day,  .     . 


Sold  for  cash, 
3  shares  stk. 


©850)$ 


100  00 
211  25 


750 


862 
IS 


545 
390 

37500 
862 


Bought  for  cash, 
100  yds.  blk.  ca.ss.,  ©81.75 
13 


Sold  J .  C.  Abbott,  on  his  note 
at  3  days, 
50  yds.  blk.  br'd  cloth, 

©85-00 
75  yds.  fancy  cass.,  ©    2.25 
34 


Bought  of  James  P.  Brown, 
50  yds.  fancy  cass.,  ©  $2.10 

Gave  in  payment, 
2  shares  stk.,  ©  852^ 

.«5 


Rec'd  cash  from  George  E. 
Oberer, 

For  his  note  due  this  day, 
36 


Sold  for  cash, 
I  share  stk.. 


27 


©8si}i 


Sold  J.  Baker,  for  cash, 
25  yds.  blk.  doe,      ©  83.00 
39 


Rec'd  from  James  C.  Abbott, 
For  his  note  due  this  day. 


Paid  rent  for  January, 
do.  gas  bill         " 


»75 

250 
:68 

oo 
75 

418 
»05 

107 
51 
75 

4»8 

^6 

00 
as 

56 

Slni^Ie  Entry. 

Ledger  Entries — General  Forms. 
Dr.                           J.  H.  Warren. 
1876. 1876. 


Cr. 


Jan. 
Jan. 


To  cash, 
•■   100   kbis. 

floor. 
To  ea>h  bal., 


►8 

una 

00 

Jan. 

1 

B7  mdw. 

7 

£ 

*« 

17 

soo 
100 

00 
00 

Ir 

1100 

00 

W 

Dr. 

1876 

R.  S 

te 

(Tens 
i87fi 

Cr. 

Jan. 

10 
11 
17 
19 

To  com, 
"  flour. 
•'  cloUii, 
"  ■ondrlM, 

70 
10 
16 
U 

121 

30 
70 
50 
50 

00 

Jan. 

15 

Bt  outa, 
'•  balce. 

SO 
71 

121 

00 
00 

OC 

Dr. 
X876. 


J.  C.  Anderson. 
1876. 


Cr 


Jan. 

15  Tosnadrict. 

73  10 

Jan.  ]  20 ;  Bj  mdse. 

107  Oft 

17    "  groceries, 

26  90 

•* 

31 

"  baloe. 

93  00 

17    "mdae., 

lOOiOO 
2OO1OO 

loo  00 

Dr. 

1876. 


H.  C.  Wright. 
1876. 


Cr. 


Jan.  {31|Toeasb, 


I  862|00pan.  1 50 1  Bj  mdw. 


Dr. 
1876. 


Siniirle  Entry. 

Cash  Book  Entries— General  Forms. 
Cash. 

1876.       


Cr. 


Jan. 

t* 

31 

* 

c 

Toc'shanband 

ea- 

50 

"A.  B., 

3; 

»4 

"  C.  D.  on  act 

6.) 

43 

-E.F.o.note 

127 

■Di 

"  0.  H.. 

H4 

78 

'•  I.  K  . 

17 

90 

•  I..  M.. 

ino 

90 

■■  sales  mdse. 

311 

IH 

1382 

86 

t  If 


Bj  rent  for  one 
qusr.  pd.  T.. 

By  note  to  P.  E. 
"  family  exp  s 
'•  mds.  ofM.  E.i  614  7i 
-caihonbandj  550  6? 

|1382!k 


«5  30 
127  >0 
2;  <i\ 


Feb.  1 1  I  Cash  on  band.  )  550  I  65 II        t     1 


DOUBLE  ENTRY. 

In  Double  Entry  accounts  are  kept  with 
botk  persons  and  things,  and  the  amounts  en- 
tered twice  in  the  ledger — once  on  the  debi» 
and  once  on  the  credit  side. 

^Pi^r^'s  Quid?  to  Pook-K«e^nn(- 


ACCOUNTS. 


Debtor  and  creditor  are  correlative  terms; 
the  one  implies  and  involves  the  other.  Wher- 
ever there  is  a  debit  there  must  be  a  credit  for 
an  equal  amount,  and  wherever  there  is  a  cred- 
itor there  must  be  a  debtor. 

The  same  general  results  may  be  shown  by 
either  single  or  double  entry,  but  the  latter  is 
superior  in  this  respect ; — that  it  not  only  shows 
one's  standing  with  the  persons  with  whom  he 
is  dealing,  but  it  also  shows  the  particular 
kinds  of  property  possessed,  and  the  profit  on 
each  kind,  thereby  furnishing  a  guide  for  the 
management  of  business. 

The  principal  books  used  in  business 
are  the  Day  Book,  Journal,  Ledger,  and  Cash 
Book. 

The  Day  Book  should  contain  a  concise  and 
comprehensive  history  of  the  merchant's  busi- 
ness transactions.  It  being  one  of  the  few 
books  allowed  in  cases  of  litigation  care  must 
be  taken  in  making  the  records  so  that  an  en- 
tire stranger,  by  reading  them,  would  under- 
stand fully  the  nature  of  the  transactions.  No 
erasures  are  allowable  in  this  book.  If  a  mis- 
take is  made,  either  in  words  or  figures,  draw 
a  line  through  it  with  red  ink,  and  place  the 
correction  above.  Do  not  remove  the  error; 
•nly  cancel  its  effect. 

The  Journal  is  a  book  in  which  the  trans- 
actions recorded  in  the  day  book  are  prepared 
for  the  ledger,  by  determining  the  proper  debits 
and  credits  and  their  names.  This  process  is 
called  journalizing,  and  is,  in  fact,  the  science 
of  double  entry  book-keeping. 

The  Ledger  is  the  general  register  in  abstract 
of  all  the  debits  and  credits,  arranged  in 
systematic  order  under  their  appropriate  heads. 
From  this  book  the  merchant  can  readily  ascer- 
tain the  state  of  his  business  affairs,  as  well  as 
his  relations  to  persons  with  whom  he  is  doing 
business. 

The  Cash  Book,  in  which  is  entered  all  cash 
received  or  paid  out  at  the  time  of  occurrence. 
Be  careful  to  give  the  date,  the  account  to  be 
debited  or  credited,  the  explanations,  and  the 
amount  of  each  entry.  In  actual  business  it  is 
usually  balanced  every  night,  the  balance 
agreeing  with  the  amount  of  cash  on  hand, 
added  to  the  bank  balance,  if  a  bank  account 
is  kept. 

There  are  four  distinct  classes  of  ac- 
counts, viz.,  Individual,  Non-speculative  Rep- 
resentative, Speculative  Representative,  and 
Loss  and  Gain  Accounts. 

Individual  accounts  are  those  accounts 
clothed  with  the  authority  to  maintain  a  suit  at 
law ;  they  include  accounts  with  persons,  banks, 
and  all  corporate  companies. 

Loss  and  Gain  accounts  are  such  as  show 
losses  and  gains  only,  and  do  not  in  themselves 
represent  any  value.  To  this  class  belong  Profit 
and  Loss,  Interest,  Commission,  Insurance, 
Expenses,  etc. 

Representative  Non-speculative  accounts  are 
those  that  represent  assets  or  liabilities,  on 
which  there  can  be  no  increase  or  diminution 


of  value,  as  Cash,  Bills  Receivable,  Bills  Pay- 
able, etc. 

Representative  Speculative  accounts  are  thosa 
which  represent  value,  but  on  which  you  may 
gain  or  lose :  as  Merchandise,  Real  Estate, 
Personal  Property,  Shipments,  Shipment  Com- 
panies, Merchandise  Companies,  and  all  kinds 
of  Corporation  stocks. 

MERCANTILE   DEFINITIONS. 

See  "  Practical  Rules,"  below. 

The  principal  kinds  of  business  paper  in 
general  use  are  Bills  of  Exchange  (Foreign 
and  Inland),  Notes,  Checks,  and  Receipts. 

An  Account  Current  is  a  statement  of  the 
mercantile  transactions  of  one  person  with 
another,  drawn  out  in  the  form  of  Dr.  and  Cr., 
dealing  only  with  gross  sums,  and  is  an  exact 
copy  of  the  personal  account  found  in  the 
ledger. 

An  Account  Sales  is  a  statement  of  all  the 
details  concerning  an  individual  lot  of  goods. 
It  is  distinguished  from  an  account  current  by 
these  three  particulars :  I.  The  account  current 
is  with  an  individual.  The  account  sales  is  of 
a  particular  lot  of  goods.  2.  The  account  cur- 
rent involves  net  sums.  The  account  sales 
presents  items  in  detail.  3.  The  account  cur- 
rent may  involve  the  proceeds  of  many  account 
sales,  and  all  transactions  with  an  individual, 
whether  arising  from  the  sale  of  his  goods  or 
not.  The  account  sales  is  limited  to  an  account 
of  the  transactions  arising  from  the  sale  of  one 
lot  of  goods. 

A  Bill  of  Exchange  is  a  written  order  or 
request  from  one  person  to  another,  desiring 
the  latter  to  pay  to  some  person  designated  a 
certain  sum  of  money  therein  named.  When 
drawn  in  one  country  (or  State)  and  payable 
in  another,  it  is  called  a  foreign  bill.  When 
drawn  and  payable  in  the  same  country  (or 
State)  it  is  called  an  inland  bill,  or  more  fre- 
quently a  draft.  It  generally  is,  and  to  be  ne- 
gotiable, it  must  be  made  payable  to  "order" 
or  "  bearer."  The  person  who  draws  the  bill 
is  called  the  drawer;- the  person  on  whom  it  is 
drawn  is,  before  acceptance,  called  the  drawee ; 
after  acceptance,  the  acceptor.  The  person  to 
whom  the  money  is  directed  to  be  paid  is 
called  the  payee. 

A  Bill  of  Goods  is  an  account  of  goods 
sold,  given  by  the  seller  to  the  buyer,  contain- 
ing the  quantity  and  prices  of  the  articles,  with 
a  statement  of  the  date  and  terms  of  credit, 

A  Check  is  an  order  for  money  drawn  on  a 
bank,  or  persons  doing  banking  business,  hav- 
ing money  in  their  hands,  payable  at  sight. 

To  Close  an  Account  is  to  make  both  sides 
equal. 

An  Invoice  is  an  account  of  goods  sent  by 
a  merchant  to  his  consignee,  containing  the 
particular  marks,  value,  charges,  and  other 
particulars  of  the  goods. 

A  Ledger  Account  is  a  space  in  the  ledger 
set  apart  for  the  debits  and  credits  of  a  particu- 
lar kind,  with  the  name  of  that  kind  written  i^ 
the  top. 


ACCOUNTS. 


Posting  is  transferring  the  journal  debits  and 
credits  to  their  proper  place  in  the  ledger. 

A  Promissory  Note  is  a  promise,  in  writing, 
to  pay  a  specified  sum  at  a  time  therein  limited, 
or  on  demand,  or  at  sight,  to  a  person  therein 
named,  or  to  his  order,  or  to  the  bearer. 

A  Receipt  is  a  writing  aclcnowledging  the 
receipt  of  money  or  any  other  kind  of  property. 

A  Trial  Balance  is  a  systematic  arrangement 
of  the  ledger  accounts,  with  their  proper  debit 
and  credit  totals,  made  for  the  purpose  of  ascer- 
taining if  the  debits  and  credits  of  the  ledger 
are  equal  or  balance. 

PRACTICAL  RULES. 

See  "  Mercantile  Definitions,"  above. 

Bank.  The  debtor  side  shows  the  amount 
deposited.  The  credit  side  the  amount  drawn 
out.     It  usually  closes  "  By  balance." 

A  Bills  Payable  is  a  written  obligation  for 
the  unconditional  payment  of  a  certain  sum  of 
money,  at  a  certain  time  to  a  certain  person,  his 
order  or  bearer,  without  interest,  issued  by 
yourself,  and  payable  by  you  by  virtue  of  your 
written  promise  contained  in  it.  At  the  time 
of  commencing  business,  bills  payable  account 
will  be  credited  for  all  notes  and  acceptances 
outstanding,  and  during  the  business  for  all 
notes  and  acceptances  issued  by  the  merchant. 
It  is  debited  for  all  redeemed.  The  difference 
shows  the  amount  still  outstanding.  It  always 
closes  "  To  balance." 

A  Bills  Receivable  is  a  written  obligation  for 
the  unconditional  payment  of  a  certain  sum  of 
money,  at  a  certain  time  to  a  certain  person,  his 
order  or  bearer,  without  interest,  issued  by  any 
one  but  yourself,  and  payable  to  you  by  virtue 
of  the  written  promise  contained  in  it.  Bills 
receivable  account  is  debited  for  all  notes  and 
drafts  on  hand  at  commencing  business,  and 
for  all  received  during  the  business.  It  is 
credited  for  all  parted  with.  The  difference  is 
the  amount  still  held.  It  always  closes  "  By 
jalance." 

Cash  is  a  non-speculative  representative  ac- 
count. The  debtor  side  shows  the  amount 
received  ;  the  credit  side  the  amount  paid  out ; 
and  the  difference  is  the  amount  on  hand.  It 
always  closes  "  By  balance." 

A  Consignment  is  a  name  given  to  goods  re- 
ceived, to  be  sold  on  account  of  the  shipper, 
and  at  his  risk.  It  is  debited  for  all  charges 
when  received,  and  credited  for  all  sales. 
When  an  account  sales  is  rendered,  it  is  debited 
for  all  unposted  charges,  and  for  the  shipper's 
net  proceeds.  The  person  who  receives  a  con- 
•ignment  is  called  the  consignee. 

Expense  account  is  debited  with  all  moneys 
paid  or  liabilities  incurred,  from  which  no  direct 
return  is  expected,  such  as  clerk  hire,  store 
vent,  etc.     It  is  closed  "  By  profit  and  loss." 

Merchandise  is  a  speculative  representative 
account.  It  is  debited  for  the  cost  of  mer- 
chandise on  hand  at  commencing,  and  for  all 
purchased  during  business,  and  credited  for  all 
sales;  and  when  the  merchandise  has  all  been 
sold,  the  difference  between  the  sides  will  be 


gain  or  loss — gain  when  the  production  or 
credit  side  exceeds  the  cost,  and  loss  when  the 
cost  or  debtor  side  exceeds  the  production.  To 
find  the  gain  when  the  merchandise  has  not  all 
been  sold,  add  the  inventory  to  the  sales  or  credit 
side,  and  from  this  sum  substract  the  cost  or 
debtor  side ;  the  remainder  will  be  gain.  It  is 
closed  "  To  "  or  "  By  profit  and  loss."  Should 
the  debtor  side  be  greater  than  the  creditor,  the 
difference  between  them  will  be  loss. 

Real  estate,  personal  property,  corporalioo 
stocks,  and  all  speculative  accounts  are  treated 
precisely  as  merchandise. 

Merchandise  Company  is  a  name  given  to 
goods  received  to  be  sold  on  joint  account  and 
risk.  When  received,  it  is  made  debtor  for 
the  consignee's  interest  and  all  charges.  It  is 
credited  for  all  sales,  and  at  the  time  of  render- 
ing an  account  sales,  is  debited  for  all  unposted 
charges  and  the  shipper's  net  proceeds. 

Profit  and  Loss  account  is  debited  with  all 
losses  and  credited  with  all  gains.  The  differ- 
ence is  the  net  gain  or  loss.  It  is  closed  "  To  " 
or  "  By  stock." 

A  Shipment  is  a  name  given  to  goods  shipped 
to  be  sold  on  account  of  the  shipper,  and  at  his 
risk.  It  is  made  debtor  for  the  cost  of  the  mer- 
chandise sent,  and  all  expenses  incurred  at  the 
time  of  shipping.  It  is  credited  for  the  net 
proceeds  when  an  account  sales  is  received.  It 
is  closed  "  To  "  or  "  By  profit  and  loss,"  if  an 
account  sales  has  been  received,  but  if  not,  it  is 
credited  for  its  full  cost.  The  person  shipping 
the  goods  is  called  the  shipper  or  consignor. 

Shipment  Company  represents  the  shipper's 
interest  in  goods  shipped  to  be  sold  on  joint 
account  and  risk.  It  is  made  debtor  for  his 
interest  at  the  time  of  shipping,  and  creditor 
for  his  net  proceeds  when  an  account  sales  is 
received.     It  is  closed  the  same  as  a  shipraent- 

Stock  represents  the  merchant  or  stockholder, 
and  is  made  debtor  for  what  the  business  man 
owes  on  commencing  business,  for  all  sums 
withdrawn,  and  at  the  time  of  closing,  for  all 
losses  that  have  occurred  during  the  business. 
It  is  credited  for  all  sums  invested,  and  for  all 
gains.  It  is  closed  "  To  "  or  "  By  balance ; " 
"  To  balance  "  showing  the  net  capital,  and 
"  By  balance  "  the  net  insolvency. 

JOURNALIZING. 

Journalizing  may  be,  and  often  is,  done  with- 
out a  journal.  One  journalizes  when  on  hear- 
ing of  or  reading  a  business  transaction  he  de- 
termines that  entries  should  be  made  on  certain 
sides  of  certain  ledger  accounts.  The  funda 
mental  law  of  journalizing  is  that  exactly  ns 
much  shall  be  placed  on  the  Dr.  side  of  the 
ledger  as  goes  on  the  Cr.  side,  and  exactly  as 
much  must  be  placed  on  the  Cr.  side  as  goes 
on  the  Dr.  side.  And  no  business  transaction 
can  be  invented  in  which  each  of  the  parties  to 
it  does  not  either  receive  something,  or  some 
body  or  thing  has  cost  him  value,  and  at  tlie 
same  time  each  of  the  parties  to  the  transacti'.n 
has  parted  with  something,  or  somebody  1 1 
thing  has  produced  hiro  value. 


le 


ACCOUNTS. 


DEBIT   THE  THING   RECEIVED  OR  WHATEVER 

COSTS  VALUE. 
CREDIT  THE  THING   PARTED  WITH  OR  WHAT- 
EVER  PRODUCES   VALUE. 

CLOSING  A  LEDGER. 

Closing  the  ledger  is  ending  the  current  con- 
dition of  all  the  Ledger  accounts.  In  the  pro- 
cess, all  the  gains  and  losses  that  have  occurred 
in  the  business  are  gathered  together  in  the 
•'Profit  and  Loss "  account  and  there  com- 
pared. The  gains  are  placed  upon  the  credit 
side ;  the  losses  on  the  debit  side.  When  the 
credit  side  is  the  greater  the  account  is  closed 
"  To  stock,"  and  shows  a  net  gain.  The 
opposite  entry  "  By  profit  and  loss  "  is  made  in 
the  Stock  account,  and  increases  the  capital. 
When  the  debtor  side  is  the  greater  the  account 
is  closed  "  By  stock,"  and  shows  a  net  loss.  The 
opposite  entry  "  To  profit  and  loss  "  is  made  in 
the  Stock  account,  and  decreases  the  capital. 

A  balance  sheet  is  a  systematic  arrangement 
of  the  resources  and  liabilities  of  a  business. 
Rnles. 

1.  Take  a  trial  balance;  if  it  shows  the  total 
of  the  ledger  debits  equal  to  the  total  of  the 
ledger  credits,  proceed  as  directed  below. 

If  the  totals  referred  to  above  are  not  equal, 
re-add  each  journal  column  to  see  if  the  debits 
and  credits  are  equal  there ;  if  the  mistake  be 
undiscovered  yet,  re-add  the  ledger  debits  and 
credits,  and  if  this  does  not  reveal  the  mistake, 
examine  each  individual  post  from  the  journal, 
and  check  it  where  correct.  The  mistake  in 
your  trial  balance  must  arise  from  faulty  work 
in  one  of  these  three  items,  in  every  case  where 
the  ledger  contains  no  matter  excepting  what 
was  pwsted  from  the  journal.  Any  one  can  find 
the  mistake  who  can  perform  such  work  (add- 
ing and  transferring)  correctly,  and  he  who 
finds  the  mistake  will  find  it  in  one  of  these 
three  places. 

2.  Take  an  inventory,  and  credit  the  Specu- 
lative Representative  accounts  for  their  respec- 
tive amounts  "  By  balance,"  and  make  the 
opposite  or  debit  entries  in  a  Balance  account, 
which  open. 

3.  Close  all  Speculative  Representative  ac- 
counts "To  or  by  profit  and  loss,"  making 
opposite  entries  in  Profit  and  Loss  account. 

4.  Close  Profit  and  Loss  account  "  To  or  by 
stock,"  making  an  opposite  entry  in  Stock 
account. 

5.  Commence  with  the  first  account  now  un- 
closed and  close  it,  and  all  others  unclosed, 
"  To  or  by  balance,"  making  the  opposite  en- 
tries in  Balance  account. 

All  closing  entries  must  be  made  in  red  ink. 
The  entries  subsequent,  opposite  and  corre- 
sponding to  the  closing  ones,  together  with 
footings,  write  in  black  ink.  Accounts  closing 
"To  balance"  show  liabilities,  those  closing 
"  By  balance  "  assets  or  resources,  hence  Bal- 
ance account  will  show  resources  on  the  Dr. 
side  and  liabilities  on  the  Cr.  side. 

Accounts  closing  "  To  profit  and  loss," 
show  gains,  those  closing  "  By  pivfit  and  loss," 


losses,  hence  Profit  and  Ixjss  account  will  show 
losses  on  the  Dr.  side,  and  gains  on  the  Cr. 
side. 

When  the  direction  given  requires  an  account 
closed  "To  or  by  another,"  close  it '  To  the 
other"  if  the  debit  side  is  the  least,  and  "By 
the  other  "  when  the  Cr.  side  is  the  least. 

There  are  but  three  general  ways  of  closing 
accounts :  "  To  or  by  profit  and  loss,"  by  which 
all  the  gains  and  losses  are  collected  in  Profit 
and  Loss  account ;  "  To  or  by  stock,"  by 
which  the  net  gain  or  loss  is  taken  to  the  Capi- 
tal account ;  and  "  To  or  by  balance,"  by 
which  all  the  resources  and  liabilities  are 
gathered  together  in  the  Balance  account. 

If  no  mistake  is  made  in  closing  the  ledger 
the  two  sides  of  Balance  account  will  be  equal, 
for  in  prosperity  the  Dr.  side  comprises  all  the 
resources  of  the  business  man,  and  the  Cr.  side 
all  his  liabilities  and  his  net  capital — the  net 
capital  being  the  excess  of  resources  over  lia- 
bilities. And  the  net  capital  properly  appears 
among  the  liabilities,  as  the  books  are  of  the 
business,  and  show  that  the  business  owes  the 
merchant  whatever  he  has  invested  in  it.  So 
in  adversity  the  Dr.  side  of  Balance  account 
consists  of  the  resources  and  the  net  insolvency', 
and  the  Cr.  side  of  the  liabilities — the  net  in- 
solvency being  the  excess  of  the  liabilities  over 
resources.  And  the  net  insolvency  properly 
appears  among  the  resources,  as  the  merchant 
needs  to  pay  or  provide  the  business  with  what 
it  owes  beyond  its  ability  to  discharge. 

Book-Keeplnic— I^edgrer  Entries. 

Double  Entry. 

The  ledger  is  the  principal  account  book,  and  as  all 
other  books  are  subservient  to  it,  it  seems  proper  that 
this  should  be  the  first  book  considered.  It  is  extremely 
difficult  for  a  person  who  has  no  previous  knowledge  of 
the  subject  to  understand  the  use  or  language  of  the 
journal  or  day-book  until  he  is  made  acquainted  with 
the  nature  and  use  of  the  ledger. 

The  ledger  is  the  book  of  accounts.  Into  it  are 
gathered,  in  a  condensed  form,  the  entries  contained  in 
all  the  other  books.  Every  transaction  must  come  to 
this  book  for  final  adjustment ;  in  fact,  were  it  not  for 
the  great  difficulty  e.\perienced  to  avoid  errors  and  the 
lack  of  time  to  neatly  make  the  entries,  all  the  other 
books  might  be  dispensed  with,  and  the  transaction:,  as 
they  occur,  entered  under  their  appropriate  headings  in 
this  book  directly.  All  other  books  used  in  business  are 
merely  aids  to  the  book-keeper  in  preparing  the  transac- 
tions for  the  ledger. 

For  each  person  who  becomes  mdebted  to  us,  or  to 
whom  we  become  indebted,  an  account  is  opened  in  this 
book,  and  the  date  and  amount  of  such  indebtedness 
therein  recorded,  so  that  however  numerous  the  tran- 
sactions that  we  have  with  an  individual  may  be,  or 
however  widely  separated  as  to  time,  they  are  all  brought 
together  within  a  very  small  space  under  his  account  in 
the  ledger,  where  the  amounts  can  be  readily  seen,  anc' 
whether  we  owe  him,  or  he  owes  us,  and  how  much 
easily  determined. 

By  thus  bringing  compactly  together  all  the  transac- 
tions which  we  may  have  with  an  individual,  spread 
over,  it  may  be,  many  months,  and  arranging  upon  one 
side  of  his  account  all  items  for  which  he  becomes  in- 
debted to  us  (that  is,  for  which  he  owes  us),  and  upon 
the  other  side  all  items  for  which  we  become  indebted 
to  him  (that  is,  for  which  he  trusts  us),  we  make  it  an 
easy  matter  to  quickly  determine  at  any  time  the  differ- 
ence, or  balance  as  it  is  termed,  and  whether  it  be  in 
our  favor  or  against  us.  The  balance  is  in  our  favor 
when  the  Dr.  side  exceeds  the  Cr.,  that  is,  when  he  owes 
us  more  than  he  trusts  us;  and  against  us  when  the  Cr. 
side  exceeds  the  Dr.,  that  is,  when  h?  trusts  us  mor» 
th{»n  he  ow?s  m. 


ACCOUNTS. 


tt 


By  double  en**y  book-keeping  we  not  only  keep  ac- 
counts wich  indiriduals  but  with  every  kind  of  property 
which  we  own  or  deal  in,  such  as  Merchandise,  Real 
Estate,  Cash,  Notes,  etc.  Each  kind  of  property  has  a 
separate  account  in  the  ledger,  the  same  as  individuals, 
and  is  made  Dr.  for  what  it  costs  us  when  we  buy,  and 
Cr.  for  what  it  brings  us  when  we  sell  or  part  with  it. 

It  will  be  seen  by  the  following  ledger  accounts  with 
Merchandise,  R.  Evans,  John  Jones,  William  Smith, 
and  Cash,  that  each  account  has  two  sides,  being  di- 
Tided  in  the  centre  by  a  triple  line.  The  left-hand  side 
is  the  debit  (abbreviated  Dr.)  side,  and  the  right-hand 
side  the  credit  (abbreviated  Cr. )  side.  The  term  debit 
comes  from  the  Latin  word  debet,  and  means  he  tnves, 
and  the  term  credit  comes  from  the  Latin  word  credit, 
and  means  he  trusts.  When  an  individual  becomes  in- 
debted to  us  for  goods  sold  to  him  on  credit,  or  for  pay- 
ments made  by  us  to  liquidate  our  indebtedness  to  him, 
such  sales  or  payments  must  be  entered  upon  the  Dr. 
side  of  his  account  because  he  owes  us  for  them,  and 
vice  versa,  when  we  become  indebted  to  an  individual 
for  goods  bought  from  him  on  credit,  or  for  payments 
received  from  him  to  liquidate  his  indebtedness  to  us, 
such  purchases  or  payments  must  be  entered  upon  the 
Cr.  side  of  his  account,  because  he  trusts  us  for  them. 

The  following  rule  must  always  be  borne  in  mind, 
viz. :  That  whoever  or  whatever  causes  us  to  part  with 
value  or  to  run  into  debt  must  be  debited  in  the  ledger ; 
and  whoever  or  whatever  brings  us  in  value  or  gets  us 
out  of  debt,  or  causes  persons  to  owe  us,  must  be  credited 
in  the  ledger. 

The  following  examples  will  serve  to  illustrate  the 
fortgoing  remarks.  Carefully  consider  each  example 
and  follow  it  to  its  proper  accounts  in  the  ledger.  Each 
example  affects  equally  two  accounts,  the  Dr.  side  of 
one  and  the  Cr.  side  of  another. 
January  4,  1876.     We  bought  of  R.  Evans  on  account, 

merchandise  to  the  value  of  $1,500. 

In  this  example  or  transaction  we  buy  a  certain  kind 
of  property  called  merchandise,  for  which  we  run  in  debt 
to  R.  Evans,  and  following  out  what  has  already  been 
said,  we  turn  to  the  Merchandise  account  in  the  ledger, 
and  upon  the  Dr.  side  we  enter  the  date.  To  whom  we 
owe  for  the  merchandise,  viz.,  R.  Evans,  and  the 
amount  $i,yx),  and  then  upon  the  Cr.  side  of  R.  Evans' 
account  we  enter  the  date.  By  what  he  trusts  us,  viz., 
Mdse.,  and  the  amount  |!i,5oo.  The  amounts  upon  the 
Dr.  and  Cr.  sides  of  the  ledger,  after  the  above  transac- 
tion is  posted,  are  equal ;  it  is  essential  that  such  should 
i)e  the  case  after  each  transaction  is  posted. 
knuary  7.   We  sold  to  John  Jones  on  account,  10  yds. 

fancy  cassimere  (Mdse.),  @  $2.25:  $22.50. 

In  this  transaction  we  enter  upon  the  Dr.  side  of  John 
Tones'  account,  because  he  owes  us,  the  date.  To  what 
he  owes  us  for,  viz.,  Mdse.,  and  the  amount;  and  upon 
the  Cr.  side  of  the  Merchandise  account,  because  it  was 
merchandise,  that  produced  us  the  amount  that  John 
Jones  owes  us,  we  enter  the  date.  By  the  person  who 
owes  us  for  the  goods,  vi?..  John  Jones,  and  the  amount. 
January  10.     Sold  to  William  Smith  on  account,  laj^ 

yds.  bl'k  br'd  cloth,  @  $6;  $75. 
January  15.     Sold  John  Jones  on  account,  5  yds.  bl'k 

beaver  overcoating,  @  $7.50;  $37.50. 
January  38.     Bo't  of  R.   Evans  on  account.  Bill  of 

Mdse.,  amounting  to  $350. 
February  5.     Paid  R.  Evans  on  account,  $500. 

By  looking  at  R.  Evans'  account  it  will  be  seen  that 
at  this  date  we  owe  him,  or  rather  he  trusts  us  for 
goods  bought  of  him  January  4th  and  28th,  $1,850.  By 
this  payment  of  $500,  he  in  reality  trusts  us  from  this 
time  until  we  make  another  payment  or  purchase  but 
^1,350.  Now,  as  we  cannot  erase  the  $1,850  and  insert 
f  1,350  in  its  place,  we  enter  the  $500  upon  the  Dr.  side 
of  his  account,  thus  making  his  account  to  show  that  he 
still  trusts  us  $1,850,  but  owes  us  $500.  The  question 
is  now,  what  account  to  credit?  R.  Evans  has  been 
debited  $500,  and  some  account  must  be  credited  the 
same  amount.  ■  According  to  what  has  already  been 
said  it  must  be  that  which  we  parted  with  or  enabled  us 
to  decrease  our  indebtedness.  In  this  case  it  was  a 
kind  of  property  called  money  with  which  we  parted; 
it  was  the  money  which  we  paid  over  to  R.  Evans  that 
decreased  our  indebtedness  to  him.  therefore  money  de- 
serves credit.  The  money  received  and  paid  out  is  en- 
tered in  the  ledger  under  an  account  called  Cash,  we 
therefore  turn  to  the  Cash  account  and  upon  the  credit 
side  enter  the  date,  By  R.  Evans,  and  the  amount. 


February  13.     Received  from  John  Jones  on  account, 

$15. 

In  this  example  we  receive  property  called  money, 
and  as  all  property  when  received  is  debited,  we  turn  to 
the  account  in  the  ledger  representing  money,  viz..  Cash, 
and  enter  upon  the  Dr.  side  the  date.  To  John  Jones, 
and  the  amount,  $15,  and  as  John  Jones  trusts  us  for  the 
$15  until  he  settles  in  full  for  the  goods  sold  to  him 
January  7th  and  15th,  we  give  his  account  Cr.  for  that 
amount.  His  account  will  now  show  that  he  owes  us 
$60,  but  that  he  trusts  us  $15. 
February  31.     Received  from  Wm.  Smith  on  account, 

$25- 

March  3.     Paid  R.  Evans  on  account,  $100. 

March  30.     Sold  Wm.  Smith  on  account,  30  yds.  fancy 

cassimere,  @  $2  ;  $60. 
April  8.     Sold  John  Jones  on  account,  ao'  yds.  bl'k 

br'd  cloth,  @  $6  ;  $120. 
April  13.     Sold  Wm.  Smith  on  account,  10  yds.  bl'k 

cassimere,  ©$3.75;  $37.50. 
April  37.     Paid  R.  Evans  on  account,  $500. 
May  15.     Rec'd  from  John  Jones  to  balance  bills  of 

January  7th  and  15th,  $45. 
June  3.     Sold  Wm.  Smith  on  account,  aj^  yds.  fancy 

cass.  @  $7.50;  $18.75. 

June  18.     Paid  R.  Evans  on  account,  $200. 
une  30.     Rec'd  from  Wm.  Smith  to  balance  his  ac- 
count to  date,  $166.25. 

In  this  last  example,  when  Wm.  Smith  receives  credit 
for  the  8166.25,  the  two  sides  of  his  account  will  be  even. 
In  all  cases  where  a  settlement  in  full  is  made  or  a  state- 
ment sent  to  a  ciLstomer,  his  ledger  account  should  be 
balanced  and  ruled  off.  This  will  save  much  time  and 
perplexity  in  future  settlements,  as  all  transactions  up  to 
the  time  the  account  is  balanced  or  closed  are  supposed 
to  be  correct  and  adjusted,  and  in  future  settlements  only 
transactions  after  the  date  of  balancing  are  to  be  taken 
into  consideration.  The  ruling  off  of  an  account  divides 
the  adjusted  or  settled  transactions  from  the  new  or  un- 
adjusted ones. 

liedg^er  Entries— deneral  Forms. 

Double  Entry. 


Dr. 
1876. 


Merchandise. 
X876. 


Cr. 


1.S00 

•< 

Jan. 

7 

s&o 

Mar. 
Apr. 

June 

10 
IS 
20 

8 
IS 

S 

B;  J.  Jones. 
W.Smith 
J.  Jones, 
W.  Smith 
J.  Jones, 
W.  Smith 
do. 


>fl 

n 

<s 

7.5 

.17 

fiO 

120 

87 

18 

Dr. 
1876. 


R.  Evans. 
X876. 


Cr. 


Feh. 

5  To  cash, 

800 

•< 

Jan. 

4 

Bj  mdM. 

ISOO 

Mar. 

2    •'    do. 

100 

'• 

*' 

28 

"      do. 

SM 

Apr. 

27    "    do. 

400 

June 

18    "    do. 

200 

Dr. 

1876. 


John  Jones. 
1876. 


Cr. 


Jan.     7  To  mdse. 

••     15    "    do. 
Apr.     8    "    do. 


22  SOIiFeb.  >12  B7  cash 
87  oOiMay  14    "    do. 


Dr. 

1876. 


William  Smith. 
X876. 


Cr. 


Jan. 
Mar. 
April 
June 

10 
20 
IS 
8 

75 
«0 
S7 
18 

50 
75 

Feb. 
Jun* 

Ml 
SO 

"m 

25 

1 

1 

Dr. 

1876. 


Cash. 
1876. 


Cr. 


Feb.  1 12 1  To  J.  Jones. 
'•  W  Smith 
'*  J.  Joneti, 
"  W.  SmiU 


Feb. 

4 

BtR 

Evans 

400 

Mar. 

2 

•  < 

do. 

100 

Apr. 

27 

«• 

do. 

400 

June 

18 

*' 

d^ 

IM 

ti 


ACCOUNTS. 


Jonrnal  Entries— Double  Entry. 

Central  Forms. 

Tht  yournal.  The  journal  is  an  intermediate  book 
between  the  day  book  and  ledger.  Its  use  is  to  deter- 
mine the  proper  accounts  in  the  ledger  to  be  debited  and 
credited  from  each  day  book  transaction,  and  to  arrange 
the  debits  and  credits  in  a  convenient  and  easy  forin  for 
posting  We  could  dispense  with  the  use  of  this  book 
with  much  less  inconvenience  than  that  of  the  day  book, 
but  as  it  serves  an  excellent  purpose  in  systematically 
arranging  the  day  book  matter  for  the  ledger,  and  greatly 
facilitates  the  detection  of  an  error  in  the  posting,  its  use 
is  very  general.  In  many  cases  the  day  book  and  jour- 
nal are  combined  in  one  book  under  the  name  of  journal 
day  book.  This  form  shortens  the  work  considerably, 
and  is  well  adapted  to  many  kinds  of  business. 

There  are  four  forms  of  journal  entries,  as  shown  in 
the  following  diagrams :  I3j._         Cr. 


1. 

Onb  Dbbit  and  onb  Credit. 

Mdse., 

To  cash, 


2. 

Onb  Debit  and  two  or  more 

Credits. 
Mdse.  To  sundries,  .... 

To  cash 

"  bills  payable,  .... 


3. 

Two  OR  MORE   Debits  and 
ONE  Credit. 

Sundries  To  mdse 

Cash 

Bills  receivable, 

4. 

Two  OR  MORE   Debits   and 
two  OR  MORE  Credits. 

Sundries  To  sundries,  . 

Mdse., 

Reading  R.  R.  st'k,     .     . 

To  cash 

■'  Sam'l  B.  Smith,    .     . 


30000 
200  00 


700  00 
5,50000 


aoo 
550 


2,000 
4,  zoo 


The  following  are  the  journal  entries  for  a  iei//  of  the 
day  book  transactions  hereafter  given. 

It  will  be  seen  that  the  account  which  we  wish  to 
debit  in  the  ledger  is  named  first  and  the  amount  carried 
out  into  the  inner  of  the  two  right-hand  columns,  and 
then  upon  the  next  line  below,  a  little  to  the  right,  say 
about  three-quarters  of  an  inch,  we  write  the  name  of  the 
account  we  wish  to  credit  in  the  ledger  and  carry  the 
amount  out  into  the  outer  of  the  two  right-hand  columns. 
Philadelphia,  January  4, 1876.         Dr.        Cr. 


Mdse 

To  R.  Evans, 
7 


Jno.  Jones, 
To  mdse.. 


Wm.  Smith, 
To  mdse.. 


15 


Jno.  Jones, 
To  mdse.,  .     . 
38 


Mdse., 

To  R.  Evans,      . 
Feb-y  5- 


R.  Evans, 
To  cash. 


Cash,    .... 
To  Jno.  Jones, 


aa 

75 

37 

35° 

500 

15 


75 

37 

350 

Soo 

15 


Day  Book  Entries— Doable  (or  Slngrle) 
Entry. 

General  Forms. 
TJke  Day  Book.  In  our  remarks  upon  the  ledger  we 
Mated  that  in  some  cases  it  might  be  possible  to  do  with- 
out the  day  book,  although  we  would  in  no  case  advise 
it;  but  when  the  transactions  become  numerous,  it  is 
then  absolutely  necessary  to  have  a  book  in  which  to 
rtcord  them  as  they  occur,  so  that  time  and  care  can 
ko  taken  in  transferring  them  to  the  ledger. 


The  book  for  this  purpose  is  called  the  day  book  ;  by 
some  it  is  called  the  blotter,  and  by  others  a  waste  book. 

In  it  are  entered,  in  the  order  of  their  occurrence, 
every  transaction,  bargain,  and  agreement  which  we 
make,  and  as  it  is  the  only  book  allowed  to  be  produced 
as  evidence  in  a  suit  at  law  (that  is,  when  the  transac- 
tions are  not  divided  between  several  books),  pains  should 
be  taken  to  record  correctly  everything  pertaining  to  the 
transaction,  such  as  the  date,  articles,  price,  amount, 
and  anything  else  essential  to  the  proper  understanding 
of  the  transaction  in  the  future.  Many  bitter  conten- 
tions resulting  in  the  loss  of  money,  reputation,  and 
friends  would  be  avoided  if  all  bargains  and  agreements, 
as  well  as  purchases  and  sales,  were  recorded  in  writing 
by  each  interested  party  as  soon  as  made. 

This,  of  course,  can  be  done  in  the  day  book.  The 
aim  should  be  to  enter  each  transaction  in  as  concise  or 
terse  a  manner  as  possible,  and  yet  to  have  everything 
recorded  essential  to  a  right  reading,  without  the  aid  of 
the  memory,  in  case  you  were  in  the  future  forced  to  law 
upon  the  matter. 

No  erasure  or  scratching  out  is  allowed  in  this  book, 
as  that  would  look  suspicious  and  at  once  destroy  its 
strength  as  evidence,  but  if  it  be  discovered  that  a  trans- 
action has  been  entered  incorrectly,  the  error  should  be 
explained  in  a  separate  entry  so  soon  as  discovered. 

The  following  are  a  few  of  the  first  examples  given  in 
remarks  upon  the  ledger,  and  are  now  used  here  to  illus- 
trate the  form,  etc.,  of  this  book.  It  will  be  observed 
that  the  last  entry  diflfers  from  the  others  in  that  it  has 
several  kinds  of  articles  recorded.  When  this  is  the 
case,  the  inner  column  of  the  two  right-hand  columns  is 
used  for  the  sum  of  each  separate  item,  and  the  sum  total 
of  all  the  items  then  carried  to  the  outer  columns. 
When  there  is  but  one  item  in  the  transaction,  the 
amount  is  entered  only  in  the  outer  columns  as  in  all  the 
entries  before  the  last. 


Philadelphia,  January  4,  1876. 


Bo't  of  R.  Evans  on  ac't, 
Merchandise  per  inv.,   . 
7 


Sold  John  Jones  on  ac't, 
10  yds.  fancy  cass.,  @  ^.35 


Sold  Wm.  Smith  on  ac't, 
i2j^  yds.  blk.  brd.  cloth, 

@|6.oo 
15 


Sold  John  Jones  on  ac't, 
5  yds.  blk.  b.  overcoating, 
@  I7-50 
38 


Bo't  of  R.  Evans  on  ac't, 
Mdse.  as  per  inv.,    .     . 
February  5- 


Paid  R.  Evans  on  ac't,  cash. 


Sold  James  B.  Allan  on  ac't, 
10  yds.  fancy  cass.,@  {4.50 
5  yds.  blk.  doe.,  @  3.50 
2}4  yds.  Scotch  tweed, 

@^6.oo 


15 


1,500 


3SO 

500 


77 


Philadelphia,  June  I,  1876. 


Commenced  business  this 
day  with  the  following 
resources  and  liabilities. 
Resources. 


Store  and  lot  valued  at  . 

Cash  on  hand,       .     .     . 

Mdse., 

R.  M.  Snell's  note  dated 
May  loth  at  2  mos.  for 

E.  Cadwallader's  note  da- 
ted April  28th  at9odys. 

H.  King's  note  dated  May 
13th  at  60  days,      .     . 

Harrison  &  Fletcher  owe 

me  on  ac't,    .... 

-Liabilities.' 


My  note  favor  E.  R.  Car- 
penter &  Co.  dated  Apr. 
24th  at  4  mos.,  .     .     . 

My  note  favor  Borie  & 
dons,  dated  May  3d  at 
60  days,     .... 


30/X30 

10,000 

5,000 

3,460 

J.741 

35 

864 

♦3 

943 

81 

SX.009 

3.«X5 

50 

i^lt 

4» 

1 

ACCOUNTS. 


«s 


Liabilities. 

My  note  favor  Harrison. 

Haremeyer  &  Co.  dataa 

May  4Chatoodays,     . 

I   owe   K.  M.  fiartoU  & 

Co.  on  ac't,  .... 


Bot.  of  Borie  &  Sons, 
82  hhds.  mus.  sugar. 
1544     i6ai     X586    1643 


1601 

1563 
1605 
1575 
x6oi 
1568 


158s 
1581 
»544 
1617 
1548 
1620 


1447     »5o» 


1611 
1587 
1630 
1610 
1562 
1603 
1412 


1567 
1640 
1575 
1609 
1617 
1600 
1417 


Total  gross  weight  50- 
410 — ;  per  cent.,  tare  2521 
=147^89  lbs.        @  loJi  c 

Gave  them  on  ac't  cash 

My  note  at  60  days  for 

Bal.  30  days. 
3 


Sold  Harrison  &  Fletcher, 
12  hhds.  mus.  sugar, 
1503     1480    1491     1504 
1474    1521     1500    1524 
1482     1510    1505     1565 
Total  gross  weight  18- 
046 — 5  per  cent,  tare, 
=lbs.  @  "}< 

Rec'd  on  ac't  cash, 
Their  note  at  30  days. 
Balance  30  days. 
5 


Dis'd  at  the  Girard  B'lc 
R.  M.  Snell's  note, 
dated  May  10,  at  3  mos. 
Dis.  off  39  days. 
Proceeds  to  my  credit. 
6 


Sold  Rob't  Thompson, 
on  his  note  at  90  days, 
5  bbls.  mus.  sugar,  251. 
372,  267,  233  268,— 2 J4 
per  cent.      Tare  =  lbs. 

7 


Dis'd  for  E.  R.  Carpen- 
ter &  Co. 

My  note  their  favor, 
dated  Ap'l  34,  at  4  mos. 
Dis'd  off  82  days,  @ 

g  per  cent 

Proceeds  paid  in  cash. 
8 


Rec'd  from  Harrison  & 
Fletcher  on  ac't. 
Their  note  at  30  days, 
9 


Dis'd  for  Borie  &  Sons, 

My  note    their    favor, 
dated  May  3,  @  60  ds. 

Dis'd  off       days. 

Proceeds  paid  in  cash. 

10 

Gave  R.  M.  Bartoll  &  Co. 

on  ac't,  my  note  at  a 

mos.  for   . 

Cash,  .    . 
la 


Sold  E.  Cadwallader, 
a  hhds.  mus.  sugar, 
1824,  1639, — 2  per  cent. 
=     lbs.       .      .     @  I2j^ 
Rec'd  on  ac't  cash, 
X3 


Sold  R.  M.  Manning, 
4    hhds.    sugar,    1694, 
1710,  1743, 1723,-4  per 
cent.  =  los.    .     @  ixYi 
Rec'd  on  ac't  cash,    . 
His  note  at  60  days. 
Balance  10  days. 

15  

PaidR.  M.i3artoU&Co 
to  balance  ac't,      .     . 


743 
•,ia6 


1,500 
».750 


500 
835 


7,397  »3 


1,360 
500 


•75 


300 
371 


»9.: 


Rec'd  from  Harrison  & 

Fletcher  to  balance  ac't 

I 93 

Paid  for  advertising,     . 
"     sundry  petty  exp. 

Paid  J.  Dunn's  bill  for 
counters,  shelv'g,  desk, 
chairs,  etc 
30 


Paid  sundry  petty  exp 

Invetitory. 

Store  and  lot,  .  $30,000 
Mdse.  on  hand,  8,700 
Store  fixtures,  .  370 


*i«H7 
t6 


«75 
*3 


3,460 


3."5 


500 


366 


Ledg'rl 
folio. 


Journal  Entries. 


Philad'a,  June  ist,  1876. 


Sundries  To  Stock,   . 
Store  and  lot,  .    .    . 

Cash, 

Mdse. 

Bills  Receivable,  .     . 
Harrison  &  Fletcher, 


Stock  To  Sundries,  .  . 
Bills  Payable,  .  .  . 
R.  M.  BartoU  &  Co., 


Mdse.  To  Sundries, 
Cash,   .... 
Bills  Payable,    . 
Borie  &  Sons,    . 
3. 


Sundries  To  Mdse., .    . 

Cash, 

Bills  Receivable,  .     .     . 
Harrison  &  Fletcher,     . 

Sundries  To  Bills  Rec, 
Cash, 


Interest  and  Discount, 
6 


Bills  Receivable, 
7 


Bills  Payable  To  Sundries 

Cash, 

Interest  and  Discount, 
8 


Bills  Receivable  To  Har- 
rison &  Fletcher, 
9 


Bills  Payable  To  Sundries 

Cash, 

Interest  and  Discount, 


R.  M.  Bartoll  &  Co.  To 
Sundries,     .     .     . 

Cash, 

Bills  Payable,    .    . 


Sundries  To  Mdse.,  . 

Cash, 

E.  Cadwallader,   .    . 

Sundries  To  Mdse.,  . 
Cash, 


Bills  Receivable, 
R.  M.  Manning, 
15 


R.  M.  Bartoll  &  Co.  To 
Cash, 

Harrison 


Cash     To 

Fletcher,  .     .     . 

Sundries  To  Cash, 
Advertising,  .  . 
Expense, 


36 


Store  fixtures  To  Cash, 
39. 


Expense  To  Cash, 


Dr. 

Cr. 

5i,«»J 

58 

30,000 

00 

10,000 

00 

5,000 

00 

5,065 

77 

943 

81 

7,397 

«3 

5.»7i 

OS 

3,136 

x8 

5,148 

07 

1,500 

00 

1,750 

00 

1,898 

07 

1,938 

70 

SCO 

00 

82s 

603 

70 

3,460 

00 

2,301 

76 

158 

24 

»44 

79 

144 

79 

3,aiS 

50 

3,149 

58 

65 

93 

500 

00 

500 

00 

1,312 

40 

1,363 

09 

5° 

3» 

1,760 

00 

500 

00 

1,360 

00 

413 

3» 

375 

00 

138 

33 

669 

04 

300 

IS 

371 

00 

97 

«9 

366 

18 

^ 

x8 

1,047 

51 

1,047 

5X 

36 

IS 

»i 

00 

3 

»5 

375 

00 

«75 

00 

13 

75 

13 

75 

77.687 

sa 

77.687 

sa 

t4 


ACCOUNTS. 


Iicdrer  Entries. 


Dr. 
X876. 


Stock. 
1876. 


Junti  ]  Ta  Snnd'i 

-      90 


62,ew 


Jal7 


BfBia. 


Dr. 
»87«. 


Cash. 


Dr. 
1876. 


Merchandise. 
1876. 


Dr. 

1876. 


Bills  Payable. 
1876. 


Dr. 

X876. 


Interest  and  Discount. 
X876. 


Cr. 


&1,009 
l.fJO 

52,830 

45,223 


Cr. 


■•an* 

1 

To  Stock, 

10,000 

00 

Jun* 

1 

B7  MdM., 

1.500  00 

•« 

S 

"  MdM., 

600 

00 

7 

"BUpay. 

3,149 

58 

*i 

IV 

••  BUno. 

1,901 

78 

9 

1,262 

U» 

1* 

11 

"  MdM., 

«5 

00 

10 

"B.M.B. 

500 

UO 

•• 

IS 

i«     »i 

100 

15 

15 

i«    .1    i« 

386  IS 

w 

•'H.*r. 

1,047 

H 

13 
•X 
30 

"  Sond'i, 
"  St'reBx. 
"  Exp'M, 

28  15 
175100 
13175 

y 

SO 

7,231 1 67 

1 

/ 

U,SM 

42 

14,324 1 42 

July 

ToBU. 

7,331 

Cr. 


Jan* 

1 
1 
90 

I 

To  Stock, 
"  Sand'* 

To  B*l. 

6,000 
6,148 
1,707 

00 
07 
78 

85 
00 

Jane 

S 
8 
12 
13 
SO 

B7  Sand'* 
"B'Uireo. 
"  Sand'*, 
"  Sand'a, 

"Arf./nt». 

1,928 
144 
413 
669 

8,700 

70 
79 
32 
04 
00 

11,855 

11,855 

85 

JnlT 

8,700 

Dr. 
z87« 

Bills  Receivable. 
1876. 

Cr. 

Jose 

1 
1 
8 
8 
13 

1 

To  Stock, 
"MdM., 

"  H.  k  F. 

"MdM., 

ToBaL 

5,065 
825 
144 
500 
S7I 

slioe 

4,446 

77 
00 
79 
00 
00 

56 

56 

June 

5 
SO 

Br  Sund'i, 
"  J»oJ. 

2,460 
4,446 

Moe 

00 
56 

56 

Joly 

Cr. 


>ine 

7 
9 
90 

To  Sund'i, 

3,215 
1,312 
.>,753 

8,281 

50 
40 
15 

05 

Juae 

1 
2 
10 

Bv  Stock, 
■■   Mdse., 
"  K.M.B. 

5,271 
1,750 
1,260 

8,-281 

05 
00 
00 

July 

1 

By  BcHanee 

3,753 

la 

Cr. 


6  To  Bills  rec. 


June  I  7  Br  Bills  par. 
9;  ..      ,<        .. 

SOJ  "Pnf.tL. 


Dr. 

1876. 

Expense. 
1876. 

Cr. 

Jana|23iToCMli, 
..    |„|..      .. 

1  SI  1511  Jane  30 

BgProf.tLou\ 

|I6:90 

Dr. 
1876. 

Advertising. 
1876. 

Cr. 

Jua«|2S|TeCa*b| 

1 23 1 001 1  June  j  30 1  £y />ro/«  «  X,o«*  1 

123  00 

Dr. 

X876 

Harrison 

Sk  Fletcher. 
1876. 

Cr. 

June 

1 

9 

To  Stook, 
"  Mdso., 

943  81 
603  70 

1,547  51 

June 

8 
19 

BrBUUrec. 
"  Casli, 

600 
1,047 

1,547 

00 

51 

51 

Dr. 

1876. 


R.  M.  Bartoll  &  Co. 
X876. 


Cr. 


10  To  Sund  s, 
Cask, 


Dr. 

X876. 


Borie  A  Sons. 
1876. 


Juo*|90|r»«al.      1     j  1,898 |07||Jua*|  llBjMdM., 
1     1                    1     1          l~lljalr  1  ll*»«iil. 

|i.89e.ffr 

Dr.                         B.  Cadwallader. 
X876.                                       X876. 

Cr. 

Janeil-iiToMdM., 
Jair'  l>To  Balanc; 

138  32.  Jane|90|.Sy  Aotones, 

138  Sill          1     ' 

llSSISt 

Dr.                           R.  Manning. 
X876.                                      X876. 

Cr. 

Jane 
July 

IS  1  To  MdM.,         1 
VTo  Balanc;   ' 

197189  Jane  30  Bg  Balane; 

'»7'80  1 

97,89 

Dr. 

1876. 


Store  and  Lot. 
X876. 


Cr. 


Janei  11  To  Stook, 
Julyl  VTo  Bal. 


130,000 
'90,000 


00  Jane 

ooil 


Bf  Bal. 


■90,OOoio9 


Dr. 
1876 

. 

Store  Fixtures. 
1876. 

Cr. 

Jane 

Juir 

•X 

1 

To  Cash, 
ToBtU. 

275 

275 
270 

00 

00 
00 

Jaoe 

30 
30 

To  Bal.  Inv. 
"  Profit,  t  L. 

270 
5 

275 

00 
00 

00 

Dr. 

1876. 


Profit  and  Loss. 
1876. 


Cr. 


To  Int.ftDis. 
"  Expense, 
"  Adver.. 
"  Store  Fix. 
•'SOtjrttO. 


42 

01 

Jane 

30 

16 

90 

23 

00 

5 

00 

l,6!i0 

87 

1,707 

7H 

By  MdM., 


1,707  T8 


Trial  Balance. 


Cash, 
Mdse., 
Bills  rec., 
E.  Csdwal'r 
R.  Manning 
Store  &  Lot 
Store  Flxt. 


7,231 

8,700 

4,446 

138 


50,884 


Stock, 
Bills  pay. 
Borie*  S's 


45,233 1 w? 
3,753 1 15 
1,898  07 


Accretion.    See  Real  Propxktt. 

Accnsatioii.    See  Criminal  Law  ;  Suureis. 

ACKNOWI.,EDOMENT.  See  Bills  op  Sals; 
Conveyances  :  Evidence  ;  Leases  ;  Mortgagbs  ; 
Powers  of  Attorney.  For  full  and  elaborate  series 
of  Acknowledgment  Certificates  see  Hevi  York  and 
Pennsylvania  Forms. 

All  deeds,  mortgages,  powers  of  attorney, 
and  other  instruments  for  the  conveyance  of 
incumbrance  of  any  real  property  whatever, 
must  be  acknowledged,  and  in  conformity  with 
the  provisions  of  the  statute  in  force  where  the 
property  is  situated. 

ACKBTOWIiEDGMEirr  FORMii. 

Stating:  tbe  officer's  place  of  residence. 

The  first  thing  that  the  certificate  of  acknowledgment 
should  show  is  the  place  where  it  is  taken  and  made. 
The  ofiBcer  who  certifies  to  the  acknowledgment  must 
b«  authorized  by  law,  and  can  act  only  in  the  limits 
of  the  territory  or  locality  for  which  he  is  appointed  or 
elected.  Thus :  an  officer  or  court  of  Allen  connty 
could  not  legally  take  an  acknowledgment  in  Brown 
county,  and  Allen  county  may  be  in  Alabama  and  also 
in  Wyoming. 

This  statement  should  be  such  as  b  commonly  ase4 
in  the  place  it  is  taken. 

Examples  are  as  follows  { 

State  of  — »  —  county,  M.,«r/ 

State  of—,  — -  county,  act.,  *r.« 

State  of ,  — —  county,  to  wit,  «rf 

Bute  of ,  county  of ,city  of ——»«., «rt 


ACKNOWLEDGMENT. 


«S 


State    of  ,  city   (or    department,    district, 

parish,  town,  township,  or  other  place  -where  the 
officer  takes  the  acknowledgment)  of ,  88. 

Territory  of ,  city,  etc.,  of ,  ss. 

Province  of ,  Dominion  of ,  etc. 

Port  of ,  Empire  of ,  etc. 

Cominencement  of  the  Certificate. 

After  stating  the  place  where  the  acknowledgment  is 
Uken,  the  certificate,  hke  any  other  instrument  of 
writing,  must  have  its  commencement.  Examples  of 
which  are  as  follows  : 

I  certify  that,  etc.,  or: 

I  do  hereby  certify  that  on  this day  of , 

in  the  year  ,  before  the  subscriber,  a  , 

etc.,  or  : 

On  this  day  of  personally  appeared 

before  me,  a  i^giving  your  official  title)  in  and 

for  said  county,  came  (or  personally  appeared; 
G.  R.,  etc.,  or.- 

On  this  day  of ,  before  me  (the  under- 
signed) O.  R.,  a  {give  official  title)  in  and  for  said 
county  (or  city,  etc.)  came  (or  personally  appeared) 
G.  R.,  etc.,  or.- 

1,  O.  R.,  a in  and  for  said  county  (or  city, 

etc.)  do  hereby  certify  unto  all  whom  it  may 
concern  that  G.  R.  did  this  day  appear  before 
me,  etc.,  or : 

Be  it  remembered,  that  on  this day  of , 

before  me,  O.  R.,  a  {stating  the  name  of  his  opfice) 
in  and  for  said  county,  the  grantors,  G.  N.,  T.  R., 
and  R.  S.,  etc.,  or  : 

Boston,  July  4,  1876,  then  personally  appeared 
the  above  G.  R.,  etc. 

After  commencing  the  certificate  as  above  indicated, 
it  is  necessary  to  state  what  the  party  appearing  ac- 
knowledges ;  these  forms  of  statement  vary  in  the  dif- 
ferent States,  and  are  given  in  the  following  pages,  to 
which  you  are  referred. 

Conclusion  of  the  Certificate. 

In  order  that  the  certificate  shall  be  authoritative,  the 
officer  must  by  an  appropriate  conclusion  bear  witness 
to  and  affirm  the  making  of  the  declarations  embraced 
in  the  certificate  of  acknowledgment,  and  then  sign,  and 
if  he  have  any)  affix  his  seal  to  the  same. 

The  conclusion  may  be  thus  : 

Given  under  my  hand  and  seal  of  ofRce,  or  : 

Given  under  my  hand   and  seal  this day 

of ,  or  : 

In  testimony  whereof,  I  have  hereunto  set  my 
hand  and  (official  or  notarial)  seal,  the  day  and 

year  last  above  written  {or,  the day  01 ), 

ar: 

In  testimony  >vhereof,  I  have  caused  the  seal 

of  (the court)  to  be  affixed  (at )  this  

day  of ,  or  : 

In  witness  whereof,  etc. 

Ofllcer's  Sig:nature  and  Seal. 

The  signature  of  the  officer  followed  by  his  official 
title  is  made  at  the  bottom  right  side  of  the  instrument. 

The  seal  of  an  officer  (when  a  seal  is  required  by 
law),  if  a  scrawl,  is  generally  written  at  the  end  of  his 
name  and  official  title  ;  but,  if  an  impression  seal,  it  is 
Mamped  at  the  bottom  left  side  of  the  instrument. 

[L.  S.]    M.  R.,  Mayor  of . 

J.  P.,  Justice  of  the  Peace.    [Seal.] 

[L.  S.]    N.  P.,  Notary  Public. 

[L.  S.J     P.  O.,  Presiding  Officer  of  {state  what). 

[L.  S.]    C.  C,  Clerk  of  the Court,  or  : 

[L.  S.]    J.  J.,  Judge  of  the Court. 

[L.  S.]    C.  D.,  Commissioner  of  Deeds  for  the 
State  of . 

[L.  S.]    C.  L.,  Consul  of  the  United  States  of 
America  resident  at . 

z-These  clauses  apply  to  Florida  only.  It  is  also 
necessary  that  the  certificate  of  acknowledgment  of  the 
clerk  or  prothonotary  be  authenticated  by  the  judge  or 
justice  present  at  the  making  thereof  certifying  that 
(aid  acknowladgment  was  made  in  his  presence,  and  that 


Acknowledgrmentr— CSeneral  Form. 

Embracing  the  legal  requisites  for  District  of  Colum- 
bia, all  the  States,  Territories,  and  Canada. 

All  terms,  words,  and  phrases  in  this  acknowledg- 
ment are  strictly  statutory,  are  drawn  from  a  compari- 
son of  all  the  statutes,  and  when  this  acknowledgment 
is  used  it  should  be  either  in  connection  with  the  par- 
ticular statutes  regulating  the  terms  of  the  acknowledg- 
ment to  be  taken  or  copied  at  large. 

It  is  necessarily  long,  but  exhibits  practically  and  in 
the  aggregate  the  various  methods  of  securing  a  free 
and  voluntary  acknowledgment.  There  is  no  necessity 
in  its  use;  it  being  customary  to  take  and  conform  the 
acknowledgment  according  to  the  provisions  of  the  law 
of  the  place  where  the  land  conveyed  is  situated. 

State  (or  Empire  ;  Kingdom  ;  Port ;  Territory 
of ,  as  the  case  may  be).  County  (or  City  ;  Dis- 
trict ;  Province,  etc.,  as  the  case  may  be)  of ,  ss. 

I  hereby  certify : 

That  I  (name  of  officer  taking  acknoiuledgment  in 
full)  am  (title  of  officer  in  full)  and  duly  commis- 
sioned, qualified,  sworn,  and  acting  as  such. 

That  A.  B.  and  his  wife  'W.  B.  signed  and  sealed 
the  (above,  or  annexed,  or  foregoing,  or  within)  con- 
veyance {or  instrument  of  writing). 

That  said  A.  B.  and  W.  his  wife  are  personally 
known  to  me  as  the  grantors  in  said  conveyance 
(or  instrument). 

Or,  That  said  A.  B.  and  W.  his  wife  were  each 
(or,  that  the  identity  of  each  of  said  grantors  was)  sat- 
isfactorily proved  to  me  by  and  on  the  oath  (or 

affirmation)  of  AV.  T.,  of ,  and  N.  S.,  of , 

both  good  and  credible  witnesses,  Avho  are  each 
personally  known  to  me  to  be  the  persons  whose 
names  are  subscribed  to  said  conveyance  (or  in- 
strument). 

That  said  A.  B.  and  'W.  his  wife  each  person- 
ally appeared  before  me  at ,  on  this day 

of ,  A.  D. . 

That  said  A.  B.  and  W.  his  -wife  were  then  and 
there  each  made  acquainted  with  the  contents 
and  legal  effect  of  said  conveyance  (or  instrument), 
and  the  same  explaitied  to  them,  and  each  fully 
advised  of  their  rights  in  and  concerning  the 
property  therein  conveyed,  described  and  re- 
ferred to. 

That  said  A.  B.  and  W.  his  wife  did  then  and 
there  acknowledge  that  they  executed,  signed, 
sealed,  and  delivered  said  conveyance  (or  instru- 
ment) on  the  day  the  same  bears  date,  for  the  con- 
sideration, purposes,  and  uses  therein  expressed, 
mentioned,  and  set  forth. 

(That  W.  T.,  of ,  and  N.  S.,  of ,  good 

and  credible  witnesses,  attested  such  execution, 
signing,  sealing,  delivery,  and  acknowledgment.) 

A.  B. 
W.  B. 

Subscribed  and  s'worn  (or  affirmed)  to  before  me 
this day  of ,  A.  D. . 

[  Official  seal."\  (Signature  and  official  title.) 

I  do  further  certify : 

That  said  W.  B.,  wife  of  said  A.  B.,  was  thea 
and  there  privily,  privately,  separately,  and  apart 
from,  and  in  the  absence,  and  without  the  hear- 
ing of  her  said  husband  A.  B.  (and  in  the  presence 

of  J.  J-.  J"dg^  °f  the Court,'  and  in  the  presence 

of  W.  T.  (of ),  and  N.  S.   (of ),  two  credible 

witnesses'),  and  being  by  me  (the  clerk  of  said  court") 
first  made  acquainted  with  the  contents  of  said 
conveyance  (or  instrument),  and  the  same  thing 
shown  and  fully  explained  to  her,  and  she  being 
fully  advised  of  the  nature  of  her  rights  in,  to  and 
upon  the  property  therein  described,  conveyed, 
etc.,  examined  her  touching  her  execution,  sign- 
ing, sealing,  and  delivery  of  said  conveyance  i,«r 
instrument). 

That  said  W.  B.  then  and  there  and  thereupon 
acknowledged  and  declared  that  she  made  her- 
self a  party  to  said  conveyance  (or  instrument),  ex- 
ecuted, signed,  sealed,  and  delivered  the  same 
(and  the  relinquishment  and  renunciation  of  dower 
therein  ••  to  the  lands,  tenements,  and  hereditaments 
therein  described  >)  of  her  own  free  ^vill  and  accord, 

the  person  acting  as  clerk  or  prothonotary  was,  at  the 
time  of  his  so  doing  the  clerk  or  prothonotary  of  the 
court  of  which  he  was  judge  or  justice.  a-This  elauce 
applies  to  Arkansas  and  Florida  only. 


16 


ACKNOWLEDGMENT. 


freely,  understandinKly,  willingly,  voluntarily, 
and  as  her  own  act  and  deed,  and  without  the 
coercion,  compulsion,  constraint,  restraint,  ap- 
prshension,  fear,  threats,  illicit  or  undue  influence 
by,  of,  or  from  her  said  husband  or  any  other  per- 
son, or  fear  of  her  said  husband's  or  any  other  per- 
son's displeasure,  and  that  she  was  and  is  still 
satisfied  therewith,  and  wished  not,  and  does 
not  wish  to  retract  it,  and  consents  that  the  same 
may  be  recorded.        {Signature  o/wife.)    W.  B. 

Subscribed  and  sworn  to  before  me  this  

day  of ,  A.  D. . 

[  0£icial  seal.\  (Si^ytaiure  and  official  title.) 

'      Acknowledgment— Administrator. 

The  only  difference  between  this  acknowledgment 
and  those  between  parties  representing  themselves  per- 
sonally is  this  :  an  individual  sets  out  only  his  name 
and  acknowledges  the  conveyance  as  such.  The  ad- 
^linist^ator  sets  out  both  his  "  name  and  official  title  in 
full,"  and  acknowledges  the  conveyance  "as  such 
officer." 

Write  out  the  acknowledgment  as  usual  to  the  grant- 
or's name,  then  write  the  grantor's  (administrator's) 
name,  etc.,  thus,  "A.  R.,"  Administrator  of  the 
estate  and  effects  of  D.  D.,  deceased  ;  continue  the 
acknowledgment  as  usual,  and  ending  "  as  such  Ad- 
ministrator." 

Acknowledgrment— Assl{irnee. 
See  Acknoiuledgment — Administrator ,  above. 

Write  out  the  acknowledgment  as  usual,  and  for 
grantor's  (assignee's)  name,  etc.,  "A.  E.,"  Assignee 
of  the  estate  and  effects  of  A.  R.  &  Co.,  bank- 
rupts (or  insolvents),  continuing  the  acknowledgment 
as  u.<iual,  and  ending  "  as  such  assignee." 
Acknowled&rment— Asent  or  Attorney. 

The  acknowledgment  is  in  the  usual  form  to  grantor's 
name,  which  is  as  follows  :  A.  B.  "  by  A.  A.,  his  at- 
torney in  fact."  Continue  the  acknowledgment  as 
usual,  adding  to  it,  when  complete,  the  following  mat- 
ter: (by  virtue  of  a  power  of  attorney,  duly  ex- 
ecuted by  said  grantor,  bearing  date  the day 

of ,  187-,  and   recorded   in  the  office  of  the 

of  county,  in  the  State  of ,  in  vol- 
ume   ,  page ,  of ,)  for  and  as  the  act  of 

taid  A.  B. 

Acknowledgment — Corporation. 

The  acknowledgment  in  such  cases  is,  in  the  absence 
of  provisions  to  the  contrary,  the  same  as  usual,  adding 
the  name  and  description  of  the  officers  authorized  to 
acknowledge  for  the  corporation,  thus,  "  The  A.  B. 
Railway  Co.,  by  P.  P.,  its  President"  (and  S.  Y., 
its  Secretary),  etc.,  continuing  as  usual  and  ending  with 
(a  recital  of  authority  and)  "  as  such  president  (and 
secretary),  etc.,  for  and  as  the  act  of  said  com- 
pany "  {or  corporation). 

The  seal  of  the  corporation  is  also  a  requisite  to  the 
acknowledgment. 

AcknowIed8rnient-;-i:xecator. 

See  Acknowledgment — Administrator ,  above. 
The  acknowledgment  is  as  usual,  except  grantor's 
Bame  and  title  should  be  thus,  E.  X.,  "  Executor  of 
the  last  will  and  testament  of  D.  D.,  deceased," 
continuing  the  form  as  usual,  and  ending  "  as  such  ex- 
ecutor." 

Acknowledgement— Onardlan. 
See  Acknowledgment — Administrator,  above. 
The  acknowledgment  is  as  usual,  except  grantor's 
name  should  be  thus,  G.  N.,  "  Guardian  of  the  per- 
son (and  estate)  of  M.  I.,  N.  O.,  and  R.  R.,  minor 
heirs  of  D.  D.,  deceased,"  continuing  the  form  as 
usual,  and  ending  "  as  such  guardian." 

Acknowledgrment— Infant  or  Minor. 

The  acknowledgment  is  in  the  usual  form  to  grantor's 
name,  "I.  I.,"  inserting  the  proper  words  of  connec- 
tion, "that  said  instrument  was  formerly  ex- 
ecuted by  him  when  an  infant  under  the  age  of 
twenty-one  years ;  that  he  since  arrived  at  full 
age  ;  that  he  is  desirous  of  confirming  his  former 
execution  thereof,"  ending  as  usual. 

Acknowledgment— Receiver. 

The  acknowledgment  is  in  the  usual  form,  grantor's 
name  as  follows,  R.  R.,  "  Receiver  in  the  matter  of 
A.  B.  vs.  C.  D.,  pending  in  the  Court,"  con- 
tinuing as  usual,  and  ending  with  a  recital  of  authority 
and  "  as  such  receiver." 


Acknowledgrment— SherlflT. 

The  acknowledgment  is  in  the  usual  form,  grantor's 

name  as  follows,  S.  F.,  "Sheriff  of  County," 

continuing  as  usual,  reciting  the  substance  of  judgment, 
execution,  order  of  sale,  and  confirmation,  and  ending 
"  as  such  sheriff." 

Acknowled  lament — Translation. 

The  acknowledgment  is  in  the  usual  form,  the  instru- 
ment being  acknowledged  as  "  the  conveyance  {or 
instrument)  of  wrhich  the  foregoing  is  a  correct 
translation  "  {or  purports  to  be  a  correct  translation). 

AliABAIWA. 

Acknowledgments  and  proofs  of  conveyances  may  be 
taken  in  this  State  by  judges  of  the  supreme  and  cir- 
cuit courts  and  their  clerks,  chancellors,  and  registers 
in  chancery,  judges  of  the  courts  of  probate,  justices  of 
the  peace,  and  notaries  public.  If  taken  in  other 
States  of  the  United  States,  they  may  be  taken  by 
judges  and  clerks  of  any  federal  court,  judges  of  any 
court  of  record  in  any  State,  notaries  public,  or  com- 
missioners appointed  by  the  governor  of  Alabama. 
Beyond  the  limits  of  the  United  States,  such  ac- 
knowledgments and  proofs  may  be  taken  by  the  judge 
of  any  court  of  record,  mayor,  or  chief  magistrate  of 
any  city,  town,  borough,  or  county,  notaries  public,  or 
by  any  diplomatic,  consular,  or  commercial  agent  of  the 
United  States. >> 

No  other  proof  or  authentication  of  such  acknowlcdg- 
mecit  is  necessary  than  the  certificate  of  such  officer. 

Powers  of  attorney  to  convey  property  may  be  proven 
or  acknowledged  in  the  same  manner,  and  must  be  re- 
ceived as  evidence  to  the  same  extent  as  conveyances. 

If  the  grantor  is  unknown,  his  identity  may  be  estab- 
lished by  witnesses  sufficient  to  satisfy  the  officer  before 
whom  the  acknowledgment  is  made. 

The  execution  of  deeds,  etc.,  by  corporation  depends 
altogether  on  the  act  of  incorporation. 

Deeds  may  be  proved  as  well  as  acknowledged. 
Acknowledgement— Husband  and  Wife.* 

The  State  of , county, 

I  (name  and  titlt  0/  officer)  hereby  certify  that 
A.  B.  and  ^V.  B.  his  wife,  whose  names  are 
signed  to  the  foregr  tng  conveyance  and  \vho  are 
known  to  me,  acknowledged  before  me  on  this 
day,  that  being  informed  of  the  contents  of  the 
conveyance,  they  executed  the  same  voluntarily, 
on  the  day  the  same  bears  date. 

Given   under  my  hand  this  day  of , 

A.  D. .  {Signature  and  title  0/ officer.) 

Proof  by  Snbscrlblngr  Witness.' 

The  State  of , county, 

I  (name  and  title  0/  officer)  hereby  certify  that 
W.  S.,  a  subscribing  witness  to  the  foregoing 
conveyance,  known  to  me,  appeared  before  me 
this  day,  and  being  s^x'orn,  stated  that  A.  B.,  the 
grantor,  voluntarily  executed  the  same  in  his 
presence,  and  in  the  presence  of  the  other 
subscribing  witness,  on  the  day  the  same 
bears  date  ;  that  he  attested  the  same  in  the 
presence  of  the  grantor  and  of  the  other  wit- 
ness, and  that  such  other  witness  subscribed 
his  name   as  a  ^vitness  in  his  presence. 

Given    under    my    hand  this day    of  

A.  D. .  {Signature  and  title  0/ officer.) 

Acknowledgrment  —Separate  Examina* 
tion  of  Wife. 

The  examination  of  the  wife  separate  and  apart  from 
her  husband  is  necessary  to  convey  the  title  to  any 
homestead  exempted  by  the  laws  of  this  Slate.  This 
examination  may  be  had  before  any  officer  authorized 
by  law  to  take  acknowledgments  of  deeds,  who  must  in. 
dorse  thereon  a  certificate  in  writing  in  the  following 
form  :• 

State  of  Alabama.  County  of . 

I  (name  and  title  0/  officer)  do  hereby  certify 

that  on  the day  of ,  18—,  came  before  ma 

the  Nvithin  named  'W.  B.,  kno^vn  to  me  {or  tnadt 
known  to  me)  to  be  the  >vife  of  the  within  named 
A.  B.  Avho  being  examined  separate  and  apart 

b-Code  of  1886,  g  1799-1900.    c-Code  of  1886,  \  1803 
d-Code  of  1886. 1  1803.    e-Code  of  1886,  \  3508. 


ACKNOWLEDGMENT 


t7 


from  the  husband,  touching  her  signature  to  the 

within acknowledged  that  she  signed 

the  same  of  her  own  free  will  and  accord  and 
without  fear,  constraints  or  threats  of  the  hus- 
band. 
In  testimony  ^vhereof  I  have  set  my  hand  this 

day  of . 

(Signatur<  and  title  of  officer.) 

ARKANSAS. 

Conveyances,  ^vhen  acknowledged  or  proved  in 
this  State.  Proof  or  acknowledgment  may  be  taken  be- 
fore the  supreme  or  circuit  court,  or  either  judge  or  clerk 
thereof,  or  before  the  county  court  or  presiding  judge 
thereof,  or  any  justice  of  the  peace  or  notary  public. 
Anywhere  else  in  the  United  States,  before  any 
court  of  the  United  States,  or  any  State  or  Territory 
having  a  seal,  or  the  clerk  thereof,  mayor  or  chief  offi- 
cer of  any  city  or  town  having  a  seal  of  office.  Out  of 
ihe  United  States,  before  any  court  of  any  state, 
kingdom  or  empire  having  a  seal,  or  any  mayor  or 
chief  officer  of  any  city  or  town  having  an  official  seal, 
or  before  any  officer  of  any  foreign  country  who,  by  its 
laws,  is  authorized  to  take  probate  of  the  conveyance 
of  real  estate  of  his  own  country,  if  he  have  an  official 
seal.  The  officer  must  certify  that  the  grantor  is  known 
to  him  personally,  when  such  is  the  case,  otherwise  he 
must  take  proof  of  his  identity  by  affidavit  or  affidavits 
to  accompany  the  certificate  of  acknowledgment.  Proof 
is  made  by  one  or  more  subscribing  witnesses  swearing 
that  they  saw  the  grantor  subscribe  the  deed,  or  heard 
him  acknowledge  that  he  had  subscribed  and  executed 
the  deed  for  the  purposes  and  consideration  therein 
mentioned,  and  that  he  or  they  had  subscribed  the  same 
as  witnesses  at  the  request  of  the  grantor.  If  the  wit- 
nesses are  dead,  or  cannot  be  had,  the  handwriting  of 
the  grantor  and  at  least  one  of  the  witnesses  may  be 
proved  by  depositions  of  two  disinterested  witnesses.* 

When  husband  and  wife  convey  lands  of  the  hus- 
band, the  certificate  of  acknowledgment  must  show 
that  the  wife  acknowledged  her  relinquishment  of 
dower ;  but  not  when  the  lands  conveyed  belongs  to  the 
wife.  Neither  deeds  nor  mortgages  are  required  to  be 
recorded  within  any  specified  time,  but  mortgages  are 
not  liens  until  recorded. 
Acknowled^fnient  by  Hnsband  and 
Wife,  L.ands  of  Husband. 

State  of ,  county  of ,  ss. 

Be  it  remembered,  that  on  this  day  came  before 
the  undersigned  (name  and  title  of  officer),  ■w'x'Ca.xn 
and  for  the  county  aforesaid,  duly  commissioned 
and  acting,  A.  B.,  to  me  well  known  as  the 
grantor  in  the  foregoing  deed,  and  stated  that  he 
nad  executed  the  same  for  the  consideration  and 
purposes  therein  mentioned  and  set  forth. 

And  on  the  same  day  also  voluntarily  appeared 
before  me,  W.  B.,  wife  of  the  said  A.  B.,  to  me 
wrell  known,  and  in  the  absence  of  her  said  bus- 
band,  declared  that  she  had  of  her  ov^rn  free  will 
signed  and  sealed  the  relinquishment  of  dower 
in  the  foregoing  deed,  for  the  purposes  therein 
contained  and  set  forth,  v^^ithout  compulsion  or 
undue  influence  of  her  said  husband. 

Witness   my  hand   and  seal,  as  such  {title  of 

^cer)  on  this day  of . 

{Signature  and  title  of  officer.) 

Acknowledgment   by   Husband   and 
Wife,  Lands  of  Wife." 

State  of ,  county  of ,  ss. 

On  this  day  came  before  me,  a  duly  commis- 
■ioned,  qualified,  and  acting  (here  insert  name  and 
title  of  officer),  within  and  for  the  county  aforesaid, 
A.  B.  and  AV.  B.  his  wife,  to  me  well  known  as 
the  grantors  in  the  foregoing  deed  ;  and  the  said 
A.  B.  stated  that  he  had  executed  the  same  for 
the  consideration  and  purposes  therein  men- 
tioned and  set  forth  ;  and  the  said  W.  B.,  in  the 
absence  of  her  said  husband,  voluntarily  declared 
that  she  had  of  her  o^vn  free  will  executed  the 
same  for  the  purposes  therein  contained  and  set 
forth,  without  compulsion  or  undue  influence  of 
her  said  husband. 

■Witness  my  hand  as  such  {title  of  officer"),  on 

this day  of . 

{Signature  and  title  of  officer.) 

gp-Gould's  Dig.  ch.  «7,§  i.    li-Gould's  Dig.  ch.  37. 


CAI^IFORiriA. 

The  proof  or  acknowledgment  of  an  instrument  may 
be  made  within  the  State  before  a  justice  or  clerk  of 
the  supreme  court,  a  judge  or  clerk  of  a  court  of  record, 
a  court  commissioner,  county  recorder,  notary  public, 
or  a  justice  of  the  peace.' 

If  proved  or  acknowledged  out  of  this  State,  but 
in  the  United  States,  it  may  be  before  a  justice, 
judge,  or  clerk  of  a  court  of  record  of  the  United  States, 
any  justice,  judge  or  clerk  of  any  court  of  record,  a  no- 
tary public,  or  by  a  commissioner  appointed  by  the 
governor  of  this  State  for  that  purpose ;  also  by  any 
other  officer  of  the  State  or  Territory  where  the  acknowl- 
edgment is  made,  authorized  by  its  laws  to  take  such 
proof  or  acknowledgment.) 

If  taken  or  made  out  of  the  United  States,  before 
a  minister,  commissioner,  or  chargi  d'affiaires  of  tho 
United  States  resident  and  accredited  in  the  country 
where  the  proof  or  acknowledgment  is  made,  or  actmsul, 
vice-consul,  or  consular  agent  of  the  United  States  resi- 
dent in  the  country  where  the  proof  or  acknowledgment 
is  made,  or  a  judge  of  a  court  of  record  of  the  country 
where  the  proof  or  acknowledgment  is  made,  or  com- 
missioner of  deeds  for  this  State  or  a  notary  public' 
Acknowledgrment — General  Form. 

State  of ,  county  of ,  ss. 

On  this day  of ,  in  the  year ,  before 

me  (name  and  title  of  officer),  personally  appeared 
A.  B.,  known  to  me  lor  proved  to  me  on  the  oath  of 
W.  S.'i  to  be  the  person  whose  name  is  subscribed 
to  the  within  instrument,  and  acknowledged  to 
me  that  he  (she  or  they)  executed  the  same.^^ 

\^Seal.  ]  {Signature  and  official  title.) 

If  the  deed  be  executed  by  a  corporation,  after  the 
words  "  known  to  me."  etc.,  insert  "  to  be  the  president 
(or  secretary)  of  the  corporation  that  executed  the  within 
instrument,  and  acknowledged  to  me  that  such  cor- 
poration executed  the  same."' 

Acknowledgment— Of  married  Woman. 

A  conveyance  by  a  married  woman  in  the  State  of 
California  has  the  same  effect  at  law  as  if  she  were  un- 
married. There  need  not,  therefore,  be  a  separate  form 
of  acknowledgment  for  a  married  woman,  but  the  same 
form  can  be  used  as  if  she  were  unmarried.  The  above 
general  form  will  answer  every  purpose  of  a  valid  ac- 
knowledgment by  married  women. 

An  acknowledgment  by  an  attorney  in  fact  is  the 
same  as  the  general  form,  excepting  after  the'jford  "  in- 
strument" insert  "as  the  attorney  in  fact  of ,  and 

acknowledged  that  he  subscribed  the  name  of thereto 

as  principal,  and  his  own  name  as  attorney  in  fact."" 

Acknowledgments  must  be  authenticated  by  the  signa- 
ture of  the  certifying  officer,  followed  by  the  name  or 
title  of  office,  and  the  official  seal  affixed,  if  the  officer 
has  by  law  an  official  seal.  The  seal  may  be  made  by 
an  impression  on  the  paper,  or  on  wax  or  other  sub- 
stance attached. 

Proof  by  Subscribing:  Witness. 

Deeds  can  be  proved  "  by  the  party  executing  it  01 
either  of  them ;  or  by  a  subscribing  witness,"  or  by 
other  witnesses  as  to  the  handwriting  where  all  the 
parties  and  witnesses  are  dead,  non-residents  of  th« 
State,  or  residence  unknown,  etc. 

No  particular  form  is  specified  or  required.  It  must 
show  that  the  witness  making  the  proof  was  sworn,  and 
deposed  that  the  person  whose  name  is  subyribed  to 
the  instrument  as  a  party  is  the  person  described  in  it, 
and  that  such  person  executed  it,  and  that  the  witness 
subscribed  his  name  thereto  as  a  witness.* 

If  grantor  be  unknown,  the  officer  may  take  the  ac- 
knowledgment after  examining  a  known  witness  under 
oath ;  he  roust  set  out  the  fact  that  the  grantor  "  was 
proved  by  the  oath  of  VV.  S.,  a  credible  witness,  person- 
ally known  to  me  to  be  the  person  named  in  and  who 
executed  the  within  instrument."  With  this  modifica- 
tion use  the  same  form  as  for  an  ordinary  acknowledg- 
ment, together  with  a  certificate  of  the  chief  judge  or 

1-C.  C.  §  1181.  J-C.  C.  i  1182.  k-C.  C.  g  1183.  1- 
C.  C.  I  1189.    o-C.  C.  1 119a.    P-C.  C.  1 1198. 


t8 


ACKNOWLEDGMENT. 


presiding  magistrate  that  the  person  making  the  attesu- 
tion  is  the  cleric  of  the  court  or  the  legal  keeper  of  the 
record,  and  in  either  case  that  the  signature  of  such 
^rson  is  genuine,  aad  that  the  attestation  is  in  due 
form. 

The  signature  of  the  chief  judge  or  presiding  magis- 
trate must  be  authenticated  by  the  minister  or  ambassa- 
dor, or  a  consul,  vice-consul,  or  consular  agent  of  the 
United  States  in  such  foreign  country.' 

CANADA. 

Province  of  Ontario. 

In  conveying  the  estate  of  a  married  woman  no  ac- 
knowledgment t/r  separate  examination  of  the  wife  is 
required. 

Proof  of  deeds,  mortgages,  etc.,  for  registration,  is  to 
W  made  by  affidavit  on  the  instrument,  or  securely 
attached  to  it,  as  follows :  'Within  the  Province,  be- 
fore any  commissioner  for  taking  affidavits,  before  the 
registrar  of  deeds  or  his  deputy,  or  before  a  judge  of 
any  of  the  superior  courts  or  a  county  court.  In  Great 
Britain,  before  a  judge  of  the  superior  courts,  or  of  a 
county  court,  or  the  mayor  or  chief  magistrate  of  any 
tity,  borough,  or  town  corporate,  certified  under  the 
common  seal  of  such  city,  etc.,  or  a  commissioner  ap- 
pointed for  taking  affidavits  in  any  of  the  courts  of 
record  of  the  Province.  In  any  British  colony  or 
possession,  except  India,  before  a  iudge  of  a  court 
of  record,  or  the  mayor  of  any  city,  borough,  or  town 
corporate,  certified  under  the  common  seal ;  or  before 
any  notary  public  certified  under  his  official  seal.  In 
India,  before  any  magistrate  or  collector  certified  to 
have  been  such  under  the  hand  of  the  governor  of  the 
possession.  In  any  foreign  country,  before  the  mayor 
of  any  city,  borough,  or  town  corporate,  certified  under 
the  common  seal;  or  before  any  British  consul  or  vice- 
consul  resident  in  such  country  ;  or  before  a  judge  of  a 
court  of  record  or  a  notary  public,  certified  under  his 
official  seal. 

Proof  by  Subscribing  Witness. 

State  of ,  county  of ,  to  wit. 

I  (here  insert  i,  name :  2,  residence:  3,  addition, 
xcupation,  or  calling,  of  the  subscribing  ivitness  in 
full),  make  oath  and  say:  i,  That  I  was  present 
and  did  see  the  ■within  (<7r  annexed)  deed  (mortgage, 
discharge  of  mortgage,  or  other  instrimient'i,  and  a  du- 
plicate thereof  {7f  the  /act)  duly  executed,  signed, 
sealed,  and  delivered,  by  A.  B.  and  C.  D.,  the 
parties  {or  two  0/ the  parties)  thereto.  2.  That  the 
said  instrument  and  duplicate  were  executed  at 
(state  place  0/ execution') .  3.  That  I  know  the  said 
parties  so  executing  the  said  instrument  (or  such 
one  or  more  0/  them,  according  to  the  fact).  4.  That 
I  am  a  subscribing  witness  to  the  said  execution 
of  the  said  instrument  and  duplicate. 

\Signed\  VV.  S. 

Sworn  to  before  me 

at 

in  the  county  of. 

and  State  of. 

on  this day 

A.  D.  1 89-. 

And  I  hereby  certify  the  same  under  my  offi- 
cial seal. 

(Signature  of  certifying  officer.) 
(  Title  of  same.)  [^Signature  of  IVttness.) 

CANADA. 

Province  of  <tnebec. 

The  execution  of  deeds  to  real  property  in  the  Prov- 
ince of  Quebec  made  by  parties  residing  in  the  United 
States  are  valid  when  duly  executed  according  to  the 
laws  or  custom  of  the  locality  where  executed. 

If  executed  in  presence  of  witnesses,  one  or  all  of  such 
witnesses  must  make  an  affidavit  of  the  authenticity  of 
the  signatures  before  the  mayor  or  chief  magistrate  of 
the  locality,  who  must  give  a  certificate  to  that  effect, 
which  certificate  should  then  be  legalized  by  the  nearest 
British  consul. 

All  such  matters  as  the  number  of  witnesses,  seals, 
etc.,  may  be  governed  by  the  laws  of  the  locality  where 
the  deed  is  executed. 

A  wife,  if  she  have  any  interest,  such  as  waiver  of 
dower,  or  other  right,  may  be  a  party  to  the  deed,  sub- 
ject to  the  laws  of  the  locality. 

If  the  authenticity  of  any  such  deed  is  questioned,  it 

r-C.  C.  p.  2  1906.    s-See  General  Sututes. 


must  be  proved  by  evidence  taken  at  the  place  of  iti 
execution  by  a  commissioner  appointed  by  the  court. 

Such  deeds,  to  take  effect,  must  be  registered  in  con- 
formity with  the  provisions  of  the  Civil  Code  on  the 
registration  of  real  rights. 

Acknowledg'nient — Taken  In  the  Ilnlted 
States  or  Territories. 

State  (or  Territory)  of ,  county  of ,  ss. 

On  the day  of ,  A.  D.  one  thousand  eight 

hundred  and .     Before  me,  J.  P.,  of  (place  of 

residence),  (a  justice  of  the  peace  fur  the  county  of , 

or  mayor  of ,  or  a  notary  public  duly  appointed  and 

sworn  for ),  personally  came  and  appeared  A.B., 

the  person  who  executed  the  foregoing  deed 
!  (power  of  attorney  or  other  instrument),  and  to  me 
!  well  known  as  such,  who  then  and  there  ackno>vl- 
!   edged  that  he  had  executed  the  same. 

j       Witness  my  hand  and  seal  at ,  on  the  day 

I   and  year  first  above  w^ritten.  J.  P.  [Seal. ) 

The  above  acknowledgment  may  be  made  before  any 
public  officer  of  the  country  in  which  the  power  is  made  ; 
out  if  the  power  be  one  authorizing  the  execution  of  a 
discharge  of  a  mortgage  or  other  deed  requiring  registra- 
tion, it  must  be  proved  by  affidavit  of  one  of  the  wit- 
nesses before  any  minister  or  charge  ct affaires,  or  con- 
sul of  her  majesty  in  such  foreign  country. 

COL,ORADO. 

Acknowledgment  of  deeds,  mortgages,  etc.,  when 
executed  in  this  State,  may  be  taken  before  any  jus- 
tice of  the  supreme  or  district  courts,  or  any  clerk  of 
either  of  said  courts,  or  the  deputy  of  any  such  clerk,  or 
before  the  probate  judge  of  any  county,  such  probate 
judge  and  .'■uch  clerks  certifying  the  same  under  the 
s'^al  of  such  court  respectively  ;  before  the  county  clerk 
of  any  county,  or  his  deputy,  he  or  his  deputy  certi- 
fying the  same  under  the  seal  of  his  county  :  before 
any  notary  public,  he  certifying  the  same  under  his 
notarial  seal ;  or  before  any  justice  of  the  peace  within 
his  county;  Provided,  that  if  the  lands  do  not  lie  in 
the  county  of  such  justice  of  the  peace,  then  there  must 
be  affixed  to  his  certificate  of  acknowledgment  the 
certificate  of  the  county  clerk  of  such  county,  under  his 
hand  and  the  seal  of  such  county,  to  the  official  capacity 
of  such  justice  of  the  peace,  and  that  the  signature  of 
such  justice  of  the  peace  to  the  certificate  of  acknowl- 
edgment is  the  true  signature  of  such  justice.  When 
executed  outside  of  this  State,  and  within  the 
United  States  or  the  Territories  thereof,  before  the 
secretary  of  any  such  State  or  Territory,  certified  by 
him  under  the  seal  of  such  State  or  Territory;  before 
the  clerk  of  any  court  of  record  of  such  State  or  Terri- 
tory, or  of  the  United  States,  within  such  State  or 
Territory,  having  a  seal,  such  clerk  certifying  the  same 
under  the  seal  of  such  court ;  before  any  other  officer 
authorized  by  the  laws  of  such  foreign  State  or  Terri- 
tory, to  take  and  certify  such  acknowledgments  ;  Pro- 
vided, there  shall  be  affixed  to  the  certificate  of  such 
officer,  a  certificate  by  the  clerk  of  some  court  of  record 
of  the  county,  city  or  district  wherein  such  officer 
resides,  under  the  seal  of  such  court,  that  the  person 
certifying  such  acknowledgment  is  the  officer  he  as- 
sumes to  be,  that  he  has  authority  by  the  laws  of  such 
State  or  Territory  to  take  and  certify  such  acknowledg- 
ment, and  that  the  signature  of  such  officer  to  the  certi- 
ficate of  acknowledgment  is  the  true  signature  of  such 
officer ;  or  before  any  commissioner  of  deeds  for  such 
foreign  State  or  Territory  appointed  under  the  laws  of 
this  State,  certified  under  the  hand  and  official  seal  o( 
such  commissioner.  When  executed  out  o'  the 
United  States,  before  any  court  of  record  havmg  a 
seal,  the  judge  or  justice  of  such  court  certifying  the 
acknowledgment  to  have  been  made  before  such  court, 
under  the  seal  of  such  court ;  before  the  mayor  or  other 
chief  officer  of  any  city  or  town  having  a  seal,  certified 
under  such  seal  by  such  mayor  or  other  officer,  or  before 
any  consul  of  the  United  States  within  such  foreign 
country,  certified  by  him  under  the  seal  of  his  consulate." 
Aclinowlecigrnient— Oeneral  Form. 

State  of ,  county  of ,  ss. 

I  {naming  officer  and  the  office),  ■within  and  for  the 
county  and  State  aforesaid,  do  hereby  certify  that 
(naming  the  person),  who  is  personally  known  to 
me  (or  if  not  so  knoivn,  and  his  or  her  identity  is 
proven  to  such  officer  by  a  uii'ness,  then  say.  "  who  was 
proven  to  nie  by  the  oath  of  W.  S.,  a  credible  witfiessl 
to  be  the  same  person  whose  name  is  subscribed 
to  the  foregoing  (or  within)  instrument  of  writing 


ACKNOWLEDGMENT. 


19 


at  a  party  thereto,  appeared  before  me  this  day 
in  person,  and  acknowledged  that  (he  or  she)  exe- 
cuted the  same  for  the  uses  and  purposes  therein 
set  forth. 

Witness  my  hand  and  the  seal  of  said  court  i,or 

if  by  notary,  say  notarial  seal)  this day  of , 

A.  D. . 

[Seal.  J  {Signature  and  title. ) 

If  taken  before  the  clerk  of  a  court  of  record,  the 
certificate  should  show  that  said  court  is  a  court  of 
record. 

€03rNE<;TI€UT. 

An  acknowledgment,  whether  within  or  with- 
out the  State,  is  sufficient,  if  made  before  a  justice  of 
the  peace,  notary  public,  judge  of  somecourt  of  ordinary 
nisi  firius  or  superior  jurisdiction,  or  any  officer  having 
power  by  law  to  take  acknowledgments  of  deeds.  Deeds 
may  also  he  acknowledged  in  the  State  by  the  commis- 
sioners of  the  school  fund,  judges  of  probate,  town 
clerks,  and  commissioners  of  the  superior  court.  All 
deeds  executed  by  grantors  residing  out  of  the  United 
States  may  be  personally  acknowledged  before  a  United 
States  consul,  notary  public,  or  justice  of  the  peace. 
A  notarial  seal  proves  itself.  A  certificate  of  the  county 
i:lerk  should  be  annexed  to  an  acknowledgment  by  a 
justice  of  the  peace.  The  magistrate  must  be  person- 
ally acquainted  with  the  grantor.' 

The  omission  of  a  notarial  seal  to  a  deed  acknowl- 
edged before  a  notary  public  does  not  invalidate  the 
deed. 

The  word  ["Seal"]  or  the  scroll  [L.  S.]  are,  either 
of  them,  equivalent  to  a  seal. 

Acknowlederment  by  Corporation — 
Oeneral  Form. 

State  of ,  county  of ,  ss. 

New  York  city, ,  A.  D.  18—.    Then  and  there 

before  me,  a  (na^ite  and  official  titled,  within  and  for 
the  county  and  State  aforesaid,  duly  commis- 
sioned and  acting  as  such,  personally  appeared 
A.  B.  and  V^ .  B.  his  wife,  signers  and  sealers  of 
the  foregoing  instrument,  and  severally  acknowl- 
edged the  same  to  be  their  free  act  and  deed  be- 
fore me.  {Or,  "  personally  appeared  A.  .\.,  agent  of 
the  C.  C.  Company,  signer  and  sealer  of  the  f -.rog-'ing 
instrument,  and  acknowledged  the  same  to  be  its  free 
act  and  deed,  before  me.") 

Witness  my  hand  and  seal  of  oiBce,  on  this 

day  of . 

rSf«/.]  (Signature  and  title.) 

Proof  by  subscribing  witne.ss  is  not  allowed. 
DAKOTA,  NORTH  AND  SOUTH. 

Acknowledgments  may  be  taken  within  these  States 
by  a  justice,  clerk  of  supreme  court  or  notary  ;  or  within 
the  jurisdiction  for  which  offii-ers  are  elected  or  ap- 
pointed, by  a  judge,  clerk  of  court  of  record,  mayor, 
register  of  deeds,  justice  of  peace,  commissioner  of 
United  States  and  district  courts,  county  auditor  or  any 

§ublic  officer  having  an  official  seal.  Outside  of  these 
tates,  but  within  the  United  States,  by  a  justice,  judge 
or  clerk  of  any  United  States,  State  or  Territorial  court 
of  record,  notary,  or  other  official  with  power  to  take 
acknowledgments.  Without  the  United  States,  by  a 
minister,  commissioner,  charge  d'affaires,  consul,  vice- 
consul,  or  consular  agent,  resident  in  the  country  where 
the  acknowledgment  is  taken.  All  the  above  officials 
must  sign  officially  and  use  their  seals ,  where  seals  are  re- 
quired." Acknowledgments  by  justices  of  the  peace,  for 
other  counties  than  their  own,  must  have  the  certificate 
of  their  court  of  record,  under  seal,  to  the  effect  that  said 
justices  are  authorized  to  so  act,  and  that  their  signatures 
are  genuine.'   The  general  form  of  acknowledgment  is  : 

State  of ,  County  of ,  ss. 

On  this day  of 189  ,  personally  appeared 

before  me known  to  me  Kor  proved  to  me  on 

Oiith  of )  to  be  the  person  who  is  described  in 

and  who  executed  the  within  instrument,  and 
acknowledged  to  me  that  he  (she,  or  they">  ex- 
ecuted the  same.         {Signature  and  title  of  officer.) 

Conveyances  by  married  women  have  the  same  legal 
effect  as  if  unmarried  and  may  be  acknowledged  in  the 
same  way.  For  proof  by  subscribing  witness  see  Nevir 
York  form. 

1>KI.A>VARE. 

Acknowledgment  may  be  taken  out  of  State  before 
any  cnn<;ul-general,  consul,  or  commercial  agent  of  the 
United  States  duly  appointed  in  any  foreign  country,  at 

t-See  General  Statutes.    u-Civil  Code,  §g  5i7»  518. 


the  places  of  their  respective  official  residences,  or  before 
any  judge  of  a  district  or  circuit  court  of  the  United 
States,  or  the  chancellor  or  any  judge  of  a  court  of  rec- 
ord, or  the  mayor  or  chief  officer  of  any  city  or  borough, 
and  certified  under  the  hand  of  such  chancellor,  judge, 
mayor  or  officer,  and  the  seal  of  his  office,  court,  city 
or  borough;  or  in  open  court,  certified  under  seal  of  the 
court :  or  before  a  commissioner  of  deeds  appointed  by 
the  governor  or  by  a  notary  public  of  any  State. 

The  certificate  of  acknowledgment  must  show  that 
the  wife  rehnquishes  her  dower,  and  the  private  exami- 
nation must  be  certified  in  the  words  stated  in  the  form 
as  given  below. 
Acknowledg-inent— IlasbRiid  and  Wife* 

State  of ,  county  of ,  ss. 

Be  it  remembered,  that  on  the day  of •, 

in  the  year  of  our  Lord  one  thousand  eight  hut>< 
dred  and  ,  personally  came  before  the  sub- 
scriber, a  {name  and  official  title),  A.  B.  and  W.  B. 
his  wife,  parties  to  this  indenture,  known  to  me 
personally  (or  proved  on  the  oath  of  W.  S.)  to  be 
such,  and  severally  acknowledged  said  indenture 
to  be  their  act  and  deed  respectively,  and  that 
the  said  W.  B.  being  at  the  same  time  privately 
examined  by  me  apart  from  her  husband,  ac- 
knowledged that  she  executed  the  said  indenture 
willingly,  without  compulsion,  or  threats,  or 
fear  of  her  husband's  displeasure. 

Given  under  my  hand  and  official  seal  the  day 
and  year  aforesaid.         (Signature  and  official  title.) 

Proof  by  subscribing  witness  is  not  allowed. 

DISTRICT  OF  COIiriKBIA. 

Instruments  for  the  conveyance  of  any  estate  or 
interest  in  lands,  tenements,  or  hereditaments,  within 
this  District,  or  for  declaring  or  limiting  any  use  or 
trust  in  or  out  of  same,  must  be  executed  and  ac- 
knowledged before  a  judge  of  a  court  of  record,  and  of 
the  State  and  county  In  which  grantor  may  be ;  or 
before  any  judge  of  supreme,  circuit,  district,  or  terri- 
torial court  of  United  States  :  or  before  any  justice  of 
the  peace  of  the  State,  District,  or  Territory,  and 
county  in  which  grantor  may  be ;  or  before  notary 
public  in  any  State  or  Territory,  or  the  District  of 
Columbia  ;  or  any  commissioner  of  the  District  Circuit 
Court.  The  certificate  must  be  by  the  register,  clerk, 
or  prothonotary  of  the  court  or  county  under  his  hand 
and  the  seal  of  his  office,  that  the  judge  or  chancellor 
is  or  was  such  at  time  of  execution  and  acknowledg- 
ment;  and  in  case  of  any  officer  out  of  District  of 
Columbia,  certificate  of  the  clerk  or  other  public  oftlcer 
having  cognizance  of  the  fact  under  his  offic!sl  seal 
that  such  person  was  at  the  date  of  his  certificate  of 
acknowledgment  in  fact  such  officer  as  he  purports  to 
be.  In  a  foreign  country  the  execution  and  ac- 
knowledgment must  be  before  any  judge  or  chancelloi 
of  any  court,  master,  or  master  extraordinary  in 
chancery,  or  notary  public  in  such  foreign  country,  and 
the  execution  and  acknowledgment,  and  also  identity 
of  grantor,  must  be  certified  upon  or  annexed  to  thil 
deed  by  such  official." 

Aelciio-wIej^iT'neMt  by  «  Notary  or  Jii»- 

S.'co— Goicva!  Form. 

County  of ,  State  of ,  ss. 

I,  O.  R.,  a  I gir.-ing  official  title'\  in  the  county 
afcrcsc.id,  in  said  State,  do  hereby  certify  that 
G.  R.,  party  to  a  certain  deed  bearing  date  on  the 

day  of ,  and  hereto  annexed,  personally 

appeared  before  me  in  my  county  aforesaid,  the 
said  G.  R.  being  personally  well  kno^vn  to  me, 
the  person  who  executed  the  said  deed,  and  ac- 
knov/ledged  the  same  to  be  his  act  and  deed. 

Given   under  my  hand  and  seal  this  daj' 

of .  O.  R.  [Seal.] 

To  bar  dower  it  is  required  that  a  wife  shall  be  ex- 
amined ap.^rt  from  her  husb.-ind,  and  having  the  deed 
fully  explained  to  her,  shall  declare  that  she  had  will- 
ingly signed,  sealed,  and  delivered  the  same,  and 
wished  not  to  retract  it;  and  the  certificate  appended 
should  state  the  facts. 

Acknowledgment — Hnsband  and  Wife. 

State  of ,  county  of ,  ss. 

I,  O.  R.,  a  {giving  official  title)  in  and  for  the 
county  aforesaid,  in   the  said   State,  do  hereby 

Laws  1872-73,  ch.  31.  v-See  Codr,  Laws,  etc.  W-Sce 
Statutes  at  Large, 


90 


ACKNOWLEDGMENT. 


certify  that  A.  B.  and  W.  B.  his  wife,  parties  to 

a  certain  deed  bearing  date  on  the  day  of 

— ,  and  hereto  annexed,  personally  appeared 
before  me  in  the  county  aforesaid  the  said  A.  B. 
and  W.  B.  his  wife,  being  personally  well  known 
to  me  to  be  the  persons  v/ho  executed  the  said 
deed,  and  the  said  A.  B.  acknowledged  the  same 
to  be  his  act  and  deed  ;  and  the  said  W.  B.,  wife 
of  the  said  A.  B.,  being  by  me  examined  privily 
and  apart  from  her  husband,  and  having  the 
deed  aforesaid  fully  explained  to  her,  acknowl- 
edged the  same  to  be  her  act  and  deed,  and 
declared  that  she  had  willingly  signed,  sealed, 
and  delivered  the  same,  and  that  she  wished  not 
to  retract  it. 

Given  under  my  hand  and  seal  this day 

of .  O.R.  [Seal.] 

Before  any  of  the  officers  in  the  United  States  or 
Territories,  indicated  as  competent  to  take  acknowl- 
edgments, other  than  those  officers  last  above  named, 
and  before  any  of  the  officers  in  a  foreign  country, 
mentioned  as  competent  to  take  acknowledgments, 
execution  of  the  deed,  as  well  as  its  acknowledgment, 
should  be  made ;  and  the  certificate  should  so  state. 
FI.OEIDA. 

All  deeds,  mortgages,  or  other  conveyances,  by 
which  any  right,  title,  interest,  or  claim  to  any  real 
estate  in  this  State  may  be  conveyed,  afiected,  defeated, 
impaired,  or  released,  all  powers  of  attorney  relating  to 
tfic  same,  and  all  instruments  under  seal,  to  be  used  or 
recorded  in  this  State,  in  order  to  entitle  the  same 
to  be  so  used  or  recorded,  in  case  the  same  shall  be 
acknowledged  out  of  th's  State,  shall  be  acknowl- 
edged by  the  party  or  parties  executing  the  same,  or 
the  execution  thereof  by  said  party  or  parties  shall  be 
proved  by  a  subscribing  witness  thereto  before  a  com- 
missioner duly  appointed  by  the  governor  of  Florida. 
In  those  cities  or  counties  where  no  commissioner  is 
appointed,  or  where  he  is  unable  to  act,  the  acknowl- 
edgment or  proof  may  be  taken  before  the  chief  justice, 
judge,  presiding  justice,  or  president  of  any  court  of 
record  of  the  United  States,  or  of  any  State  or  Terri- 
tory thereof,  having  a  seal  and  a  clerk,  or  prothonotary ; 
but  no  proof  or  acknowledgment  taken  by  any  such 
party  shall  entitle  such  deed,  power  of  attorney,  or  con- 
veyance to  be  recorded,  unless  taken  withiit  some  place 
or  district  to  which  the  jurisdiction  of  the  court  to 
which  he  belongs  shall  extend,  and  the  place  of  taking 
such  acknowledgment  be  by  him  set  forth  in  his  certifi- 
cate of  acknowledgment,  and  also  that  the  court  of 
which  he  is  such  chief  justice,  judge,  presiding  justice, 
or  president,  is  a  court  of  record ;  the  certificate  shall 
state  that  the  party  taking  the  acknowledgment  knows 
or  has  satisfactory  proof  that  the  person  making  such 
acknowledgment  is  the  individual  described  in  and  who 
executed  the  deed  or  instrument  under  seal ;  the  certifi- 
cate of  acknowledgment  of  such  chief  justice,  judge, 
presiding  Judge,  or  president,  shall  be  accompanied  by 
the  certificate  of  the  clerk,  or  prothonotary  of  the 
court  for  which  he  is  such  judge,  justice,  or  president 
as  aforesaid,  under  the  seal  of  said  court,  that  he  is 
duly  appointed  or  authorized  as  such  judge,  justice,  or 
president,  etc.  The  acknowledgment  of  £  married 
woman  (residing  out  of  this  State)  to  a  deed,  con- 
veyance, or  instrument  under  seal,  purporting  to  be 
executed  by  her,  shall  not  be  taken,  unless,  in  addition 
to  the  foregoing  requisites,  she  acknowledges,  on  a 
separate  or  private  examination  by  the  officers  taking 
her  acknowledgment,  apart  from  her  husband,  that  slie 
executed  such  deed,  conveyance,  or  instrument  under 
seal,  freely,  and  without  any  fear  or  compulsion  of  or 
from  her  husband.  The  officer  must  in  .-ill  ca.ses  certify 
to  the  identity  of  the  grantor.  It  is  competent  for  him, 
however,  to  satisfy  himself  of  the  identity  of  the  parties 
at  his  own  discretion. » 

Deeds,  etc.,  executed  in  this  State  of  lands,  or 
»ny  interest  in  lands  therein,  shall  be  executed  in  the 
presence  of  two  witnesses,  who  shall  subscribe  their 
names  to  the  same  as  such,  and  the  persons  executing 
such  deeds  may  acknowledge  the  execution  thereof 
before  any  judge,  clerk  of  the  circuit  court,  notary 
public  or  justice  of  the  peace  within  the  State,  and  if 
any  such  deed  or  conveyance  of  land  shall  be  executed 
in  anv  other  State,  Territory,  or  district  of  the 
United  States,  such  deed  may  be  executed  according  to 
^e  laws  of  such  State,  Territory,  or  district,  and  the 
•Kecutiun  thereof  may  be  acknowledged   before  any 

X-Busb't  Digest,  p.  151.    y-Laws  1873,  p.  18. 


judge  or  clerk  of  a  court  of  record,  noury  public, 
justice  of  the  peace,  or  other  officer  authorized  oy  th« 
laws  of  such  State,  Territory,  or  district,  to  take  ac- 
knowledgment of  deeds  therein,  or  before  any  commis- 
sioner appointed  by  the  governor  of  this  State  for  such 
purpose. 

It  such  deed  be  executed  in  any  foreign  countrr 
it  may  be  executed  according  to  the  laws  of  sucn 
country;  any  execution  thereof  may  be  acknowledged 
before  any  notary  public  therein,  or  before  any  minister 
plenipotentiary,  minister  extraordinary,  minister  resi- 
dent, chargi  d' affaires ,  commissioner,  or  consul  of  the 
United  States  appointed  to  reside  therein,  or  before  a 
commissioner  appointed  by  the  governor  of  this  State 
for  such  purpose,  which  acknowledgniMit  shall  be  cer- 
tified therein  by  the  officer  taking  the  same  under  his 
hand,  and  his  seal  of  office  shall  be  affixed  to  such 
certificate. 

If  any  such  deed  or  other  conveyance  shall  be  exe- 
cuted and  acknowledged  in  any  other  State  or  country, 
before  any  officer  not  having  an  official  seal,  he 
nhall  have  nttaclied  thereto  a  certificate  of  the  clerk  or 
other  proper  certifying  officer  of  a  court  of  record  or 
certificate  of  the  secretary  of  state,  minister  plenipoten- 
tiary, minister  extraordinary,  minister  resident,  chargA 
d'affaires,  commissioner,  or  consul  (as  the  case  maj' 
be),  that  the  person  whose  name  is  subscribed  to  the 
certificate  of  acknowledgment  was,  at  the  date  thereof, 
such  officer  as  he  is  therein  represented  to  be ;  that  he 
believes  the  signature  of  such  person  subscribed  thereto 
to  be  genuine,  and  that  the  deed  is  executed  and  ac- 
knowledged according  to  the  laws  of  such  State,  Tt rri' 
tory,  district,  or  foreign  country  .J 

The  wife  may  relinquish  her  dower  in  any  land, 
tenements,  or  hereditaments,  by  joining  in  the  deed 
made  by  the  husband,  or  she  may  execute  a  separHte  in- 
strument under  her  hand  and  seal ,  in  the  presence  of  two 
witnesses.  When  made  in  this  State,  her  relinquish- 
ment of  dower  (to  be  effectual)  must  be  accompanied  by 
an  acknowledgment  under  her  hand  and  seal,  taken  and 
made  separately  and  apart  from  her  husband,  be/ort 
some  judicial  officer  of  this  State,  that  it  was  made 
freely  and  voluntarily,  and  without  any  compulsion, 
constraint,  apprehension,  or  fear  of  or  from  the  huiiband. 
When  made  out  of  this  State,  but  within  the  United 
States,  it  shall  be  taken  in  the  manner  a/oresaid,  by 
the  clerk  or  prothonotary  of  some  court  of  record  in  tiie 
State,  Territory,  or  district  in  which  it  shall  be  made, 
in  the  presence  of  the  judge  or  justice,  or  of  one  of  the 
judges  or  justices  of  the  court  to  which  the  clerk  or 
prothonotary  who  takes  the  acknowledgment  shall 
belong.  And  the  taking  of  such  acknowledgment,  and 
the  certificate  of  the  clerk  or  prothonotary,  shall  be 
authenticated  under  the  hand  of  the  judge  or  justice 
present  at  the  making  thereof,  by  his  certifying  that 
the  said  acknowledgment  was  made  in  his  presence, 
and  that  the  person  acting  as  clerk  or  prothonotary  was 
at  the  time  of  his  so  doing  the  clerk  or  prothonotary  of 
the  court  of  which  he  is  judge  or  justice. 

If  any  such  relinquishment  ot  dower  shall  be  made 
out  of  the  United  States,  the  acknowledgment  of  the 
party  making  it  shall  be  taken  in  the  manner  as  afore- 
said, by  and  Defore  some  public  minisier,  consul  or  vice- 
consul,  commercial  or  vice-commercial  agent  of  the 
United  States  residing  in  the  country  in  which  the 
acknowledgment  may  be  taken,  and  shall  be  certified 
under  the  hand  ai.d  the  seal  of  office  of  such  public 
minister,  consul  or  vice-consul,  commercial  agent  or 
vice-commercial  agent.J 

Rellnnulsbinent  of  Dower— Taken  out 
of  the  State. 

State  of ,  city  or  county  of ,  ss. 

Be  it  remembered,  that  on  this day  of , 

in  the  year  of  our  Lord ,  before  me,  the  clerk 

of  the court  for  the  (city  or)  county  of , 

and  State  of ,  which  said  court  is  a  court  of 

record,  personally  came  W.  B.,  wife  of  A.  B.,  to 
me  well  known  as  the  person  described  in,  and 
who  executed  the  foregoing  deed  of  conveyance 
{as  the  case  may  ie),  and  acknowledged  that  she 
made  herself  a  party  to  and  executed  the  same, 
for  the  purpose  of  relinquishing  her  dower,  in 
and  to  the  lands  and  tenements  therein  de- 
scribed ;  and  the  said  W.  B.,  on  a  private  exam- 
ination taken  and  made  before  me,  in  the  pres- 
ence of  the  Hon.  J.  J.,  judge  of  our  said  court, 
separately  and  apart  from  her  said  husband,  ac 
knowledges  and  says  that  the  said  relinquish' 


ACKNOWLEDGMENT. 


at 


ment  and  renunciation  of  dower  ^va8  and  is 
made  freely  and  voluntarily,  and  without  any 
compulsion  or  constraint,  apprehension  or  fear 
of  or  from  her  said  husband,  the  said  A.  B.,to 
which  acknowledgment  the  said  'W.  B.  has  in 
my  presence  and  in  the  presence  of  the  said  J.  J., 
judge  of  our  said  court,  this  day  set  her  hand 
and  seal. 

Witness  my  hand  and  the  seal  of  our  said  court 

at ,  in ,  this  the  day  and  year  first  above 

written. 

[Sea/  of  Court.]  C.  C. ,  Clerk,  etc. 

Ackiiowledgrment— Certificate. 

State  of ,  city  or  county  of ,  ss. 

I.  J'  Jm  judge  of  the court  of  the  (city  or 

:ounty)  and  State  aforesaid,  do  hereby  certify 
that  the  foregoing  acknovt^ledgment  was  made 

in  my  presence  at ,  within  the  jurisdiction 

of  our  said  court ;  and  that  C.  C,  before  whom 
the  said  acknowledgment  was  taken,  and  whose 
signature  is  attached  thereto,  was  at  the  time 

of  his  so  doing  the  clerk  of  the  said court,  of 

which  I  am  the  judge  (and  that  the  signature  of  the 
said  (name  of  clerk)  to  said  acknowledgment  to  be 
genuine).  J.  J.,  Judge,  etc. 

The  wife  should  also  acknowledge  with  the  husband, 
before  the  proper  officer,  in  the  usual  form,  in  order  to 
admit  the  deed  to  record. 

Proof  by  Subscribing  Witness. 

State  of ,  county  of ,  ss. 

Be  it  remembered,  that  on  this day  of , 

in   the  year  :. ,  before  me   (name  ana  title  of 

tfficer),  personally  appeared  W.  T.,  whose  name 
is  affixed  as  a  subscribing  witness  to  the  fore- 
going deed  between  A.  B.  and  E.  F. ;  and  who, 
being  duly  sivorn,  deposes  and  says,  that  the 
said  A.  B.  duly  signed,  sealed,  and  delivered  the 
foregoing  deed  to  the  said  E.  F.,  as  his  act  and 
deed,  in  the  presence  of  him,  the  said  W.  T.,  and 
also  in  the  presence  of  N.  S.,  the  other  subscrib- 
ing witness  to  said  deed,  who  then  at  the  request 
o':'  the  said  A.  B.  duly  signed  and  attested  the 
aume  in  the  presence  of  the  deponent,  and  of  the 
said  A.  B.,  the  grantor. 

In  testimony  whereof,  I  have  hereunto  set  my 
K  and  and  affixed  my  seal  the  day  and  year  first 
above  written. 

[  Official  seal.]  (Sigytature  and  title  of  officer.) 

AcltnowledjBrnient^ — Out  of  tlie  State. 

State  of ,  city  or  county  of ,  ss. 

Be  it  remembered,  that  on  this day  of , 

in  the  year ,  personally  appeared  before  me, 

a  commissioner  duly  appointed  and  authorized 
by  the  executive  authority  of  Florida  under  the 
laws  of  said  State  to  take  within  the  State  of 

proof  and  acknowledgment  of  deeds,  etc.  (or 

other  officer,  as  the  case  may  be),  to  be  used  and 
recorded  in  said  State,  A.  B.,  to  me  well  known 
to  be  the  person  who  executed  the  foregoing 
(and  annexed)  deed  by  hitn  sealed  and  subscribed  ; 
and  the  said  A.  B.  acknowledged  the  execution 
thereof  to  be  his  free  act  and  deed,  for  the  uses 
and  purposes  therein  mentioned. 

In  testimony  ^vhereof,  I  have  hereunto  set  my 
hand  and  affixed  my  official  seal  the  day  and 
year  first  above  written. 

[  Official  seal.  ]         (Signature  and  title  of  officer. ) 
GEORGIA. 

Conveyances  of  property  In  this  State  should  be 
Attested  (in  order  to  admit  them  to  record)  by  the  follow- 
ing officials :  If  within  the  State,  by  a  notary  public, 
judge,  or  clerk  of  the  superior  court  or  ordinary  of 
court,  or  by  any  justice  of  the  peace.  Where  a  deed  is 
executed  within  the  State,  it  is  not  necessary  that  the 
notary  public  or  other  attesting  officer  should  affix  any 
seal.  If  executed  in  another  State,  by  a  commis- 
sioner of  deeds  for  the  State  of  Georgia,  or  a  consul  or 
vice-consul  of  the  United  States,  under  their  seals,  or 
by  a  judge  of  a  court  of  record  in  the  State  where  ex- 
ecuted, with  a  certificate  of  the  clerk,  under  the  seal  of 
such  court,  or  by  two  witnesses,  one  of  whom  is  a 
notary  public,  with  the  certificate  of  his  appointment 
attached.  All  deeds,  mortgages,  etc.,  to  realty,  should 
be  attested  by  two  witnesses,  the  commissioner,  consul, 
etc.,  or  judge,  being  one,  and  should  be  under  seal  (or 
scroll)' 

S-£iee  C}eneral  Statutes. 


If  the  subscribing  witne.«s  or  witnesses  be  dead  or 
lunatic,  or  have  removed  without  the  State,  or  be  other- 
wise incapacitated  to  make  the  affidavit,  the  affidavit  of 
a  third  person  to  such  death,  lunacy,  etc.,  and  to  the 
genuineness  of  the  handwriting  of  the  subscribing  wit- 
ness or  witnesses,  shall  be  sufficient  to  admit  the  deed 
to  record.' 

Renunciation  of  dov«rer  by  the  wife  Is  not  required 
in  this  State,  except  where  the  husband  is  alienating 
lands  to  which  he  derived  title  through  the  wife  by 
marriage  contracted  prior  to  the  statute  of  i866.< 

Acknowledgement — General  Form. 

A  simple  acknowledgment  before  the  witnessed , 
designated  above  is  all  that  is  required.  The  attestati_-i  j 
clause  opposite  to  or  below  the  signature  of  the  partie:  I 
executing  the  deed  should  be  :  "Signed,  sealed  and 
delivered  in  presence  of."  No  further  certificate  b> 
the  officer  of  the  execution,  or  acknowledgment  of  the 
signing  is  necessary.  This  includes  acts  of  husband 
and  wife. 


Proof  by  Subscribing:  Witness  When 
Deed  is  not  made  before  Officer. 

State  of ,  county  of ,  ss. 

Before  me  (name  ana  title  of  officer')  personally 
came  W.  T.,to  me  known  to  be  the  individual 
whose  signature  is  affixed  to  the  foregoing  deed 
as  one  of  the  witnesses  thereto,  who  being  sworn 
says  that  he  was  present  at  the  time  when  said 
deed  was  executed,  that  he  saw  the  same  signed, 
sealed,  and  delivered  by  A.  B.,  whose  signature 
is  thereto  affixed  as  grantor ;  that  N.  S. ,  the  other 
subscribing  witness  thereto,  was  likewise  present 
at  said  time  and  witnessed  said  execution  of  said 
deed,  and  that  he  the  said  W.  T.  and  the  said 
N.  S.  then  and  there  signed  the  same  as  attesting 
witnesses.  'W.  T. 

Sworn  to   and   subscribed  before  me  this  — 

day  of ,  A.  D. . 

(Signature  and  title  of  officer. 

IDAnO. 

The  proof  or  acknowledgment  of  every  conveyance 
affecting  any  real  estate  shall  be  taken  by  some  one  of 
the  following  officers:  If  acknowledged  or  proved 
within  this  State,  by  some  judge  or  clerk  of  a 
court  having  a  seal,  or  some  notary  public  or  J.  P.  or 
recorder  for  the  proper  county.  If  acknowledged  or 
proved  without  this  State,  and  within  the 
United  States,  by  some  judge  or  clerk  of  any  court 
of  the  United  States,  or  of  any  State  or  Territory 
having  a  seal,  or  by  any  commissioner  appointed  by  tho 
governor  of  this  State  for  that  purpose,  or  by  any 
official  authorized  by  the  laws  of  the  State  where  the 
acknowledgment  is  taken  to  take  acknowledgments. 
If  acknowledged  or  proved  without  the  United 
States,  by  some  judge  or  clerk  of  any  court  of  any 
state,  kingdom,  or  empire  having  a  seal,  or  by  any 
notary  public  therein,  or  by  any  minister,  commis- 
sioner, or  consul  of  the  United  States  appointed  to  reside 
therein. 

A  husband  and  wife  may  by  their  joint  deed  convey 
the  real  estate  of  the  wife.  Every  conveyance  affecting 
real  estate  must  be  acknowledged  or  proved  and  certi- 
fied. 

Every  power  of  attorney  or  other  instrument  in 
writing,  containing  power  to  convey  any  real  estate  as 
agent  or  attorney  for  the  owner  thereof,  must  be  ac- 
knowledged and  certified  in  the  same  manner  as  above 
described  for  deeds. 

The  party  offering  to  make  acknowledgment  shall  be 
known  to  the  officer,  or  prove  himself  to  be  the  persor 
he  represents,  by  the  oath  of  a  credible  witness. 
Acknowledirmentr— Grantor  unknown 
to  Officer. 

State  of  Idaho,  County  of ,  as. 

On  this day  of ,  A.  D. ,  personally 

appeared  before  me,  N.  P.,  a  notary  public  (judge 
or  other  officer)  in  and  for  said  county,  A.  B.,  proved 

to  me  on  the  oath  of to  be  the  person  whose 

name  is  subscribed  to  the  within  conveyance  ; 
and  he,  the  said  A.  B., acknowledged  to  me  that 
he  executed  the  same. 

In  testimony  whereof,  etc. 

{Signature  and  official  titU^ 

■-See  General  Statutes. 


22 


ACKNOWLEDG.VIF.NT. 


Any  officer  authorized  to  take  proof  or  acknowledg- 
ment of  any  conveyance  whereby  any  real  estate  is 
conveyed  or  may  be  affected,  may  take  and  certify  the 
acknowledgment  of  a  married  woman  to  any  such  con- 
Yeyaiicc  of  real  estate. 

Such  married  woman  must  be  known  to  the  officer,  or 
satisfactorily  proved  to  be  the  person  represented,  and 
must  be  examined  apart  from,  and  without  the  hearing 
of  her  husband,  and  must  acknowledge  that  the  act  is 
free  and  voluntary,  and  without  fear  or  compulsion,  or 
under  influence  of  her  husband,  and  that  she  does  not 
w;sh  to  retract  the  execution  of  the  same. 

No  estate  as  tenant  by  courtesy  allowed  the  husband, 
nor  dower  to  the  wife. 

Acknowledgement— Single  Person. 

State  of  Idaho,  County  of ,  as. 

On  this day  of in  the  year  189    ,  before 

me ,  a in  and  for  said  county,  personally 

appeared known  to  me  to  be  the  person  whose 

name subscribed  to  the  within  instrument, 

and  acknowledged  to  me  that  he  executed  the 
same. 

In  witness  whereof,  I  have  hereunto  set  my 
hand  and  affixed  my  official  seal,  the  day  and  year 
in  this  certificate  first  above  written. 

{Signature  and  title  of  official^ 

Acknowledgment— Husband  and  Wife: 

OR  LATTER  PART  FOR  MARRIED  WOMAN  ALONB. 

State  of  Idaho,  County  of ,  ss. 

On  this day  of in  the  year  189    ,  before 

me ,  a personally  appeared known  to 

me  to  be  the  person  v^hose  name  is  subscribed 
to  the  within  instrument,  and  acknowledged   to 

me  that  he  executed  the  same ;  and  on  this 

day  of in  the  year  189  ,  before  me,  the  officer 

above  described,  personally  appeared known 

to  me  to  be  the  person  whose  name  is  subscribed 
to  the  within  instrument,  described  as  a  mar- 
ried woman;  and  upon  an  examination  without 
the  hearing  of  her  husband,  I  made  her  ac- 
quainted with  the  contents  of  the  instrument, 
and  thereupon  she  acknowledged  to  me  that 
she  executed  the  same,  and  that  she  does  not 
wish  to  retract  such  execution. 

In  witness  whereof  I  have  hereto  set  my  hand 
and  affixed  my  official  seal,  the  day  and  year  in 
this  certificate  first  above  written. 

{Signature  and  title  of  official.) 

The  acknowledgment  to  a  conveyance  made  by  a 
corporation  must  be  taken  by  and  before  the  same  offi- 
cers prescribed  for  other  parties. 

State  of ,  county  of ,  ss. 

On  the day  of ,  A.  D. ,  before    me 

personally  came  P.  P.,  the  president  of  the 

company,  personally  known  to    me  to    be    the 

president  of  the corporation  that  executed 

the  above  instrument,  and  acknowledged  to  me 
that  such  corporation  executed  the  same. 

In  testimony  wrhereof,  I  have  hereunto  set  my 
hand  and  affixed  my  seal  of  office  the  day  and 
year  first  above  written. 

\_Seal.'\  {Signature  andtitle.) 

Proof  by  Subscribing^  Witness. 

The  proof  of  the  execution  of  any  conveyance  where- 
by any  real  estate  is  conveyed  or  may  be  affected  when 
not  acknowledged  shall  be,  ist,  by  the  testimony  of  a 
subscribing  witness ;  or,  ad,  when  all  the  subscribing 
witnesses  are  dead  or  cannot  be  had,  by  evidence  of  the 
handwriting  of  the  party  and  of  at  least  one  subscribing 
witness. 

No  proof  of  a  subscribing  witness  shall  be  taken  un- 
less such  witness  shall  be  personally  known  to  the  officer 
taking  the  proof  to  be  the  person  whose  name  is  sub- 
•cribed  to  the  conveyance  as  a  witness  thereto,  or  shall 
be  proven  to  be  such  by  the  oath  or  affirmation  of  a 
credible  person. 

No  certificate  of  such  proof  shall  be  granted  unless 
such  subscribing  witness  shall  prove  that  the  person 
whose  name  is  subscribed  thereto  as  a  party  is  the  per- 
son described  in,  and  who  executed  the  same,  that  such 
person  executed  the  conveyance,  and  that  such  witness 
fubscribed  his  name  thereto  as  a  witness  thereof. 

State  of ,  county  of ,  ss. 

On  this day  of ,  A.   D.   one  thousand 


eight  hundred  and ,  personally  appeared  be- 
fore me  {here  insert  name  and  title  of  officer),  in  and 

for  the  said county, ,  personally  known  to 

me  to  be  the  same  person  whose  name  is  sut>- 
scribed  to  the  annexed  instrument  as  a  witness 
thereto,  who  being  by  me  duly  sworn  deposed 
and  said  that  he  resides  in ,  that  he  was  pres- 
ent and  saw  A.  B.,  personally  known  to  him  to 
be  the  same  person  described  in  and  who  exe- 
cuted the  said  annexed  instrument  as  A.  B.,  party 

thereto,  sign,  seal,  and  deliver  the  same  ;  and 

that  the  said  A.  B.  acknowledged  in  the  presence 
of  said  affiant  that  he  executed  the  same  freely 
and  voluntarily,  and  for  the  uses  and  purposes 
therein  mentioned,  and  that  he,  the  said  affiant, 
subscribed  his  name  as  a  witness  thereof. 

In  testimony  whereof,  I  have  hereunto  set  my 
hand  and  affixed  my  official  seal  the  day  and  year 
in  this  certificate  first  above  written. 

{Seal.  ]  {Signature  and  title  of  officer.) 

IlililNOIS. 

Instruments  for  the  conveyance  of  land  must  be 
acknowledgeji  or  proved  before  either  of  the  following 
officers  :  When  acknowledged  within  this  State, 
before  a  notary  public  or  United  States  commissioner, 
who  shall  affix  his  seal ;  a  master  in  chancery,  circuit  or 
county  clerk,  justice  of  the  peace  (the  official  character 
of  the  latter,  if  he  be  without  the  county  where  the  land 
lies,  to  be  certified  by  the  clerk  of  the  county  court), 
any  court  of  record  having  a  seal,  or  any  judge,  justice, 
or  clerk  thereof, — if  before  the  court  or  clerk,  the  seal 
of  court  being  affixed.  When  acknowrledged  or 
proved  without  this  State,  and  within  the  United 
States  :  before  a  justice  of  the  peace  (his  official  char- 
acter being  certified  as  above),  notary  public,  United 
States  commissioner,  commissioner  of  deeds,  mayor  of 
a  city,  or  clerk  of  a  county,  such  officer  affixing  his 
official  seal,  any  judge,  justice,  or  clerk  of  any  United 
States,  State,  or  Territorial  court;  or  the  acknowledg- 
ment may  be  in  conformity  with  the  laws  of  the  State 
where  made,  in  which  case  a  certificate  of  conformity 
from  the  clerk  of  a  court  of  record,  with  the  seal  of  court 
affixed,  is  required,  or  conformity  may  be  proved  by  the 
laws  of  such  State.  When  acknowledged  or  proved 
without  the  United  States :  before  any  court  having 
a  seal,  mayor,  or  chief  officer  of  any  city  or  town  having 
a  seal,  minister  or  secretary  of  legation,  or  consul  of  the 
United  States  in  any  foreign  countrv,  attested  by  his 
official  seal,  or  any  officer  authorized  by  the  foreign  law 
to  take  acknowledgments ;  if  the  latter  has  no  official 
seal,  proof  that  he  is  duly  authorized  is  required ;  or 
the  acknowledgment  may  be  in  conformity  with  the 
foreign  law,  and  so  certified  by  any  consul  or  minister 
under  his  official  seal.  When  an  acknowledgment  is 
made  before  a  commissioner  of  Illinois,  it  must  comply 
with  the  laws  of  this  State,  and  be  certified  under  his 
official  seal. 

Proof  of  the  execution  of  any  instrument  may  be 
made  by  a  subscribing  witness ;  and,  when  the  grantor 
or  subsci.bhig  witness  is  deceased,  the  officer  may 
take  proof  of  their  handwriting,  or  of  the  handwriting 
of  the  grantor,  if  there  be  no  subscribing  witness,  and 
grant  a  certificate  tlierecf. 
Acknowledgrment— Husband  and  Wife. 

State  of ,  county  of ,  ss. 

I  {name  and  title  of  officer'),  do  hereby  certify  that 
A.  B.  and  'VJ.  B.  his  wife,  personally  known  to 
me  to  be  the  same  persons  whose  names  are  sub- 
scribed to  the  foregoing  instrument  as  having 
executed  the  same,  appeared  before  me  this  day 
in  person,  and  acknowledged  that  they  signed, 
sealed,  and  delivered  the  said  instrument  as  their 
free  and  voluntary  act,  for  the  uses  and  purpose* 
therein  set  forth,  including  the  release  and  wai- 
ver of  the  right  of  homestead.* 

Given  under  my  hand  and  official  seal  this  ■ 
day  of ,  A.  D. . 

[Seal.]  {Signature  and  title  of  officer.) 

Proof  by  Knbscriblni?  Witness. 

State  of ,  county  of ,  ss. 

Be  it  remembered,  that  on  this day  of , 

A.  D. ,  before  me  {name  and  -itle  of  officer)  duly 

appointed  and  commissioned,  personally  ap- 
peared W.  T.,tome  personally  known  to  be  a  sub- 
scribing witness  to  the  foregoing  deed  {or  as  the 
case  may  be,  "  who  has  proved  to  me  on  oath  of  W.  S. 
*Se«  g27,  next  page. 


ACKNOWLEDGMENT. 


23 


a  credible  witness,  to  be  a  subscribing  witness  to  the 

foregoing   deed"),  who,  after  being    duly  sworn 

according  to  law,  deposeth  and  saith  that  A.  B., 

whose  name  appears  subscribed  to  said  deed,  is 

the  real  person  who  executed  the  same,  and  that 

he  the  said  W.  T.  subscribed  his  name  as  a  witness 

thereto, 

said 

the  execution  of  said  deed. 

In  testimony  whereof,  I  have  hereunto  set  my 
hand  and  seal  at ,  this day  of ,  A.  D.  — — 

[Sea/. I  (Signature  and  title  0/ officer.) 


nesaia  w.  1.  suoscriDcu  lusuauicMa  •»  winitiio 
eto,  in  the  presence,  and  at  the  request  of,  the 
A.  B.,  which  is  sufficient  evidence  to  me  of 


Waiviiigr  Homejstead  Exemption. 
***Sec.  27.  No  deed  or  other  instrument 
Shall  be  construed  as  releasing  or  waiving  the 
right  of  homestead,  unless  the  same  shall  con- 
tain a  clause  expressly  releasing  or  waiving 
such  right.  And  in  such  case  the  certificate  of  ac- 
knowledgment shall  contain  a  clause  substantially  as 
follows :  '  including  the  release  and  waiver  of 
the  right  of  homestead,'  or  other  words  which 
shall  expressly  show  that  the  parties  executing  the 
deed  or  other  Instrument  intended  to  release  such 
right.  And  no  release  or  waiver  by  the  husband  shall 
bind  the  wife  unless  she  join  In  such  release  or 
waiver."    R.  S.  X877,  Ch.  30,  g  27. 

ISTBIAJTA. 

To  entitle  any  conveyance,  mortgage,  or  instru- 
ment of  writing  to  be  recorded,  it  must  be  ac- 
knowledged by  the  grantor,  or  proved  before  any 
judge  or  clerk  of  a  court  of  record,  justice  of  the  peace, 
auditor,  recorder,  notary  public,  or  mayor  of  a  city  in 
this  or  any  other  State,  or  before  any  commissioner  ap- 
pointed in  any  other  State  by  the  governor  of  this  State, 
or  before  any  minister,  charge.  cT affaires,  or  consul  of 
the  United  States  in  any  foreign  country.* 

When  any  conveyance,  mortgage,  or  other  instrument 
required  to  be  recorded,  is  acknowledged  in  any  county 
in  this  State  other  than  the  one  in  which  the  same  is  re- 
quired to  be  recorded,  the  acknowledgment  must  be 
certified  by  the  clerk  of  the  circuit  court  of  the  county 
in  which  the  officer  resides,  and  attested  by  the  seal  of 
said  court ;  but  an  acknowledgment  before  an  officer 
having  an  official  seal,  if  attested  by  such  official  seal, 
is  sufficient  without  such  certificate.*  A  county  sur- 
veyor is  authorized  to  have  a  seal,  and  take  and  certify 
acknowledgments  of  mortgages  and  deeds  for  realty. 

Any  acknowledgment  of  any  conveyance  in  a  foreign 
country,  as  above  provided,  requires  no  certificate  other 
than  the  official  seal  of  the  officer  taking  said  acknowl- 
edgment.' 

To  entitle  to  record  in  this  State  conveyances 
acknowledged  out  of  this  State  and  vtrithin  the 
United  States,  the  same  must  be  certified  by  the  clerk 
of  any  court  of  record  of  the  country  in  which  the  offi- 
cer receiving  the  acknowledgment  resides,  and  attested 
by  the  seal  of  said  court ;  but  an  acknowledgment  before 
an  officer  having  an  official  seal,  attested  by  his  official 
seal,  is  sufficient  without  such  certificate.  J 

Ail  deeds  may  be  proved  according  to  the  rules  of  the 
common  law,  before  any  officer  authorized  to  take 
acknowledgments,  and  being  so  proved  are  entitled  to 
record,  k 

It  is  not  necessary  for  a  married  woman  to  acknowl- 
edge her  deed  in  any  form  other  than  that  required  by 
unmarried  persons.! 

The  certificate  of  any  such  acknowledgment  must  be 
in  writing  upon  or  attached  to  such  conveyance." 

Acknowledg'inent— Husband  and  "Wife. 

State  of ,  county  of ,  ss. 

Be  it  remembered,  that  on  this day  of , 

A.  D. ,  before  me  inatne  and  title  of  officer  tak- 
ing the  ackntnvledgment),  duly  commissioned  and 
qualified,  personally  appeared  A.  B.  and  VJ.  B. 
his  Twife,  the  grantors  in  the  foregoing  deed,  and 
severally  acknowledged  the  execution  of  the 
ome. 

In  testimony  whereof,  I  have  hereunto  set  my 

e-R.  S.  1881,  ?  2933.  h-id.  I  2934.  i-id.  i  2937. 
t-id.23935.     k-id.  {3936.    1-id.  §2938.    ni-id.239so. 


hand  and  affixed  my  official  seal  the  day  aad  yeai 

aforesaid. 
[Seal.  ]  (Signature  and  title  0/ officer.) 

Proof  by  Subscribing  Witness. 

State  of ,  county  of ,  ss. 

Be  it  remembered,  that  on  this day  of ; 

A.  D. ,  before  me,  the  undersigned  (name  an* 

title  0/  officer),  personally  appeared  W.  T.,  the 
subscribing  witness  to  the  execution  of  the 
within  deed,  of  lawful  age,  who  being  by  me 
duly  sworn  upon  his  oath  did  depose  and   say 

that  on  the  day  of ,  A.  D. ,  he  saw 

the  within-named  grantors,  A.  B.  and  W.  B.  his 
wife,  sign,  seal,  and  deliver  the  writhin  deed,  as 
their  act  and  deed;  that  this  deponent  at  the 
same  time  signed  his  name  as  a  witness  of  the 
execution  of  said  deed,  at  the  request  and  in  the 
presence  of  said  grantors,  which  grantors  wrere 
at  the  time  over  the  age  of  twenty-one  years, 
and  of  sound  mind  and  memory,  and  laboring 
under  no  disability  so  far  as  deponent  kno>ws. 

In  testimony  whereof,  I  have  hereunto  set  my 
hand  and  affixed  my  official  seal  the  day  and 
year  aforesaid. 

[Sea-l.^  {Signature  and  title  of  officer.) 

IOWA. 

Instruments  affecting  real  estate  executed 
writhin  the  State  must  be  acknowledged  before  soma 
court  having  a  seal,  or  some  judge,  or  clerk  or  deputy 
clerk  thereof,  or  some  J.  P.,  or  notary  public,  oracountf 
auditor  or  his  deputy. 

Instruments  affecting  real  estate  executed  out  of  this 
State  but  within  the  United  States  must  be  ac- 
knowledged before  some  court  of  record,  or  officer  hold- 
ing the  seal  thereof,  or  before  some  commissioner  of 
deeds  appointed  by  the  governor  of  this  State,  or  before 
some  notary  public  or  justice  of  the  peace;  and  when 
before  a  jusuce,  a  certificate  under  the  official  seal  of 
the  proper  authority,  of  the  official  character  of  said 
justice  and  of  his  authority  to  take  such  acknowledg- 
ments, and  of  the  genuineness  of  his  signature,  shall 
accompany  said  certificate  of  acknowledgment.  Such 
instruments,  if  executed  without  the  United  States, 
may  be  acknowledged  or  proven  before  any  ambassador, 
minister,  secretary  of  legation,  consul,  ckargi  d'affaires, 
consular  agent,  or  any  other  officer  of  the  United  States 
in  any  foreign  country,  who  is  authorized  to  issue  cer- 
tificates under  the  seal  of  the  United  States.  Such  in- 
struments may  also  be  acknowledged  or  proven  bcfors 
any  officer  of  a  foreign  country  who  is  authorized  by 
the  laws  thereof  to  certify  to  the  acknowledgments  of 
written  documents ;  but  the  certificate  of  acknowledg- 
ment by  a  foreign  officer  must  be  authenticated  by  one 
of  the  above-named  officers  of  the  United  States,  whose 
official  written  statement  that  full  faith  and  credit  is 
due  to  the  certificate  of  such  foreign  officer  shall  b« 
deemed  sufficient  evidence  of  the  qualification  of  said 
officer  to  take  acknowledgments,  and  to  certify  thereto, 
and  of  the  genuineness  of  his  signature  or  seal,  if  he 
have  any." 

The  certificate  of  acknowledgment  must  contain  the 
title  of  the  court  or  person  before  whom  it  was  taken ; 
that  the  person  making  the  acknowledgment  was  per. 
sonally  known  to  be  the  identical  person  whose  name  is 
affixed  thereto ;  or  that  such  identity  was  proved  by  at 
least  one  credible  witness  (narning  hint) ;  and  that  such 
person  acknowledged  the  instrument  to  be  his  voluntary 
act  and  deed." 

If  the  grantor  die,  or  his  attendance  cannot  be  pro- 
cured, or  he  refuses  to  acknowledge  it,  proof  of  the  due 
execution  and  delivery  of  the  deed  may  be  made  by  one 
competent  person  other  than  the  vendee  or  other  person 
to  whom  the  instrument  is  executed,  and  the  certificate 
of  acknowledgment  must  contain  the  title  of  officer  tak- 
ing same,  that  it  was  satisfactorily  proved  that  grantor 
was  dead,  or  that  his  attendance  could  not  be  procured, 
or  that  he  reftised  to  acknowledge  same,  and  the  names 
of  the  witnesses  by  whom  proof  was  made,  that  the  in- 
strument was  executed  by  the  person  whose  name  is 
signed  thereto." 

The  execution  of  any  deed,  mortgage,  or  other  instru- 
ment in  writing,  executed  by  an  attorney  in  fact,  may 
be  acknowledged  by  the  attorney  executing  the  same 
and  the  certificate  thereof  must  contain  the  titip  of 
officer  taking  acknowledgment,  that  the  person  signiiif 
same  was  personally  known  to  be  the  identical  pe~so* 

ii-S«e  General  Statutes. 


24 


ACKNOWLEDGMENT. 


•ipWiiK  samr  at  attorney  in  fact  for  grantor,  and  that 
such  person  acknowledged  the  instrument  to  be  the  act 
and  deed  of  grantor  by  him  as  his  attorney  thereunto 
appointed,  voluntarily  done  and  executed." 

In  every  conveyance  of  real  estate  the  joining  of  the 
wife  with  her  husband  is  deemed  suAcient  to  pass  all 
her  interest  in  the  property,  either  as  his  wife  or  in  her 
own  right. 

Conveyances  by  corporations  may  be  executed  by 
«ny  officer  thereof,  qualified  thereto  by  charter  or  laws 
of  the  corporation,  by  giving  his  title  as  such  officer,  cer- 
tifying that  he  is  duly  authorized  to  act,  and  by  attach- 
ing the  seal  of  the  corporation." 

A  married  woman  may  convey  her  interest  in  real 
estate  in  the  same  manner  as  other  persons. 

Aeknowledgment^IIusbaud  and  Wife. 

State  of ,  county  of ,  ss. 

On  this  day  of ,  A.  D. ,  before  me 

(it't/e  of  the  court  or  person  be/ore  ivhont  the  acknowl- 
edgment is  taken]  personally  came  A.  B.  and  W.  B. 
his  wife,  to  me  personally  known  to  be  the  iden- 
tical persons  whose  names  are  afRxed  to  the 
above  deed  as  grantors,  and  acknowledged  the 
execution  of  the  same  to  be  their  voluntary  act 
tind  deed. 

Witness  my  hand  and  notarial  (or  official)  seal 
the  day  and  year  above  written. 

[5fa/.]  {Signature  and  title  o/ officer.) 

Proof  by  Subscriblnisr  Witness.° 

State  of ,  county  of ,  ss. 

Be  it  remembered,  that  on  this day  of , 

A.  D. ,  before  me  {title  of  court  or  officer  before 

whom  the  acknowledgment  is  taken)  personally  ap- 
peared 'W.  T. ,  who  being  by  me  first  duly  sworn, 
did  depose  and  say  that  A.  B.,  the  grantor  in 
foregoing  deed,  was  personally  knowji  to  him, 
and  that  the  said  A.  B.  was  dead  (or  state  the  rea- 
sons for  his  nan-attendance),  which  is  satisfactory 
proof  to  me  that  his  attendance  could  not  be 
procured  to  make  this  acknowledgment  (or  that 
having  appeared  he  refused  to  acknowledge  the  instru- 
ment:; and  the  said  W.  T.  further  deposed  and 
said  that  he  saw  A.  B.,  the  grantor  therein,  sub- 
scribe and  deliver  said  deed  [or  that  the  said  A.  B., 
the  grantor  therein,  acknowledged  to  him  that  he  had 
subscribed,  sealed,  and  executed  said  deed),  for  the 
uses  and  purposes  therein  mentioned,  which  is 
satisfactory  proof  to  me  that  said  instrument 
Was  executed  by  said  A.  B.,  whose  name  is  there- 
unto subscribed  as  a  party. 

In  testimony  whereof,  I  have  hereunto  set  my 
hand  and  affixed  my  notarial  (or  other  official  seal 
■>f  office)  seal  the  day  and  year  aforesaid. 

{Seal.  ]  (Signature  and  title  of  officer. ) 

KANSAS. 

All  conveyances  and  other  instruments  affect- 
ing real  estate,  acknowledged  within  this  State, 
must  be  acknowledged  before  some  court  having  a  seal, 
or  some  judge,  justice,  or  clerk  thereof,  or  some  justice 
of  the  peace,  notary  public,  county  clerk,  or  register  of 
deeds,  or  mayor  or  clerk  of  an  incorporated  city.P 

Tf  acknoNvledged  out  of  this  State,  it  must  be 
before  some  court  of  record,  or  clerk  or  officer  holding 
the  seal  thereof,  or  before  some  commissioner  to  take 
the  acknowledgments  of  deeds,  appointed  by  the  gov- 
ernor of  this  State,  or  before  some  notary  public  or 
justice  of  the  peace,  or  before  any  consul  of  the  United 
States,  resident  in  any  foreign  port  or  country.  If 
taken  before  a  justice  of  the  peace,  the  acknowledgment 
must  be  accompanied  by  a  certificate  of  his  official 
character,  under  the  hand  of  the  clerk  of  some  court 
of  record,  to  which  the  seal  of  said  court  must  be 
sffixed.l 

General  Form  of  Acknowledgrment. 

State  of , county,  ss. 

Be  it  remembered,  that  on  this day  of , 

A.  D. ,  before  me,  the  undersigned,  a in 

and   for  Csaid  county,)  came  ,  who  is  (or  are) 

personally  known  to  me  to  be  the  same  person 
(^»- persons^  %vho  executed  the  (above,  foregoing  or 
within)  instrument  of  writing,  and  such  person 

n  See  General  Statutes.  O-Tide  XIII.  ch.  6.  p-G. 
S.  j868,  Ch.  33,  2  9.    q-Id.|K>. 


(^r  persons  each)  duly  acknowledged  the  execution 
of  the  same. 

In  testimony  whereof,  I  have  hereunto  set  my 
hand  (and  affixed  my  official  or  notarial  seal),  this 
day  of ,  A.  D. . 

\.Seal.\  O.li..  (Official title.) 

Acknowledgement— by  Husband  and 
Wife. 

The  State  of , county,  ss. 

Be  it  remembered,  that  on  this day  of , 

A.  D. ,  before  me,  the  undersigned,  a in 

and  for  said  county,  came  A.  B.  and  W.  B.  his 
wife,  who  are  each  personally  known  to  me  to 
be  the  same  persons  who  executed  the  (above, 
foregoing  or  within)  instrument  of  writing,  anc 
such  persons  each  duly  acknowledged  the  ex- 
ecution of  the  same. 


In  testinnonj' whereof,  I  have  hereunto  set  my 
seal),  this  day  of 


hand,  (and 
,  A.  D 

[Stal.] 


affixed  my  


O.  R.  {Official titU.) 


Acknowledgement— by  Attorney. 

State  of , county,  ss. 

Be  it  remembered,  that  on  this day  af , 

A.  D. ,  before  me,  the  undersigned,  a  in 

and  for  said  county,  came  A.  B.,  by  A.  A.,  his 
attorney  in  fact,  who  is  personally  known  to  me 
to  be  the  same  person  who  executed  the  (above, 
foreRoiny;  or  within  I  instrument  of  writing  for  said 
A.  B.,  and  he  duly  acknowledged  the  execution 
of  the  same  (by  virtue  of  a  power  of  attorney,  duly 

executed  by  said  grantor,  bearing  date  the day  of 

,  A.  D. ,  and  recorded  in  the  office  of  the , 

of  county,  in  the  State  of  ,  in  volume , 

page ,  of )  for  and  as  the  act  of  said  A.  B. 

In  testimony  whereof,  I  have  hereunto  set  my 
hand  (and seal)  this day  of ,  A.  D. . 

[Seal.]  O.R.  (Official title.) 

AcknowIedg:ment— to   Conflrm    Deed 
Executed  during  Infancy. 

State  of , county,  ss. 

Be  it  remembered,  that  on  this day  of , 

A.  D. ,  before  me,  the  undersigned,  a in 

and  for  said  county,  came  I.  I.,  who  is  personally 
known  to  me  to  be  the  same  person  who  ex- 
ecuted the  (above,  foregoing  or  wltliini  instrument 
of  writing,  and  such  person  duly  ackno\vledged 
that  said  instrument  was  formerly  executed  by 
him  when  an  infant  under  the  age  of  twenty-one 
years ;  that  he  since  arrived  at  full  age  ;  that  he 
IS  desirous  of  confirming  his  former  execution 
thereof,  and  duly  acknowledged  the  execution  of 
the  same. 

In  testimony  ^vhereof,  I  have  hereunto  set  my 
hand  (and  affixed  my  notarial  or  official  seal),  this 
day  of ,  A.  D. . 

[Seal.]  O.Vi.  (Official  title.) 

Acknowledgement — of  Administrator  or 

Executor. 

State  of , county,  ss. 

Be  it  remembered,  that  on  this day  of , 

A.  D. ,  before  me,  the  undersigned,  a in 

and  for  said  county,  came  A.  E.  (executor  of  the 
last  will  and  testament,  or  administrator  of  the  estate 
and  effects',  of  A.  B.,  deceased,  who  is  personally 
known  to  me  to  be  the  same  person  who  ex- 
ecuted the  within  instrument  of  writing,  and 
such  person  duly  acknowledged  the  execution  of 
the  same. 

In  testimony  whereof,  I  have  hereunto  set  my 

hand  and  affixed  my seal  the  day  and  year 

last  above  written. 

[Seal.  ]  Signature  : ( Official  title.) 

The  within  deed  approved  by  me,  this day 

of ,  A.  D. . 

[Seal.]  P.  J.,  Probate  Judge. 

Acknowledf;;ment — of  Guardian. 

State  of , county,  ss. 

Be  it  remembered,  that  on  this day  of -, 

A.  D. ,  before  me,  the  undersigned,  a  in 

and  for  said  county,  came  G.  N.,  guardian  of  the 
person  and  estate  of  I.  B.,  minor  heir  of  A.  B., 
deceased,  who  is  personally  known  to  me  to  be 
the  same  person  who  executed  the  within  instru' 
ment  of  writing,  and  such  person  duly  acknowl- 
edged the  execution  of  the  same. 

In  testimony  whereof)  I  have  hereunto  set  my 


ACKNOWLEDGMENT. 


«5 


hand  and  affixed  my seal,  the  day  and  year 

last  above  written. 

I  Sea/.]  Sigytaiure: {Official  title.) 

The  within  deed  approved  by  me,  this day 

of ,  A.  D. . 

\Seal.\  P.  J.,  Probate  Judge. 

Acknowledipment — of  Sberiff. 

State  of , county,  88. 

Be  it  remembered,  that  on  this day  of  — —, 

A.  D. ,  before  me,  the  undersigned,  a in 

and  for  the  county  aforesaid,  came  S.  F.,  Sheriff 

of county,  in  the  State  of  Kansas,  who  is 

personally  known  to  me  to  be  the  same  person 
who  executed  the  within  instrument  of  writing, 
and  such  person  duly  acknowledged  the  execu- 
tion of  the  same. 

In  testimony  whereof,  I  have  hereunto  set  my 

hand  and  afhxed  my seal,  the  day  and  year 

last  above  written. 

{Seal.  ]  SigJiature  : ( Official  title.) 

Avknowledgment — Tax  Deed. 

State  of  Kansas, county,  ss. 

I  hereby  certify  that,  before  me  ,  a in 

and  for  said  county,  personally  appeared  the 
abov3-named  C.  C,  clerk  of  said  county,  person- 
ally known  to  me  to  be  the  clerk  of  said  county 
at  the  date  of  the  execution  of  the  above  convey- 
ance, and  to  be  the  identical  person  v^hose  name 
is  affixed  to,  and  who  executed  the  above  con- 
veyance, as  clerk  of  said  county,  and  who  ac- 
knowledged the  execution  of  the  same  to  be  hrs 
voluntary  act  and  deed,  as  clerk  of  said  county, 
for  the  purpose  therein  expressed. 

Witness  my  hand  and  seal  this day  of , 

A.  D. . 

[&fl/.]  {Signature  and  official  title.) 

The  husband  must  join  in  conveyance  of  wife's  prop- 
erty ;  corporations  execute  conveyances  by  the  presi- 
dent, presiding  member,  or  trustee  thereof,  attested  with 
thei'  corporate  seal,  and  acknowledged  the  same  as  cou- 
Teyances  of  private  parties. 

Unacknowledged  deeds  may  be  proved  before  any 
oflScer  authorized  to  take  acknowledgments.  The  wife 
need  not  be  "examined  apart  from  her  husband,"  or 
"  relinquish  her  dower." 

Proof  by  SnbscrI1>9n;?  Witness. 

State  of ,  county  of ,  ss. 

Be  it  remembered,  that  on  this day  of , 

A.  D. ,  before  me  {liere  insert  name  and  title  in 

/«//)duly  commissioned  in  and  for  the  county  and 
State  aforesaid,  personally  appeared  W.  T.,  by 
whose  oath  duly  administered  by  me,  it  is  proved 
to  my  satisfaction  that  A.  B.,the  grantor  named 
in  and  who  executed  the  foregoing  deed  of  con- 
veyance, has  died  since  executing  the  same  {or 
tha^  for  some  other  cause  his  attendance  could 
not  be  procured  in  order  to  make  the  acknowl- 
edgment, or  that,  having  appeared,  he  refused  to 
acknowledge  the  deed,  as  the  case  may  be),  and 
that  said  instrument  of  conveyance  was  so  ex- 
ecuted by  the  said  A.  B.,  whose  name  is  there- 
unto subscribed  by  himself  as  a  party  in  the  pres- 
ence of  the  said  W.  T. 

Witness  my  hand  and  official  seal  the  day  and 
year  first  above  written. 

[Seal.  ]  (Signature  and  title  of  officer?) 

This  form  of  acknowledgment  can  only  be  used  if  the 
grantor  die,  or  his  attendance  cannot  be  procured,  or 
having  appeared  before  the  officer  he  refuses  to  acknowl- 
edge the  deed.  As  no  subscribing  witnesses  are  re- 
quired by  the  law  in  this  State,  the  proof  may  be  made 
by  any  person  knowing  the  facts  to  be  proven,  except  that 
in  cases  where  a  deed  is  witnessed  in  fact  proof  of  the 
handwriting  of  the  grantor  and  of  the  witnesses  cannot 
be  resorted  to  until  it  is  shown  that  the  subscribing  wit- 
nesses are  dead,  or  cannot  be  had  to  prove  the  execu- 
tion of  the  instrument.  Such  proof  may  be  made  before 
any  couit  or  officer  authorized  by  the  law  of  the  State 
to  take  the  acknowledgment  of  the  grantor  in  person. 
They  are  also  empowered  by  law  to  issue  subpoenas  for 
witnesses  to  prove  the  facts  required  by  law  to  be  es- 
tablished, and  to  compel  their  attendance  by  attach- 
ment. 

KEXTITCKY. 

Deeds  ("mortgages,  etc.)  by  persons  other  than 
carried  women  may  be  admitted  to  record  when 
ucecuted  in  this  State,     t.  On  the  acknowledgment 


before  the  proper  clerk  by  the  party  making  the  deed, 
a.  Or  by  the  proof  of  two  subscribing  witnesses,  or  by 
the  proof  of  one  subscribing  witness  who  shall  also 
prove  the  attestation  of  the  other.  3.  Or  by  proof  of 
two  witnesses  that  the  subscribing  witnesses  are  both 
dead,  and  also  like  proof  of  the  signature  of  one  of  them 
and  of  the  grantor.  4.  Or  by  like  proof  that  both  the 
subscribing  witnesses  are  out  of  the  State,  or  that  one 
is  so  absent  and  the  other  is  dead,  and  also  like  proof 
of  the  signature  of  one  of  the  witnesses  and  the  grantor. 
5.  Or  on  the  certificate  of  a  clerk  of  a  county  court  of 
this  State  that  the  same  had  been  acknowledged  or 
proved  before  him  as  required  by  this  section.' 

Deeds  (mortgages,  etc.)  executed  of.t  of  this 
State  and  within  the  United  States  by  persons 
other  than  married  women  may  be  admilled  to  recoixi 
when  the  same  shall  be  certifiecl,  under  his  seal  of  offic^ 
by  the  clerk  of  a  court  or  his  deputy,  or  by  a  notary 
public,  mayor  of  a  city,  or  secretary  of  State,  or  com- 
missioner to  take  the  acknowledgment  ot  deeds,  or  by 
a  judge,  under  the  seal  of  his  court,  to  have  been  ac- 
knowledged or  proved  by  him  in  the  manner  hereby 
required.' 

Deeds  (mortgages,  etc.)  executed  out  of  the 
United  States  by  persons  other  than  married  women 
may  be  admitted  to  record  when  the  same  shall  be  cer- 
tified by  any  foreign  minister  or  consul,  or  secretary  of 
legation  of  the  United  States,  or  by  the  secretary  of 
foreign  affairs,  certified  under  his  seal  of  office,  or  the 
judge  of  a  superior  court  of  the  nation  where  the  deed 
shall  be  executed,  to  have  been  acknowledged  or  proved 
before  him  in  the  manner  prescribed  by  law.' 

Where  a  deed  is  proved  by  persons  other  than  the 
subscribing  witnesses,  the  officer  shall  state  the  nam« 
and  residence  of  such  persons  in  his  certificate." 

The  deed  (mortgage,  etc. )  of  a  married  woman, 
to  be  effectual,  shall  be  acknowledged  before  some  one 
of  the  officers  named  in  the  preceding  sections  and 
lodged  in  the  proper  office  for  record.  Previous  to 
such  acknowledgment  it  shall  be  the  duty  of  the  officer 
to  explain  to  her  the  contents  and  effect  of  the  deed, 
separately  and  apart  from  her  husband,  and  thereupon, 
if  she  freely  and  voluntarily  acknowledge  the  same,  and 
is  willing  i^r  it  to  be  recorded,  the  officer  shall  certify 
the  same  as  follows  :  i.  Where  the  acknowledgment 
is  taken  by  an  officer  of  this  State,  he  shall  simply 
certify  that  it  was  acknowledged  before  him  and  when 
it  was  done,  which  shall  be  evidence  that  she  had  beea 
examined  separately  and  apart  from  her  husband,  and 
the  contents  explained  to  her,  and  that  she  had  volun- 
tarily acknowledged  the  instrument  and  consented  that 
it  should  be  recorded.  2.  \Vhwre  the  acknowledge 
ment  shall  be  taken  by  an  officer  residing  out  of 
this  State,  the  same  shall  be  acknowledged  and  certi- 
fied to  the  effect  following : » 

Acknowledg:in»nt— Married  Woman  ont 
of  this  State. 

Common^wealth  {or  Kingdom)  of ,  county 

{or  town,  or  city,  or  department,  or  parish)  of 
,  set. 

1,0.  R.  {here give  his  official  title),  do  certify  that 
this  instrument  of  writing  from  A.  B.  and  his 
wife  W.  B.  (or  from  W.  B.,  wife  of  A.  B. )  was  this 
day  produced  to  mc  by  the  parties,  and  the  con- 
tents and  effect  of  the  instrument  being  explained 
to  said  W.  B.  by  me,  separately  and  apart  from 
her  husband,  she  thereupon  declared  that  she  did 
'reely  and  voluntarily  execute  and  deliver  the 
same  to  be  her  act  and  deed,  and  consented  that 
the  same  might  be  recorded. 

Given  under  my  hand  and  seal  of  office  thit 
day  of . 

[Seal.]  O.  R. 

If  the  husband  join  in  the  deed  with  his  wife 
and  acknowledge  it  before  the  same  officer, his  acknowl- 
edgment maybe  certified  with  that  of  his  wife  imme- 
diately succeeding  the  word  "parties,"  thus,  "which 
was  acknowledged  by  the  said  A.  6.  to  be  his  act  and 
deed."" 

Proof  by  Subscribing  W^ltnesses. 

State  of ,  county  of ,  ss. 

1,  A.  B.  {here  give  his  title),  do  certify  that  this 
day  came  before  me  W.  T.  and  N.  S.,  the  sub- 
scribing vi/itnesses  to  the  foregoing  deed  'or  other 
instrument  1,  by  A.  B.  to  C.  D.,  which  witnesses 

r-G.  S.  1873,  ch.  24,  I  15.  s-Id.  g  t6;  3  Bush  573. 
t-Id.  i  17.     u-Id.  1 18.    T-  Id.  2  ax.     w-Id.  I  ai. 


ACKNOWLEDGMENT. 


are  personally  known  to  me  to  be  the  same  whose 
names  are  so  written  as  witnesses,  and  being 
•olemnly  sworn  by  me  in  due  manner,  did  sev- 
erally declare  on  their  oaths,  that  the  said  A.  B. 
did  acknowledge  this  instrument  to  be  his  act 
and  deed,  that  the  signature  thereto  was  made 
by  him,  that  they  know  him  to  be  the  same  per- 
son who  is  named  as  the  grantor  therein,  and 
that  they  did  subscribe  said  deed  as  witnesses  by 
his  request. 
Given   under  my  hand  and  seal  of  office  this 

day  of . 

[Sea/.]  (Signature  and  title  of  officer^ 

Corporations  execute  instruments  as  individuals,  and 
ti)e  acknowledgment  and  certificate  are  in  the  same 
ibrm,  except  that  the  corporation  must  sign  and  ac- 
knowledge by  its  principal  officer,  and  affix  the  corpor- 
ate seal. 

liOUISIAXA. 
f  Any  conveyance  or  instrument  may  be  acknowledged 
before  a  commissioner  of  Louisiana,  whose  certificate 
under  seal  will  admit  it  to  record  there.  This  officer 
may  also  certify  to  the  official  character  and  functions 
of  all  public  officers  in  the  State  for  which  he  is  ap- 
pointed. An  acknowledgment  made  in  conformity 
with  the  laws  of  any  other  State  is  valid  in  this 
State.  The  official  character  of  the  person  before 
whom  the  acknowledgment  is  made  must,  however,  be 
properly  verified.^ 

When  they  are  not  executed  or  acknowledged  before 
a  commissioner  of  Louisiana,  they  must  be  authenti- 
cated as  follows  : 

1st.  By  some  judge  of  a  court  having  a  seal,  to  have 
been  taken  before  him,  specifying  the  time  and  place 
where  taken,  or  that  the  officer  before  whom  it  was  sub- 
scribed was  the  proper  officer,  and  that  his  attestation  is 
in  due  form. 

ad.  The  genuineness  of  the  signature  of  such  judge, 
the  existence  of  the  court,  and  the  fact  that  such  judge 
is  a  member  thereof,  must  be  certified  by  a  clerk  of  the 
court,  under  the  seal  thereof. 

3d.  The  official  character  of  the  officer  before  whom 
it  is  subscribed  may  also  be  shown  by  the  certificate  of 
the  governor,  the  secretary  of  state  ;  the  chancellor,  or 
the  keeper  of  the  great  seal  of  the  State,  or, 

4th.  It  may  be  taken  before  any  commissioner  for 
Louisiana,  duly  appointed  and  commissioned  by  the 
governor,  and  the  said  commissioner  may  also  certify 
the  official  capacity  and  acts  of  any  judge,  justice  of  the 
peace,  or  other  public  officer,  holding  a  commission  or 
acting  under  the  authority  of  the  State  or  Territory  in 
which  he  resides,  and  for  which  he  shall  have  been 
appointed. 

Acknowledgment  of  deeds  executed  within  this 
State,  conveying  lands  situated  in  or  out  of  the  State, 
may  be  made  before  a  notary  public,  or  parish  recorder, 
or  his  deputy,  in  the  presence  of  two  witnesses,  or  it 
may  be  drawn  up  and  signed  as  a  private  act,  and  then 
acknowledged  with  the  above  formalities,  or  the  wit- 
nesses may  go  before  the  recorder  and  swear  that  they 
saw  the  party  sign.  If  the  grantor  be  unknown,  the 
officer  taking  the  acknowledgment  should  be  satisfied  of 
his  identity.* 

Conveyances,  etc.,  by  corporations  are  executed  and 
acknowledged  by  the  proper  officer  in  the  same  form  as 
individuals.* 

Wherever  a  married  woman  joins  with  her 
husband  in  any  act  affecting  his  real  estate,  it  is  the 
duty  of  the  officer  before  whom  the  act  is  passed  to 
examine  her,  apart  from  the  presence  of  her  husband, 
touching  the  freedom  of  her  action,  and  to  inform  her 
fully  of  the  nature  of  her  rights  upon  the  property  of 
her  husband,  and  it  must  appear  upon  the  face  of  the 
act  that  this  has  been  done.  In  other  cases,  no  particu- 
lar form  of  words  is  required.' 
Acfcnowle«1jrinent — Hnnband  and  Wife. 

State  of ,  county  of ,  ss. 

Be  it  remembered,  that  on  this  day  came  before 
■ue,  O.  R.  (name  and  title  0/ officer),  within  and  for 
the  county  and  State  aforesaid,  duly  commis- 
sioned and  acting  as  such,  A.  B.  and  W.  B.  his 
\vife,  to  me  known  personally  (or  proved  such  by 
two  credible  witnesses)  to  be  the  persons  whose 
names  are  subscribed  to  the  foregoing  deed,  and 
the  said  A.  B.  acknowledged  that  he  had  executed 
the  said  conveyance  ior  other  instrument)  for  the 
consideration  and  purposes  therein  mentioned 
x-See  General  Statutes. 


and  set  forth,  and  the  said  W.  B.  being  by  me 
first  made  acquainted  with  the  contents  of  said 
instrument,  in  an  examination  apart  from  her 
husband,  and  fully  advised  of  the  nature  of  hei 
rights  upon  his  property,  acknowledged  that  she 
executed  the  same  freely  and  without  compulsion 
or  undue  influence  of  her  said  husband. 

Witness   my  hand   and   seal  of   office  on  this 

day  of .         (Signature  and  title  0/  officer.) 

9IAINE. 

Deeds  in  order  to  be  recorded  must  be  acknowledged, 
if  executed  in  this  State,  before  a  J.  P.,  or  notary 
public;  but  if  executed  out  of  this  State,  before  any 
justice  of  the  peace,  magistrate,  or  notary  public  in  any 
of  the  United  States,  or  by  a  commissioner  appointed 
in  any  other  State  by  the  governor  of  this  State ;  in  any 
foreign  country,  by  any  United  States  minister  or 
consul,  or  notary  public.  A  wife  must  join  in  a  deed 
of  her  husband  to  relinquish  dower,  or  may  do  so  by  v. 
separate  instrument.  If  she  joins  with  her  husband, 
the  acknowledgment  of  either  is  sufficient.  If  she  exe- 
cutes a  separate  deed,  she  must  acknowledge  it.  She 
need  not  be  examined  separate  from  her  husband  in 
order  to  acknowledge  any  deed.  The  husband  must 
join  with  the  wife  in  conveying  her  real  estate,  when  it 
was  deeded  to  her  by  him  or  his  relatives,  or  paid  for 
by  his  means,  but  not  otherwise. T 

The  acknowledgment  of  any  one  grantor  is  sufficient, 
and  the  acknowledgment  of  the  wife  is  the  same  as  that 
of  any  other  person. 

Acknowledg'tnent — General  Forn:. 
Officer  •without  Seal. 

State  of ,  county  of ,  ss. 

On  this day  of ,  A.  D. ,  personally 

appeared  the  above-named  (grantors)  and  ac- 
knowledged the  foregoing  instrument  by  them 
signed,  to  be  their  free  act  and  deed. 

Before  me,  J.  P.,  jfustice  of  the  Peace. 

The  magistrate  need  not  certify  that  he  personally 
knows  the  grantor. 

The  deed  of  a  corporation  is  acknowledged  by  the 
person  authorized  by  the  special  vote  or  the  general  by- 
laws of  the  corporation,  and  in  behalf  of  the  corpora- 
tion, to  sign  it;  for  example  : 

State  of ,  county  of ,  ss. 

On  this day  of ,  A.  D. ,  personally 

appeared  the  above-named  (agent  or  attorney) ,  and 
acknowledged  the  foregoing  instrument  to  be  the 
free  act  and  deed  of  (the  corporation). 

Before  me,  J.  P.,  Justice  of  the  Peace. 

Acknowledgtnent — Cnmviiasioner  of  Deeds,  or  othfr 

person  having  a  Seal,  out  of  this  State. 

State  of ,  county  of ,  ss. 

On  this  day  of ,  A.  D. ,  personally 

appeared  before  me  (give  name  and  title)  the 
above-named  A.  B.  (grantor'),  and  acknowledged 
this  instrument  to  be  his  free  act  and  deed. 

In  testimony  whereof,  I  have  hereunto  set  my 
hand  and  affixed  my  official  seal  the  day  and  year 
aforesaid. 

[Seal.  J  (Signature  and  title  of  officer. ) 

Proof  by  SnhMcrlbins:  Witnesses. 

The  following  proof  must  be  attached  to  the  deed  to 
which  it  relates : 

State  of ,  county  of ,  ss. 

On  the day  of ,  A.  D. ,  at  the  request 

of  C.  D.,  the  grantee  in  the  foregoing  deed,  I 
caused  A.  B.,  the  grantor,  a  resident  of  this 
county,  to  be  legally  summoned  to  appear  before 

me  on  the day  of ,  A.  D. ,  to  hear  the 

testimony  of and  ,  subscribing  witnesses 

to  said  deed,  therein  stating  the  date  of  said  deed, 
the  names  of  parties  thereto,  and  of  the  subscrib- 
ing witnesses ;  and  on  said day  of ,  A.  D. 

,  said  witnesses  appeared  and  testified,  anu 

said  grantor  was  (or  was  not)  present;  and  I  was 
satisfied  by  the  testimony  of  said  witnesses  that 
they  saw  said  deed  duly  executed  by  A.  B.,  the 
grantor. 

In  testimony  whereof,  I  have  hereunto  set  my 
hand  and  affixed  my  official  seal  the  day  and  year 
aforesaid.     \Seal.]      {Signature  and  title  of  officer.^ 

The  summons  must  be  issued  and  served  at  least 
seven  days  before  the  time  of  hearing.' 

V-R-  S.  en.  73,  ^  I,  2, 17;  ch.  61,  §  I ;  ch.  103,  \  6 
,  B-R.  S.  ch.  73,  22  18-23. 


ACKNOWLEDGMENT. 


a? 


MARYIiAND. 

If  acknowledged  \vithin  the  State,  the  acknowl- 
edgment may  be  made  before  a  justice  of  the  peace, 
judge  of  the  orphans'  court  or  of  the  circuit  court  of 
any  county,  or  before  the  judge  of  the  superior  court, 
court  of  common  pleas,  or  circuit  court  for  Baltimore 
city.  If  acknowledged  before  a  justice  of  the  peace 
within  the  State,  but  out  of  the  county  or  city  in  which 
the  real  estate  or  any  part  of  it  lies,  the  official  character 
of  the  justice  must  be  certified  to  by  the  clerk  of  the 
circuit  or  superior  court  under  his  official  seal. 

If  acknowledged  without  this  State,  but  within 
the  United  States,  the  acknowledgment  may  be  made 
before  :  ist,  a  notary  public ;  2d,  a  judge  of  any  court 
of  the  United  Slates  ,  3d,  a  judge  of  any  court  of  any 
State  or  Territory  having  a  seal  ;  4th,  a  commissioner 
of  this  State  to  take  the  acknowledgment  of  deeds. 

If  acknowledged  without  the  United  States, 
the  acknowledgment  may  be  made  before  any  minister, 
consul-general,  consul  or  consular  officer  of  the  United 
States;  any  notary  public,  or  a  commiissioner  of  this 
State  to  take  acknowledgment  of  deeds. » 

Every  officer,  before  whom  any  acknowledgment 
shall  be  made,  shall  give  a  certificate  thereof,  and  in- 
dorse on,  or  annex  to  the  deed,  such  certificate,  and  the 
certificate  shall  be  recorded  with  the  deed. 

To  every  certificate  of  acknowledgment  taken  without 
this  State,  before  a  judge  of  any  court  having  a  seal,  the 
seal  of  such  court  shall  be  affixed. 

The  certificate  of  acknowledgment  shall  contain  the 
name  of  the  persoii  making  the  acknowledgment ;  the 
official  style  of  the  officer  taking  the  acknowledgment ; 
the  time  when  it  was  taken,  and  a  statement  that  the 
grantor  acknowledged  the  deed  to  be  his  act,  or  made 
an  acknowledgment  to  the  like  eflfect. 

No  separate  examination  of  a  married  woman  is 
required.'' 

Acknowledgement— Husband  and  Wife. 

State  of ,  county  of ,  ss. 

I   hereby  certify  that  on  this day  of , 

A.  D. ,  before  me  {here  insert  name  and  title  of 

official)  personally  appeared  A.  B.  and  W.  B.  his 
wife,  and  did  each  severally  acknowledge  the 
aforegoing  deed  (<»roM^r/«i;r«w^«^j  to  be  their  act. 

In  testimony  whereof,  1  have  hereunto  sub- 
scribed my  name  and  affixed  my  official  seal  the 
day  and  year  above  written. 

\Seal.\  (Signature  and  title  0/ officer. ) 

MASSACHUSETTS. 

Acknovtrledgment  may  be  made  before  any  jus- 
tice of  the  peace,  or  notary  public,  in  the  State;  or 
before  any  justice  of  the  peace,  magistrate,  or  notary 
public  or  commissioner,  appointed  for  that  purpose  by 
the  governor  of  this  State,  within  the  United  States,  or 
in  any  foreign  country ;  or  before  a  minister  or  consul 
of  the  United  States  in  any  foreign  country. 

Acknowledgments  taken  out  of  the  State  by  any 
magistrate  other  than  a  commissioner  for  Massachu- 
setts, or  a  minister  of  the  United  States,  should  have 
appended  a  certificate  of  the  magistrate's  appointment 
and  authority  made  by  the  secretary  of  state  or  clerk  of 
court  of  record. 

The  wife  is  not  required  to  be  examined  separate  and 
apart  from  her  husband. 

The  certificate  of  acknowledgment  need  not  state  that 
the  wife  relinquishes  her  dower. 

Letters  of  attorney  made  by  husband  and  wife  for  the 
purpose  of  authorizing  conveyances  of  her  real  estate, 
and  not  merely  for  the  release  of  dower  by  the  wife, 
must  be  acknowledged  by  both. 

Acknowledg^ment^General  Form. 

Commonwealth  of  Massachusetts,  county  of 
tlulTolk,  ss. 

Boston,  March  ist,  A.  D. .    Then  personally 

appeared  the  above-named  A.  B.,  and  acknowl- 
edged the  foregoing  instrument  to  be  his  free  act 
and  deed.    Before  me, 

J,  P.,  Justice  of  the  Peace. 

Acknowledgments  by  husband  and  wife  are  made  in 
the  same  form,  only  saying  "  the  above-named  A.  B. 
and  W.  B.,  and  severally  acknowledged  the  fore- 
going instrument  to  be  their  free  act  and  deed." 

Acknowledjfment— Husband  and  Wife. 

State  of ,  county  of ,  ss. 

Be  it  remembered,  that  on  this day  of , 

a-See  General  Statutes.     b-Art.  45.     c-Comp.  Laws, 


A.  D. ,  before  me,  the  undersigned  (name  and 

title  0/ officer),  personally  appeared  A.  B.  and  W. 
B.,  his  wife,  who  executed  the  foregoing  con- 
veyance, and  severalty  acknowledged  the  same 
to  me  to  be  their  free  act  and  deed. 

In  testimony  whereof,  I  have  hereunto  set  my 
hand  and  affixed  my  official  seal  the  day  and  year 
aforesaid. 

[Seal.  ]  (JSigMature  and  title  0/  officer. ) 

Proof  by  Subscribing  Witness. 

Deeds  made  by  non-residents  of  Massachusetts  should 
be  acknowledged,  as  the  same  cannot  be  proved  before 
the  commissioners  by  the  subscribing  witness. 

If  the  grantor  die  or  leave  the  State  before  acknowl- 
edging his  deed,  it  may  be  proved  by  a  subscribing  wit- 
ness before  any  court  of  probate  or  record.  If  the  sub- 
scribing witnesses  are  dead,  their  handwriting  or  that 
of  the  grantor  may  be  proved  by  competent  evidence. 

MICHIOAN. 

Conveyances,  etc.,  may  be  acknowledged  within 
this  State  before  any  judge  or  commissioner  of  a  court 
of  record,  or  before  any  notary  public  or  justice  of  the 
peace,  and  the  officer  taking  such  acknowledgment  shall 
indorse  thereon  a  certificate  of  the  acknowledgment 
thereof,  and  the  true  date  of  making  the  same  imder 
his  hand.* 

Sec.  1.  .  .  .  The  acknowledgment  of  any  married 
woman  to  a  deed  of  conveyance  or  other  instrument 
affecting  real  property,  may  he  taken  in  the  same 
manner  as  If  she  were  sole  (single,  unmarried).  Act  of 
April  20,  1877. 

Sec.  58.  Any  acknowledgment  of  any  married  woman 
to  a  deed  of  conveyance  or  other  instrument  affecting 
real  property  taken  since  the  4th  day  of  August,  in  the 
year  of  our  Lord  1S75,  in  the  same  mam  eras  if  such 
married  woman  had  been  sole,  is  val.d  and  effectual, 
and  shall  be  so  held  in  all  courts  and  places.  Act  of 
April  20,  1877. 

No  conveyance  of  land,  or  instrument  intended  to 
operate  as  such  conveyance,  made  in  good  faith  and 
upon  a  valuable  consideration,  shall  be  wholly  void  by 
reason  of  any  defect  -n  any  statutory  requisite  in  the 
sealing,  signing,  attestation,  acknowledgment,  or  certifi- 
cate of  acknowledgment  thereof,  etc.d 

If  any  such  conveyance  shall  be  executed  in  any 
other  State,  Territory,  or  district,  such  deed  may  lie 
executed  according  to  the  laws  of  such  State,  Territory, 
or  district,  and  the  execution  thereof  may  be  acknowl- 
edged before  any  judge  of  a  court  of  record,  notary 
public,  justice  of  the  peace,  master  in  chancery,  or  other 
officer  authorized  by  the  laws  of  such  State,  Territory, 
or  district,  to  take  the  acknowledgment  of  deeds  therein, 
or  before  any  commissioner  appointed  by  the  governor 
of  this  State  for  such  purpose." 

In  the  cases  provided  for  in  the  last  preceding  sec- 
tion, unless  the  acknowledgment  be  taken  before  a  com- 
missioner appointed  by  the  governor  of  this  State  for 
that  purpose,  such  deed  shall  have  attached  thereto  a 
certificate  of  the  clerk  or  other  proper  certifying  officer 
of  a  court  of  record  of  the  county  o.r  district  within 
which  such  acknowledgment  was  taken,  under  the  seal 
of  his  office  in  the  usual  form,  that  the  person  whose 
name  is  subscribed  to  the  certificate  of  acknowledgment 
was  at  the  date  thereof  such  officer  as  he  is  therein  rep- 
resented to  be ;  that  he  believes  the  signature  of  such 
person  subscribed  thereto  to  be  genuine,  and  that  the 
deed  is  executed  and  acknowledged  according  to  the 
laws  of  such  State,  Territory,  or  district.' 

If  executed  in  a  foreign  counti^,  it  may  be  accord- 
ing to  the  laws  of  such  country,  and  may  be  acknowl- 
edged before  any  notary  public  therein,  or  minister 
plenipotentiary,  minister  extraordinary,  minister  resi.. 
dent,  chargi,  d'affaires,  commissioner  or  consul  of  the 
United  States  appointed  to  reside  therein,  which  ac- 
knowledgment shall  be  certified  thereon  by  the  officer 
taking  it  under  his  hand,  and  if  before  a  notary  public, 
his  seal  of  office  should  be  affixed  to  the  certificate. 

There  is  no  statutory  provision  for  the  proof  of  deed* 
by  subscribing  witnesses  out  of  this  State. 

Acknowledgement— Husband  and  Wlfcb 

State  of ,  county  of ,  ss. 

On  this day  of ,  A.  D. ,  before  mo 

(name  and  title  0/  officer)  personally  came  A.  B. 

1343.  d-Comp.  Laws,  1351.  e-Comp.  Laws,  134a 
I-Comp.  Laws,  1343. 


sS 


ACKNOWLEDGMENT. 


mnd  W.  B.  his  wife,  known  to  me  to  be  the  persons  ' 
who  executed  the  foregoing  instrument,  and  ac- 
knowledged the  same  to  be  their  free  act  and 
deed. 

In  testimony  w^hereof,  I  have  hereunto  set  my 
hand  and  seal  the  day  and  year  above  men- 
tioned. (5>a/.J  iSiznaturt  and  title  of  officer.) 
MINNESOTA. 
Acknowledgments  may  be  taken  within  the 
State  by  judges  of  the  Supreme,  District  and  Probate 
Courts,  and  Clerks  of  the  same ;  liy  Clerks  of  the  United 
States  District  Court  for  Minnesota,  (Laws  1877,  Ch.  93, 
p.  186);  by  Notaries  Public,  Justices  of  the  Peace, 
Register  of  Deeds,  County  Commissioners  and  Auditors, 
Town  Clerks.  City  Clerks,  Village  Recorders  (General 
Laws,  1878,  Ch.  49,  p.  193)  ;  seals  to  be  affixed  where- 
ever  seals  are  used  (G.  S.  1878,  Ch.  72 ;  2  Bissell,  Ch.  40, 
Title  2,  Sees.  8,  10). 

Acknowledgments  outside  of  State  but  within 
United  States  may  be  taken  by  Chief  and  Associate 
Justices  of  the  Supreme  Court  of  the  United  States, 
Judges  of  the  Supreme,  Superior,  Circuit  or  other 
Court  of  Record  of  any  State,  District  or  Territory,  of 
the  United  States  ;  Clerks  of  above-mentioned  Courts  ; 
Notaries  Public,  Justices  of  Peace,  Commissioners 
appointed  by  the  Governor  of  this  State;  none  of 
above  acknowledgments  to  >i?  Taiid  uijless  taken  by 
the  officer  at  the  place  or  wilKlii  the  jurisdiction  for 
which  he  has  been  regularly  appointed  or  elected  to 
such  office,  or  to  which  the  jurisdiction  of  the  Court 
for  which  he  acts  extends.  (G.  S.  1878,  Ch.  40,  amend- 
ing Law  of  1868,  Ch.  61,  p.  J  >o.)  Officers  taking 
acknowledgment  of  deeds  under  this  section  shall  ap- 
pend to  such  deed  a  certificate  of  such  acknowledgment, 
with  its  true  date,  and  shall  date  and  sign  such  certifi- 
cate. (Id.  Id.  Sec.  8.)  And  unless  said  acknowledg- 
ments are  taken  before  a  Corcmissioner  appointed  by 
the  Governor  of  this  State  for  the  purpose,  or  before  a 
Notary  Public,  or  Clerk  of  a  Court,  or  some  oiher 
officer  having  a  seal,  there  shall  also  be  attached,  ap- 
pended or  indorsed  on  or  to  said  deed  a  certificate  of 
the  Clerk  or  otlier  proper  officer  of  a  Court  of  Record 
of  the  District  or  place  where  "such  acknowledgment 
was  taken,  under  seal,  to  the  effect  that  the  officer 
taking  the  acknowledgment  was  qualified  to  do  so,  that 
he  is  acquainted  with  his  handwriting  and  believes  his 
signature  to  be  genuine  (Id.  Id.  S-C.  9):  Provided 
however  that  the  Certificate  of  any  section  of  State  or 
Territory  attached  to  or  indorsed  on  said  deed,  to  the 
effect  that  any  Justice  of  the  Peace  taking  the  ac- 
knowledgment, had  been  duly  appointed  by  the  Gov- 
ernor of  said  State  or  Territory,  shall  be  sufficient 
(Amended  Laws  1879,  Ch.  65,  Sec.  i). 

If  such  deed  is  executed  outside  of  the  United 
States  it  must  be  executed  according  to  the  laws  of 
the  foreign  country  and  acknowledged  before  a  Notary 
Public  therein,  Minister  Plenipotentiary  or  Resident, 
Charge  de  Affaires,  Commissioner,  or  Consul  of  the 
United  States  appointed  for  and  resident  therein,  the 
same  to  be  certified  under  their  hand  ;  but  if  taken 
before  a  Notary  Public  his  seal  of  office  must  be  affixed. 
(G.  S.,  Ch.  40,  p.  328.)  Provided  that  if  such  deed  be 
duly  signed  and  sealed  in  presence  of  two  witnesses, 
ancl  acknowledged  as  aforesaid,  it  shall  be  valid  whether 
executed  in  accordance  with  the  laws  of  said  country 
or  not.  (Id.  as  amended  Laws  of  1868,  Ch.  64,  Sec.  i, 
p.   104.) 

Formn  of  Acknowledgrment. 
The  laws  of  1883,  chap.  99,  prescribe  that  the 
following  forms  of  acknowledgment  shall  be 
sufficient  to  satisfy  the  requirements  relating  to 
the  execution  and  recording  of  conveyances  and 
other  \vritten  instruments  affecting  real  estate  : — 
1.  Begin  all  acknowledgments  with  a  caption 
showing  the  State  and  place  ;   thus : 

State  of  Minnesota,  County  of ,  ss. 

a.  All  acknowledgments  must  bear  the  sig- 
nature and  title  of  the  officer  taking  them. 

8.  In  case  of  natural  persons  acting  in  their 
»wn  right,  the  acknowledgment  should  read  :— 

On  this day  of 189     ,  before  me  personally 

appeared  A.  B.  (or  A.  B.  and  C.  D.)  to  me  known 
to  be  the  person  for  persons)  described  in,  and 
who  executed  the  foregoing  instrument,  and 
acknowledged  that  he  (or  they)  executed  the 
same  as  his  (or  their)  free  act  and  deed. 

4.  In  the  case  of  natural  persons  acting  as 
attorney,  it  should  read : — 


On  this day  of ,  189  ,  before  me  per- 
sonally appeared  A.  B.  to  me  known  to  be  the 
person  who  executed  the  foregoing  instrument 
in  behalf  of  C.  O.  and  acknowledged  that  he  ex- 
ecuted the  same,  as  the  free  act  and  deed  of 
of  said  C.  D. 

5.  In  the  case  of  corporations  or  joint  stock 
associations,  it  should  read  : — 

On  this day  of 189    ,  before    me   ap- 

E eared  A.  B.  to  me  personally  known,  who, 
eing  by  me  duly  sworn  (or  ainrmed),  did  say 
that  he  is  the  president  (or  other  officer  or  agent 
of  the  corporation  or  association),  of  (describing 
the  corporation  or  association),  and  that  the  seal 
affixed  to  said  instrument  is'the  corporate  seal  of 
said  corporation  (or  association),  and  that  said 
instrument  was  signed  and  sealed  in  behalf  of 
said  corporation  (or  association),  by  authority  0/ 
its  board  of  directors  (or  trustees),  and  said  A.  B. 
acknowledged  said  instrument  to  be  the  free  act 
and  deed  of  said  corporation  (or  association). 

6.  In  case  of  a  married  woman  joining  her 
husband.  Sec.  3,  of  Laws  of  1883,  reads: — 

When  a  married  woman  unites  with  her  hus- 
band in  the  execution  of  any  such  instrument 
and  acknowledges  the  same  in  one  of  the  forma 
above  sanctioned,  she  shall  be  described  in  the 
acknowledgment  as  his  wife,  but  in  all  other  re- 
spects her  acknowledgment  shall  be  taken  ari 
certified  as  if  she  were  sole  ;  and  no  scparh^e 
examination  of  a  married  woman  in  r'-spect  to 
the  execution  of  any  release  or  dower  or  other 
instrument  affecting  real  rstate  shall  be  required. 

Deeds  require  two  witnesses. 

ms.sissippi. 

In  this  State,  acknowledgments  must  be  made  before 
any  judge  of  a  United  States  court,  any  judge  of  the 
State,  .<iupreme,  or  circuit  court,  any  chancellor,  any 
clerk  of  a  court  of  record,  who  shall  certify  such  ac- 
knowledgment, or  proof,  under  the  seal  of  his  office ;  or 
any  justice  of  the  peace,  mayor  of  any  city,  town,  or 
village,  or  member  of  the  board  of  supervisors,  whether 
the  lands  conveyed  be  within  his  county  or  not.* 

Out  of  this  State,  if  the  party  executing  a  convey- 
ance of  lands  in  this  State,  is  a  non  resident,  acknowl- 
edgment  or  proof  may  be  made  and  certified  to  by  any 
of  the  judges  of  the  supreme  court  of  the  United  States, 
or  a  district  judge  of  the  United  States,  or  justice  ol 
the  supreme  court  or  superior  court  of  any  State  or 
Territory  of  the  Union  ;  or  any  justice  of  the  peace, 
whose  official  character  shall  be  certified  to  under  the 
seal  of  some  court  of  record  in  his  county;  or  before 
any  commissioner  residing  in  such  State  or  Territory, 
who  may  be  appointed  by  the  governor  of  this  State  to 
take  acknowledgments  and  proof  of  deeds  and  other 
conveyances,  or  notary  public  or  deik  of  a  court  ol 
record  having  a  seal  of  oiBce.'' 

A  married  woman,  party  to  the  conveyance,  need 
not  be  examined  apart  from  her  husband. 

The  certificate  of  acknowledgment  of  a  deed  need 
not  state  that  the  wife  relinquishes  her  dower,  dower 
and  courtesy  having  been  abolished  in  the  State. 

In  order  to  admit  a  deed  to  record,  one  of  the  wit- 
nesses thereto  must  make  affidavit  in  the  following 
form  : — "  C.  D.,  one  of  the  subscribing  witnesses  to  the 
foregoing  instrument,  who  being  first  duly  sworn,  de- 
poses and  says  he  saw  the  within  A.  B.,  whose  name  is 
subscribed  thereto,  sign  and  deliver  the  same  to  E.  F. 
(or  that  he  heard  the  said  A.  B.  acknowledge  that  he 
signed  and  delivered  the  same  to  said  E.  F.),  and  that 
the  said  C.  D.,  affiant,  subscribed  his  name  as  a  wit- 
ness thereto  in  the  presence  of  the  said  A.  B."" 

In  all  cases  the  officer  taking  the  acknowledgment 
must  add  his  signature  and  title,  and  affix  his  seal  if  he 
have  one. 

Acknowledsrment— Hnsband  nnd  Wife. 

State  of ,  county  of ,  ss. 

Personally  appeared  before  me  (here  insert  name 
and  title  of  officer),  the  within-named  A.  B.  and 
W.  B.  his  wife,  who  acknowledge  that  they 
signed,  and  delivered  the  foregoing  deed  (or  other 
conveyance),  as  their  voluntary  act  and  deed,  on 
the  day  and  year  therein  mentioned. 

Given    under    my    hand    this day  of  1 

A.  D. (Signature  and  title  of  officer.) 

Or  the  acknowledgments  may  be  certified  separately. 

a-Code  of  1892,  \  2464.  b-Id.  \  2466.  C-Id.  \  2465. 


ACKNOWLEDGMENl-. 


i9 


Proof  by  j^nbHcrlbinic  ^Vltness 

May  be  made  when  the  grantor  is  unable  or  unwill- 
ing to  acknowledge  any  instrument  affeciing  real  estate 
executed  by  him. 

miKsovRf. 

Conveyances,  etc.,  must  be  acknowledged,  if  exe- 
cuted in  this  State,  before  a  court  having  a  seal,  or 
tome  judge,  justice,  or  clerk  thereof,  notary  public,  or 
justice  of  the  peace  of  the  county  where  the  estate  lies  ; 
if  executed  out  of  this  State,  then  before  a  commis- 
sioner of  this  State,  notary  public,  court  of  record  of 
the  United  States  or  of  any  State  or  Territory  having  a 
seal,  or  clerk  of  any  such  court;  and  if  executed  in  a 
foreign  country,  then  before  any  court  of  any  state, 
kingdom,  or  empire  having  a  seal,  or  the  mayor  or  chief 
officer  of  any  city  or  town  having  an  official  seal,  or  be- 
fore a  minister  or  consul  of  the  United  States,  or  a 
rotary  public  having  a  seal.™ 

The  acknowledgment  of  the  officers  executing  for  the 
corporation  should  be  certified,  according  to  the  form 
first  above  given,  modifying  it  to  describe  the  office  and 
that  the  act  is  the  act  of  the  corporation  by  the  officer 
or  officers  executing.  The  form  of  certificate  of  ac- 
knowledgment by  a  trustee  or  person  not  acting  in  his 
own  right,  should  be  as  in  the  form  first  above  given, 
modified  to  show  the  character  of  the  grantor  and  that 
the  act  is  done  in  that  character. 

Aekiio-KTledKinent— General  Form. 

State  of ,  county  of ,  ss. 

On  this  day  of  xSg — ,  before  me 

personally  appeared and his  >wife,  to 

me  known  to  be  the  person described  in  and 

Yfho    executed  the    foregoing    instrument,   and 

acknowledged  that  executed    the  same  as 

free  act  and  deed. 

In  testimony  whereof,  I  have  hereunto  set  my 
hand  and  affixed  my  official  seal  at  my  office  in 
,  the  day  and  year  first  above  written. 

My  term  expires 189—. 

If  person  making  acknowledgment  is  unmarried,  omit 
"and his  wife,"  and  add,  and  the  said fur- 
ther declare to  be  single  and  unmarried. 

Acknowledgment— By  Attorney. 

On  this day  of ,  18 — ,  before  me  person- 
ally appeared  A.  B.,  to  me  kno'wn  to  be  the  per- 
son who  executed  the  foregoing  instrument  in 
behalf  of  C.  D.,  and  ackno^vledged  that  he  exe- 
cuted the  same  as  the  free  act  and  deed  of  said 
C.  D. 

Aelsnofrledgrment— Corporations. 

On  this day  of i8 — ,  before  me  ap- 
peared A.  B.  to  me  personally  known,  who,  being 
by  me  duly  s^vorn  (or  affirmed),  did  say  that  he  is 
the  president  (or  other  officer  or  agent  of  the  corpora- 
tion or  association)  of  (describing  the  corporation  or 
association),  and  that  the  seal  affixed  to  said  instru- 
ment is  the  corporate  seal  of  said  corporation  (or 
association),  and  that  said  instrument  was  signed 
and  sealed  in  behalf  of  said  corporation  (or  asso- 
ciation), by  authority  of  its  board  of  directors  (or 
trustees),  and  said  A.  B.  acknowledged  said  in- 
strument to  be  the  free  act  and  deed  of  said  cor- 
poration (or  association). 

(In  case  the  corporation  or  association  has  no  corpo- 
rate seal,  omit  the  words  "the  seal  affixed  to  said  in- 
strument is  the  corporate  seal  of  said  corporation 
(or  association),  and  that,"  and  add  at  the  end  of  the 
affidavit  clause  the  words,  "and  that  said  corpora- 
tion (or  association)  has  no  corporate  seal.") 

',In  alt  cases  add  signature  and  title  of  the  officer  tak- 
ing the  acknowledgment.) 

Married  Women. 

When  a  married  woman  unites  with  her  hu.sband  in 
the  execution  of  any  such  instrument,  and  acknowl- 
edges the  same  in  one  of  the  forms  above  sanctioned, 
she  shall  be  described  in  the  acknowledgment  as  his 
wife,  but  in  all  other  respects  her  acknowledgment 
shall  be  taken  and  certified  as  if  she  were  sole  ;  and  no 
separate  examination  of  a  married  woman  in  respect  to 
the  execution  of  any  release  or  dower,  or  other  instru- 
ment affecting  real  estate,  shall  be  required. 

m-Gen.  Stat.  444,  445.  n-Gen.  Stat.  444-446  o-See 
General  Stotutes,  pp.  396,  r/.  **f.,  443,  2  50,  p.  617,  J  i. 


Proof  by  Subscrlblny  Wftnena. 

If  all  thesubscribine  witnesses  are  dead  or  cannot  be 
had,  then  proof  can  be  made  by  at  least  two  credible 
witnesses  proving  the  handwriting  of  the  grantor,  and 
two  or  more  credible  witnesses  proving  the  handwriting 
of  at  least  one  of  the  subscribing  witnesses. n 
aiANTANA. 

Every  conveyance  in  writing  of  or  affecting  real 
property  must  oe  acknowledged  or  proved  and  certified 
as  hereafter  stated.  The  proof  or  acknowledgment 
may  be  made,  within  the  Territory,  before  the  sec-- 
tary  of  the  Territory,  some  judge  or  clerk  of  a  court 
having  a  seal,  a  notary  public,  or  justice  of  the  peace, 
the  county  clerk  and  ex  officio  county  recorder ;  writh- 
out  the  Territory,  but  within  the  United  States,  by 
some  judge  or  clerk  of  any  court  of  the  United  States, 
or  any  State  or  Territory  having  a  seal,  a  notary  public, 
a  justice  of  the  peace,  or  commi.<sioner  appointed  by 
the  governor  of  the  Territory  for  that  purpose.  If 
taken  by  a  justice  of  the  peace,  his  official  character 
must  be  certified  to  under  the  seal  of  the  court,  tribunal, 
or  officer  within  and  for  the  county  in  which  such  justice 
of  the  peace  may  be  acting,  which  has  cognizance  of  his 
official  character.' 

Acknowledgrment— General  Form. 

State  (or  Territory)  of ,  county  of ,  sa. 

On  this day  of ,  A.  D. ,  personally 

appeared  before  me  {name  and  title  0/  officer),  in 
and  for  said  county,  A.  B.,  personally  known  to 
me  (or  satisfactorily  proved  to  me  by  the  oath  of  W.  T  , 
a  competent  and  credible  witness  for  that  purpose  by  me 
duly  sworn)  to  be  the  person  described  in  and  who 
executed  the  foregoing  instrument,  and  who  ac- 
knowledged to  me  that  he  executed  the  same 
freely  and  voluntarily  and  for  the  uses  and  pur- 
poses therein  mentioned. 

Witness  my  hand  and  seal. 

{Seal.  ]  {Signature  and  title  of  officer.) 

Acknowleds'ment— married  Woman. 

State  {or  Territory)  of ,  county  of ,  ss. 

On  this  day  of ,  A.  D. ,  personally 

appeared  before  me  {name  and  quality  of  officer), 
in  and  for  said  county,  W.  B.,  >vife  of^A.  B.,  per- 
sonally known  to  me  (or  satisfactorily  proved  to  me 
by  the  oath  of,  etc.)  to  be  the  person  whose  name 
is  subscribed  to  the  foregoing  instrument,  and 
>vho,  after  being  by  me  first  made  acquainted 
with  the  contents  of  said  instrument,  acknowl- 
edged to  me  on  examination,  separate,  apart 
from,  and  \vithout  the  hearing  of  her  said  husband, 
that  she  executed  the  same  freely  and  voluntarily, 
writhout  fear  or  compulsion,  or  undue  influence  of 
her  said  husband,  and  that  she  does  not  wish  to 
retract  the  execution  of  the  same. 

'Witness  my  hand  and  seal. 

\Seal.\  {Signature  and  title  of  officer.) 

If  deed  be  executed  by  a  corporation,  the  certificate 
should  state  that  the  officer  executing  was  personally 
known  as  such,  and  that  the  instrument  was  executed 
fully,  etc.,  as  the  act  and  deed  of  the  corporation.* 

NEBRASKA. 

Acknowledgments  or  proofs  of  conveyances  may  be 
taken  in  the  State  by  judges,  clerks  of  courts,  justices 
of  the  peace,  and  notaries  public.  The  certificate  of 
acknowledgment  must  be  indorsed  on  the  instrument, 
and  show  that  the  grantor  acknowledged  the  same  to  be 
his  voluntary  act  and  deed,  and  that  the  officer  taking 
the  acknowledgment  knew  him  to  be  the  same  person 
whose  name  was  signed  thereto,  or  had  satisfactory 
evidence  of  that  fact.  If  the  grantor  die  before  ac- 
knowledgment, or  if  for  any  cause  his  attendance  cannot 
be  procured  to  make  the  acknowledgment,  or  if  he  re- 
fuses to  make  it,  proof  of  execution  and  delivery  may 
be  made  by  any  competent  subscribing  witness  thereto, 
before  any  officer  authorized  to  take  the  acknowledg- 
ments ;  or  if  all  the  subscribing  witnesses  are  out  of  the 
State,  proof  may  be  made  by  proving  the  handwriting 
of  the  grantor  and  of  any  subscribing  witness.  The 
deed,  with  the  certificate  of  acknowledgment  or  proof, 
must  be  recorded  in  the  county  where  the  lands  lie. 
Acknowledgments  or  proofs  taken  out  of  the  State, 
and  in  the  United  States,  must  be  taken  in  con- 
formity to  the  law  of  the  State  or  Territory  in  which 
taken,  or  by  a  commissioner  of  this  State  for  that  pur- 
pose. All  such  acknowledgments  or  proofs  last  men- 
tioned taken  by  an  officer  having  no  seal  of  office,  must 
be  accompanied  with  a  certificate  of  a  clerk  of  a  court 


30 


ACKNOWLEDGMENT. 


•f  record,  or  other  proper  officer  of  the  district,  under 
official  seal,  that  tnc  officer  taking  the  same  was  the 
same  as  represented  therein  at  the  date  thereof,  that  the 
signature  is  genuine,  and  the  acknowledgment  in  con- 
formity to  law.  There  shall  be  affixed  to  certificate  of 
acknowledgment  made  by  commissioner  as  aforesaid, 
an  official  certificate  of  the  secretary  of  Nebraska, 
stating  that  the  commissioner  was  at  the  time  duly 
authorized  to  take  the  same,  and  that  the  secretary  is 
acquainted  with  his  handwriting,  has  compared  it,  and 
his  seal,  and  that  he  believes  the  signature  and  seal  of 
the  commissioner  to  be  genuine.  Deeds  executed  in 
foreign  countries  may  be  made  according  to  the  laws 
thereof,  and  acknowlecfged  by  any  notary  public,  or  by 
any  ministerial  officer,  commercial  agent,  or  consul  of 
the  United  States  appointed  to  reside  therein.  Deeds 
should  state  relinquishment  of  right  of  dower,  if  any, 
but  the  certificate  of  acknowledgment  need  not.^ 

No  separate  examination  is  required  in  taking  wife's 
acknowledgment.  Her  deed  may  be  acknowledged  or 
proved  same  as  a  married  man's.  When  proof  of  execu- 
tion in  lieu  of  acknowledgment  is  permitted,  the  same 
may  be  made  by  a  subscribing  witness  thereto,  who 
must  state  upon  oath  his  own  place  of  residence,  that  he 
set  his  name  to  the  deed  as  a  witness,  that  he  knew  the 
grantor  in  such  deed,  and  saw  him  sign  or  heard  him 
acknowledge  that  he  had  signed  the  same.  And  such 
proof  shall  not  be  taken  unless  the  officer  is  personally 
acquainted  with  such  witness,  or  has  satisfactory  evi- 
dence that  he  is  the  same  person  who  was  a  subscribing 
witness  to  such  deed.' 

"  It  shall  be  lawful  for  any  corporation  to  convey 
lands  by  deed,  sealed  by  the  common  seal  of  said  cor- 
poration, and  signed  by  the  president  or  presiding  officer 
of  the  board  of  directors  of  the  corporation ;  and  such 
deed,  when  acknowledged  by  such  officer  to  be  the  act 
of  the  corporation,  or  proved  in  the  usual  form  pre- 
scribed for  other  conveyances  for  l;(nds,  shall  be  recorded 
in  the  clerk's  office  of  the  county  in  which  the  lands  lie, 
in  like  manner  as  other  deeds." "" 

Acknowledgrment— Husband  and  Wife. 

State  of ,  county  of ,  ss. 

On  this  day  of ,  A.  D. ,  before  me 

(state  name  and  title  of  o_jicer),  duly  appointed, 
sommissioned  {or  duly  elected),  and  qualified  for 
and  residing  in  said  county,  personally  appeared 
K.  B.  and  W.  B.  his  wife,  to  me  personally 
icnowrn(orby  theoathsof[o«^orwor^J  witnesses  whose 
aames  are  hereto  subscribed,  satisfactorily  proved),  to 
be  the  identical  persons  described  in,  and  whose 
names  are  affixed  to  the  foregoing  conveyance  as 
grantors,  and  they  severally  acknowledged  the 
•ame  to  be  their  voluntary  act  and  deed. 

In  testimony  whereof,  I  have  hereunto  set  my 

hand  and  official  seal  at ,  in  said  county,  the 

day  and  year  last  above  written. 

[Seal.\  (Signature  and  title  of  officer.) 

Proof  by  Snbscriblng-  Witness. 

State  of ,  county  of ,  »s. 

On  this  day  of ,  A.  D. ,  it  satisfac- 
torily appearing  to  me  that  the  attendance  of  the 
said  A.  B.,  the  grantor  in  the  foregoing  convey- 
ance, cannot  be  procured  in  order  to  make  ac- 
knowledgment thereof  {yr  that  the  said  A.  B.,  the 
grantor,  etc.,  is  dead,  or,  having  executed  and  delivered 
the  foregoing  conveyance  refuses  to  make  acknowledg- 
ment thereof)  before  me  (here  insert  name  and  title 
of  officer),  duly  appointed,  commissioned,  and 
qualified  for  and  residing  in  said  county,  person- 
ally appeared  W.  T.,  to  me  personally  known  (or 
by  the  oaths  of  \one  or  more\  witness,  whose  name  is 
hereto  subscribed,  to  me  satisfactorily  proved)  to  be  the 
identical  person  whose  name  is  subscribed  to  the 
foregoing  conveyance  as  attesting  witness,  who 
being  first  duly  sworn,  on  his  oath  says  that  his 

place  of  residence  is  at ,  in  the  county  of , 

and  State  of  ,  that  he  set  his  name  to  the 

foregoing  conveyance  as  a  witness  ;  that  he  knew 
A.  B.,  the  grantor  in  said  conveyance,  and  that 
he  kne^v  A.  B.  to  be  the  identical  person  described 
therein,  and  \who  executed  the  same,  and  saw 
him  sign  (or  heard  him  acknowledge  that  he  had 
signed)  the  same. 

In  testimony  whereof,  I  have  hereunto  set  my 

k-Rev.  Stat.  ch.  ^3.  1-Rev.  Sut.  p.  281,  \  7.  m-Rev. 
Stat.  p.  334,  \  137.     n-See  G«neral  Statutes. 


hand  and  seal  at ,  in  said  county,  the  day  and 

year  last  above  written. 

[Seal.  J  (Signature  and  title  o/qfflctr.) 

NEVADA. 

Every  conveyance  in  writing  affecting  real  estate 
within  this  State  shall  be  acknowledged  or  proved,  and 
certified  as  follows  :  If  within  this  State,  before  some 
judge  or  clerk  of  a  court  having  a  seal,  or  some  notary 
public  or  justice  of  the  peace.  If  without  the  State, 
but  within  the  United  States,  before  a  judge  or 
clerk  of  a  court  having  a  .seal,  or  some  notary  public  or 
jtistice  of  the  peace,  or  by  any  commissioner  appointed 
by  the  governor  of  this  State  for  that  purpose ;  whea 
taken  before  a  justice  of  the  peace,  it  shall  be  acconi> 
panied  by  the  certificate  of  the  clerk  of  a  court  of  recortl 
of  the  county  having  a  seal,  showing  the  official  char* 
acter  of  the  justice,  and  the  genuineness  of  his  signature. 
If  taken  without  the  United  States,  it  shall  be  before 
some  judge,  or  clerk  of  a  court  of  a  State,  kingdom,  or 
empire  having  a  seal,  or  a  notary  public  therem,  or  by 
a  minister,  commissioner,  or  consul  of  the  United  States 
appointed  to  reside  therein." 

Proof  of  the  execution  of  a  conveyance  shall  be  made, 
first,  by  the  testimony  of  a  subscribing  witness;  second, 
when  all  the  subscribing  witnesses  are  dead,  or  cannot 
be  had,  by  evidence  of  the  handwriting  of  the  party, 
and  of  at  least  one  subscribing  witness,  given  by  a 
credible  witness  to  each  signature,  under  oath." 

The  certificate  of  acknowledgment  or  proof  must  be 
under  the  hand  and  seal  of  office  when  taken  by  a  judge 
or  clerk,  or  an  officer  having  a  seal  of  office." 
Acknowledgment— Husband  and  Wife. 

State  of ,  county  of ,  ss. 

On  this  day  of ,  A.  D. ,  personally 

appeared  before  me  (navie  and  title  0/  officer),  in 
and  for  said  county,  A.  B.  and  W.  B.  his  wife, 
whose  natnes  are  subscribed  to  the  conveyed  in- 
strument as  parties  thereto,  personally  known 
to  me  to  be  the  individuals  described  in  and  who 
executed  the  said  annexed  instrument  as  parties 
thereto,  who  each  acknowledged  to  me  that  they, 
each  of  them  respectively,  executed  tne  same 
freely  and  voluntarily,  and  for  the  uses  and 
purposes  therein  mentioned.  And  the  said  \V., 
wife  of  the  said  A.  B.,  having  been  by  me  first 
made  acquainted  with  the  contents  of  said  in- 
strument, acknowledged  to  me  on  examination, 
apart  from  and  without  the  hearing  of  her  said 
husband,  that  she  executed  the  same  freely  and 
voluntarily  without  fear  or  compulsion,  or  undue 
influence  of  her  said  husband,  and  that  she  does 
not  wish  to  retract  the  execution  of  the  same. 

In  testimony  whereof,  I  have  hereunto  set  my 
hand  (and  affixed  my  official  seal),  the  day  and  year 
first  above  written. 

\Seal.\  (Signature  and  title  of  officer.) 

When  the  grantor  is  imknown  to  the  court  or  officer, 
the  certificate  that  he  was  "satisfactorily  proved  to 
be  the  person  described  in,  and  who  executed  the 
annexed  instrument,  by  the  oath  of  W.  T. ,  a  com- 
petent and  credible  witr::ss  for  that  purpose  by  me 
duly  sworn,"  and  the  said  A.  B.  acknowledged,  etc. 
Proof  by  Subscribing:  Witness. 

The  certificate  of  proof  by  a  subscribing  witness  shall 
set  forth, y?rj/,  that  such  subscribing  witness  was  per- 
sonally known  to  the  officer  granting  the  certificate  to 
be  the  person  whose  name  is  subscribed  to  such  con- 
veyance as  a  witness  thereto,  or  was  proved  to  be  such 
by  the  oath  of  a  witness  whose  name  shall  be  given  in 
the  certificate  ;  second,  the  proof  given  by  such  witness 
of  the  execution  of  such  conveyance,  and  of  the  fact  that 
the  person  whose  name  is  subscribed  to  such  convey- 
ance as  a  party  thereto  is  the  person  who  executed  the 
same,  and  that  such  witness  subscribed  his  name  to 
such  conveyance  as  a  witness  thereof." 

KEW  HAMPSHIRE. 

All  conveyances  of  real  estate  must  be  signed  and 
sealed  by  the  party  granting  the  same,  attested  by  two 
or  more  witnesses,  acknowledged  by  the  grantor  before 
a  justice,  notary  public,  or  commissioner,  whether 
within  or  without  the  State  (but  if  before  a  justice 
without  the  State  his  official  character  should  be  authen- 
ticated by  the  clerk  of  a  court  of  record  or  by  the  secre- 
tary of  state),  or  before  a  minister  or  consul  of  the 
United  States  in  a  foreign  country,  and  recorded  at 
length  in  the  registry  of  deeds  in  the  county  in  wHick 


ACKNOWLEDGMENT. 


P 


the  lands  are  situated.  No  separate  acknowledgment 
is  required  to  be  made  by  the  wife,  nor  need  she  be 
examined  apart  from  her  husband.  When  the  title  is  in 
the  wife,  the  husband  must  acknowledge  the  deed  in 
connection  with  her;  joining  in  the  conveyance,  except 
the  estate  is  held  by  the  wife  "  in  her  own  right  to  her 
sole  and  separate  use  free  from  the  interference  or  con- 
trol of  her  husband,"  in  which  case  she  may  convey 
alone,  although  the  husband's  signature  is  even  then 
preferable.  The  husband  need  not  covenant  as  the 
warranty,  but  releases  his  right  by  courtesy  under  the 
statute." 

The  identity  of  the  grantors  need  not  be  certified  by 
the  magistrate,  but  if  controverted,  must  be  proven, 
like  any  other  disputed  matter. 

The  official  character  of  the  person  taking  the   ac- 
knowledgment must  be  certified  to  in  the  same  manner 
as  that  of  persons  taking  depositions.? 
Acknowledgment— HnMband  and  Wife. 

State  of ,  county  of ,  ss. 

Personally  appeared  the  above-named  A.  B. 
and  W.  B.  his  wife,  and  acknowledged  the  fore- 
going instrument  to  be  their  voluntary  act  and 

deed.    Before  me  this day  of ,  A.  D. . 

(Signature  and  title  of  officer.) 

Thecertificateof  acknowledgment  need  not  state  that 
the  wife  relinquishes  her  dower.  She  releases  her  dower 
in  the  deed,  but  need  not  covenant  in  the  warranty.  The 
above  form  is  sufficient  in  all  cases. 

Any  public  or  private  corporation,  authorized  to  hold 
real  estate,  may  convey  the  same  by  any  agent  elected 
for  that  purpose  and  he  shall  convey,  in  his  said 
capacity,  and  acknowledge  the  conveyance  in  the  or- 
dinary form,  as  above. 

No  proof  by  a  subscribing  witness  will  be  ad- 
mitted in  evidence  unless  taken  in  the  usual  form  of  a 
deposition  and  upon  due  notice. 

NEW  J£RSET. 

Acknowledgment  and  proof  of  deeds,  mortgages,  etc., 
must  be  made,  within  this  State,  before  the  chan- 
cellor, a  justice  of  the  supreme  court,  a  master  in 
chancery,  judge  of  the  court  of  common  pleas,  sur- 
rogate, register  or  commissioner  of  deeds ;  out  of 
this  State,  before  a  judge  of  the  United  States  supreme 
or  district  court,  chancellor  of  State  or  Territory  where 
taken  ;  judge  of  supreme,  superior,  circuit,  or  district 
court  of  the  State  (all  the  above  without  the  seal  of 
such  officer  or  court) ;  a  mayor  or  other  chief  magis- 
trate of  a  city,  under  the  seal  of  said  city ;  a  master 
in  chancery  of  New  Jersey  ;  a  commissioner  of  deeds 
for  New  Jersey  residing  in  said  State  or  Territory,  under 
his  seal ;  a  judge  of  the  court  of  common  pleas  or  any 
officer  authorized  by  the  laws  of  said  State  or  Territory 
to  take  acknowledgments  of  deeds  of  lands  in  and  for 
such  State  or  Territory  ;  provided,  that  if  taken  before 
such  common  pleas  judge,  or  other  officer,  there  shall  be 
annexed  a  certificate  under  seal  of  the  State,  Territory, 
or  court  of  the  county  in  which  it  is  made,  that  the  per- 
son before  whom  such  acknowledgment  is  made  is 
such  officer  and  is  authorized  by  the  laws  of  such  State 
or  Territory  to  take  acknowledgments,  and  that  his 
signature  is  genuine. q 

Acknowledgments  and  proofs  by  persons  in  foreign 
kingdoms  may  be  made  before  any  court  of  law, 
mayor,  or  other  chief  magistrate  of  any  city,  borough, 
or  corporation,  of  said  foreign  kingdom,  certified  by  said 
court,  mayor,  or  other  chief  magistrate,  in  the  manner 
such  acts  are  usually  authenticated  :  or  before  any  am- 
bassador, public  minister,  charge  d'affaires,  or  other 
representative  of  the  United  States,  any  consul  or  vice- 
consul  for  the  time  being,  certified  under  the  official 
seal  of  said  consul  or  vice-consul;  or  before  a  master  in 
chancery  of  New  Jersey. 1 

The  identity  of  the  grantor  must  be  established  to  the 
satisfaction  of  the  officer;  he  must  certify  that  he  is 
satisfied. 

An  examination  of  the  wife  separate  from  her  hus- 
band is  necessary.  Signature  of  wife  must  be  acknowl- 
edged ;  it  cannot  be  proved  by  subscribing  witness. 

A.cknowIedg:nient— Husband  and  W^ife. 

State  of ,  county  of ,  ss. 

Be  it  remembered,  that  on  this day  of , 

A.  D. ,  before  me,  the  subscriber  {kere  insert 

name  and  title  of  officer),  personally  appeared  A.  B. 
and  W.  B.  his  wife,  who  I  am  satisfied  are  the 

O-G.  S.p.  338;  39  N.  H.  pp.  202-204;  45  Id.  p.  454. 


grantors  named  in  and  who  executed  the  within 
instrument  of  conveyance,  and  I  having  first 
made  known  to  them  the  contents  thereof,  they 
did  thereupon  severally  acknowledge  before  me 
that  they  signed,  sealed,  and  delivered  the  same 
as  their  voluntary  act  and  deed  for  the  uses 
and  purposes  therein  expressed  ;  and  the  said 
W.  B.,  wife  of  the  said  A.  B.,  being  of  full  age. 
and  by  me  privately  examined  separate  and 
apart  from  her  said  husband,  did  further  ac- 
knowledge that  she  signed,  sealed,  and  delivered 
the  same  as  her  voluntary  act  and  deed,  freely, 
without  any  fear,  threat  or  compulsion  of  or  from 
her  said  husband. 

In  testimony  whereof,  I  have  hereunto  set  my 
hand  and  affixed  my  official  seal  the  day  and  year 
aforesaid. 

\_Seal.\  {Signature  and  title  of  officer.) 

^  Acknowledgment— Corporation. 

The  deed  of  a  corporation  must  be  executed  by  aa 
officer  with  express  authority. 

The  form  is  as  follows  :  "  In  witness  whereof,  the 
said  (the  corporation)  hath  caused  its  corporate 
seal  to  be  affixed  and  its  president  {or  other  execu- 
tive officer)  to  sign  his  name  to  these  presents,  the 
day  and  year  first  above  written." 

State  of  New  Jersey,  county  of ,  ss. 

Be  it  remembered,  that  on  the day  of , 

in  the  year  of  our  Lord  one  thousand  eight  hun- 
dred and ,  before  me,  M.  C,  a  master  of  the 

court  of  chancery  of  the  State  of  New  Jersey, 

Cersonally  appeared  S.  Y.,  to  me  known,  who 
eing  by  me  duly  sworn  according  to  law,  on  his 
oath  doth  depose  and  say  :  that  he  is  (the  secretary 
or  other  officer)  of  (the  corporation),  the  grantors  in 
the  foregoing  deed  named  ;  that  the  seal  affixed 
to  the  said  deed  is  the  corporate  seal  of  the  said 
(corporation):  that  it  was  so  affixed  by  order  of 
the  said  (corporation),  that  P.  P.  is  the  (president  or 
other  executive  officer)  of  the  said  (corporation);  that 
he  saw  the  said  P.  P.,  as  such  (president,  etc.)  sign 
the  said  deed,  and  heard  hini  declare,  that  he 
signed,  sealed,  and  delivered  the  same  as  the 
voluntary  act  and  deed  of  the  said  (natne  of  cor- 
poration) hy  \.\\e.\r  order;  and  that  this  deponent 
signed  his  name  thereto,  at  the  same  time,  as  a 
subscribing  witness. 

Subscribed  and  sworn  before  me,  the  day  and 
year  above  written.     (Signature  and  official  title.) 
Proof  by  Subscribing:  Witness. 

State  of ,  county  of ,  ss. 

Be  it  remembered,  that  on  this day  of , 

A.  D.  ,  personally  appeared  before  the  sub- 
scriber, a  (natue  and  title  of  officer),  V/.  T.,who 
being  by  me  duly  sworn  according  to  law,  on  his 
oath  saith,  that  he  saw  A.  B.,  the  within-named 
grantor,  sign,  seal,  and  deliver  the  within  inden- 
ture, as  his  voluntary  act  and  deed,  and  that  he, 
the  said  V/.  T., subscribed  his  name  to  the  same, 
at  the  same  time,  as  an  attesting  witness. 

(.Signed)  W.  T. 

Sworn,  and  subscribed  before  me  this day 

of ,  A.  D. .     In  testimony  whereof,  Ihava 

hereunto  set  my  hand  and  affixed  my  official 
seal  the  day  and  year  aforesaid. 

[Seal.]  (Signature  and  title  of  officer!] 

NEW  SIEXICO. 
Conveyances  may  be  acknowledged  in  the  Territory 
before  any  judge,  justice  of  the  peace,  notary  public 
having  a  seal,  or  clerk  of  a  court  naving  a  seal.  Out 
of  the  Territory,  and  in  the  United  States,  before 
any  United  States  court,  the  judge  or  clerk  of  any  State 
or  Territorial  court  having  a  seal,  the  clerk  thereof  to 
certify  to  the  official  character  and  genuineness  of  sig- 
nature of  the  judge  under  the  seal  of  the  court,  or  a 
notary  public  with  a  seal.  Out  of  the  United  States, 
before  any  court  of  any  State,  kingdom,  or  empire 
having  a  seal,  or  before  the  magistrate  or  supreme 
power  of  any  city  having  a  seal,  before  any  court  of 
record  having  a  seal,  before  any  notary  public  having 
a  seal,  before  any  consul  or  vice-consul  of  the  United 
States  having  a  seal,  or  before  the  judge  of  any  court 
of  record  having  a  seal.  In  the  last  case  the  genuine- 
ness of  the  signature  and  official  character  to  be 
certified  by  some  officer  having  a  seal  of  office.  All 
p-G.  S.  p.  251.  q-See  Nixon's  Digest,  144,  //  seq., 
and  General  Statutes. 


34 


ACKNO  W  LEDG  M  ENT. 


persons  taking  foreign  acknowledgments  ma«;t  Fiave 
their  identity  certified  in  the  usual  manner  for  establisli- 
ing  the  identity  of  a  foreign  official.i 

The  examination  of  the  wife,  separate,  apart,  and 
independent  of  her  husband  is  not  necessary  ;  the  wife, 
however,  is  to  be  described  as  such.  The  deed  of  a 
corporation  is  acknowledged  by  the  officer  authorized 
by  the  by-laws  to  make  it,  and  the  corporate  seal,  if  any, 
must  be  affixed  to  the  certificate.  Sub.  3,  sec.  i.  Laws 
of  1889. 

Acknowledgement — Hasband  and  Wife. 

Territory  of  New  Mexico,  county  of ,  ss. 

On  this day  of in  the  year  eighteen 

hundred  and ,  before  me  personally  ap- 
peared A.  B.  (or  A.  B.  and  C.  D.  ;  or  A.  B.  and 
his  wife  E.  F.)  to  me  personally  known,  and 
known  to  me  to  be  the  same  person  (or  persons) 
described  in,  and  who  executed  the  foregoing 
instrument,  and  he  (she  or  they)  thereupon  ac- 
knowledged to  me  that  he  (she  or  they)  executed 
the  same  as  his  (or  their)  free  act  and  deed. 

'Witness  my  hand  and  notarial  (or  official)  seal 

at  said  county  of ,  the  day  and  year  last  above 

written.     (My  commission   expires ,  A.   D. 

18 .) 

[Sea/.l  (Signature  and  o^cia!  title.) 

NEW  YORK. 

A  conveyance,  to  be  recorded  by  a  county  clerk,  must 
be  acknowledged  by  the  party  executing  the  same,  or 
be  proved  by  a  subscribing  witness  thereto,  as  follows  : 

Conveyances  executed  within  the  State  must  be  ac- 
knowledged before  judges  of  courts  of  record  within  the 
jurisdiction  of  their  respective  courts,  county  judges, 
surrogates,  notaries  public,  and  justices  of  peace  at  a 
place  within  their  counties,  mayors,  recorders,  and 
commissioners  of  deeds  of  cities  within  their  respective 
cities. 

Without  the  State,  before  judges  of  United  States 
courts,  judges  of  the  supreme,  circuit,  or  superior  court 
of  any  other  State  or  Territory,  at  a  place  within  the 
jurisdiction  of  their  courts;  before  the  mayor  of  any 
city,  or  before  a  New  York  commissioner,  provided  the 
certificate  of  such  commissioner  is  accompanied  by  the 
certificate  of  the  secretary  of  state  of  New  York,  at- 
testing the  existence  of  the  officer,  and  the  genuineness 
of  his  signature.  When  taken  before  commissioners  of 
the  State  of  New  York,  their  certificate  must  state  the 
day  on  which,  and  the  city,  town,  and  county  within 
which,  such  proof  and  acknowledgment  is  taken.' 

When  made  by  any  person  residing  out  of  the  State, 
and  within  the  United  States,  it  may  be  taken  before 
any  officer  of  the  State  or  Territory  where  made, 
authorized  by  its  laws  to  take  proof  or  acknowledgment, 
but  the  officer  taking  the  same  must  know,  or  have  satis- 
factory evidence,  that  the  peison  making  it  is  the  indi- 
vidual described  in,  and  who  executed  the  instrument, 
and  such  officer  must  also  attach  a  certificate,  under 
the  name  and  official  seal  of  the  clerk,  register,  recorder, 
or  prothonotary  of  the  county  in  which  such  officer 
resides,  or  any  clerk  of  the  court  thereof,  having  a  seal, 
specifying  that  such  officer  was,  at  the  time  of  taking 
such  proof  or  acknowledgment,  duly  authorized  to  take 
the  same,  and  that  such  clerk,  register,  recorder,  or 
prothonotary,  is  well  acquainted  with  the  handwriting 
of  such  olTicer,  and  verily  believes  that  the  signature  to 
&-\\A  certificate  of  proof  or  acknowledgment  is  genuine, 
and  that  such  conveyance  is  executed  and  acknowledged 
ill  accordance  with  the  laws  of  such  State.' 

In  Canada,  before  judges  of  the  highest  courts,  or 
the  mayor  of  any  city,  and  by  any  consul,  vice-consul, 
deputy  consul,  consular  agent,  vice-consular  agent, 
commercial  agent,  and  vice-commercial  agent  of  the 
United  States,  certified  by  him,  under  his  seal  of  office, 
or  the  seal  of  the  consulate  to  which  he  is  attached. 
When  taken  before  a  judge  of  a  court  of  record,  a  cer- 
tificate must  be  attached,  under  the  name  and  offici.Tl 
seal  of  the  clerk  of  the  court,  that  there  is  such  a  cou:  t ; 

q-See  General  Statutes.  r-Laws,  1850,  ch.  270; 
Laws,  1857,  ch.  788.  8-Laws,  1848,  ch.  195 ;  Laws, 
1867,  ch.  557.  t-Laws,  1870,  ch.  208.  n-i  R.  S.  738. 
V-Laws,  1833,  ch.  271,  g  9.     w-i  R.  S.   758,  §9;  n 


that  the  judge  before  whom  the  proof  or  acknowledg. 
ment  is  taken  is  a  judge  (hereof;  that  such  court  has  a 
seal  ;  that  he  is  the  cierk  thereof;  that  he  is  well  ac- 
quainted with  the  handwriting  of  such  judge,  and  be- 
lieves his  signature  genuine.' 

In  all  cases  the  certificate  of  proof  or  acknowledg- 
ment must  show  that  the  officer  taking  the  same  either 
knows,  or  has  satisfactory  proof,  that  the  person  making 
such  acknowledgment  or  proof  is  the  same  individual 
described  in,  and  who  executed  the  instrument,  or  a 
subscribing  witness  thereto.  When  the  execution  is  by 
a  married  woman  within  the  State,  the  certificate  must 
state  a  private  examination."  Acknowledgment  or 
proof  of  conveyance  by  a  non-resident  married  woman, 
joining  with  her  husband,  may  be  made  as  if  she  were 
sole."  No  private  examination  is  necessary,  but,  other- 
wise, the  certificate  of  the  officer  must  comply  with 
the  requirements  of  certificates  in  this  State. 

Every  written  instrument,  except  promissory  notes, 
bills  of  exchange,  and  the  last  wills  of  deceased  persons, 
may  be  proved  or  acknowledged,  and  read  in  evidence 
on  the  trial  of  any  action,  with  the  same  effect  and  in 
the  same  manner  as  conveyances  of  real  estate.^ 

Where  the  execution  of  a  conveyance  is  acknowledged 
by  the  party  in  person,  the  oflicer  taking  the  same 
should  certify  to  the  identity." 

Where  the  execution  is  proved  by  a  subscribing  wit- 
ness, he  must  state  his  own  place  of  residence,  and 
that  he  knew  the  person  described  in  and  who  executed 
the  conveyance. » 

Upon  the  application  of  any  grantee  in  any  convey- 
ance, or  of  any  person  claiming  under  or  through  him, 
verified  by  oath,  that  a  subscribing  witness,  residing  in 
the  county  where  the  application  is  made,  refuses  to  ap- 
pear and  testify,  any  officer  authorized  to  take  proofs  or 
acknowledgments,  except  commissioners  of  deeds  airti 
justices  of  the  peace,  may  issue  a  subpoena  requiring 
such  witness  to  appear  and  testify  before  him.T 

Wherever  erasures  or  interlineations  occur  in  any 
conveyance,  they  should  be  noted  before  the  execution, 
or  mentioned  in  the  certificate  of  the  officer  taking  the 
proof  or  acknowledgment.' 

Acknowledgement — General  Form. 

Party  known  to  the  officer. 

Where  a  deed  is  acknowledged  in  this  State,  to  be 

used  or  recorded  in  inother  State,  the  certificate  should 

be  headed  with  name  of  the  State,  as  well  as  of  the 

county. 

If  the  instniment,  the  execution  of  which  U  to  b* 
acknowledged,  is  not  a  deed,  it  should  be  described  as  a 
"mortgage,"  "bond,"  "  letter  of  attorney,"  "  assign- 
ment," "instrument  in  writing,"  or  whatever  the  case 
may  require :  with  this  alteration,  the  succeedii^ 
forms  will  be  found  sufficient  in  the  transaction  of 
ordinary  business. 

State  of , county,  ss. 

On  this  day  of ,  A.  D. ,  before  me 

personally  came  A.  B.,  to  me  knoNvn  to  be  the 
person  described  in,  and  who  executed  the  within 
(orabove.orannexed)  conveyance,  and  he  acknowH 
edged  that  he  executed  the  same  for  the  purposes 
therein  mentioned. 

(Signature  o/tlie  officer  taking  the  acknowledgment, 
with  his  official  title  at  length.) 

Another  fortn. 

State  of y county,  ss. 

On  this day  of ,  A.  D.  ,  before  me 

personally  came  A.  B.,  to  me  known  to  be  the 
individual  described  in,  and  who  executed  the 
within  (orabove,  orannexed;  conveyance  (or  instru- 
ment), and  acknowledged  that  he  executed  tbn 
same  for  the  purposes  therein  mentioned. 
j  (Signature  and  title  0/ officer.) 

Acknowledg:ment — Oeneral  Form. 
I  Identity  0/ party  is  proven  to  the  officer. 

I        If  the  person  by  whose  oath  the  identity  is  established 
I    is  not  a  subscribing  witness  the  words  in  italic  in  this 
and  the  following  forms  should  be  omitted. 

State  of , county,  ss. 

On  this  day  of ,  A.  D. ,  before  me 

(name  and  title  of  officer),  personally  came  A.  B., 
proven  to  me  satisfactorily  to  be  the  same  person 
described  in,  and  v^ho  executed  the  within  con- 
veyance, by  the  oath  of  S.  ^V.  (suiacribing  witnea 
Johns.  434;  2  Cowen,  552;  4  Wend.  561.  X-i  R. 
S.  758,  §  12;  7  Wend.  364.;  I  Hill,  121.  y-i  R.  S. 
7581  §?  13,  14.    SB-8  Cowen,  71 ;  7  Wend.  364. 


ACKNOWLEDGM  ENT. 


33 


(hfrrto),  who,  being  by  me  duly  sworn,  did  depose 

and  say,  that  he  resides  in  the  village  of ,  [or 

town  of ),  county  of ;  that  he  is  acquainted 

with  the  said  A.  B.,  and  that  he  knew  hiin  to  be 
the  same  person  described  in  and  who  executed 
the  TvitWin  conveyance ;  and  thereupon  the  said 
A.  B.  acknowledged  that  he  executed  the  same. 

O.  R.  (official title.) 
AcknowledfTinent— IIusbaiKl  and  Wife. 
Within  the  Stale  ;  known  to  the  officer. 

State  of , county,  ss. 

On  this  day  of  ,  A.  D. ,  before  me 

personally  came  A.  B.  and  W.  B.  his  wife,  to 
me  known  to  be  the  individuals  described  in, 
and  who  executed  the  within  (or  above,  or  an- 
nexed) conveyance  (y>-  instrument),  and  severally 
acknowledged  that  they  executed  the  same  for 
the  purposes  therein  mentioned.  And  the  said 
W.  B.,  on  a  private  examination  by  me  made, 
apart  from  her  husband,  acknowledged  that  she 
executed  the  same  freely,  and  v/unout  any  fear 
«r  compulsion  of  her  said  husband. 

(Sig^iature  and  title  of  officer.) 
Acknowledgrmeiit— Husband  and  Wife. 
Known  to  the  officer. 

State  of , county,  ss. 

On  this  day  of ,  A.  D. ,  before  me 

personally  came  A.  B.  and  'W.  B.  his  wife,  to  me 
known  to  be  the  persons  described  in,  and  who 
executed  the  within  conveyance,  who  acknowl- 
edged that  they  executed  the  same  ;  and  the  said 
W.  B.  acknowledged,  on  a  private  examination 
by  me  made,  apart  from  her  husband,  that  she 
executed  the  said  conveyance  freely,  and  without 
any  fear  or  compulsion  of  him. 

C.   D.,   Commissioner  of  Deeds  in  and  for  said 
ceunty. 

Acknowledgement— Husband  and  Wife. 
Proven  to  the  officer. 

State  of , county,  ss. 

On  this day  of ,  A.  D. ,  before  me, 

J.  P.,  a  justice  of  the  peace  in  and  for  said 
county,  personally  came  A.  B.  and  W.  his  wife, 
both  proven  to  me  satisfactorily  to  be  the  same 
persons  described  in,  and  who  executed  the 
within  conveyance,  by  the  oath  of  S.  AA/.  (subscrib- 
ing witness  thereto),  who  being  by  me  duly  sworn, 
did  depose  and  say,  that  he  resides  in  the  town 

of ,,in  said  county  ;  that  he  is  acquainted  with 

the  said  A.  B.  and  W.  his  wife,  and  that  he  knew 
them  to  be  the  same  persons  described  in,  and 
^vho  executed  the  within  conveyance  ;  and,  there- 
upon, they  severally  acknowledged  befcre  me 
that  they  executed  the  same;  and  the  said  W. 
acknowledged,  on  a  private  examination  by  me 
made,  apart  from  her  husband,  that  she  executed 
the  said  conveyance  freely,  and  without  any  fear 
or  con^pulsion  of  him. 

J.  P.,  justice  of  the  Peace. 

Acknowledgement — Husbanti  and  Wife. 

Husband  known,  and  Wife  proven  to  the  officer. 

State  of , county,  ss. 

On  this day  of ,  A.  D. ,  before  me 

personally  came  A.  B.  and  W.  his  wife  ;  the  said 
A.  B.  being  Known  to  me  to  be  the  same  person 
described  m,  and  wno  executed  tne  witnin  con- 
veyance; and  the  said  W.  being  proven  to  me 
satisfactorily  to  be  the  same  person  described  in, 
and  who  executed  the  within  conveyance,  by  the 
oath  of  S.  ^V.  {subscribing  witness  thereto),  \vho 
bei..g  by  me  duly  sv^rorn,  did  depose  and  say,  that 

he  resides  in  the  town  of ,  in  said  county; 

that  he  is  acquainted  with  the  said  'W.,  the  wife 
of  the  said  A.  B.,  and  that  he  knew  her  to  be  the 
same  person  described  in,  and  who  executed  the 
said  conveyance;  and,  thereupon,  the  said  A.  B. 
and  the  said  'W.  his  wife,  severally  acknowl- 
edged that  they  executed  the  same;  and  the  said 
W.  acknowledged,  on  a  private  examination  by 
me  made,  apart  from  her  husband,  that  she  exe- 
cuted the  said  conveyance  freely,  and  without 
any  fear  or  compulsion  of  him. 

C.  C. ,  Commissioner ,  etc. 
Acknowledgement— By  two  Husbands 
and  tlicir  Wives. 

State  of , county,  ss. 

On  this day  of ,  A.  D.  ,  before  me 

{^me  and  official  title),  personally  came  A.  B. 


and  W.  his  wife,  and  C.  D.  and  W.  \V.  his  wife, 
known  to  me  to  be  the  individuals  described  in, 
and  who  executed  the  within  conveyance,  and 
acknowledged  they  executed  the  same;  and  the 
said  W.  and  W.  W.,  severally,  each  for  herself, 
acknowledged,  on  a  private  examination  by  me 
made,  apart  from  her  husband,  that  she  executed 
the  same  freely,  without  any  fear  or  compulsion 
of  him.  J  •  P. ,  Justice  of  the  Peace. 

Acknowledgement— By  Wife  In  a  sepa- 
rate Certllicate. 

State  of , county,  ss. 

On  this  day  of ,  A.  D. ,  before  mt 

(natne  and  official  title),  personally  came  'W.  B., 
wife  of  A.  B.,  described  in  the  within  convey- 
ance, the  said  W.  being  known  to  me  to  be  the 
individual  described  in,  and  who  executed  the 
said  conveyance,  and  she  acknowledged,  on  a 
private  examination  by  me  made,  apart  from  her 
husband,  that  she  executed  the  same  freely, 
without  any  fear  or  compulsion  of  him. 

J.  P.,  Justice  of  the  Peace. 

Acknowledgment— By  two  or  more 
Parties. 

State  of , county,  ss. 

On  this  day  of ,  A.  D. ,  before  me 

{name  and  official  title),  personally  came  A.  B. 
and  C.  D.,  to  me  known  to  be  the  individuals  de- 
scribed in,  and  who  executed  the  within  con- 
veyance, and  they  severally,  each  for  himself, 
acknowledged  that  they  executed  the  same. 

J.  P.,  Justice  of  the  Peace. 

Acknowlcdgenient— By  five  Persons. 
Three  knoivn  and  two  identified. 

State  of , county,  ss. 

On  this  day  of ,  A.  D. ,  before  naC 

{name  and  official  title),  personally  came  A.  B., 
C.  D.,  and  E.  F.,  to  me  knov^n  to  be  three  ol  the 
individuals  described  in,  and  who  executed  the 
within  conveyance ;  and  also  came  G.  H.  and 
I.  J.,  satisfactorily  proven  to  me  to  be  two  of  the 
individuals  described  in,  and  who  executed  the 
within  conveyance,  by  the  oath  of  S.  \V.  {sub- 
scribing witness  thereto),  who  being  by  me  duly 
sworn,  did  depose  and  say,  that  he  resides  in  the 

town  of ,  in  said  county  ;  that  he  is  acquainted 

with  the  said  G.  H.  and  I.  J.,  and  that  he  knew 
them  to  be  two  of  the  individuals  described  in, 
and  who  executed  the  within  conveyance  :  and 
thereupon  the  said  A.  B.,  C.  D.,  E.  F.,  G.  H.,  and 
I.  J.  severally  acknowledged  before  me  that  they 
executed  the  same  for  the  purposes  therein  men- 
tioned. J.  P.,  Justice  of  the  Peace. 
Acknowledgement— By  one  of  several 
Parties. 

State  of , county,  ss. 

On  this day  of  ,  A.  D. ,  before  me 

{name  and  official  title),  personally  came  A.  B.,  to 
me  known  to  be  one  of  the  individuals  described 
in,  and  who  executed  the  within  conveyance,  and 
acknowledged  that  he  executed  the  same. 

J.  P. ,  Justice  of  the  Peace. 
Acknowleclgemeiit- By  Attorney. 

State  of county,  ss. 

On  cms  day  of ,  A.  D. ,  before  me 

(name  and  official  title),  personally  came  A.  A., 
known  to  me  to  be  the  same  person  described  in, 
and  who  executed  the  within  conveyance,  and 
acknowledged  that  he  executed  the  same  as  the 
act  and  deed  of  A.  B. ,  therein  described,  by  virtue 
of  a  power  of  attorney  duly  executed  by  the  said 

A.  B.,  bearing  date  the day  of ,  in  the  year 

,  recorded   in   the   office   of  the  clerk   of  the 

county  of ,  in  Book  —  of  Powers  of  Attorney, 

page  — ,  on  the day  of ,  in  the  year , 

J.  P.,  Justice  of  the  Peace. 

Acknowledgement— By  Attorney. 

Kncrum  to  the  officer. 

State  of , county,  ss. 

On  this day  of ,  A.  D. ,  before  me 

{name  and  official  title),  personally  came  A.  A., 
known  to  me  to  be  the  attorney  in  fact  of  A.  B., 
the  individual  described  in,  and  who  executed 
the  within  conveyance  by  his  said  attorney ;  and 
the  said  A.  A.  acknowledged  that  he  executed 
the  same  as  the  act  and  deed  of  the  said  A.  B. 
J.  P. ,  Justice  of  the  Peace. 


34 


ACKNOWLEDGMENT. 


AcknowIedRrnient— By  Attorney. 

Proven  to  the  officer. 

State  of , county,  ss. 

On  this day  of ,  A.  D. ,  before  me 

{name  and  official  title),  personally  came  A.  A., 
proven  satisfactorily  to  me  to  be  the  same  person 
described  in,  and  who  executed  the  within  con- 
veyance as  the  attorney  in  fact  of  A.  B. ,  by  the 
oath  of  S.  W.  (subscribing  witness  thereto),  who 
being  by  me  duly  sworn,  did  depose  and  say, 

that  he    resides    in  the   town   of  ,  in   said 

county  ;  that  he  is  acquainted  with  the  said  A.  A., 
and  that  he  knew  him  to  be  the  individual  de- 
scribed in,  and  who  executed  the  said  convey- 
ance as  the  attorney  in  fact  of  A.  B.,  and  there- 
upon the  said  A.  A.  acknowledged  before  me 
that  he  executed  the  same  as  the  act  and  deed  of 
the  said  A.  B.  J.  P.,  Justice  of  the  Peace. 

Acknowledg'inent — To  confirm  Deed. 
Executed  during  Infancy. 

State  of , county,  ss. 

On  this day  of ,  A.  D.  ,  before  me 

{name  and  official  title),  personally  came  A.  B.,  to 
me  known  to  be  the  individual  described  in,  and 
who  executed  the  within  conveyance,  and  there- 
upon duly  acknowledged  that  the  said  convey- 
ance was  formerly  executed  by  him  when  he  was 
an  infant  under  the  age  of  twenty-one  years  ; 
that  he  has  since  arrived  at  full  age,  and  is  de- 
sirous of  confirming  his  former  execution  thereof; 
and  that  he  now  acknowledges  that  he  executed 
tiie  savne  as  and  for  his  act  and  deed. 

J.  P.,  Justice  of  the  Peace. 
Acknowledgment— By  an  Executor  or 
Trustee. 

State  of , county,  ss. 

On  this day  of ,  A.  D. ,  before  me 

name  and  official  title),  personally  came  E.  X., 
Jtnown  to  me  to  be  the  executor  of  the  last  will 
and  testament  {or  trustee  of  the  estate)  of  M.  D., 
mentioned  and  described  in  the  within  convey- 
ance, and  the  said  E.  X.  acknowledged  before  me 
that  he  executed  the  same  as  such  executor  {or 
trustee),  as  aforesaid. 

J.  P.,  Justice  of  the  Peace. 
Proof  of  Deed. 
Executed  by  a  Monied  Corporation. 

State  of , county,  ss. 

On  this day  of ,  A.  D. ,  before  me 

[nante  and  title  of  officer),  personally  came  P.  P., 
the  president  of  the  -  —  County  Bank,  to  me 
known,  who,  being  by  me  duly  sworn,  did  depose 

and  say,  that  he  resides  in  the  village  of ,  in 

said  county;  that  he  is  the  president  of  the 

County  Bank  ;  that  he  knows  the  corporate  seal 
of  the  said  bank ;  that  the  seal  affixed  to  the 
within  conveyance  is  such  corporate  seal ;  that  it 
was  so  affixed  by  order  of  the  board  of  directors 
of  the  said  bank  ;  and  that  he  signed  his  name 
thereto  by  the  like  order,  as  president  of  said 
bank.  {If  the  conveyance  is  proven  by  a  cashier,  or 
the  secretary  of  a  company,  and  executed  by  him  and 
the  president,  substitute  secretary,  or  cashier,  for 
president,  and  the  name  of  the  conipanyfor  the  bank, 
in  the  foregoing,  and  then  add:  And  he,  the  said 
P.  P.,  further  says,  that  he  also  knows  S.  W.,  the 
president  of  the  said  bank  (<;?- company),  and  that 
the  signature  of  the  said  S.  W.,  subscribed  to  the 
said  conveyance,  is  in  the  genuine  handwriting 
of  the  said  S.  'W.,  and  was  thereto  subscribed  in 
the  presence  of  the  said  P.  P.,  by  the  like  order 
of  tna  said  board  of  directors.) 

J.  P.,  Justice  of  the  Peace. 
Proof  of  Deed. 
By  a  Religious  Corporation. 

State  of , county,  ss. 

On  this day  of ,  A.  D. ,  before  rne 

{name  and  title  of  officer),  personally  came  C.  C, 
to  me  known,  who,  being  by  me  duly  sworn,  did 
depose  and  say,  that  he  resides  in  the  town  of 
,  in  said  county,  and  is  the  clerk  of  the  Cor- 
poration of  the  Rector,  Churchwardens,  and 
Vestrymen  of  the  Protestant  Episcopal  Church 
of  St.  Paul  {or,  the  Corporation  of  tlio  Trustees  of  the 
First  Methodist  Episcopal  Society),  in  the  town  of 

aforesaid  ;  that  the  seal  affixed  to  the  within 

conveyance  is  the  corporate  seal  of  the  said  cor- 
poration, and  that  it  was  affix-ed  by  order  of  the 


said  corporation.    {If  necessary,  add  clause  proving 

the  handwriting  of  the  subscribers  to  the  conveyance. ) 
J.  P.,  Justice  of  the  Peace. 

Acknowledgrmeut— By  a  Sheriff. 

State  of , county,  ss. 

On  this  day  of ,  A.  D. ,  before  me 

{name  and  official  title),   personally   came   S.  F., 

sheriff  (i?A-  late  sheriff)  of  the  county  of ,  to  me 

known  to  be  the  same  person  described  in,  and 
who  executed  the  within  conveyance,  and  ac- 
knowledged that  he  executed  the  same  as  such 
sheriff.  J.  P.,  Justice  of  the  Peace. 

Acknowledgment— By  »  Deputy  fSheriff. 

State  of , county,  ss. 

On  this day  of ,  A.  D. ,  before  me 

{name  and  official  title),  personally  came  D.  S.,^ 
known  to  me  to  be  the  individual  described  in, 
and  who  executed  the  within  conveyance,  as  the 
general  deputy  of  S.  F.,  sheriff  of  the  county  of 

,  and  acknowledged  that  he  executed  the  said 

conveyance  as  such  general  deputy  as  aforesaid. 
J.  P.,  Justice  of  the  Peace. 

Proof  witbin  the  Ktate,  by  Subscribing 
Witness. 

Known  to  the  officer. 

State  of , county,  ss. 

On  this day  of ,  A.  D. ,  before  me 

personally  came  W.  T.,  subscribing  witness  to 
the  v/ithin  (or  above,  or  annexed)  conveyance  {or 
instrument),  with  whom  I  am  personally  ac- 
quainted, who  being  by  me  duly  sworn,  said  that 
he  resided  in  the  city  of  ,  that  he  was  ac- 
quainted with  A.  B.,  and  knevtr  him  to  be  the 
person  described  in,  and  who  executed  the  said 
conveyance  {or  instrument) ;  and  that  he  saw  him 
execute  (and  deliver)  the  same;  and  that  he  ac- 
knowledged to  him,  the  said  W.  T. ,  that  he  exe- 
cuted (and  delivered)  the  same,  and  that  he,  the 
said  W.  T.,  thereupon  subscribed  his  name  as  a 
witness  thereto.       (Signature  and  title  of  officer.) 

Certificate  of  Proof. 

By  Subscribing  Witness  known  to  the  officer. 

State  of , county,  ss. 

On  this  day  of ,  A.  D. ,  before  me 

{naine  and  official  title),  personally  came  W.  T., 
subscribing  witness  to  the  within  conveyance,  to 
me  known,  who  being  by  me  duly  sworn,  did  de- 
pose and  say,  that  he  resides  in  the  town  of , 

in  said  county;  that  he  knows  A.  B.,  the  indi- 
vidual described  in,  and  who  executed  the  said 
conveyance  ;  that  he  was  present  and  saw  the 
said  A.  B.  sign,  seal,  and  deliver  the  same  as  and 
for  his  act  and  deed,  and  that  the  said  A.  B.  then 
acknowledged  the  execution  thereof ;  whereupon 
the  said  W.  T.  became  the  subscribing  witness 
thereto.  J.  P.,  Justice  of  the  Peace. 

Acknowledgment— By  Subscribing^ 
Witness. 
Proven  to  the  officer. 

State  of , county,  ss. 

On  this  day  of  ,  A.  D. ,  before  me 

(name  and  official  title),  personally  came  E.  F.  and 
S.  \V.,  and  the  said  E.  F.,  to  me  known,  having 
been  by  me  duly  sworn,  did  depose  and  say,  that 

he  resides  in  the  town  of in  said  county; 

that  he  is  acquainted  with  the  said  S.  W.,  the 
subscribing  witness  to  the  within  conveyance, 
and  that  he  knew  him  to  be  the  same  person, 
which  is  to  me  satisfactory  evidence  thereof; 
and  the  said  S.  W.,  being  by  me  duly  sworn,  did 
depose  and  say,  that  he  resides  in  the  town  of 

,  in  the  county  of ,  and  knows  A.  B.,  the 

individual  described  in,  and  who  executed  the 
said  conveyance;  that  he  was  present  and  saw 
the  said  A.  B.  execute  the  same,  and  that  he,  the 
said  S.  W.,  thereupon  became  the  subscribing 
witness  thereto.  J.  P.,  Justice  of  the  Peace. 

Acknowledgment— By  Subscribing 
Witness. 

Grantors  residing  in  another  State. 

State  of , county,  ss. 

On  this  day  of ,  A.  D. ,  before  me 

(name  and  official  title),  personally  came  S.  ^y.,  to 
me  known,  who  being  by  me  duly  sworn,  did  de- 
pose and  say,  that  he  resides  in  the  town  of — -, 
in  said  county;  that  he  knows  A.  B.  and  W.  his 
wife,  the  individuals  described  in,  and  who  ea«- 


ACKNOWLEDGMENT. 


35 


cuted  the  within  conveyance ;  that  they  severally 

reside  in  the  town  of  ,  in  the  State  of , 

that  he  was  present  and  saw  them  sign,  seal,  and 
deliver  the  said  conveyance,  as  and  for  their  act 
and  deed,  and  that  he  thereupon  became  the 
subscribing  witness  thereto. 

J.  P. ,  Justice  of  the  Peace. 

Acknowledg^nient— By  Subscribing; 
Witne!«s. 

Proven  to  the  officer. 

State  of , county,  ss. 

On  this  day  of ,  A.  D. ,  before  me 

(name  and  official  title),  personally  came  E.  F.  and 
S.  W. ;  and  the  said  E.  F.,  to  me  known,  having 
been  by  me  duly  sworn,  did  depose  and  say,  that 

he   resides   in   the   town  of ,  in  said  county  ; 

that  he  is  acquainted  with  the  said  S.  W.,  the 
subscribing  witness  to  the  within  conveyance, 
and  that  he  knew  him  to  be  the  same  person, 
which  is  to  me  satisfactory  evidence  thereof;  and 
the  said  S.  W.,  being  by  me  duly  sworn,  on  his 

oath  said,  that  he  resides  in  the  town  of ,  in 

the  State  of ,  that  he  knows  A.  B.  and  'W.  his 

wife,  the  individuals  described  in,  and  who  exe- 
cuted the  within  conveyance;  that  they  severally 

reside  in   the  town  of ,  in  the  State  of , 

that  he  was  present  and  saw  them  sign,  seal,  and 
deliver  the  said  conveyance,  as  and  for  their  act 
and  deed,  and  that  he  thereupon  became  the  sub- 
scribing witness  thereto. 

J.  P.,  Justice  of  the  Peace. 

A^cknowledg:iiieiit— By  Subscribing:  Wit- 
ness as  to  the  Husband. 

And  Ackno%vledgittent  by  the  Wife,  both  being  known 
to  the  officer. 

State  of , county,  ss. 

On  this day  of ,  A.  D. ,  before  me 

(name  and  official  title),  personally  came  S.  W.,  to 
me  known,  who  being  by  me  duly  sworn,  did  de- 
pose and  say,  that  he  resides  in  the  town  of , 

in  said  county;  that  he  knows  A.  B.,  one  of  the 
individuals  described  in,  and  who  executed  the 
within  conveyance  ;  that  he  was  present  and  saw 
the  said  A.  B.  execute  the  same,  and  that  he,  the 
said  S.  \V.,  thereupon  became  the  subscribing 
v^ritness  thereto.  At  the  same  time,  also  ap- 
peared before  me,  W.  B.,  the  wife  of  the  said 
A.  B.,  to  me  personally  known,  who,  on  a  private 
examination  by  me  made,  apart  from  her  hus- 
band, acknowledged  that  she  executed  the  within 
conveyance  freely,  without  any  fear  or  compul- 
sion of  her  said  husband. 

J.  P.,  Justice  of  the  Peace. 

Aci<nowle4lg:nient— By  Subscribing:  Wit- 
ness as  to  the  Husband. 

And  Acknowledgment  by  the  Wi/e,  both  proven  to  the 
officer. 

State  of , county,  ss. 

On  this  day  of ,  A.  D. ,  before  me 

(name  and  official  title),  personally  came  S.  'W.,  to 
me  known,  etc.  (Follow  the  preceding  form  to  the 
end,  omitting  the  words  "  to  me  personally  known"  in 
the  acknoiuledgiiient  of  the  ivife,  and  then  add) :  And 
at  the  same  time,  also  appeared  before  me  E.  F., 
to  me  personally  known,  who  being  by  me  duly 
sworn,  did  depose  and  say,  that  he  resides  in  the 

town  of ,  in  the  county  of ,  that  he  knows 

the  said  S.  W.  to  be  the  same  person  who  was  a 
subscribing  witness  to  the  within  conveyance ; 
and  that  he  also  knows  the  said  W.  B.,  who 
made  the  aforesaid  acknowledgment,  to  be  one 
of  the  individuals  described  in,  and  who  executed 
the  said  conveyance,  which  is  to  me  satisfactory 
evidence  thereof.  J.  P.,  Justice  of  the  Peace. 

Aciinowlodg^nient— By  Subscribing: 
Witness. 

To  Deed  executed  by  an  Attorney. 

State  of , county,  ss. 

On  this  day  of ,  A.  D. ,  before  me 

xname  and  official  title),  personally  came  S.  V<1.,  to 
me  known,  who  being  by  me  duly  sworn,  did  de- 
pose and  say,  that  he  resides  in  the  town  of , 

in  said  county;  that  he  knew  A.  B.,  the  person 
described  in,  and  who  executed  the  within  con- 
veyance as  the  attorney  in  fact  of  E.  F.,  therein 
Riinied;  th^t  h?  wa»  present  and  s^W  the  said 


A.  B.  execute  the  same  as  such  attorney,  and  that 
he,  the  said  S.  \V.,  thereupon  became  the  sub- 
scribing witness  thereto. 

J.  P.,  Justice  of  the  Peace. 
Proof  of  the  Execution  of  a  Deeil. 
Where  the  Subscribing  Witnesses  are  Dead. 

The  statutes  provide  that  proof  of  the  execution  of  a 
conveyance  where  the  subscribing  witnesses  are  dead 
shall  be'  made  before  any  officer  authorized  to  take 
proofs  and  acknowledgments  of  deeds,  other  than  com- 
niissioners  of  deeds  (justices  of  the  peace  being  included 
in  this  designation),  and  county  judges  not  of  the  degree 
of  counsel  in  the  supreme  court.  The  evidence  estab- 
lishing the  death  of  the  witnesses,  and  of  the  hand- 
writing of  such  witnesses,  or  of  either  of  them,  and  of 
the  grantor,  with  the  names  and  places  of  residence  of 
the  witnesses  examined  before  the  officer,  must  be  set 
forth  in  his  certificate.  The  conveyance  having  been 
thus  proved  and  certified,  may  be  recorded  in  the  proper 
office,  proiiided  the  original  deed  is  deposited  in  the 
same  office,  to  remain  there  for  the  inspection  of  all 
persons  desiring  to  examine  it ;  such  record  and  deposit 
will  be  constructive  evidence  of  the  execution  of  the  said 
conveyance  to  all  subsequent  purchasers,  although  such 
conveyance,  nor  the  record  thereof,  nor  the  transcript 
of  tlic  record  can  be  read  in  evidence." 

State  of , county,  ss. 

On  this  day  of ,  A.  D. ,  before  me 

(name  and  official  title),  personally  came  G.  H.,  to 
me  known,  who,  being  by  me  duly  sworn,  and 
the  within  conveyance  being  shown  to  him,  did 
depose  and  say,  that  he  knew  the  parties  therein 
described  ;  that  he  was  well  acquainted  with 
A.  B.,  the  grantor;  that  he  had  frequently  seen 
him  write,  and  knew  his  handwriting,  and  that 
the  name  of  the  said  grantor  subscribed  to  the 
said  conveyance  is  in  the  proper  handwriting  of 
the  said  A.  B.  And  the  said  G.  H.  further  on  his 
oath  said,  that  he  was  well  acquainted  with 
S.  'W.,  one  of  the  subscribing  witnesses  to  the 
said  conveyance,  and  with  his  handwriting  ;  that 
the  said  S.  'W.,  at  the  time  of  the  date  of  said 

deed,  resided  in  the  town  of ,  in  the  county  of 

,  and  has  been  dead  about  one  year,  and  that 

the  name  of  the  said  S.  W.,  deceased,  subscribed 
as  a  witness  to  said  conveyance,  is  in  his  proper 
handwriting.  And  the  said  G.  H.  further  deposed 
and  said,  that  at  the  time  of  the  date  of  said  con- 
veyance, he  was,  also,  and  for  several  years  had 
been,  acquainted  with  one  E.  F.,  a  shoemaker, 

who  then  resided  in  the  said  town  of ,  in  the 

county  of  ,  and  in  the  neighborhood  of  the 

said  grantor;  that  the  said  E.   F.   died  at  the 

town  of ,  aforesaid,  in  the  year ,  and  since 

the  date  of  said  conveyance  ;  that  he,  the  said 
G.  H.,  was  not  acquainted  \vith  the  handwriting 
of  the  said  E.  F. ;  that  he  has  never  known  or 
heard  of  any  other  person  of  the  name  of  E.  F, 
(if  necessary,  insert  here  "residing  in  the  neighbor- 
hood of  the  said  grantor"),  and  that  he  cannot  say 
in  \/vhose  handwriting  the  name  of  the  said  E.  F. 
is  subscribed  to  the  said  conveyance. 

And  I  hereby  certify,  that  the  aforesaid  deposi- 
tion ot  the  said  G.  H.  is  to  me  satisfactory  evidence 
of  the  death  of  all  the  witnesses  to  the  within  con- 
veyance, and  of  the  handwriting  of  S.  W.  one 
of  the  said  witnesses,  and  of  the  handwriting  of 
A.  B. ,  the  grantor  therein  named. 

S.  C,Supt.  Court  Com.  in  and /or  the  county  of . 

Proof  of  Execution  of  Acknowledg:- 

nient. 

By  Subscribing  Witness  knozvn  to  tlie  officer. 

State  of , county,  ss. 

On  this  day  of  ,  A.  D. ,  before  me 

personally  came  S.  'W.,  subscribing  witness  to 
the  above  certificate,  to  me  known,  who,  being 
by  me  duly  sworn,  did  depose  and  say,  that  he 

resides  in  the  town  of ,  in  said  county;  that 

he  is  acquainted  with  A.  B.  ;  that  he  knew  him 
to  be  the  same  person  described  in,  and  who 
executed  the  above  certificate  ;  that  he  saw  him 
sign  the  same  ;  that  the  said  A.  B.  acknowledged 
the  execution  thereof  in  his  presence;  and  that 
he  subscribed  his  name  as  a  witness  thereto. 

J.  P.,  Justice  of  the  Peace. 

o-i  R.  S.,  761,  g§  30  to  33.  i»si?-4ve,  and  am<-nd 
ment»,  . 


36 


ACKNO  WLEDGM  ENT. 


Proof  of  Execution  of  Acknowledge- 
ment. 

By  Suiscribing  Witness  proven  to  the  officer. 

State  of , county,  ss. 

On  this  day  of ,  A.  D. ,  before  me 

personally  came  L.  M.,to  me  known,  and  S.  W.  ; 
and  the  said  L.  M.,  being  by  me  duly  sworn,  did 
depose  and  say,  that  he  resides  in  the  town  of 

,  in  said  county  ;  that  he  is  acquainted  with 

the  said  S.  ^V.,  and  that  he  knew  him  to  be  the 
same  person  who  is  the  subscribing  witness  to 
the  above  certificate,  which  is  to  me  satisfactory 
evidence  of  his  identity;  and  the  said  S.  W., 
being  by  me  duly  sworn,  did  depose  and  say,  that 

he  resides  in  the  town  of ,  in  the  county  of 

;  that  he  is  acquainted  with  A.  B.  ;  {follo-w pre- 
ceding form  to  the  end.)     J.  P.,  yustice  of  the  Peace. 
AcknowIeds'Tnent— of  Satisfaction. 
To  te  written  on  the  Mortgage. 

I,  A.  B.,the  mortgagee  within  named  {or,  the 
assignee  of  the  within-named  mortgagee),  do  hereby 
certify  that  the  within  mortgage  is  fully  paicf, 
satisfied,  and  discharged. 

Dated  the day  of ,  A.  D. ,        A.  B. 

Executed  in  presence  of  C.  D. 

Add  an  acknowledgment  same  as  preceding  form. 

Acknowlcfl^nient — of  Sati»«factlon. 

By  Individual  pro^ien  to  the  officer. 

State  of , county,  ss. 

On  this day  of ,  A.  D. ,  before  me 

{name  and  title  of  officer),  personally  came  A.  B., 
satisfactorily  proven  to  me  to  be  the  same  person 
described  in,  and  who  executed  the  above  certifi- 
cate, by  the  oath  of  C.  D.,  to  me  known,  who, 
being  by  me  duly  sworn,  did  depose  and  say,  that 

he   resides  in  the  town  of  ,  in  said  county; 

that  he  is  acquainted  with  the  said  A.  B.,  and 
that  he  knew  him  to  be  the  same  person  described 
in,  and  who  executed  the  above  certificate,  which 
is  to  me  satisfactory  evidence  thereof:  and  there- 
upon the  said  A.  B.  acknowledged  before  me,  that 
he  executed  the  said  certificate. 

J.  P.,  fustice  of  the  Peace. 
Acknowleds:nient— of  .Satisfaction. 
By  a  Corporate  Company,  7vith  proof  of  execution. 

I, P.  P.,  president  of  the  Bank  v,.' ,  do  hereby 

••-ertify,  that  a  certain  mortgage  bearing  date  the 

day  of ,  A.  D. ,  made  and  executed  by 

A.  B.  and  \V.  his  wife,  to  C.  D.,  and  by  the  said 
C.  D.  assigned  to  the  said  Bank  of , by  assign- 
ment dated  the  day  of ,  A.  D.  ,  and 

recorded  in  the  office  of  the  clerk  of  the  county 

of ,  in  book  No.  —  of  mortgages,  page  — ;  and 

which  said  mortgage  was  recorded  in  the  office 

of  the   clerk   of  the   county  of aforesaid,  in 

book  No.  —  of  mortgages,  pages  —  and  — ,  on  the 

day  of ,  A.  D. ,  is  fully  paid,  satisfied, 

and  discharged. 

In  testimony  wherof,  the  said  Bank  of has 

caused  its  corporate  seal  to  be  hereunto  affixed, 
the day  of ,  A.  D. . 

\Seal.'\  "P.  "P.,  President. 

Executed  in  presence  of  W.  S. 

State  of , county,  ss. 

On  this day  of ,  A.  D. ,  before  me 

{name  and  official  title),  personally  came  P.  P.,  in 
the  above  certificate  mentioned,  president  of  the 

Bank   of  aforesaid,  to  me  known;  and  the 

said  P.  P.,  being  by  me  duly  sworn,  did  depose 

and  say,  that  he  resides  in  the  town  of ,  in  the 

•aid  county ;  that  the  seal  affixed  to  the  above 
certificate  is  the  corporate  seal  of  the  said  Bank 

of ,  and  was  affixed  thereto  by  the  order  of 

the  board  of  directors  of  said  bank  ;  and  that  he 
subscribed  his  name  thereto  by  the  like  order. 
J.  P.,  Justice  of  the  Peace. 
Acknowledgement— of  Satisfaction. 
By  an  Executor,  Administrator,  or  Trustee. 

I,  E,  X.,  executor  of  the  last  will  and  testament 
of  D.  D.,  deceased  i.or,  arlministrator  of  the  goods, 
chattels,  and  credits  which  were  of  D.  D.,  deceased; 
or,  trustee  of  the  estate  of  D.  D.,  etc.),  do  hereby 
certify  that  a  mortgage  made  and  executed  by 
E.  F.  to  the  said  D.  D.,  in  his  lifetime  (or,  to  me  as 
such  trustee  as  aforesaid \  bearing  date,  etc.  {follo^v 
:h'  preceding  forms  as  the  case  may  require).     P.  X. 

ExecMte4  jn  pres(:n«c  pf  W.  Si      • 


Acknowledgments-Satisfaction  of 
Judgement. 

In  a  Court  of  Record. 
Satisfaction  of  judgments  in  courts  of  record  may  be 
acknowledged   by  the  attorney  within  two  years  after 
filmg  the  record  of  the  judgment." 

Supreme  Court,  (or Common  Pleas). 

A.  B.     1      Of term,  A.  D. . 

vs.        [-     Satisfaction  for  $— — . 
C.  D.     )      Satisfaction     is    acknowledged    be- 
tween A.  B.,  plaintiff,  and  C.  D.,  defendant,  in 

said  action,  for dollars.    Judgment  docketed 

the day  of ,  A.  D. . 

A.  B.,  (or,  A.  A.,  Attorney  for  plaintiff). 
Subscribed  and  acknowledged  before  me,  the 

day  of ,  A.  D. ,  by  A.  B.,  known  to 

me  (or,  made  known  to  me),  to  be  the  plaintiff  in 
the  above  entitled  cause  (or,  the  attorney  for  the 
plaintiff  in  the  above  entitled  cause). 

J.  P.,  Justice  of  the  Peace. 

Acknowledgment— Satisfaction  of 

JudsTment. 

In  a  Justice's  Court,  where  a   Transcript  is  fled  it 

the  County  Clerk's  Office.^ 

County  Clerk's  office. 

A.  B.     ~|     Judgment  rendered  in  favor  of  the 

vs.         >  plaintiff    against    defendant,    before 

C.  D.     j    J.  P.,  Esq.,  a  justice  of  the  peace  in 

and   for  said   county,  for  dollars,  and  ■ 

cents,  debt  (or,  damages),  and  costs. 
Transcript  filed   and  judgment  docketed,   the 

day  of ,  A.  D. . 

Satisfaction  of  the  above-mentioned  judgment 
is  hereby  acknowledged.  A.  B. 

Subscribed  and  acknowledged  before  me,  the 

day   of  ,  A.  D. ,  by  A.  B.,  known  to 

me  to  be  the  plaintiff  above  named  (or,  mad'i 
known  to  me  by  the  oath  of  W.  S.,  to  be,  or,  known  to 
me  to  be  one  of  the  plaintiffs,  etc.)  ' 

J.  P.,  Justice  of  the  Peace. 

Authentication  of  the  Connty  Clerk,  etc. 

To  be  annexed  to  the  Certificate  of  Ackno7vledgment  or 
Proof,  taken  according  to  the  laws  of  another  State. 

State  of , county,  ss. 

I,  C.  C,  clerk  (recorder,  register,  or  prothonotary), 

of  said  county  (or  of court  of  said  county),  do 

hereby  certify  that  A.  B. ,  who  subscribed  the 
foregoing  certificate  of  acknowledgment  (or 
proof),  was  at  the  time  of  taking  such  acknowl- 
edgment (<pr  proof )  a  notary  public  (or^  other  officer), 
residing  in  said  county,  and  duly  authorized  to 
take  and  certify  the  same  by  the  laws  of  said 
State,  and  that  the  same  is  taken  and  certified  in 
all  respects  as  required  by  the  laws  of  said  State. 
That  1  am  well  acquainted  with  the  handwriting 
of  said  A.  B.,and  verily  believe  that  the  signa- 
ture attached  to  the  foregoing  certificate  is  the 
genuine  signature  of  said  A.  B. 

■Witness  my  hand  and  official  seal,  this day 

of ,  A.  D. . 

{Offuial seal.^  C.  C,  Clerk,  etc. 

Satisfaction  of  Mortgeagee  and  Acknowl* 
edg-ment. 

By  Individual  knozvn  to  the  officer. 

I,  A.  B.,  of  the  town  of ,  in  the  county  of 

,  and  State  of ,  do  hereby  certify,  that  a 

certain  mortgage,  bearing  date  the  day  of 

,  A.  D. ,  made  and   executed  by  C.  D.,  of 

the  first  part,  to  me,  the  said  Pl.  B.,  of  the  second 
part,  and  recorded  in  the  office  of  the  clerk  of  the 
county  of ,  in  book  —  of  mortgages,  at  pages 

-  and  — ,  on  the day  of ,  A.  D. of  the 

mortgage  has  been  assigned,  insert  the  name  of  the 
assignee  instead  of  A.  B.  at  the  commencement  of  the 
certificate;  omit  the  words  "  me,  the  said,"  in  italics; 
and  say  here:  and  which  said  mortgage  was  duly 
assigned  to  me  by  the  said  A.  B.,  the  mortgagee 

above  named,  by  assignment,  dated  the  day 

of ,  in  the  year ,  and  recorded  in  the  office 

of  the  clerk   of  the   county  of  aforesaid,  in 

book  —  of  mortgages,  at  page  — ,  on  the day 

of ,  A.  D. )  is  fully  paid,  satisfied,  and  dis- 
charged. 

Dated  the day  of ,  A.  D. .       A.  B. 

Executed  in  presence  of  W.  S. 

C-»  R.  S.  36a.    a-a  R.  S.  248,  J  12?. 


ACKNO  W  LEDGMENT. 


37 


State  of , county,  ss. 

On  this day  of ,  in  the  year ,  before 

.ne  name  and  title  of  officer),  came  A.  B.,  known 
to  me  to  be  the  individual  described  in,  and  who 
executed  the  above  certificate,  and  he  acknowl- 
edged that  he  executed  the  same. 

J.  P.,  Justice  of  the  Peace. 
NORTH  CAROLINA. 

Where  the  grantor  or  maker  and  the  subscrib- 
ing witness  to  any  deed  conveying  lands  in  this 
State,  or  the  maker  of  any  letters  of  attorney,  or  other 
instruments  conveying  the  same,  shall  reside  beyond 
the  limits  of  the  State,  but  within  the  United 
States,  they  shall  acknowledge  the  same  before  a  judge, 
clerk  of  a  court  of  record,  notary  public  having  a 
notarial  seal,  mayor  of  a  city  having  a  seal,  or  J.  P.  of 
the  State  in  which  such  grantor,  etc.,  resides.  These 
officers  can  also  take  the  private  examination  of  a  mar- 
ried woman,  to  which  they  must  certify  under  their 
respective  seals.  If  the  instrument  is  acknowledged  or 
proven  before  a  J.  P.,  a  certificate  from  the  clerk  of  the 
court  of  record  of  the  county  in  which  such  J.  P.  re- 
sides, mast  be  appended  to  the  effect  that  such  J .  P.  was 
acting  J.  P.  at  the  time  of  taking  the  acknowledgment, 
etc.,  and  that  his  genuine  signature  is  affixed  to  the 
probate.^  Any  commissioner  of  affidavits  for  the  State 
of  N.  C,  appointed  by  the  governor  thereof,  in  any  of 
the  States  and  Territories  of  the  U.  S.,  or  in  the  Dis. 
of  Col.,  may  also  take  and  certify  the  acknowledgment 
or  probate  of  deeds  or  other  instruments. 

Where  the  grantor  or  maker  and  the  subscrib- 
ing witness  reside  beyond  the  litnits  of  the  United 
States,  the  acknowledgment  or  probate  may  be  before 
the  chief  magistrate  of  any  city  in  the  country  where 
the  grantor  or  witness  is  resident;  or  before  any  am- 
bassador, minister,  consul,  or  commercial  agent  of  the 
United  States ;  and  where  such  proof  or  acknowledg- 
ment is  certified  under  the  corporate  seal  of  such  chief 
magistrate,  or  under  the  official  seal  of  such  ambassa- 
dor, minister,  consul,  or  commercial  agent,  and  where 
such  certificate  is  affixed  to  the  seal  or  other  instrument, 
and  the  same  is  exhibited  before  the  pribp.te  judge 
having  jurisdiction,  he  shall  adjudge  that  such  deed  or 
other  instrument  is  duly  proved  or  acknowledged.  r>nd 
shall  thereupon  order  its  registration  where  such  regis- 
tration is  necessary. » 

When  a  deed,  power  of  attorney,  or  other  in- 
strument shall  affect  the  rights  of  a  married 
^voman,  it  must  be  jointly  executed  by  both  husband 
and  wife,  must  be  acknowledged  by,  or  proved  as  to 
both,  and  she  must  be  examined  privily  and  apart  from 
her  said  husband  touching  her  voluntary  assent  thereto. 
If  the  wife  reside  in  some  other  State,  her  acknowledg- 
ment and  privy  examination  must  be  before  a  commis- 
sioner appointed  by  the  probate  judge  having  jurisdic- 
tion, or  a  commissioner  of  affidavits  for  the  State  of 
North  Carolina,  appointed  by  the  governor  thereof,  for 
the  State  in  which  the  wife  resides ;  and  a  certificate  of 
such  acknowledgment  and  examination  must  be  re- 
turned to  the  probate  judge  of  the  proper  county. » 

Whenever  the  subscribing  witness  to  any  instrument 
required  or  allowed  to  be  registered,  shall  be  a  non-resi- 
dent, or  shall  be  dead,  and  the  maker  shall  also  be  a 
non-resident  or  dead,  the  proof  of  the  handwriting  of 
such  witness  and  that  of  the  maker,  before  the  judge  of 
probate  of  the  county  where  the  instrument  is  sought  to 
be  registered,  shall  be  sufficient  evidence  of  the  execu- 
tion thereof  to  admit  the  same  to  registration,  and  in 
case  such  maker  shall  have  subscribed  with  a  mark 
only,  the  proof  of  the  signature  of  such  witness  shall  be 
sufficient.  Whenever  any  such  instrument  shall  not 
have  a  witness,  and  the  maker  thereof  shall  be  a  non-resi- 
dent or  dead,  proof  of  his  handwriting  shall  be  sufficient 
to  admit  the  same  to  registration. J 

The  certificate  of  acknowledgment  must  state  that  the 
wifi:  relinquishes  her  dower. 

Acknowledg'ment— Husband  and  Wife. 

State  of ,  county  of ,  ss. 

Before  me  (name  and  title  of  nfficer),  this  day  per- 
sonally appeared  A.  B.  and  ^V.  B.  his  wife,  gran- 
tors named  in  the  foregoing  deed  of  conveyance 
(or  other  instrument),  and  the  said  deed  being  also 

X-See  General  Statutes.  y-Act  1870-71,  ch.  271. 
«-See  Battle's  Rev.  ch.  35.  a-9  Ohio,  121 ;  19  Id. 
406.  b-2  Ohio  St.  373;  1  Ohio,  i;  11  Id.  475,  470. 
c-3  Id.  154;  10  Id.  142.  d-S.  &  C.  ch.  75,  g  12.  e-S. 
&  C.  ch.  34,  \  26.  f-2  Ohio,  55  ;  3  Id.  140;  9  Id.  168  ; 
|o  Id.  l8g :    6  Id.   247.     §^-13  14.  360.     I1-17  Id.  ^^2 ; 


produced  and  exhibited  before  me,  the  said  A.  B. 
and  ^V.  B.  acknowledged  the  execution  thereof 
by  them  as  their  act  and  deed  for  the  purposes 
therein  expressed,  and  the  said  ^V.  B.,  being  by 
me  privately  examined,  separate  and  apart  from 
her  said  husband,  touching  her  free  consent  in 
the  execution  of  the  said  deed  of  conveyance,  in 
her  examination  declared  to  me  that  she  executed 
the  same  freely,  voluntarily,  and  without  com- 
pulsion or  restraint  upon  the  part  of  her  said  hus- 
band, or  any  other  person  whatsoever,  and  did 
still  voluntarily  assent  thereto. 

In   testimony   whereof,   I    have   set    my  hand 

and  affixed  my  ofBcial  seal  this day  of , 

A.  D. . 

\Seal.\  {Signature  and  title  of  officer.) 

Proof  by  Subscriblnje'  M'itness. 

State  of ,  county  of ,  ss. 

Be  it  remembered,  that  on  this day  of , 

A.  D.  ,  personally  appeared  W.  T.,  the  sub- 
scribing witness  to  the  foregoing  deed,  to  me 
personally  known,  who  on  oath  duly  proves  the 
execution  thereof  for  the  purposes  therein  ex- 
pressed. 

In  testimony  whereof,  I  have  hereunto  set  my 
hand  and  affixed  my  official  seal,  the  day  and 
year  above  mentioned. 

\Seal.\  {Signature  and  title  of  officer.') 

The  certificate  of  acknowledgment  of  husband  or 
wife  on  the  sale  of  the  husband's  land  is  the  same  form 
as  the  above,  leaving  out  the  closing  words,  "and  did 
still,"  etc.,  and  inserting  in  lieu  thereof  the  following, 
"and  this  she  does  in  relinquishment  of  her  dower  in 
the  land  mentioned  in  said  deed."  * 

OHIO. 

Any  instrument  of  writing,  by  which  any  land, 
tenement,  or  hereditament  is  conveyed  or  other- 
wise affected  or  incumbered  in  law,  must  have  the 
signing  acknowledged "  by  the  grantor  or  grantors, 
maker  or  makers,  in  the  presence  of  two  witnesses,  be- 
fore a  judge  of  the  supreme  court  or  of  the  court  of 
common  pleas,  a  J.  V.^  notary  public,  mayor,'  or  other 
presiding  officer  of  an  incorporated  town  or  city,  a  com- 
missioner of  Ohio,''  clerk  of  court,  probate  judge,  county 
surveyor,  a  consul  of  the  U.  S.  resident  in  any  port  or 
country,"  who'  must  certify  such  acknowledgments  on 
the  same  sheet  on  which  such  deed,  mortgage,  or  other 
instrument  of  writing  may  be  printed  or  written  and 
must  subscribe  his  name  to  such  certificate.'' 

When  a  husband  and  wife,  she  being  eighteen  years 
of  age'  or  upward,  executes  within  this  Slate  any  deed, 
mortgage,  or  other  instrument  of  writing  for  the  con- 
veyance or  incumbrance  of  the  estate  of  the  wife.J  or  her 
right  to  dower^  in  any  land,  tenement,  or  hereditament, 
situate  within  this  State,  such  deed,  mortgage,  or  other 
instrument  of  writing  must  be  signed  by  the  husband  and 
wife ;  and  such  signing  must  be  attested  and  acknowl- 
edged as  aforesaid  ;  no  separate  examination  of  the  wife 
is  required.' 

All  deeds,  mortgages,  powers  of  attorney,  and 
Other  instruments  of  writing  for  the  conveyance 
or  incumbrance  of  any  lands,  tenements,  and 
hereditaments  situate  vvrithin  this  State,  executed 
and  acknowledged,  or  proved  in  any  other  State, 
Territory,  or  country  in  conformity  with  the  laws  of 
such  State,  Territory,  or  country,  or  in  conformity  with 
the  laws  of  this  State,  is  as  valid  as  if  executed  in  this 
State,  in  conformity  with  the  laws  relating  thereto." 
Ackiioivledg^niont— M'itb    Dower. 

State  of  Ohio, County,  ss. 

Be  it  remembered,  that  on  the day  of ,  in 

the  year  of  our  Lord  One  Thousand  Eight  Hun- 
dred and  Ninety ,  before  me,  the  subscriber, 

a within  and  for  said  county,  personally  came 

,   the    grantors    in    above    conveyance,  and 

acknowledged  the  signing  thereof  to  be  their 
voluntary  act  and  deed  for  the  purpose  therein 
mentioned. 

In  witness  whereof,  1  have  hereunto  subscribed 

my  name  and  affixed  my seal  on  the  day  and 

year  aforesaid. 

iSeal.\  {Official  title.) 

S.  &  C.  ch;  34,  g  15.  l-io  Ohio,  37,  42.  j-17  Id.  105  ; 
9  Id.  121  ;  7  Ohio  St.  37  ;  10  Ohio,  305  ;  6  Ohio  St.  466. 
I1-16  Ohio,  gi,  323;  7  Id.  (pt.  1)  194;  3  Ohio  St.  78. 
1-5  Ohio  St.  319.  n-Id.  §5:3  Ohio,  107  ;  9  Id.  izi ;  a 
Id.  2^4:  3  Id.  .(88;  2  Id.  12.^;  10  Id,  188;  11  Id.  47$. 


38 


ACKNOWLEDGMENT. 


Acknowlcdiirmeiit— Without   Mower. 

State  of  Ohio, County,  ss. 

Be  it  remembered,  that  on  the day  of ,  in 

the  year  of  our  Lord  One  Thousand  Eight  Hun- 
dred and  Ninety .before  me,  the  undersigned, 

a within  and  for  said  County,  personally  came 

the   grantor   in    the   above  conveyance,  and 

acknowledged  thesigning  thereof  to  be volun- 
tary act  and  deed  for  the  purposes  therein 
mentioned. 

In  witness  whereof,  I  have  hereunto  subscribed 

my  name  and  affixed  my seal  on  the  day  and 

year  aforesaid. 

[Sea/,]  (Official  title.) 

Acknowledgment— By    Attorney. 

State  of  Ohio, County,  ss. 

Be  it  remembered,  that  on  the day  of ,  in 

the  year  of  our  Lord  One  Thousand  Eight  Hun- 
dred and  Ninety ,  before  me,  the  subscriber,  a 

within  and  for  said  County,  personally  came 

,  by Attorney  in  fact,  the  grantor  — -  in 

above  conveyance,  and  acknowledged  the  sign- 
ing thereof  to  be voluntary  act  and  deed  for 

the  purposes  therein  mentioned. 

In  witness  whereof,  I  have  hereunto  subscribed 

my  name  and  affixed  my seal  on  the  day  and 

year  aforesaid. 

[Seal.]  (Official  title.) 

Acknowledgment— or  Administrator, 
Executor,  or  Guardian. 

State  of  Ohio, County,  ss. 

Be  it  remembered,  that  on  the day  of ,  in 

the  year  of  our  Lord  One  Thousand  Eight  Hun- 
dred and  Ninety ,  before  me,  the  subscriber, 

a within  and  for  said  County,  personally  came 

,  (executor  of  the  last  Will   and   Testament  of 

deceased),  or  (Administrator  of  the  estate  of de- 
ceased), or  (Guardian  of  the   person   and   estate  of 

minor  heir  of deceased),  the  grantor  —  in   above 

conveyance,   and    as    such  —  acknowledged    the 

signing  thereof  to  be voluntary  act  and  deed 

for  the  purposes  therein  mentioned. 

In  witness  whereof,  I  have  hereunto  subscribed 

my  name  and  affixed  my seal  on  the  day  and 

year  aforesaid. 

[Seal.]  {Official  title.) 

The  within  deed  approved  by  me  this day 

of 189  — 

[Seal.]  {Probate  Judge.) 

Acknowledgrment— or  Sheriff. 

State  of  Ohio, County,  ss. 

Beitremembered.that  on  the ^'^.°^ •  *" 

the  year  of  our  Lord  One  Thousand  Eight  Hun- 
dred and  Ninety ,  before    me,  the  subscriber, 

a within  and  for  said  County,  personally  came 

Sheriff  of County,  in  the   State  of   Ohio, 

the  grantor  —  in  above  conveyance,  and  ac- 
knowledged the  signing  thereof  to  be volun- 
tary act  and  deed  for  the  purposes  therein  men- 
tioned. 

In  witness  whereof,  I  have  hereunto  subscribed 

my  name  and  afBxed  my seal  on  the  day  and 

year  aforesaid. 

[Seai:\  {Official  title.) 

Acknowled^rment— Tax  Deed. 

State  of  Ohio, County,  ss. 

Be  it  remembered,  that  on  the day  of ,  in 

the  year  of  our  Lord  One  Thousand  Eight  Hun- 
dred and   Ninety ,  before  me,  the  subscriber, 

a within  and  for  said  county,  personally  came 

,  Auditor  of County,  in  the  State  of  Ohio, 

the  grantor  —  in  above  conveyance,  and  ac- 
knowledged the  signing  thereof  to  be  —  voluntary 
act  and  deed  for  the  purposes  therein  men- 
tioned. 

In  witness  whereof,  I  have  hereunto  subscribed 

my  name  and  affixed  my seal  on  the  day  and 

year  aforesaid. 

\J$€al.}  {fiffUial  title.) 


Conveyances,  etc.,  cannot  be  proved  by  subscribing 
witnesses,  but  must  be  acknowledged  by  the  grantors  iu 
the  presence  of  such  witnesses. 

OREGON. 

Conveyances,  etc.,  executed  in  any  other  State, 
Territory,  or  district  of  the  United  States,  may  be 
executed  according  to  the  laws  of  such  State,  Territory 
or  district,  and  the  execution  thereof  may  be  acknowl- 
edged before  any  judge  of  a  court  of  record,  justice  of 
the  peace,  or  notary  public,  or  other  officer,  authorized 
by  the  laws  of  such  State,  Territory,  or  district,  to  take 
the  acknowledgment  of  deeds  therein,  or  before  any 
commissioner  appointed  by  the  governor  of  Oregon  lor 
such  purposes." 

Unless  the  acknowledgment  be  taken  before  a  com- 
missioner appointed  by  tbe  governor  of  Oregon  for  that 
purpose,  or  before  a  Notary  Public,  certified  under  his 
notarial  seal,  or  before  the  clerk  of  a  court  of  record, 
certified  under  the  seal  of  the  court,  such  deed  shall 
have  attached  thereto  a  certificate  of  the  clerk,  or  other 
proper  certifying  officer  of  a  court  of  record  of  the 
county  or  district  within  which  such  acknowledgment 
was  taken,  under  the  seal  of  his  office,  that  the  person 
whose  name  is  subscribed  to  the  certificate  of  acknowl- 
edgment was,  at  the  date  thereof,  such  officer  as  he  is 
represented  to  be,  and  that  he  believes  the  signature  of 
such  person  subscribed  thereto  to  be  genuine,  and  that 
the  deed  is  executed  and  acknowledged  according  to 
the  laws  of  such  State,  Territory  or  district."  A  mar- 
ried woman  must  join  with  her  husband  in  making  a 
deed. 

Acknowledgement — General  Form. 

State  of ,  county  of ,  ss. 

On  this day   of ,  A.  D. ,   personally 

came  before  me  {namf  and  title),  in  and  for  said 
county,  the  within-named  A.  B.  and  W.  B. 
his  wife,  to  me  personally  known  to  be  the  iden- 
tical persons  described  in,  and  who  executed 
the  within  instrument,  and  acknowledged  to  me 
that  they  executed  the  same  freely  and  volun- 
tarily for  the  uses   and  purposes  therein  named. 

^Vitness  my  hand  and  seal  this day  of , 

A.  D. . 

[Seal.]  {Signature  and  title  of  Officer^ 

PENBfSYLVAHriA. 

Conveyances,  etc.,  executed  in  the  State,  must  be 
acknowledged  before  justices  of  the  supreme  court  of 
Pennsylvania,  judges  of  the  courts  of  common  pleas, 
mayor,  of  Philadelphia,  Pittsburgh,  Allegheny,  Scran- 
Ion,  Williamsport,  Lock  Haven  and  Carbondale,  the 
recorders  of  deeds,  and  notaries  public,  and  all  justices 
of  the  peace. 

Out  of  the  State,  before  the  mayor  or  chief 
magistrate  of  the  city,  town,  or  place  where  the  deed 
is  executed  (under  the  public  seal)  ;  any  justice  or  judge 
of  the  supreme  or  superior  court,  or  court  of  common 
pleas:  or  of  any  court  of  probate  or  court  of  record  of 
any  State  or  Territory  in  the  United  States  (certified 
under  the  hand  of  the  judge  and  the  seal  of  the  court); 
before  any  judge  of  the  United  States  supreme  court,  or 
of  any  United  States  district  court,  before  any  officer  or 
magistrate  of  any  State  or  Territory  in  the  United  States, 
who  is  authorized  by  the  laws  of  his  own  State  or  Ter- 
ritory to  take  acknowledgments  therein.  The  proof 
of  such  authority  is  the  certificate  of  the  clerk  or  pro- 
thonotary  of  any  court  of  record  in  such  State,  under 
seal  of  the  court  that  the  officer  taking  such  acknowl- 
edgment is  duly  qualified  to  take  the  same  ;  before 
ambassadors  and  other  public  ministers  of  the  United 
States  (under  official  seal) ;  consuls  and  vice-consuls 
of  the  United  States  (under  consular  seal) ;  before  any 
notary  public  in  any  State  or  Territory  of  the  United 
States,  or  in  any  foreign  county  ;  before  commissioners 
appointed  by  the  governor  in  any  State,  Territory,  01 
foreign  country,  whose  commissions  last  five  years 
unless  sooner  revoked.  Where  the  person  making  the 
acknowledgment  is  in  the  military  service  of  the 
United  States,  before  any  person  holding  the  rank  oC 
major,  or  any  higher  rank  in  the  said  military  service 
under  a  commission  from  the  governor  of  Pennsylvania. 
The  seal  is  prima  /acie  evidence  of  its  own  gen- 
uineness." 

Acknowledgments,  taken  by  commissioners  of  deeds 
out  of  the  State,  need  not  be  certified,  except  under 
their  own  seals." 

No  deed  or  contracts  relating  to  real  estate  by  a  wife, 
9-^e  Qeneral  Statute;. 


ACKNOWLEDGMENT. 


39 


whellier  it  be  her  own  or  her  husband's,  is  binding 
iipoii  her  unless  acknowledged. P  The  wife  must  ac- 
knowledge on  separate  examination,  and  her  signature 
cannot  be  proved. P 

A  deed  by  a  corporation  should  be  executed  by  its 
corporate  seal  attested  by  the  president  and  secretary  .P 

Acknowlodi^nieut— General  Form. 

State  of  Pennsylvania, county,  ss. 

Be  it  remembered,  that  on  the day  of , 

A.  D. ,  before  me,  one  of  the  justices  of  the 

peace  in  and  for  the  said  county,  personally  ap- 
peared  the   above-named   A.    B. ,  and   acknowl- 

adged  the  foregoing to  be  his  act  and  deed, 

and  desired  that  the  same  might  be  recorded  as 
such  according  to  lav^r. 

1    In  testimony  whereof,  I  have  hereunto  set  my 
.land  and  seal  the  day  and  year  above  wrritten. 
J.  P.,  jfustice  of  the  Peace.     [6Va/.] 

Acknowledg'incnt — Hu^ibantl  and  Wife. 

State  of  Pennsylvania, county,  ss. 

On  this day  of ,  A.  D.  one  thousand  eight 

hundred  and .before  me  (one  of  the  justices  of 

the  peace  in  and  for  said  county),  came  the  above- 
named  A.  B.  and  'W.  B.  his  wife,  and  severally 
acknowledged  the  within  written  indenture  to  be 
their  act  and  deed,  and  desired  that  the  same 
might  be  recorded  as  such  according  to  law. 
She,  the  said  W.  B.,  being  of  full  age,  and  by  me 
examined  separate  and  apart  from  her  husband, 
(the  full  contents  thereof  being  first  made  known 
to  her,  declaring  that  she  did  voluntarily,  and  of 
her  own  free  will  and  accord,  seal,  and  as  her  act 
and  deed  delivered  the  said  indenture  without 
any  coercion  or  compulsion  on  the  part  of  her 
said  husband. 

In  testimony  whereof,  I  have  hereunto  set  my 
hand  and  seal  the  day  and  year  aforesaid. 

fS?a/.]  {Si^^nature  and  title  of  officer.) 

Acknowled^rment— lfu««band  and  Wife. 

State  of  Pennsylvania, county,  ss. 

Be  it  remembered,  that  on  the day  of , 

A.  D. ,  before   me  (name  and  title  of  official), 

duly  commissioned  in  and  for  said  county,  came 
A.  B.  and  W.  B.  his  wife,  and  acknowledged  the 
foregoing  indenture  to  be  their  act  and  deed,  and 
desired  the  same  to  be  recorded  as  such.  She, 
the  said  'W.,  being  of  lawful  age,  and  by  me 
examined  separate  and  apart  from  her  said  hus- 
band, and  the  contents  of  said  deed  being  first 
fully  made  known  to  her,  did  thereupon  declare 
that  she  did  voluntarily  and  of  her  own  free  will 
and  accord,  sign  and  seal,  and  as  her  act  and 
deed,  deliver  the  same  without  any  coercion  or 
compulsion  of  her  said  husband. 

■Witness  my  hand  and  seal  the  day  and  year 
aforesaid. 

\Seal.']  {Signature  and  title  of  officer.) 

AcUnowledsrment^By  Attorney. 

State  of  Pennsylvania, county,  ss. 

Before  me,  one  of  the  justices  of  the  peace  in 
and  for  the  said  county,  personally  came  the 
above-named  A.  B. ,  and  in  his  own  name,  and  in 
the  names  of  his  constituents,  the  above-named 
C.  D.  and  E.  F.,  in  due  form  of  law,  acknowl- 
edired  the  above  written  indenture  to  be  his  own 
act  and  deed,  and  the  act  and  deed  of  his  constit- 
uents, the  said  C.  D.  and  E.  F.,  by  him,  the  caid 
A.  B.,  done  and  executed  by  virtue  of  a  letter  of 
attorney  to  him  for  that  purpose,  granted  to  the 
pnd  that  the  same  might  be  as  such  recorded. 

Witness  my  hand  and  seal  the day  of , 

A.  D. . 

^  Sea  I.  ]  {Signature  and  title. ) 

Acknowledgement— Before  Commis- 
siioncrs. 

State  of  Pennsylvania,  city  of  Philadelphia,  ss. 

Be  it  remembered,  that  on  this day  of , 

A.  D. ,  before  the  subscriber,  C.  R.,  commis- 
sioner for  the  State  of  Delaware,  resident  in  said 
State  of  Pennsylvania,  to  take  acknowledgments 
of  deeds,  etc.,  personally  appeared  A.  B.  and  W. 
his  wife,  named  in  this  indenture,  and  severally 
acknowledged  said  indenture  to  be  their  act  and 
deed  respectively,  and  desired  that  it  might  be 
recorded.   And  that  on  the  same  day  the  said  AV., 

p-S«e  Genera}  Sta^iite;, 


\vife  of  the  said  A.  B.,  being  privately  examined 
by  the  subscriber,  apart  from  her  said  husband, 
acknowledged  that  she  executed  the  said  inden- 
ture willingly,  without  compulsion,  or  threatfc 
or  fear  of  her  husband's  displeasure. 

In  testimony  whereof,  I  have  hereunto  set  my 
hand  and  affixed  my  official  seal  the  day  and  year 
aforesaid. 

{Seal.  J  {Signature  and  title.) 

State  of  Pennsylvania,  city  of  Philadelphia,  ss. 

Be  it  remembered,  and  it  is  hereby  certified, 

that  on  this day  of ,  A.  D. ,  before  me, 

C.  R.,  commissioner  for  the  State  of  Maryland, 
resident  in  the  State  of  Pennsylvania,  to  take  ac- 
knowledgments, etc.,  personally  appeared  A.  B. 
and  \V.  B.  his  wife,  they  being  known  to  me  {or 
they  being  satisfactorily  proven  by  oral  testimony  under 
oath  received  by  me)  to  be  the  persons  named  and 
described  as  and  professing  to  be  parties  to  the 
foregoing  indenture  or  instrument  of  writing,  and 
do  severally  acknowledge  the  same  to  be  their 
act  and  deed.  The  said  W.  B.,  having  signed 
and  sealed  the  said  instrument  or  indenture  be> 
fore  me,  out  of  the  presence  and  hearing  of  her 
said  husband,  and  being  by  me  examined  out  of 
such  presence  and  hearing,  "  whether  she  doth 
execute  and  acknowledge  the  same  freely  and 
voluntarily,  and  without  being  induced  to  do  so 
by  fear  or  threats  of  ill  usage  by  her  husband,  or 
by  fear  of  his  displeasure,"  declareth  and  saith, 
that  she  doth. 

In  testimony  whereof,  etc. 

{Seal.^  {Signature  and  title.') 

State  of  Pennsylvania,  city  and  county  of  Phila- 
delphia,  ss. 

Be  it  remembered,  that  on  this day  of , 

A.  D. ,  before  me,  C.  R.,  Esq.,  commissioner 

duly  authorized  by  the  governor  of  Alabama,  per- 
sonally appeared  A.  B.,  the  grantor  in  the  above 
and  foregoing  deed  named,  who  acknowledged 
the  same  to  be  his  voluntary  act  and  deed,  signed, 
sealed,  and  delivered,  on  the  day  and  year  therein 

above   mentioned,  to   the  above-named ,  for 

the  purposes  therein  expressed. 

Witness  my  hand  and  seal  the  day  and  year 
aforesaid. 

[Seal.'\  {Signature  and  title.) 

State  of  Pennsylvania,  county  of  Philadel- 
phia, ss. 

Be  it  remembered,  that  on  the day  of , 

A.  D.  ,  before  me  (C.  R.,  commissioner  for 

Massachusetts  within  the  State  of  Pennsylvania, 
duly  authorized  to  take  acknowledgments  of 
deed^  and  other  instruments  under  seal),  person- 
ally appeared  the  within-named  A.  B.  and  'W,  B. 
his  wife,  and  acknowledged  the  foregoing  instru- 
ment, by  them  subscribed,  to  be  their  free  act 
and  deed. 

In  testimony  whereof,  I  have  hereunto  set  my 
hand  and  seal  the  day  and  year  above  written. 

[Seal.'\  {Signature  and  title. ) 

State  of  Pennsylvania,  county  of  Philadel- 
phia, ss. 

Be  it  remembered,  that  on  the day  of , 

A.  D.   ,  before   me,  C.  R.,  commissioner   for 

Maine  within  the  State  of  Pennsylvania,  duly 
authorized  to  take  acknowledgments  of  deeds 
and  other  instruments  under  seal,  personally  ap- 
peared the  above-named  A.  B.  and  "W.  B.  his 
wife,  and  acknowledged  the  within  instrument 
(by  them  subscribed;  to  be  their  free  act  and 
deed. 

In  testimony  whereof,  I  have  hereunto  set  my 
hand  and  seal  the  day  and  year  above  written. 

[Seal.]  (Signature  and  tiile.) 

Ackno^vledgment — Single  Grantor. 
City  and  county  of  New  York,  ss. 

On  this day  of ,  A.  D. ,  before  me, 

came  C.  R.,  a  resident  of ,  to  me  known  to  be 

the  person  described  in  and  who  executed  the 
within  instrument  in  writing,  and  who  acknowl- 
edged duly  to  have  executed  the  same,  and  this 
to  me  is  satisfactory  proof  of  the  execution  of  the 
said  written  instrument- 
In  testimony,  etc. 
{Seal.]  {SifttatHre  ^nd  tttif-) 


40 


ACKNOWLEDGMENT. 


Acknowledgment — Grantor  and  IVi/e. 
City  and  county  of  New  York,  ss. 

On  this  day  of ,  A.  D. ,  before  me, 

came  A.  B.  and  W.  his  wife,  residents  of ,  to 

me  known  to  be  the  persons  described  in  and 
who  executed  the  within  instrument  in  writing, 
and  who  acknowledged  duly  to  have  executed 
the  same,  and  the  said  W.  i.the  wife)  having  been 
separately  examined  by  me,  acknowledged  that 
■he  executed  the  said  instrument  of  her  own  free 
'will  and  accord,  all  which  is  to  me  satisfactory 
proof  of  the  execution  of  the  said  written  instru- 
ment by  the  parties  aforesaid. 

In  testimony,  etc. 

[&a/.]  {Sisnature  and  title.) 

Proof  by  a   Witness. 

City  and  county  of  New  York,  ss. 

On  this  day  of ,  A.  D. ,  before  me, 

came  W.  S.,  a  resident  of ,  to  me  personally 

known  as  such  (or  proved  to  me  by  the  oath  of , 

a  resident  of ,  [who  is  personally  known  to  me  as 

suchj  to  be  the  same  person),  and  being  sworn,  de- 
poseth,  that  he  was  present  and  saw  A.  B.  duly 
execute  the  within  instrument  in  writing,  that 
this  witness  has  known  the  said  A.  B. ,  and  knows 
him  to  be  the  person  described  in  and  who  exe- 
cuted the  said  instrument,  and  this  is  satisfactory 
proof  to  me  of  the  execution  of  the  said  instru- 
ment.   In  testimony,  etc. 

\Seal.\  {Signature  and  title.) 

Acknoivledgrmeiit — By  a  Corporation. 

State  of  Pennsylvania, county,  ss. 

Before  me,  one  of  the  justices,  etc.,  personally 
appeared  A.  B.,  Esq.,  president  of  the  above- 
named  corporation,  who,  being  duly  sworn,  de- 
poseth  and  saith,  that  he  was  personally  present 
at  the  execution  of  the  above  written  indenture, 
and  saw  the  common  seal  of  the  said  {name  of 
torforation)  duly  affixed  thereto,  that  the  seal  so 
amxed  is  the  cotnmon  and  corporate  seal  of  the 

said  ,  and   that  the  above   written  was 

duly  sealed  and  delivered,  by,  as,  and  for  the  act 

and  deed  of  the  said  corporation  of  the ,  for  the 

uses  and  purposes  therein  mentioned.  And  that 
the  name  of  this  deponent  subscribed  to  the  said 
deed  as  president  of  the  said  corporation,  in  attes- 
tation of  the  due  execution  and  delivery  of  said 
deed,  is  of  this  deponent's  proper  handwriting. 

Sworn  and  subscribed  before  me  this day 

of ,  A.  D. . 

\Seal.  ]  (Signature  and  title. ) 

Acknowledgment — Renunciation  of 
Dower. 

Renunciations  of  inheritance  and  dower  are  indorsed 
upon  the  deed. 

State  of  Pennsylvania,  etc. 

I,  C.  S.  C,  commissioner  appointed  under  the 
act  of   the   General   Assembly  of   the    State   of 

South  Carolina,  of  the day  of ,  A.  D. , 

to  take  renunciations  of  dower  and  inheritance, 
etc.,  in  the  State  of  Pennsylvania,  do  hereby 
certify,  to  all  whom  it  may  concern,  that  W.  B., 
the  wife  of  the  within-named  A.  B.,  did  this  day 
appear  before  me,  and  upon  being  privately  and 
separately  examined  by  me,  did  declare  that  she 
does  freely,  voluntarily,  and  without  any  com- 
pulsion, dread,  or  fear  of  any  person  or  persons 
^whomsoever,  renounce,  release,  and  forever  re- 
Unauish  unto  the  within-named  A.  B.,his  heirs 
and  assigns,  all  her  interest  and  estate,  and  also 
all  her  right  and  claim  of  dower,  of,  in  or  to,  all 
and  singular  the  premises  within  mentioned  and 
released. 

Given  under  my  hand  and  seal  this day  of 

,  A.  D. .       {Seal.l        {Signature  and  title.) 

Acknowledsrnient— Renunciation   of 
Inlieritance. 

State  of  Pennsylvania,  city  of  Philadelphia,  ss. 

I,  C.  S.  C,  commissioner  appointed  under  the 
act  of  the  General  Assembly  of  the  State  of  South 

Carolina,  of  the day  of ,  A.  D. ,  to  take 

renunciations  of  dower  and  inheritance,  etc.,  in 
the  State  of  Pennsylvania,  do  hereby  certify  unto 
all  whom  it  may  concern,  that  W.  B.,the  wife 
of  the  within-named  A.  B.,  did  this  day  appear 
before  me,  and  upon  being  privately  and  sepa- 
rately examined  by  me,  did  declare  that  she  aid 


actually  join  her  said  husband  in  executing  the 
within  release,  and  that  the  same  was  positively 
and  bona  hde  executed  by  them  at  least  seven 
days  before  this  her  examination,  and  that  she 
did  then  and  still  does  at  this  time  freely,  volun- 
tarily, and  without  any  manner  of  compulsion, 
dread,  or  fear  of  any  person  or  persons  whomso- 
ever, renounce,  release,  and  forever  relinquish 
unto  the  within-named  A.  B.,  his  heirs  and  as- 
signs, all  her  estate,  interest,  and  inheritance,  in 
all  and  singular  the  premises  within  mentioned 
and  released. 

Given  under  my  hand  and  seal  this day  of 

,  A.  D. .      \^Seal.\         (Signature  and  title.)  ' 

Acknowled&rnient— Sheriff's*  l>eed. 

State  of  Pennsylvania, county,  ss. 

Be   it  remembered,  that  this  day  of -, 

A.  D. ,  in  the  open  court  of  common  pleas  of 

said  county,  and  before  the  judges  of  the  said 
court,  came  A.  B.,  high  sheriff  of  said  county, 
and  acknowledged  the  above  deed  poll  to  be  his 
act  and  deed,  and  desired  that  acknowledgment 
of  said  deed  might  be  entered  of  record  among 
the  proceedings  of  the  court,  and  the  same  v^ras 
thereupon  entered  accordingly. 

In  testimony  whereof,  I  have  hereunto  set  my 
hand  and  caused  the  seal  of  the  said  court  to  be 
affixed  the  day  and  year  above  mentioned. 

[5?a/.]  {Signature  and  title.) 

Acknowledgment — Another  Form. 

State  of  Pennsylvania, county,  ss. 

Acknowledged   by   A.  B.,  high   sheriff   of   the 

county  of ,  in  open  court  of  common  pleas,  in 

and  for  the  said  county,  the day  of ,  A.  D. 

,  and  entered  among  the  proceedings  of  the 

court. 

■Witness  my  hand  and  the  seal  of  my  office,  the 
day  and  year  above  written. 

[Seal.  ]  {Signature  and  title.) 

Acknowledgement— By  Special  Part- 
ners. 

State  of  Pennsylvania, county,  ss. 

Before  me,  one  of  the  justices  in  and  for  said 
county,  personally  appeared  the  above-named 
A.  B.,  C.  D.,  and  E.  F.,  who  severally,  in  due 
form  of  law,  acknowledged  the  foregoing  certifi- 
cate as  and  for  theirs,  and  each  of  their  act  and 
deed,  to  the  end  that  the  same  might  be  recorded 
as  such. 

Witness  my  hand  and  seal  this day  of , 

A.  D. .         [Seal.]  (Signature  and  title.) 

Acknowledgment— Writing:  in  English, 
Copy  in  another  Lianguage. 

State  of  Pennsylvania, county,  ss. 

Before  me,  J.  P.,  one  of  the  justices  of  the 
peace  in  and  for  the  said  county,  personally  ap- 
jjeared  the  within  A.  B.,  who  in  my  presence  did 

acknowledge    the    foregoing ,   whereof 

the  annexed  purports  to  be  a  true  translation,  to 
be  his  voluntary  act  and  deed,  and  by  him  de- 
livered to  the  within-named  C.  D.,  for  the  pur- 
poses therein  mentioned the  name  and  seal 

thereunto  prescribed  and  affixed  being  the  proper 
hand  and  seal  of  him,  the  said  A.  B. 

In  testimony  whereof,  I  have  hereunto  set  my 
hand  and  seal  this day  of ,  A.  D. . 

[Seal.  ]  (Signature  and  title.) 

Probate  of  a  Deed  hy  a  M'itness. 

There  must  be  two  loitnesses  to  a  deed  of  real  estate, 
one  of  whom  must  take  this  affidavit  to  be  indorsed  OE 
the  deed  to  entitle  it  to  record  in  South  Carolina. 

One  witness  is  sufficient  for  personal  property. 

State  of  Pennsylvania,  etc. 

Personally  appeared  before  me,  C.  S.  C  ,  com- 
missioner appointed  under  the  act  of  the  General 
Assembly  of  the  State  of  South  Carolina,  of  the 
day  of ,  A.  D. ,  to  take  acknowledg- 
ment or  proof  of  deeds,  etc. ,  in  the  State  of  Penn- 
sylvania, W.  S.,  and  made  oath  that  he  saw  the 
within-named  A.  B.  sign,  seal,  and  as  his  act  and 
deed  deliver  the  within  written  deed,  and  that 
he  with  C.  D.  witnessed  the  execution  thereof. 

In  testimony,  etc. 

[Seal.  ]  (Signatu  re  and  title ,) 

Proof  by  Subscribing  Witness. 

Proof  of  the  execution  of  a  deed  may  be  inade  b^  th« 


ACKNO  WLEDGM  ENT. 


41 


affidavit  of  a  subscribing  witness.  Powers  of  attorney 
relatine  to  real  estate  must  be  acknowledged  the  same 
as  deeds. P 

State  of  Pennsylvania, county,  ss. 

Be  it  remembered,  that  on  the day  of , 

A.  D. ,  before  me.  i^name  and  title  of  official), AvXy 

commissioned  in  and  for  said  county,  personally 
appeared  W.  S.,one  of  the  subscribing  witnesses 
to  the  execution  of  the  above  indenture,  who 
being  duly  sworn  (or  affirmed;  according  to  law, 
doth  depose  and  say  that  he  did  see  A.  B.,  the 
grantor  above  named,  sign  and  seal,  and  as  his 
act  and  deed  deliver  the  above  indenture  (deed  or 
conveyance),  for  the  use  and  purposes  therein 
mentioned,  and  that  he  did  also  see  N.  S.  sub- 
scribe his  name  thereunto  as  the  other  witness 
of  such  sealing  and  delivery,  and  that  the  name 
of  this  deponent  thereunto  set  and  subscribed  as 
a  witness  is  of  this  deponent's  own  proper  hand- 
writing.p  W.  S.,  Witness. 

Sworn  {or  affirmed)  to  and  subscribed  before  me 
the  day  and  year  aforesaid. 

>Vitness  my  hand  and  official  seal. 

\Seal.'\  {Signature  and  title.') 

State  of  Pennsylvania, county,  ss. 

Be  it  remembered,  that  on  the  day  of , 

A.  D.  — -,  before  me  {name  and  title  of  officer), 
personally  came  'W.  T.,  who  being  duly  sworn 
(or  affirmed)  according  to  law,  doth  depose  and 
say,  that  he  was  personally  present  and  did  see 
the  common  or  corporate  seal  of  the  above-named 
[name  of  corporation)  affixed  to  the  foregoing  in- 
denture for  deed  poll).  That  the  seal  so  affixed  is 
the  common  or  corporate  seal  of  the  said  (name 
of  corporation),  and  was  so  affixed  by  the  authority 
of  the  said  corporation  as  the  act  and  deed  there- 
of. That  the  above-named  P.  P.  is  the  president 
of  the  said  corporation,  and  did  sign  the  said  in- 
denture {or  deed  poll)  as  such  in  the  presence  of 
this  deponent.  That  this  deponent  is  the  secre- 
tary of  the  said  corporation,  and  that  the  name 
of  this  deponent  above  signed  in  attestation  of 
tue  due  execution  of  the  said  indenture  (or  deed 
p  ilh  is  of  this  deponent's  own  proper  hand- 
writing. T.  R.,  Treasurer  (or  other  officer). 

Sworn  to  and  subscribed  before  me. 

[&a/.]  {Signattire  and  title.) 

RHODE  ISI^AXp. 

Conveyances,  etc.,  executed  in  this  State,  must  be 
Bcknowledged  before  a  senator,  judge,  justice  of  the 
peace,  notary  public,  or  town  clerk,  and  recorded  or 
lodged  to  be  recorded  in  the  office  of  the  town  clerk  of 
the  town  where  the  land  lies.P 

If  the  grantor  or  grantors  die  or  remove  from  the  State 
before  acknowledgment,  the  supreme  court,  or  court  of 
common  pleas,  on  proof  of  signature,  may  order  the 
■ieed  recorded. p 

Executed  out  of  this  State,  a  conveyance  of  lands 
within  this  State,  or  instrument  relating  thereto  executed 
without  the  limits  of  this  State  and  within  the  United 
States,  may  be  acknowledged  before  any  judge,  justice 
of  the  peace,  mayor,  or  notary  public  in  the  State 
where  the  same  is  executed,  or  by  any  commissioner 
appointed  by  the  governor  and  duly  qualified  there- 
unto ;  and  if  without  the  limits  of  the  United  States,  be- 
fore any  ambassador,  minister,  charg-e  d'affaires, 
recognized  consul,  vice-consul,  or  commercial  agent  of 
the  United  States,  or  by  any  commissioner  appointed 
and  qualified  as  aforesaid,  in  the  country  in  which  such 
deed  or  instrument  is  executed. 1 

Acknowledgment  of  any  deed  hereafter  made,  need 
not  be  in  any  set  form,  but  shall  be  made  by  all  the 
parties  grantors,  including  married  women,  even  though 
releasing  dower  only,  and  the  certificate  thereof  shall 
express  the  ideas  that  the  graiitois  respectively  making 
the  acknowledgment  were  each  and  all  known  to  the 
magistrate  taking  the  acknowledgment,  and  known  by 
the  magistrate  to  be  the  parties  executing  the  instru- 
ment, and  that  they  acknowledged  said  instrument  to  be 
their  free  act  and  deed.  No  other  acknowledgment 
shall  be  required  of  married  women. r 

Acliiio^wleds'inent— State  of    ,  county 

of ,  ss. 

Be  it  remembered,  that  on  this day  of , 

A.  D.   ,  before   me  (name  and  title  of  officer), 

f»-See   General   Statutes.     q-General  Statutes,    162. 
d.  ch.  173.    8-§ee  General  Statutes.    f-Gode,  g  2071. 


personally  appeared  A.  B.  and  W.  B.  both  being 
known  to  me,  and  known  by  me  to  be  the  par- 
ties executing  foregoing  instrument,  and  the  said 
A.  B.  and  W.  B.  acknowldeged  the  same  by  them 
signed,  to  be  their  free  and  voluntary  act  and 
deed,  and  that  they  do  not  wish  to  retract  the 
same. 
In  testimony  whereof,  I  have  set  my  hand  and 

seal  at the  day  and  year  above  written. 

I  Seal.  I  (Si^natnre  and  title  0/  officer.) 


NOVTET  CAROLIHTA. 

Before  any  deed  or  instrument  in  writing  can  be 
recorded  in  the  proper  office  within  this  State,  the 
execution  thereof  shall  first  be  proved  by  the  affidavit 
in  writing  of  a  subscribing  witness  to  such  instrument 
taken  before  some  officer  within  this  State  competent 
to  administer  an  oaih,  or  before  a  commissioner,  or 
commissioners,  appointed  by  dedimus  issued  from  the 
court  of  common  pleas  of  the  county  in  which  the  in- 
strument is  to  be  recorded ;  or,  if  taken  without  the  limits 
of  this  State  and  within  the  United  States,  before  a 
commissioner  of  deeds  of  this  State,  or  before  a  clerk 
of  a  court  of  record,  who  shall  certify  the  same  under 
his  official  seal,  or  before  a  notary  public,  who  shall 
affix  thereto  his  official  seal,  and  accompany  the  same 
with  a  certificate  as  to  his  official  character  from  the 
clerk  of  a  court  of  record  of  the  county  in  which  the 
affidavit  is  taken ;  or,  if  taken  without  the  United  States, 
before  a  consul,  vice-consul  or  consular  agent  of  the 
United  States  of  America. 

(Gen.  Statutes  1882 — Sec.  1777). 

Proof  before  Snbscrlblnir  Witness. 

State  of .county  of , ss. 

Personally  appeared  before  me,  W.  T.,  and 
made  oath  that  he  (or  she)  saw  the  within-named 
A.  B.  (or  parties  to  the  deed)  sign,  seal  and  as  his 
(her  or  their)  act  and  deed,  deliver  the  within- 
written  deed;  and  that  he  (or  she)  with  N,  S.  .wit- 
nessed the  execution  thereof. 

[Signed  I    W.  T.,  fVitness. 

Sworn    to   before    me,    this day    of , 

A.  D. 189    . 

[Seal.  ]  {Signature  and  title  of  officer^ 

Rennnciatfon  of  Dower. 

State  of ,  county  of ,  ss. 

I  (name  and  title  of  officer),  do  hereby  certify 
unto  all  whom  it  may  concern,  that  W.  B.,the 
wife  of  the  within-named  A.  B.,  did  this  day  ap- 
pear before  me,  and  upon  being  privately  and 
separately  examined  by  me,  did  declare  that  she 
does  freely,  voluntarily,  and  without  any  com- 
pulsion, dread,  or  fear  of  any  person  or  persons 
whomsoever,  renounce,  release,  and  forever  re- 
linquish unto  the  within-named  C.  D.,  his  heirs 
and  assigns,  all  her  interest  and  estate,  and  also 
all  her  right  and  claim  of  dower,  of,  in,  or  to  all 
and  singular  the  premises  within  mentioned  and 
released.  {Signature  of  wife.)    W.  B. 

Given  under  my  hand  and  seal  this day  of 

,  A.  D.  . 

[Seal.  1  (Signature  and  title  of  officer. ) 

TENNESSEE. 

Probate  of  conveyances,  etc.,  is  by  not  less  than  two 
subscribing  witnesses.  Acknowledgjnent  is  by  maker 
himself,  in  which  case  there  is  no  need  of  subscribing 
witnesses.  Such  probate  or  acknowledgment  is  evidence 
prima  facie  only  in  the  courts,  of  the  execution  of  the 
instrument.  In  the  absence  properly  accounted  for  of 
the  original  instrument,  a  copy  from  the  office  of  registry 
with  the  certificates  of  probate  or  acknowledgment,  is 
prima  facie  evidence  of  the  contents  and  execution  of 
the  origin.il.« 

The  essential  substance  of  the  certificate  of  probate  is, 
the  oath  of  the  two  subscribing  witnesses  that  they  are 
acquainted  with  the  maker  or  grantor,  and  that  in  their 
presence  he  acknowledged  the  deed,  etc.,  to  be  his  act 
and  deed  on  the  day  it  bears  date,  or  some  designated 
time;  the  essential  substance  of  a  certificate  of  acknowl- 
edgment is  that  the  officer  before  whom  it  is  taken  is 
personally  acquainted  with  the  maker,  and  that  he  f  the 


4* 


ACKNOWLEDGMENT. 


grantor)  acknowledged  the  execution  of  the  instrument 
for  the  purposes  contained.  Practically  the  clerk  or 
ether  officer  in  or  out  of  the  State,  if  not  personally 
acquainted  with  the  acknowledger,  is  made  so  at  the 
time  by  any  means  which  will  satisfy  him  to  certify  that 
he  is  personally  acquainted,  or  rather,  which  will  make 
the  officer  personally  acquainted.  The  essential  sub- 
stance of  the  certificate  of  the  execution  of  the  deed  by 
a  wife  is  that  she  appeared  before  the  officer  privately 
and  apart  from  her  husband,  and  acknowledged  the 
execution  of  the  deed  to  have  been  done  by  her  freely, 
voluntarily,  understandingly,  without  compulsion  or 
constraint  from  her  husband,  etc." 

Probates  and  acknowledgments  may  be  made  within 
ihe  State  of  Tennessee,  before  clerks  of  county  courts 
and  their  deputies,  and  notaries  public.  In  any  other 
State  or  Territory  of  the  United  States  before  a  com- 
mi.ssioner  of  Tennessee  appointed  by  the  governor  of 
Tennessee  for  such  State  or  Territory,  or  notary  public 
of  such  State  or  Territory,  or  any  court  of  record,  or 
any  clerk  of  any  court  of  record  of  such  Scate  or  Terri- 
tory. If  made  out  of  the  United  States,  before  a 
commissioner  of  Tennessee,  appointed  for  such  country, 
or  a  notary  public  of  such  country,  or  a  consul,  minister, 
or  ambassador  of  the  United  States  in  such  country." 

Certificates  of  probate,  etc.,  made  by  commissioners, 
notaries,  consuls,  ministers,  or  ambassadors,  shall  be 
under  their  official  seals. ^  If  made  by  a  court  of  record, 
the  copy  of  the  entry  on  the  record  shall  be  verified  by 
the  certificate  of  the  clerk  of  the  court  under  his  seal 
of  office  ;  if  made  before  a  clerk  of  a  court  of  record, 
his  certificate  shall  be  under  seal  of  office,  and  the 
official  character  of  the  clerk  shall  be  verified  by  the 
certificate  of  the  presiding  judge  of  the  court. J 

Acknowletlj^ment— General  Form.' 

State  of ,  county  of ,  ss. 

Before  me,  C.  R.,  a  commissioner  of  the  State 
of  Tennessee,  appointed,  qualified,  and  commis- 
sioned to  take  probate  of  deeds,  etc.,  for  registra- 
tion and  use  in  the  State  of  Tennessee,  personally 
appeared  A.  B.,  the  within-named  bargainor '^r 
other  name),  with  whom  I  am  personally  ac- 
quainted, and  who  acknowledged  that  he  exe- 
cuted the  within  deed  (or  other  instrument)  for  the 
purposes  therein  contained. 

\Vitness  my  hand  and  seal  of  office  this day 

of ,  A.  D. . 

[  Official  sea/.]  (Si^ytature  and  title  of  officer. ) 

Proof  by  Subscribing:  Witness.* 

State  of ,  county  of ,  ss. 

Before  me,  C.  R.  {as  in  above  form),  personally 
appeared  \V.  T.  and  N.  S.,  subscribing  witnesses 
to  the  within  deed  {or  other  instruttient  ,  who  being 
first  sworn,  deposed  and  said  that  they  are  ac- 
quainted with  A.  B.,  the  bargainor  {or  as  the  name 
may  be),  and  that  he  acknowledged  the  satne  in 
their  presence  to  be  his  act  and  deed  on  the  day 
it  bears  date  {or  stating  the  time  as  proved  by  tlie 
wtnesses). 

Witness  my  hand  and  seal  of  office  at  , 

this day  of ,  A.  D. . 

[Official  seal.]  {Signature  and  title  of  officer.) 

Acknowledgrnient— Husband  and  Wife.'' 

State  of ,  county  of ,  ss. 

Before  me,  C.  R.,  commissioner,  etc.  (as  in  fore- 
going forms),  personally  appeared  A.  B.  and>A^.  B. 
his  wife  {here  follows  a  certificate  of  probate  or  ac- 
knowledgment as  to  the  husband,  as  shown  in  the  pre- 
ceding forms  :  then  goes  on),  and  the  said  W.  B., 
^wife  of  said  A.  B.,  with  whom  I  am  personally 
acquainted,  having  appeared  before  me  privately 
and  apart  from  her  said  husband,  acknowledged 
the  execution  of  said  deed  to  have  been  done  by 
her  freely,  voluntarily,  and  understandingly, 
without  compulsion  or  constraint  of  her  said  hus- 
band, and  for  the  purposes  therein  expressed. 

Witness  my  hand  and  seal  of  office,  etc.  (as  in 
preceding  forms). 

[Official  seal.]  {Signature  and  title  of  officer.) 

TEXAS. 

Acknowiedgrments. 

In  this  State  acknowledgments  can  be  taken  before 

■ome  notary  public,  a  clerk  of  the  district  court  and  a 

V-See  Code.      w-Code,  gg  2039,  2039  a,  b,  c,  d:  Act 

»f  1870,  ch.  71,  §§  1-4,  gg  2040,  2051.     x-Code,   g   2043. 
y-vode,  g|  2045, 2046.   »-Code,  g  2042.    a-Qode,  g  2058. 


judge  or  clerk  of  the  county  court,  when  conveyance  it 
executed  within  the  Sute. 

Aclsnowledgrnient  made  without  tbe 
State  but  within  the  United  States  may  be  made  be- 
fore either  :  lit.  A  clerk  of  some  court  of  record 
having  a  seal.  2d.  A  commissioner  of  deeds  duly 
appointed  imder  the  laws  of  this  State.  3d.  A  notary 
public. 

Acknowledgrment  made  without  the 
United  States  may  be  before  either :  ist.  A  minister, 
commissioner,  oxchargi  d^ affaires  of  the  United  States, 
resident  and  accredited  in  the  country  where  the  proof 
or  acknowledgment  is  made.  zd.  A  consul-general, 
consul,  vice-consul,  commercial  agent,  vice  commercial 
agent,  deputy  consul  or  consular  agent  of  the  United 
States,  resident  in  the  country  where  the  proof  or  ac- 
knowledgment is  made.     3d.  A  notary  public. 

Form  of  Acknowledgement  of  Husband 
and  Wife. 

State  of  Texas,  county  of ,  ss. 

Before  me  {here  insert  the  name  of  and  character 
of  the  officer).,  on  this  day  personally  appeared  A. 
B,  and  C.  D.,  wife  of  said  A.  B.,  known  to  me  to 
be  the  persons  whose  names  are  subscribed  to 
the  foregoing  instrument  of  writing,  and  ac- 
knowledged to  mo  that  they  executed  the  same 
for  thj  purposes  and  considerations  therein  ex- 
pressed. And  the  said  C.  D.,  wife  of  the  said  A. 
B.,  having  been  examined  by  me  privily  and 
apart  from  her  husband,  and  having  the  same 
fully  explained  to  her,  she,  the  said  C.  D.,  wife  of 
said  A.  B.,  acknowledged  such  instrument  to  be 
her  act  and  deed,  and  declared  that  she  had  wil- 
lingly signed  the  same  for  the  purposes  and  con- 
siderations therein  expressed,  and  that  she  did 
not  wish  to  retract  it. 

Given  under  my  hand  and  seal  of  office,  this 
day  of ,  1894. 

Notary  Public  in  and  for 

County,  Texas. 

Form  of  Certificate  of  Acknowledge* 
ment  by  a  Witness. 

State  of  Texas,  county  of ,  ss. 

Before  me  {here  insert  the  name  and  character  of 
officer),  on  this  day  personally  appeared  A.  B., 
known  to  me  (or  proved   to   me  on   the  oath   of 

)  to  be  the  person  whose  name  is  subscribed 

as  a  witness  to  the  foregoing  instrument  of  %vrit- 
ing,  and  after  being  duly  sworn  by  me  stated 
on  oath  that  he  saw  C.  D.,  the  grantor  or  person 
who  executed  the  foregoing  instrument,  sub- 
scribe the  same  (or  that  the  grantor  or  person  who 
executed  such  instrument  of  writing  acknowledged  in 
his  presence  that  he  executed  the  same  for  the  purposes 
and  considerations  therein  expressed),  and  that  he 
signed  the  same  as  a  witness  at  the  request  of 
the  grantor  (or  person  who  executed  the  same). 

Given  under  my  hand  and  seal  of  office  this 

day  of ,  A.  D.  1894. 

(Signature  and  title  of  officer.) 

UTAH. 

Conveyances,  etc.,  may  be  acknowledged  or  proved 
in  the  Territory  before  a  judge  or  clerk  of  a  court 
having  a  seal,  notary  public,  or  county  recorder,  or  by 
justice  of  the  peace  of  county  where  lands  are  situate." 

Out  of  the  Territory,  and  within  the  United 
States,  before  a  judge  or  clerk  of  a  court  of  the  United 
States,  or  of  any  State  or  Territory  having  a  seal,  or  a 
notary  public,  or  a  commissioner  of  deeds  for  Utah 
Territory.  Out  of  the  United  States,  before  a  judge 
or  clerk  of  any  court  of  any  state,  kingdom,  or  empire 
having  a  seal,  or  any  notary  public,  or  any  minister, 
commissioner,  or  consul  of  the  United  States  appointed 
to  reside  therein.  A  legally  appointed  deputy  of  any 
of  the  above-mentioned  officers  may  take  the  proof  or 
acknowledgment  in  name  of  principal.  The  forms  for 
acknowledgment  or  proof  by  subscribing  witnesses  are 
the  same  as  given  for  California,  above,  which  see,  ex- 
cept that  a  married  woman  may  convey  any  of  her  rea/ 

f-Sec  General  Statttt^. 


ACKNOWLEDGMENT. 


43 


estate,  of  interest  thefein,  by  conveyance,  executed  and 
acknowledged  and  certified  in  the  same  manner  as  a 
feme  sole,  or  other  person.  Whenever  all  the  sub- 
scribing witnesses  are  dead,  out  of  the  jurisdiction,  or 
cannot  be  had,  the  signature  of  the  grantor  or  subscrib- 
ing witnesses  may  be  proved  by  proving  handwriting.' 
VERIttOBfT. 

Ack^o^vledgment  may  be  made  "  before  a  justice, 
town  clerk,  notary  public,  master  in  chancery,  county 
clerk.judge  or  register  of  probate."  Rev.  laws,  see  §  1927. 

Acknowledgments  or  proofs  without  the  state 
are  valid,  ' '  if  certifiid  agreeably  to  the  laws  of  the 
State,  province  or  kingdom  in  which  such  acknowledg- 
ment or  proof  is  taken,"  *  *  *  may  be  acknowledged  or 
proof  taken  "  before  a  justice  of  the  peace,  magistrate,  or 
notary  public  within  the  United  States,  or  in  a  foreign 
country,  or  before  a  commissioner  appointed  for  that 
purpose  by  the  governor  of  this  State,  or  before  a  minis- 
ter, chargi  d'affaires,  consul  or  vice-consul  of  the 
United  States,  in  a  foreign  country."  Rev.  Laws,  see 
g  1946.  The  separate  acknowledgment  or  private  exami- 
nation of  the  wife  is  not  required.' 
Acknowledgment— Husband  and  Wife. 

State  of ,  county  of ,  ss. 

At  ,  this  day  of ,  A.  D.  ,  per- 
sonally appeared  A.  B.  and  W.  B.  his  wife,  the 
signers  and  sealers  of  the  above  written  instru- 
ment, and  acknowledged  the  same  to  be  their 
free  act  and  deed. 

Before  me,  {Signature  and  title  of  officer.) 

Proof  by  Subscribing:  Witness. 

In  certain  cases  where  deed  is  not  acknowledged, 
proof  of  execution  may  be  made  by  the  subscribing 
witnesses  before  any  judge  of  the  supreme  or  county 
court  in  this  State ;  and  if  the  witnesses  are  dead  or  out 
of  the  State,  the  deed  may  be  proved  before  such  court 
by  proving  the  handwriting  of  the  grantor,  and  of  any 
subscribing  witness,  or  adducing  other  evidence  to  the 
satisfaction  of  the  court.  If  a  grantor  refuses  to  ac- 
knowledge his  deed,  any  person  claiming  under  him  may 
cite  him  before  a  justice  of  the  peace  to  hear  the  testi- 
mony of  the  subscribing  witnesses,  and  if  the  deed  is 
proved  to  the  satisfaction  of  the  justice  by  one  or  more 
of  the  subscribing  witnesses,  he  shall  so  certify,  which 
shall  be  equivalent  to  a  due  acknowledgment  by  the 
grantor.  These  proceedings  must  be  had  in  this  State.' 
VIRGI3riA. 

The  court  or  clerk  of  any  county  or  corporation 
in  which  real  estate  lies,  or  personalty  generally  may  be 
at  the  time  being,  shall  admit  any  deed  or  contract 
respecting  it  to  record  as  to  any  person  whose  name  is 
signed  thereto,  upon  a  certificate  of  his  acknowledgment 
before  a  justice,  a  commissioner  in  chancery,  or  notary 
public  within  the  United  States,  written  on  or  annexed 
10  it,  to  the  following  elTect  :8 

Acknowledgment— General  Form. 

State  of ,  county  of ,  ss. 

I,  J.  P.,  a  justice  of  the  peace  {or  notary  public, 

or  commissioner  in  chancery  of  the court  of)  of  the 

county  {or  corporation)  aforesaid,  in  the  State  ^or 

Territory,  or  District)  of ,  do  certify  that  A.  B. 

{or  A.  B.  and  W.  B.,  etc.")  whose  name  (or  names)  is 
(or  arc)  signed  to  the  writing  above  'or  liercto  an- 
nexed), bearing  date  on  the day  of ,  A.  D. 

,  has  (or  have)  acknowledged  the  same  before 

me  in  my  county  {or  corporation)  aforesaid. 

Given  under   my  hand   this  day  of  , 

A.  D. .  {Signature  and  title  0/  officer. ) 

Or  upon  a  certificate  of  acknowledgment  of  such  per- 
son, before  any  commissioner  appointed  by  the  gov- 
ernor, within  the  United  States,  so  written  or  annexed, 
to  the  following  effect : 

State  of ,  county  of ,  ss. 

I,  C.  R.,  a  commissioner  appointea  by  the  gov- 
ernor of  the  State  of  Virginia  for  the  said  State 

{or  Territory,  or  District)  of ,  certify  that  A.  B. 

{or  A.  B.  and  W.  B.),  whose  name  {or  names)  is  {or 
are)   signed   to   the   writing   above  (or  hereto  an- 

nexed\  bearing  date  on  the day  of ,  A.  D. 

,  has  ior  have)  acknowledged  the  same  before 

me  in  my  State  (or  Territory,  or  District)  aforesaid. 

Given  under  my  hand  this  day  of  , 

A.  D. .  {Signature  and  title  0/ officer.) 

Or  upon  a  certificate  of  the  clerk  of  any  county  or 

f-See  General  Statutes,  {f •See  Code,  ch.  m.  h-Code, 
ch.  Ill,  ^  ^$°i- 


corporation  court  in  this  State,  or  his  deputy,  or  of  the 
clerk  of  any  court  out  of  this  State  and  within  the 
United  States,  that  the  said  writing  was  acknowledged 
by  such  person,  or  proved  as  to  him  by  two  witnesses 

!  before  such  clerk,  ,  or  before  the  court  of  which  he  is 
clerk  ;  or  upon  a  certificate  under  the  official  seal  of  any 
minister  plenipotentiary,  charge  d'affaires,  coasuf- 
general,  consul,  vice-consul,  or  commercial  agent,  ap- 
pointed by  the  government  of  the  United  States  to  any 
foreign  country,  or  of  the  proper  officer  of  any  court  of 
such  country,  or  of  the  mayor  or  other  chief  magistrate 
of  any  city,  town,  or  corporation  therein,  that  the  said 
writing  was  acknowledged  by  such  person,  or  proved  as 

I  to  him  by  two  witnesses,  before  any  person  having  such 
appointment,  or  before  such  court,  mayor,  or  chief 
magistrates 

Admission  to  record  of  writing:  from 
husband  and  wife;  effect  on  rig^lit  of 
wife. 

When  a  hu.sband  and  his  wife  have  signed  a 
writing,  purporting  or  contracting  to  convey  any  estate, 
real  or  personal,  or  any  writing  authorizing  another  to 
convey,  or  contract  to  convey,  any  such  estate,  such 
writing  may  be  admitted  to  record  as  to  each  of  them, 
according  to  the  provisions  above,  and  when  it  shall  have 
been  so  admitted  to  record  as  to  the  husband  as  well  as 
the  wife,  or  if  it  be  a  writing  executed  under  a  power  of 
attorney,  when  such  writing,  as  well  as  such  power  of 
attorney,  shall  have  been  so  admitted  to  record,  it  shall 
operate  to  convey  from  the  wife  her  right  of  dower  in 
the  real  estate  embraced  therein,  and  pass  from  her  and 
her  representatives  all  right,  title,  and  interest  of  every 
nature  which,  at  the  date  of  such  writing,  she  may  haye 
in  any  estate  conveyed  or  embraced  therein,  as  effectu- 
ally as  if  she  were,  at  the  date,  an  unmarried  woman. 
Sucii  writing  shall  not  operate  any  further  upon  the 
wife  or  her  representatives  by  means  of  any  covenant 
or  warranty  contained  therein  which  is  not  made  with 
reference  to  her  separate  estate  as  a  source  of  credit,  or 
which,  if  it  relate  to  her  said  right  of  dower  or  to  any 
estate  or  interest  conveyed  other  than  her  own,  is  not 
made  with  reference  to  her  separate  estate  as  a  source 
of  credit. 

Conveyance  by  married  woman  of 
ber  separate  estate ;  how  sig'ned  ;  when 
and  where  admitted  to  record. 

Nothing  contained  in  the  preceding  section  shall  be  so 
construed  as  to  impair  or  affect  any  right  or  power  a  mar- 
ried woman  has,by  her  sole  act,  to  convey  or  transfer  any 
estate  real  or  personal  which  is  her  separate  estate ;  and 
any  writing,  which  is  to  be  or  may  be  recorded,  signed 
by  a  married  woman,  though  not  signed  by  her  hus- 
band, conveying  or  transferring  any  estate,  real  or  per- 
sonal, which  is  her  separate  estate  as  aforesaid,  may  be 
admitted  to  record  as  to  her,  in  the  game  manner  as  if 
she  were  unmarried. 

Or,  if  the  -wife  be  without  the  United  States,  she 

may  appear  before  any  minister  plenipotentiary,  chargi 
d"  affaires,  consul-general,  consul,  vice-consul,  or  com- 
mercial agent,  appointed  by  the  government  of  the 
United  States  to  any  foreign  country,  or  before  any 
court  of  such  country,  or  the  mayor  or  other  chief 
magistrate  of  any  city,  town,  or  corporation  therein, 
who  shall  examine  her,  and  make  such  explanation  as 
is  above  required  where  the  wife  is  in  the  United  States, 
and  if  then  she  make  such  acknowledgment  as  is  so  re- 
quired, the  person  having  such  appointment,  or  such 
mayor  or  chief  magistrate,  or  the  proper  officer  of  such 
court,  shall  give  a  certificate,  under  his  official  seal,  of 
the  said  examination,  explanation,  and  declaration,  to 
the  effect  required  where  the  wife  is  within  the  United 
States,  and  upon  or  annexed  to  such  writing  in  like 
manner.h 

WASHINGTOHr. 

A  married  woman  shall  not  be  bound  by  any  deed 
affecting  her  real  estate  or  releasing  dower,  unless  she 
is  joined  in  the  conveyance  by  her  husband,  and  shall, 
upon  examination  by  the  officer  taking  the  acknowledg- 
ment, .separate  and  apart  from  her  husband,  acknowl- 


44 


ACRNOVVLEIDGMENT. 


edge  that  she  executed  the  deed  of  her  own  free  will, 
and  without  fear  of  or  coercion  by  her  husband.  The 
officer  must  certify  that  he  has  made  known  to  her  the 
contents  of  the  deed.i 

Acknowledgments  of  deeds  and  mortgages  may  be 
taken  by  a  judge  of  the  supreme  court,  judge  of  the 
superior  court,  justice  of  the  peace,  county  auditor, 
or  his  deputy,  a  clerk  of  the  superior  or  supreme  court, 
or  his  deputy,  or  a  notary  publicJ 
Acknowledgment— Husband  an<l  AVife. 

State  of ,  county  of ,  ss. 

On  this day  of ,  A.  D. ,  before  me 

(name  and  title  of  officer),  personally  appeared 
A.  B.  and  W.  B.,  his  wife,  personally  known  to 
nne  to  be  the  identical  persons  described  in,  and 
who  executed  the  foregoing  conveyance,  and  I 
having  first  made  known  to  them  the  contents 
thereof,  they  did  thereupon  severally  acknowl- 
edge before  me  that  they  executed  the  same  as 
their  voluntary  act  and  deed,  for  the  uses  and 
purposes  therein  expressed. 

And  the  said  W.  B.,  wife  of  the  said  A.  B., 
being  by  me  privately  examined,  separate  and 
apart  from  her  said  husband,  did  further  ac- 
knowledge that  she  executed  the  same  volun- 
tarily, of  her  own  free  will,  and  without  the  fear 
of  or  coercion  from  her  husband. 

In  testimony  whereof,  I  have  hereunto  set  my 
hand  and  affixed  my  official  seal  the  day  and 
year  first  above  mentioned. 

\Seal.\  (Signature  and  title  of  officer.) 

WEST  VIRGINIA. 

Deeds  in  this  State  must  be  executed  under  seal,  must 
be  acknowledged,  unless  proved  by  two  witnesses.  * 

Any  deed,  mortgage,  deed  of  trust,  power  of  attorney, 
or  contract  in  writing  made  in  respect  to  real  estate  or 
goods  and  chattels,  including  leases  for  more  than  five 
years,  shall  be  admitted  to  record  as  to  any  person 
whose  name  is  signed  thereto,  upon  a  certificate  of  his 
acknowledgment  before  a  justice,  notary  public,  re- 
corder, prothonolary,  clerk  of  any  court  within  the 
United  States,  or  commissioner  appointed  within  the 
same  by  the  governor  of  tliis  State,  written  on  or  an- 
nexed to  the  same;  or  proved  by  two  witnesses  as  to 
him  before  the  proper  clerk  of  the  county  court  or  be- 
fore the  proper  officer  in  foreign  countries,  k 

If  executed  out  of  the  United  States,  the  certificate 
must  be  under  the  official  seal  of  a  minister  plenipoten- 
tiary, fArtr^^  d"  affaires,  consul-general,  consul,  vice- 
consul,  or  commercial  agent,  appointed  by  the  govern- 
ment of  the  United  States  to  any  foreign  country',  or  of 
the  proper  officer  of  any  court  of  such  county,  or  of  the 
mayor  or  other  chief  magistrate  of  any  city,  town  or 
corporation  therein. 

Acknowledgement— Sing:le  Per!>ions. 

No  form  is  prescribed  by  law  for  proving  the  execu- 
tion of  a  conveyance,  etc.,  by  witness. 

The  two  following  forms  for  certificates  of  acknowledg- 
ment are  prescribed  by  the  statute.'  The  officer  is  not 
thereby  required  to  certify  that  the  grantors  are  person 
ally  known  to  him.  The  question  of  identity  as  to  the 
grantors  who  appear  before*him  is  left  to  the  officer  cer- 
tifying the  acknowledgment.  The  wife  must  in  all  cases 
acknowledge  the  deed  before  the  officer  in  person. 
Deeds,  etc.,  can  only  \x  proved  by  witnesses  ,\ie.\orc  the 
proper  recording  officer  of  the  county  where  they  are 
admitted  to  record  ;  or  when  executed  out  of  the  United 
States,  before  a  minister  plenipotentiary,  or  other  officer 
above  mentioned,  having  authority  to  take  acknowledg- 
ments in  foreign  countries." 

Form    of   Acknowledi^ment- Before    a 
€ommis!*ioner. 

State  of ,  county  of ,  ss. 

I,  C.  R.,  a  comtnissioner  appointed  by  the  gov- 
ernor of  the  State  of  West  Virginia  for  the  said 

State  (pr  Territory  or  District)  of {or  I,  J.  P.,  a 

justice   of  the  county  aforesaid,   and  District  of ; 

or,  I, etc.,  giving  other  official  designation),  Ao  certify 
that  A.  B.,  whose  name  {or  names)  is  {or  are) 
signed  to  the  writing  above   {or  hereto  annexed) 

bearing  date  on  the  day  of  A.  D. , 

has  {or  have)  this  day  acknowledged  the  same 
before  me,  in  my  said . 

Given  under  my  hand  this  day  of   , 

A.  D. .     [Seal.]      {Signature  and  title  of  offcer.) 

1-See  General  Statutes,  ch.  — ,  g  3.  J-See  General 
Sututes,  ch.  — ,  1 5.  k-See  Code,  ch.  72,  73,  74.   1-Code, 


Acknowledgment— Rasband  and  Wife. 

State  of ,  county  of ,  as. 

I,  C.  R.,  a  notary  public  for  the  said  county  of 

,  do  certify  that  A.  B.  and  W.  B.,  his  wife, 

whose  names  are  signed  to  the  above  writing, 

bearing  date  on  the dayof ,  189  ,  have  this 

day  acknowledged  the  same  before  me  in  my 
said  county. 

Given  under  my  hand  this day  of ,  j8g    . 

{Signature  and  title  0/ officer.) 

Acknowledi^'ment— Corporation. 

State  of  West  Virginia, county,  to  wit : 

I,  C.  R.,  a  notary  of  the  said  county  of ,  do 

certify  that  A.  B.  personally  appeared  before  me 
in  my  said  county,  and  being  by  me  duly  sworn, 
did  depose  and  say  that  he  is  the  president  of  the 
corporation  described  in  the  writing  above,  bear- 
ing date  the day  of ,  x8— ,  authorized  by 

said  corporation  to  execute  and  acknowledge 
deeds  and  other  writings  of  said  corporation, 
and  that  the  seal  affixed  to  said  writing  is  the 
seal  of  the  said  corporation,  and  that  said  writ- 
ing was  signed  and  sealed  by  him  in  behalf  of 
said  corporation  by  its  authority  duly  given. 
And  the  said acknowledged  th^  said  writ- 
ing to  be  the  act  and  deed  of  said  corporation. 

Given  under  my  hand,  this day  of ,  18    . 

^^^^^^^^  {Signature  and  title.) 

Acknowledgrment- Certificate  of  Proof 
of  Deed)i.  etc..  by  two  Witnesses. 

State  of  V^est  Virginia,  county  of ,  ss. 

In  the  clerk's  office  of  the  county  court  of 

county  {or  consulate  of  the  United  States  of  America, 

at ,  etc  ),  I,  C.  C,  clerk  of  the  county  court  of 

county  {or,  I,  C.  L.,  consul  of  the  United  States 

of  America,  at ,  etc.),  do  hereby  certify,  that  the 

foregoing  deed,  bearing  date  on  the day  of 

,  A.  D. ,  was  this  day  proved  before  me  as 

to  A.  B. ,  the  grantor  {or  one  of  the  grantors)  therein, 
by  W.  T.  and  N.  S.,  two  witnesses  thereto,  who 
declared  upon  oath  before  me  that  it  was  his  act 
and  deed,  and  that  they  had  seen  him  execute  it. 

Given  under  my  hana,  etc. 

[Seal.]  {Signature  and  title.) 

WISCONSIN. 

Conveyances,  etc.,  executed  within  this  State,  of 
lands  or  any  interest  in  lands  therein,  must  be  executed 
in  the  presence  of  two  witnesses,  who  shall  subscribe 
their  name  to  the  same  as  such,  and  the  persons  execut- 
ing must  acknowledge  the  execution  before  any  judge  or 
court  commissioner,  clerk  of  a  circuit  court,  county  clerk . 
notary  public,  or  justice  of  the  peace;  and  the  officer 
taking  the  acknowledgment  must  indorse  a  certificate 
of  the  acknowledgment,  and  the  true  date  of  making  it, 
under  his  hand." 

Deeds  conveying  land,  or  any  interest  in  land  situated 
in  this  State,  if  executed  in  any  other  State,  Terri- 
tory, or  District  of  the  United  States,  may  be  executed 
according  to  the  laws  of  such  place,  and  the  acknowl- 
edgment may  be  before  any  judge  of  a  court  of  record, 
notary  public,  justice  of  the  peace,  master  in  chancery, 
or  other  officer  there  authorized  by  law  to  take  the  ac- 
knowledgment of  deeds  therein,  or  before  a  commis- 
sioner appointed  by  the  governor  of  this  State  for  such 
purpose,  and  if  executed  within  the  jurisdiction  of 
any  military  post  outside  of  the  State  then  it  may  be 
acknowledged  before  the  commanding  officer.  But  in 
all  such  cases,  except  the  acknowledgment  be  made 
before  a  commissioner  appointed  by  the  governor,  or  a 
notary  public  (his  seal  of^  office  affixed),  there  must  be 
attached  to  the  deed  a  certificate  of  the  clerk,  or  the 
commandant  of  a  military  post,  or  other  proper  certify- 
ing officer  of  a  court  of  records  of  the  county  or  dis- 
trict within  which  such  acknowledgment  was  taken, 
under  the  seal  of  his  office,  that  the  person  whose 
name  is    subscribed    to    the     certificate    of    acknowl- 


ch.  73,  II  3,  4-   m-Code,  ch.  73,  | 
Statutes. 


!  a,  3.  m-See  General 


ACKNOWLEDGMl£NT— ACQUIESCENCE— ACTS. 


45 


edgment  was,  at  the  date  thereof,  such  officer  as  he  is 
therein  represented  to  be,  that  he  bchevcs  the  signature 
of  such  person  subscribed  thereto  to  be  genuine,  and 
that  the  deed  is  executed  and  acknowledged  accordine 
to  the  laws  of  such  State,  Territory,  or  District.  If 
such  deed  be  executed  in  any  foreign  country,  it  may 
be  executed  according  to  its  laws,  and  acknowledged 
before  any  notary  public,  with  his  seal  annexed,  or  otner 
officer  authorizea  by  law  there  to  take  such  acknowledg- 
ments, or  any  minister  extraordinary  or  resident  chargi 
iaffaires,  commissioner,  or  consul  of  the  United 
States,  appointed  to  reside  therein,  and  certified  by  him.r 

A  married  \voman's  conveyance,  whether  by  her 
sole  deed  or  by  her  joining  with  her  husband  to  convey 
her  estate  or  release  her  dower,  must  be  executed  and 
acknowledged  as  if  she  were  sole.  She  may  bar  her 
dower,  if  eighteen  years  of  age,  by  simply  joining  in  her 
husband's  conveyance;  and  she  may,  by  letter  of 
attorney,  executed  in  like  manner,  appoint  an  attorney, 
who  may  be  her  husband,  to  sell  or  convey  her  estate, 
or  bar  her  dower  in  land,  and  his  deed  as  her  attorney 
shall  be  effectual. 

Deeds  of  lands  within  the  State  may  be  executed  by 
corporations  created  under  the  laws  of  the  State,  and 
shall  be  signed  by  the  president,  or  other  authorized 
officer  of  the  corporation,  and  sealed  with  the  seal  of 
the  corporation,  and  countersigned  by  the  secretary  or 
clerk  thereof:  and  the  person  signing  such  deed  may 
acknowledge  execution  thereof  before  any  officer  author- 
ized by  law  to  take  acknowledgments.'  The  common 
practice  is  for  the  officers  signing  the  deed  to  acknowl- 
edge the  same,  and  make  oath  that  they  are  such  officers, 
that  the  seal  is  ;he  seal  of  the  corporation,  that  they 
have  signed  and  acknowledged  such  deed,  and  affixed 
the  seal  by  order  of  the  board  of  directors,  trustees,  or 
other  managing  board  of  the  corporation.  New  York 
forms  are  followed,  which  see.y 
Acknowledgment— Husband  and  Wife. 

State  of ,  county  of ,  ss. 

Personally  came  before  me  this day  of 

i8q  ,  the  above  Cor  within)  named  A.  B.  and 
W.  B.,  his  wife  (or,  if  an  officer,  adding  name  of 
office)  to  me  kno^vn  to  be  the  persons  who 
executed  the  foregoing  (or  ^vithin)  instrument, 
and  acknowledged  the  same. 

[5>«/.]  (Signature  and  title  of  official^ 

No  separate  examination  of  wife  is  necessary. 

The  notary  or  justice  may  acknowledge  in  the  form 
prescribed  by  the  law  of  the  Stale  where  the  acknowl- 
edgment is  taken,  and  affix  certificate  of  clerk  of  court. 

No  statutory  provision  for  proof  by  subscribing  witness 
out  of  this  State.  It  is  made  by  a  proceeding  in  court  on 
summons  to  refusing  grantor,  if  to  be  found,  etc.r 

WYOMING. 

If  any  deed  or  mortgage  shall  be  executed  in  any 
Other  State,  Territory,  or  District  of  the  United  States, 
the  same  may  be  executed  according  to  the  laws  of  such 
State,  Territory,  or  District,  by  any  officer  authorized 
by  the  laws  of  such  State,  Territory,  or  District  to  take 
the  acknowledgment  of  deeds  or  mortgages  therein,  or 
\>efore  any  commissioner  appointed  by  the  governor  of 
this  State  for  that  purpose.  In  the  cases  where  deeds 
«nd  mortgages  are  executed  and  acknowledged  outside 
•f  this  State,  and  the  officer  before  whom  the  acknowl- 
edgment is  taken  has  no  seal ,  such  deed  or  mortgage 
shall  have  attached  thereto  a  certificate  of  the  clerk  or 
other  proper  certifying  officer  of  a  court  of  record  of 
the  county  or  district  within  which  such  acknowledg- 
ment was  taken,  under  the  seal  of  his  office,  that  the 
person  whose  name  is  subs  cribed  to  the  certificate  of 
acknowledgment  at  the  date  thereof  was  such  officer  as 
he  is  therein  represented  to  be,  that  he  knows  the  signa- 
ture of  such  person  subscribed  thereto  to  be  genuine, 
and  that  the  deed  or  mortgage  is  executed  according  to 
the  laws  of  such  State,  Territory,  or  District. y  Every 
notanr  public,  J.  P.  and  com.  of  deeds  shall  add  to  his 
certificate  the  date  when  his  commission  or  term  of 
office  expires. 

When  any  married  woman  not  residing  in  this 
State  shall  join  her    husband   in   any   conveyance  of 

y-See  General  Statutes.  as-Laws,  1859,  ch.  37.  a-2 
Bouv.  Inst.  «.  1309 ;  2  Kent  Comm.  478  ;  Story  Eq. 
Jur.  \  255;  Liverm.  Ag.  45;  Paley  Ag.  CLIoyd  Ed.) 
41  :  4  Wash.  C.  C.  559 ,  4  Mass.  C.  C.  296 ;  3  Pet.  69, 
81 ;  6  Mass.  193  ;  3  Pick.  495  ;  i  Johns.  Cas.  no;  2  Id 
424;  12  Johns.  300;  3  Cow.  281.  b-See  2  Roper  Leg. 
439:  I  Ves.  ch.  335;  3  Id.  371;  12  Id.  136;  3  P.  Wms. 


real  estnte  situated  within  this  State,  the  conveyance 
shall  have  the  same  effect  as  if  she  were  sole,  and  the 
acknowledgment  or  proof  of  the  execution  of  such  con- 
veyance by  her  makes  her  the  same  as  if  she  were  sole.l 
ACQUIESCENCE.  See  Acts  ;  Agency  ;  Con- 
tracts ;  Election. 

AcQUiKscENCE  is  a  quiet  consent  or  silent 
submission  with  apparent  content :  It  is  dis- 
tinguished from  avowed  or  express  consent  on 
the  one  hand,  and  opposition  or  open  discon- 
tent on  the  other.  It  is  a  silent  appearance  of 
consent.     A  failure  to  make  any  objections. 

Acquiescence  in  the  acts  of  an  agent,  or  one 
who  has  assumed  that  character,  will  be  equiva- 
lent to  an  express  authority  for  those  acts.*  It 
is  a  ratification,  and  like  it  relieves  the  person 
who  has  acted,  of  all  responsibility,  for  it  is 
now  made  the  act  of  him  who  has  acquiesced 
in  it.  Where  a  person  is  bound  to  choose  be- 
tween a  paramount  right  and  a  testamentary 
disposition,  his  acquiescence  in  a  state  of  things 
which  indicates  a  choice,  when  he  was  aware 
of  his  rights,  will,  in  the  absence  of  proof  to 
the  contrary,  be  evidence  of  such  choice.'' 

Acts  of  acquiescence  which  will  constitute 
an  implied  choice  or  election  are  to  be  decided 
by  the  circumstances  of  each  case,  rather  than 
by  any  general  principle  or  test.*' 

Acquisition.    See  Descent;  Gift;  Property, 
ETC.  ;  Purchase. 
Acquittal.    See  Contracts;  Criminal  Law. 
Acquittance.    See  Contracts;  Receipts. 
ACTS.     See  Accident;    Agency;    Authority; 
Criminal  Law  ;   Evidence  ;  Legislation  ;  Statute 
Law. 

An  act  is  something  done,  and  for  which 
the  person  doing  is  responsible.  Something 
done  by  an  individual  as  a  private  person  or  as 
an  officer.  Something  done  by  a  body  of  per- 
sons, as,  an  association,  a  corporation,  legisla- 
ture, council,  or  a  court.  It  includes  not 
merely  physical  acts,  but  also  decrees,  orders, 
judgments,  awards,  edicts,  laws,  resolutions, 
and  determinations. 

Acts  indicate  the  intention  ;*  the  act  does  not 
make  a  person  guilty  unless  the  intention  be 
guilty  also.  This,  however,  applies  only  in 
criminal  cases,  in  civil  matters  it  is  otherwise.* 

Acts  of  God  wrong  no  one,  in  other  wordsj 
no  one  is  responsible  for  inevitable  accidents.* 
See  Accident. 

Agents.  The  act  of  the  agent  within  the 
scope  of  his  authority  is  the  act  of  his  princi- 
pal ;  but  beyond  such  authority  the  agent  alone 
is  responsible,  unless  the  act  be  ratified  by  such 
principal.     See  AGENCY. 

Anticipation.  The  doing  or  taking  of  a 
thing  before  its  proper  time  will  not  vitiate 
the  act  or  discharge  the  obligation  if  no  loss 
or  damage  occur,  and  the  act  be  in  good  faith. 

Authority,  To  act  for  another,  there  must 
be  a  lawful  delegation  of  power;  to  act  for 
one's  self,  one  must  be  under  no  legal  disa- 
bility.    This  authority  may  be  coupled  with  an 

ch.  315.  c-i  Swanst.  ch.  282,  n.  and  numerous  cases 
there  cited,  d-8  Co.  291 ;  Broom  Max.  270;  13  Johns. 
414.  e-Broom  Max,  270,  275,  329;  7  T.  R.  514;  ' 
Bingh.  N.  C.  34,  468;  5  M.  &  G.  639,  368,  229:  5  Id" 
380;  9  CI.  &  F.  531 ;  4  N.  Y.  159,  163,  105;  2  Bouv. 
Inst.  n.  221 1,  f-2  Bl.  Comm.  122;  Co.  97/.'  5  Id.  87 
Co.  Litt.  206  a:  ^  Taunt.  309 ;  i  T.  R.  33. 


46 


ACTS. 


interest  or  not;  it  may  be  express  or  implied, 
general  or  special,  limited  or  unlimited.  See 
Agency. 

Begun.  An  act  already  begun,  whose  com- 
pletion depends  upon  the  will  of  the  parties, 
may  be  recalled;  but  if  it  depends  upon  the 
consent  of  a  third  person,  or  on  a  contingency, 
it  cannot  be  recalled. 8 

Children.  An  infant  is  protected  against 
his  contracts,  but  not  against  his  frauds  or 
Jther  torts.**  With  regard  to  the  responsibility 
Df  infants  for  crimes,  the  rule  is  that  no  infant 
within  the  age  of  seven  years  can  be  guilty  of 
felony  or  be  punished  for  any  capital  or  less 
offence,  for  within  that  age  an  infant  is,  by  pre- 
sumption of  law,  doli  incapax  (incapable  of 
mischief  or  crime),  and  cannot  be  endowed 
with  any  discretion ;  and  against  this  presump- 
tion no  averment  can  be  received.  This  legal 
incapacity,  however,  ceases  when  the  infant 
attains  the  age  of  fourteen  years,  after  which 
period  his  act  becomes  subject  to  the  same  rule 
of  construction  as  that  of  any  other  person. 
Between  the  ages  of  seven  and  fourteen  years 
an  infant  is  deemed  prima  facie  (without 
proof  to  the  contrary)  to  be  doli  incapax ;  but 
in  this  case  the  maxim  "  malice  supplies  the 
want  of  mature  years  "  applies.*    See  Infants. 

Coercion.  Direct  or  positive  coercion  takes 
place  when  a  man  is  by  physical  force  com- 
pelled to  do  an  act  contrary  to  his  will.  Im- 
plied coercion  exists  where  a  person  is  legally 
under  subjection  to  another,  and  is  induced 
in  consequence  of  such  subjection  to  do  an  act 
contrary  to  his  will. 

As  will  is  necessary  to  the  commission  of  a 
crime,  or  the  making  of  a  contract,  a  person 
coerced  into  either  has  no  will  on  the  subject, 
and  is  not  responsible. J  The  command  of  a 
superior  to  an  inferior,"^  of  a  parent  to  a  child,' 
of  a  master  to  his  servant,  or  a  principal  to  his 
agent,™  may  amount  to  coercion.  So  of  a  man 
who  falls  into  the  hands  of  the  enemies  of  his 
country,  and  they  compel  him,  through  fear  of 
death,  to  fight  against  it.    See  Criminal  Law. 

Compulsion  is  forcible  inducement  to  the 
commission  of  an  act. 

Acts  done  under  compulsion  are  not,  in  gen- 
eral, binding  upon  a  party ;  but  when  a  man  is 
compelled  by  lawful  authority  to  do  that  which 
he  ought  to  do,  that  compulsion  does  not  affect 
the  validity  of  the  act ;  as,  for  example,  when 
a  court  of  competent  jurisdiction  compels  a 
party  to  execute  a  deed,  under  the  pain  of 
attachment  for  contempt,  the  grantor  cannot 
object  to  it   on  the    ground    of    compulsion. 

g^-Bac.  Max.  Reg.  20 ;  see  Story  Ag.  3  424.  h-Latch. 
21;  3  Wend.  391;  3  M'Cord,  257;  16  Vt.  390;  15  Me. 
»33  ;  21  Wend.  615,  620;  6  Hill,  592,  594  ;  3  Foster  N.  H. 
516;  I  Gray,  506.  He  is  even  liable  for  his  own  torts, 
though  he  act  by  his  father's  command;  10  Vt.  71  ;  or 
through  th«  agency  of  a  third  person ;  16  Mass.  389. 
i-i  Russ.  Cr.  2  3,  31  ;  Ala.  (N.  S.)  323.  J-i  East.  PI. 
Cr.  225  ;  5  Blackf.  73  ;  2  D.iU.  86  ;  5  Q.  B.  279  ;  i  Dav. 
&  M.  367.  The  law  upon  the  responsibility  of  married 
women  for:rime  is  fully  stated  in  i  Bennett  &  H.  Lead. 


Cr.  Cas.  T^'-St.  it-i  Wash.  C.  C.  209,  220;  12  Met. 
iMass.)  56  ;  I  Blatch.  C.  C.  549  ;  13  How.  115.  I-Broom 
Max.  (ad  Ed.)  11.    in-13  Mo.  346:  14  Id.  137,  340;  3 


But  if  the  court  compelled  a  party  to  do  an  act 
forbidden  by  law,  or  had  not  jurisdiction  over 
the  parties,  or  the  subject-matter,  the  act  done 
by  such  compulsion  would  be  void. 

Constraint.  It  is  a  general  rule  that  when 
one  is  compelled  to  enter  into  a  contract,  or 
to  perform  any  contract,  there  is  no  effectual 
consent,  though  ostensibly  there  is  a  form  of  it. 
In  .such  a  case  the  act  or  contract  will  be 
voidable  or  of  no  effect.  But  the  constraint  t« 
thus  annul  or  vitiate  the  act  or  contract  must 
be  "  such  as  would  shake  a  man  of  firmness 
and  resolution."  ° 

Corporations  and  bodies  politic.  The 
acts  of  a  corporation  or  body  politic  are  to  be 
treated  as  the  acts  of  any  other  persons. 

Criminal  acts.   See  Criminal  Law. 

Diligence  is  the  doing  things  in  the  proper 
time."  There  are  three  degrees  of  diligence  : » 
I.  Ordinary  diligence  is  that  degree  of  dili- 
gence which  men  of  ordinary  prudence  exer- 
cise in  respect  to  their  own  concerns.  2. 
Great  or  extraordinary  diligence  is  that  which 
very  prudent  persons  take  of  their  own  con- 
cerns. 3.  Slight  diligence  is  that  degree  of 
diligence  which  men,  habitually  careless,  or  ox 
little  prudence,  generally  exercise  in  the  man- 
agement of  their  own  business. 

In  the  execution  of  every  contract,  trust,  or 
undertaking  some  one  of  these  degrees  of  dili- 
gence is  applicable. 

Duress  by  imprisonment  ''xists  where  a 
person  actually  loses  his  liberty.  If  one  be 
illegally  deprived  of  his  liberty  until  he  sign 
and  seal  a  bond  or  the  like,  he  may  allege  this 
duress,  and  avoid  the  bond.P  But  if  a  man  be 
legally  imprisoned,  and,  either  to  procure  his 
discharge,  or,  on  any  other  fair  account,  seal  a 
bond  or  deed,  this  is  not  by  duress  of  impris- 
onment, and  he  is  not  at  liberty  to  avoid  it.< 
Where  the  proceedings  at  law  are  a  mere  pre- 
text, the  instrument  may  be  avoided."" 

Duress  by  threats  (which  is  either  for  fear  of 
loss  of  life,  or  else  for  fear  of  mayhem,  or  of 
loss  of  limb)  must  be  upon  a  sufficient  reason.* 
In  this  case  a  man  may  avoid  his  own  act.  A 
man  may  avoid  his  own  act  by  reason  of  men- 
aces for  fear  of — i .  Loss  of  life ;  2.  Loss  of  mem 
ber;  3.  Mayhem  ;  4.  Imprisonment.'  Restraint 
of  goods  under  circumstances  of  hardship  will 
avoid  a  contract."  In  case  of  duress  the  act  is 
considered  involuntary.'' 

The  violence  and  threats  must  be  such  as  are 
calculated  to  operate  on  a  person  of  ordinary 
firmness,  and  inspire  a  just  fear  of  great  injur)ij 
to  person,  reputation,  or  fortune.     The   age, 

Cush.  279 ;  II  Met.  (Mass.)  66 :  5  Miss.  304  ;  14  Ala. 
Vt.  32  ;  2Denio,  341 ;  i4jonns.  119.    n-Erskine 


Inst.  3,  I,  16;  4,  I,  26;  I  Bell  Comm.  B.  3,  pt.  j,  ch.  i, 
\  I,  art.  I,  p.  295.  o-Story  Bailm.;  5  Kas.  433,  467. 
p-2  Bay,  211;  9  Johns,   aoi ;  10  Pet.   107.     q-Co.  ad 


Inst.  482  ;  3  Gaines,  168;  6  Mass.  511 ;  i  Lev.  6g  ;  i  Hen, 
&  M.  350;  17  Me.  338.  r-Al.  92;  i  Bl.  Comm.  136. 
S-i  Bl.  Gomm.  131.  t— Co.  2d  Inst.  ;  2  Rolle  Abr.  124  ; 
Bac.  Abr.  Duress  Murd.  A.;  2  Str.  856;  Foster  C. 
N.  L.  322;  2  Ld.  Raym.  1578:  Savigny  Dr.  Rom. 
?  114.  n-2  Bay,  2X1 ;  9  Johns.  201 ;  10  Pet.  137;  bur 
see  2  Met.  (Ky.)  445 ;  2  Gall.  C.  C.  337.  V-Wolffini 
Inst.  §  5. 


ACTS. 


47 


sex,  state  of  health,  temper,  and  disposition  of 
the  party,  and  other  circumstances  calculated 
to  give  greater  or  less  effect  to  the  violence  or 
threats,  must  be  taken  into  consideration. 
Violence  and  threats  are  cause  of  nullity,  not 
only  where  they  are  exercised  on  the  contract- 
ing party,  but  when  the  wife,  the  husband,  the 
descendants  or  ascendants  of  the  party  are  the 
object  of  them.  If  the  violence  used  be  only 
»  legal  restraint,  or  the  threat  only  of  doing 
that  which  the  party  using  them  had  a  right  to 
do,  they  will  not  invalidate  the  contract.  A 
just  and  legal  imprisonment,  or  threats  of  any 
measure  authorized  by  law,  and  the  circum- 
stances of  the  case,  are  of  this  description." 
But  mere  forms  of  law  to  cover  coercive  pro- 
ceedings for  an  unjust  and  illegal  cause,  if  used 
or  threatened  in  order  to  procure  the  assent  to 
X  contract,  will  invalidate  it ;  and  arrest,  with- 
out cause  of  action,  or  a  demand  of  bail  in  an 
unreasonable  sum,  or  threat  of  such  proceeding, 
oy  this  rule  invalidate  a  contract  made  under 
their  pressure. 

The  aboTe  rules  all  relate  to  cases  where 
there  may  be  some  other  motive  besides  the 
violence  or  threats  for  making  the  contract. 
When,  however,  there  is  no  other  cause  for 
making  the  contract,  any  threats,  even  of  slight 
injury,  will  invalidate  it.'' 

Fraud  annuls  all  acts,  obligations,  and  con- 
tracts into  which  it  enters,  and  the  law  relieves 
the  party  defrauded.  If  both  parties  act 
fraudulently,  neither  can  take  advantage  of  the 
fraud  of  the  other.  If  one  acts  fraudulently, 
he  cannot  set  his  own  fraud  aside  for  his  own 
benefit.     See  Fraud. 

Idiots,  lunatics,  and  non  compotes  men- 
tis are  in  general  absolved  from  all  responsibility 
for  their  civil  and  criminal  acts.  They  have 
no  will,  hence  the  exception.  There  are  ex- 
ceptions, however,  to  this  rule.  See  Medical 
Law, 

Judicial  acts  are  those  which  belong  to  a 
judge  and  his  jurisdiction,  and  over  which  he 
alone  can  exercise  the  functions  of  his  office, 
and  for  which  he  is  answerable  to  no  other 
jurisdiction  or  power.  But  that  which  belongs 
neither  to  him  nor  to  his  jurisdiction  he  cannot 
lawfully  take  cognizance  of;  if  he  does,  his 
acts  are  absolutely  void.y  A  judicial  act  before 
one  not  a  judge  is  void ;  as  to  a  ministerial  act, 
from  whomsoever  it  proceeds,  let  it  be  valid.* 

Ministerial  acts  are  those  which  are  per- 
formed under  the  authority  of  a  superior,  as 
opposed  to  judicial ;  thus,  the  sheriff  or  con- 
stable is  bound  to  obey  the  judicial  commands 
of  the  court. 

When  an  officer  acts  in  both  a  judicial  and 
ministerial  capacity,  he  may  be  compelled  to 
perform  ministerial  acts  in  a  particular  way; 

W^-See  Norris  Peakes,  Ev.  440,  and  cases  cited ;  also 
6  Mass.  506,  for  the  general  rule  at  common  law.  x-Id. 
1853  ;  see  generally,  2  Watts,  167  ;  i  Baily,  84 ;  6  Mass. 
511;  6  N.  H.  508;  3  Gail.  C.  C.  337.  y-Merlin  Rep. 
B-LoflTt,  458.  a-See  10 Me.  377;  Bac.  Abr.  J.  P.  (E) ;  i 
Com.  29s ;  3  Id.  107;  9  Id.  275 ;  12  Id.  464.  b-Bac. 
Max.  Reg.  5.  C-Dig.  10,  3  ;  10,  i ;  Com.  Dig.  PI. ;  3 
M.  20;  3  M.  30.    U-Hob.  134;  3  Wils.  126;  Chitty  PL 


but  when  he  acts  in  a  judicial  capacity  he  can 
only  be  required  to  proceed,  the  manner  of  so 
doing  is  left  entirely  to  his  judgment.* 

Misconduct.  The  wrongful  riding  of  the 
horse  of  another,  without  his  leave  or  license, 
and  thereby  causing  its  death  or  injury,  is  an 
act  for  which  the  party  is  responsible  in  dam- 
ages. The  unlawful  act  or  behavior  of  a  per- 
son intrusted  with  the  administration  of  justice, 
by  which  the  rights  of  the  parties  and  the  jus- 
tice of  the  case  may  have  been  affected,  will 
impair  and  render  void  the  proceeding  affected 
by  it.  The  unjust  performance  of  some  act 
which  a  party  had  no  right,  or  which  he  con- 
tracted not,  to  do,  will  create  no  obligation  for 
recompense  therefor,  but  will  render  the  party 
performing  the  act  liable  for  the  damages  in- 
curred. 

Necessity  is  that  which  must  be,  and  can- 
not be  otherwise.  It  is  irresistible  power, 
compulsive  force,  physical  or  moral. 

Where  a  person's  actions  are  determined  by 
causes  beyond  his  control,  he  acts  from  neces- 
sity, and  is  not  a  free  agent.  Whatever  is  done 
through  necessity,  is  done  without  any  intention ; 
and  as  the  act  is  without  will,  and  is  compul- 
sory, the  agent  is  not  legally  responsible." 
"  Necessity  has  no  law,"  it  is  itself  a  law  which 
cannot  be  avoided  nor  infringed."  Notwith- 
standing this,  no  person  can  plead  necessity  in 
excuse  for  crime. 

Negligence  is  the  want  of  due  diligence, 
a  lack  of  care,  an  omission  to  do.  It  consists 
of  the  following  degrees:  i.  Ordinary  negli- 
gence is  the  want  of  ordinary  diligence.  2. 
Slight  negligence  is  the  want  of  great  dili- 
gence. 3.  Gross  negligence  is  the  want  of 
slight  diligence. 

In  general,  where  a  party  has  caused  an  in- 
jury or  loss  to  another  by  his  negligence  he  is 
responsible  for  all  the  consequences.^  A  per- 
son who,  during  a  dark  night,  drives  his  car- 
riage on  the  wrong  side  of  the  road,  by  which 
he  commits  an  injury  upon  another,  is  responsi- 
ble for  the  consequences  of  his  negligence.* 
See  Bailments. 

Non-performance  is  the  neglect  or  failure 
to  perform  that  which  by  one's  act  or  contract, 
or  by  the  requirements  of  the  law,  it  becomes 
his  duty  to  do. 

Human  action  is  exactly  conformable  to  the 
laws  which  require  us  to  obey  them ;  their  non- 
performance involves  us  in  the  natural  conse- 
quences which  follow.  The  neglect  to  comply 
with  the  terms  of  our  contract  makes  us  re- 
sponsible for  the  breach. 

Where  a  legislative  act  requires  a  person  to 
do  a  thing,  its  non-performance  will  subject  the 
party  to  punishment.' 

Notice  is  information  given  of  some  act  done 

129,  130;  2  H.  &  M.  423  ;  I  Strange,  596;  3  East.  596. 
e-3  East.  593  ;  i  Campb.  497;  2  Id.  466;  5  B.  &  P.  119; 
see  Gale  &  W.  Easements  ;  6  T.  R.  659 ;  i  East.  106 ;  4 
B.  &  Aid.  590;  I  Taunt.  568;  2  Stant.  272;  2  Bingh. 
170;  5  Esp.  35,  263;  5  B.  &  C.  550.  Whether  the  in- 
cautious conduct  of  the  plaintiff  will  excuse  the  negli- 
gence of  the  defendant,  see  1  O.  B.  29;  4  Perr.  &  D. 
642;  3  C.  B.  9.     f-See  i  Russoil  Crimes,  48. 


48 


ACTS. 


or  to  be  performed,  official,  public,  or  private, 
to  the  public  or  an  individual  or  individuals, 
corporations,  companies,  associations,  etc.,  by 
words,  writing,  or  printing.  See  Advertise- 
ment; Notice. 

Obedience  is  the  compliance  with  a  com- 
mand, prohibition,  or  known  law  and  rule  of 
duty  prescribed.  To  constitute  obedience,  the 
act  or  forbearance  to  act  must  be  in  submis- 
sion to  authoiity ;  the  command  must  be  known 
CO  the  person,  and  his  compliance  must  be  in 
consequence  of  it. 

A  child,  an  apprentice,  a  pupil,  a  mariner, 
and  a  soldier,  respectively  owe  obedience  to  the 
lawful  command  of  the  parent,  the  master,  the 
teacher,  commander  or  captain  of  the  ship,  and 
the  military  officer  having  command,  and  in  case 
of  disobedience,  submission  may  be  enforced 
by  correction. 

Officers  who  obey  the  command  of  their 
superiors  having  jurisdiction  of  the  subject 
matter  are  not  liable  for  their  acts.  A  sheriff 
or  constable  may,  therefore,  justify  a  trespass 
under  an  execution,  where  the  court  has  juris- 
diction, although  such  execution  was  irregularly 
issued.8 

Officers  acting  in  the  scope  of  their  jurisdic- 
tion and  authority  are  justified  in  all  their  acts ; 
exceeding  this  they  become  liable  as  a  private 
individual. 

Omission  is  a  neglect  or  fkilure  to  do  some- 
thing which  a  person  has  power  to  do,  or  which 
duty  required  to  be  done,  or  which  the  law 
requires. 

When  a  public  law  enjoins  duties  upon  cer- 
tain officers,  and  they  neglect  to  perform  them, 
they  may  be  indicted  for  the  omission.  The 
omission  by  private  individuals  may  be  pro- 
ductive of  loss  or  injury. 

Omission  may  be  innocent  when  no  duty  de- 
mands performance,  and  criminal  when  the 
duty  is  neglected. 

Overt  acts  are  open  acis  as  distinguished  from 
secret  design  or  intention  not  carried  into  effect. 

The  mere  contemplation  or  intention  to 
commit  a  crime,  although  a  moral  sin,  is  not  an 
act  amenable  to  the  law.  The  mere  speculative 
wantonness  of  a  licentious  or  mischievous  imag- 
ination, however  dangerous  or  even  sanguinary 
in  its  object,  can  in  no  case  amount  to  a  crime ; 
but  the  instant  any  overt  act  is  manifested  the 
offender  becomes  amenable  to  the  law.  See 
Criminal  Law. 

Perfidy  is  the  violation  of  faith  in  agency, 
office,  allegiance,  connubial  engagements,  and 
transactions  in  the  highest  official  circles.  It 
is  the  act  of  one  who  has  engaged  his  faith  to 
do  a  thing  and  does  not  do  it,  but  does  the 
contrary.'' 

Performance  is  the  act  of  doing  something 
previously  contemplated  or  stipulated  for  the 
execution  or  completion  of  a  thing.  It  is  the 
act  by  which  one  is  exonerated  from  the  obliga- 
tion of  his  contract  or  undertaking,  previously 
made  or  entered  into,, 

^f-WoIfi;  2  390.    h-Chitty  Pr.  75 ;  Hammond  N.  P.  48. 


Personal  representatives,  while  acting  it 
such  capacity  and  within  the  scope  of  their 
authority,  are  liable  only  as  such.  Where  they 
exceed  that  authority  they  become  personally 
and  individually  responsible  for  their  acts. 

Persuasion  is  the  persuading  or  the  in- 
fluencing the  mind  with  arguments  or  reasons 
offered,  or  by  anything  that  moves  the  mind 
or  passions,  or  inclines  the  will  to  a  deter- 
mination. 

While  the  persuasion  is  confined  within  those 
limits  which  leave  the  mind  free  it  may  be  used 
to  influence  another.  But  if  such  persuasion 
so  far  operates  on  the  mind  of  the  person  in- 
fluenced that  he  will  be  deprived  of  a  perfectly 
free  will,  it  will  vitiate  his  act. 

Public  acts.   See  Statute  Law. 

Publication  is  the  publishing  or  offering  to 
public  notice,  notification  to  the  people  at  large, 
either  by  words,  writing,  or  printing.  The  act  by 
which  a  thing  is  made  public. 

To  become  effectual,  awards,  wills,  laws,  etc., 
must  be  published,  i.  e.,  made  known.  In  this 
manner,  also,  public  and  judicial  sales  are  an- 
nounced, the  service  of  legal  process  made, 
and  many  other  acts  proclaimed. 

Publicity  is  the  state  of  being  public,  open 
to  the  knowledge  of  the  community,  perform 
ance  or  transaction  of  business  in  the  view  of  al) 
persons  who  choose  to  be  present. 

Courts  must  be  open  to  the  public ;  there  can 
be  no  secret  tribunal,  except  the  grand  jury, 
which  acts  in  the  interest  of  the  public,  and 
whose  functions  are  merely  for  investigation, 
and  not  trial. 

The  acts  of  the  legislature  must  be  made 
public  before  they  are  of  effect.  They  are,  in 
general,  made  public  either  by  their  being 
placed  upon  a  record  provided  for  that  purpose, 
and  at  all  times  open  to  public  inspection,  or  by 
being  made  public  through  the  medium  of  news- 
papers, or  by  distribution  to  the  various  officers 
by  law  entitled  to  them. 

Ratification  is  the  giving  sanction  and 
validity  to  something  done  by  another.  An 
agreement  to  adopt  an  act  performed  by  an- 
other for  us. 

As  a  general  rule,  a  person  may  elect  whether 
he  will  adopt  an  unauthorized  act  or  not.  But 
having  once  ratified  the  act,  upon  a  full  knowl- 
edge of  all  the  material  circumstances,  the  rat- 
ification cannot  be  revoked  or  recalled,  and  he 
becomes  bound  as  if  he  had  originally  author- 
ized the  act.     See  Agency  ;  Contracts. 

Reasonable  acts  are  those  governed  by  and 
under  the  influence  of  reason.  They  are  sucii 
as  the  law  requires. 

When  an  act  is  unnecessary,  a  party  cannot 
be  required  to  perform  it  as  a  reasonable  act,' 
and  a  court  will  neither  enforce  its  performance 
nor  give  a  remedy  for  its  non-performance. 

Refusal  is  the  denial  of  anything  demanded, 
solicited,  or  offered  for  acceptance;  failure  to 
perform  a  duty  or  agreement.  In  some  cases  a 
neglect  to  perform  a    duty  which  a  party  it 

I-9  Price  Exch.  43 ;  YelV.  Piatt  Gov.  342,  157. 


ACTSJ. 


49 


required  by  law,  or  his  agreement,  to  do,  will 
amount  to  a  refusal. 

Refusal  is  also  the  right  of  taking  in  prefer- 
ence to  others :  the  choice  of  taking  or  refusing. 
Option.  Pre-emption.  Thus  a  person  has  the 
refusal  of  a  horse  or  a  house,  or  the  refusal  of 
a  place  of  business  or  an  employment. 

Servants  are  those  persons  who  engage, 
hire,  or  let  their  services  to  another,  to  be  em- 
ployed at  any  work  or  occupation  whatever,  for 
the  benefit  of  their  employer,  and  for  compen- 
sation, subject  to  the  conditions  of  their  em- 
ployment. 

A  master  is  responsible  for  the  tortuous  acts 
of  his  servant,  which  were  done  in  his  service. 
The  responsibility  of  the  master  grows  out  of, 
and  begins  and  ends  with,  his  control  of  the 
servant.  On  this  ground  rests  the  well-estab- 
lished distinction  between  the  negligence  of  the 
servant  and  his  wilful  and  malicious  trespass  ; 
the  act  in  either  case  being  done  in  the  course 
of  his  employ.  For  the  former  the  master 
must  answer;  for  the  latter  he  is  not  held 
liable,  unless  the  trespass  is  proved  to  have 
been  authorized  or  ratified  by  him.*  The 
master  is  responsible  for  what  is  done  by  one 
who  is  his  servant  in  fact,  for  the  reason  that 
he  has  such  servant  under  his  constant  control, 
and  may  direct  him  from  time  to  time  as  he 
sees  fit;  and  therefore  the  acts  of  the  servant 
are  the  acts  of  the  master,  because  the  servant 
is  at  all  times  only  an  instrument ;  and  one  is 
not  liable  for  a  person  who  is  servant  only  by 
construction,  excepting  so  far  as  this  essential 
element  of  control  and  direction  exists  between 
them.  When  a  master  gives  general  directions 
to  his  servant,  trusting  to  his  discretion,  the 
master  may  be  liable  for  his  servant's  misuse 
of  his  discretion;  but  if  he  gives  specific  direc- 
tions, and  the  servant  transcends  them,  the 
master  is  not  liable.^  Where  the  negligent 
party  exercises  a  distinct  and  independent  call- 
ing, his  employer  is  not  liable,''  and,  if  the 
negligence  be  committed  in  the  performance 
of  a  piece  of  work  undertaken  in  consequence 
of  a  special  contract,  in  such  case  the  contractor 
is  solely  responsible.' 

Skill  is  the  familiar  knowledge  of  any  oc- 
cupation, art,  or  science,  with  readiness  and 
dexterity  in  its  execution,,  performance,  or 
application  to  practical  pui-poses. 

Every  person  who  purports  to  have  skill  in 
a  business,  and  undertakes  for  hire  to  perform 
it,  is  bound  to  do  it  with  ordinary  skill,  and  is 
responsible  civilly  in  damages  for  want  of  it.™ 
In  some  instances  they  will  be  responsible 
criminally."     See  Medical  Law. 

The  degree  of  skill  and  diligence  required 
rises  in  proportion  to  the  value  of  the  article 
and  delicacy  of  the  operation."  See  Bailments. 

1-1  East.  io6;  4B.  &Ald.  590;  8A.  &E.  512;  i  Mo. 
&  P.  241  :  3  C.  &  P.  167  ;  30  E.  L.  &  E.  167 ;  17  Mass. 
479  ;  19  Wend.  343 ;  2  Comst.  479  ;  27  Conn.  274  ;  7  N. 
H.  227;  8  T.  R.  531 :  14  How.  468;  7  Cush.  385.  j-28 
Ills.  434.  k-i2  A.  &  E.  737  ;  4  Q.  B.  298;  2  Mich.  368  ; 
II  Wis.  180.  I-7Q.  B.  960;  9  Exch.  702.  m-ii  M.  & 
W.  483.  n-2  Russell  Crimes,  288.  O  -Jones  Bailm.  91  ; 
S  Kent  Comm.  458,463;    i  Bell  Comm.  459:    3  Ld. 


Stultification  is  the  state  of  being  mentally 
incapacitated  from  performing  an  act.  To  allege 
or  prove  to  be  insane,  for  the  purpose  of  avoid- 
ing some  act  or  contract. 

The  rule  laid  down  by  the  old  authorities,!" 
that  no  man  should  be  allowed  to  stultify  him- 
self— that  is,  plead  disability  through  mental 
unsoundness — was  soon  doubted  as  law.'J  and 
has  been  completely  overturned,''  still  this  de- 
fence is  frequently  interposed. 

Time. 

When  an  act  is  to  be  done  within  a  certain 
period  from  a  particular  time,  as,  for  example, 
within  ten  days,  one  day  is  to  be  taken  inclu- 
sive and  the  other  exclusive." 

Transfer  is  the  act  by  which  the  owner  of 
a  thing  delivers  it  to  another  person  with  the 
intention  of  passing  his  rights  in  it  to  the  latter ; 
to  make  over,  to  pass,  to  convey,  to  sell,  to 
give. 

The  title  to  land  is  conveyed  by  deed,  the 
property  in  a  bill  of  exchange  is  transferred  by 
indorsement,  stocks  are  transferred  by  assign- 
ment, or  entering  the  same  under  the  name  of 
the  purchaser  in  the  proper  book. 

Uncertainty  is  the  want  of  certainty;  that 
which  is  unknown  or  vague. 

When  the  act  to  be  performed  is  so  vague 
in  its  terms  that  it  cannot  be  certainly  under- 
stood, it  is  of  no  effect.  The  act  must  be  cer- 
tain in  its  essence,  quality,  and  quantity,  aivd 
that  is  certain  which  may  be  made  certain.' 

Certainty  is  required  in  contracts,  wills, 
pleadings,  judgments,  and  indeed  in  all  tlie 
acts  on  which  courts  have  to  give  judgment; 
and  if  they  be  so  vague  and  uncertain  as  not  to 
be  understood,  they  are,  in  general,  invalicV" 
See  Contracts. 

Vacation  is  the  making  void,  or  of  no 
validity;  annulling. 

An  entry  which  has  been  made  upon  a  public 
record,  through  fraud  or  imposition,  may,  upon 
application,  be  vacated.  A  charter,  a  franchise, 
an  office  of  trust,  etc.,  may  be  vacated. 

Void,  Voidable.  Void  acts  are  those  hav- 
ing no  legal  or  binding  force,  such  as  are  null, 
of  no  effect,  not  sufficient  to  bind  parties  or 
to  convey  or  support  a  right.  Voidable  acd 
are  those  which  maybe  annulled  or  made  void, 
or  may  be  adjudged  invalid,  void,  or  of  no 
effect.  They  have  force  and  effect  in  conse- 
quence of  some  inherent  quality  only,  but  may 
be  legally  annulled  or  avoided.  A  contract 
between  an  infant  and  adult  is  voidable,  be. 
cause  it  may  be  avoided  or  confirmed  on  tue 
infant's  coming  of  age. 

Wife.  The  acts  of  the  wife  are  consid- 
ered the  acts  of  her  husband.  For  her  crimes, 
however,  she  is  liable  as  if  she  were  a  single 
woman.     Where  she  commits  a  crime  in  the 

R»ym.  909,  918  ;  Story  Bailm.  §  431,  et  seq.  ;  2  Greene 
Ev.  §  144.  p-Litt.  ?  405  ;  4  Co.  123  ;  Cro.  Eliz.  398. 
Q-i  Hogg,  414;  2  Sharsw.  Bl.  Comm.  292.  r-4  Kent 
Comm.  451.  s-See  Hob.  139;  Cowp.  714;  Dougl.  463J 
2  Mod.  280;  3  Penn.  St.  200;  i  S.  &  R.  43 ;  3  B.  & 
Aid.  581 :  3  East.  407;  Com.  Dig.  Estates  (G 8), Tempi. 
(A)  Chitty  Pr.  69,  147.  t-Co.  Litt.  43.  H-i  Russ  & 
M.  116 ;  I  Chitty  Pr.  133;  2  Martin  (N.  S.)  mo. 


50 


AFFIDAVIT. 


presence  of  her  husband,  unless  it  is  of  a  very 
aggravated  character,  she  is  presumed  to  act  by 
his  coercion,  and,  unless  the  contrary  is  proved, 
she  will,  in  the  absence  of  a  statute  to  the  con- 
trary, be  held  irresponsible. 

Writing  is  the  forming  of  letters  and  char- 
acters upon  paper,  parchment,  cloth,  wood, 
stone,  or  other  material,  for  the  purpose  of  re- 
cording the  ideas  which  the  words  or  characters 
express.    Printing  is  construed  to  mean  writing. 

Many  contracts  must  be  in  writing,  all  deeds 
for  the  conveyance  of  real  estate  must  be  in 
writing.  Records,  bonds,  bills  of  exchange, 
and  many  other  obligations  and  undertakings, 
must  be  made  in  writing. 

Act  of  Ood.    See  Accident. 

Act  In  Pais.    See  Practice. 

Action  at  Liaw.    See  Practice. 

Actual  Damages.    See  Damages. 

Actuary.    See  Corporations  ;  Insurance. 

Acl  Valorem.    See  Duties. 

Addition.    See  Name. 

Address.    See  Legislation,  Pleading. 

Ademption.    See  Legacy. 

Adjourned  Term.    See  Practice. 

Adjournment.    See  Practice. 

Adjudication.    See  Judgment. 

Adjustment.    See  Insurance. 

Administering^  Poison.  See  Criminal  Law. 

Administration.   See  Estate;  Government. 

Administrator.    See  Personal  Relations 

Admiral.    See  Office  and  Officers. 

Admiralty.    See  Courts. 

Admissions.  See  Corporations;  Evidence; 
Practice. 

Admonition.    See  Practice. 

Adolescence.    See  Age;  Infants. 

Adoption.     See  Children. 

Adult.     See  Age;  Infants. 

Adulteration.    See  Criminal  Law. 

Adulterator..  See  Criminal  Law. 

Adulterine.    See  Adultery;  Children. 

Adultt»ry.    See  Criminal  Law. 

Advancement.     See  Gift. 

Advances.    See  Agents;  Loan. 

Adventure.    See  Mekca.ntii.e  Law. 

Adverse  £nJoyment.    See  Real  Property. 

Adverse  Possession.    See  Real  Property. 

Advertisement.    See  Notice;  Practice. 

Advice.     See  Mercantile  Law. 

Advisement.     See  Practice. 

Advocate.  See  Agency;  Attorneys;  Practice. 

Affection.    See  Consideration;  Payment. 

Alliance.    See  Marriage. 

AFFIDAVITS.      See    Evidence;     Practice; 

iViTNESS. 

An  Affidavit  is  a  statement  or  declaration 
reduced  to  writing  and  sworn  or  affirmed  to 
before  some  officer  who  has  authority  to  admin- 
ister an  oath.  It  differs  from  a  deposition  in 
this :  that  in  the  latter  the  opposite  party  has 
an  opportunity  to  cross-examine  the  witness, 
whereas  an  affidavit  is  always  taken  ex  parted' 

A  counter  affidavit  is  an  affidavit  made  in 
opposition  to  one  already  made.  Its  essential 
requisites  are  the  same  as  an  affidavit. 

Amendments  at  common  law,  independent 
of  any  statutory  provision  on  the  subject,  are, 
in  all  cases,  in  the  discretion  of  the  court,  for 
the    furtherance    of   justice.    An    amendment 

V-Gresly  Eq.  Ev.  413.  w-tz  Ad.  &  E.  217;  2  Pick. 
iSo;  4T.  R.  457:  4  Burr.  2568.  x-Phil.  (N.  C.)  L.  199. 
y-sT.  R.  364;  Id.  83.  a!-8T.  R.  27;  7East.  194;  u 
Id.  315  ;  2  Wils.  224  ;  2  M.  &  S.  603.  a-ii  Ohio,  263. 
b-2  Chitty,  19;  18  Eng.  C.  L.  R.  235.  c-7  Hill,  77;  4 
Denio,  71 ;  Id.  258.  d-3  N.  Y.  41  ;  8  Id.  158.  e-5  M. 
&  G.  2ot ;  44  Eng.  C.  L.  R.  159 ;  i  Duer,  62  ;  11  N.  Y. 
Leg.  Ots.  313.  t-T  Chitty,  228;  18  Eng.  C.  L.  R.  69; 
s««  7  How.  Pr.  446.    ip-i  Tidd,  Pr.  496 ;  45  Barb.  594 ; 


where  there  is  something  to  amend  by,  may  be 
made  in  a  criminal,  as  in  a  civil  case.*  But 
such  amendment  must  be  by  leave  of  the  court, 
and  upon  the  tenns  prescribed. 

An  affidavit  amended  by  order  of  the  court 
must  be  re-sworn  to,  or  it  is  no  affidavit.* 

Amounts,  Descriptions,  etc.  An  affidavit 
should  be  positive  as  to  parties ;  as  to  a  claim,-^ 
its  nature,  how  it  arose,  upon  what  it  is 
grounded,  and  the  amount.*  If  the  amount  is 
uncertain,  still  some  amount  must  be  stated." 

The  names  of  all  the  deponents  should  be 
mentioned.''  In  general,  an  affidavit  niu>t 
describe  the  deponent  sufficiently  to  show  thr.t 
he  is  entitled  to  offer  it ;  for  example,  that  he  is 
a  party,  or  agent  or  attorney  of  a  party,  to  the 
proceeding ;"  and  this  matter  must  be  stated,  not 
by  way  of  recital,  or  as  mere  description,  but  as 
an  allegation  in  the  affidavit;"*  the  affidavit 
should  show  that  they  were  severally  sworn.* 

The  jurat  is  that  part  of  an  affidavit  where 
the  officer  certifies  that  the  same  was  "  sworn  " 
before  him. 

The  jurat  should  state  the  day  on  which  it 
was  sworn ;  ^  it  need  not  specify  the  place  where 
it  was  sworn,  as  the  venue  sufficiently  shows 
that.8  The  jurat  should  be  in  special  fomi 
where  deponent  is  illiterate;''  or  blind;'  other- 
wise, the  common  form  is  sufficient.J  Where  a 
deponent  is  a  marksman,  the  fact  of  the  affidavit 
having  been  read  over  to  him,  and  his  under- 
standing it,  should  be  stated  in  the  jurat.'' 

The  jurat  must  be  signed  by  the  officer  with 
the  addition  of  his  official  title.'  An  affidavit 
should  show  on  its  face  that  it  was  made  before 
some  officer  competent  to  take  affidavits.™ 

Seal.  In  the  case  of  some  officers  the  statutes 
conferring  authority  to  take  affidavits  require 
also  his  seal  to  be  affixed. 

Whenever  an  officer  has  an  official  seal  he 
should  affix  it. 

Signature  of  affiant.  The  affidavit  should 
be  subscribed  by  the  deponent  or  deponents." 
The  absence  of  the  party's  signature  does  not 
prove  that  he  was  not  sworn  ;  for  it  is  not  neces- 
sary to  constitute  an  affidavit,  unless  required 
by  statute  that  the  party  making  should  sign  it." 
But  there  must  be  an  official  authentication.P 

Surplusage  in  an  affidavit,  not  inconsistent 
with  the  substantial  averments  required  by  the 
statute,  will  not  vitiate  it.' 

Title  of  the  action.  The  affidavit  must  in- 
telligibly refer  to  the  cause  in  which  it  is  made ; 
in  other  words,  it  should  show  by  its  title  who 
is  plaintiff  and  defendant,""  and  the  court  in 
which  the  action  is  pending.  The  strict  rule 
of  common  law  is,  that  it  must  contain  the 
exact  title  of  the  action.  When  there  is  no 
proceeding  pending,  the  affidavit  must  not  be 

I  Abb.  Pr.  (N.  S.)  258;  30  How.  Pr.  161;  12  Wend. 
223  ;  3  Hill,  461.  h-i  Tidd  Pr.  495 :  3  Moult.  Ch.  Pr. 
551.  1-5  Paige,  242.  J-3Edw.239.  fc-3D0wl.Pr.Cas. 
599.  l-i  Denio,  429;  ^Caines,  128;  see  also  6  Cow.  728. 
m-6  How.  Pr.  305.  "n-Newl.  Ch.  165;  u  Paige,  Ch. 
173.  0-4  Sm.  &  Marsh,  579.  8  Iowa,  310;  28  Ga.  27. 
p-2  Rob.  (La.)  132  ;  3  Scam.  536  ;  8  Ga.  521  ;  7  Port, 
483  ;  3  Ala.  709.  q-6  S.  &  M.  276  ;  11  Harb.  520;  33 
Miss.  190;  34  Id.  269;  I  La.  -An.  725;  la  Ohio  St.  335. 
"-T2  Hew.  Pr.  401. 


AFFIDAVIT. 


SI 


•ntitled ;  but  a  superfluous  title  may  be  disre- 
garded as  not  affecting  the  substantial  rights 
of  the  party." 

Venue  is  the  place   where  the  affidavit  is 

taken  and  must  be  stated — (thus,  State  of , 

county,  ss.)   to  show  that   it  was  taken 

within  the  officer's  jurisdiction;'  and  an  omis- 
sion of  the  venue  from  an  affidavit  is  fatal. 
The  venue  is  an  essential  part  of  every  affida- 
vit, and  prima  facie  evidence  of  the  place  where 
it  was  taken."  If,  by  the  venue,  it  appears  that 
the  affidavit  was  taken  at  a  place  beyond  where 
the  officer  was  authorized  to  act,  it  will  not  be 
received  by  the  court.'' 

The  title  of  an  action  is  generally  as  follows  : 

State  of  -— ,     )  In  the Court. 

county.      j 

A.  B.,  plaintiff,     ~| 

vs.  >  Affidavit  for  {state  wliat). 

C.  D.,  defendant.) 

Venue  is  substantially  the  same  everywhere,  though 
stated  differently  in  different  states  and  countries.  Ex- 
amples are  as  follows  : 

State  of , county,  ss.  {or  set.  or  to-wit). 

State  of ,  city,  {or  department,  district,  parish, 

town,  township,  or  other  place,  where  the  ojfficer  resides 
mnd  the  affidavit  is  iiiaJi:.) 

Territory  of ,  city  (or  town)  of ,  ss. 

Province  of ,  dominion  of ,  etc. 

Kingdom  of ,  city  (or  port)  of ,  etc. 

Empire  of ,  port  of ,  etc. 

AFFII».4yiT  FORMS. 

The  affiant  or  deponent  is  sufficiently  described  in  an 
affidavit,  thus : 

That  A.  D.  is  (the  agent  (7r  attorney  of )  a  party 

{or  one  of  the  parties)  to  this  proceeding  {or  matter). 

The  common  form  of  jurat  is  either  of  the  following 
forms ; 

Subscribed  and  sworn  to  before  me  this 

day  of . 

( Officer's  signature  and  official  title.) 

Sworn  to  and  subscribed  this day  of . 

{Officer's  signature  and  official  title.) 
Commenceiiient  of  an  Aftidavit. 

An  affidavit  to  be  eflfectual  in  law  must  be  made  before 
some  competent  court  or  officer,  having  authority  to 
administer  an  oath  ;  and  this  oath  must  be  administered 
within  the  court  or  officer's  jurisdiction.  Thus,  if  it  is 
administered  in  Allen  county,  by  a  court  or  officer  of 
Brown  county,  it  would  be  insufficient,  the  court  or  offi- 
cer having  no  jurisdiction  for  this  purpose  in  the  latter 
coimty.  The  affidavit  for  general  purposes  would  com- 
mence thus  : 

State  of , county,  ss. 

A.  B.,  being  duly  sworn,  says  (or  alleges)  that,  etc. 

If  the  affidavit  is  to  be  used  in  a  foreign  country  it 
should  commence  thus  : 

United  States  of  America,  State  of,  etc. 

Another  form : 

State  of , county,  ss.  (set.  or  to-wit). 

Be  it  remembered,  that  on  this day  of , 

etc. 

Or  commence  thus  : 

On  this day  of ,  before  me,  the  subscri- 
ber, one  of  the  justices  of  the  peace  in  and  for 
said  county,  personally  came  (or  appeared)  A.  B., 

of ,  and  being  by  me  duly  sworn  {or  being  by 

me  sworn  according  to  law)  says  (or  alleges,  or  de- 
poses, or  deposeth  and  saith)  that,  etc. 

If  an  affidavit  is  to  be  used  in  a  civil  or  criminal  ac- 
tion or  suit,  it  should  state  the  title  of  the  action,  thus  : 

—  \on;^:V--     In  the —  court. 
A.  B.,  plaintiff,         ^ 

vs.  >  Affidavit  (of ,  for) . 

C.  D.,  defendant,     j 

State  of ,  county  of ,  ss. 

A.  B. ,  being  duly  sworn,  says  {or  alleges)  that,  etc. 

H-4  How.  Pr.  95.  t-i  Barb.  Ch.  601  ;  18  Barb.  408, 
and  cases  there  cited,  u-6  How  Pr.  394;  18  Barb.  407, 
408,  and  cases  there  cited ;  8  Paige,  428 ;  i  Barb.  Cb.  218. 


It  will  be  observed  that  a  "  statement  of  venue  "  it  twice 
made  in  this  form.  The  first  relates  to  the  court  in 
which  the  action  is  pending,  the  second  to  the  place 
where  the  affidavit  is  taken. 

Conclasion  of  an  Affidavit. 

In  order  that  the  affidavit  shall  be  effectual  it  must 
bear  upon  its  face  the  evidence  of  its  being  du^  made. 
This  is  done  by  the  officers'  bearing  witness  to  and  af- 
firming its  having  been  so  made,  by  his  solemn  declara- 
tion to  that  effect.  This  is  called  the  jurat,  to  which  his 
signature  is  absolutely  necessary.  An  officer's  official 
title  should  always  accompany  his  signature. 

General  Form  of  Conclusions  or  Jurats. 

Sworn  {or  affirmed)  before  me,  this day  of 

.  {Officer's  signature  and  official  title.)  . 

Subscribed  and  sworn  to  before  me  this day 

of .  ( Officer's  signature  and  title. ) 

In  testimony  whereof,  I  have  hereunto  set  my 

hand  (and  affixed  my  official  seal),  this day  of 

.         [Seal.]  { Officer's  signature  and  title.) 

If  an  affiant  is  blind  or  illiterate  it  should  be  thus  : 

Subscribed  and  sworn  to  before  me,  this  — ^ 

day  of ,  A.  D. ,  the  same  having  been  in  my 

presence  (or  by  rae)  read  to  this  affiant,  he  being 
blind  (or  illiterate),  and   understanding  the  same. 

[Seal.  ]  (Signature  and  official  title.) 

If  an  affiant  is  a  foreigner  it  should  be  thus  : 

Subscribed   and  sworn  to  before  me,  this 

day  of ,  A.  D.  ,  I  having  first  sworn  I.  R., 

an  interpreter,  to  interpret  truly  the  same  to  this 
deponent,  who  is  a  foreigner,  not  understanding 
the  English  language,  and  he  having  so  inter- 
preted the  same  to  said  deponent. 

\_Seal.\  (.Signature  and  official  title.) 

Affidavit— Cieneral  Forms. 

If  made  in  a  legal  proceeding,  set  out  the  caption  or 
title  of  the  pleadings ,  which  consist  of:"  i.  The  name 
of  thfc  State  and  county  in  which  the  action  is  brought. 
2.  The  name  of  the  court.  3.  The  names  of  the  parties, 
plaintiff  and  defendant. 

State  of , county  (city  of ),  ss. 

A.  B.  (of ),  being  duly  sworn,  says  {or  alleges, 

or  deposes  and  says) : 

That,  etc.  {setting  out  the  matters  to  be  alleged). 
{Signature  0/  affiant.) 

Sworn  {or  affirmed)  before  me,  this day  of 

,  A.  D. .  {Signature  0/  officer.) 

Another. 

A.  B.,  plaintiff,    ) 

vs.  >  In  the court. 

C.  D.,  defendant.) 

State  of , county,  ss. 

A.  B.  (and  C.  D.),  being  duly  sworn  (or  affirmed), 
says  (or  severally  say,  each  for  himself ) : 

"That  he  is  plaintiff  (or,  that  he  is  the  agent  \or  at- 
toriieyj  of  the  plaintiff)  in  the  above  entitled  action. 

That,  etc.  (stating  the  facts).         (Ssgned:)  A.  B. 

Subscribed  and  sworn  to  before  me,  this  —— 
day  of ,  A.  D. . 

[ Seal.  ]  ( Signatu re  and  official  title. ) 

A  not  her. 

State  of , county,  to  wit. 

A.  B.,  of ,  being  duly  sworn,  says.  That  li» 

has  been  informed,  and  be1i=vf;s  it  to  be  true  that, 
etc.  (setting  out  the  matters  oj  irjonnation,  etc. ),  and 
further  says  not.  A.  B. 

Sworn  to  this day  of ,  A.  D. ,  before 

me,  C.  D.  (Official titU.) 

Affidavit — Accounts. 
See  Accounts. 

By  culministrator ,  assignee,   executor    guardian, 
trustee,  etc. 

State  of , county,  ss. 

Before  me,  the  undersigned,  one  of  the  justices 
of  the  peace  of  said  county,  personally  appeared 
A.  T.  (administrator,  assignee,  executor,  guardian,  or 
trustee,  as  the  case  may  be),  aforesaid,  who  does  de- 
pose and  say,  that  the  above  account  is  just  and 
true  to  the  best  of  his  knowledge  and  belief. 

(Signed)  A.  T. 

Sworn   and   subscribed,  this  day  of  , 

A.  D. .  J.  P.,  justice  of  the  Peace. 

V-2  How.  Pr.86;  Id.  127:    Id.  181;  18  Barb.  408,  and 
cases  there  cited,     wr-i  Chitty  PI.  261,  527, 528 ;  i  Arch 
1   PI.  72,  168;  Steph.  PI.  440;  I  Marsh,  j4t 


s» 


AFFIDAVIT. 


Another . 

State  of , county,  ss. 

A.  T.,  being  duly  sworn,  says: 

That  he  is  administrator  of  the  estate  of  D.  D., 
of ,  deceased  ;  or 

(That  he  is  the  assignee  of  the  estate  of  I.  T.,of 
-^— ,  insolvent  {or  B.  T.,  of ,  bankrupt) ;  or 

(That  he  is  the  executor  (or  one  of  the  executors) 

of  the  last  will  and  testament  of  D.  D.,  of , 

deceased) ;  or 

(That  he  is  guardian  of  the  (person  and)  estate  of 
I.  D.,  minor  heir  of  D.  D.,  of ,  deceased);  or 

(That  he  is  trustee  of  the trust  fund,  of 

- — ,  etc.) 

That  the  above  (annexed,  foregoing,  or  within) 
account  (and  the  schedules  therein  referred  to) 
contain  a  full  and  true,  complete  and  perfect 
account  of  his  administrator-  (assignee-  executor- 
guardian-  or  trustee-)  ship,  to  the  best  of  his  knowl- 
edge and  belief.  (Sig^ned.)    A.  T. 

Subscribed  and  sworn  to  before  me  this 

day  of ,  A.  D. . 

C.  C,  Clerk.     (Signature  and  official  title  of  officer 
authorized  to  administer  oath.) 
Another. 

State  of , county,  ss. 

A.  T.  (administrator  of  the  estate  \or  executor  of  the 
last  will  and  testamentlof  D.  D.,  deceased,  or  assignee 
of  I.  T.,  insolvent,  orB.  T.,  bankrupt,  or  guardian  of 
the  [estate  and]  person  of  I.  D.,  minor  heir  of  D.  D., 

deceased,  or  trustee  of  the fund,  etc.\  swears  that 

the  foregoing  account  presented  is  just  and  true  ; 

Or,  Swears  that  the  foregoing  account  is  just 
and  true  (or  correct)  as  he  verily  believes  ; 

Or,  Swears  that  the  foregoing  account  is  a  full 
and  correct  exhibit  of  his  doings  as  such  (adminis- 
ter, etc. )  ; 

Or,  Swears  that  the  foregoing  is  a  full  and 
accurate  account  of  his  (administration,  etc.)  of  said 
estate.  A.  T. 

Sworn  (or  affirmed)  to  and  subscribed  by  said 

A.  T.,  before  me  this day  of ,  A.  D. . 

(Signature  and  official  title.') 
Another. 

Date .     The  city  (county  or  township)  of , 

Dr.  to  A.  B.  &  Co. 


Date. 

To  looo  Blank  Licenses. 
To  1  "        Record. 

To,  etc. 

State  of , county,  ss. 

I,  the  undersigned,  do  solemnly  swear  that  the 
above  account  is  just  and  correct ;  is  due  and  re- 
mains unpaid  (and  that  the  charges  therein  are  the 
customary  and  usual  retail  [or  wholesale  or  market] 
prices  therefor).  (Signed)    A.  B. 

Subscribed  and  sworn  to  before  me  this 

day  of ,  A.  D. .  E.  F.  ( Official  title.) 

If  the  officer  administering  the  oath  have  an  official 
seal  it  should  also  be  annexed. 
Another. 

State  of , county,  ss. 

On  this  day  of ,  A.  D. ,  before  me, 

the  subscriber,  one  of  the  justices  of  the  peace  in 
and  for  said  county,  personally  came  A.  B.,  of 
,  and  being  (duly)  sworn  (according  to  law)  de- 
poses and  says  : 

That  the  abore  account,  as  stated,  is  just  and 
true. 

That  the  above  sum  of dollars  is  no\v  justly 

due  and  owing  to  this  deponent  by  the  above- 
named  C.  D. 

That  >e,  the  said  A.  B.,  has  never  received  the 
same,  or  any  part  thereof,  either  directly  or  indi- 
rectly, nor  any  person  for  him,  by  his  direction  or 
order,  knowledge  or  consent.  A.  B. 

Sworn  and  subscribed  before  me  this day 

of ,  A.  D. .  J.  P.,  Justice  of  the  Peace. 

Affidavit — Acknowledgement. 

State  of , county,  ss. 

Be  it  remembered,  that  on  this day  of , 

A.  D. ,  before  me,  O.  R.,  a ,  in  and  for  said 

county,  personally  came  W.  T.,  one  of  the  sub- 
scribing witnesses  to  the  above  (annexed,  foregoing, 
or  within)  instrument  of  writing,  and  being  (duly) 
■worn  (or  affirmed)  says : 


That  he,  the  said  W.  T.  and  N.  S.,  the  sub- 
scribing  witnesses  to  said  instrument  of  writing, 

were  (on  the day  of )  both  present  and  did 

see  the  above-named  A.  B.  sign  (and  seal),  and  as 
his  act  and  deed  acknowledge  and  deliver  said 
instrument. 

That  thereupon  said  W.  T.  and  N.  S.  did  sub- 
scribe their  names  as  witnesses  to  the  same. 

In  testimony  whereof,  I  have  hereunto  set  my 
hand  and  affixed  my  oiBcial  (or  notarial)  seal  th» 
day  and  year  first  above  written. 

\.Seal.\  O.  R.  (official  tUU.) 

Affidavit— Arbitration. 

See  Agency,  Arbitration. 

Affidavit— Arrest. 

See  Arrest,  Pleading,  Practice. 
A  ffidavlt — Assets. 

State  of , county,  ss. 

A.  B.,  being  duly  sworn,  says  (or  alleges) : 
That  he  is  the  owner  of  the  (in  fee)  of  the  foK 
lowing  described   (unencumbered)  real   estate,  to 
wit  (describing  it) ;  all  of  the  aggregate  value  o' 

dollars. 

That  he  is  the  owner  (absolutely)  of  the  follow 
ing  described  (unencumbered)  personal  propertj, 
to  wit  (describing  it);  all  of  the  aggregate  value 

of dollars. 

That  he  is  worth  dollars  over  and  above 

all  his  debts,  exemptions  and  liabilities. 

(Signed)    A.  B. 

Subscribed  and  sworn  to  before  me  this  

day  of ,  A.  D. .  O.  R.  (official  title). 

\_Seal.] 

AfHdavlt — Attachment. 
See  Attachment,  Pleading,  Practice. 

Affidavit- Defence. 

See  Defences, /oj/. 

A.  B.] 
vs.     >  In  the court. 

C.  D.j 

State  of , county,  ss. 

C.  D.,  being  duly  sworn,  says  : 

That  he  is  the  (agent  or  attorney  of  the)  defendant 
in  the  above  entitled  action. 

That  he  (said  defendant;  has  a  just  and  legal  de- 
fence to  the  whole  {or  part)  of  the  plainti3''s  de- 
mand in  said  action. 

That  the  (character  or)  nature  of  said  defence  la 
AS  ioWo-ws  (describing  defence).       (Signed)     CD. 

Subscribed  and  sworn  to,  etc. 

Affidavit — Foreigrn. 

To  be  used  in  a  foreign  country  or  state. 

State  of , )  i^ccA       „ 

county,  J  ®^-    Affidavit  concerning . 

(Be  it  known,  or)  Be  it  remembered  that  on, this 

day  of ,  A.  D. , before  me,0.  R.,a , 

in  and  for ,  residing  at  the  ,  of ,  duly 

commissioned  and  sworn,  and  by  law  authorized 
to  administer  oaths  and  affirmations,  personally 

appeared  (or  came;  A.  B. ,  of ,  and  being  by  me 

duly  sworn  (or  affirmed)  did  depose  and  say : 

That,  etc.  {setting  forth  the  matters  and  things 
sworn  or  affirmed).  (Signature  of  deponent.) 

In  testimony  whereof,  I  have  hereunto  set  my 
hand  and  affixed  my  seal  of  office  the  day  and 
year  first  above  written. 

ISeal.]    (Signature  of  officer  and  his  official  title.) 

AflSidavlt— Notices,  Etc. 

Of  service  of  notice. 
See  PiTBLicATioN,  below. 
(Title  of  the  action,  if  any.) 

State  of , county,  ss. 

A.  B.,  being  duly  sworn,  says  : 

That  he  served  a  ( ,  of  which  the  within  is  a  tni« 

copy,  or)  copy  of  the  within  on  the  withii,- 

named  C.  D.,  on  the  day  of ,  A.  D. , 

at  —  o'clock,  —  m.,  by  leaving  the  same  at  (his 
[lastl,  usual  place  of  residence,  or  at  his  dwelling-house, 
or  at  his  office,  or  counting-room,  store,  shop,  etc.)  in 

(in  the  presence  of ,  a ),  etc.  A.  B. 

Subscribed  and  sworn  to  this day  of . 

A.  D. .  (Signature  and  official  title.) 

Affidavit— Partners. 
Limited  or  special  partnership.     To  be  indorsed  0% 
the  back  of  certificate  of  partnership. 
State  of , county,  .SB. 


AFFIDAVIT— AGENCY. 


53 


A.  B.,  being  duly  sworn,  says,  that  he  is  one  of 
the  general  partners  of  the  within-named  part- 
nership, and  that  the  amount  of  money  con- 
tributed by  each  of  the  within-named  special 
partners  to  the  common  stock  thereof,  is  as  fol- 
lows:   E.   F.,  dollars,  G.   H.,  dollars, 

which  said  amounts  have  been  actually  and  in 
eood  faith  contributed  and  applied  to  the  same. 
^  A.  B. 

Subscribed  and  sworn  to  before  me  this day 

of ,  A.  D. .  J.  P.,  Justice  of  the  Peace. 

Affidavit— Petition. 
See  Pleadings. 

State  of , county,  ss. 

A.  B.,  being  duly  sworn,  says  : 

That  the  facts  set  forth  in  the  above  (foregoing, 
tr  within)  petition  are  true  to  the  best  of  his 
knowledge  and  belief  {or,  as  he  verily  believes). 

Subscribed  and  sworn  to,  etc.  A.  B. 

Affidavit— Publication. 

See  Publication. 

State  of , county,  ss. 

P.  P.,  being  duly  sworn,  says,  that  he  is  the 
printer  of  {or  is  in  the  employ  of  P.  P.,  the  printer 

of)  the ,  a  newspaper  published  in,  and  of 

general  circulation  in  said  county;  and  that  the 
notice,  of  which  the  annexed  is  a  true  copy,  was 
published  for  —  consecutive  (days  or)  weeks  in 

said  newspaper — commencing  on  the day  of 

,  A.  D. .  P.  P. 

Subscribed  and  sworn  to  before  me  this 

day  of ,  A.  D. . 

J.  P.,  Justice  of  the  Peace. 

Affidavit — Sig'natnre. 

See  Signature. 
Of  'witness,  deceased  or  absent,  to  a  conveyance,  etc. 

State  of , county,  ss. 

Be  it  remembered,  that  on  the day  of , 

A,  D. ,  before  me,  the  undersigned,  O.  R.,  a 

,  in  and  for  said  county,  personally  appeared 

(arcanie)  E.  T.,who  being  duly  sworn  (or  affirmed), 
disposes  and  says : 

That  S.  W. ,  one  of  the  subscribing  witnesses  to 

tlie  within ,  is  (now  absent  from  this  State,  or  de- 

ciased),  etc. 

That  he  has  frequently  (and  between  the day  of 

and  the day  of )  seen  said  S.  W.  write. 

That  he  is  well  acquainted  with  the  hand- 
in  riting  of  said  S.  'VJ . 

That  (he  verily  believes  that)  the  name  of  said 
a.  W.,  signed  to  the  same  as  one  of  the  attesting 
witnesses,  is  the  individual  and  proper  hand- 
writing of  said  S.  W.  E.  T. 

Subscribed  and  sworn  to,  etc. 

Affidavits-Sureties. 

State  (or  Commonwealth)  of , county,  ss. 

We,  the  undersigned,  sureties  on  the  within 
{or  annexed)  undertaking,  do  solemnly  swear  that 
we  are  residents  of  said  county  and  State,  and 

that  we    are    each   of    us  severally  worth  

doUars-beyond  the  amount  of  our  debts,  exemp- 
tions, and  liabilities,  and  have  property  therein 
subject  to  execution  equal  to  said  sum.  So  help 
us  God.  S.  R. 

T.  Y. 

Subscribed  and  sworn  to  before  me,  this 

day  of ,  A.  D. . 

{Signature  and  official  title.) 

Affiliation.    See  Children. 

Affinity.    See  Marriage. 

Affirmance.    See  Contracts. 

Affirmation.    See  Practice. 

Affirmative.     See  Issue;  Practice. 

Affirmative  Pre^^nant.    See  Pleading. 

AlFru^'.     See  Criminal  Law. 

Affreii^litment.    See  Maritime  Law. 

Aforesaid.    See  Practice. 

AforetllOUg:bt.    See  Criminal  Law. 

q-Prof.  Parker  Lect.  1851.  r-i  Liverm.  Ag.  6,  614. 
S-2  Kent.  Coram.  614.  t-i  Liverm.  Ag.  44;  Paley  Ag. 
172  ;  Co.  Litt.  207  a.:  Story  Ag.  (4th  ed.)  102  ;  Brooni 
Max.  715;  2  Bouv.  Inst.  25;  4  Id.  26;  8  Wheat.  363  ■  7 
Exch.  726  ;  10  Id.  84s;  9  C.  B.  532,607;  14  Id.  53.  u- 
Paley  Ag.  31  ;  i  Lirerm.  Ag.  49,  50,  ^06  :  Story  Ag.  3 
25S;  12  John*.  300;  5  Cow.  281;  4  \Va.sh.  C.  C.  549  • 
14  S.  &  R.  30.     v-Stoty  Ag.  g  17 ;  21  Wend.  279 ;  9  n! 


Aicainst  the  Form  of  the  Statat«,  etc. 

See  Criminal  Law. 
Aj^ruinMt  the  Will.    See  Criminal  Law. 
Ag'e.    See  Personal  Relations. 

AOEXCY.  See  Assignment ;  Attorneys;  Con- 
tracts ;  Partnership. 

Agency  is  a  relation  between  two  or  more 
persons,  by  which  one  party,  usually  called  the 
agent  or  attorney,  is  authorized  to  do  certain 
acts  for,  or  in  relation  to  the  rights  of  property 
of,  the  other,  who  is  denominated  the  principal, 
constituent,  or  employer."!  The  business  of  the 
agency  may  concern  either  the  property  of  tho 
principal,  ol  a  third  person,  or  of  the  principal 
and  a  third  person,  or  of  the  principal  and  the 
agent,  but  must  not  relate  solely  to  the  business 
of  the  agent.  A  contract  in  relation  to  an 
illegal  or  immoral  transaction  cannot  be  the 
foundation  of  a  legal  agency."^ 

The  agency  must  be  antecedently  given,  or 
subsequently  adopted ;  and  in  the  latter  case 
there  must  be  an  act  of  recognition,  or  an  ac- 
quiescence in  the  act  of  the  agent,  from  which 
a  recognition  may  be  fairly  implied."  If,  with 
full  knowledge  of  what  the  agent  has  done,  the 
principal  ratify  the  act,  the  ratification  will  be 
equivalent  to  an  original  authority,  according 
to  the  maxim,  "subsequent  ratification  is  equiv- 
alent to  prior  command."'  An  intention  to 
ratify  may  be  presumed  from  the  silence  of  the 
principal,  who  has  received  a  letter  from  the 
agent,  informing  him  of  what  has  been  done 
on  his  account." 

The  authority  may  be  general  when  it  extends 
to  all  acts  connected  with  a  particular  business 
or  employment;  or  special  when  it  is  confined 
to  a  single  act.''  If  the  powers  are  special,  they 
form  the  limits  of  the  authority;  if  general, 
they  will  be  more  liberally  construed,  according 
to  the  necessities  of  the  occasion  and  the  course 
of  the  transaction. 

The  creation  of  an  agency,  when  express, 
may  be  either  by  deed,  in  writing  not  by  deed, 
or  by  a  verbal  delegation  of  authority.*  When 
the  agency  is  not  express  it  may  be  inferred 
from  the  relation  of  the  parties  and  the  nature 
of  the  employment,  without  proof  of  any  ex- 
press appoinlment."  In  most  of  the  ordinary 
transactions  of  business  the  agency  is  either 
conferred  verbally,  or  is  implied  from  circum- 
stances. But  where  the  act  is  required  to  be 
done  in  the  name  of  the  principal  by  deed,  the 
authority  to  the  agent  must  also  be  by  deed, 
unless  the  principal  be  present,  and  verbally  01 
impliedly  authorize  the  agent  to  fix  his  name  to 
the  deed.y 

Adoption  or  Confirmation.  As  agency  may 
be  presumed  from  repeated  acts  of  the  agent, 
adopted  and  confirmed  by  the  principal  previ- 
ously to  the  contract  in  which  the  question  is 
raised,*  so  such  agency  may  be  confirmed  and 
established  by  a  subsequent  ratification ;  where 

H.  263  ;  3  Blackf.  436.  IV-2  Kent  Comm.  612  ;  3  Chit. 
C  L.  104;  gVes.  Ch.250;  11  Mass.  27,  97,  288;  i  Birm. 
45°;  4  Johns.  Ch.  667.  x-2  Kent  Comm.  613  ;  15  East, 
400;  I  Wash.  19;  5  Day,  556.  y-i  Liverm.  Ag.  35; 
Paley  Ag.  157;  Story  Ag.  gg  49,  51 ;  5  Binn.  613;  i 
Wend.  424;  9ld.  54,  68;  12  id.  525  ;  14S.  &R.  331 
»-Holt,  278 ;  4  Campb.  88 ;  3  Esp.  60;  1  Gray  \^j. 


54 


AGENCY. 


anj  one  contracts  as  agent  without  naming  a 
principal,  his  acts  enure  to  the  benefit  of  the 
party,  although  at  the  time  uncertain  and  un- 
known, for  whom  it  shall  turn  out  that  he  in- 
tended to  act,  provided  the  party  thus  entitled  to 
be  principal  ratify  the  contract. ■"  And,  on  the 
other  hand,  if  the  principal  accept,  receive,  and 
hold  the  proceeds  or  beneficial  results  of  such 
contract,  he  will  be  estopped  from  denying  an 
original  authority,  or  a  ratification."  And  if  a 
party  does  not  disavow  the  acts  of  his  agent  as 
»oon  as  he  can  after  they  come  to  his  knowl- 
edge, he  makes  these  acts  his  own.*  An  adop- 
tion of  the  agency  in  part  adopts  as  to  the 
whole." 

A  principal  discharges  his  agent  from  respon- 
sibility for  deviation  from  his  instructions  when 
he  accepts  the  benefit  of  his  act.^  He  may  re- 
ject the  transaction  altogether  ;*  and  if  he 
advanced  money  on  goods  which  his  agent 
purchased  in  violation  of  his  authority  he  is  not 
bound  to  return  the  goods  to  the  agent  when  he 
repudiates  the  sale,  but  has  a  lien  on  them,  and 
may  hold  them  as  the  property  of  the  agent." 
But  he  must  reject  the  transaction  at  once,  and 
decisively,  as  soon  as  fully  acquainted  with  it. 
For,  if  he  delays  in  doing  this,  that  he  may 
have  his  chance  of  making  a  profit,  or  if  he 
perform  acts  of  ownership  over  the  property, 
he  accepts  it  and  confirms  the  doings  of  the 
agent.y 

An  agent  is  one  who  undertakes  to  transact 
some  business,  or  manage  some  affair,  for  an- 
other, by  the  authority  and  on  the  account  of 
(he  latter,  and  to  render  an  account  of  it." 

The  term  agent  is  one  of  a  very  wide  applica- 
tion, and  includes  a  great  many  classes  of  per- 
sons to  which  distinctive  appellations  are  given, 
as  factors,  brokers,  attorneys,  cashiers  of  banks, 
auctioneers,  clerks,  supercargoes,  consignees, 
ships'  husbands,  masters  of  ships,  and  the  like.* 

A  general  agent  is  one  authorized  to  trans- 
act all  his  principal's  business,  or  all  his 
business  of  some  particular  kind,**  or  at  some 
particular  place." 

r-6  Man.  &  G.  242;  5  B.  &  C.  909;  13  East.  274; 
12  M.  &  W.  226;  I  Br.  &  B.  282;  2  M.  &Sel.485;  5 
Met.  192;  2Q.  B.  143;  5  East.  491;  14  Jur.  142.  s-i  L. 
Raym.  224,  225  ;  11  Mod.  72 ;  13  Ga.  46  ;  21  Conn.  142. 
627;  4  T.  R.  211,  217;  18  Me.  436;  320.6.780:9 
Pet.  607 ;  8  Gil.  &  Johns.  248,  323  ;  7  Hill  (N.  Y.)  128  ; 

6  Pick.  198;  26  Wend.  192.  t-14  Serg.  &  Rawle,  27  ;  8 
How.  134;  10  Paige,  126;  16  Penn.  289;  i  Gray,  139. 
n-2  Stra.  859  ;  4  T.  R.  211 ;  7  East.  164  ;  7  B.  &  C.  310  ; 
I  Scott  N.  R.  685 ;  13  N.  H.  145  ;  i  Comst.  447  ;  8  Pick. 
16;  19  Id.  300;  23Vt.  565;  gGa.  70;  2  La.  An.  375, 
324;  5  Esp.  77;  4  Tyr.  485;  7B.&C.310;  12  Johns. 
300;  4  Mason,  206.  v-2  Freem.  48;  i  B.  &  C.  186.  w- 
10  East.  158;  2  Ves.  Sen.  644;  Ambl.  740;  i  J.  J. 
Marsh.  285-294  ;  Sugden  Pow.  ch.  9,g  8  ;  5  Yerger,  71 ; 
I  Smedes  &  M.  17 ;  i  Cr.  &  J.  316.     X-i  Ves.  Sen.  510 ; 

7  Ves.  240-247.  y-i  B.  &  C.  186;  Ves.  Sen.  509. 
»!-i  Liverm.  Ag.  67 ;  2  Bouv.  Inst.  3.  a-The  terms 
"agent"  and  "attorney"  are  often  used  synony- 
mously. Thus,  a  letter  or  power  of  attorney  is  con- 
stantly spoken  of  as  the  formal  instrument  by  which 
an  agency  is  created. — Paley  Ag.  (Dunlap's  ed.)  1  «. 
t>-But  it  is  not  always  easy  to  find  a  precise  rule  which 
determines  with  certainty  between  these  two  kinds  of 
agency.  A  manufacturing  corporation  may  authorize 
A  to  purchase  all  their  cotton,  and  he  is  then  their  gen- 
eral agent  for  this  special  purpose,  or  to  purchase  all  the 
eotton  they  may  have  occasion  to  buy  in  New  Orieaus, 

V 


A  special  agent  is  one  authorized  to  da 
one  or  more  special  things,^  in  pursuance 
of  particular  instructions,  or  within  restric- 
tions necessarily  implied  from  the  act  to  be 
done." 

The  importance  of  the  distinction  lies  in  the 
rule,  that  if  a  special  agent  exceeds  his  author- 
ity, the  principal  is  not  bound ;  *  but  if  a  gen- 
eral agent  exceeds  his  authority  the  principal  is 
bound,®  provided  the  agent  acted  within  the 
ordinary  and  usual  scope  of  the  business  he 
was  authorized  to  transact,  and  the  party  deal- 
ing with  the  agent  did  not  know  that  he  ex- 
ceeded his  authority.'  Any  specific  authority 
must  be  strictly  pursued ;  as,  for  example,  one 
known  to  be  the  agent  to  settle  claims,  and  with 
specific  authority  to  this  effect,  cannot  be  sup- 
posed to  have  authority  to  commute  them.* 
The  general  rule  is,  as  to  the  public,  that  the 
authority  of  a  general  agent  may  be  regarded 
by  them  as  measured  by  the  usual  extent  of 
his  employment.'' 

Appointment.  An  agent,  generally,  may 
be  appointed  by  parol,  and  so  authorized  to  do 
anything  which  does  not  require  him  to  execute 
a  deed  for  his  principal.*  He  may  be  author- 
ized by  parol  to  make  and  sign  contracts  in 
writing,  and  may  be  authorized  without  writing 
to  make  even  those  contracts  which  are  not 
binding  upon  his  principal  unless  in  writing 
signed  by  him.J  A  parol  ratification  is  equiva- 
lent to  an  original  authority.''  An  authority  is 
presumed  or  raised  by  implication  of  law,  on 
the  ground  that  the  principal  has  justified  the 
belief  that  he  has  given  such  authority,  in  cases 
where  he  has  employed  a  person  in  his  regular 
employment,'  as,  where  one  sends  goods  to  an 
auctioneer,  or  to  a  common  repository  room  for 
sale,  the  bailee  has  an  implied  authority  to  sell." 
Such  presumptions  frequently  arise  in  the  case 
of  a  wife,"  or  of  a  domestic  servant,"  or  of  a  son 
who  has  been  permitted  for  a  considerable  time 
to  transact  a  particular  business  for  his  father,' 
as  to  sign  bills,  etc.     It  must  be  remembered, 

and  then  he  may  be  called  their  general  agent  for  this 
special  purpose  in  that  place.  Or  to  purchase  the  car- 
goes that  shall  come  from  such  a  plantation,  or  shall  ar- 
rive in  such  a  ship  or  ships,  or  five  hundred  bales  of 
cotton,  and  then  he  would  be  regarded  as  their  particu- 
lar agent  for  this  particular  transaction,  c-41  Ind.  288. 
«l-3  M.  &  W.  178  ;  7  Id.  427;  8  Id.  505  ;  i  Esp.  iii ;  2 
Cr.  &M.  391;  4M.  &W.  155;  5  Id.  645;  lY.  &J. 
457;  Ambl.  495  ;  21  Penn.  St.  507;  13N.  H  538;  24 
How.  536.  e-i2  C.  L.  &  F.  248-273;  10  Mod.  199; 
Malloy  B.  ch.  10,227.  f-4  La.  An  409;  4  H.&N. 
(Exch.)  851.     S'-i  Wash.  C.  C.  454;  11  Barb.  652;  7  B. 

6  C.  283  :  5  M.  &  W.  235 ;    5  Bing.  442  ;    1  Taunt.  347  ; 

7  M.  &  W.  157;  I  V.  &  Coll.  394;  I  East.  335;  5  B.  & 
Aid.  204;  6  T.  R.  591 ;  2  H.  Bl.  618;  11  Gratt  269  ;  Id. 
281 ;  4  Esp.  114  ;  13  Mass.  178  ;  i  Pick.  215  ;  17  Mass. 
58:  4  Watts,  222  ;  ID  Johns.  114;  4La.  An.  409;  7  M. 
&  W.  595.  U-15  East.  38;  Id.  400;  26  Vt.  112.  i-3 
Kent  Com.  612  ;  9  CI.  &  F.  818,  850;  5  Taunt.  307;  14 
S.  &  R.  331 ;  5  Mass.  11  :  5  Binn.  613.  J-8  Pick.  9 ;  1 
Binn.  450;  i  Sch.  &  L.  -^2  ;  9  Ves.  234-250.  By  a  pro- 
vision of  the  Statute  of  Frauds,  an  agent  to  assign  or 
grant  any  lease,  estate,  or  interest  of,  in,  or  out  of  lands, 
exceeding  one  year  in  duration,  must  be  authorized 
thereto  in  writing.  K-4  Bing.  722.  I-16  Barb.  72  ;  2 
Mich.  log;  26  E.  L.  &  E.  536.  m-15  East.  38.  n-7 
Bingh.  565;  3  M.  &  W.  505;  2  C.  R.  &  J.  493;  3  Ncv. 
&  M.  422  ;  8  C.  &  P.  506;  22  Q.  B.  460.  0-5  Esp.  75; 
3  M.  &  W.  181.    p-2  Stark.  368.  • 


AGENCY. 


S5 


however,  mat  an  agent  employed  for  a  special 
purpose  derives  from  this  no  general  authority 
from  his  principal.i 

Many  persons  who  are  disqualified  from  act- 
ing for  themselves,  such  as  infants,  aliens,  out- 
laws, and  others,  may  yet  act  as  agents  in 
the  execution  of  a  naked  aulhorily.'  Per- 
sons non  compos  mentis  cannot  lie  agents  for 
others ;  nor  can  a  person  act  as  agent  in  a 
transaction  wherein  he  has  an  adverse  inter- 
est or  employment.*  And  whenever  the  agent 
holds  a  fiduciary  relation  he  cannot  contract 
with  the  same  general  binding  force  with  his 
jM-incipal  as  when  such  relation  does  not  exist.' 

Del  Credere  Commission  is  one  under  which 
an  agent,  in  consideration  of  an  additional  pre- 
mium, engages  to  insure  to  his  principal  not 
only  the  solvency  of  the  debtor  but  the  punctual 
discharge  of  the  debt,  and  he  is  liable,  in  the  first 
instance,  without  any  demand  from  the  debtor." 

Authority  is  the  lawful  delegation  of 
power  by  one  person  to  another. 

Express  authority  is  that  given  explicitly, 
either  in  writing  or  verbally. 

Implied  authority  is  that  which  the  conduct 
of  person  possessing  the  power  warrants,  and 
which  the  law  presumes. 

General  authority  is  that  which  authorizes 
the  agent  to  do  everything  connected  with  a 
particular  business.' 

Special  authority  is  that  which  is  confined  to 
an  individual  transaction." 

Limited  authority  is  that  where  the  agent  is 
bound  by  precise  instructions. 

Unlimited  authority  is  that  where  the  agent 
is  left  to  pursue  his  own  discretion. 

Authority  coupled  with  an  interest  is  an 
authority  given  to  an  agent  for  a  valuable  con- 
sideration, or  which  forms  a  part  of  a  security. 

Naked  authority  is  that  where  the  principal 
delegates  the  power  to  the  agent  wholly  for  the 
benefit  of  the  former.* 

The  right  on  the  part  of  the  agent  to  act  is 
termed  his  authority  or  power.  In  some  in- 
stances the  authority  or  power  must  be  exercised 
in  the  name  of  the  principal,  and  the  act  done 
is  for  his  benefit  alone.  In  others,  it  may  be  ex- 
ecuted in  the  name  of  the  agent,  and  if  the  power 
is  coupled  with  an  interest  on  the  part  of  the 
agsnt,  it  may  be  executed  for  his  own  benefit.? 

q-15  M.  &  W.  S17;  16  Law  J.,  C.  P.  240;  3  Exch. 
368  :  5  Sanf.  121.  r-i  Li  verm.  Ag.  32  ;  Co.  Litt.  252, 
a:  Story  Ag.  g  i.  s-2  Ves.  Ch.  317;  11  Clark  &  F. 
Ho.  L.  714;  3  Beav.  Rolls  783;  2  Campb.  203;  2 
•  Chitty  Bail.  205  ;  30  Mc.  431 ;  24  Ala.  (N.  S.)  358;  3 
Denio,  575;  19  Barb.  595;  20  Id.  470;  6  La.  407; 
7  Watts,  472.  t-Paley  Ag.  33-38;  Story  Ag.  §  9;  i 
LIverm.  Ag.  416-433  ;  i  Story  Eq.  Jur.  |gg  308,  328;  4 
Mylne  &  C.  134;  14  Ves.  Ch.  290;  3  Sumn.  C.  C. 
476;  2  Johns.  Ch.  251 ;  11  Paine  Ch.  538;  5  Me.  420; 
6  Pick.  igS;  4  Conn.  717;  10  Pet.  269.  n-i  T.  R. 
"112 ;  Paley  Ag.  39:  Parsons'  Contr. ;  Story  Ag. 
V-Story  .Ag.  \  17.  It  empowers  him  to  bind  his 
employer  by  all  acts  within  the  scope  of  his  em- 
ployment ;  and  it  cannot  be  limited  by  any  private 
order  or  direction  not  known  to  the  party  dealing  with 
him.  PileyAg.  199-201.  l*-Story  Ag.  19  ;  s  East.  400, 
408  ;  6  Cow.  354.  Such  authority  does  not  bind  the  em- 
ployer, unless  it  is  strictly  pursued ;  for  it  is  the  business 
of  the  party  dealing  with  the  agent  to  examine  his 
authority;  and,  therefore,  if  there  be  any  aualification 


Construction  of.  An  authority  is  to  be  $0 
construed  as  to  include,  not  only  all  the  ne- 
cessary and  proper  means  of  executing  it  witk 
effect,  but  also  all  the  various  means  which  are 
justified  or  allowed  by  the  usages  of  trade.* 

Delegation  of.  All  persons,  not  under  legal 
disability,  may  delegate  to  another  authority 
to  act  for  them  in  a  matter  which  is  lawful,  and 
otherwise  capable  of  being  delegated.'  But 
when  a  bare  power  or  authority  has  been  givea 
to  another,  the  latter  cannot,  in  general,  dele- 
gate that  authority,  or  any  part  of  it,  to  a  third 
person,  for  the  obvious  reason,  that  the  princi- 
pal has  relied  upon  the  intelligence,  skill,  and 
ability  of  his  agent,  and  cannot  have  the  same 
confidence  in  a  stranger.*"  A  power  to  delegate 
his  authority  may,  however,  be  given  to  the 
agent  by  express  terms  of  substitution ;"  and 
sometimes  such  power  is  implied,  us  in  the  fol 
lowing  cases  :  First.  When,  by  the  law,  such 
power  is  indispensable  in  order  to  accomplish 
the  end  proposed,  as  when  goods  are  directed 
to  be  sold  at  auction,  and  the  law  forbids  such 
sales  except  by  licensed  auctioneers.**  Second. 
When  the  employment  of  such  substitute  is  in 
the  ordinary  course  of  trade,  as  where  it  is  the 
custom  of  trade  to  employ  a  ship-broker,  or 
other  agent,  for  the  purpose  of  procuring  freight, 
and  the  like.®  Third.  When  it  is  understood 
by  the  parties  to  be  the  mode  in  which  the  par- 
ticular thing  would  or  might  be  done.'  Fourth. 
When  the  powers  thus  delegated  are  merely 
mechanical  in  their  nature.^ 

An  authority  may  be  delegated  by  deed  for 
any  purpose  whatever ;  for  whenever  an  author- 
ity by  parol  would  be  sufficient,  one  by  deed 
will  be  equally  so.  When  the  authority  is  to 
do  something,  which  must  be  performed  through 
the  medium  of  a  deed,  then  the  authority  must 
also  be  by  deed,  and  executed  with  all  the 
forms  necessary  to  render  the  instrument  per- 
fect ;  unless,  indeed,  the  principal  be  present, 
and  verbally  or  impliedly  authorize  the  agent 
to  fix  his  name  to  the  deed ;  as,  if  a  man  be 
authorized  to  convey  a  tract  of  land,  the  letter 
(or  power)  of  attorney  must  be  by  deed.*"  But 
a  written  authority  is  not  required  to  authorize 
an  agent  to  sign  an  unsealed  paper;  or  a  con- 
tract in  writing  not  under  seal,  even  where  a 
statute  makes  it  necessary  that  the  contract,  in 
order  to  bind  the  party,  shall  be  in  writing,  un- 

or  express  restriction  annexed  thereto,  it  must  be  ob- 
served, otherwise  the  principal  is  discharged.  Paley 
Ag.  202.  x-A  naked  authority  may  be  revoked;  an 
authority  coupled  with  an  interest  is  irrevocable,  y- 
Prof.  Parker  Lect.  1857;  ^  Domat.<5.  i  tit.  15;  Introd. 
Story  Ag.  §3  ;  see /<7J^,  tit.  "Attorneys."  as-Story  Ag. 
2^58,60;  I  Liverm.  Ag.  103, 104;  6  S.  &  R.  146;  i« 
Wend. 218;  11III.177.  a-Com.  Dig.  .^//j/.  c.  I ;  9C0. 
75, <5;  Story  Ag.§6.  b-Story  Ag.  J13  ;  i  Liverm.  Ag. 
54, 66 ;  2  Kent.  Comm.  633  ;  5  Pet.  390 ;  3  Story  C.  C. 
411,425;  I  McMull.  453 ;  15  Pick.  303, 307;  26  Wend. 
485;  II  Gill  &  J.  58;  5  111.  127,  133.  c-i  Liverm.  Ag. 
54,  56:  I  Hill,  505.  <l-6  S.  &  R.  386.  e-2  M.  &  S. 
301 ;  2  B.  &  P.  438 :  3  Johns.  Ch.  167,  178  ;  6  S.  &  R. 
386.  f-3  Chitty  C.  L.  2c6 ;  9  Ves.  Ch.  234,  251,  25s;  i 
M.  &  S.  484;  2  Id.  301,  303,  n.  g-i  Hill,  501  ;  Bunb. 
166;  Sugden  Prs.  176.  h-i  Liverm.  Ag.  35;  Paley  Ag. 
(Lloyd  Ed.)  157;  Story  Ag.  49,  51 ;  3  Chitty  C.  L.  195; 
I  Binn.  613 ;  14  S.  &  R.  331 ;  2  Pick.  345 ;  5  Mass.  ir; 
5  Wend.  434;  9  Id.  54, 68;  i2  Id.  535 ;  11  Ohio,  333. 


56 


AGENCY. 


Jess  the  statute  positively  requires  that  the 
authority  shall  also  be  in  wriling."" 

For  most  purposes  the  delegation  may  be  in 
writing,  not  under  seal,  or  verbally,  or  by  the 
mere  employment  of  an  agent ;  or  it  may  be 
implied  from  the  conduct  of  the  employer,  in 
sanctioning  the  credit  to  a  person  acting  in  his 
name.*  When,  however,  the  act  is  required  to 
be  done  under  seal,  the  delegation  must  also 
be  under  seal,  unless  the  principal  is  present 
and  verbally  or  impliedly  authorizes  the  act.' 

Dissolution  of .  In  general,  an  authority  is 
revocable  from  its  nature,  unless  it  is  given  for 
a  valuable  consideration,  is  part  of  a  security, 
or  coupled  with  an  interest."  It  may,  in  gen- 
eral, be  revoked  at  any  moment  before  the 
actual  exercise  of  it;^  and  a  revocation  may 
be  express  or  implied. 

The  authority  may  be  renounced  by  the 
agent  before  any  part  of  it  is  executed,  or  when 
it  is  in  part  executed.''  If,  by  the  express 
terms  of  the  commission,  the  authority  of  the 
agent  be  limited  to  a  certain  period,  it  will 
manifestly  cease  as  soon  as  that  period  has  ex- 
pired. The  authority  of  the  agent  is,  by  the 
f.act  itself,  positively  determined  by  the  com- 
pJetion  of  the  purpose  for  which  it  was  given. 

Extent.  The  authority  of  an  agent,  unless 
the  contrary  clearly  appears,  is  presumed  to  in- 
clude all  the  necessary  and  usual  means  of 
c.cecuting  it  with  effect.''  Where,  however,  the 
«  hole  authority  is  conferred  by  a  written  instru- 
ujent,  its  nature  and  extent  must  be  ascertained 
fiom  the  instrument  itself,  and  cannot  be  en- 
Uirged  by  parol  evidence^ 

Generally,  in  private  agencies,  when  an 
iithority  is  given  by  the  principal*  to  two  or 
3  lore  persons  to  do  an  act,  and  no  several 
aithority  is  given,  all  the  agents  must  concur 
il  1  doing  it,  in  order  to  bind  the  principal, 
tl  ough  one  die  or  refuse.*  The  words  "  jointly 
Oitd  severally,"  and  "jointly  or  severally," 
hnve  been  construed  as  authorizing  all  to  act 
jcmtly,  or  each  one  to  act  separately,  but  not 
1:  authorizing  any  portion  of  the  number  to  do 
the  act  jointly.**  But  where  the  authority  is  so 
worded  that  it  is  apparent  the  principal  intended 
to  give  power  to  either  of  them,  an  execution 
by  a  part  will  be  valid."  And  generally,  in 
commercial  transactions,  each  one  of  several 
agents  possesses  the  whole  power.     For  exam- 

r-Paley  Ag.  (Lloyd  Ed.  ■)  i6i ;  2  Kent  Comm.  613, 614 ; 
Story  Ag.  \  50;  I  Chitty  C.  L.  213;  6  Ves.  Ch.  250;  8 
Ired.  74.  S-Paley  Ag.  2,  161.  tf-Story  Ag.  g  51 ;  5  Cush. 
483.  ll-Story  h%.  ^J  476,  477;  Li  verm.  Ag.  303,  309; 
Paley  Ag.  184,  185 ;  '2  Kent  Comm.  643;  a  Mass.  C.  C. 
244,343.  v-See  tit.  Agents,  w  Story  Ag.  §  478;  Story 
Bailm.  g  202.  x-i  Liverm.  Ag.  105;  Story  Ag.  §§  58, 
85,86;  5Bingh.442;  2H.BI.618;  10  Wend.  218;  6  S. 
&  R.  146;  II  111.  177 ;  9  Met.  (Mass.)  91  :  22  Pick.  85  ; 
15  Miss.  365  ;  9  La.  387  ;  11  N.  H.  424  ;  6  Ired.  252  ;  lo 
^la.  (N.  S.)  386 ;  21  Id.  488  ;  i  Ga.  418 :  i  Sneed,  497  ; 
S  Humph.  509;  15  Vt.  155;  2  McLean  C.  C.  543;  8  How. 
441.  y-Story  Ag.  gg  76,  to;  Paley  Ag.  (Lloyd's  Ed.) 
179.  »•  S ;  I  Taunt.  347  :  5  B.  &  Aid.  204 ;  7  Rich.  45  ;  i 
Pet.  264  :  3  Cranch.  415.  z-7  N.  H.  253;  i  Dougl. 
fMich.)  119;  II  Ala.  (N.  S.)  755;  i  Bos.  &  P.  229;  3 
T.  R.  S92.  B- Paley  Ag.  177  ;  Story  Ag.  g  42  ;  3  Pick. 
323  :  3  Id.  345  :  6  Id.  198  ;  12  Mass.  185  ;  23  Wend.  324  ; 
•  Johns.  39;  9  W.  &  b.  56;  10  Vt.  532;  12  N.  H.  226; 
I  Gnitt.  336.     b-Paley  Ag.  (Lloyd's  Ed.)  177,  note. 


pie,  on  a  consignment  of  goods  for  sale  to  two 
factors  (whether  they  are  partners  or  not)  each 
of  them  is  understood  to  possess  the  whole 
power  over  the  goods  for  the  purposes  of  the 
consignment."*  In  public  agencies  an  authority 
executed  by  a  majority  will  be  sufficient.* 

Where  a  principal  has  held  one  out  as  his 
general  agent,  or  authorized  parties  to  so  re- 
gard him  by  continued  acquiescence  and  con- 
firmation, the  principal  cannot  limit  or  qualify 
his  own  liability  by  instructions,  or  limitations, 
given  by  him  to  his  agent,  and  not  made  known 
in  any  way  to  parties  acting  with  such  agent.' 
And  where  an  agent  is  employed  to  transact 
some  specific  business,  and  only  that,  yet  he 
binds  his  principal  by  such  subordinate  acts  as 
are  necessary  to,  or  are  usually  and  properly 
done  in  connection  with  the  principal  act,  or 
to  carry  the  same  into  effect. «  And  he  has  a 
reasonable  discretion  as  to  the  execution  of  his 
authority. •*  But  an  agent  is  not  at  liberty  to 
exercise  this  discretion  in  the  choice  of  a  mode 
of  performing  the  duty  imposed  on  him,  if 
some  other  mode,  and  that  only,  is  fixed  either 
by  usage  or  by  the  orders  of  his  principal,  if 
he  is  a  general  agent ;  or  if  he  is  a  particular 
agent,  by  the  principal's  orders  alone ;  for  then 
he  must  adopt  the  very  mode  and  no  other.- 
An  authority  to  sell  does  not  carry  with  it 
authority  to  sell  on  credit,  unless  such  be  the 
usage  of  the  trade ;  but  if  there  be  such  usage, 
then  the  agent  may  sell  on  credit,  unless 
specially  instructed  and  required  to  sell  only 
for  cash.J  And  if  he  sells  for  credit,  having 
no  authority  to  do  so,  he  becomes  personally 
responsible  to  his  principal  for  the  whole  debt.'' 
So  is  he  also  if  he  blends  his  accounts  of  his 
principal  with  his  own,  or  takes  a  note  payable 
to  himself.'  Where  the  authority  is  oral  and 
is  known  to  the  party  dealing  with  the  agent, 
usage  may  enlarge  and  affect  the  authority  or 
contract ;  but  usage  has  not  this  power  where 
the  whole  authority  is  in  writing,  and  this  is 
known  to  the  party  dealing  with  the  agent," 
for  such  instrument  must  be  strictly  followed." 
If  an  agent  to  whom  goods  are  intrusted  for  a 
particular  purpose,  sell  the  same  to  a  person, 
or  in  a  manner  not  within  the  scope  of  his 
authority,  the  principal  may  disaffirm  the  sale 
and  recover  the  goods  of  the  vendee,  if  he  has 
not    justified    the    vendee    in    believing    the 

C-Co.  Litt.  49,  b;  Dyer,  62;  5  B.  &  Aid.  628.  d-i 
Liverm.  Ag.  79;  Story  Ag.  |  44 ;  3  Wils.  94,  114;  20 
Pick.  59;  24  Id.  13.  e-i  Co.  Litt.  181,  b.  Com.  Dig. 
Atty.  c.  IS  ;  Bac.  Abr.  Authority  C  ;  i  T.  R.  592.  f-15 
East.  38:  Id.  400;  22  Wend.  348;  10  N.  H.  538;  i  Met. 
193;  10  Mod.  109;  5  Esp.  64;  I  Id.  350;  II  How.  Pr. 
80;  IS  Penn.  172  ;  18  Id.  224;  7M.  &W.151.  |f-6  M. 
&  W.  461;  5  Esp.  75;  5  Bing.  442;  4  Campb.  163;  15 
M.  &  W.  489 ;  17  III.  177 :  I  Sneed.  497 ;  5  Hill  (N.  Y.) 
16;  12  Q.  B.  765;  I  Exch.  475.  h-3  M'Lean,  is6;  i 
Woodb.  &  M.  76,  89.  I-Ambl.  495;  7  M.  &  W.  59s. 
J-12  Mod.  514;  I  Camp.  258;  6  John.s.  60;  5  Cowen, 
473;  I  Bay,  294;  26  Wend.  223;  7  Rich.  L.  52s;  i 
Greenl.  172,  179.  fc-i  Nott  &  M'Cord,  517;  4  Dallas, 
389;  12  Mod.  514;  I  Campb.  258;  3  B.  &  Aid.  616;  3 
Foster  (N.H.)  360;  2  Stra.  1178;  5  T.  R.604;  5  Ves. 
211  ;  5  Johns.  Ch.  417;  20AL-1.  578.  l-i  Dev.  &  B.  291  ; 
I  Wash.  C.  C.  194,  S.  C.  44=;;  5  Leigh.  456;  7  Mass 
36;  eCowen,  181.  in-7  B.  &C.  278,  S.  C;  x  Man.  & 
R.  66;   I  Pet.  264.    11-26  Wend.  192. 


AGENCY. 


57 


authority  of  the  agent."  If  the  principal  sells 
goods  by  an  agent,  and  the  agent  makes  a 
material  misrepresentation  which  he  believes 
to  be  true,  and  his  principal  knows  to  be  false, 
this  is  the  falsehood  of  the  principal,  and 
avoids  the  sale.P  The  acts  of  an  authorized 
agent  are  the  acts  of  the  principal.'' 

Exercise  of.  An  agent  who  has  bare  power 
or  authority,  from  another,  to  do  an  act,  must 
execute  it  himself,  and  cannot  delegate  his 
authority  to  a  sub-agent;  for  the  confidence 
being  personal,  it  cannot  be  assigned  to  a 
stranger."^  But  the  principal  may,  in  direct 
terms,  authorize  his  agent  to  delegate  the 
whole,  or  any  portion  of  his  authority  to 
another ;  or  the  power  to  appoint  a  sub-agent 
may  be  implied,  either  from  the  terms  of  the 
original  authority,  from  the  ordinary  custom  of 
trade,  or  from  the  fact  that  it  is  indispensable 
in  order  to  accomplish  the  end." 

When  the  authority  is  special,  it  must,  in 
general,  be  strictly  pursued,  or  it  will  be  void, 
unless  the  variance  be  merely  circumstantial;' 
as,  if  it  be  to  do  an  act  upon  condition,  and  the 
agent  does  it  absolutely,  it  is  void;  and  vice 
versa.  If  the  person  do  less  than  the  authority 
committed  to  him,  the  act  is  void ;  but  if  he 
does  that  which  he  is  authorized,  and  more,  it 
is  good  or  that  which  is  warranted,  and  void 
for  the  -est.  Both  of  these  rules,  however, 
have  many  exceptions  and  limitations."  An 
authority  given,  by  the  act  of  the  principal,  to 
two  or  more  persons,  cannot  be  executed  by 
one,  though  one  die  or  refuse ;  ^  it  being  in 
such  case  construed  strictly,  and  understood  to 
be  joint,  and  not  several."  And  an  authority 
given  to  three,  jointly  and  severally,  is  not,  in 
general,  well  executed  by  two;  but  it  must  be 
done  by  one,  or  by  all.*  These  rules  apply  to 
an  authority  of  a  private  nature,  saving  in  com- 
mercial transactions,  which  form  an  exception. 
Where,  however,  the  authority  is  of  a  public 
nature,  it  may  be  executed  by  a  majority .' 

Where  an  agent  is  authorized  to  make  a 
contract  for  his  principal  in  writing,  it  must,  in 
general,  be  personally  signed  by  him.'  It  is  a 
rule,  that  an  act  done  under  a  power  of  at- 
torney must  be  done  in  the  name  of  the  person 
who  gives  the  power,  and  not  merely  in  the 
attorney's  name,  though  the  latter  be  described 
as  attorney  in  the  instrument ;  *  but  it  matters 
not  in  what  words  it  is  done,  if  it  sufficiently 
appear  to  be  in  the  name  of  the  principal.'' 

0-3  Pick.  49s;  5  Cush.  442.  p-3  Campb.  506;  6  M. 
&  W.  386  ;  Id.  358  ;  33  Q.  B.  58, 68  ;  21  Vt.  129  ;  7  Gratt. 
1 2.  <|-4  Kas.  397.  r-Story  Ag.  \  13:  Li  verm.  54-66; 
s  Kent  Comm.  633.  S-i  Liverm.  Ag.  55  ;  Paley  Ag. 
(Dunlap  Ed.)  175;  Story  Ag.  ?  14  ;  9  Ves.  Ch.  234,  251, 
252.  t-Co.  Litt.  49  b,  181  b,  303  i5.-  6  T.  R.  591 ;  2  H. 
Bl.  623.  n-Paley  Ag.  178,  179.  v-Id.  177;  Co.  Litt. 
.112  b;  181  b.  wStory  Ag.  g  42  ;  3  Pick.  232  ;  2  Id.  345  ; 
5  Id.  198;  12  Mass.  185  ;  6  Johns.  39:  23  Wend.  324; 
to  Vt.  532 ;  12  N.  H.  226;  9  W.  &  S.  56.  x-Co.  Litt. 
181  b;  Bac.  Abr.  Authority  C:  i  B.  &  P.  229,  234;  3 
T.  R.  592.  y-24  Pick.  13:  9  Watts,  466;  9  S.  &  R. 
09.  «-Story  Ag.  ?  146 :  3  Merch.  R.  237 :  i  Younge  & 
X.  387;  3  Mer.  Ch.  235,  251,  252.  R-Story  Ag.  \  H7 ;  11 
.■*,ass.  27,  29;  12  Id.  173,  175;  16  Pick.  347,  350;  22  Id. 
158,  161 ;  8  Met.  (Mass.)  442  ;  7  Wend.  68  ;  10  Id.  87- 
tji ;  9  N.  H.  263,  269,  270.   b-For  "A.  B."  (the  princi- 


The  strict  rule  of  law  in  this  respect  applies, 
however,  only  to  sealed  instruments ;  and  the 
rule  is  further  modified,  even  in  such  cases 
where  the  seal  is  not  essential  to  the  validity 
of  the  instrument.^ 

An  authority  must  be  exercised  within  the 
time  limited."* 

Instructions  or  orders  given  by  a  principal  to 
his  agent  in  relation  to  the  business  of  the 
agency  must  be  carefully  complied  with. 

An  agent  with  instructions  is  bound  to  regard 
them  in  every  point ;  nor  can  he  depart  from 
them  without  making  himself  responsible  foe 
the  consequences,'  unless  he  is  justified  by 
matter  of  necessity .8  If  he  has  no  instructions, 
or  indistinct  or  partial  instructions,  his  duty 
will  depend  upon  the  intention  and  under- 
standing of  the  parties,  which  may  be  gathered 
from  the  circumstances  of  the  case,  and  espe- 
cially from  the  general  custom  and  usage  in 
relation  to  that  kind  of  business.''  But  he 
cannot  defend  himself  by  showing  a  conformity 
to  usage,  if  he  has  disobeyed  positive  instruc- 
tions. If  loss  issue  from  his  disregard  to  his 
instructions,  he  must  sustain  it;  if  profit,  he 
cannot  retain  it,  but  it  belongs  to  his  principal.' 

yustification  of.  The  authority  given  must 
have  been  possessed  by  the  person  who  dele- 
gates it,  or  it  will  be  void;  and  it  must  be  of  a 
thing  lawful,  and  be  otherwise  capable  of  being 
delegated,  or  it  will  not  justify  the  person  to 
whom  it  is  given.*  This  power  is  the  authority 
by  which  one  person  (called  the  donor)  enables 
another  (called  the  donee)  to  do  some  act  for 
him.     It  is  derivative  or  inherent. 

Pmvers — Derivative  are  those  received  from 
another.  When  coupled  with  an  interest  it  is 
a  right  or  authority  to  do  some  act,  together 
with  an  interest  in  the  matter  on  which  the 
power  is  to  be  exercised.J  This  kind  of  a 
power  survives  the  person  creating  it,  and  in 
case  of  its  excess  in  execution,  renders  the  act 
valid  so  far  as  the  authority  extends,  leaving  it 
void  as  to  the  remainder  only.  Naked  powers 
are  those  rights  of  authority  disconnected  from 
any  interest  of  the  donee  in  the  subject-matter.' 
Inherent  or  natural  powers  are  those  enjoyed 
by  their  possessors  by  natural  right,  not  having 
been  received  from  another.  Such  are  the 
powers  of  a  people  to  establish  a  form  of  gov- 
ernment; of  a  father  to  control  his  children. 
The   exercise   of   some   of  these   powers   are 

pal),  "C.  D."  (the  attorney),  is  held  sufficient :  Story 
Ag.  ?  153;  6  B.  Mon.  612  ;  3  Blackf.  55;  7  Cush.  215. 
If  B.  signs  "B.  for  A."  this  is  the  signature  of  B.,  and 
he  is  the  contracting  party,  although  he  makes  the  con- 
tract at  the  instance,  and  for  the  benefit  of  A.  But,  if  he 
signs  "A.  by  B.,"  then  it  is  the  contract  of  A.,  made  by 
him,  through  his  instrument,  B.  C-Story  Ag.  gj  148, 
134;  Paley  Ag.  (Dunlap  Ed.)  183,  n;  8  Pick.  56;  17 
Pet.  161.  d-4  Campb.  279;  Russell,  Fact.  &  Brok.  313 
e-Dig.  102;  Kielw.  83;  5  Co.  80.  f-i  Cowen,  645;  3 
Cranch.  415-439;  i  Wash.  C.  C.  454;  3  Id.  51;  4  W. 
540;  3  Johns.  Cas.  36;  3  Flor.  27;  i  Story,  4^;  2  A.  & 
E.  57:  4  Bing.  66-72;  3  Ired.  L.  538:  7  Hill  (N.  Y.) 
128.  ir-4  Binn.  361 ;  i  Liverm.  Ag.  368.  h-i  B.  &  Ad. 
415 ;  10  A.  &  E.  27 :  5  M.  &  W.  645 ;  4  Wash.  C.  C. 
315:  12  Q.  B.  765,  10  B.  &  C.  760.  1-4  Camp.  184;  i 
Johns.  Ch.  394;  II  Leigh.  213.  j-8  Wheat.  203.  k-3 
HiU  (N.  Y.)  365. 


ss 


AGENCY. 


regulated  and  restricted  by  law.  Mediate  {or 
tubordinate)  powers  are  those  incident  to  pri- 
mary powers  given  by  a  principal  to  his  agent. 
Thus,  an  agent  authorized  to  perform  certain 
acts  has  power  to  employ  all  the  incidents  to 
his  authority  to  accomplish  the  thing  intended. 
The  general  authority  given  to  collect,  receive, 
and  pay  debts  due  by  or  to  his  principal  is  a 
primary  power.  In  order  to  accomplish  this  it 
is  frequently  necessary  to  settle  accounts,  adjust 
disputed  claims,  resist  unjust  demands,  and  de- 
fend suits.  These  subordinate  powers  are 
called  mediate  powers.'' 

Ratification,  when  express,  is  that  made  in 
open  and  express  terms.  Implied  ratification 
is  that  which  the  law  presumes  from  the  acts 
of  the  principal ;  thus,  if  A.  buys  goods  for  B., 
and  the  latter  knowing  of  the  purchase  receives 
them  and  applies  them  to  his  own  use,  the  law 
will  presume  B.'s  assent  to  the  purchase.  By 
ratifying  a  contract  a  person  adopts  the  agency 
altogether,  as  well  what  is  detrimental  as  that 
which  is  beneficial.' 

The  principal  has,  as  a  general  rule,  the 
right  to  elect  whether  he  will  adopt  an  unauthor- 
ized act  or  not;  having  once  ratified  the  act, 
upon  a  full  knowledge  of  all  the  material  cir- 
cumstances, the  ratification  cannot  be  revoked 
or  recalled,  and  the  principal  becomes  bound 
as  if  he  had  originally  authorized  the  act.™ 
The  ratification  of  a  lawful  contract  has  a 
retrospective  effect,  and  binds  the  principal 
fi-om  its  date,  and  not  only  from  the  time  of  the 
ratification,  for  the  ratification  is  equivalent  to 
an  original  authority."  Such  ratification  will, 
in  general,  relieve  the  agent  from  all  responsi- 
bility, when  he  would  have  otherwise  been 
liable."    See  Contracts. 

Recognition  is  the  acknowledgment  or  avowal 
that  something  which  has  been  done  by  one 
person  in  the  name  of  another  was  done  by 
authority  of  the  latter.  A  recognition  by  the 
principal  of  the  agency  of  another  is,  in  the 
particular  instance,  evidence  of  the  authority 
of  the  agent ;  and  this  recognition  may  be  ex- 
press or  implied.? 

Revocation  is  recalling  or  revoking  an 
authority  conferred,  or  the  annulling  or  vaca- 
ting of  an  instrument  conferring  a  power 
previously  made.  The  principal  may,  at  any 
time,  put  an  end  to  the  relation  between  him- 
self and  his  agent  by  withdrawing  the  authority, 
unless  the  authority  is  coupled  with  an  interest, 
or  given  for  a  valuable  consideration."!     And 

l*-i  Story  Ag.  ?  "jS  ;  see  i  Campb.  43,  n;  4  Id.  163  ;  6 
S.  &  R.  149.  1-2  Str.  850  :  I  Atk.  Ch.  158  ;  4  T.  R.  211 ; 
7  E.nst.  164  :  16  Martin,  La.  105  ;  i  Ves.  Ch.  509  ;  Smith 
Merch.  L.  60 :  Stoo'  Ag.  3  250 ;  9  B.  &  C.  59.  m-Story 
Ag.  g  250;  Paley  Ag.  (Lloyd's  Ed.)  171;  3  Chitty  C. 
L.  197.  n-Poth.  Ob.  «.  75  :  2  L.  Raym.  930  :  Campb. 
150;  5  Burr.  2727;  2  H.  Bl.  623  ;  i  B.  &  P.  316:  13 
Tohns.  367;  2  Johns.  Cas.  424;  2  Mass.  106  :  Co.  Litt. 
?o7,  a,-  Story  Ag.  (4th  Ed.>  102;  Broom.  Max.  715 ;  2 
Biuv.  Inst.  25  :  4  Id.  26  ;  8  Wheat.  363 ;  7  Exch.  726 ;  10 
Id.  845  :  9  C.  B.  532.  607;  14  Id.  53.  0-2  B.  &  B.  452  : 
see  76  Mass.  461  ;  8  Wend.  494  ;  10  Id.  399  :  Storv  Ag.  ? 
2-1.  w-i  Campb.  43,  n,  a;  4  Id.  88:  i  Esp.  Cas.  61." 
0-8  Wheat.  201;  2  Esp.  565;  10  B.&C.  731 :  3  Id.  48^; 
T  Ves.  28 :  2  M.  &  W.  371 ;  I  B.  &;  Aid.  684  :  9  C.  B. 
j4i  :  4  N.  Y.  Leg.  Obs.  301  ;  14  Pet.  479.  J05 ;  Story 
Agency,  Jg  466,  467,468;  2  Kent  Comm.  644;  33  Pick. 


this  countermand  may,  in  general,  at  the  mer« 
will  of  the  principal,  be  effected  at  any  time 
before  the  contract  is  completed,""  even  though 
there  be  an  express  agreement  not  to  revoke. 
But  when  the  authority  or  power  is  coupled 
with  an  interest,  or  when  it  is  given  for  a 
valuable  consideration,  or  when  it  is  a  part  of 
security,  then,  unless  there  is  an  express  stipu- 
lation that  it  shall  be  revocable,  it  cannot  be  re- 
voked." Unless  the  power  provides  a  specific 
mode  of  revocation  (in  which  case  it  must  be 
strictly  followed)  its  authority  may  be  revoked 
in  any  form  the  constituent  or  principal  may 
adopt.*  Where  third  parties  have  dealt  with 
an  agent  clothed  with  general  powers,  whose 
acts  have  therefore  bound  his  principal,  and 
the  principal  revokes  the  authority  he  gave 
his  agent,  such  principal  will  continue  to  be 
bound  by  the  further  acts  of  his  agent,  unless 
such  third  parties  have  knowledge  of  the 
revocation,  or  unless  he  does  what  he  can  to 
make  the  revocation  as  notorious  and  generally 
known  to  the  world  as  the  fact  of  the  agency." 
This  is  usually  done  by  advertising. 

Naked  powers  not  coupled  with  an  interest 
may  always  be  revoked  by  the  express  act  of 
the  constituent  or  principal  whenever  he  so 
elects,  he  being  bound  by  all  the  acts  of  the 
agent  until  notice  of  the  revocation ;  until  such 
notice  the  agent  is  entitled  to  compensation 
and  indemnity  for  all  acts  done  and  liabilities 
incurred.  The  act  of  revocation  is  merely  pro- 
visional and  contingent  until  notice  is  com- 
municated to  the  agent.*  Third  r>ersons  whc 
deal  with  the  agent  before  notice  of  the  revo- 
cation of  his  powers  are  not  affected  by  it.* 
But  .strangers  who  have  never  dealt  with  the 
agent  before  the  revocation  of  his  powers,  if  the 
principal  has  given  public  notice  of  the  revoca- 
tion in  such  a  manner  as  to  render  the  fact 
generally  known  in  the  vicinity,  will  have  no 
remedy  against  such  principal.^  Where,  how- 
ever, the  power  was  conferred  in  writing,  and 
the  agent  retains  and  exhibits  it  as  the  evidence 
of  his  authority,  so  that  strangers  are  fairly 
justified  in  belio^ing  in  its  continuance,  having 
no  adequate  means  of  knowledge  of  its  revo- 
cation, the  acts  of  the  agent  will  bind  the 
principal  .y  It  is  a  question  of  fact  whether, 
under  all  the  circumstances,  a  party  is  justified 
in  supposing  the  authority  still  continues.* 

An  agent's  authority  terminates  by  the  bank- 
ruptcy of  either  the  principal  or  the  agent,* 
though  not  necessarily  by  the  bankruptcy  of  the 

?3o ;  14  Pet.  479  ;  22  Pick.  40  :  12  N.  H.  2^9 :  3  Comst. 
78;  5  C.  B.  895  ;  6  M.  &  W  670.  r-3  Chitty  "C.  &  M.- 
223,-  2  Liverm.  Ag.  309 ;  Paley  Ag.  185;  Story  Ag.  ?§ 
462,  46s.  S-Story  Ag.  ??  476,  477;  '1  Liverm.  Ag.  308^ 
-iog;  Paley  Ag.  184,  i8s;  2  Kent  Comm.  64^,  644  ;  2 
Mass.  C.  C.  244.  342.  t-8  Ired.  74  ;  6  Pick  108  ;  Story 
Ag.  3  474.  «-Stra.  506;  12  Mod.  346;  5  T.  R.  215:  4 
Munf  T30;    5  Binn.  305;    11  N.  H.  397;    12  Q.  B.  460; 

4  Campb.  215.  v-i  Parsons  Contr.  58  and  notes  ;  6  Ind. 
231.  w-iStr.  506;  5  T.  R.  21T-214;  12Q.  B.  460;  4 
Campb.  215;    12  Mod.  346;   4  Munf.  130;  5  Binn.  305; 

5  Dana,  513:  17  Mo.  204;  11  N.  H.  307;  2  Kent. 
Comm.  644,  and  cases  cited;  11  Ad.  &  E.  589,  S92. 
X-i  Parsons  Contr.  59,  60 :  D.iv.  Dist.  Ct.  287.  y- 
II  N.  H.  397.  35-12  Q.  B.  460.  a-2  Kent  Comm. 
644,  and  notes;  4  Taunt.  544;  16  East.  382;  5  B,  & 
Aid.  27. 


AGENCY. 


SO 


latter.**  Where  the  agent  has  a  lien  it  may  be 
enforced  in  the  name  of  the  assignee.* 

The  authority  of  an  agent  may  be  revoked 
by  death  of  either  principal  or  agent.*  In  case 
of  a  naked  authority  the  death  of  the  principal 
terminates  the  authority  of  the  agent  by  that 
event  itself,  and  without  notice  either  to  the 
agent  or  those  with  whom  he  deals.  Acts  done 
in  good  faith  in  discharge  of  the  agent's  duty 
before  knowledge  of  the  death  of  his  principal, 
and  which  enures  to  the  benefit  of  the  princi- 
pal's estate,  are  binding  upon  his  personal 
representatives.*  Where  the  agent  has  entered 
upon  the  business  or  incurred  expenses  he  is 
entitled  to  compensation.'  And  if  he  has  in- 
curred liabilities  he  is  entitled  to  indemnity. s 
Powers  coupled  with  an  interest  which  are  not 
revocable  by  the  act  of  the  principal  during  his 
life,  are,  nevertheless,  annulled  by  his  death,  so 
far  as  any  act  in  his  name  is  concerned.''  Joint 
authority  by  two  persons  terminates  by  the 
death  of  one  of  them.' 

A  complete  execution  of  the  trust,  or  accom- 
plishment of  the  business  or  undertaking, 
operates  an  extinguishment  of  authority .■> 

The  agency  may  terminate  by  the  expiration 
of  the  period  which  it  was  to  exist,  and  to  have 
effect;  as,  if  an  agency  be  created  to  endure  a 
year,  or  until  the  happening  of  a  contingency, 
it  becomes  extinct  at  ^he  end  of  the  year,  or 
the  happening  of  the  contingency." 

The  extinction  or  destruction  of  the  subject- 
matter  of  the  agency  destroys  with  it  the  power 
to  accomplish  the  result  intended.J 

The  authority  of  the  agent  may  be  revoked 
by  the  incapacity  of  either  principal  or  agent. 

Insanity  either  of  the  principal  or  agent 
terminates  the  agency.'  But  third  persons, 
ignorant  of  the  fact  of  insanity,  and  whose 
contract  with  the  agent  is  fair  and  just,  will  be 
protected.™  An  inquisition  of  lunacy  is  con- 
structive notice  to  all;"  and  the  inquisition 
forming  the  basis  of  the  commission  is  allowed 
to  antedate  the  finding  of  the  incapacity,  in 
which  case  it  would  probably  throw  the  burden 
of  proof  on  the  other  party.  If  the  power  con- 
fer an  interest  upon  the  agent  which  can  be 
enforced  in  his  name,  insanity  will  not  operate 
as  a  revocation. 

Loss  of  the  principal's  interest  operates  as  a 
revocation." 

The  marriage  of  a  feme  sole  terminates  her 
power  either  as  principal  or  agent,P  though  not 
necessarily  so.i 

When  the  authority  has  been  partially  exe- 
cuted by  the  agent,  if  it  admit  of  severance,  or 
of  being  revoked  as  to  the  part  which  is  un- 

b-Storj'  Ag.  ??  485.  486 ;  12  Mod.  383  ;  3  Burr.  1469, 
1471.  C-Story  Bailm.  J  211  ;  Story  Ag.  ?  486.  d-Story 
Bailm.  209;  i  Kent.  Coram.  645;  Paley  Ag.  185. 
e-Willes,  103 ;  10  M.  &  W.  i  ;  Story  Ag.  488 ;  4  Pet. 
333.  334;  I  Humphr.  294;  12  N.  H.  146;  4  Mete.  Mass. 
333;  II  Leigh.  137.  f-33  Eng.  L.  &  Eq.  229;  Dav. 
Dist.  Ct.  287;  Bac.  Abr.  Authority  fE."!.  e--Chitty 
Contr.  225,  «,  o.  I1-4  Campb.  272;  Willes,  105,  563; 
5  Esp.  117 ;  6  East.  356  ;  8  Wheat.  174  :  2  Kent.  Comm. 
646  :  2  Me.  14  ;  Prec.  «,  Ch.  125.  1-2  Kent  Comm.  645  ; 
IS  East.  592.  j-Story  Ag.  J  499  ;  Story  Bailm.  §  207  ;  2 
Bouv.  Inst.  51,  52.  1* -Story  Ag.  §  480.  I-2  Kent 
Comm.  645,  and  cases  cited  in  note,     m-io  N.  H.  156. 


executed,  it  may  be  revoked  as  to  that  part; 
but  if  it  be  not  thus  severable,  and  the  agent 
by  its  execution  in  part  will  sustain  damage,  it 
cannot  be  revoked  as  to  the  unexecuted  part, 
unless  the  agent  be  fully  indemnified.'  This 
revocation  may  be  by  a  formal  declaration  pub- 
licly made  known,  or  an  informal  writing,  or 
by  parol ;  or  it  may  be  implied  from  circum- 
stances, as,  if  another  person  be  appointed  to 
do  the  same  act."  It  takes  effect  from  the  time 
it  is  made  known,  and  not  before,  both  as 
regards  the  agent  and  third  persons.* 

The  determination  may  be  by  the  renuncia- 
tion of  the  agent  either  before  or  after  a  part 
of  the  authority  is  executed ; "  it  should  be  ob- 
served, however,  that  if  the  renunciation  be 
made  after  the  authority  has  been  partially  exe- 
cuted, the  agent,  by  renouncing  it,  becomes 
liable  for  the  damages  which  may  thereby  be 
sustained  by  his  principal,'  or,  by  operation  of 
law,  in  various  ways. 

Powers  coupled  with  an  interest  are,  in  gen- 
eral, not  revocable.  Being  transferred  upon 
consideration,  a  power  is  no  more  revocable 
than  any  other  contract."  Whenever  the 
power  confers  an  interest  in  the  subject-matter 
only,  and  not  in  the  results,  and  constitutes  an 
essential  part  of  a  security  upon  the  faith  of 
which  money  or  other  thing  has  been  advanced 
or  liability  incurred,  it  is  not  revocable  even  by 
the  death  of  the  principal,  but  may  be  there- 
after executed,  where  it  can  be  done  wj'.hout 
the  use  of  the  name  of  the  principal.*  The 
consignee  of  goods  for  sale  who  has  incurred 
liability  or  made  advances  upon  the  faith  of  the 
consignment,  acquires  a  power  of  sale  which, 
to  the  extent  of  his  interest,  is  not  revocable  or 
subject  to  the  control  of  the  consignor.?  But 
if  orders  are  given  by  the  consignor  contem- 
poraneously with  the  consignment  and  advances, 
in  regard  to  the  time  and  mode  of  sale,  and 
which  are,  either  expressly  or  impliedly,  as- 
sented to  by  the  consignee,  he  is  not  at  liberty 
to  depart  from  them  afterward.  But  if  no  in- 
structions are  given  at  the  time  of  the  consign- 
ment and  advances  the  legal  presumption  is 
that  the  consignee  has  the  ordinary  right  of  fac- 
tors to  sell  according  to  the  usages  of  trade 
and  the  general  duty  of  factors,  in  the  exercise 
of  a  sound  discretion,  and  reimburse  the  ad- 
vances out  of  the  proceeds,  and  that  this  right 
is  not  subject  to  the  interference  or  control  of 
the  consignor. 

A  pledge  of  personal  property  to  secure  the 
liabilities  of  the  pledgor,  with  an  express 
power  of  sale,  confers  such  an  interest  in  the 
subject-matter  that  it  will  not  be  revoked  by 

n-2  Kent.  Comm.  645.  O-Chitty  Contr.  224,  and 
notes,  (Perkins  Ed.)  i860.  p-i  RoUe  Abr.  331, 
Authority  fE.  PI.  4^;  W-  Jones,  388;  5  East.  266;  2 
Kent.  Comm.  645;  ii  Vt.  545.  q-Story  Ag.  g?  485, 
486:  12  Mod.  383;  3  BuiT.  1469,  1471.  r-Story  Ag. 
\  466.  s-Story  Ag.  ?  474  ;  5  Binn.  305 ;  6  Pick.  198. 
t-Story  Ag.  ?  470  ;  Paley  Ag.  188  :  2  Liverm.  Ag.  306, 
310:  2  Kent  Comm.  644;  11  N.  H.  397.  U-Story  Ag. 
?  478.  v-Story  Ag.  ?  478  ;  Jones  Bailm.  loi ;  4  Jthns 
84.  \»'-i  Parsons  Contr.  61,  and  notes;  Chitty  Contr. 
224,  and  notes  (Perkins  Ed.  i860) ;  7  Ves.  Ch.  3,  «8 
X-i  Caines  Cas.  i ;  3  B.  &  C.  842,  851 ;  2  Esp.  Cas 
565  ;  4  Campb.  272;  17  Mass.  234.     y-14  Pet.  479. 


80 


AGENCY. 


his  death.*  But  a  power  to  pledge  and  sell  the 
property  of  a  constituent,  and  from  the  avails 
to  reimburse  advances  made  or  liabilities  in- 
curred by  the  appointee,  is  not  so  coupled  with 
an  interest  as  to  be  revocable.J  The  interest 
must  exist  in  the  subject-matter  of  the  power, 
and  not  merely  in  the  result  of  its  exercise,  to 
become  irrevocable."  Hence,  if  one  give  a 
letter  of  credit  agreeing  to  accept  bills  to  a  cer- 
tain amount  within  a  limited  time,  the  letter  is 
revoked  by  death,  and  bills  drawn  after  the 
death  and  before  knowledge  thereof,  reaching 
the  drawer,  cannot  be  enforced  against  the 
estate  of  such  deceased  party .^  All  contracts 
which  are  to  be  executed  in  the  name  of  the 
constituent  or  principal  by  virtue  of  an  agency, 
although  forming  an  essential  part  of  a  security 
upon  the  faith  of  which  advances  have  been 
made,  are  of  nfecessity  revoked  by  the  death 
of  the  constituent.  Even  a  warrant  of  attorney 
to  confess  judgment,  although  not  revocable 
by  the  act  of  the  party,  is  revoked  by  his 
death. 

Duties  and  Liabilities.  The  particular 
obligations  of  an  agent  vary  in  accordance  to  the 
nature,  terms,  and  end  of  his  employment.™ 
He  is  bound  to  execute  the  orders  of  his  princi- 
pal, whenever,  for  a  valuable  consideration,  he 
his  undertaken  to  perform  them."  When  his 
authority  is  limited  by  instructions  it  is  his  duty 
to  adhere  faithfully  to  those  instructions ;  °  but 
cases  of  extreme  necessity  and  unforeseen 
e  iierjjency  constitute  exceptions  to  this  rule;? 
a  ul  where  the  agent  is  required  to  do  an  un- 
!/wfui  or  an  immoral  act^  he  may  violate  his 
ii  structions  with  impunity.'  If  he  have  no 
s\  lecific  instructions,  he  must  follow  the  accus- 
t  'med  course  of  the  business.*  When  the 
t»  ansaction  may,  with  equal  advantage  to  the 
principal,  be  done  in  two  or  more  different 
\r  ays,  the  agent  may,  in  general,  do  it  in  either, 
provided  a  particular  mode  has  not  been  pre- 
s:ribed  to  him.*  He  is  to  exercise  the  skill 
employed  by  persons  of  common  capacity 
similarly  engaged,  and  the  same  degree  of  dili- 
gence that  persons  of  ordinary  prudence  are 
accustomed  to  use  about  their  own  affairs."  It 
is  his  duty  to  keep  his  principal  informed  of  his 
doings,  and  to  give  him  reasonable  notice  of 
whatever  may  be  important  to  his  interests.'' 
He  is  also  bound  to  keep  regular  accounts  of 
business  and  money  transactions,  and  to  render 
his  accounts  to  his  principal  at  all  reasonable 

l-io  Paige  Ch.  205.  J-8  Wheat.  174:  6  Comm.  559. 
h-15  N.  H.  468.  I-28  Vt.  209.  m-Paley  Ag.  3  ;  2  L. 
Raym.  517.  n-Story  Ag.  §189  ;  6  Cow.  128  ;  7  Id.  456;  20 
Wend.  321.  O-PaleyAg.  3,  4;  3  Bos.  &  P.  75  ;  5  Id.  269; 
Story  Ag.  §  193  ;  3  Johns.  Cas.  36;  i  Sandf.  m  ;  26Penn. 
St.  394;  14  Pet.  494.  p-i  Story,  C.  C.  45 ;  4  Binn.  361  ; 
5  Day,  556 ;  26  Penn.  St.  394  ;  4  Campb.  83.  q-6  C.  Rob. 
Adm.  207;  7  T.  R.  157;  II  Wheat.  258.  r-Story  Ag.  ?g 
193,  194,  ips  ;  II  Mart.  636.  s-P.iley  Ag.  4  ;  4  Story  Ag. 
?  199  ;  I  Cfall.  360.  t-i  Liverm.  Ag.  103.  n-Story  Ag. 
?  183 ;  Paley  Ag.  77,  78 ;  East.  348 ;  6  Taunt.  40=; ;  10 
Bing.  57;  i  Johns.  364;  20  Pick.  167;  6  Met.  fMass.) 
13;  24  Vt.  149.  v-Paley  Ag.  27,  38,  39:  Story  Ag. 
?  208  :  5  M.  &  W.  527 ;  4  W.  &  S.  30s  ;  I  Story,  C.  C. 
A3,  .S6:  4  Rawle,  229;  6  Whart.  9;  13  Mart.  214.  ^65. 
W-Palcy  At;.  47,  48 ;  Story  Ag.  J  203 ;  Story  Eq.  Jiir. 
{  468,  623  ;  I  Taunt.  572  :  8  Ves.  49  ;  14  Id.  510  ;  13  Id. 
«f ,  I  Id.  436;  I  Jac.  &  W.  135;  7  Ircd.  Eq.  211 ;  12  Q. 


times,  and  whenever  called  on,  without  COA 

cealment  or  overcharge.* 

The  responsibility  of  an  agent,  whether  fb( 
positive  misconduct,  or  for  deviation  from  in- 
structions, is  not  measured  by  the  extent  of  hi? 
commission  or  compensation,  but  by  the  loss  or 
injury  which  he  may  cause  his  principal.*  And, 
in  general,  a  verdict  against  a  principal  for  the 
act  of  his  servant,  is  the  measure  of  damages 
which  the  former  may  recover  from  the  latter.' 
An  agent  is  bound  to  great  diligence  and  care 
for  his  principal ;  not  the  utmost  possible,  but 
all  that  a  reasonable  man,  under  the  circum- 
stances, would  take  of  his  own  affairs.*  And 
he  is  bound  to  possess  and  exert  the  skill  &nd 
knowledge  necessaiy  for  the  proper  performance 
of  the  duties  which  he  undertakes.*  If  an 
agent,  without  necessity,  has  mixed  the  property 
of  his  principal  with  his  own  in  such  a  way 
that  he  cannot  rencer  an  account  precisely  dis- 
criminating between  the  two,  the  whole  of  what 
is  so  indistinguishable  is  held  to  belong  to  the 
principal ;  •'  for  it  was  the  duty  of  the  agent  to 
keep  the  property  and  accounts  separate,  and 
he  must  bear  the  responsibility  and  conse- 
quences for  not  doing  so.  If  an  agent  em- 
ployed for  any  special  purpose  discharges  his 
duty  and  does  all  he  was  required  to  do,  he  is 
entitled  to  full  compensation,  although  the 
principal  declines  or  refuses  to  take  advantage 
of  the  agent's  act,  or  even  adopt  it. 

As  to  their  principals,  the  liabilities  of  agents 
arise  from  a  violation  of  duties  and  obligations 
to  them  by  exceeding  their  authority,  by  mis- 
conduct, or  by  any  negligence,  omission,  or  act, 
by  the  natural  result  or  just  consequence  of 
which  the  principal  sustains  a  loss."  And  joint 
agents  who  have  a  common  interest  are  liable 
for  the  misconduct  and  omissions  of  each  other 
in  violation  of  their  duty,  although  the  business 
has,  in  fact,  been  wholly  transacted  by  one 
with  the  knowledge  of  the  principal,  and  it  ha? 
been  privately  agreed  between  themselves  that 
neither  shall  be  liable  for  the  acts  or  losses  of 
the  other."* 

The  degree  of  neglect  which  will  make  the 
agent  responsible  for  damages  varies  according 
to  the  nature  of  the  business  and  the  relation  in 
which  he  stands  to  his  principal.  The  rule  of 
common  law  is,  that  where  a  person  holds  him- 
self out  as  of  a  certain  business,  trade,  and 
profession,  and  undertakes,  whether  gratuitously 
or  otherwise,  to  perform  an  act  which  relates  to 

B.  531;  Johns.  Ch.  62-108;  i  C.  B.  (N.  S.l  26.  x-Jf 
Law  T.  10;  2  Brock.  350;  6  Whart.  9,  12  N.  H.  239; 
20  Wend.  321 ;  i  B.  &  Ad.  415.  y-8  Taunt.  202  S.  C. ; 
2  Moore,  125.  z-Co.  Litt.  89,3;  10  Bing.  57;  i  Johns. 
Cas.  174 ;  I  Wash.  C.  C.  154  :  4  Nev.  &  M.  170 ;  2  A.  & 
E.  256;  4  B.  &  C.  345.  a-One  who  undertakes  to  act 
in  a  professional  or  other  clearly  defined  capacity,  sis 
that  of  a  carpenter,  blacksmith,  or  the  like,  is  bound  to 
exercise  the  skill  appropriate  to  such  trade  or  profession  ; 
and  this  although  the  undertaking  be  gratuitous  ;  4  B.  & 
C  435 :  I  H.  Bl.  i6i ;  2  Chitty,  311 ;  8  C.  &  P.  479  ;  7 
Foster  CN.  H.)46o:  11  M.  &  W.  113.  b- 15  Ves.  436- 
440  ;  8  Id.  46  ;  it  Id.  377  ;  2  Johns.  Ch.  62-108  ;  i  C.  B. 
(N.  S.)  26.  C-Story  Ag.  \  217  c;  Paley  Ag.  7,  71,  74; 
I  Liverm.  Ag.  398  ;  i  B.  &  Ad.  415  ;  6  Hare  Ch.  366; 
12  Pick.  328;  20  Id.  167;  II  Ohio,  363:  13  Wend.  518; 
6  Whart.  9.  d-i  Liverm.  Ag.  79-84;  Story  Ag.  \  23s 
Paley  Ag.  52,  53;   7  Taunt.  403. 


AGENCY. 


6i 


his  particular  employment,  an  omission  of  the 
skill  which  belongs  to  his  situation  or  profession 
is  imputable  to  him  as  a  fraud  upon  his  em- 
ployer.* But  where  his  employment  does  not 
necessarily  imply  skill  in  the  business  he  has 
undertaken,  and  he  is  to  have  no  compensation 
for  what  he  does,  he  will  not  be  liable  to  an 
action  if  he  act  in  good  faith,  and  to  the  best 
of  his  ability.' 

As  to  third  parties.  Generally,  when  a  per- 
son having  full  authority  is  known  to  act  merely 
for  another,  his  acts  and  contracts  will  be 
deemed  those  of  the  principal  only,  and  the 
agent  will  incur  no  personal  responsibility.* 
But  when  an  agent  does  an  act  without 
authority,  or  exceeds  his  authority,  and  the 
want  of  authority  is  unknown  to  the  other 
party,  the  agent  will  be  personally  responsible 
to  the  person  with  whom  he  deals>  If  the 
agent,  having  original  authority,  contract  in 
the  name  of  his  principal,  and  it  happens  that 
at  the  time  of  the  contract,  unknown  to  both 
parties,  his  authority  was  revoked  by  the  death 
of  the  principal,  the  agent  will  not  be  person- 
ally responsible.' 

An  agent  will  be  liable  on  a  contract  made 
with  him  when  he  expressly,  or  by  implication, 
incurs  a  personal  responsibility ;  J  as,  if  he  make 
an  express  warranty  of  title,  and  the  like ;  or 
if,  though  known  to  act  as  agent,  he  give  or 
zccept  a  draft  in  his  own  name ; ''  and  public 
as  well  as  private  agents  may,  by  a  personal  en- 
gagement, render  themselves  personally  liable.' 
In  general,  although  a  person  contract  as  agent, 
yet  if  there  be  no  other  responsible  principal 
to  whom  resort  can  be  had,  he  will  be  person- 
ally liable ;  as,  if  a  man  sign  a  note  as  "  guar- 
dian of  A.  B.,"  an  infant,  in  that  case  neither 
the  infant  nor  his  property  will  be  liable,  and 
the  agent  alone  will  be  responsible.™  The  case 
of  an  agent  of  government,  acting  in  that 
capacity  for  the  public,  is  an  exception  to  this 
rule,  even  though  the  terms  of  the  contract 
be  such  as  might,  in  a  case  of  a  private  nature, 
involve  him  in  a  personal  obligation ;  it  not 
being  presumed  that  a  public  agent  meant  to 
bind  himself  individually."  Masters  of  ships, 
though  known  to  contract  for  the  owners  of 
the  ships  and  not  for  themselves,  are  liable  for 
the  contracts  they  make  for  repairs,  unless  they 
negative  their  responsibility  by  the  express 
terms  of  the  contract."  As  a  general  rule,  the 
agent  of  a  person  resident  in  a  foreign  country 

e-Paley  Ag.  (Lloyd's  Ed.)  7,  note  4.  f-i  Liverm.  Ag. 
336,  339,  340.  g-2  Liverm.  Ag.  24s ;  Story  Ag.  ?  261  ; 
Palev  Ag.  368,369  ;  2  Kent.  Comra.  629,630;  15  East.  62; 
3  P.  Wms.  277  ;  6  Binn.  324  ;  13  Johns.  58,  77 ;  15  Id.  i. 
h-Story  Ag.  §  264 ;  2  Liverm.  Ag.  255,  256 ;  2  Taunt. 
385;  7  Wend.  315;  8  Mass.  178.  i-Story  Ag.  ?  265  ; 
la)  10  M.  &  W.  I.  j-Story  Ag.  ??  156-159,  269.  k-5 
Taunt.  74  ;  i  Mass.  27,  54  ;  2  Duer  260  :  2  Conn.  453  ; 
5  Whart.  288.  1-Pa!ey  Ag,  381.  m-Paley  Ag.  374; 
Story  Ag.  §280;  2  Brod.  &  B.  460;  5  Mass.  299;  6  Id. 
58  ;  8  Cow.  31.  n-Paley  Ag.  376,  377 ;  and  see  5  B.  & 
Aid.  34  :  I  Brown  Ch.  loi  ;  6  Dowl.  &  R.  122  ;  7  Eingh. 
no.  o-Paley  Ag.  388;  15  Johns.  298;  16  Id.  89;  11 
Mass.  34.  p-2  Liverm.  Ag.  249 ;  Story  Ag.  ?  268 ; 
Paley  A^g.  248,  373,  382  ;  15  East.  (& :  9  Barn.  &  C.  78  ; 
3.HiH  (N.  Y.)  72.  ----- 


Wend.   477;    3  P, 


q-ii  Ad.  &  K.  589,  594,  595.     r-ii 
Wms.  279;  4  Q.  B.  23s,  n;  Story 


is  personally  liable  upon  all  contracts  made  by 
him  for  his  employer,  whether  he  describe 
himself  in  the  contract  as  agent  or  not,  this 
being  the  usage  of  trade,  and  it  being  pre- 
sumed that  the  credit  was  given  to  him  and 
not  to  his  principal.P  But  this  presumption 
may  be  rebutted  by  proof  of  a  contrary  agree- 
ment.1 

An  agent  is  not  personally  liable,  unless  he 
transcends  his  agency,  or  departs  from  its  pro- 
visions ;  ■■  or  unless  he  expressly  alleges  his  own 
liability,"  in  which  case  he  is  liable,  although 
he  describes  himself  as  agent ; '  or  unless  he 
conceals  his  character  as  agent ; "  or  unless  he 
so  conducts  as  to  render  the  principal  inacces- 
sible or  irresponsible ; "  or  unless  he  acts  in  bad 
faith.  If  a  sealed  instrument  is  executed  by 
an  agent,  and  it  contain  covenants  which  ex- 
pressly purport  to  be  those  of  the  principal,  and 
the  agent  in  executing  it  calls  himself  an  agent, 
he  is  not  liable  on  those  covenants ; "  but  if 
they  are  not  expressly  the  principal's  cove- 
nants, the  agent  is  liable  on  them.''  If  a  per- 
son dealing  with  an  agent  knows  his  agency, 
his  rights  and  obligations  will  be  the  same  as 
if  the  agent  disclosed  it,y  unless  the  agent  pur- 
posely represents  himself  as  a  principal  and 
assumes  the  responsibility  of  one.  And  if  the 
agent's  act  be  open  to  two  constructions,  one 
of  which  binds  him,  and  the  other  binds  the 
principal,  the  law  prefers  the  latter.*  If  a 
party  dealing  with  an  agent  as  agent,  and 
knowing  that  the  principal  is  bound,  takes  the 
agent's  note,  the  principal  is  discharged.'  If 
one  describes  himself  as  agent  for  some  un- 
named principal,  he  is  of  course  liable  if 
proved  to  be  the  real  principal.''  And  one 
acting  as  agent  is  liable  personally,  if  it  be 
shown  that  he  acts  without  authority."  An 
agent  is  not  responsible  to  third  parties  for  mere 
neglect  or  omission  in  discharge  of  his  duty, 
for  they  must  look  to  the  principal.*  An  agent 
who  exceeds  his  authority  renders  himself 
liable  to  the  whole  extent  of  the  contract, 
although  a  part  of  it  was  within  his  authority." 

An  agent  is  personally  responsible  where 
money  has  been  paid  to  him  for  the  use  of  his 
principal  under  such  circumstances  that  the 
parly  paying  it  becomes  entitled  to  recall  it. 
In  such  cases,  as  long  as  the  money  has  not 
been  paid  over  by  the  agent,  nor  his  situation 
altered  as  by  giving  his  principal  fresh  credit 
upon  the  faith  of  it,  it  may  be  recovered  from 

Agency,  §  265  :  4  Q.  B.  239.  8-2  M.  &  W.  440:  8  Id 
834;  6  A.  &  E.  486;  5  East.  148;  12  E.  L.  &  E.  180  ■ 
29  Id.  103  ;  30  Me.  299 ;  i  Wheat.  56 ;  4  Mass.  595 ;  6 
Id.  58;  13  Johns.  307;  7  Cowen,  453;  4  Herring,  451  ; 
2  Carter  (Ind.")  327  ;  2  Hill  (S.  C.)  294.  t-io  CusK. 
324:  M  E.  L.  &  E.  103;  S.  C.  4,  E.  &  B.  591 :  32  E. 
L.  &  E.  127 ;  S.  C.  5,  E.  &  B.  125 ;  30  Conn.  122.  u-4 
C.  B.  637 :  3  A.  &  E.  132  :  9  B.  &  C.  78 ;  2  Esp.  567  ; 
2  Met.  319;  5  Cush.  2io:  3  Hill  (N.  Y.)  72.  v-3  T. 
R.  761  :  9N.  H.263;  8  Texas,  98 ;  2  Md.  63.  w-ii 
S.  &  R.  126.  x-4  Bing.  269  ;  7  Cowen,  453  ;  10  Wend. 
87.  y-2  Gillman,  371.  js-25  Me.  13.  a-io  Met.  190; 
8  Id.  411 ;  6  Greenl.  220.  b-5  E.  L.  &  E.  391  ;  19  Id 
526.  0-3  Johns.  Cas.  70;  20  Mo.  284;  2  C.  R.  530,  >i, 
ia') ;  7  E.  &  B.  301  ;  8  Wend.  494  ;  i  Denio,  471 ;  2  M.  & 
W.  217  :  5  M.  &  Sel.  383;  15  M.  &  W.  359.  d-2  Comst. 
126;  2  Denio,  118.     e-ii  Wend.  477;  i  S.  &  Marsh,  i. 


62 


AGENCY. 


the  agent/  And  if,  in  receiving  the  money, 
the  agent  was  a  wrong-doer,  he  will  not  be 
exempted  from  liability  by  payment  to  his 
principal.* 

As  to  torts,  there  is  a  distinction  between 
BCts  of  misfeasance  or  positive  wrongs,  and 
nonfeasance  or  mere  omissions  of  duty.  In 
the  former  case,  the  agent  is  personally  liable 
to  third  persons,  although  authorized  by  his 
principal,''  while  in  the  latter  he  is,  in  general, 
solely  liable  to  his  principal.* 

Rights  and  Privileges. — Js  to  their 
principals.  An  agent  is  ordinarily  entitled  to 
compensation  for  his  services — commonly  called 
a  commission — which  is  regulated  either  by 
special  agreement,  by  the  usage  of  trade,  or  by 
the  presumed  intention  of  the  parties.J  In  gen- 
eral, he  must  have  faithfully  performed  the 
whole  service  or  duty  before  he  can  claim  any 
commissions.''  He  may  forfeit  his  right  to  com- 
missions by  gross  unskilfulness,  by  gross  negli- 
gence, or  gross  misconduct  in  the  course  of  his 
agency ; '  as,  by  not  keeping  regular  accounts ;  ™ 
by  violating  his  instructions ;  by  wilfully  con- 
founding his  own  property  with  that  of  his 
principal ;  °  by  fraudulently  misapplying  the 
funds  of  his  principal ;  °  by  embarking  the 
property  in  illegal  transactions,  or  by  doing 
anything  which  amounts  to  a  betrayal  of  his 
Irust.P 

The  agent  has  a  right  to  be  reimbursed  his 
advances,  expenses,  and  disbursements  reason- 
ably and  in  good  faith  incurred  and  paid, 
without  any  default  on  his  part,  in  the  course 
of  the  agency ,*>  and  also  to  be  paid  interest  on 
such  advancements  and  disbursements,  when- 
ever it  may  fairly  be  presumed  to  have  been 
stipulated  for,  or  be  due  to  him.'  But  he  can- 
not recover  for  advances  and  disbursements 
made  in  the  prosecution  of  an  illegal  transac- 
tion, though  sanctioned  by  or  even  undertaken 
at  the  request  of  his  principal ; '  and  he  may 
forfeit  all  remedy  against  his  principal  even  for 
his  advances  and  disbursements  made  in  the 
course  of  legal  transactions  by  his  own  gross 
negligence,  fraud,  or  misconduct ; '  nor  will  he 
be  entitled  to  be  reimbursed  his  expenses  after 
he  has  notice  that  his  authority  has  been  re- 
voked." 

The  agent  may  enforce  the  payment  of  a 
debt  due  him  from  his  principal  on  account  of 
the  agency  by  an  action  for  the  amount ;  and 
he  may  also  have  the  benefit  of  his  claim  by 
way  of  set-off  to  an    action    of  his   principal 

f-Paley  Ag.  388,  jSp ;  2  Liverm.  Ag.  260,  261 ; 
Story  Ag.  §  300;  3  M.  &  S.  344;  7  Johns.  179;  i 
Wend.  173.  g-Paley  Ag.  393,  394 ;  i  Camb.  396. 
h-Story  Ag.  §  311;  Paley  Ag.  396:  i  Wils.  328;  i 
Bes.  &  P.  410;  28  Me.  464.  i-Story  Ag.  ?  308 ;  Paley 
•Ag.  396,  397,  398  ;  Story  Bailm.  §?  400,  404,  507.  J-Story 
Ag.  ??  324,  326 :  Paley  Ag.  100,  101 ;  8  Bingh.  65 ;  i 
Caines,  349 ;  2  Id.  357.  U-Story  Ag.  g?  329,  331  ;  i 
Carr.  &  P.  384;  4  Id.  289  :  7  Bingh.  99  ;  16  Ohio,  412. 
l-3Campb.  4SI ;  7  Bingh.  569  ;  12  Pick.  328.     m-8  Ves. 

Ch.   48;   II   Id.   35!;   17  Mass.  145;  2  Johns.  Ch.  108. 

n-9  Beav.  Rolls.  284;  5  Bos.  &  P.  136;  11  Ohio,  363. 
0-3  Chitty  C.  &  M.  222.  |»-Story  Ag.  |§  331-334  :  Paley 
Ag.  104,  105  ;  Story  Eq.  Jiir.  J  468  ;  12  Pick.  328,  332, 
334.  a-2  Liverm.  Ag.  11-13;  Story  Ag.  ^  335,  336; 
Story  Bailm.  2§  196,  197,  357,  358 ;  Paley  Ag.  T07,  108  ; 


against  him,  provided  the  claim  is  not  for  un. 
certain  damages,  and  is  in  other  respects  of 
such  a  nature  as  to  be  the  subject  of  a  set-off.' 
He  has  also  a  particular  right  of  lien  for  all 
his  necessary  commissions,  expenditures,  ad- 
vances, and  services  in  and  about  the  property 
intrusted  to  his  agency,  which  right  is  in  many 
respects  analogous  to  the  right  of  set-off."  Fac- 
tors have  a  general  lien  upon  the  goods  of  their 
principal  in  their  possession,  and  upon  the' 
price  of  such  as  have  been  lawfully  sold  bj;! 
ihem,  and  the  securities  given  therefor.*  Therj] 
are  other  cases  in  which  a  general  lien  exists  in 
regard  to  particular  classes  of  agents,  either 
from  usage,  from  a  special  agreement  of  the 
parties,  or  from  the  particular  habit  of  dealing 
between  them ;  such,  for  example,  as  insurance 
brokers,  bankers,  common  carriers,  attorneys 
and  solicitors,  packers,  calico  printers,  fullers, 
dyers,  and  wharfingers.y 

As  to  third  persons.  In  general,  a  mere 
agent  who  has  no  beneficial  interest  in  a  con 
tract  which  he  has  made  on  behalf  of  his 
principal,  cannot  support  an  action  thereon.-' 
An  agent  acquires  a  right  to  maintain  an  action 
upon  a  contract  against  third  persons,  in  the 
following  cases : 

1.  When  the  contract  is  in  writing,  and  made- 
expressly  with  the  agent,  and  imports  to  be  a 
contract  personally  with  him  ;  as,  for  example, 
when  a  promissory  note  is  given  to  the  agent, 
as  such,  for  the  benefit  of  the  principal,  and  the 
promise  is  to  pay  the  money  to  the  agent  under 
that  name  or  description ;  *  and  it  has  been  held 
that  the  right  of  the  agent  in  such  case  to  sue 
in  his  own  name  is  not  confined  to  an  express 
contract :  thus,  one  holding,  as  mere  agent,  a 
bill  of  exchange,  or  promissory  note,  indorsed 
in  blank,  or  a  check  or  note  payable  to  bearer, 
may  sue  on  it  in  his  own  name.'> 

2.  The  agent  may  maintain  an  action  against 
third  persons  on  contracts  made  with  them 
whenever  he  is  the  only  known  and  ostensible 
principal,  and,  consequently,  in  contemplation 
of  law,  the  real  contracting  party;"  as,  if  an 
agent  sell  goods  of  his  principal  in  his  own 
name,  as  though  he  were  the  owner,  he  is  en- 
titled to  sue  the  buyer  in  his  own  name ;  *  and, 
on  the  other  hand,  if  he  so  buy,  he  may  en- 
force the  contract  by  action.  The  renunciation 
of  the  agent's  contract  by  the  principal  does 
not  necessarily  preclude  the  agent  from  main- 
taining an  action,  but  he  will  still  be  entitled 

5  B.  &  C.  141 ;  3  Binn.  295 ;  11  Johns.  439 ;  4  Halst.  Ch, 
657.  r-Story  Ag.  §  338;  2  Liverm.  Ag.  17;  2  Bou\;i 
Inst.  36  ;  15  East.  223  ;  3  Campb.  467  ;  7  Wend.  315  ;  3 
Caines,  226;  ^  Binn.  295.  8-Story  Ag.  §344;  '  Lirerm. 
Ag.  14-21  ;  3  B.  &  C.  639.  t-Story  Ag.  J  348;  12  Wend. 
362 ;  12  Pick.  328,  332  ;  20  Id.  167.  u-Story  Ag.  §  349  ; 
2  T.  R.  113  ;  8  Id.  204  ;  3  Brown,  Ch.  314.  V-2  Liverm. 
Ag.  34 ;  Story  Ag.  |?  350,  385 ;  4  Burr.  2133 ;  6  Cow. 
181  ;  II  Pick.  482.  w-Story  Ag.  (>  373;  2  Liverm.  Ag. 
34  :  Paley  Ag.  127.  x-Story  Ag.  \  yjd  ;  Paley  Ag.  128, 
129;  s  Kent  Comm.  640;  26  Wend.  367;  10  Paige,  Ch. 
205.  y-Story  Ag.  ^  379-384;  see  "  BailmenL<i," 
"Liens."  at-t  Liverm.  Ag.  215  a-Story  Ag.  §§  393, 
394;  I  Liverm.  215-221  :  3  Pick.  322  ;  16  Id.  381 ;  s  Vt. 
500.  b- Paley  Ag.  (Dunlap's  Ed.)  86i,  note.  c-Russell 
Fact.  &  B.  241,  244;  Paley  Ag.  361,  note ;  Story  Ag. 
g  393.    <l-i2  W«nd.   413:  s'M.  &  S.  833. 


AGENCY. 


63 


to  sue  the  party  with  whom  he  has  contracted 
for  any  damages  which  he  may  have  sustained 
by  reason  of  a  breach  of  contract  by  the  latter.* 

3.  The  right  of  the  agent  to  sue  in  his  own 
name  exists  when,  by  the  usage  of  trade,  or  the 
general  course  of  business,  he  is  authorized  to 
act  as  owner,  or  as  a  principal  contracting  party, 
although  his  character  as  agent  is  known.* 

4.  Where  the  agent  has  made  a  contract  in 
the  subject-matter  of  which  he  has  a  special 
interest  or  property,  he  may  enforce  his  con- 
tract by  action,  whether  he  held  himself  out  at 
the  time  to  be  acting  in  his  own  behalf  or  not :  J 
for  example,  an  auctioneer  who  sells  the  goods 
of  another  may  maintain  an  action  for  the 
price,  although  the  sale  be  on  the  premises  of 
the  owner  of  the  goods,  because  the  auctioneer 
has  a  possession  coupled  with  an  interest.* 

But  this  right  of  an  agent  to  bring  an  action 
in  his  own  name  is  subordinate  to  the  rights  of 
the  principal,  who  may,  unless  in  particular 
cases  where  the  agent  has  a  lien  or  some  other 
vested  right,  bring  a  suit  himself,  and  suspend 
(ir  extinguish  the  right  of  the  agent.* 

An  agent  may  maintain  an  action  against 
third  persons  for  injuries  affecting  the  posses- 
sion of  his  principal's  property ;  and  when  he 
has  been  induced  by  the  fraud  of  a  third  per- 
son to  sell  or  buy  goods  for  his  principal,  and 
he  has  sustained  a  personal  loss,  he  may  main- 
tain an  action  against  such  third  person  for 
such  wrongful  act,  deceit,  or  fraud.**  But  his 
remedy  for  mere  torts  is  confined  to  cases  like 
the  foregoing,  where  his  right  of  possession  is 
injuriously  invaded,  or  where  he  incurs  a  per- 
sonal responsibility,  or  loss,  or  damage  in 
consequence  of  the  tort." 

Signature  by  an  Agent.  If  A.  signs  "  A. 
for  B.,"  this  is  the  signature  of  A.,  and  he  is 
the  contracting  party,  although  he  makes  the 
contract  at  the  instance  and  for  the  benefit  of 
B.  But  if  he  signs  "  B.  by  A.,"  then  it  is  the 
contract  of  B.,  made  by  him  through  his  instru- 
ment A.  In  the  first  case  A.  is  the  principal ; 
in  the  second,  B.  is  the  principal,  and  A.  his 
agent.  But  with  whatever  technical  inaccuracy 
the  signature  is  made,  it  may  be  determined  in 
each  instance  from  the  facts  and  the  evidence, 
that  a  party  is  an  agent  or  a  principal,  in  ac- 
cordance with  the  intention  of  the  parties  to 
the  contract,  if  the  words  are  sufficient  to  bear 
the  construction.*  But  it  is  still  requisite  that 
the  name  of  the  principal  appear  as  such  in 
the  signature  of  a  deed.*  Parol  evidence  may 
always   be   admitted   to   charge  an  unnamed 

w-Russell  Fact.  &  B.  243,  244 ;  2  B.  &  Aid.  962.  x- 
Story  Ag.  ?393.  y-i  Liverm.  Ag.  215-219  ;  Story  Ag.  \ 
jgz:  27  Ala.  (N.  S.)2is.  «-2  Esp.  493  ;  i  H.  Bl.  81,  84, 
85.  a-i  Liverm.  Ag.  221 ;  Story  Ag.  1 403  ;  3  Hill  (N.  Y .) 
72,  73  ;  6  S.  &  R.  37 ;  4  Campb.  194.'  b-Paley  Ag.  363  ; 
Story  Ag.  J?  414,  415  ;  9  B.  &  C.  208  ;  3  Campb.  320;  1 
H.  BI.81  ;  I  B.  &  Aid.  so.    C-Story  Ag.  ??329,  331 ;  i  C. 

6  P.  384;  4  Id.  289:  7  Bingh.  qa;  16  Ohio,  412.  d-S 
Wheat.  326,  337;  n  Mass.  197;  6  Cush.  54;  7  Id.  217; 

7  East.  154 ;  sBlackf.  55  ;  6  B.  Mon.  612  ;  12  Ired.  L.  95  ; 
1  Busb.  L.  422  ;  8  Texas,  98  ;  12  Id.  75  :  21  Conn.  627  ;  33 
Me.  106 ;  3  Flor.  262  ;  9  Barb.  528  ;  4  Comst.  208 ;  32  E. 
1>.  &  E.  127;  I  Duer.  89.  e-Bac.  Abr.  Leases  I.  14 :  5 
Pet.  319,  350;  qM.&  W.  79.  f-i2  Q.  B.  310;  8  M.  &W. 
834;  II  A.  &  E.  594;  9  M.  &  W.  79;  11  Mass.  97:  Id. 


principal ;  but  not  to  discharge  the  actual 
signer.' 

Sub-Agents.  An  agent  can  do  for  his 
principal  only  that  which  his  principal  author- 
izes, and  if  the  principal  appoint  an  agent  to 
act  for  him  as  his  representative  in  any  particu- 
lar business,  this  agent  has  not  thereby  a  right 
to  make  another  person  the  representative  of 
his  principal.  A  mere  agent  cannot  generally 
appoint  a  sub-agent,  so  as  to  render  the  latter 
responsible  to  the  principal,^  but  may  whea 
such  is  the  usage  of  trade,  or  is  understood  by 
the  parties  to  be  the  mode  in  which  the  particu- 
lar business  may  be  done.*"  The  principal  may, 
if  he  chooses,  give  this  very  power  to  his 
agent.*  A  substitute  of  an  agent  who  has  no 
power  to  employ  him,  cannot  be  held  as  the 
agent  of  the  original  principal ;  but  is  only  the 
agent  of  the  agent  who  employs  him,J  and  who 
is  accordingly  his  principal,  and  the  person  so 
employed  is  bound  only  to  his  immediate  em- 
ployer, and  can  look  only  to  him  for  compen- 
sation.'' But  a  substitute,  appointed  by  an 
agent  who  has  this  power  of  substitution,  be- 
comes the  agent  of  the  original  principal,  and 
may  bind  him  by  his  acts,  and  is  responsible  to 
him  as  his  agent,  and  may  look  to  him  for 
compensation.  If  the  agent  has  either  express 
or  implied  authority  to  appoint  a  sub-agent  he 
will  not,  ordinarily,  be  responsible  for  the  acts 
or  omissions  of  the  substitute,*  and  this  is 
especially  true  of  public  officers ;  but  the  sub- 
agent  will  himself  be  directly  responsible  to 
the  principal  for  his  own  negligence  or  mis- 
conduct." The  agent  of  an  agent  is  generally 
accountable  only  to  his  own  principal,  and  not 
to  the  principal  of  the  party  for  whom  he  acts ; 
that  is,  only  his  immediate  employer  can  call 
him  to  account." 

Where  sub-agents  are  employed  without  the 
knowledge  or  consent  of  the  principal,  their 
remedy  is  against  their  immediate  employer 
only,  with  regard  to  whom  they  will  have  the 
same  rights,  obligations,  and  duties  as  if  the 
agent  were  the  sole  principal.  But  where  sub- 
agents  are  ordinarily  or  necessarily  employed 
in  the  business  of  the  agency,  the  sub-agent 
can  maintain  his  claim  for  compensation  both 
against  the  principal  and  the  immediate  em- 
ployers, unless  the  agency  be  avowed,  and  ex- 
clusive credit  be  given  to  the  principal,  in 
which  case  his  remedy  will  be  limited  to  the 
principal." 

A  sub-agent  will  be  clothed  with  a  lien 
against  the  principal  for  services  performed  and 

27;  16  Pick.  350;  9  N.  H.  263:  7  Wend.  68;  10  Id.  87; 
6  Whart.  79  ;  10  B.  Mon.  347 ;  Paine  C.  C.  252  ;  8  Met. 
348  ;  I  Cal.  481  ;  10  B.  &  C.  671 ;  2  Cranch.  419  ;  7  Cush. 
371 ;  5  Sanf.  loi.  jp-Story  Ag.  g  13  :  9  Co.  75  ;  3  Mer. 
237;  2  Maule  &  S.  298,  301 ;  i  Y.  &  J.  Exch.  387;  4 
Mass.  597 ;  12  Id.  241 ;  i  Hill,  501 :  13  B.  Mon.  400 ;  12 
N.  H.  226:  2  Story  C.  C.  411.  I1-9  Ves.  Ch.  234  ;  \ 
Maule  &  S.  4S4;  2  Id.  301 ;  6  S.  &  R.  386 ;  i  Ala.  (N. 
S.)249;  3  Johns.  167.  I-Bunb.  166;  i  Vent.  338-330; 
1  Freem.  476.  |-6  Q.  B.  930;  11  Id.  248.  k-33  Mi. 
341.  1-2  Bos.  S:  P.  438;  2  Maule  &  S.  301;  i  Wash. 
C.  C.  479 ;  8  Cow.  198.  m-Story  Ag.  ^  201,  217  «;  > 
Gall.  C.  C.  565:  8  Cow.  198.  n-3  B'.  &  Aid.  354:  5 
Taunt.  447;  Mad.  &  G.  360.  o-i  Liyerm.  Ag.  64-6i6,* 
Story  Ag.  Jg  386,  387 ;  Paley  Ag.  49 ;  6  Taunt  147. 


AGENCY. 


disbursements  made  by  him  on  account  of  the 
sub-^ency,  whenever  a  privity  exists  between 
them."  He  will  acquire  a  lien  against  the 
principal  if  the  latter  ratifies  his  acts,  or  seeks 
to  avail  himself  of  the  proceeds  of  the  sub- 
agency,  though  employed  by  the  agent  without 
the  knowledge  or  consent  of  the  principal."  He 
may  avail  himself  of  his  general  lien  agamst 
the  principal  by  way  of  substitution  to  the 
rights  of  his  immediate  employer,  to  the  extent 
of  the  lien  of  the  latter.P  And  there  are  cases 
in  which  a  sub-agent,  who  has  no  knowledge 
or  reason  to  believe  that  his  immediate  em- 
ployer is  acting  as  an  agent  for  another,  will 
have  a  lien  on  the  property  for  his  general 
balance. 1 

Arbitrators  are  private  extraordinary  judges, 
to  whose  decision  matters  in  controversy  are 
referred  by  consent  of  the  parties.  Referee 
is  used  as  a  synonym  of  arbitrator,  but  is  in  its 
origin  of  broader  signification,  and  less  accur- 
ate than  arbitrator. 

Appointment.  Usually  a  single  arbitrator  is 
agreed  upon,  or  the  parties  each  appoint  one, 
with  a  stipulation  that,  if  they  do  not  agree, 
another  person,  called  an  umpire,  named  or  to 
be  selected  by  the  arbitrators,  shall  be  called 
in,  to  whom  he  matter  is  to  be  referred.'  The 
jurisdiction  of  the  umpire  and  arbitrators  can- 
not be  concurrent ;  if  the  arbitrators  make  an 
award  it  is  binding;  if  not,  the  award  of  the 
umpire  is  binding.'  If  the  umpire  sign  the 
award  of  the  arbitrators,  it  is  still  their  award, 
and  vice  versa}  Arbitrators  may  appoint  an 
umpire  after  their  term  of  service  has  expired, 
if  the  time  has  not  gone  within  which  the  um- 
pire was  to  make  his  award."  Subsequent  dis- 
sension of  the  parties  without  just  cause  will 
have  no  effect  upon  the  appointment;  but  they 
should  have  notice.^  If  an  umpire  refuse  to 
act,  another  may  be  appointed  as  often  as  the 
thing  shall  ha^jpen.''  In  general,  any  objection 
to  the  appointment  of  an  arbitrator  or  umpire 
will  be  waived  by  attending  him.^     Any  per- 


11-2  Liverm.  Ag.  87-98;  Paley  Ag.  148,  149;  Story 
^g-  \  388 ;  2  Campb.  218,  597 ;  2  East.  523  ;  6  Wend. 
f75.     o-Story  Ag.  \  389  ;  2  Campb^  218,  597,  598  :  4  Id. 


348,  353-  P-Story  Ag.  g  389 ;  i  East.  335;  2  Id.  523, 
529;  7  Id.  7;  6  Taunt.  147.  q-2  Liverm.  Ag.  87-92; 
Paley  Ag.  148,  149;  Story  Ag.  §  390;  4  Campb.  60, 
349 ;  353-  r-Caldw.  Arb.  99 ;  2  Vern.  485 ;  16  East. 
51 ;  9  Ham.  &  C.  624 ;  3  Barn.  &  Aid.  248  ;  s  Barn.  & 
Ad.  488;  7  Scott,  841  ;  Q  Ad.  81:  E.  699  ;  6  Harr.  &  J. 
403;  '7  Johns.  405;  I  Barb.  325;  2  M'Cord,  279;  4 
Rand.  275 ;  15  Vt.  548 ;  2  Bibb.  88 ;  4  Dall.  471 ;  o  Ind. 
150.  S-T.  Jones,  167.  t-6  Marr.  &  J.  403.  u-2  Johns. 
57.  v-ii  East.  367;  12  Met.  (Mass.)  293 ;  i  Harr.  &  J. 
362,  n.  w-See  2  Saund.  1133,  a.  note,  x-2  Eng.  L.  & 
Eq.  284;  9  Ad.  E.  679;  8  East.  344;  i  Jac.  &  W.  511  ; 
1  R.  &  M.  17:  3  Ind.  277;  9  Penn.  St.  254,  487;  10  B. 
Mon.  536.  y-Watson  Abr.  71 ;  Russel  Abr.  107  :  Viner. 
Abr.  Arb.  A.  2  :  8  Dowl.  879;  i  Pet.  288  ;  7  W.  &  S. 
142 ;  26  Miss.  127,  contra  Com.  Dig.  Abatement  B.  C. 
West.  Symb.  Contpr.  p.  164,  §g  23,  26;  Brooke  Abr.  10 
Ad.  &  E.  775;  10  Q.  B.  7.  i-o  Bingh.  672;  2  Vern. 
251  ;  I  Dowl.  611  ;  5  Id.  247  ;  4  Mod.  226  ;  i  Jac.  &  W. 
511;  I  Cai.  147;  I  Bibb.  148;  Hardin.  318;  14  Conn. 
»6  :  26  Miss.  127  ;  27  Me.  251 ;  2  E.  D.  Smith,  32.  »-2 
Atic.  Ch.  401  ;  Cro.  Eli/.  726;  9  Dowl.  Pari.  Cas.  1044; 
6  C.  B.  258 :  4  Dall.  71 :  7  S.  &  R.  228 ;  i  Wash.  C.  C. 
448.  b-9  Mo.  30.  C-21  Ga.  I.  d-Story  Exj.  Jiir.  g 
1457 ;  Kyd.  Aw.  ;  2  Ed.  too.  e-3  Atk.  644  ;  7  S,  &  R. 
448  :  5  Md.  253  ;  19  Mo.  373.  f-8  East.  12  ;  4  E.-^p.  47  ; 
s  Mann.  &  G.  847,  870;  3  Q.  B.  466, 928;  but  see  i  B. 


son  selected  may  be  an  arbitrator,  notwitk- 
standing  natural  incapacity,  or  legal  disability, 
as  infancy,  coverture,  or  lunacy ,?  or  disqualifi- 
cation on  account  of  interest,  provided  it  be 
known  to  the  parties  at  the  time  of  making  the 
submission.* 

Duties  and  powers.  Arbitrators  cannot  dele- 
gate their  authority ;  it  is  a  personal  trust.* 
The  power  ceases  with  the  publication  of  the 
award ; ''  and  death  after  publication  and  be- 
fore delivery  does  not  vitiate  it."  They  cannot 
be  compelled  to  make  an  award,"*  or  disclose 
the  grounds  of  their  judgment.*  An  arbitrator 
may  retain  the  award  till  paid  for  his  services, 
but  cannot  maintain  an  action  for  them  without 
a  promise,'  which  may  be  implied  from  circum- 
stances. 

Proceedings.  Arbitrators  proceed  on  the 
reference  as  judges,  not  as  agents  of  the  parties 
appointing  them.*  They  should  give  notice  of 
the  time  and  place  of  proceeding  to  the  parties 
interested.''  They  should  all  conduct  the  in- 
vestigation together,  and  should  sign  the  award 
in  each  other's  presence;'-  but  a  majority  is 
sufficient.J  In  investigating  matters  in  dispute, 
they  are  allowed  the  greatest  latitude.''  They 
are  Ridges  both  of  law  and  fact,  and  are  not 
bound  by  the  rules  of  practice  adopted  by 
courts.'  They  may  decide  in  justice  and 
honesty,  and  need  not  follow  the  law;  the 
award  will  be  set  aside  only  when  it  appears 
that  they  meant  to  be  governed  by  the  law  but 
have  mistaken  it.™ 

Revocation  of  powers  of  arbitrators  may  oc- 
cur at  the  pleasure  of  either  party  at  any  time 
before  final  award."  It  is  not  competent  for 
the  parties  to  deprive  themselves  of  this  power 
by  any  form  of  contract."  But  when  the  sub- 
mission releases  the  original  cause  of  action, 
and  the  adversary  revokes,  the  party  so  releas- 
ing may  recover  the  amount  so  released  by  way 
of  damages  caused  by  the  revocation. p  Where 
the  submission  is  made  a  rule  of  court  it  be- 
comes practically  irrevocable,  since  such  an  act 

&  P.  93  ;  Contra  i  Denio,  188  ;  29  N.  H.  48.  g:-i  Ves. 
Ch.  226;  9  Id.  69.  I1-3  Atk.  529;  8  Md.  208;  6  Harr. 
&  J-  4°3  ;  3  Gill,  31  ;  7  Id.  488  ;  24  Miss.  346  ;  23  Wend 
628  :  6  Cow.  103  ;  12  Met.  (Mass. )  293  ;  i  Dall.  81  ,  4  Id. 
432  ;  1  Conn.  498  ;  17  Id.  309  ;  2  N.  H.  97 ;  6  Vt.  66<5 ;  3 
Rand.  2;  Hardin,  46;  32  Me.  455,  513.  I-4  Me.  468. 
f-i  Wash.  C.  C.  448;  II  Johns.  402;  3  R.  I.  192;  30 
Penn.  St.  384:  2  Dutch.  175;  9  Ind.  150;  7  Id.  669;  14 
B.  Mon.  292  ;  21  Ga.  i.  k-13  East.  251 ;  9  Bingh.  679  ; 
I  Bos.  &  P.  91 ;  7  Beav.  Rolls,  45s  ;  14  M.  &  W.  264  ; 
5  C.  B.  211,  581  ;  6  Cow.  103  :  I  Hill,  319;  i  Sandf.  681 ; 
I  Dall.  161 ;  6  Pick.  148 ;  10  Vt.  79 ;  2  Bay.  370 ;  i  Bail. 
46;  but  see  i  Halst.  386;  i  Wash.  193;  4  Cush.  iii ;  7 
Hill,  463  ;  3  Johns.  Cas.  224 ;  1  Binn.  458.  I-3  Atk.  Ch. 
486;  I  Ves.  Ch.  369;  I  Price,  81  ;  11  Id.  57;  13^.533; 
I  Swanst.  28 ;  i  Taunt.  52,  n. ;  6  Id.  255  ;  13  East  358  ; 
9  Bingh.  681  :  2  Barn.  &  Aid.  692;  3  id.  239  ;  4  Ad.  & 
E.  347;  7  Id.  601;  I  Dowl.  &  L.  46s;  I  Dowl.  &  R. 
366;  17  How.  344;  2  Gall.  C.  C.  61;  7  Met.  (Mass.) 
316,  486 ;  36  Me.  iq,  108  ;  2  Johns.  Ch.  276,  368 ;  3  Duer, 
69;  I  E.  D.  Smith,  85,  265;  5  Md.  353;  19  Penn.  St. 
431;  21  Vt.  99,  250;  25  Conn.  66;  16  111.  34,  99;  12 
Gratt.  554;  7  Ind.  49;  2  Cal.  64,  122;  23  Miss.  272; 
thus,  the  witnesses  were  not  sworn  ;  Hill  &  D.  no;  2l 
Vt.  776.  111-9  Ves.  364  :  14  Id.  271 ;  3  East.  18  ;  \%  Id. 
351 ;  4  Tyr.  997 ;  2  C.  B.  705 ;  3  Id.  705  ;  2  Gal.  C.  C. 
61  ;  I  Dall.  487;  6  Pick.  148;  6  Met.  (Mass.)  131 ;  7  Id. 
486;  6  Vt.  529;  21  Id.  250;  4  N.  H.  357;  i  Hall,  598; 
see  19  Mo.  373.  n-20  Vt.  198.  0-8  Co.  80  ;  16  JoKm. 
205.    p-13  Vt.  97. 


AGENCY. 


65 


would  be  regarded  a  contempt  of  court  and 
punishable  by  attachment.''  This  is  the  only 
mode  of  making  a  submission  irrevocable/  A 
submission  by  rule  of  court  is  made  irrevocable 
by  the  express  provisions  of  the  statutes  of  most 
of  the  States,  and  the  referee  is  required,  after 
due  notice,  to  hear  the  case  ex  parte  where 
either  party  fails  to  appear.  See  General 
Statutes. 

I  The  form  of  the  revocation  is  not  important 
if  it  be  in  conformity  with  the  submission;  or 
if,  when  it  is  not,  it  be  acquiesced  in  by  the 
other  party.""  The  revocation  should,  in  gen- 
ral,  be  of  as  high  a  grade  of  contract  as  the 
submission."  Where  the  submission  is  in  writ- 
ing the  revocation  ought  to  be  in  writing;*  and 
however  the  form  of  revocation  is  expressed  it 
must  be  distinct  and  intelligible." 

A  party  may  revoke  the  submission  by  any 
act  which  renders  it  impracticable  for  the  arbi- 
trators to  proceed.'' 

Where  the  arbitrators  decline  to  act  it  will 
operate  as  a  revocation  of  the  submission.' 

Bankruptcy  of  a  party  does  not  operate  to 
revoke  a  submission  to  arbitration,''  though  it 
may  justify  the  other  in  revoking.? 

The  death  of  either  party,  or  of  an  arbitrator, 
or  of  one  of  them,  will  operate  as  a  revocation 
of  the  submission.  It  is  competent  to  make 
provision  in  the  submission  for  the  completion 
of  the  award  notwithstanding  the  death  of  one 
of  the  parties,  by  proceedings  in  the  name  of 
the  personal  representative.*  Where  the  sub- 
mission is  by  rule  of  court,  and  the  cause  of 
action  survives,  this  provision  is  not  necessary, 
it  may  be  revived  and  prosecuted  in  the  name 
of  the  personal  representative." 

The  power  of  the  arbitrator  is  determined 
and  destroyed  by  the  occurrence  of  any  fact 
which  incapacitates  the  party  from  proceeding 
with  the  hearing. 

Insanity  in  either  party,  or  in  an  arbitrator, 
will  determine  and  destroy  the  authority  to 
proceed. 

The  marriage  of  a  single  woman  is  a  revoca- 
tion of  the  arbitrators'  power.'>  So,  also,  if 
she  is  joined  with  another  in  the  submission 
her  marriage  is  a  revocation  as  to  both."  The 
exceptions  to  this  rule  are  purely  statutory. 

The  bringing  of  a  suit  upon  the  same  cause 
of  action  embraced  in  the  submission,  at  any 
time  before  the  award,  is  an  implied  revocation.* 

q-i2  Mass.  47;  I  Com.  498;  3  Halst.  116;  4  Me. 
.459  ;  I  Bingh.  42  ;  5  Penn.  St.  497 ;  3  Ired.  333 ;  see  also 
19  Ohio  St.  245;  5  Paige  Ch.  575;  11  Id.  529  r-7  Vt. 
237.  s-Caldw.  Arb.  79  ;  8  Co.  82  ;  Brownl.  62  ;  8  Johns. 
125.  t-i8  Vt.  91;  see  7  Vt  237,  240;  15  N.  H.  468; 
and  8  Ired.  74;  26  Me.  251.  n-i  Cow.  325.  v-i  Salk. 
7j  ;  7  Mod.  8  ;  Story  Ae.  \  474.  w-Caldw.  Arb.  90  ;  i 
Marsh.  366:  17  Ves.  Ch.  241;  4  Monr.  3;  3  Swanst. 
Ch.  90;  I  B.  &  C.  66.  x-Caldw.  Arb.  89.  y.9  B.  & 
C.  659;  but  see  2  Chitty  Bailm.  43;  1  C.  B.  131.     «-3 

B.  &  C.  144  :   3  Bingh.  20  ;  4  Id.  143,  435  :  6  Bingh.  N. 

C.  158;  8  M.  &  W.  873.  a-15  Mass.  79 ;  3  Halst.  116 : 
3  Gill,  190;  2  Gill  &  J.  475.  b-2  Keble.  865:  n  Vt. 
575.  C-W.  Jones,  338;  RoUe  Abr.  Authority,  d-6 
Dana,  107:  Caldw.  Arb.  (Smith's  Ed.  1860^,  80  Am. 
notes.  e-Caldw.  Arb  77,  78 ;  i  Brownl.  62  Ralle  Abr. 
Authority  (H.);  12  Wend.  578;  but  see  Russel  Arb. 
X47;  Chitty  Bailm.  542.  f-Caldw.  Arb.  80 ;  5  B.  &  Aid. 
507;  »  Co.  80.   ir-i  RoHe  Abr.  Authority  (I.  4.) ;  11  Vt. 


When  one  party  to  a  submission  consists  of 
several  persons  one  cannot  revoke  without  the 
concurrence  of  the  others,'  though  his  death 
would  operate  as  a  revocation  on  the  part  of 
the  party  of  which  he  was  one,  but  if  the  cause 
of  action  survived,  his  personal  representative 
might  be  substituted  in  his  stead. 

Where  the  revocation  is  by  the  express  act 
of  a  party  it  will  be  effectual  when  notice 
reaches  tiie  arbitrator.'  But  in  case  of  death, 
insanity,  or  marriage,  either  of  these  events  of 
themselves  terminates  the  power  of  the  arbitra- 
tor at  once,  and  all  acts  done  by  him  thereafter 
are  absolutely  void.8 

Submission  is  the  agreement,  oral  or  written, 
by  which  parties  agree  to  submit  their  differences 
to  the  decision  of  a  referee  or  arbitrators.  It 
is  sometimes  termed  a  reference.'' 

Any  matter  may  be  determined  by  arbitra- 
tion, which  the  parties  may  adjust  by  agretv 
ment,  or  which  may  be  the  subject  of  a  suit  at 
law.  Crimes,  however,  and,  perhaps,  acticris 
on  penal  statutes  by  common  informers,  can- 
not be  made  the  subject  of  arbitration  and  com- 
position by  arbitration.'  Disputes  respecting 
rent,  or  tithes,  charges  of  slander,  breaches  of 
contract,  matters  of  account,  trespass  to  perscm 
or  property,  etc.,  etc.,  may  be  submitted  to 
arhitration.J  Parties  may  by  parol  submit  any 
matters  in  controversy  between  them  to  arbi- 
tration; and  this  is  the  common  law  of  the 
land.''  And,  notwithstanding  the  statutes, 
parties  may  submit  to  arbitration  as  at  common 
law.'  When  a  statute  provides  a  new,  and 
does  not  abrogate  the  old  mode,  and  parties 
may  adopt  either  mode  at  their  own  election, 
but  they  cannot  pursue  both  at  the  same  time.' 
Any  one  capable  of  making  a  disposition  of 
his  property,  or  release  of  his  right,  or  capable 
of  suing  or  being  sued,  may  make  a  binding 
submission  to  arbitration ;  but  one  under  civil 
or  natural  incapacity  cannot  be  bound  by  his 
submission.™  In  general,  in  cases  of  incapacity 
of  the  real  owner  of  the  property,  as  well  as  in 
many  cases  of  agency,  the  person  who  has  the 
legal  control  of  the  property  may  make  the 
submission ;  including  a  husband  for  his  wife ;" 
a  parent  or  guardian  for  an  infant ; "  but  not  a 
guardian  ad  litem  ;'>  a  trustee  for  his  cestui 
que  trust ;  1  an  attorney   for   his   client ; '  an 

525;  s  East.  266.  h-EncIyc.  Am.  Arb.  Kyd.  Arb.  11; 
Caldw.  Arb.  16;  17  Ves.  Ch.  419;  6  Bingh.  506;  3  M. 
&  W.  816;  6  Watts,  359;  16  Vt.  663;  4  N  Y.  157;  3 
Barb.  Ch.  430.  1-Caldw.  Arb.  12;  Com.  Dig.  Arb.  (D. 
3.4);  5  Wend,  iii;  2  Cow.  638;  3  Caines,  320;  9 
Johns.  38  ;  13  S.  &  R.  319  ;  2  Rawle,  341  ;  7  Com.  345  ; 
4  N.  H.  177;  16  Miss.  298;  16  Vt.  450;  10  Gill  &  J. 
192;  5  Munf.  10;  4  Dallas,  120.  J-7  Kas.  349.  k-Id. 
p.  350.  I-3  Wis.  249  ;  I  Chand.  219.  m-Watson  Arb. 
65  :  Russell  Arb.  20 ;  2  P.  Wms.  45-50 ;  9  Ves.  Ch.  350 ; 
I  Dowl.  &  L.  14s;  8  Me.  316;  11  Id.  326;  2  N.  H.484; 
8  Vt.  472;  16  Mass.  396;  5  Conn.  367;  i  Barb.  584;  14 
Johns.  302 ;  5  Wend.  20 :  5  Hill,  419 ;  2  Rob.  761  ;  i 
Munf.  458;  Paine  C.  C.  646;  i  Wheat.  304;  5  How.  83. 
n-Str.  351;  s  Ves.  846.  o-Latch.  207;  March,  iii, 
141;  Freem.  Ch.  62,  139;  i  Wils.  28:  11  Me.  326;  13 
Conn.  376;  3  Caines,  253.  l»-9  Humph.  (Tenn.)  129. 
q-3  Esp.  loi  ;  2  Chitt.  Bail.  40;  i  Lutw.  571.  r-i  Wils. 
28,  58;  I  Salk.  70;  I  L.  Raym.  246;  13  Mod.  129;  Dy. 
217,  b;  12  Ala.  252;  9  Penn.  St.  loi ;  19  Id.  418;  23  Id. 
393  ;  I  Park.  Cr.  Cas.  387 ;  2  Hill,  271 ;  4  Monr.  375 ;  % 
Cranch.  476 ;  but  s*e  6  Weekly  R.  10. 


66 


AGENCY. 


agent  duly  authorized  for  his  principal ;  *  an 
executor  or  administrator  at  his  own  peril,  but 
not  thereby  necessarily  admitting  assets  : "  as- 
signees under  bankruptcy  and  insolvency  laws 
under  statutory  restrictions,  the  right  being 
limited  in  all  cpscs  to  that  which  the  person 
acting  can  control  and  legally  dispose  of,"  ^f 
not  including  a  partner  for  a  partnership.'' 

The  submission  which  defines  and  limits,  as 
well  as  confers  and  imposes  the  duty  of  the 
arbitrator,  must  be  followed  by  him  in  his  con- 
duct of  the  award  :  but  a  fair  and  liberal  con- 
struction is  allowed  in  its  interpretation.^  If 
general,  it  submits  both  law  and  fact.^  If  limited, 
the  arbitrator  cannot  exceed  his  authority.* 

The  award  is  the  judgment  or  decision  of 
arbitrators,  or  referees,  or  umpires,  on  the  matter 
submitted  to  them.  The  writing  containing 
such  judgment.'  A  court  has  no  power  to 
alter  or  amend  an  award.^ 

Enforcement.  An  award  may  be  en- 
forced by  an  action  at  law,  which  is  the  only 
remedy  for  disobedience  when  the  submission 
is  not  made  a  rule  of  court,  and  no  statute  pro- 
vides a  special  mode  of  enforcement." 

Form.     The  award  should,  in  general, 

follow  the  terms  of  the  submission,  which  fre- 
quently provides  the  time  and  manner  of 
making  and  publishing  the  award.  It  may  be 
oral  or  written,  or  by  deed.*  It  should  be 
signed  by  all  the  arbitrators  in  the  presence  of 
each  other.  An  award  will  be  sustained  by  a 
liberal  construction,  that  it  may  be  supported 
sooner  than  be  lost.® 

Effect.  An  award  is  a  final  and  con- 
clusive judgment  between  the  parties  on  all  the 

t-4  Taunt.  378,  386  ;  8  Barn.  &  C.  16  ;  5  Id.  141 ;  8  Vt. 
472 ;  II  Mass.  479  ;  5  Green  (N.  T.)  38 ;  29  N.  H.  405 ;  8 
N.  Y.  160.  n-2  Str.  H44;  5  T.  R.  6;  7  Id.  453;  5 
Mass.  15;  20  Pick.  584;  6  Leigh.  62;  5  Monr.  240;  6 
Conn.  621  ;  see  5  Bing.  200 ;  i  Barb.  419  ;  3  Harr.  N.  J. 
442.  ■v-6  Mass.  78  ;  6  Munf.  453  ;  4  Monr.  240 ;  21  Miss. 
133-  W-3  Bing.  loi  ;  Holt,  143;  i  Cr.  M.  &  R.  681  ;  i 
Pet.  221 ;  19  Johns.  137 ;  2  N.  H. ;  5  Gill  &  J.  412  ;  12  S. 
&  R.  «43;   Coll.  Part.  ?§  439,  470;   3  Kent  Comm.  49. 


X-i  Wms.  Saund. ;  95  Cro.  Car.  226;  11  Ark.  477;  3 
Penn.  St.  114;  13  Johns.  187.  y-7  Ind.  49.  z-ii  Cush. 
37.  a-Cowel,  Jenk.  Cent.  Cas.  137;  Billings  Aw.  119 
Watson  Arb.   174;   Russel  Arb.  234;  3  Bouv.  Inst.  n. 


>402,  et  seq.  b-i  Dutch.  130 :  5  Cal.  179 ;  12  N.  Y.  9  : 
41  Me.  355.  c-6  Ves.  815;  17  Id.  232;  19  Id.  431;  i 
Swanst.  40;  2  Chitt.  316;  5  East.  266;  5  Barn.  & 
Aid.  507 :  4  Bam.  &  C.  103 ;  i  Dowl.  &  R.  106 ;  3  C.  B. 
475-  <l-3  Bulstr.  311;  20  Vt.  189.  e-2  N.  H.  126; 
■  Pick.  534;  4  Wis.  181:  8  Md.  208;  8  Ind.  310; 
17  III.  477;  29  Penn.  St.  251  ;  Reed.  Aw.  170.  f-3  Bl. 
Comm.  16  :  I  Freem.  Ch.  410 ;  4  Ohio,  310 ;  5  Cow.  383  ; 
IS  S.  &  R.  166;  I  Cam.  &  N.  93.  {C-37  Me.  72;  15 
Wend.  09;  27  Vt.  241;  16  111.  34;  5  Ind.  220;  i  Ala. 
278;  6  Litt  264;  2  Coxe,  369 ;  7  Cranch.  171;  I1-2  L. 
Raym.  115:3  East.  15:6  Pick.  148 :  4  Dall.  120 ;  16  Vt. 
45o>  592  ;  IS  Johns.  197  ;  5  Wend.  268  ;  2  Cai.  320  ;  4 
Rawle,  411,  430;  7  Watts.  311 ;  11  Conn.  240;  18  Me. 
251 ;  28  Ala.  (N.  S.)  475.  I-Watson  Arb.  256;  12  N.  Y. 
9;  41  Me.  355.  J-23  Barb.  187;  28  Vt.  81,  776;  contra 
0  Cush.  5<Jo  k-Lutw.  530;  Str.  90^;  i  Ch.  Cas.  186; 
Kep.  tetnp.  Finch.  141  ;  24  Eng.  L.  &  Eq.  346;  8  Barb. 
361  ;  5  Bam.  &  Ad.  295  ;  13  Johns.  27.  268 ;  i)  Id.  133  ; 
17  Vt.  9;  3  N.  H.  82  :  13  Mass.  396;  11  Id.  447;  22 
Pick.  144;  II  Cush.  37;  18  Me.  251;  40  Id.  194;  25 
Conn.  71 ;  3  Harring.  (Del.)  22;  i  Binn.  109;  5  Penn. 
St.  274;  13  Gill  &  J.  156,  456;  Litt.  Sel.  Cas.  83:  13 
Miss.  172':  25  Ala.  351 ;  7  Cranch.  599;  see  7  Sim.  i  ;  2 
Q.  B.  256;  II  Johns.  61 ;  i  Call.  500;  7  Penn.  St.  134. 
l-i  Burr.  275 ;  5  Ad.  &  E.  147 ;  2  Sim.  &  S.  130  ;  2  Vern. 
';i4  :  2  Bulstr.  260;  3  S.  &  R.  340;  i  Id.  395  ;  9  Johns. 
43;  '3  Id.  187;  23  WMtd.  125;  33  Barb.  187;  3  Sandf. 


matters  referred  by  the  submission.  It  trans- 
fers property  as  much  as  the  verdict  of  a  jury, 
and  will  prevent  the  operation  of  the  statute 
of  limitations.'  A  verbal  or  written  award  fol- 
lowing a  verbal  or  written  submission  will  have 
Ihe  same  effect  as  an  agreement  of  the  same 
form  directly  between  the  parties.^  The  right 
of  real  property  cannot  thus  pass  by  mere 
award ;  but  no  doubt  an  arbitrator  may  award 
a  conveyance  or  release  of  land,  and  require 
deeds,  and  it  will  be  a  breach  of  the  agreement 
and  arbitration  bond  to  refuse  compliance ;  and 
courts  will  sometimes  enforce  this  specifically.^ 

Arbitrament  and  award  may  be  pleaded  to 
an  action  concerning  the  same  subject-matter, 
and  will  bar  the  action.'  To  an  action  on  the 
award  nothing  can  be  pleaded  against  the 
award ;  not  even  fraud.J 

To  be  conclusive,  the  award  should  be  con- 
sonant with,  and  follow  the  submission,  and 
affect  only  the  parties  to  the  submission ;  other- 
wise, it  is  an  assumption  of  power,  and  not 
binding.''  It  must  be  final  and  certain,'  con- 
clusively adjudicating  all  the  matters  sub- 
mitted,™ and  stating  the  decision  in  such  lan- 
guage as  to  leave  no  doubt  of  the  arbitrator's 
intention,  or  the  nature  and  extent  of  the 
duties  imposed  by  it  on  the  parties."  It  must 
be  possible  to  be  performed,  and  must  not 
direct  anything  to  be  done  which  is  contrary 
to  law.°  It  must  be  without  palpable  or  ap- 
parent mistake. P  An  award  may  be  in  part 
good,  and  in  part  void;  in  which  case  it  will 
be  enforced  so  far  as  valid,  if  the  good  part  is 
separable  from  the  bad.' 

405  ;  7  Met.  (Mass.)  316:4  Cush.  317,  396 :  i  Gray,  418 ; 
13  Vt.  53  :  40  Me.  194:  2  Green.  ^I.  J.  333  :  2  Halst.  90: 
I  Dutch.  281  ;  2  Id.  17s:  3  Harr.  &  J.  383;  2  Harr.  & 
G.  67:  6  Md.  135:  4  Md.  Ch.  199:  i  Gilm.  (Va.)93:  2 
Patt.  &  H.  442  :  3  Ohio,  266 :  5  Blackf.  128 :  4  Id.  480  ; 

I  Ired.  466;  Busb.  173:  3  Cal.  431  :  i  Ark.  206:  4  111. 
428:  2  Fla.  157;  13  Miss.  712:  Charlat.  289;  2  M'Cord, 
279;  5  Wheat.  394:  11  Id.  446;  12  Id.  337:  and  see  4 
Conn.  50  :  6  Johns.  39  :  6  Mass.  46.  in-6  Md.  135  :  i 
McMull.  305:  2  Cal.  209.  11-2  Cal.  299,  and  cases 
above:  an  award  reserving  the  determination  of  future 
disputes,  6  Md.  135  :  or  directing  a  bond  without  naming 
a  penalty,  5  Co.  77:  Roll.  Abr  Arb.  2,4;  or  that  one 
shall  give  security  for  the  performance  of  some  act  or 
payment  of  money .  without  specifyinga  kind  of  security, 
are  invalid,  Vin.  Abr.  Arb.  212:  Bac.  Abr.  Arb.  E.  n, 
and  cases  above.  O-i  Ch.  Cas.  87:  5  Taunt.  454:  12 
Mod.  585;  2  Barn.  &  Aid.  528;  Kirb.  253:  i  Dall.  364; 
4  Id.  298  :  4  Gill  &  J.  298  :  it  will  be  void  if  it  direct  a 
party  to  pay  a  sum  of  money  at  a  day  past,  or  direct 
him  to  commit  a  trespass,  felony,  or  an  act  which  would 
subject  him  to  an  action  ;  2  Chitt.  594  ;  i  M.  &  W.  572  ; 
or  if  it  be  of  things  nugatory  and  offering  no  advantage 
to  either  of  the  parties,  6  J.  B.  Moore,  713.  p-2  Gall. 
C.  C.  61;  3  B.  &  P.  371:  I  Dall.  487:  6  Met.  (Mass) 
131 ;  for  if  the  arbitrator  acknowledges  that  he  madea 
mistake,  or  if  an  error  (in  computation  for  instance)  is 
apparent  on  the  face  of  the  award,  it  will  not  be  good,  4 
Zab.  647;  2  Stockt.  45:  2   Dutch.  130:  32   N.  H.28q; 

II  Cush.  549;  18  Barb.  344;  2  Johns.  Ch.  309;  27  Vt. 
241  ;  8  Md.  208;  4  Call.  345;  5  Id.  430;  for  although  an 
arbitrator  may  decide  contrary  to  law,  yet  if  the  award 
attempts  to  follow  the  law.  but  fails  to  do  so  from  the 
mistake  of  the  arbitrator,  it  will  be  void,  3  Md.  353;  15 
III.  421;  26  Vt.  416,  630;  4  N.  H.  647;  17  ;How.  344. 
<|-io  Mod.  204;  12  Id.  587;  Cro.  Jac.  664:  2  Leon,  304; 
3  Lev.  413:  Godb.  164;  8  Taunt.  697:  i  Wend.  326;  5 
Cow.  197:  13  Johns.  264:  2  Cai.  235;  i  Me.  300;  it 
Cush.  37;  6  Green  (N.J.)  247;  i  Dutch.  aSi ;  1  Rand. 
449:  1  Hen.  &  M.  67;  Hardin,  318:  5  Dana.  492;  3< 
Vt.  345:  2  Swanst.  213;  2  Cal.  74;  4  Ind.  248;  6  Hair. 
&  J.  10;  5  Wheat.  394. 


AGENCY. 


67 


Setting  aside.     An  award  will  not  be 

disturbed  except  for  very  cogent  reasons.  It 
will  be  set  aside  for  misconduct,  corruption,  or 
irregularity  of  the  arbitrator,  which  has,  or  may 
have,  injured  one  of  the  parties.'  For  error  in 
fact,  or  in  attempting  to  follow  the  law,  appar- 
ent on  the  face  of  the  award ;  for  uncertainty 
or  inconsistency ;  for  an  exceeding  his  authority 
liy  the  arbitrator ; »  when  it  is  not  final  and  con- 
clusive, without  reserve;  when  a  party  or  wit- 
ness has  been  at  fault,  or  has  made  a  mistake ; 
or  when  the  arbitrator  acknowledges  that  he 
has  made  a  mistake  or  error  in  his  decision. 

ARBITRATION    FORMS. 

For  additional  forms  see  Pleadings. 
Arbitration— SubnilsHion  Agreement. 

A  General  Form — 0/ all  matters  in  difference,  etc. 
Where  the  parties  intend  to  refer  all  disputes,  the 
terms  of  the  reference  should  be,  "  of  all  matters  in  dif- 
ference between  the  parties ;"  but  where  the  reference 
relates  to  matter  in  a  particular  cause  only  it  should  be, 

"  of  all  matters  of  difference  in  the  cause ."' 

Know  all  men  by  these  presents: 
That  we,  the  undersigned,  do  hereby  mutually 
agree  to  submit  all  the  matters  in  difference  be- 
tween us,  of  every  name,  kind,  and  nature,  to  the 

determination   and   award   of  A.  R.,  (of ),  as 

arbitrator,  {or  A.  R.,  B.  I.,  and  T.  R.  {all of ), 

as  arbitrators]. 

That  said  arbitrator  {or  arbitrators,  or  any  two  of 

said  arbitrators)  shall  hear  and  determine  the  same 

{insert  if  desirable,  and  a%vard  the  payment  of  the 

costs  (and  expenses)  incurred  in  such  arbitration]. 

That  said   arbitrator  shall   make  his  {or  their) 

award  in  writing,  on  or  before  the day  of , 

A.  D. .  {Signed)  A.  B. 

r  Witnesses.']  C.  D. 

Arbitration — Submission  Ag^reement. 

General  Form — Of  all  matters  in   variance. 
Know  all  men  by  these  presents  : 
That  divers  disputes  and   controversies  have 
arisen  and  are  now  depending  between  A.  B.,  of 

,  and  C.  D.,  of ,  touching  and  concerning 

{state  what). 

That,  for  the  deciding  and  ending  the  same,  it 
is  hereby  mutually  agreed,  by  and  between  said 
parties,  that  all  matters  in  variance  between 
them,  touching  and  concerning  all  and  every 
matter  and  thing  above  mentioned  and  specified, 
shall  be  referred  to  the  arbitrament  and  determi- 
nation of  A.  R.,  B.  I.,  and  T.  R.,  or  any  two  of 
them. 
That  said  award  shall  be  made  on  or  before  the 

day  of ,  and  a  copy  thereof  delivered  to 

either  or  both  of  said  parties  desiring  the  same. 
[iVitnesses.j  {Signed)  A.  B. 

C.  D. 
Arbitration— Sn  bmlsslon  Agreement. 
General  Form — Of  all  suits,  controversies,  etc. 
Know  all  men  by  these  presents : 

That  we,  the  undersigned,  A.  B.  (of ,)  and 

C.  D.,  (of ,)  do  hereby  mutually  agree  to  and 

with  each  other,  to  submit  all  and  all  manner  of 
actions,  cause  and  causes  of  actions,  suits,  con- 
troversies, claims  and  demands  whatsoever,  now 
pending,  existing  or  held  by  and  between  us,  to 

A.  R.,  (of .)  as  arbitrator,  who  shall  [or  to  A. 

R.,  B.  I.,  and  T.  R.,  {all of \  who,  or  any  two 

of  whom,  shall]  arbitrate,  award,  order,  judge, 
and  determine  of  and  concerning  the  same  [in- 
sert if  desired,  with  power  to  award  the  payment 
of  the  costs  (and  of  the  expenses)  incurred  in  such 
arbitration.] 

That  we  do  mutually  agree  to  and  with  each 
other,  that  the  award  to  be  made  by  the  said  ar- 
bitrator {or  arbitrators,  or  any  two  of  said  arbitrators) 
shall  in  all  things  by  us,  and  each  of  us  (and  our 
respective  heirs,  executors,  administrators,  and  assigns), 
be  well  and  faithfully  kept  and  performed. 

That  such  award  shall  be  made  in  writing,  under 
the  hand  of  said  arbiter  (or  arbiters,  or  any  two  of  said 

r-2  Eng.  L.  &  Eq.  184;  5  Barn.  &  Ad.  488  ;  i  Hill 
&  p.  J03  ;  13  Gralt.  535 ;  14  Tc^f .  56 ;  «8  Penn.  St.  51^ ; 


arbiters),  ready  to  be  delivered  to  us,  or  either  of 

us,  on  or  before  the day  of ,  A.  D. . 

\Vitness  our  hands,  this day  of ,  A.  D. 

.  {Signed)  A.  B. 

[Witnesses.]  CD. 

Arbitration— SubmisNiou  Aipreement. 
General  Form— Of  all  matters,  differences,  etc. 
Know  all  men  by  these  presents  : 
That  differences  have  for  a  long  time  existed, 
and  are  now  existing  and  pending,  between  A. 

B.,  of ,  and  C.  D.,  of ,  in  relation  to  divers 

subjects  of  controversy  and  dispute. 

That  we,  the  said  A.  B.  and  C.  D. ,  do  hereby  sub- 
mit said  differences  to  the  arbitrament  of  A.  R. 
B.  I.,  and  T.  R.,  or  any  two  of  them,  to  arbitrate 
award,  order,  judge  and  determine  of  and  con 
cerning  all  manner  of  actions,  suits,  bills,  bonds, 
specialties,  executions,  quarrels,  controversies, 
trespasses,  damages,  debts,  claims,  demands,  and 
all  and  every  other  subject  of  difference  whatso- 
ever, at  any  time  heretofore  had,  possessed,  in- 
stituted, sued  out,  prosecuted,  made,  began, 
pending,  existing,  done,  or  suffered  to  be  done, 
committed,  or  pending,  by  and  between  said  par- 
ties, directly  or  indirectly. 

That  said  award  shall  be  made  in  writing,  under 
the  hands  of  said  arbitrators,  or  any  two  of  them, 
ready  to  be  delivered  to  said  parties,  or  such  of 
them  as  shall  desire  the  same,  on  or  before  the 

day  of . 

That  said  award  shall,  in  all  things,  by  us,  and 
each  of  us,  be  well  and  faithfully  kept,  observed 
and  performed. 

Witness  our  hands  (and  seals)  this day  of 

.  A.  B.  {Seal.) 

W.  T.,  N.  S.,  Witnesses.  C.  D.  {Seal.) 

Arbitration— Submission  Agreement. 

General  Form,  by  Administrators ,  Corporations,  etc. 

Know  all  men  by  these  presents : 

That  A.  D.  and  M.  R.  are  administrators  of  the 

estate  of  D.  D.,  deceased. 

That  the  R.  C.  is  a  railway  corporation  created 
and  existing  under  the  act  of  the  legislature  {or 

General  Assembly)  of  the  State  of . 

That  {here  insert  the  matters  or  thing  in  contro- 
versy). 

That  said  administrators  and  said  corporation, 
by  A.  A. ,  its  agent,  hereunto  lawfully  authorized, 
do  by  these  presents  nominate  and  appoint  A. 
R.,  B.  I.,  and  T.  R.  arbitrators  between  them, 
and  to  whom  they  refer  the  consideration  of  said 
differences,  to  hear  and  determine  the  same,  etc. 
{as  in  other  cases). 
In  witness,  etc. 

Arbitration— Submission  Agrreement. 
General  Form,  with  provision  for  an  Umpire,  etc. 
Know  all  men  by  these  presents : 
That  controversies   exist  and   have  for  a  long 

time  existed  between  A.  B.,  of ,  and  C.  D., 

of . 

That  said  A.  B.  and  C.  D.  do  hereby  mutually 
agree  to  and  with  each  other  to  submit  all  and 
all  manner  of  actions,  cause  and  causes  of  action, 
suits,  controversies,  claims  and  demands  vt^hat- 
soever,  now  pending,  existing,  or  held  by  and  be- 
tween them  to  (A.  R.,  of ,  as  arbitrator,  who 

shall,  or  to  A.  R.,  B.  I.,  and  T.  R.,  all  of ,  as  arbi- 
trators), who  {or  any  two  of  them)  shall  arbitrate, 
award,  determine,  judge,  and  order  of  and  con- 
cerning the  same. 

That  said  arbitrators  shall  have  power  to 
award  payment  of  the  costs  and  expenses  in- 
curred in  said  arbitration. 

That  said  award  shall  be  made  in  writing,  un- 
der the  hands  of  said  arbitrators,  ready  to  be  de- 
livered to  us,  or  either  of  us,  on  or  before  the 

day  of . 

That  in  case  said  arbitrators  do  not  make  theit 
award  on  or  before  said  day,  then  the  matters 
and  things  above  submitted  shall  be,  and  are  by 
these  presents  submitted  to  the  decision  of  such 
third  person  as  shall  be  then,  or  shall  theretofore 
have  been  appointed  (in  writing  and  indorsed  hereon) 
by  said  arbitrators  to  act  and  arbitrate  of  and 
crncerning  said  premises,  and  make  his  a^vard 


ag  Vt.  73.     s-22  Pick.  417; 
3  Chitty  Bl.  17,  >f. 


^  Den.  loi.     t-3  T.  R  6t|j 


08 


AGENCY. 


snd  umpirage  in  writing  on  or  before  the day 

of . 

That  said  parties  do  mutually  covenant  to  and 
with  each  other  that  the  award  (and  umpirage) 
made  as  aforesaid  shall  by  each  of  them  and  their 
legal  representatives  be  well  and  faithfully  kept, 
observed,  and  performed. 

Witness  our  hands,  etc.  (Si^ed)  A.  B. 

W.  T.,  N.  S.  (witnesses).  C.  D. 

Arbitration— Submission  Agreement. 

Special  Form — Of  particular  }natters  only. 

Know  all  men  by  these  presents : 

That  a  controversy  is  now  existing  and  pending 
between  A.  B.,  of ,  and  C.  D.,  of ,  in  rela- 
tion to  {state  what,  as :  an  exchange  of  horses  be- 
tween said  parties  at ,  on  the day  of ,  last 

past,  whereby,  etc.,  stating'  i/te  matters  of  difference). 

That  said  A.  B.  and  C.  D.  do  hereby  submit 
said  controversy  to  the  arbitrament  of  A.  R.,  B. 
I.,  and  T.  R.,  or  any  two  of  them. 

That  said  award  shall  be  made  in  writing  un- 
der the  hands  of  said  arbitrators,  or  any  two  of 
them,  ready  to  be  delivered  to  said  parties,  or 
such  of  them  as  may  desire  the  same,  on  or  be- 
fore the day  of next. 

That  said  award  shall  in  all  things  by  us  and 
each  of  us  be  well  and  faithfully  kept,  observed, 
»nd  performed. 

Witness  our  hands,  etc.  A.  B. 

W.  T.,  N.  S.  {witnesses).  C.  D. 

Clauses  to  be  inserted  in  the  preceding  fortns  accord- 
ing to  circumstances  : 
Concerning  Accounts. 

That  a  controversy  has  arisen  between  said 
parties  concerning  an  account  (a  copy  of  which  is 
hereunto  attached,  marked  A.),  and  is  to  whether 
said  A.  B.  ever  delivered  the  (state  what),  men- 
tioned therein,  or  any  part  thereof;  and  if  so,  the 
value  and  price  thereof,  and  within  what  time 
said  C.  D.  shall  pay  the  balance  due  upon  said 
account. 

Concerning  Annuity. 

That  W.  B. ,  widow  of  A.  B. ,  deceased,  was  en- 
titled to  dower  in  the  following  described  real 
estate,  which  had  belonged  to  said  A.  B.  in  his 
lifetime,  situated  in ,  to  wit  (describing  it). 

That  said  real  estate  was  sold  by  H.  B.,  heir  of 
said  A.  B.,  to  P.  R.,  said  W.  B.  agreeing  to  take 

as  her  share  thereof  the  quarterly  sum  of  

dollars,  to  be  secured  and  paid  to  her  during  her 
lifetime  in  lieu  of  said  dower. 

That  a  controversy  has  arisen  between  said 

Jiarties  as  to  what  quarterly  sum  is  a  fair  equiva- 
ent  in  lieu  of  said  dower,  and  what  amount  of 
security,  and  the  nature  thereof,  is  necessary  to 
be  given  by  said  H.  B.  to  W.  B. 

Concerning  Boundaries. 
That  a  controversy  exists  between  the  under- 
signed A.  B.  and  C.  D.,  concsrning  the  boundary 
and  division  lines  of  the    following    described 

tracts  and  parcels  of  land  situated  in ,  to  wit 

{describing  them  and  stating  the  parts  in  controversy). 
Concerning  Horse  Trade. 
That  a  controversy  exists  between  A.  B.  and  C. 
D.  concerning  an  exchange  of  horses  made  be- 
tween them  at  ,  in  ,  on  the  day  of 

. ,  wherein  it  is  claimed  by  said  A.  B.  that  the 

horse  exchanged  by  said  C.  D.  was  by  him  war- 
ranted sound  in  every  respect,  and  that  thereby 
said  A.  B.  was  induced  to  make  said  exchange. 
That  said  horse  wa"  not  at  the  time  of  said  ex- 
change sound  as  warranted  in  this  (state  what). 
Concerning  Partnership. 
That  A.  B.,  C.  D.,  and  E.  F.  are  partners  doing 
business  under  the  firm-name  of  A.  B.  &  Co. ,  and 
are  about  to  dissolve  said  partnership. 

That  a  controversy  exists  between  said  part- 
ners concerning  the  settlement  of  the  firm-busi- 
ness, and  the  business  transactions  and  claims 

by  and  between  said  parties  8ubseq;uent  to  the 

day  of last. 

Concerning  Suit  Pending. 
That  this  submission  shall  not  operate  a  dis- 
continuance of  the  action.  No.  — ,  entitled  A.  B. 

vs.  C.  D.,  etc.,  now  pending  in  the Court,  in 

,  ^vit^out  an  award  made  pursuant  to  the 

t«rm9  hereof,  and  that  its  cflFcct  a?  to  SHch  ?«it 


■hall  be  merely  to  stay  proceedings  until  such 
discontinuance,  or  until  said  submission  shall 
become  imperative  or  be  revoked. 

Concerning  Title  and  Trespass. 

That  a  controversy  exists  between  A.  B.  and  C. 
D.  concerning  the  title  and  right  of  possession 
of  the  following  real  estate,  situated  m (de- 
scribing it),  ^whereon  various  trespasses  have  been 
committed  by  C.  D.  and  his  servants,  in  this 
(stating  the  naturt  of  the  trespasses  and  amount  oj 
damage). 

Another. 

That  A.  B.,  of ,  claims  the  title  and  right  of 

possession  of  the  following  described  premises, 
situated  in (describing  them). 

That  C.  D.,of ,  claiming  title  thereto,  and 

right  of  possession,  with  his  servants,  entered 
upon  said  premises  and  (state  what  damage  was 
done). 

That  by  reason  thereof  said  A.  B.  claims  to 

have  sustained dollars  damage. 

Concerning  Wages. 

That  a  controversy  exists  between  A.  B.  and  C. 
D.  concerning  wages  due  said  C.  D.  for  services 

heretofore  rendered  said  A.  B.  as ,  from  the 

day  of unto  the day  of ,  wherein 

C.  D.  claims  {state  what),  and  A.  B.  claims  (siait 
what). 

Concerning  Warranty  Breach. 
That  a  controversy  exists  between  A.  B.  and  C. 

D.  concerning  a  certain  (horse)  sold  by  said  A.  B. 

to  C.  D.,  at ,  in  ,  on  the  day  of , 

upon  the  sale  of  which  said  A.  B.  warranted  said 
(horse)  to  be  sound  in  every  respect,  and  vtrhich 
(horse)  it  is  alleged  was  not,  at  the  time  of  such 
sale,  sound  as  warranted. 

Arbitration— Bond. 

IVith  Sureties. 

Know  all  men  by  these  presents  : 

That  A.  B.   and  C.  D.  have,  this day  of 

,  A.  D.   ,  submitted  all  their  matters  in 

difference,  of  every  name,  kind,  and  nature,  to 

A.  R.  (B.  I.,  and  T.  R.),  to  arbitrate,  award,  order, 
judge  and  determine  of  and  concerning  the 
same. 

That  v«^e,  the  undersigned,  bind  ourselves  to  A. 

B.  (orC.  D.)in  the  sum  of dollars, that  said  C. 

D.  (or  A.  B.)  shall  submit  to  the  decision  and  award 
of  said  arbitrator  (or  arbitrators,  or  any  two  of  said 
arbitrators),  provided  said  award  be  made  in  writ- 
ing, on  or  before  the day  of  ,  A.  D. . 

(Signed )        CD.,  (or  A.  B.) 
S.  S., 
Y.  Y. 
Arbitration— Bond. 
To  be  given  by  each  party  to  the  other. 

Know  all  men  by  these  presents  : 

That  I,  (A.  B.  or  C.  D.),  of  ,  am  held  and 

firmly  bound   unto  (C.  D.  or  A.  B.),  of  ,  in 

the  sum  of dollars,  for  the  payment  of  which 

I  bind  myself  and  legal  representatives  by  these 
presents. 

The  condition  of  this  obligation  is  : 

That  if  the  above  bound  (A.  B.  orQ.  D.),  or  his 
legal  representatives  shall  submit,  perform,  and 
comply  with  the  award,  determination,  judg- 
ment and  orders  of  A.  R.,  B.  I.,  and  T.  R.,the 
arbitrators  named  and  selected  by  said  parties 
*  to  award,  determine,  judge,  and  order  of  and 
concerning  (if  a  special  tnatter  here  describe  it,  but 
if  the  submission  is  not  limited  say)  all  and  all  man- 
ner of  actions  or  causes  of  action,  suits,  contro- 
versies, claims  and  demands  whatsoever,  now 
pending,  existing,  or  held  by  and  between  said 
(A.  B.  and  C.  D.  or  C.  D.  and  A.  B.  *  *  }  (with 
power  to  award  payment  of  costs  and  expenses  incurred 
in  said  arbitration),  provided,  however,  that  said 
award  be  made  in  writing,  under  the  hands  of 
arbitrators,  or  any  two  of  them,  and  ready  to  be 
delivered  to  said  parties,  or  such  of  them  as  may 

desire  the  same,  on  or  before  the day  of , 

at  ,    *    *    »    then    this    obligation  shall  be 

void,  otherwise  it  shall  remain  in  full  force 
Executed  in  presence  of  I         Signed 
W.  T.,  N.  S.,lVitnesses.    /    .  (A.  B.  or  C.  D.) 

Same —  Without  Discontinuing  a  Suit. 

*  *  Provided,  that  this  submission  shall  not 
operate  «  discontinuance  or  otherwise  afTect  • 


AGENCY. 


69 


suit  now  pending  in  the court,  between  said 

A.  B.  and  C.  D.,  without  an  award  made  pursu- 
ant to  the  terms  hereof. 

Same — OaiA  of  Arbitrators  Contemplated. 

*  And  sworn  (or  affirmed)  honestly  and  impar- 
tially to  hear. 

Same —  Umpire  Contemplated. 

*  *  *  Provided,  also,  that  if  said  arbitrators 
shall  not,  within  the  time  limited,  make  said 
award,  determination,  judgment  and  orders,  then 
and  in  such  case  the  same  shall,  in  all  respects, 
in  like  manner  and  with  like  effect,  be  made,  de- 
termined, adjudged  and  ordered  by  W.  R.  (a  per- 
son by  said  arbitrators  indifferently  chosen  as  umpire) 

•n  or  before  the day  of ,  at . 

Arbitration— Appointment  of  Umpire. 

Arbitrators  disagreeing. 
Know  all  men  by  these  presents : 
That  by  agreement  (or  bond)  bearing  date  the 
. day  of ,  the  matters  in  difference,  etc. ,  be- 
tween A.  B.  and  C.  D.,  were  by  them  submitted 
to  our  consideration  to  hear,  determine,  and 
award  thereon  (with  power  to  select  an  umpire  in 
case  of  disagreement,  etc.) 

That  we  are  not  able  to  determine  said  difTer- 
ences. 

That  %ve  do  by  these  presents  choose  and 
appoint  U.  R.  to  determine  and  award  said  mat- 
ters in  difference  to  us  submitted,  pursuant  to 
said  agreement  (or  bond). 

Witness  our  hands,  this day  of ,  A.  D. 

.  A.  R.,B.  I.,T.  R. 

Arbitration— Xotice  to  Arbitratorts. 
A.  R.,B.  I.,andT.  R. 

Gentlemen — You  have  been  chosen  arbitrators 
on  behalf  of  the  undersigned,  to  arbitrate  and 
award  between  them,  in  divers  matters  and 
things,  set  forth  in  their  submission,  which  will 
be  produced  for  your  inspection  when  you  meet 

at ,  in ,on  the day  of ,  at — o'clock 

— -  M.,  to  hear   the    allegations   and    proofs  of 
yours,  &c.,  A.  B. 

Dated .  C.  D. 

Arbitration— Xotice  to  'WitueH!«. 
W.  S. :   Dear  Sir — The  arbitration  concerning 
certain  differences  between  A.  B.  {or  myself)  and 
C.  D.  will  be  had  before  A.  R.,  B.  I.,  and  T.  R.,  at 

,  in ,  on  the  day  of ,  at  —  o'clock 

—  M.    Do  not  fail  to  attend.    Yours,  &c.,    A.  B. 
Arbitration— Oaths. 
See  Affidavits,  above. 
Arbitration— Affidavit  of  Arbitrators. 
These  affidavits  must  be  made  before  some  one  author- 
ized by  law  to  administer  oaths,  as  a  magistrate,  notary 
public,  clerk  of  a  court  of  record,  and  the  like.     A  mere 
arbitrator  (not  authorized  by  law)  cannot  administer  an 
oath  or  take  an  affidavit.' 

State  of , county,  ss. 

We,  the  undersigned,  and  each  of  us,  do  sever- 
ally solemnly  swear,  that  we  will  honestly  and 
irnpartially  hear  and  determine  all  the  matters  in 
difference,  of  every  name,  kind, and  nature,  exist- 
ing between  A.  B.  and  C.  D.,  which  shall  be  sub- 
mitted to  us  for  arbitration,  and  a  true  award 
make  thereon,  according  to  the  evidence, so  help 
us  God.  A.  R.,  B.  I.,  T.  R. 

Subscribed  and  sworn  to  before  me,  this 

day  of ,  A.  D. .     \Signature  0/  officer  be/ore 

•whom  siuorn  and  his  official  title.) 

Arbitration— Affirmation  of  Arbitra- 
tors. 

State  of , county,  ss. 

■We,  [the  undersigned  arbitrators],  and  each  of 
us,  do  severally,  solemnly,  sincerely,  and  truly 
declare  and  affirm,  that  we  will  honestly  and  im- 
partially hear  and  determine  all  the  matters  in 
iifference,etc.,  existing  between  A.  B.  and  C.  D., 
which  shall  be  submitted  to  us  for  arbitration, 
and  make  a  just  award  thereon,  according  to  our 
best  understanding,  and  this  we  do  under  the 
pains  and  penalties  of  perjury. 

A.  R.,  B.  I.,  T.  R.,  Arbitrators. 

Subscribed  and  affirmed  to  before  me,  this 

#ay  of ,  A.  D. . 

( Officer's  name  and  official  title.) 

t-%  How   Pr.  318;  I  N   y.  J-eg.  Obs.  189. 


Arbitration— Affidavit  of  Witness. 

State  of , county,  ss. 

I  do  solemnly  swear,  that  the  testimony  I  shall 
give  in  the  matter  of  arbitration  between  A.  B. 
andC.  D.,  submitted  to  A.  R.,B.  I.,andT.  R.,  arbi- 
trators, shall  be  the  truth,  the  whole  truth,  and 
nothing  but  the  truth,  so  help  me  God.      W.  S. 

Subscribed   and  sworn  to  before  me,  this 

day  of ,  A.  D. . 

(  Officer's  name  and  official  title.) 

Arbitration — Affirmation  of  Witness. 

State  of , county,  ss. 

I  do  (or  we,  and  each  of  us,  do  severally)  solemnly, 
sincerely,  and  truly  declare  and  affirm,  that  the 
testimony  I  ( or  we)'shall  give,  in  the  matter  of  a.v 
bitration  between  A.  B.  and  C.  D.,  submitted  to 
A.  R.,  B.  I.,  and  T.  R.,  arbitrators,  shall  be  tl.e 
truth,  the  whole  truth,  and  nothing  but  the  truth, 
and  this  I  {or  we)  do  under  the  pains  and  pen- 
alties of  perjury. 

(Signed)        W.  S.,  (or  W.  T.,  N.  S.,  etc.) 

Subscribed  and  affirmed  to  before  me,  this 

day  of ,  A.  D. .      (Name  and  official  title.) 

Arbitration— Appointment  of  Arbitra- 
tors. 

See  Submission  Agreement,  above. 
Arbitration— Continuance   Agreement. 

We  hereby  agree  that  the  time  for  making  the 
award  in  the  matters  referred  by  the  within  (or 
annexed)  submission  shall  be  extended  unto  the 
day  of .  (Signed)        A.  B. 

Witness,  A.  R.,B.  I.,T.  R.  CD. 

Arbitration— Re  vocation  of  Powers. 

A  seal  is  only  necessary  to  the  revocation  if  the  sub- 
mission be  under  seal." 

A.  R.,B.  I.,andT.  R. 

Gentlemen — I  hereby  revoke  your  powers  as 
arbitrators  under  the  agreement  of  submission 
(or  bond)  entered  into  between  A.  B.  and  (myself, 
or)  C.  D. ,  on  the day  of last.  D.  C. 

Dated  this day  of . 

Arbitration— Revocation  Notice. 

A.  B. :  Dear  Sir — I  have  this  day  revoked  the 
powers  of  A.  R.,  B.  I.,  and  T.  R.,  as  arbitrators 
under  the  agreement  of  submission  (or  bond),  en- 
tered into  between  us  on  the day  of last, 

by  an  instrument  of  which  the  annexed  is  a  copy. 

Dated  this day  of .  C.  D. 

Arbitration — Award,  General  Form. 

By  a  single  Arbitrator. 

Know  all  men  by  these  presents  : 

That  by  agreement  (or  bond )  bearing  date  the 

day  of ,  the  matters  in  difference,  etc. ,  between 

A.  B.  and  C.  D.  were  by  them  submitted  to  the 
consideration  of  the  undersigned  arbitrator,  to 
hear,  determine,  and  award  concerning  the  same. 

That  by  virtue  of  said  agreement  (or  bond ),  and 
after  hearing  the  allegations  and  proofs  of  said 
parties,  and  examining  the  subjects  in  contro- 
versy between  them,  1  do  award,  determine,  and 
order  as  follows : 

That,  etc.  (setting  out  ike  matters  and  things 
atuarded,  determined  and  ordered,  iy  Jollo^ving  the 
submission,  determining  all  the  tnatters  submitted, 
and  stating  the  aiuard,  determination,  and  orders  in 
such  a  manner  as  to  leave  no  doubt  of  the  arbitrators' 
intention,  or  the  nature  and  extent  of  the  duties  im- 
posed on  th  e  pa  rties ) . 

Witness  my  hand,  this day  of ,  A.  D. 

.  A.  'R.,  Arbitrator. 

Arbitration— Award,  General  Form. 

By  two  or  more  Arbitrators. 

Know  all  men  by  these  presents,  that  "wt,  th-* 
undersigned,  arbitrators  of  all  the  matters  in  dif- 
ference, of  every  name,  kind,  and  nature,  between 
A.  B.  and  C.  D.,  by  virtue  of  their  agreement  of 

submission  of  said   matters,  dated  at ,  on  the 

day  of ,  A.  D. ,  do  award,  order,  judge 

and  determine  of  and  concerning  the  same,  as 
follows  : 

That,  etc.  (here  state  the  nivard,  consonantly  with 
and  folloiuing  the  submission,  so  that  it  affects  only 
the  parties  to  the  award,  the  matters  submitted,  tuith 
clearness,  certainty,  and  without  mista-kt  or  dombt.) 

fl-8  Johns.  I2J. 


70 


AGENCY. 


In  witness  whereof,  we  have,  in  each  other's 

presence,  hereunto  set  our  hands,  this day 

of ,  A.  D. .  A.R.,B.  I.,T.R. 

Arbitration— Award,  General  Form. 

By  three,  or  tnore,  or  less  Arbitrators. 

To  all  to  whom  these  presents  shall  come, 
know  ye : 

That  we,  A.  R.,  B.  I.,  and  T.  R.,  arbitrators,  to 
wrhom  was  submitted  the  matters  in  controversy 
existing  between  A.  B.  and  C.  D.,  as  by  agree- 
ment {or  bond  of  submission)  bearing  date  this  

ilay  of ,  more  fully  appears. 

That  we,  the  said  arbitrators,  being  first  duly 
^orn,  heard  the  allegations  and  proofs  and  alle- 
gations of  parties,  and  examined  the  matters  in 
controversy  submitted,  do  make  the  following 
award  and  determination  : 

That,  etc.,  {here  set  out  the  matters  awarded  and 
determined). 

In  Vkritness  whereof,  we  have  hereunto  sub- 
scribed these  presents,  this day  of ,  A.  D. 

.  A.  R.,  B.  I.,  T.  R.,  Arbitrators. 

Arbitration— Award.  Oeneral  Form. 
By  three,  or  more,  or  less  Arbitrators. 

To  all  to  whom  these  presents  shall  come,  or 
may  concern,  know  ye : 

That  the  matters  in  controversy  existing  be- 
tween A.  B.,  of ,  and  C.  D.,  of ,  as  by  the 

conditions  of  their  respective  bonds  of  submis- 
sion executed  by  said  parties  respectively,  each 
to  the  other  (or  by  their  submission  in  writing),  bear- 
ing date  the day  of ,  more  fully  appears, 

>vas  submitted  to  A.  R.,  B.  I.,  and  T.  R.,  as  arbi- 
trators. 

That  said  arbitrators  being  sworn  {or  affirmed) 
according  to  law,  and  having  heard  the  proofs 
and  allegations  of  the  parties,  and  examined  the 
matters  in  controversy  by  them  submitted,  do 
make  this,  their  award,  in  writing : 

That,  etc.  (setting  out  the  matters  awarded  and\ 
adjudged). 

In  v^ritness  whereof,  we  have  hereunto  sub- 
scribed our  names,  this  day  of ,  A.  D. 

.  A.  R.,  B.  I.,  T.  R.,  Arbitrators. 

Arbitration— Award,  General  Form. 

By  three,  etc. — Another  form. 

To  all  to  whom  these  presents  shall  come,  %ve, 
A.  R.,  B.  I.,  and  T.  R.,  send  greeting: 

Whereas,  divers  suits  and  controversies  have 

been  and  are  yet  pending  between  A.  B.,  of , 

and  C.  D.,of ,  for  the  determination  of  which 

said  A.  B.  and  C.  D.  have  submitted  themselves, 
and  become   bound   each  to   the  other,  by  their 

several  obligations,  dated  the day  of ,  in 

the  sum  of dollars,  with  conditions  therein, 

to  abide  by,  support,  and  keep  the  award,  deter- 
mination, anS  judgment  of  said  A.  R.,  B.  I.,  and 
T.  R.,  arbitrators,  indifferently  chosen,  as  well 
on  the  part  and  behalf  of  said  A.  B.  as  on  the 
part  and  behalf  of  said  C.  D.,  to  award,  deter- 
mine, and  judge  of  and  concerning  all  and  all 
manner  of  actions,  controversies,  and  demands 
whatsoever  pending  between  said  A.  B.  and  C. 
D.,  from  the  beginning  of  the  world  until  the  day 
and  date  of  these  presents  (or  of  said  obligations), 
and  that  said  award,  determination,  and  judg- 
ment should  be  in  writing,  under  our  hands  (and 

seals),  on  or  before  the day  of ,  as  by  said 

obligations  and  conditions  more  fully  appears. 

Therefore,  know  ye : 

That  we, the  said  A.  R.,  B.  I.,  and  T.  R.,  taking 
upon  us  the  charge  of  said  arbitrament  and 
award,  being  duly  s^vorn,  and  having  deliber- 
ately and  at  large  heard  and  considered  the 
allegations  of  both  parties  and  writnesses,  con- 
cerning said  premises,  do  make  and  put  in 
v^riting  our  award,  determination,  and  judgment 
between  said  parties  concerning  said  premises, 
in  the  manner  and  form  following,  to  wit: 

That,  etc.  (setting  forth  the  matters  and  things 
awarded,  determined,  and  adjudged). 

In  %vitness,  etc. 

A.  R.,  B.  I.,  T.  R.,  Arbitrators. 

Arbitration— Award.  General  Form. 
By  indorsement  on  the  submission. 

We,  A.  R.,  B.  I.,  and  T.  R.,  the  within-named 
arbitrators,  having  undertaken  the  arbitration 
■poa  aQd  concerning;  all  and  singular  the  masters 


and  things  therein  to  us  referred,  do  make  this, 
our  award,  in  the  manner  following,  to  wit : 

We  do  award,  determine,  adjudge,  and  order 

That,  etc.  (setting forth  the  matters  and  tiling 
awarded,  determined,  etc.) 

In  v^^itness.  etc. 

Arbitration- Award  by  Umpire. 

>Vhereas,  A.  B.,  of ,  of  the  one  part,  and  C. 

D.,of — r-i  of  the  other  part,  have  mutually  ert 
tered  into  bonds  to  each  other,  bearing  date  the 

day  of ,  in  the  penal  sum  of dollars, 

conditioned  that  said  parties  shall  well  and  truly 
abide  and  perform  the  award  and  determination 
of  A.  R. ,  B.  I. ,  and  T.  R. ,  arbitrators,  indifferently 
chosen  by  said  parties,  of  and  concerning  all 
manner  of  actions,  controversies,  etc.,  pending 
between  said  parties,  said  a%vard  to  be  made  on 

or  before  the day  of ,  with  the  condition 

that  if  said  arbitrators  should  not  make  such 
award  by  the  time  so  agreed  upon,  then  said  par- 
ties should  in  all  things  well  and  truly  abide,  per- 
form and  keep  the  award,  determination,  and 
umpirage  of  such  person  as  should  thereafter  be 
chosen  umpire  by  said  arbitrators  between  said 
parties  of  and  concerning  said  differences,  said 
umpire  to  make  his  award  or  umpirage  on  or  be- 
fore the day  of . 

And  whereas,  said  A.  R.,  B.  I.,  and  T.  R.,  met 
upon  said  arbitration,  and  did  not  make  their 
award  between  said  parties  within  the  time 
limited  therefor,  and  did  thereupon  choose  the 
undersigned  U.  R.  umpire,  as  agreed  in  the 
premises  ;  therefore,  know  ye  : 

That  said  U.  R., having  undertaken  the  arbitra- 
tion aforesaid,  being  duly  sworn,  having  heard 
the  allegations  and  proofs  of  parties,  and  ex- 
amined as  vi^ell  the  said  parties  as  their  respective 
witnesses,  concerning  said  actions,  controversies, 
etc.,  and  fully  considered  the  same  and  the  mat- 
ters to  me  referred,  do  make  this,  my  award  and 
umpirage,  in  the  manner  following  : 

I  do  award,  adjudge  and  order 

That,  etc.  (setting  forth  the  matters  and  things 
awarded,  etc.) 

In  witness  whereof,  I  have  hereunto  set  my 

hand,  this day  of ,  A.  D. . 

U.  R.,  Umpire. 
Arbitration— Award  by  Umpire. 
Another  form. 

Know  all  men  by  these  presents 

That,  >  reciting  the  conditions  of  the  agreement  of 
sul'iin.-;  :on,  vr  arbitration  bond  ). 

That  said  arbitrators  did  not  make  any  award 
in  the  premises  within  the  time  for  that  purpose 
limited  as  aforesaid. 

That  by  a  writing  under  their  hands,  dated  the 

day  of ,  said  arbitrators  did  agree  that  I, 

the  undersigned,  U.  R.,  should  be  the  umpire  in 
and  concerning  said  matters  of  difference. 

Now  know  ye  : 

That,  etc.  i  setting  forth  the  tnatiers  and  things 
awarded  and  determined,  etc.) 

Clauses  to  be   inserted  in   the  preceding  forms, 
according  to  circumstances. 
Concerning  Assignment. 

That  said  C.  D.  shall  make,  execute  and  deliver 
to  said  A.  B.  a  good  and  sufBcient  assignment  of 
a  certain  bond  and  mortgage  executed  and  deliv- 
ered to  said  C.  D.  by  one  E.  F.,  on  or  before  the 
day  of ,  and  that  said  A.  B.  shall  pay  said 

C.  D.  the  sum  of dollars  therefore,  upon  the 

execution  and  delivery  of  the  same. 

Concerning  Bond. 

That  said  A.  B.  shall,  on  or  before  the day 

of ,  well  and  sufficiently  make,  execute  and 

deliver,  a  bond  or  obligation  in  the  penal  sum  of 

dollars,  conditioned  for  the  payment  of 

dollars  to  C.  D.,  or  his  assigns,  on  or  before  the 

day  of ,  etc.  (or  for  the  performance  of,  etc., 

stating  what). 

Concerning  Conveyance. 

That  the  within-named  A.  B.  shall,  on  or  before 
the day  of ,  by  such  deed  or  deeds    s  said  C. 

D.  (his  heirs,  or  assigns,  or  coun.sel)  shall  advrise,  well 
and  sufficiently  grant,  convey,  and  assure  unto 
said  C.  D.,  his  heirs  and  assigns  forever,  the  fol- 
lowing described  real  estate,  situated  in  the  State 
of ,  county  of ,  t9  wit  (fietcrU'''"- •'*'>, 


AGENCY. 


7« 


That  said  C.  D.,  in  consideration  thereof,  and 
upon  the  execution  of  said  conveyance  or  con- 
veyances, shall    pay    or  cause  to   be  paid  unto 

said  A.   B.  (his  heirs  or  assigns)   the  sum   of  

dollars.  And  shall,  if  required,  give  security,  by 
bonds  or  mortgages,  for  the  payment  of dol- 
lars, in instalments,  payable  on  the days 

of,  etc. 

Concerning  Costs. 

That  dollars,  the  costs,  charges,  and  ex- 
penses of  this  arbitration,  be  paid  by  A.  B.  ioi 
C.  D.) 

Another. 

■  That  dollars,  the  costs,  charges  and   ex- 

|Knses  of  this  arbitration   and  its  incidents,  be 

paid   as  follows:   dollars  by  A.  B.,  and  

dollars  by  C.  O. 

Concerning  Damages. 

That  said  A.  B.  sold  unto  said  C.  D.  the  follow- 
ing articles  {descril>ing  them),  representing  them 
to  De  in  good,  merchantable  and  sound  condition, 
and  in  these  and  every  other  respect  warranting 
them. 

That  said  articles  wrere  neither  good,  merchant- 
able, or  sound,  and  were  and  are  worth  only 

dollars. 

That  said  A.  B.  shall  repay  said  C.  D. dol- 
lars, the  difference  in  price  ;  dollars,  for  care 

and  custody  of  said  property;   and dollars, 

cartage  of  the  same,  and  dollars,  for  costs 

and  expenses  of  this  arbitration. 
Concerning  a  Debt. 

That  A.  B.  is  entitled  to  the  sum  of dollars, 

>vith  interest,  at  the  rate  of per  cent,  per  an- 
num, from  the day  of . 

Or, 

That  said  C.  D.  shall  pay  the  said  A.  B. ,  on  or  be- 
fore the day  of ,  the  sum  of dollars,with 

interest,  at  the  rate  of per  cent,  per  annum, 

from  the day  of until  the  payment  thereof. 

Another. 

That  said  A.  B.  has  no  cause  of  action  against 
■aid  C.  D. 

Concerning  Delivery  of  Goods. 

That  said  C.  D.  shall,  on  demand  (on  or  before 

the  day  of at  ),  freely  deliver  up  to 

said  A.  B.  the  foUovt^ing  goods  {describing  them  so 

t/iat  a  stranger  may  easily  designate  them),  the  prop- 

ertyof  said  A.  B.  {or  the  property  of  D.  D.,  deceased). 

Concerning  Delivery  of  Writings. 

That  said  A.  B.  shall  (on  demand  of  C.  D.,  or  his 

legal  representative;  or  on  or  before  the  day  of 

at ;  or  upon days'  notice)  deliver  unto 

said  C.  D.  (or  his  legal  representative)  the  following 
^vri tings  {describing  them  \. 
Or, 

All  leases,  deeds,  mortgages,  and  instruments 
of  writing  whatsoever,  concerning  any  and  all  es- 
tates in  possession  of  said  C.  D.,  or  of  any  other 
person  in  trust  for  him,  and  especially  the  lease  of 
{describe  premises). 

Same — For  Gancellation. 

That  said  A.  B.  shall  forthwith,  or  before  the 

day  of ,  at ,  deliver  unto  said  C.  D.  the 

following  described  writings,  cancelled,  or  to  be 
cancelled  on  delivery,  to  wit  {describing  them). 
Cdnckuninc  Discontinuance  of  Action. 

That  said  A.  B.,  or  his  legal  representatives, 

shall,  on  or  before  the day  of ,  cause  and 

procure  all  actions  and  suits  commenced  and 
pending  against  said  C.  D.,  in  any  and  all  courts 
whatsoever,  by  or  in  the  name  of  said  A.  B.,  or 
i;i  the  name  of  any  other  person  or  persons,  by 
the  consent,  means  and  procurement  of  said  A. 
B.,  thenceforth  to  cease,  and  be  no  further  pro- 
ceeded in  by  him  or  them,  and  to  be  utterly  dis- 
continued and  made  void. 

That  the  costs  accrued  and  to  accrue  of  said 
actions,  suits,  and  discontinuance,  shall  be  paid 

by  said . 

Concerning  Horse  Trade. 

That  said  A.  B.  did,  on  the day  of ,  at 

,  sell  unto  said  C.  D.  a  horse,  answering  the 

following  description  {describe  the  horse  by  age, 
color,  sex,  size,  etc). 

That  said  C.  D.  ^vas  to  pay  said  A.  B.  therefore 

dollars,  upon  the  delivery  of  said  hQrse(orun 

|l!C •  day  of ), 


That  said  A.  B.  shall,  upon  the  payment  of  said 
sum,  deliver  said  horse  to  C.  D.  (allowing  said  C. 

D.  the  sum  of dollars,  to  be  deducted  therefrom  fw 

•  1  linage  for  non-delivery  and  use  of  said  horse). 
Concerning  Interest. 

That  said  C.  D.  shall  pay  unto  said  A.  B.  inter- 
est on  the  sum  of dollars  aforesaid,  at  the 

rate  of per  cent,  from  the day  of unto 

the day  of {or  until  full  payment  thereof). 

Concerning  Mining  Claim. 

That  said  C.  D.  is  entitled  to,  and  shall  have  set 
apart  to  his  own  use,  the  following  described 
mining  claim  {describing  it). 

That  in  consideration  thereof  said  C.  D.  shaH 
{state  what). 

CoNCERNiNc;  Payment. 

That  said  A.  B.  shall  (on  tiemand  ;  or  on  or  before 

the day  of ,  at ;  or  u  itliin clays  froai 

the  date  hereof)  pay,  or  cause  to  be  paid,  to  said  C. 
D.  the  sum  of dollars,  in  full  discharge,  pay- 
ment, release,  and  satisfaction  of  and  for  all 
claims,  debts,  demands  and  moneys  whatsoever, 
due  or  owing  from  him  unto  said  C.  D.  at  any 
and  all  times  prior  to  the  date  of  said  submission. 
Same — Bond  For. 

That  said   A.  B.,  upon  days'  notice,  shall 

well  and  sufficiently  make,  execute  and  deliver 
to  said  C.  D.,  a  bond  or  obligation,  in  the  penal 

sum  of dollars,  condition  for  the  payment  of 

said  sum  of dollars,  to  C.  D.,  his  heirs,  or  as- 
signs, on  or  before . 

Concerning  Payment  of  Costs. 
See  Costs,  above. 

That  the  sum  of dollars,  being  the  expenses 

and  charges  incident  to  this  arbitration,  shall  be; 
paid  by  them,  the  said  A.  B.  and  C.  D.,  in  equal 
amounts  and  shares. 

Same. 
That  said  C.  D. ,  his  executors  or  administrators, 
shall,  between  the  hours  of — A.  M.and  —  P.  M.,at 

,  pay  unto  said  A.  B.  the  sum  of dollars, 

in  full  satisfaction  for  his  damages  and  costs,  in 
a  certain  action  lately  commenced  by  him  against 
said  A.  B.,  and  also  for  the  costs  occasioned  by 
this  reference. 

Concerning  Performance. 

That  said  A.  B.  shall  {state  the  particular  things 
required  to  be  done  by  A.  B.) 

That  said  C.  D.  shall  {state  the  particular  things 
required  to  be  done  by  C.  D. ) 

Concerning  Release. 

That  all  controversies  shall  cease  between  said 
parties,  and  that  each  of  them  shall,  on  or  be- 
fore the  day  of  ,  duly  execute  and  de- 
liver to  the  other  a  general  release,  in  writing,  of 
all  actions,  suits,  demands,  and  obligations  what- 
soever existing  at  or  prior  to  the  date  of  said  sub- 
mission. 

Same. 

That  said  A.  B.  shall,  on  or  before  the day  of 

,  as  his  act  and  deed, duly  execute  and  deliver 

unto  said  C.  D.  a  general  release,  in  writing,  of 
all  manner  of  actions,  suits,  controversies  and 
demands  whatsoever,  from  the  beginning  of  the 
world  unto  the  day  and  date  of  said  submission. 

Arbifrafioii— Award,  Service  of. 

Proven  by  affidavit  of  person  sen/ing. 

State  of , county. 

W.  S.,  being  duly  sworn,  says : 

That,  on  the  day  of ,  at  —  o'clock,  — 

M.,  at ,  in ,  he  served  the  award  (of  which 

the  within  is  a  true  copy  or  counterpart)  by  delivering 
the  same  unto  the  within-named  A.  B.  and  C.  D. 
[Signature  of  affiant.) 

Subscribed  and  sworn  to  before  me,  this day 

of ,  A.  D. .  J.  P.,  Justice  of  the  Peace. 

Arbitration— Award,  Verification. 

By  Subscribing  or  other  Witness. 

State  of , county,  ss. 

W.  S.,  being  duly  sworn,  says  : 

That  he  knows  A.  R.,  B.  I.,  and  T.  R.,  the  arbi- 
trators named  in  the  annexed  award. 

That,  on  the  day  of ,  at  ,  he  was 

present  and  saw  them  {or  that  he  heard  them  each 
declare  that  they  did  severally)  «ign  and  publish  the 
sam^  as  their  final  award,  determinatipn,  an^ 


7a 


AGENCY 


judgment  of  the  matters  and  things  in  contro- 
versy submitted  them, between  A.  B.,of ,  and 

C.  D.,of . 

That  the  names  of  said  A.  R.,  B.  I.,  and  T.  R. 
are  the  actual  and  genuine  signatures  of  said  ar- 
bitrators. (Stgyteci)  W.  S. 

Subscribed  and  sworn  to  before  me  this day 

of .  ( Officer^ s  signature  and  official  title. ) 

Same — By  Arbitrators. 

State  of , county,  ss. 

A.  R.,  B.  I.,  and  T.  R.,  being  duly  sworn,  say: 

That  they  are  the  arbitrators  named  in  the  an- 
nexed award. 

That,  on  the day  of ,  at ,  as  such  ar- 
bitrators, they  did  sign  and  publish  the  same  as 
their  final  award,  determination  and  judgment 
of  the  matters  and  things  in  controversy,  sub- 
mitted them  by  A.  B.,  of ,  and  C.  D.,of . 

A.  R.,  B.  I.,  T.  R.,  Arbitrators. 

Subscribed  and  sworn  to,  etc. 

{Officer's  signature  and  title.) 

Attorneys  are  those  who  act  for  others  by 
virtue  of  appointment.  They  are  of  various 
kinds. 

An  attorney  in  fact  is  a  person  to  whom 
the  authority  of  another,  who  is  called  the 
CONSTITUENT,  is  by  him  lawfully  delegated. 

The  term,  "  attorneys  in  fact,"  is  employed 
to  designate  persons  who  act  under  a  special 
agency,  or  a  special  letter  of  attorney,  so  that 
they  are  appointed  in  the  matter  for  the  deed  or 
special  act  to  be  performed ;  but,  in  a  more 
extended  sense,  it  includes  all  other  agents  em- 
ployed in  any  business,  or  to  do  any  act,  or 
acts,  in  and  about  the  same,  for  another.* 

All  persons  who  are  capable  of  acting  for 
themselves,  and  even  those  who  are  disquali- 
fied from  acting  in  their  own  capacity,  if  they 
have  sufficient  understanding,  as,  infants  of  a 
proper  age,  may  act  as  attorneys  for  others.'' 

A  Letter  or  Power  of  Attorney  is  an  in- 
strument of  writing  by  which  one  or  more  per- 
sons (called  principals  or  constituents)  authorize 
one  or  more  other  persons  (called  the  attorneys) 
to  do  some  lawful  act  for,  in  the  stead,  and 
place  of  the  former."  An  instrument  of  writing 
aathorizing  a  person  to  act  as  the  agent  or  attor- 
ney of  the  person  granting  it.  This  instrument 
ill  more  generaly  called  a  power  of  attorney. 

A  general  power  authorizes  the  agent  to  act 
generally  in  behalf  of  the  principal. 

A  special  (or  limited)  power  is  one  limited 
to  particular  acts. 

A  power  of  attorney  may  be  parol  or  under 
seal.* 

It  is  a  general  rule  that  one  acting  under  a 
power  of  attorney  cannot  execute  for  his  princi- 
pal a  sealed  instrument,  unless  the  power  of 
attorney  be  sealed.*  And  where  the  statute 
prescribes  certain  formalities,  and  makes  them 
requisite  for  the  execution  of  an  instrument,  a 
power  to  make  that  instrument  must,  in  gen- 
eral, be  itself  executed  with  similar  formalities.' 

a-Bac.  Abr.  Attorney:  Story  Ag.  ?  25.  b-Co.  Litt. 
52,*;  X  Esp.  142;  2  Id.  511.  c-i  Mood.  Cr.  Cas.  52- 
70.  d-i  Parsons' Contr.  94.  e-jT.  R.  209  ;  2  B.  &  P. 
338  ;  5  B.  &  C.  T,5  ;  2  Green!.  258  ;  4  T.  R.  313  ;  i  Chitty, 
707;  7M.  &  \V.  322,331;  5  Mass.  u-24 ;  19  Johns. 
60;  3  Pick.  345  ;  7  Cranch.299;  30  Vt.  159;  4  Wash. 
C.  C.  471;  9  Johns.  285;  16  Ga.  424;  i  Hall.  262;  11 
Pick.  400;  26  Vt.  156;  7  M.  &  W.  331,  332-334;  2  G. 
Greene,  427;  6  G.  &  J.  250;  5  Bing.  368;  12  Wend. 
j«5-  9  Id.  68;  1,  II  HI.  544;   7  Met.  244;  3  Me.  358. 


But,  as  oral  or  written  powers  are  equally  parol, 
one  by  oral  authority  may  sign  the  name  of  his 
principal  without  a  seal  thereto ;  and  so  he  may 
be  authorized  orally  to  bind  his  principal  by 
written  contract,  when  the  statute  of  frauds 
requires  a  writing  signed  by  the  parties  sought 
to  be  charged,  as  the  foundation  of  an  ac- 
tion.* 

Powers  of  attorney  are  strictly  construed. '■ 
General  terms  used  with  reference  to  a  particu- 
lar subject-matter  are  presumed  to  be  used  in 
subordination  to  that  matter.' 

Where  a  power  is  special,  and  the  authority 
limited,  the  attorney  cannot  bind  his  principal 
by  any  act  in  which  he  exceeds  his  authority. 
The  authority  of  an  attorney  is  to  be  strictly 
construed  ;  though  it  is  to  be  taken  to  include 
all  necessary  means  of  executing  it  with  effect. 
Hence  a  party  dealing  with  an  attorney  under 
a  power  of  attorney  of  another,  should  look  to 
the  terms  of  the  power  to  see  that  the  authority 
given  is  sufficiently  broad. 

If  a  power  prescribes  any  condition  in  its 
execution,  it  must  be  strictly  pursued. 

Where  a  power  is  vested  in  several  persons 
jointly,  all  should  unite  in  executing  it. 

An  attorney  acting  under  a  power  cannot 
delegate  his  authority  or  appoint  a  substitute,  un- 
less the  power  expressly  gives  authority  to  do  so. 

A  revocation  of  a  power  takes  effisct,  as  to 
an  agent,  from  the  time  it  is  communicated  to 
him;  as  to  third  persons,  from  the  time  it  is 
communicated  to  them. 

An  attorney  in  a  simple  power  of  attorney 
must  act  only  in  the  name  of  his  principal ;  in 
signing,  should  sign  his  principal's  name, 
adding  his  own,  thus :  A.  B.,  by  C.  D.,  his 
attorney. 

It  is  only  necessary  to  have  a  power  of  attorney 
and  the  substitution  acknowledged,  when  the 
power  given  is  to  convey,  or  otherwise  affect 
or  encumber  any  land,  tenement,  or  heredita- 
ment. In  such  case  the  acknowledgment  and 
filing  for  record  is  the  same  as  a  deed  or 
mortgage. 

POWERS  OF  ATTORNEY  FORMS. 

The  general  elements  of  a  power  of  attorney  are  : 

1.  The  names  of  the  principal  or  principals  (constitu- 
ents) and  of  the  attorney  or  attorneys,  and  words  of 
appointment. 

2.  The  nature  and  description  of  the  duty  imposed, 
and  the  particular  mode  of  performance. 

3.  The  character  of  the  power  -imposed,  whether 
general  or  limited  (with  conditions,  limitations,  restric- 
tions, etc.,  if  any). 

4.  The  power  of  substitution  and  revocation. 

5.  The  ratification  or  confirmation. 

6.  The  signature  of  the  principal  or  principals. 

7.  The  proper  attestation  and  acknowledgment,  when 
required  by  law  (as,  in  case  the  power  is  to  convey  or 
encumber  real  estate). 

8.  The  recording,  when  required  by  law  (as,  in  case 
the  power  is  to  convey  or  encumber  real  estate). 

f-io  Foster  (N.  H.)  420;  6  Wheat.  577.  |f-8  Pick.  9; 
9  Ves.  234;  I  Sch.  &  L.  22;  4  Johns.  Ch.  659:  5  Btng. 
N.  C.  607.  h-6  Gush.  117;  5  Wheat.  326;  3  M.  &W. 
402  ;  8  Id.  806;  s  Bingh.  442.  l-i  Taunt.  349;  7  B.  & 
C.  278  :  1  Younge  &  C.  394  ;  7  M.  &  W.  595  ;  5  Denio, 
49  ;  7  Gray,  287 ;  see,  as  to  a  power  to  collect  a  debt,  i 
Biackf.  252  :  to  settle  a  claim,  5  M,  &  W.  645  :  8  Biackf 
291  ;  to  make  an  adjustment  of  all  claims,  8  Wend.  494  ; 
7  Watts.  716;  14  Gal.  399;  7  Ala. (N,  S.)  800:  toacceix 
biUs,  7  B.  &  C.  278. 


AGENCY. 


73 


Power  of  Attorney— Oeneral  Form. 

Simple  and  short  form. 

Know  all  men  by  these  presents : 

That  I,  the  undersigned,  of  ,  do  hereby 

make,  constitute,  and  appoint  E.  F.,  of ,  my 

true  and  lawful  attorney,  for  me,  and  in  my  name 

and  stead  to  ( here  insert  the  subject-matter  of 

the  power),  to  do  and  perform  all  the  necessary  acts 
in  the  execution  and  prosecution  of  the  aforesaid 
business,  and  in  as  full  and  ample  a  manner  as  I 
might  do  if  I  were  personally  present.       A.  B. 

\F.jcecuted  in  presence  of\ 

For  form  of  "Acknowledgment,"  see  that  title. 

Fower  of  Attorney— General  Form. 
Short,  -uuith  povjer  to  revoke  and  substitute. 

Know  all  men  by  these  presents : 

That  I  {name  of  principal),  do  by  these  presents 
appoint,  constitute,  and  make  (name  of  attorney) 
my  la^vful  and  true  attorney,  for  me,  and  in  my 
name,  place,  and  stead to  {state  what). 

That  I  do  by  these  presents  grant  and  give  unto 
my  said  attorney  full  authority  and  power  to  do 
and  perform  all  and  every  act  and  thing  whatso- 
ever necessary  and  requisite  to  be  done  in  and 
about  the  premises,  as  I  might  or  could  do,  if 
personally  present,  with  full  power  of  substitu- 
tion and  revocation,  hereby  confirming  and  rati- 
fying all  that  my  said  attorney  shall  lawfully  do 
or  cause  to  be  done  by  virtue  hereof. 

In  testimony,  etc.  {as  in  the  above  forms). 

For  form  of  "Acknowledgment,"  see  that  title. 

Power  of  Attorney — Oeneral  Form. 

Know  all  men  by  these  presents: 

That  I ,  A.  B. ,  of county,  in  the  State  of , 

have  made,  constituted,  and  appointed,  and  by 
these  presents  do  make,  constitute  and  appoint 

A.  Y.,  of county,  in  the  State  of ,  my  true 

and  lawful  attorney  in  fact,  for  me,  and  in  my 

name,  place,   and   stead,  to   {here  insert  the 

power  conferred  or  acts  to  be  performed ). 

That  I  give  unto  my  said  attorney  full  power  to 
do  everything  whatsoever  requisite  and  neces- 
sary to  be  done  in  the  premises,  as  fully  as  he 
could  if  personally  present,  with  full  power  of 
substitution  and  revocation,  hereby  ratifying  and 
confirming  all  that  my  said  attorney  shall  law- 
fully do,  or  cause  to  be  done,  by  virtue  hereof. 

In  w^itness  whereof,  I  have  hereunto  set,  etc. 
Jf  the  power  be  to  comiey,  encumber,  or  otherwise 
dffect  real  estate,  then  this  clause  should  be  the  same 
as  in  the  conveyance  of  the  real  property,  which  see. ) 

For  form  of  "Acknowledgment,"  see  that  title. 

Power  of  Attorney— General  Form. 

Kno\v  all  men  by  these  presents : 

That  I  {name  of  principal),  of {place  of  resi- 
dence of  the  principal),  have  by  these  presents  con- 
stituted, made,  and  ordained,  and  in  my  place  and 

stead  substituted {name  of  attorney),  to  be  my 

lawful,  sufficient,  and  true  attorney,  for  me,  and 

in  my  name,  place,  and  stead to  {set  forth  the 

purpose  or  purposes  for  ivhich  the  fioiver  is  given). 

That  I  hereby  grant  unto  my  said  attorney  full 
authority  and  povt^er  in  and  about  said  premises  : 
and  to  use  all  due  course,  means,  and  process  of 
laxv  for  the  complete,  effectual,  and  full  execution 
of  the  business  above  described ;  and  for  said 
premises  to  appear  and  me  represent  before  any 
governors,  judges,  justices,  and  ministers  of  law 
■whomsoever,  in  anycourt  or  courts  of  judicature, 
and  there,  on  my  behalf,  defend  and  prosecute  all 
actions,  causes,  matters  and  things  vt^hatsoever 
relating  to  the  premises;  and  in  all  said  premises 
make  and  execute  all  due  acquittances,  dis- 
charges, and  releases. 

That  said  attorney  shall  have  full  authority  and 
poTver  to  accomplish,  act,  determine,  do,  finish, 
and  transact  all  matters  and  things  whatsoever 
relating  to  the  premises,  as  amply,  effectually,  and 
fully,  to  all  intents  and  purposes  as  I,  his  said 
constituent  and  principal,  if  present,  inight  or 
ought,  although  said  matters  and  things  should 
require  more  special  authority  than  is  herein 
comprised  and  included. 

That  I  hereby  allow,  ratify,  and  hold  firm  and 
yaUd  all  matters  and  things  whatsoever  my  said 
attorney  or  his  substitutes  shall  lawfully  do  or 
cause  to  be  done  in  and  about  said  premises,  by 
rlrtue  of  these  presents, 


In  testimony  'whereof,  I  have  hereunto  set,  etc. 

{If  the  power  is  to  convey,  encumber,  or  othtr-wist 
ciffect  real  estate  this  clause  [which  includes  the  signa- 
ture and  seal  of  grantor,  or  principal,  witnesses,  etc., 
etc.]  should  be  the  satne  in  all  essential  respects  as  that 
of  the  deed,  mortgage,  etc.) 

For  form  of  "Acknowledgment,"  see  that  title. 

Power  of  Attorney— General  Form. 

To  several,  jointly. 

Know  all  men  by  these  presents: 

That    I,  A.  B.,  of  ,  do  by  these  presents 

make,  constitute,  and  appoint  A.  T.,  O.  R.,  and 
N.  Y.,  jointly,  my  true  and  lawful  attorneys,  for 

me,  and  in  my  name,  place,  and  stead  to 

{stating  the  purpose  of  the  appointment). 

Power  of  Attorney— General  Form. 

To  several,  to  act  jointly  or  separately. 
Know  all  men  by  these  presents  : 

That  I,  A.  B. ,  (of  the  city  of ,  county  of , 

and  State  of ),  do  by  these  presents  make,  con- 
stitute, and  appoint  A.  T.,T.  O.,  R.  N.,and  N.  Y., 
jointly,  and  each  of  them  severally,  my  true  and 
lawful  attorney  and  attorneys,  for  me,  and  in  my 

name,  place,  and  stead  to  {state  the  purpose 

for  which  the  appointment  is  made). 

Power  of  Attorney — General  Form. 
To  two  persons— joint  and  several — in   case  of  ab- 
sence, death,  or  refusal  of  either  or  both,  then  to 
another,  etc. 
Kno\v  all  men  by  these  presents : 

That  I  {or  we),  A.  B.,  o<^ (and  C.  D.,  of ), 

do  by  these  presents  make,  constitute,  and  ap- 
point A.  T.  and  T.  Y.  iny  {or  our)  true  and  lawful 
attorneys,  and  in  case  of  the  absence  or  death  of 
either  or  both  of  them,  or  refusal  of  either  or 
both  of  them  to  act  by  virtue  hereof,  then  we 
hereby  make,  constitute,  and  appoint  A.  A.,  alone 
or  together  with  him  of  them  the  said  A.  T.  andT. 
Y. ,  who  shall  be  living  and  present,  and  will  act  as 
myioroyxr)  attorney  or  attorneys  by  virtue  of  these 
presents,  jointly  or  either  of  them  severally,  my 

(or  our)  true  and  lawful  attorney  o/  attorneys 

to  {setting  forth  the  purpose  for  which  the  appoint- 
ment is  made). 

Power  of  Attorney— General  Form. 
To  three  persons— joint  and  several — in  case  of  ab- 
sence, death,  or  refusal  of  either  or  both,  then  of 
another  in  his  stead. 
Know  all  men  by  these  presents : 

That  I  {or  we),  A.  B.,  of (and  C.  D.,  of ), 

do  by  these  presents  make,  constitute,  and  ap- 
point A.  T.,  O.  R.,  and  N.  Y.,  my  yor  our)  true  and 
lawful  attorney  and  attorneys,  and  in  case  of  the 
absence  or  decease  of  said  O.  R.  and  N.  Y.,  or 
either  or  both  of  them,  or  refusal  of  either  or 
both  of  them  to  act  as  such,  then,  and  not  other- 
wise, I  {or  we)  inake,  constitute,  and  appoint  A. 
A.  my  {en-  our)  true  and  lawful  attorney,  together 
with  said  A.  T.,  in  case  of  the  absence  or  deatk 
of  said  O.  R.  and  N.  Y.,  or  either  of  them,  or  re- 
fusal of  either  or  both  of  them  to  act  by  virtue 
hereof;  or  together  with  said  O.  R.  and  N.  Y.  in 
case  of  absence  or  death  of  said  A.  T.,  or  his  re- 
fusal to  act  by  virtue  hereof,  as  the  case  may  be, 
jointly,  or  any  of  them  severally,  to  be  my  {or  our) 

true  and  lawful  attorney  and  attorneys  to 

{state  the  purpose  of  the  appointment). 

Power  of  Attorney —  Various  clauses  to  be  inserted  in 

the  general  forms  where  applicable. 

To  Acknowledge  Conveyances,  etc. 

to  appear  before  any  officer  authorized  by 

the  laws  of^ to  take  acknowledgments,  etc., 

and  acknowledge  a  deed  (mortgage,  or  other  in- 
strument) bearing  date  the day  of ,  which 

I,  the  said  A.  B.,  signed  (sealed,  etc.)  to  be  my  own 
proper  act  and  deed.     Hereby  ratifying,  etc. 

To  Acknowledge  Satisfaction  of  Mortgage,  etc. 

to  appear  before  the  recorder  (or  register)  of 

deeds  (or  county  clerk,  etc.)  and  acknowledge  and 
enter  satisfaction  of  the  sum  of dollars,  prin- 
cipal, and  dollars,  interest  upon  (the  margin 

of)  record  No. ,  page ,  of  a  mortgage  bear- 
ing date  the day  of ,  from  C.  D.  to  A.  B.,  > 

of  the  following  described  premises  {describing 
them).  Provided,  said  sum  of dollars,  princi- 
pal, and dQllars,  interest, be  paid  in  the  man- 


74 


AGENCY. 


ner  and  at  the  time  in  the  condition  of  said  mort- 
gage mentioned. 

To  Appoint  Appraiser,  etc. 

to  choose,  at  the  discretion  of ,  my  at- 
torney, a  disinterested  and  discreet  person,  and  a 

(freeholder  or  householder)  of county,  who  shall 

be  duly  qualified,  and  faithfully  and  impartially 
appraise,  together  with  two  such  discreet  and 
impartial  persons  (of  like  qualifications),  such  (real 

or  personal)  property  (as  shall  be  shown  them  by 

for  that  purpose,  or,  as  is  comprised  in  the  following 
schedule:  viz.  {describing it). 

To  Arbitrate  Matters,  etc. 

to  submit  any  and  all  matters  in  dispute 

elating  to  {state  what),  or  respecting  the  premises 

o  arbitration  or  otherwise,  with  full  power  to 

make  and  substitute  for  the  purposes  aforesaid, 

and  at  his  option,  one  or  more  attorneys. 

Another. 

That  said  attorney  may  submit  any  matter  in 
dispute  respecting  the  premises  to  arbitration  or 
other\vise. 

To  Accept,  Pay  for,  and  Sell  Bank  Stock. 

to  accept  all  capital  stock  in  the bank 

^vhich  I  have  already  bought  and  contracted  for, 
or  shall  hereafter  buy  or  contract  to  buy,  of  any 
person  or  persons,  upon  the  transfer  thereof  in 
the  customary  and  legal  manner,  and  thereupon 
to  pay  such  sums  of  money  or  consideration  for 
the  purchase  of  the  same  as  may  be  theretofore 
agreed  upon;  and  to  and  for  my  own  use,  sell 
and  transfer  all  or  any  of  such  stock  as  I  shall 
from  time  to  time  direct :  and  also  for  my  own 
use  to  receive  the  moneys  and  considerations 
wrhich  shall  become  due  and  payable  by  said  sales 
and  transfers,  giving  sufficient  receipts  and  re- 
leases for  the  same. 

To  Carry  on  Business  Generally. 

to  carry  on  and  conduct  the  business  of 

(state  -what),  at ,  in ,  to  buy  and  sell  {state 

lokat),  to  receive  and  sell  on  commission  {state 
what),  to  manufacture  {state  what),  and  to  k>\iy, 
sell,  manufacture,  and  receive  on  commission 
all  goods,  wares,  and  merchandise  appertain- 
ing to  such  business  as  he  may  deem  proper, 
and  to  draw,  execute,  make,  sign,  seal,  and  de- 
liver for  me,  and  in  my  name,  all  bills,  bonds, 
notes,  conveyances  and  other  instruments  of 
writing  whatsoever,  as  shall  be  necessary  to  the 
proper  conducting  of  said  business. 

Another. 
to  take  the  general  control  and  manage- 
ment of  my  affairs,  business  and  property,  at 
,  in  ,  to  buy,  sell,  pledge,  mortgage,  exe- 
cute, and  enter  into  bonds,  contracts,  convey- 
ances and  encumbrances  in  behalf  of  the  same  ; 
and  in  general  to  do  and  perform  all  other  acts 
and  things  which  he  may  consider  useful  and 
necessary,  connected  with  my  said  affairs,  busi- 
ness, property  and  interests. 

Another. 

to  take  charge  of  my  business  o. ,  at 

;  to  purchase  and  sell,  for  cash  or  on  credit, 

all  such  articles,  goods,  merchandise  and  wares 
as  he  shall  deem  proper,  necessary  and  useful' to 
said  business  ;  to  sign,  accept  and  indorse  all 
notes,  drafts  and  bills  ;  to  state  accounts  ;  to  sue 
and  prosecute,  compromise,  collect  and  settle  all 
claims  or  demands  due  or  to  become  due,  now 
existing  or  hereafter  to  exist  in  my  favor  ;  to  ad- 
just and  pay  all  claims  or  demands  which  now 
exist  or  may  hereafter  arise  against  me,  either 
connected  with  said  business  or  otherwise. 

Another. 
Knowr  all  men  by  these  presents: 
That  I,  A.  B.,  of ,  merchant,  do  hereby  con- 
stitute my  two  clerks,  C.  L.  and  R.  S.,  of ,  my 

lawful  and  sufficient  attorneys,  jointly ,  for  me,  and 
in  my  name,  to  manage  and  transact  all  business, 
open  all  letters  of  correspondence  and  to  answer 
the  same ;  to  draw,  accept,  make,  indorse,  and 
pay  all  bills  of  exchange  and  promissory  notes; 
,  to  receive  and  receipt  for  all  moneys,  to  draw  and 
sign  all  orders,  checks  and  drafts  for  money  on 

the  cashiers  of , , banks,  or  any  other 

bankers  or  persons  where  I  shall  deposit  or  keep 
money  |  to  arrange,  balance,  and  settle  all  books 


and  accounts,  and  generally  do  every  act,  mattet 
and  thing  which  the  nature  of  said  business  shall 
require.      Hereby    ratifying  whatever   my    said 
attorneys  may  lawfully  do  by  virtue  hereof. 
To  Carry  on  Commission  Business,  etc. 

to  carry  on,  conduct,  and  transact,  at ., 

in ,  the    business    of   a  general  commission 

merchant,  and  more  particularly  the  receiving 
and  selling  on  commission  all  kinds  of  dry  and 
wet  groceries,  together  with  all  and  every  goods, 
wares  and  merchandise  appertaining  to  said 
business,  as  my  said  attorney  shall  deem  proper 
and  necessary ;  to  draw,  make,  execute,  sign, 
seal,  and  deliver  for  me,  and  in  my  name,  all 
bills,  bonds,  notes,  conveyances,  or  other  instru- 
ments in  writing  whatsoever,  which  shall  be 
necessary  to  the  proper  carrying  on,  or  conducting 
and  transacting  the  business  aforesaid  ;  and  to 
do  and  perform  all  and  every  act  and  deed  in 
v^rhatsoever  name  or  nature,  legally  appertaining 
to  the  same  ;  binding  me  as  firmly  and  irrevoca- 
bly by  such  deed  or  performance  as  if  I  were 
myself  present,  thereto  consenting  ;  hereby  rati- 
fying and  confirming  all  that  my  said  attorney 
shall  lawfully  do  or  cause  to  be  done  by  virtue 
hereof. 

To  Carry  on  General  Mercantile  Concerns. 
IVith  clauses  separate. 

to  carry  on,  conduct,  manage  and  transact 

the  entire  business  concerns  included  in  i.nd  per- 
taining to  {give  the  name  and  description  o/  the  busi- 
ness) at ,  in . 

For  me,  and  in  my  name,  to  use  and  employ  all 
such  means,  rights,  remedies  and  usages  as  are 
best  calculated  for  the  safe  and  successful  prose- 
cution of  said  business,  and  to  insure  accessions, 
increase,  and  preservation  of  all  property  ;  the 
diligent  collection  and  settlement  of  indebted- 
ness, the  most  judicious  purchases  and  largest 
sales  therein,  and  for  all  and  every  other  matter 
and  thing  belonging  or  pertaining  to  said  business. 

Acceptance.  To  accept  any  bill  or  bills  of  ex- 
change, drafts  or  orders,  make  and  execute  any 
promissory  note  or  notes,  bonds,  contracts,  or 
other  instruments  of  writing,  in  my  namb  and  on 
my  account,  to  or  for  any  amount  which  he  may 
deem  expedient,  necessary  and  proper. 

Accounts.  To  adjust  and  settle  with  all  and 
every  person,  all  -accounts,  demands  and  dues 
subsisting  or  to  subsist  between  them  and  me, 
and  to  compound,  arbitrate  and  agree  to  the 
same,  in  such  manner  as  my  said  attorney  shall 
deem  best. 

Actiofts.  To  appear,  answer  and  defend ;  to 
commence,  carry  on,  and  prosecute  any  actions, 
suits  or  legal  proceedings,  for  any  cause  or  thing 
due  or  belonging,  or  to  be  demanded  to,  of,  by  or 
from  me,  concerning  any  chattels,  debts,  de- 
mands, duties,  goods,  merchandise,  or  matters 
whatsoever,  due  or  owing  to  or  by  me,  hereto- 
fore, now,  or  hereafter ;  to  discontinue,  or  become 
nonsuit  therein,  and  for  cause  to  end,  compro- 
mise, make  composition  or  agreement  in  and 
concerning  the  same  or  any  part  thereof. 

Collecting,  etc.  To  ask,  demand,  sue  for,  levy, 
recover  and  receive  all  debts,  duties,  goods,  chat- 
tels, rents,  moneys  and  accounts  whatsoever, 
due  or  hereafter  to  become  due,  owing,  or  belong- 
ing to  me,onaccount  of  said  business,  or  for  or  on 
any  other  account  whatsoever,  by  any  person  oi 
persons  whomsoever,  and  upon  receipt  of  tlit 
same,  or  any  part  thereof,  to  give  acquittances 
discharges,  receipts  or  releases  for  the  same. 
Another. 

To  ask,  demand,  recover  and  receive  all  and 
any  sum  or  sums  of  money,  debts,  dues  and  mer- 
chandise or  rights,  credits  and  effects,  due  or  be- 
longing to,  or  which  may  at  any  time  hereafter 
become  due  or  payable  unto  me,  from  any  person 
or  persons  whomsoever. 

Compromise,  etc.  To  compound  and  compromise 
for  any  debts,  dues  or  demands  owing,  or  which 
may  hereafter  be  owing  to  me,  and  to  take  less 
than  the  whole  or  otherwise  to  agree  for  the 
same,  in  such  manner  and  on  such  terms  as  my 
said  attorney  in  his  discretion  may  deem  proper; 
and  fpr  all  or  an^  of  these  purposes  to  make  pnd 


AGENCY. 


75 


execute  any  releases,  cdnlpromises,  agreements, 
or  contracts,  by  deed  or  otherwise,  in  tiis  opinion 
necessary  and  expedient  in  the  premises. 

Debts. — to  pay  and  discharge  all  debts  and  de- 
mands due  and  payable  from  me  unto  any  person 
or  persons  whomsoever. 

Drafts,  etc. — to  draw,  accept,  make  and  indorse 
ail  bills  of  exchange,  checks,  drafts,  promissory 
notes,  and  agreements  and  contracts  ;n  writing,  in 
my  own  name  yor  in  the  name  of  my  said  attorney;. 
Which  he  shall  see  proper  for  the  carrying  on  of 
said  business. 

Infringements,  etc. — to  commence,  carry  on,  in- 
stitute and  prosecute  any  proceeding,  civil  or 
criminal,  for  any  infringement  of  my  rights  as 
proprietor  of  (state  %uhat),  and  for  the  punishment 
of  any  person  or  persons  for  the  infringement  of 
the  same,  or  the  imitating,  counterfeiting,  or  sell- 
ing as  real,  spurious  imitations  of  said  \state  as 
above). 

Insurance. — to  insure,  or  cause  insurance  to  be 
obtained  upon  the  goods,  wares,  merchandise  of 
said  concerns,  or  such  parts  thereof,  and  at  such 
premiums,  as  he  shall  in  his  discretion  deem  pru- 
dent and  necessary. 

Leases. — to  receive  all  rents,  issues  and  profits 
of  all  my  lands  and  tenements  {or  of  the  following 
•premises;,  to  wit  ^describing  them),  and  from  time  to 
t*me  to  renew  the  leases  thereof,  not  extending 

the  same,  however,  beyond  the day  of , 

next. 

Lands. — to  enter  into  and  take  possession  of 
any  lands  or  tenements,  or  other  real  estate  to 
wrhich  I  am  or  may  be  entitled,  and  recover  pos- 
session thereof,  and  damages  for  any  injury  done 
thereto. 

Purchase  goods,  etc. — to  purchase  all  goods, 
wares,  and  merchandise  for  cash  or  upon  credit, 
at  such  prices  and  to  such  amounts  as  he  shall 
see  proper,  and  the  same  to  sell  again  on  my 
account  and  for  my  benefit,  for  any  prices  what- 
soever. 

Purchase  real  estate,  etc. — to  purchase  any  real 
estate  on  my  account,  in  fee  simple  or  otherwise, 
at  any  prices  or  any  exchanges  whatsoever,  and 
for  these  purposes  to  receive,  confirm,  make  and 
execute  any  deeds,  conveyances,  contracts,  or 
other  instruments  whatsoever. 

Sales  of  goods. — to  sell  all  or  any  part  of  said 
goods,  wares  and  merchandise  which  may  come 
to  his  possession  or  knowledge,  on  such  credit 
prices  or  terms  as  he  shall  deem  proper. 

Sales  of  land,  etc. — to  sell,  barter,  exchange,  or 
dispose  of  any  real  estate,  to  any  person  or  per- 
sons, for  any  price  and  in  any  manner  whatso- 
soever,  and  for  these  purposes  to  execute  and 
acknowledge  all  deeds,  conveyances  and  assur- 
ances,with  general  covenants  of  warranty  against 
all  persons  or  incumbrances,  or  any  other  cove- 
nants whatsoever. 

Settlement  of  accounts,  etc. — to  settle  and  adjust 
all  (partnership)  accounts  and  demands  (and  all 
other  accounts  and  demands;  now  subsisting  or 
which  may  hereafter  subsist  between  me  and 
any  other  person  or  persons  whomsoever,  and  to 
submit  and  decide  the  same  by  and  to  arbitra- 
tion, or  otherwise. 

Workmen,  clerks,  etc. — to  engage,  hire  and  em- 
ploy all  workmen,  servants,  clerks  and  assistance 
for  the  better  and  more  effectually  carrying  on, 
conducting,  managing  and  transacting  said  busi- 
ness, and  to  discharge  such  of  said  employees  as 
he  may  deem  proper  and  expedient. 

Substitution.  And  I  hereby  give  and  grant  unto 
my  said  attorney  full  power  to  substitute  one  or 
more  attorney  or  attorneys  under  him,  in  or  con- 
cerning the  premises  or  any  part  thereof;  hereby 
ratifying  and  confirming  whatsoever  my  said  at- 
torney or  his  substitutes  shall  do  by  virtue  hereof 
in  the  premises. 

Ratificatioti.  And  whereas,  said  A.  Y.  has  here- 
tofore, as  my  attorney,  exercised  the  powers 
aforesaid,  or  some  of  them,  and  has,  as  my  attor- 
ney, executed  divers    agreements,  bonds,  con- 


tracts, conveyances,  deeds,  writings  and  othet 
instrumentti,  and  other  things  in  and  about  the 
premises,  I  do  therefore  hereby  ratify  and  con 
firm  all  the  doings  of  the  said  A.  Y.  as  my  attor- 
ney in  all  matters  and  things  by  him  done  and 
transacted  at  any  time  before  the  execution  of 
these  presents,  to  all  intents  and  purposes  Avhat- 
soever. 

To  Collect  Debts  Generally. 

to  ask ,  demand .  sue  for,  collect,  receive  and 

receipt  for  all  sums  of  money,  debts  and  demands 
whatsoever,  due,  owing  or  belonging  to  me  now 
and  hereafter,  by  or  from  all  and  every  person 
and  persons  whomsoever  {or  from  C  D.  or  his  legal 
representatives;. 

Another. 

to  ask,  demand,  sue  for,colIect  and  receive 

all  such  sum  and  sums  of  money,  accounts, 
debts,  dues,  rents  and  other  demands  whatso- 
ever, which  are  or  shall  be  due,  owing,  payable, 
or  belonging  to  me,  in  any  manner  whatsoever, 

by  C.  D.,  of ,  or  his  legal  representatives,  or 

any  of  them  {or  by  any  person  or  persons  residing  or 

being  in  the  State  of ). 

Another. 

to  demand,  ask,  sue  for,  collect  and  receive 

all  sums  of  money,  accounts,  debts,  dues,  rents 
and  demands  of  every  description,  kind  and  na- 
ture whatsoever,  which  are  due,  owing  or  pay- 
able from  any  person  or  persons  whomsoever, 
and  to  give  good  and  sufficient  receipts,  acquit- 
tances and  discharges  therefore;  giving  and 
granting  unto  my  said  attorney  full  authority,  etc. 
Another. 

to  ask,  demand,  sue  for,  collect  and  receive 

all  and  every  such  sum  and  sums  of  money,  debts 
and  demands  whatsoever,  as  are  now  due  and 
owing  to  me  by  and  from  {Hate  ■whom) ;  and  in  de- 
fault of  payment  thereof  to  have,  use  and  take 
all  lawful  ways,  means  and  proceedings,  in  my 
name  or  otherwise,  for  the  recovery  thereof,  by  ar- 
rest, attachment,  or  otherwise,  and  to  compound, 
compromise  and  agree  for  the  same;  and  on  pay- 
ment thereof  to  give  receipts  or  other  sufficient 
discharges  for  the  same  ;  and  to  do  all  lawful  acts 
and  things  whatsoever  concerning  the  premises, 
as  fully  in  every  respect  as  I  myself  might  or 
could  do  if  I  were  personally  present ;  and  an 
attorney  or  attorneys  under  him  for  the  purposes 
aforesaid  to  make,  and  at  his  pleasure  to  revoke; 
hereby  ratifying  and  confirming  all  and  whatso- 
ever my  said  attorney  or  his  substitutes,  or  either 
of  them,  shall  lawfully  do  or  cause  to  be  done  in 
and  about  the  premises. 

Another. 

to  ask,  demand,  sue  for,  recover  and  receive 

all  such  sum  and  sums  of  money,  debts,  goods, 
wares  and  other  demands  whatsoever,  which  is 
or  shall  be  due,  owing,  payable  and  belonging  to 
me,  by  any  manner  or  means  whatsoever,  espe- 
cially, etc.  {stating 'what  particular  matters ,  etc. ,  ike 
attorney  is  required  to  attend  to) 

Giving  and  granting  unto  my  said  attorney,  by 
these  presents,  my  full,  absolute  and  unqualified 
authority  and  power,  in  and  about  the  premises ; 
to  have,  take  and  use  all  lawful  ways  and  means, 
in  my  name,  for  the  purposes  aforesaid  ;  and  upon 
the  receipt  of  any  such  moneys,  debts,  goods, 
wares  or  demands,  to  give  acquittances  or  other 
sufficient  discharges  therefore,  under  seal  or 
otherwise,  for  me  and  in  my  name. 

And  generally  all  and  every  other  act  and  acts, 
thing  and  things  in  law  whatsoever,  necessary 
to  be  done  in  and  about  the  premises,  for  me  and 
in  my  name  to  do,  execute  and  perform  as  fully, 
generally  and  amply,  to  all  intents  and  purposes, 
as  I  myself  might  or  could  do  if  personally  pres- 
ent ;  and  to  make  and  constitute,  and  again  at 
pleasure  to  revoke,  one  or  more  attorneys  under 
him  for  the  purposes  aforesaid. 

Hereby  ratifying,  allowing  and  holding  firm 
and  effectual  all  and  whatsoever  my  said  attor- 
ney or  his  substitutes,  or  either  or  any  of  them, 
shall  lawfully  do,  in  and  about  the  premises,  by 
virtue  hereof. 
To  Collect  Debts  for  Corporations  Generally. 

to  demand,  recover  and  receive  all  and  sin- 
gular the  sums  of  money  now  or  which  may  her» 


76 


AGENCY. 


after  be  or  become  due,  payable  and  coming  to  us, 
or  to  our  successors,  by  virtue  of  any  accounts, 
agreements,  bills  of  exchange,  bonds,  contracts, 
promissory  notes,  or  other  engagements  in  deed 
or  in  law,  from  any  person  or  persons,  corpora- 
tion or  corporations  whatsoever. 

'Hereby  giving  and  grantmg  our  said  attorneys, 
or  any  two  of  them,  whereof  the  said  A.  A.  shall 
be  one,  full  authority  and  power  to  institute  and 
pursue  unto  final  judgment  and  execution  any 
processes  or  proceedmgs  whatsoever  which  our 
said  attorneys,  or  any  two  of  them,  whereof  said 
A.  A.  shall  be  one,  shall  deem  expedient,  and  in 
such  processes  or  proceedings  for  us  to  appear, 
and  us  to  represent,  before  any  court  or  courts 
having  jurisdiction,  and  therein  to  plead  for  us 
and  enter  into  all  stipulations  or  other  requisites 
requisite  and  necessary  to  the  same  ;  and  at  their 
discretion,  or  at  the  discretion  of  any  two  of 
them,  whereof  said  A.  A.  shall  be  one,  to  submit 
to  arbitration,  or  any  compromise  whatsoever, 
any  matter  in  dispute  ;  and  as  our  deeds,  and  in 
our  stead,  to  make,  seal  and  deliver  all  necessary 
receipts,  acquittances  and  releases.  Hereby  rat- 
ifying and  confirming  whatsoever  our  said  attor- 
neys, or  any  two  of  them,  whereof  said  A.  A. 
shall  be  one,  may  lawfully  do  in  the  premises  by 
virtue  hereof. 

To  Collect  Dividend 

to  receive  from  the bank  (or  company, 

*r  corporation)  the  dividends  nov/  due  me  on  all 
stock  standing  in  my  name  on  their  books,  and  to 
receipt  for  the  same ;  hereby  ratifying  and  con- 
firming, etc. 

To  Collect  Rents. 

to  ask,  demand,  distrain  for,  collect  and  re- 
ceive all  such  rents  and  arrears  of  rent  as  now 
are  or  may  or  shall  hereafter  grow  due  or  owing 

to  me  from  C.  D.  or  E.  F.,  of ,or  any  or  either 

of  them  (or  from  any  person  or  persons),  as  tenants 
ot  occupants  of  any  lands,  tenements  or  heredi- 
taments, belonging  to  or  claimed  by  me,  in  the 

city  (or  town  or  county)  of ,  in  the  State  of , 

oi  which  may  be  due  from,  or  payable  by,  any 
other  person  or  persons  whomsoever, as  tenants, 
occupants,  or  lesses  or  assignees,  of  any  term  or 
terms  of  such  lands,  tenements  or  hereditaments, 
OI  any  of  them,  or  any  part  thereof,  and  upon  re- 
ceipt of  the  same  to  give  proper  acquittances  and 
s\ifiicient  discharge  thereof. 

To  Confirm  Acts  of  Attorney. 

And  whereas,  said  A.  Y.  has  heretofore,  as  my 
attorney,  exercised  the  powers  aforesaid,  or  some 
of  them,  and  has, as  my  attorney,  executed  divers 
ag.teements,  bonds,  bills  of  exchange,  checks, 
contracts,  conveyances,  deeds,  drafts,  promissory 
notes,  and  other  instruments  and  writings,  and 
many  other  things  in  and  about  the  premises,  I 
dit  therefore  accept,  acquiesce  in,  confirm  and 
ratify  and  make  valid  all  and  every  matter  and 
tiling  by  said  A.  Y.  as  my  attorney  done  and  per- 
formed, at  any  and  all  times  prior  to  the  execu- 
tion of  these  presents. 

To  Deliver  Possession  op  Lands. 

to  enter  into  all  those  lands,  tenements  and 

hereditaments,  situate  in  ,  in  the  State    of 

,  and  after  such   entry  to  deliver  possession 

thereof  unto  C.  D.  or  his  legal  representatives,  or 
either  of  them,  to  his  or  their  use,  according  to 
the  form,  tenor  and  effect  of  a  certain  deed  bear- 
ing date  the day  of ,  by  me  to  said  C.  D. 

executed. 

And  generally  to  do  all  and  every  act  and  thing 
whatsoever  necessary  to  making  quiet  entry  and 
giving  peaceable  possession  as  aforesaid. 

Hereby  ratifying,  etc. 

To  Demand  Rent. 

to  ask,  demand   and   receive  of  C.  D.  the 

sum  of  dollars,   for   one   month's  (or  year's) 

T^nt  of  {describe  /he  ^remi'ses^,  6uc   me   on  the 

day  of last,  and  on  receipt  thereof  to  give  a 

Bumcient  discharge  for  the  same  ;  and  on  default 
of  payment  thereof,  for  me,  and  in  my  name,  to 
•nter  into  and  take  possession  of  said  premises, 
and  detain  and  keep  the  same  for  my  use. 
Anoi/ier. 

to  demand  and  receive  of  and  from  C.  D., 

•f ,  on  the  day  of next,  the  sum  of 


dollars,  for  one  month's  (quarter's,  or  year's, 

etc.)  rent  for  the  following  described  premises, 

situated  in  ,  in  county,  in  the  State  of 

(describing  them),  due  by  the  terms  of  a  lease 

bearing  date  the  day  of ,  whereby  said 

premises  were  let  to  said  C.  D.  by  said  A.  B.  for 

a  term  of . 

And  in  default  of  payment  of  said  sum  I  give 
my  said  attorney  full  authority  and  power  to  en- 
ter into  and  take  possession  of  said  premises,  to 
the  intent  that  said  lease,  according  to  provi- 
sions therein  contained,  shall  become  void  :  and 
further  to  do  and  perform  all  things  necessary 
and  requisite  to  be  done  in  and  about  the  execu- 
tion of  these  presents,  according  to  the  true  in- 
tent and  meaning  thereof. 

To   Draw,   Indorse,  and  Negotiate  Bills  of 
Exchange,  etc. 

to  draw  and  subscribe  bills  of  exchange, 

singly  and  in  sets  (as  circumstances  require)  upon 
(here  insert  the  names  oj  drawees  or  debtors),  on  ac- 
count of  moneys  due  from  them  to  me  for  the 
sales  of  my  goods  (wares  and  merchandise),  lately 
(sold  by  them  t()r  me,  or)  purchased  by  them  of  me, 
and  in  my  name  and  behalf  to  negotiate  and  sell 
the  same  in  the  market  for  the  largest  sum  which 
my  said  attorney  can  obtain  therefor,  and  the 
proceeds  thereof  to  receive  and  retain  for  my 
use. 

And  I  do  further  authorize  and  empo>ver  my 
said  attorney,  in  my  name  and  behalf,  to  indorse 
any  bill  or  bills  of  exchange  which  shall  be  drawn 
payable  to  me,  and  so  remitted  to  me  in  my  ab- 
sence, and  the  same  to  negotiate  and  sell  to  my 
best  advantage,  and  to  receive  and  retain  the 
proceeds  of  the  same  to  my  use. 

Hereby  granting  my  said  attorney  powder  to 
substitute  one  or  more  attorneys  under  him  in 
the  premises,  and  the  same  at  pleasure  to  re- 
voke. 

To  Enter  Lands. 

to  enter  into  all  lands,  tenements,  and  here- 
ditaments, situated  in  ,  and  ,  and  , 

which  at  any  time  heretofore  was,  or  did,  or  does 
now  appertain  thereto,  or  did  in  his  lifetime  be- 
long unto  D.  D.,of ,  deceased,  grandfather  of 

me,  the  said  A.  D.,  in  whose  several  or  other 
tenures  of  occupation  the  same,  or  any  of  them 
now  are,  or  heretofore  have  been,  for  me  and  in 
my  name  or  right  to  claim,  challenge,  and  de- 
mand as  my  lawful  inheritance. 

And  further,  for  me  and  in  my  name,  and  as  my 
right,  to  claim  and  demand  all  and  every  sucr 
lands,  tenements,  and  hereditaments,  remain- 
ders and  reversions,  lawfully  or  rightfully  apper- 
taining and  belonging  unto  me  through  my 
brother,  B.  D.,  of ,  deceased. 

And  lastly,  for  me,  in  my  name,  in  my  right, 
and  to  my  use,  to  make  all  and  every  such  entry 
and  entries,  claim  and  claims,  in  or  upon  all  and 
every,  or  any  of  the  premises,  as  to  my  said 
attorney  shall,  at  any  time  or  times,  seem  con- 
venient and  expedient  for  the  reducing,  re-vest- 
ing, and  settling  unto  me  all  such  estates,  posses- 
sions, reversions,  and  remainders  as  to  me  did  or 
does  lawfully  belong. 

Giving  ana  granting,  etc. 

To  Fit  Out,  Furnish,  and  Let  Vesski. 

to  order  E.  F.  to  fit  out  the  vessel,  V.  L., 

of ,  of tons  burthen,  whereof  we  are  part 

ov^ners,  and  M.  R.  its  master,  for  such  a  voyage 
to  sea  as  our  said  attorney  shall  see  fit ;  and  we 
do  hereby  agree  to  pay,  or  allo^v  out  of  the 
moneys  in  the  hands  of  said  M.  R.  our  propor- 
tions of  the  charges  of  said  vessel's  outfit,  ac- 
cording to  our  proportionate  interests  therein. 

And  we  do  hereby  empower  and  order  said  M. 
R.  to  let  said  ship  to  freight  for  such  a  voyage  as 
he  shall  deem  proper  and  for  our  advantage  and 
benefit. 

And  we  do  further  agree  ^vith  said  M.  R.,  each 
for  himself  only,  and  not  jointly,  according  to  our 
respective  proportions  in  said  vessel,  shall  and 
will  indemnify  said  M.  R.  for  all  seamen's  wages, 
and  all  actions,  costs,  and  damages  by  reason 
thereof,  that  shall  or  may  grow  due,  or  be  in- 
curred on  account  of  said  vessel  for  her  intended 
voyage  out  and  borne. 


AGENCV. 


n 


To  Fill  up  Blanks  in  a  Writing,  btc. 

as  soon  as  conveniently  may  be  {or  on  or 

before  the day  of ),  to  fill  up  blanks  in  (siate 

tht  kind  or  characitr  of  the  instrument)  as  follows : 
(s/eci/ying  particularly  the  tines  or  parts  to  be  filled 
up  and,  if  possible,  the  exact  matter  to  be  filled  in) 
with  the  proper  date  when  the  same  shall  be 
executed,  and  sign  (and  seal)  and  deliver  the  same 
for  me  and  in  my  name,  to  C.  D.  (his  heirs  and 
assigns  forever). 

(Ijf'  it  be  an  instrument  affecting  real  estate,  or  one 
requiring  acknowledgment,  add  the  following) :  and 
afterwards  to  acknowledge  said  conveyance  (ar 
other  instrument,  naming  it)  as  my  free  act  and 
deed,  before  any  officer  authorized  bylaw  to  take 
acknowledgments. 

And  generally,  for  me,  and  in  my  name,  and  as 
my  act  and  deed,  but  to  the  use  of  said  C.  D.,  his 
heirs  and  assigns,  to  do  all  and  every  other  act, 
matter,  and  thing  which  shall  be  necessary  or 
requisite  to  the  effectual  execution  and  acknowl- 
edgment of  said  conveyance  (or  other  instrument, 
naming  it),  in  all  respects  and  as  fully  to  all  in- 
tents and  purposes  as  I  myself  might  or  could  do 
if  personally  present ;  hereby  ratifying  and  con- 
firming all  that  my  said  attorney  may  lawfully 
do  in  the  premises  by  virtue  hereof. 

Provided,  however,  that  these  presents  shall 
not  be  construed  to  annul  or  revoke  any  powjr 
of  attorney  by  me  at  any  time  heretofore  given,  to 
any  other  person  or  persons  whomsoever  for  any 
other  purposes  ;  and  provided,  further,  that  these 
presents  shall  not  be  construed  to  extend  or  ap- 
point my  said  attorney  for  any  other  purpose 
whatsoever. 

To  Insure  Property,  etc. 

to  effect  insurance  on  the  following  de- 
scribed property,  to  wit  {describing  it),  with  the 

Insurance  Company,  of ,  on  such  terms 

as  my  said  attorney  shall  deem  necessary  Oi 
proper,  and  for  this  purpose  to  sign  any  applica- 
tion for  the  same,  any  representation  of  condition 
or  value  of  said  property,  any  articles  of  agree- 
ment, any  notes,  and  other  papers  necessary  for 
that  purpose,  and  to  cancel  and  surrender  any 
policy  which  he  may  obtain,  and  upon  such  can- 
celling, or  surrender,  or  expiration  thereof,  to  re- 
ceive any  dividend,  return  premium  or  deposit, 
that  may  be  due,  and  give  receipts  or  discharges 
for  th«  same. 

To  Leash  Lands. 

to  lease  by  vrriting  all  the  following  de- 
scribed real  estate  situated  in  ,  in  the  State 

of ,  or  any  part  thereof  which  my  said  at- 
torney shall  see  fit,  and  to  such  person  and  per- 
sons, and  for  such  term  and  terms  (not  exceeding 
),  and  with  such  reservations  of  rents,  cove- 
nants, and  conditions  as  my  said  attorney  shall 
deem  expedient;  and  in  my  name  to  execute 
(seal)  and  deliver  said  written  leases  to  the  lessee 
or  lessees  thereof,  retaining  duplicates  of  the 
same  duly  writnessed. 

And  I  hereby  do  and  at  all  times  hereafter  shall 
and  will  confirm  and  ratify  all  and  every  act  and 
thing  which  my  said  attorney  shall  do  in  the 
premises  in  my  name  by  virtue  hereof. 
To  Lease  and  Sell,  etc. 

to  lease,  sell,  or  make  any  other  disposition 

whatever  of  the  following  described  premises,  to 
wit  {describing  them),  and  to  sign  (seal)  and  deliver 
any  agreement,  assignment,  assurance,  convey- 
ance, or  lease  to  any  person  or  persons  who  shall 
purchase  or  agree  to  purchase  said  premises,  or 
any  part  thereof,  and  in  due  form  of  la'w,  to 
acknowledge  any  such  instrument  necessary  to 
the  proper  conveying  or  leasing  said  premises  or 
any  part  thereof. 

Hereby  ratifying,  etc. 

To  Renew  Lease  and  Sell,  etc. 

to  rene\v  or  agree  for  a  renewal  of  the  lease 

by  which  I  hold  the  following  described  property, 
to  -win describing  it),  for  a  term  of . 

And  also  to  sell  and  convey  said  premises  for 
the  unexpired  term  of ,  for  cash,  and  there- 
upon to  assign  the  lease  whereby  I  hold  and  may 
hold  the  same. 

To  Survey  and  Lease,  etc. 

to  survey  for,  and  lease  by  writing,  to  any 


per«on  or  persons,  and  for  such  term  or  terms 

(not  exceeding ),  and  at  such  rents  (not  less  than 

),  payable  at  intervals  of   (not  less  than ) 

as  shall  seem  most  convenient  to  my  interest,  and 
with  such  covenants  as  my  said  attorney  shall 
deem  expedient  (or  with  the  usual  covenants).  And 
for  me  and  in  my  name  to  execute,  sign  (seal), 
and  deliver  said  written  leases  unto  the  parties 
to  whom  said  premises  shall  be  let,  and  counter- 
parts thereof  to  receive. 

Giving  and  granting  to  my  said  attorney  full 
authority  and  power  in  the  premises  to  do  and 
execute  all  things  in  as  ample  a  manner  as  I 
might  do  if  personally  present. 

Hereby  ratifying,  stc. 

To  Manage  Real  Property. 
to  exercise  the  general  control  an    super- 
vision over  the  lands,  tenements,  and  heredita- 
ments belonging    to    me,  and    situated   in  

county,  in  the  State  of .    To  prevent,  hinder, 

and  forbid  all  trespassing  and  waste  thereon : 
and  at  my  cost  and  charges,  and  under  the  advice 

and  counsel  of  my  attorney,  A.  Y.,  of ,  to  sue 

for,  collect,  compound,  receive,  and  recover  all 
damages  which  may  accrue  by  reason  of  any 
trespasses  or  waste  thereon,  and  for  all  debts, 
rents,  and  ^moneys  due,  owing,  or  that  may  be 
due  or  owing  from  the  gains  and  profits  wnich 
has  or  may  hereafter  arise  from  or  out  of  said 
premises. 

To  Mortgage  Real  Property. 

to  obtain  for  my  use  the  sum  of dollars, 

at per  cent,  interest  per  annum,  for  a  term 

of ,  and  to  secure  the  payment  of  the  same  to 

execute,  sign  (seal),  and  deliver  a  mortgage  upon 
the  following  described  premises,  to  wit  {describ- 
ing them),  and  to  include  in  said  mortgage  the 
usual  provisions  for  insurance,  interest,  taxes, 
and  power  of  sale ;  and  as  collateral  thereto  to 
execute  such  promissory  notes  as  may  be  agreed 
upon  by  my  said  attorney  and  the  mortgagee. 
To  Make  Partition. 

to  make  partition  with  the  other  heirs  of 

my  late  father,  D.  D.,  deceased,  of  his  real  (and 
personal)  estate,  and  upon  any  partition  or  di- 
vision thereof  (to  accept  and  receive  my  share  of  the 
same),  and  to  enter  upon  and  take  possession  of 
any  lands,  tenements,  and  hereditaments  which 
may  be  set  apart  as  my  portion  of  the  same,  anr' 
to  enter  into  any  agreement  or  covenant  respect- 
ing my  portion  or  share  (and  the  portions  or  shares 
of  the  other  heirs),  as  my  said  attorney  shall  deem 
reasonable  and  to  my  interest ;  and  in  my  name 
and  for  my  use  to  demand,  sue  for,  and  take  pos- 
session of  all  and  singular  the  property,  real  or 
personal,  and  all  rights,  credits,  and  effects  ^vith- 
held  from  me,  to  which  I  am  entitled,  and  which 
I  may  lawfully  claim  from  the  heirs,  executors, 
or  administrators  of  my  said  father,  or  any  other 
person  or  persons  whomsoever. 

To  Prosecute  and  Defend  Suits. 

to  appear  to,  institute,  prosecute,  and  de- 
fend all  causes,  real,  personal,  or  mixed,  and  all 
and  every  action,  suit,  or  proceeding,  by,  for,  or 
against  me  ;  and  in  my  name  to  plead  to  and  pur- 
sue the  same  to  final  judgment  and  execution, 
with  full  power  and  in  my  name  to  execute  all 
bonds,  undertakings,  agreements,  stipulations, 
and  every  writing  whatsoever  necessary  and 
requisite  in  the  premises ;  with  full  power  of 
substitution  and  revocation. 

Hereby  ratifying,  etc. 

For  Proxy  to  vote,  etc. 

to  vote  at  any  election  of  directors  or  other 

officers  of  the  (giTe  the  name  of  the  company,  cor' 
poration,  etc.)  at  any  meeting  of  the  stockholders 
of  said  company  (<7r  corporation)  as  fully  as  I  might 
or  could  were  I  personally  present. 
Another. 

to  vote  as  my  proxy  at  any  election  of  di- 
rectors or  other  officers  of  ihc  {name  of  company, 
corporation,  etc.)  according  to  the  number  of  votes 
I  should  be  entitled  to  if  I  >vere  then  personally 
present. 

Affidavit  {or  affirmation)  of  Shares. 

State  of , county,  ss. 

I  do  solemnly  swear  {or  I  do  solemnly,  sincereiy, 


78 


AGENCY. 


and  truly  declare  and  afllirm)  that  the  shares  on 
which  my  attorney  and  agent  in  the  (within,  fore- 
Cuing,  or  above,  as  the  case  may  be)  proxy  is  author- 
ized to  vote,  do  not  belong,  and  are  not  hypothe- 
cated to  said  company  (or  corporation),  and  that 
they  are  not  hypothecated  or  pledged  to  any  other 
company,  corporation,  or  person  whatever;  that 
such  shares  have  not  been  transferred  to  me  for 
the  purpose  of  enabling  me  to  vote  thereon  at 
the  ensuing  election,  and  that  I  have  not  con- 
tracted to  sell  or  transfer  them  upon  any  condi- 
tion, agreement,  or  understanding  in  relation  to 
my  manner  of  voting  at  the  said  election  (and  this 
I  do  under  the  pains  and  penalties  of  perjury.) 

(Sipted)  A.  B. 
Subscribed  and  s^vorn  {or  affirmed)  to,  before 

me  this day  of ,  A.  D. . 

(Signature  and  title  of  officer.) 

Ratification. 

See  "Confirmation"  above,  and  the  ending  clauses 
ef  the  various  forms  above  and  below. 

Hereby  ratifying  and  confirming  all  that  may 
be  lawfully  done  in  the  premises  by  virtue  hereof. 
Another. 

Hereby  ratifying  and  confirming  all  lawful  acts 
done  by  my  said  attorney  in  the  premises  by  vir- 
tue hereof. 

Another. 

And  the  said  A.  B.  does  hereby  ratify,  allow, 
and  make  firm  in  law  all  and  whatsoever  acts  the 
said  A.  Y.  shall  do  or  cause  to  be  done  in  pur- 
suance hereof. 

Another. 

Hereby  ratifying  and  confirming  all  things 
whatsoever  lawfully  done  in  the  premises  by  my 
said  attorney  or  his  substitutes,  or  either  of  them 
by  virtue  hereof. 

Another. 

And  I,  the  said  A.  B.,  and  my  heirs  shall  and 
will  at  all  times  hereafter,  ratify  and  confirm  all 
and  every  act,  matter,  and  thing  which  the  said 
A.  Y.,in  my  name,  shall  lawfully  do  by  virtue 
Hereof,  in  the  premises. 

To  Receive  Dividend. 

-' —  to  receive  the  dividends  payable  on  all 
stock  standing  in  my  name  on  the  books  of  (state 
what  company  or  corporation),  and  receipt  therefor. 
Another. 

to  receive  from  the {name  of  company  or 

e»rporation)   the   dividends    now   due   me   on   all 
stock  standing  in  my  name  on  the  books  of  said 
company,  and  receipt  for  the  same. 
Another. 

to  receive  the  dividends  -which  are  or  shall 

be  payable  according  to  law  on  all  the  stock 
standing  in  my  name  in  the  books  of  the  R.  and 
v..  Railway  Company  (S.  and  L.,  Steamship  Line, 
or  Treasury  of  the  United  States,  or  B.  and  K.,  Bank- 
ing Company,  etc.,  etc.),  with  full  power  to  make 
and  substitute  an  attorney  or  attorneys  under 
him  for  that  purpose,  and  to  do  and  pefform  all 
things  lawful  and  requisite  in  the  premises  ;  here- 
by ratifying  all  that  my  said  attorney  or  his  sub- 
stitutes shall  lawfully  do  by  virtue  hereof. 
Assignment  of  Dividend. 

(Add  to  either  of  the  aboz'e  forms  when  proper)  and 
to  assien,  transfer,  and  set  over  unto  E.  F.  and 

G.  H.  tne  sum  of dollars  of  said  dividend  (or 

(took,  or  of  the  following  dividends,  or  stocks,  to  wit, 
specifying  them). 

To  Receive  Freight,  etc. 

to  demand,  sue  for,  and   prosecute  with 

effect,  and  receive,  for  my  use,  and  the  use  of  C. 
D.,  E.  F.,  and  G.  H.,  part  owners  of  the  ship 

,  all  such  sums  of  money  as  are  due  from  M. 

R.,  C.  H.,and  N.  T.,  etc.,  merchants,  etc.,  for 
freight,  or  other^vise  for  or  concerning  any  and 
all   goods   and   merchandise,   imported    by   said 

ship  in  her  late  voyage  from ,  by  virtue  of  a 

charter  party  bearing  date  the day  of ,  or 

otherwise,  and  upon  receipt  thereof  to  give  suffi- 
cient acquittances  and  releases  for  the  same. 
To  Receive  Money  not  vet  Due,  etc. 

to  demand  and  receive  on  the day  of 

next,  the  sum  of dollars  for  the  payment 

•f  which  C.  D.  and  E.  F.,  of ,  by  their  obliga- 


tion, bearing  date  the  day  of last,  ire 

bound  unto  me,  and  upon  payment  thereof  to  re- 
ceipt for  the  same  and  cancel  said  obligation. 

And  if  the  same  shall  not  then  be  paid,  to  sue 

for  the  sum  of dollars,  the  penalty  of  said 

obligation. 

To  Receive  Money  from  Underwriters. 

to  ask,  demand,  sue  for,  and  recover  the 

several  sum  and  sums  of  money  which  I,  the 
said  A.  B.,  may  be  entitled  to  recover,  together 
with  all  costs  and  charges  incident  thereto,  from 
certain  underwriters,  by  whose  policies  of  insui-- 
ance  certain  goods  and  merchandise,  shipped  by 

the  ship ,  were  assured  from  loss  and  damage 

by  sea,  by  them  respectively,  as  follows,  to  wit 
(specifying  what  goods  and  merchandise  ivere  assured 
by  each  underwriter  separately),  all  of  which  said 
goods  and  merchandise  became  wholly  damaged 
and  lost  from  said  ship's  being  forced  by  stress 
of  weather  into . 

And  in  default  of  payment  of  the  same,  or  any 
part  thereof,  for  me  and  in  my  name  to  com- 
mence and  prosecute  to  final  effect  any  actions  at 
la^v  or  equity  against  said  underwriters  or  their 
legal  representatives,  or  whomsoever  else  it  may 
concern,  for  the  recovery  and  enforcing  payment 
thereof;  and  on  payment  of  the  same,  or  any 
part  thereof,  for  me  and  in  my  name,  to  execute 
suitable  discharges. 

And  if  my  said  attorney  shall  deem  expedient, 
to  compromise  or  submit  to  arbitration  the  sev- 
eral claims  and  demands  which  I  have  against 
said  underwriters  by  virtue  of  said  policies  of 
insurance. 

And  generally,  etc. 

To  Receive  Possession  of  Real  Estate. 

to  receive  and  take  peaceable  possession 

of  the  following  described  premises,  situated  in 

county   and   State   of  (describing  them), 

which  was  heretofore  conveyed  in  fee,  together 
with  all  privileges  and  appurtenances,  by  C.  D. 
to  me,  by  an  instrument  in  writing  bearing  date 
the  day  of ,  and  duly  executed  and  ac- 
knowledged and  recorded  as  required  by  law,  in 

the  oBice  of ,  in  said  county.     Receiving  and 

taking  the  same  of  said  C.  D.  or  his  agent  or  at- 
torney thereunto  lawfully  authorized,  according 
to  the  true  intent  of  said  conveyance. 
Another. 

to   take  and  receive  of  the  sheriff  of 

county,  or  his  deputy,  peaceable  and  quiet  pos- 
session of  all  and  singular  the  following  described 
lands,  tenements  and  hereditaments,  situated  in 
county,  State  of ,  which  were  lately  be- 
longing to  C.  D.,  and  which  said  sheriff  has 
caused  to  be  set  off  to  me,  by  virtue  of  an  execu- 
tion to  him  directed,  etc.  Giving  and  granting,  etc. 
To  Receive  a  Legacy. 

to  ask,  demand  and  receive  of  and  from  E. 

X.  and  T.  R.,  executors  of  the  last  will  and  testa- 
ment of  D.  13.,  late  of ,  deceased,  the  legacy 

of dollars,  given  and  bequeathed  me  by  said 

will ;  and  upon  receipt  by,  or  payment  to  my  said 
attorney,  to  make,  execute  and  deliver  a  general 
release  or  discharge  for  the  same  ;  hereby  ratify- 
ing, etc. 

Another. 

to  ask,  demand  and  receive  of  and  from  C. 

D.  the  sum  of dollars,  which  D.  D.,  late  of 

,  deceased,  by  her  last  will  and  testament, 

bearing  testimony  the  day  of ,  did  give 

and  bequeath  unto  me,  upon  my  executing  and 
delivering  a  general   release  unto  the  executors 

of  said  D.  D.,  making  E.  X.,  of ,  his  executor, 

said  will  having  been  duly  proved,  and  having 
executed  and  delivered  said  release  to  my  said 
attorney,  to  be  by  him  delivered  to  said  E.  X. 
upon  payment  of  said  sum  ;  giving  and  granting 
unto  my  said  attorney  full  power,  etc. 

To  Receive  Principal  and  Interest,  etc. 

to  ask,  demand  and   receive  all  sums  of 

money  loaned  to  the  following  named  persons, 
with  the  interest  accrued  and  to  accrue,  to  ^vit 
(give  name  of  borrower,  amount  'loaned,  time  of  loan, 
rate  nf  interest  and  interest  accrued,  etc). 

Also  to  ask,  demand  and  receive  all  dividends 
which  shall  be  payable,  according  to  law,  on  th« 


AGENCY. 


79 


following  described  stock,  standing  in  my  name, 
to  wit  {describing  it). 

To  Rbceive  Shark  of  Estate,  etc. 

to  ask,  demand  and  receive  of  and  from  A. 

D.  and  M.  R.,who  were  duly  appointed  adminis- 
trators of  the  estate  and  effects  of  D.  D. ,  deceased, 
(my  portion  and  share  of;  certain  personal  property 
belonging  to  said  deceased  in  his  lifetime,  and 
which  is  to  be  divided  among  (us)  the  heirs  of 
said  D.  D.,  according  to  the  provisions  of  the 
statute  relative  to  the  distribution  of  the  estates 
of  intestates.  And  upon  receipt  thereof  by  or 
payment  thereof  to  my  {or  our)  said  attorney,  to 
make,  execute  and  deliver  a  good  and  suiBcient 
receipt,  release  and  discharge  for  the  same; 
hereby  ratifying,  etc. 

To  Receive  Wages. 

to  ask,  demand,  receive  and  receipt  for  all 

sums  of  money  as  are  now  due,  or  may  at  any 
time  hereafter  become  due  and  owing  to  me  for 
^Arages  as  a  (state  what ). 

And  upon  non-payment,  etc. 
Another. 

to  ask,  demand,  receive  and  receipt  for,  of 

and  from  all  and  every  person  and  persons  what- 
soever, all  sums  of  money  which  now  are  and 
shall  at  any  time  hereafter  become  due  and  owing 
to  me  for  wages  from  {state  whotn),  and  also  all 
other  moneys  novvr  due,  or  to  become  due  and 
owing  to  me  by  any  ways,  means  or  persons 
whatever. 

And  upon  non-payment  of  the  same  or  any 
part  thereof,  I  hereby  authorize  and  empower 
my  said  attorney  to  enforce  the  same  by  any  ac- 
tion or  legal  proceeding,  in  my  name  or  other- 
^vise,  necessary  or  requisite  for  the  recovery  of 
the  same. 

To  Sell  Personal  Property,  etc. 

to  sell,  transfer  and  deliver  unto  {state  ■whom) 

or  any  other  person  or  persons  {here  describe  the 
property  or  goods). 

Giving  and  granting  my  said  attorney  full 
power  of  substitution  and  revocation. 

In  witness,  etc. 

To  Sell  Real  Estate. 

to  sell  and  convey  the  following  described 

real  estate,  situated  in  county,  and  State  of 

,  for  the  sum  of dollars,  and  upon  the  re- 
ceipt of  said  sum  to   execute  and  deliver  to  the 
purchaser  thereof,  or  his  attorney,  a  good  and 
sufficient  warranty  deed  for  the  same. 
To  Sell  Real  Estate,  etc. 

A  power  to  seil  and  convey  is  not  a  power  to  mort- 
gage. And  a  power  to  do  the  one  will  not  authorize  a 
doing  of  the  other,  nor  of  anything  save  the  precise  act 
author!  zed. » 

to  grant,    bargain,    sell    and  convey    the 

following   described    premises,   situated    in   

county,  and  State  of ,  to  wit  i describing  them), 

or  any  part  thereof,  for  such  price,  and  on  such 
terms  as  he  shall  deem  proper,  and  in  my  name 
to  make,  execute,  with  or  without  covenants  and 
warranty,  acknowledge  and  deliver  good  and 
sufficient  conveyances  for  the  same. 

The  following  may  be  added  when  proper  : 

And  until  the  sale  thereof,  to  lease  said  real  es- 
tate for  the  best  rents  that  can  be  procured  for 
the  same,  and  to  ask,  demand,  distrain  for,  col- 
lect, recover  and  receive  all  sums  of  money  which 
shall  become  due  and  owing  to  me,  by  means  of 
such  bargain  and  sale  or  lease. 

Giving  and  granting  unto  my  said  attorney,  etc. 
To  Sell  Real  Estate,  etc. 

to  grant,  bargain  and  sell  all  that  part  and 

parcel  of  real  estate,  situated  in county,  and 

State  of ,  and   described   as  follows,  to  wit 

{descrihing  it),  with  the  appurtenances,  and  all 
my  estate,  right,  title  and  interest  therein,  unto 
such  person  or  persons,  and  for  such  sum  or  sums 
of  money  («)r  for  such  consideration  or  considerations), 
for  cash,  or  upon  such  credit  or  credits  as  my  said 
attorney  shall  deem  most  for  my  advantage  and 
profit ;  and  upon  such  sale  or  sales  to  make,  seal, 
acknowledge  and    deliver,  in  due  form  of  law, 

a-3  Hill,  361 ;  3  Barb.  128 ;  i  Sandf.  17 ;  4  Comst.  9  ; 
T  Wend.  446.  I 


suitable  and  proper  deeds,  general  or  special,  of 
warranty,  quit  claim,  or  otherwise,  as  my  said 
attorney  shall  deem  expedient,  and  for  me  and 
in  my  name  to  accept  and  receive  all  and  every 
the  sum  and  sums  of  money  {or  consideration  or 
considerations),  whatsoever,  which  shall  be  coming 
to  me  on  account  of  said  sale  or  sales,  and  upon 
receipt  thereof,  in  my  name  and  stead,  to  make, 
seal  and  deliver  suitable  acquittance  or  acquit- 
tances. 

And    generally  giving    my   said    attorney   full 
authority  and  power  touching  the  premises,  to 
do,  execute  and   perform  in  all  things  as  amply 
and  fully  as  I  might  if  personally  present. 
To  Sell  Stock,  etc. 

to  sell,  assign  and  transfer  unto  E.  F. 

shares  of stock  in  the  capital  or  joint  stock 

of  the . 

And  1  hereby  empower  my  said  attorney  to 
perform  all  necessary  acts  for  said  sale,  assign- 
ment and  transfer. 

In  witness,  etc.  {Signed)  A.  B. 

To  Sell  Stock,  etc. 

to  sell  and  transfer  unto  any  persons  whom- 
soever, and  for  such  price  as  my  said  attorney 
shall  think  fit,  all  and  any  of  the  following  stocks 
{describing  them). 

And  also  for  me,  and  in  my  name,  to  make  and 
pass  all  necessary  acts  of  assignment,  and  to 
give  and  receive  receipts  and  releases  for  the 
consideratio  n  money  arising  from  the  sale  thereof. 

And  also  for  me,  and  in  my  name,  to  give  re- 
ceipts for  all  interest  and  dividends  now  due  or 
that  shall  hereafter  become  due  on  said  capital 
stock,  until  the  sale  and  transfer  thereof. 

In  witness,  etc. 

To  Sell  Vessel,  etc. 

to  sell,  convey  and  transfer  all  of  our  sev- 
eral interests  in  the  ship  S.,  whereof  A.  B.  is 
five-eighths,  C.  D.  two-eighths,  and  E.  F.  one- 
eighth  owners,  together  with  her  tackle,  boats, 
apparel  and  furniture,  to  any  person  or  persons, 
and  for  such  sum  and  sums  of  money  as  he  may 
deem  proper,  to  receive  and  receipt  for  the  same, 
and  to  execute  and  deliver  the  purchaser  or  pur- 
chasers thereof  good  and  sufficient  bills  of  sale  or 
other  conveyances  thereof. 

Giving  and  granting,  etc. 

To  Sign  Writings,  etc. 

to  make,  execute,  sign,  seal  and  deliver  all 

agreements,  bills,  bonds,  contracts,  conveyances, 
specialties  or  other  instruments,  which  shall  be 
necessary  to  the  pnoper  (conducting  of  the  following 
business,  or  completion  of  the  following  business,  or 
other  matter,  specifying  it ). 

And  to  do  and  perform  all  and  every  act  and 
deed  of  whatsoever  name  or  nature,  legally  ap- 
pertaining to  the  same. 

To  Subscribe,  etc. 

to  subscribe  for  {state  what ). 

To  Substitute. 
To  substitute  one  or  more  persons  under  him 
with  like  power. 

Conflrmatlon— Oenernl   Form. 

Whereas,  misrepresentation  has  arisen   as  to 

the  authority  and  power  of  C.  D.,  of ,  in  the 

county  of ,  and  State  of ,  in  my  name  and 

behalf  to  execute  a  certain  agreement  between 
E.  F.  of  the  one  part  and  myself  of  the  other 
part;  and  whereas,  said  agreement  has  been  ex- 
ecuted by  the  said  C.  D.,  as  my  lawful  attorney,, 
and  the  said  E.  F.  respectively  : 

Now,  therefore,  these  presents  witness  that  I, 

A.  B.,  of ,  in  the  county  ef ,  and  State  of 

,  have   examined   and   read   said   articles   of 

agreement,  and  that  I  do  hereby  ratify  and  con- 
firm the  same, and  do  declare  that  the  said  C.  D., 
who  did,  as  my  lawful  attorney,  execute  the 
same,  did  so  execute  the  same  by  my  authority 
and  with  my  consent;  and  I  do  now  fully  ratify 
and  confirm  all  his  acts  and  doings,  in  and  about 
the  same,  in  as  full  a  manner  as  if  I,  myself,  had 
executed  the  same. 

In  witness  whereof,  I  have  hereunto  set,  etc. 
{If  the  power  be  to  convey  real  estate,  then  this  clause 
should  be  the  same  as  in  conveyances  of  real pr^erty, 
which  see). 


8o 


AGENCY. 


t'UHtom  Hoase  Power— General  Form. 

to  receive  and  enter  at  the  custom  house 

of  the  district  of any  goods,  wares  or  mer- 
chandise imported  by  me,  or  which  may  here- 
after arrive,  consigned  to  me  ;  to  sign  in  my  name 
and  seal  and  deliver,  as  my  act  and  deed,  any 
bond  or  bonds  which  may  be  required  by  the  col- 
lector of  said  district,  for  securing  the  duties  on 
any  such  goods,  wares  or  merchandise. 

Also  to  sign  my  name  to,  seal  and  deliver  for 
me  and  as  my  act  and  deed,  any  bond  or  bonds 
requisite  for  obtaining  the  debenture  on  any 
goods,  vfSLTea  or  merchandise  when  exported. 

And  generally  to  transact  all  business  at  said 
custom  house,  in  which  I  am  or  may  hereafter  be 
interested  or  concerned,  as  fully  as  I  could  if  per- 
sonally present. 

And  I  do  hereby  declare  that  all  bonds  signed 
and  executed  by  my  said  attorney  shall  be  as 
obligatory  on  me  as  those  signed,  sealed  and  de- 
livered by  myself. 

This  power  shall  remain  in  full  force  until  re- 
voked by  written  notice  given  to  said  collector. 

In  witness,  etc. 
Ciistoiii  House  Power— Special  Form. 

to  receive  and  enter  at  the  custom  house 

of  the  district  of ,  any  goods,  wares  or  mer- 
chandise, imported  by  or  consigned  to  me,  in  the 

(naming  the  vessel  iy  which  the  goods  are  shipped ) 

and  in  my  name  and  as  my  act  and  deed,  to  sign 
my  name  to,  seal  and  deliver  any  bond  or  bonds 
required  by  the  collector  of  said  district  for  secur- 
ing the  duties  on  the  same. 

Also,  and  in  my  name  and  as  my  act  and  deed, 
to  sign  my  name  to,  seal  and  deliver  any  bond  or 
bonds  requisite  for  obtaining  the  debenture  on 
any  of  said  goods,  wares  or  merchandise,  when 
exported  for  me. 

And  generally  to  transact  all  business  at  said 
custom  house,  in  reference  to  said  goods,  wares 
and  merchandise  which  may  be  requisite  and 
necessary  in  the  premises,  as  fully  as  I  could  if 
personally  present. 

And  I  hereby  declare  that  all  bonds  signed, 
sealed  and  delivered  by  my  said  attorney  in  the 
premises  shall  be  as  obligatory  on  me  as  those 
signed,  sealed  and  delivered  by  myself. 

In  witness,  etc. 
Revocation    of  Power— General  Form. 

Know  all  men  by  these  presents  : 

That  I,  A.  B.,  of ,  in  and  by  my  letter  of  at- 
torney bearing  date  the day  of ,  did  make, 

constitute  and  appoint  A.  Y.  my  attorney,  as  by 
said  letter  more  fully  appears. 

That  I,  the  said  A.  B.,  do  by  these  presents  an- 
nul, countermand,  revoke  and  make  void  said 
letter  of  attorney  and  all  authority  and  power 
thereby  given  said  attorney,  A.  Y. 

In  witness,  etc. 

Revocation   of  Power— General    Form. 

Know  all  men  by  these  presents: 

That  I,  A.  B.,  of ,  in  and  by  my  letter  of  at- 
torney bearing  date  the day  of ,  did  make, 

constitute  and  appoint  A.  Y. ,  of ,  my  true  and 

lawful  attorney,  for  me  and  in  my  stead, to 

{state  what )  as  by  said  letter  will  more  fully  appear. 

That  I,  the  said  A.  B.,  have  annulled,  counter- 
manded, revoked  and  made  void,  and  by  these 
presents  do  annul,  countermand,  revoke  and 
make  void  the  said  letter  of  attorney  and  all 
authority  and  power  thereby  given  or  intended 
to  be  given  to  the  said  A.  Y. 

In  witness,  etc. 

Revocation  of  Power  anil  Knbstltntion. 

Know  all  men  by  these  presents: 

That  I,  A.  B.,  of  the  city  of ,  and  State  of 

,  did  heretofore,  by  a  certain  instrument   in 

writing,  or  letter  of  attorney,  bearing  date  the 

day  of  ,  empower  A.  Y.,  of ,  in  my 

name  and  for  my  use,  to  I  state  whaf) :  and  to  do 
and  perform  all  other  matters  and  things  as  fully 
as  I  myself  might  or  could  do  for  the  purposes 
intended,  ttc,  and  to  that  or  like  effect,  as  by  said 
instrument  more  fully  and  at  large  appears. 

That  I,  the  said  A.  B.,  for  divers  good  causes 
and  valuable  considerations,  have  revoked,  re- 
called, countermanded  and  made  void,  and  by 
these  presents  do  revoke,  recall,  countermand, 


and  to  all  intents  and  purposes  make  null,  void 
and  of  none  effect  the  said  recited  instrument  in 
writing,  or  letter  of  attorney,  and  all  the  powers 
and  authorities  therein  and  thereby  given  and 
granted,  and  all  other  matters  and  things  therein 
contained  ;  and  all  acts,  matters  and  things  what- 
soever, which  shall  or  maybe  acted,  done  or  per- 
formed by  virtue  or  means  thereof,  in  any  manner 
whatsoever. 

And  further  know  all  men  : 

That  I,  the  said  A.  B.,  do  by  these  presents  ap- 
point, constitute,  depute,  make,  name  and  put  in 
my  place  and  stead,  S.  E.,  to  be  my  true  and  law- 
ful attorney,  for  me  and  in  my  name  and  to  my 
use to,  etc. 

In  witness,  etc. 

Substitution  of  Attorney— Siiort  Form. 

(For  value  received)  I  hereby  appoint  S.  E.  (irrer- 
ocably)  as    my  substitute,  with   all  the   powers 
within  {or  above;  given  to  me.      (Signed )      A.  Y. 
Substitution  of  Attorney — Short  Form. 

To  be  indorsed  on  the  Power  of  Attorney. 
I  hereby  appoint  S.  E.  as  my  substitute  and  in 
my  stead  to  do  and  perform  every  act  and  thing 
which  I  might  or  could  do  by  virtue  of  the  within 
power  of  attorney.  (Signed)  A.  Y. 

Substitution  of  Attorney— General 
Form. 

To  be  indorsed  on  the  Power  of  Attorney. 

Know  all  men  by  these  presents : 

That  I,  A.  Y.,  of ,  by  virtue  of  the  authority 

^ven  me  by  the  within  power  of  attorney,  do  sub- 
stitute S.  E.,of ,  as  attorney  in  my  stead,  to  do, 

perform  and  execute  every  act  and  thing  which  I 
might  or  could  do  by  virtue  of  the  said  power  of 
attorney.  Hereby  ratifying  all  that  my  said  sub- 
stitute shall  or  may  do  in  the  premises  and  of  the 
within  power  of  attorney. 

In  witness,  etc. 

For  form  of  Acknowledgment,  see  that  title. 

Substitution  of  Attorney— General 
Form. 

Know  all  men  by  these  presents: 

That  I,  A.  Y.,  of ,  by  virtue  of  the  authority 

and  power  to  me  given,  in  and  by  the  power  of 
attorney  of  A.  B.,  of ,  which  is  hereunto  an- 
nexed, do  appoint  and  substitute  S.  E.,  of ,  to 

do,  perform  and  execute  every  act  and  thing 
which  I  might  or  could  do,  in,  by  or  under  the 
same,  as  well  for  me,  as  being  the  true  and  law- 
ful attorney  and  substitute  of  the  said  A.  B. 
Hereby  ratifying  all  that  said  attorney  and  sub- 
stitute shall  do  in  the  premises,  by  virtue  hereof 
and  of  said  power  of  attorney. 

In  witness,  etc. 

For  form  of  Acknowledgment,  see  that  title. 

Substitution  of  Attorney— General 
Form. 

Know  all  men  by  these  presents  : 

That  A.  B.,  by  his  letter  of  attorney,  a  copy  of 
\vhich  is  hereunto  annexed,  did  appoint  and  con- 
stitute me,  the  undersigned,  A.  Y.,  his  attorney 
for  the  purposes  and  with  the  powers  in  the  same 
letter  of  attorney  at  large  contained. 

That  I,  the  said  A.  Y.,  by  virtue  hereof,  and  of 
the  power  of  substitution  in  said  letter  of  attor- 
ney appearing,  do  substitute  and  depute  S.  E. ,  of 

,  to  be  the  lawful  and  sufficient  attorney  of 

said  A.  B.,  with  all  and  every  authority  and 
power  of  acting  in  the  name,  place,  stead,  and 
to  the  use  of  said  A.  B.,  granted  to  me  by  said 
letter  of  attorney,  which  I  can  lawfully  exercise 
and  delegate. 

And  I  hereby  ratify  and  confirm  ^vhatsoeve^ 
the  said  S.  E.  shall  lawfully  do,  or  cause  to  be 
done  in  the  name  of  the  said  A.  B.,  or  in  my  name 
as  attorney  of  said  A.  B.,  to  the  use  of  said  A.  B., 
by  virtue  of  these  presents,  and  the  power  of  sub- 
stitution in  said  letter  of  attorney  contained. 

In  witness,  etc. 

For  form  of  Acknowledgment,  see  that  title. 

An  attorney  at  law  is  an  officer  of  a 
court  of  justice,  who  is  erpployed  by  a  party 
in  an  action  to  manage  the  cause  for  him.  In 
this  sense  he  is  also  called  advocate,  counsellor 
at  law,  lawyer,  and  solicitor. 


AGENCY. 


8l 


A  client  is  one  who  employs  and  retains  an 
attorney  and  counsellor  to  manage  or  defend  a 
suit  or  action,  to  which  he  is  a  party,  or  to  ad- 
vise him  about  legal  matters. 

Appearance  by  attorney  is  the  general  rule, 
and  appearance  without,  the  exception.'  It 
results  from  the  nature  of  their  functions,  and 
of  their  duties,  as  well  to  the  court  as  to  the 
client,  that  no  one  can,  even  by  consent,  be 
the  attorney  of  both  the  litigating  parties  in 
the  same  controversy.'* 

When  a  party  has  been  aggrieved,  and  is  de- 
sirous of  obtaining  redress  for  the  violation  of 
his  rights,  he  should  adopt  the  best  means  to 
put  himself  completely  in  the  right,  and  to  se- 
cure the  evidence  required  to  support  his  case. 
As  most  persons  are  ignorant  of  the  means  to 
be  adopted  to  gain  that  end,  the  party  should 
immediately  apply  to  some  attorney  to  aid  him. 

Although  a  party  may  himself  conduct  a  suit 
brought  by  or  against  him,  yet  experience 
proves  it  is  very  dangerous  for  him  to  manage 
his  own  case,  whatever  may  be  his  learning  or 
qualities.  He  labors  generally  under  such  an 
excitement  that  it  would  be  difficult  to  behave 
with  that  temperance  and  discretion  so  neces- 
sary to  the  proper  management  of  a  cause; 
besides,  it  is  proper  that  he  should  not  come  in 
personal  collision  with  the  opponent,  for  this 
would  produce  many  indiscreet  acts  which 
would  be  prejudicial  to  his  cause. 

In  the  selection  of  an  attorney  it  is  impor- 
tant to  select  not  a  mere  lawyer,  but  a  man  of 
honor  and  honesty,  having  a  knowledge  of  his 
professional  duties,  of  the  world,  and  being  a 
good  negotiator :  one  who  is  disposed  to  avoid 
litigation,  and,  above  all,  one  who  has  not  any 
connection  with  the  adverse  party.  Pay  him  a 
retaining  fee.  When  an  attorney  is  thus  em- 
ployed, there  is  an  implied  contract,  on  his 
part,  that  he  will  use  due  diligence  in  the 
course  of  legal  proceedings.  He  is  bound  to 
act  with  the  most  scrupulous  honor,  and  to 
attend  to  the  interest  of  his  client  only.' 

The  principal  duties  of  an  attorney  are  :  to 
be  true  to  the  court  and  to  his  client;  to  man- 
age the  business  of  his  client  with  care,  skill, 
and  integrity ;  *  to  keep  his  client  informed  as 
to  the  state  of  his  business ;  and  to  keep  his 
secrets,  confided  to  him  as  such. 

An  attorney  at  law,  by  his  admission  as  such, 
acquires  rights  of  which  he  cannot  be  deprived 
at  the  mere  discretion  of  the  court.*  Such  an 
attorney  need  not  prove  his  authority  to  appear 

a-Appearance  by  an  attorney  has  been  allowed  in 
England  from  the  time  of  the  earliest  records  of  the 
courts  of  that  country;  they  are  mentioned  in  Glanville, 
Brocton,  Fleta,  and  Britton ;  and  a  case  turning  upon 
the  party's  right  to  appear  by  attorney,  reported  Year 
B.,  17  Edw.  3,  p.  8,  case  23 ;  in  France  such  appearance 
was  first  allowed  by  letters  patent  of  Philip  le  Bel,  A. 
D.  1290  ;  I  Fournel  Hist,  des  Advocate,  42,  4^,  q2,  93  ; 
2  Loisel.  Contumes.  14,  15.  b-Farr.  47.  c-8  Watts. 
81  :  3  W.  &  S.  486.  d-4  Burr.  ao6i  ;  i  B.  &  Aid.  202  ; 
2  Wils.  305 ;  I  Bingh.  347.  e-20  Cal.  427.  f-9  Wheat. 
738-830;  6  Johns.  31-296;  27  Miss.  567;  7  Harr.  & 
Johns.  275  ;  16  S.  &  R.  369  ;  i  N.  H.  2-:i ;  8  Foster  fN. 
H.)  302  ;  It  Johns.  464  ;  Burghart  vi.  Gardner,  3  Barb. 
64 :  I  Jac.  &  W.  457 ;  solicitor  is  the  leg;al  He-ii^nation 
ot  one  whn  fills  the  place  in  a  court  of  equity  correspond- 


for  any  party  in  court,  and  act  for  them  there, 
unless  his  authority  be  denied,  and  some  evi. 
dence  be  offered  tending  to  show  that  he  has 
no  such  authority.'  But  a  person  who  is  not 
an  attorney  at  law,  and  who  offers  to  appear  for 
another  in  court,  by  special  authority,  must 
prove  such  authority  if  requested.*  An  at- 
torney's implied  duty  to  use  reasonable  skiii, 
care,  etc.,  is  the  same  as  that  of  other  persons, 
to  whose  care  and  skill  anything  is  intrusted. •• 
He  is  not  responsible  for  a  mistake  in  a  doubt- 
ful point  of  law,'  or  of  practice.J  nor  for  the 
fault  of  counsel  retained  by  him.''  He  is  liable 
for  disclosing  privileged  communications.'  If 
discharged  by  one  party,  he  may  act  for  an 
opposite  party,  provided  he  makes  no  improper 
use  of  knowledge  obtained  by  him  while  acting 
for  the  first  party.™  But  he  may  not  act  for  an 
opposite  party  if  discharged  by  his  first  client 
for  misconduct."  The  law  implies  a  contract 
on  the  part  of  the  client  to  pay  his  attorney  the 
legal  fees,  or  statute  rate  of  compensation." 
And  if  a  client  asserts  that  the  services  were 
to  be  rendered  for  a  less  compensation,  the 
burden  rests  on  him  to  prove  this  bargain.?  If 
a  bargain  be  proved,  the  attorney  cannot  re- 
cover more  by  showing  that  his  services  were 
worth  more.i  And  even  if  he  shows  that  the 
case  was  deemed,  with  good  reason,  a  desper- 
ate one,  this  will  not  sustain  his  claim  for  an 
excessive  compensation,  as,  half  the  sum  re- 
covered.'  If,  during  the  suit,  an  attorney 
makes  a  contract  with  his  client,  which  is  void 
for  champerty,  he  may  still  recover  a  proper 
compensation  for  services  rendered  before  the 
illegal  bargain.*  An  attorney  cannot  maintain 
an  action  for  compensation  for  services,  merely 
by  proof  that  the  services  were  rendered ;  but 
must  go  further  and  show  that  they  were  re- 
quested, or,  in  other  words,  that  he  was  re- 
tained as  an  attorney  or  counsel.*  And  he 
cannot  recover  his  bill  against  his  client,  if  his 
client  has  received  no  benefit  whatever  from 
his  services  by  reason  of  his  want  of  care  and 
skill."  An  attorney  is,  in  general,  personally 
liable  on  an  agreement  made  by  him,  in  his 
own  name,  although  only  personally  concerned 
in  the  matter.''  And  where  employed  in  the 
usual  way  to  conduct  a  suit,  he  has,  in  general, 
no  authority  to  enter  into  a  compromise  with- 
out the  sanction  of  his  client,  express  or  implied. 
The  qualifications  requisite  to  enable  a 
person  to  practise  law  in  the  various  courts 

ing  to  that  of  an  attorney  in  a  court  of  law ;  Maughaa 
Cn.  I,  2  I.  jp-9  Wheat.  829.  I1-4  Burr.  2060 :  3  Camp. 
17-19  ;  7  C.  &  P.  289  ;  6  Bing.  460;  2  Bing.  N.  C.  625  ; 
16  S.  &  R.  368;  15  Mass.  316;  15  Pick.  440;  2  Cush. 
^16 :  12  E.  L.  &  E.  403 :  28  Id.  424 ;  ■;  H.  &  N.  890.  i-4 

B.  &  Ad.  424 ;  I  Nev.  &  M.  262  ;  9  M.  &  W.  569  ;  4 
Burr  2060.  j-3  B.  &  C.  738.  k-4  Mo.  &  P.  149,  S.  C; 
6  Bing.  460.  I-3  Bing.  N.  C.  235;  27  Beav.  140;  3  Met. 
(Ky.)  51 ;  15  Ind.  50 ;  33  La.  An.  330;  11  Ohio  St.  261  ; 
26  ill.  225.  m-i  Jac.  300-303-304  ;  19  Ves.  261 ;  4  Tyr. 
78.  n-19  Ves.  261  ;  4  Tyr.  78.  o-i  Sanf.  569.  p-Id. 
«l(-i2  Ala.  790.  r- Wright,  485.  s-i  Pick.  415 ;  4  Litt. 
417:  6  Monr.  392;  7  B.  Mon.  305.  t-3  Barb.  64.  ii-< 
Bing.  N.  C.  in;  12  A.  k  E.  373;  7  Bing.  569;  12 
Wend.  517:  II  Johns.  547.     v-i  Cr.  &  M.  714;  i  B.  4 

C.  160 ;  3  B.  &  Aid.  47 ;  i  C.  &  P.  307 ;  12  N.  H.  179- 
15  Id.  569. 


83 


AGENCY. 


are,    in   general,   prescribed   by  the   General 
Statutes  of  each  State. 

A  retainer  is  the  act  of  a  client,  by  which 
he  engages  an  attorney  or  counsellor  to  manage 
z.  cause,  either  by  prosecuting  it  when  he  is 
plaintiff,  or  defending  it  when  he  is  defendant. 
The  retaining  fee  is  that  given  to  counsel  on 
being  consulted,  to  insure  his  future  services. 

The  effect  of  a  retainer  to  prosecute  or  de- 
fend a  suit  is  to  confer  on  the  attorney  all  the 
powers  exercised  by  the  forms  and  usages  of 
the  courts  in  which  the  suit  is  pending."  He 
may  receive  payment;''  may  bring  a  second 
suit,  after  being  non- suited  in  the  first  for  want 
of  formal  proof;  y  may  cause  a  review  of 
the  judgment  for  error  ;^  may  discontinue 
the  suit ;  *  may  restore  the  action  after  a  nol. 
pros.;^  may  claim  an  appeal,  and  bind  his 
client  in  his  name  for  the  prosecution  of 
it;"  may  submit  the  suit  to  arbitration;"*  may 
sue  out  an  alias  execution ;  ®  may  waive  ob- 
jections to  evidence,  and  enter  into  a  stipula- 
tion for  the  admission  of  facts,  or  conduct  of 
the  trial,' and  for  the  release  of  bail;*  may 
waive  the  right  of  appeal,  review,  notice,  and 
the  like,  and  confess  judgment. "^  But  he  has 
no  authority  to  execute  a  discharge  of  a  debtor, 
but  upon  the  actual  payment  of  the  full 
amount  of  the  debt,*  and  that  in  money  only ;  J 
nor  to  release  sureties;"  nor  to  enter  a  re- 
traxit;^ nor  to  act  for  the  legal  representatives 
of  his  deceased  client ;  ™  nor  to  release  a  wit- 
ness." 

There  is  an  implied  contract  on  the  part  of 
an  attorney  who  has  been  retained,  that  he 
will  use  due  diligence  in  the  course  of  legal 
proceedings,  but  it  is  not  an  undertaking  to 
recover  a  judgment."  An  atcorney  is  bound  to 
act  with* the  most  scrupulous  honor;  he  ought 
to  disclose  to  his  client  if  he  has  any  adverse 
retainer,  which  may  affect  his  judgment  or  his 
client's  interest;  but  the  concealment  of  the 
fact  does  not  necessarily  imply  fraud.P 
ATTORNEY'S  FORMS 

Appointment   or  Attorney  at  I^aw— ■ 
General  Form. 

I,  A.  B.,  hereby  constitute  A.  Y.,  attorney  at 
la^v,  of ,  my  attorney  in  all  causes,  real,  per- 
sonal, or  mixed,  for  or  against  me,  in  my  name 
to  appear,  plead,  and  pursue  the  same  to  final 
effect,  with  power  of  substitution. 

Witness  my  hand,  the  day  of ,  A.  D. 

.  A.  B. 

Appointment  of  Attorney  at  liaw— 
General  Form. 

I  hereby  authorize  and  empower  A.  Y.,  my  at- 
torney at  law,  to  appear  in  my  behalf,  and  as  my 
said  attorney  represent  my  entire  interests  in  any 
action,  suit,  or  legal  proceeding  (and  especially, 
ftate  the  particular  cause)  in  any  wise  affecting  the 
same,  vrith    ower  of  substitution. 

(^Signed)  A.  B. 

TT-a  M'Cord,  409  ;  13  Met.  (Mass.)  320.  X-13  Mass. 
320;  4  Conn.  517;  I  Me.  257;  39  Id.  386;  i  Wash.  C. 
C.  to;  3  Pet.  18.  y-12  Johns.  315.  SB-16  Mass.  74.  a-6 
Cow.  38s.  b-i  Binn.  469.  c-i  Pick.  462.  d-i  Dall. 
164  ;  16  Mass.  396;  8  Rich.  468  ;  6  McLean,  C.  C.  190; 
7  Cranch,  436.  e-2  N.  H.  376  :  see  9  Met.  (M,i»s.)  423. 
f-2  N.  H.  520.  ff-i  Murphy,  146.  I1-5  N.  H.  393;  4 
Monr.  377;  5  P;t.99.  i-8  Dowl.  656:  8  Johns.  361  ;  10 
Id.  220 ;  10  Vt.  471  ;  32  Me.  110 ;  36  Id.  496 ;  21  Conn. 
»45;  3  Md.  Ch.  Dec.  392;  14  Penn.  St.  87;  13  Ark. 


Appointment  of  Attorney  at  Law. 

By  defendant. 

I,  C.  D..  of ,  do  hereby  appoint,  constitute, 

and  make  A.  Y.,  Esq.,  of ,  my  lawful  and  suf- 
ficient attorney  at  law,  and  in  fact,  to  appear  for 
me  in  a  certain  action  (suit,  or  legal  proceeding', 
wherein  A.  B.  is  plaintiff,  and  C.  D.  defendant, 
pending  in  the court  of ,  and  use  all  law- 
ful ways  aiid  means  in  my  defence,  and  in  my 
name,  therein,  as  maybe  requisite  and  necessary 
in  the  premises,  and  as  fully  as  if  I  were  person- 
ally present  in  said  court.  Hereby  ratifying 
whatsoever  my  said  attorney  may  lawfully  do  in 
the  premises. 

Witness  my  hand,  this day  of ,  A.  D. 

•  C.  D. 

Appointment  of  Attorney  at  I..aw. 
By  plaintiff  to  commence  action. 

I,  A.  B.,  of ,  do  hereby  appoint,  constitute, 

and  make  A.  Y.,  of ,  my  lawful  and  sufficient 

attorney,  in  law  and  in  fact,  to  institute  for  me, 
and  in  my  name,  an  action  (or  suit,  or  legal  pro- 
ceeding), in  any  court  having  jurisdiction,  against 
C.  D.,  for  ior  upon,  etc.,  stating  the  cause,  object, 
matter,  or  tiling  in  dispute),  and  the  same  conduct 
to  trial,  judgment,  and  execution  in  as  speedy  a 
manner  as  said  A.  Y.  reasonably  can,  and  to  use 
all  lawful  ways  and  means,  in  my  name  therein, 
as  fully  as  though  I  were  personally  present  in 
said  court.  {Signed)  A.  B. 

Appointment  of  Attorney  at  Ijaw. 
To  conduct  a  suit  already  pending. 

I,  A.  B.,  of ,  do  hereby  appoint,  constitute, 

and  make  A.  Y.  my  lawful  and  sufficient  attorney 
in  law,  and  in  fact,  to  appear  for  me  in  a  certain 
action  (suit,  or  legal  proceeding)  nowr  commenced 

and  pending  in  the  court  of ,  wherein  I 

am  plaintiff,  and  C.  D.  is  defendant,  and  conduct 
the  prosecution  of^the  same  by  all  lawful  ways 
and  means,  in  my  name,  in  as  full  and  effectual  a 
manner  as  if  I  were  personally  present  in  said 
court.  Hereby  confirming  and  sanctioning  what- 
soever my  said  attorney  shall  lawfully  do  in  the 
premises. 

Witness  my  hand,  this  day  of ,  A.  D. 

.  A.  B. 

A  warrant  of  attorney  is  an  instrument  of 
writing,  addressed  10  one  or  more  attorneys 
therein  named,  authorizing  them,  generally,  to 
appear  in  any  court,  or  some  specified  court,  on 
behalf  of  the  person  giving  it,  and  to  confess 
judgment  in  favor  of  some  particular  person 
named  therein,  in  an  action  at  law.  It  usually 
contains  stipulations  not  to  interpose  any  pro- 
ceeding in  error,  or  any  matter  in  equity  so  as 
to  delay  the  person  in  whose  favor  the  judg- 
ment is  sought. 

A  warrant  of  attorney  is  given  to  the  credi- 
tor as  a  security;  having  it  in  his  possession, 
he  may  sign  judgment  and  have  execution 
issued  without  the  formality  of  an  action  at 
law.i  A  warrant  of  attorney  given  to  confess 
judgment  is  not  revocable,  in  general,  and  not- 
withstanding a  revocation,  judgment  may  be 
entered  upon  it.""  The  death  of  the  debtee 
however,  generally  operates  as  an  effectu;u 
revocation.  So,  also,  the  death  of  the  constit- 
uent operates  as  a  revocation,  and  where  a 
warrant  has  been  executed  by  two,  it  is  vacated 

644;  I  Pick.  347.  i-16  III.  272;  I  Iowa,  360;  see  6 
Barb.  201.  K-3  J.  J.  Marsh.  532  ;  4  McLean,  C.  C.  87. 
I-3  Blackf.  137.  m-2  Penning.  689.  n-2  Greenl.  Ev. 
§  141  ;  6  Barb.  392  ;  see  3  Met.  (Mass.)  413 ;  29  N.  H. 
170;  13N.Y.377;  36  Me. 339;  30hioSt.528;  12  Mo. 
76;  25  Penn.  St.  264.  0-Wright,446  ;  see  3  Campb.  17 
7  C.  &  P.  289 ;  2  Bingh.  625  ;  16  S.  &  R.  368  ;  2  Cush. 
316.  p-3  Mas.  C.  C.  305;  2  Greenl.  Ev.  |'i39.  q-Se« 
14  East.  576 ;  2  T.  R.  100 ;  i  H.  Bl.  75 ;  i  Str.  20 ;  2  W. 
Bl.  1133;  2  Wils.  3;  I  Chitty  Bailm.  707.  r-2  Ld 
Raym.  766,  850;  i  Salk.  87;  7  Mod.  93;  3  Eip.  563. 


AGENCY. 


83 


by  the  death  of  one  of  them ;  but  such  war- 
rant, given  by  two,  being  merely  ministerial, 
may  )x  executed  in  the  name  of  the  survivor.' 
In  case  of  the  constituent's  death,  courts  will, 
however,  allow  judgments  to  be  entered  as  of 
a  term  prior  to  the  death  of  a  constituent."  A 
warrant  of  attorney  to  confess  judgment  exe- 
cuted by  an  unmarried  woman  is  revoked  by 
her  marriage  in  the  absence  of  statutory  pro- 
visions to  the  contrary ;  but  if  executed  by  an 
unmarried  woman  the  courts  will  allow  judg- 
ment to  be  entered  up  in  the  name  of  the  hus- 
band and  wife.*  The  virtue  of  a  warrant  of 
attorney  is  spent  by  the  entry  of  the  one  judg- 
ment; a  second  judgment  entered  upon  the 
same  warrant  of  attorney  is  irregular,"  and 
cannot  lawfully  be  enforced. 

The  general  authority  given  by  the  warrant 
of  attorney  is  usually  qualified  and  restricted 
by  a  bond  which  commonly  accompanies  it, 
together  with  the  conditions  of  defeasance, 
stating  the  terms  upon  which  it  was  given  and 
restraining  the  creditor  from  making  immediate 
use  of  it. 

Great  frauds  are  often  committed  under  color 
of  bonds  and  warrants  of  attorney;  in  many  of 
the  States  they  are  absolutely  prohibited  on  ex- 
perience of  the  abuse  made  of  them.  They  can 
be  tolerated  only  with  a  liberal  exercise  of  dis- 
cretion by  the  court  in  inquiring  into  them.* 

A  warrant  of  attorney  to  confess  judgment 
should  contain  not  only  a  grant  of  authority, 
expressed  clearly  and  intelligibly,  but  a  designa- 
tion, by  name  or  description,  of  the  person  who 
is  to  execute  it.  It  must  be  subscribed  by  the 
defendant,  but  no  formality  is  necessary .y 

WARRANT  OF  ATTORNEY  FORMS. 
Bond  and  Warrant  or  Attorney. 

Know  all  men  by  these  presents: 

That  C.  D.  (of )  is  bound  unto  A.  B.  (of ) 

in  the  sum  of dollars. 

The  condition  of  said  obligation  is: 

That  if  the  above-bound  C.  D.,  his  heirs  or 
legal  representatives,  or  any  of  them,  shall  pay 
or  cause  to  be  paid  unto  said  A.  B.,  his  heirs,  as- 
signs,  or  legal  representatives  the  sum  of 

dollars  (for,  or  on  account  of,  siate  what),  without 
fraud  or  further  delay,  then  said  obligation  shall 
be  void,  otherwise  to  remain  in  full  force. 

And  further,  that  A.  A.,  or  any  other  attorney 
of  any  court  of  record  in  the  State  •f ,  is  here- 
by empowered  to  appear  for  said  C.  D.  in  any 
action  or  suit  brought  or  entered  in  such  court, 
and  after  (complaint,  or  declaration,  or  petition,  as 
the  case  may  be),  filed  therein,  and  without  the 
issuing  or  service  of  process,  to  confess  judgment 
against  said  C.  D.  for  said  sum  of ,  with  in- 
terest (at  the  rate  of per  cent,  per  annum,  from  the 

(lay  of unto  ),  to   release   all   errors, 

waive  all  right  to  appeal  (but  with  a  stay  of  execu- 
tion unto  the day  of ). 

Executed  and  delivered  [  (Signed)  C.  D. 

in  the  presence  of .  j 

Warrant  of  Attorney— General  Form. 

To  A.  Y.,  attorney-at-law,  of  the  court,  at 

t-7  Taunt.  453.  n-2  Kent  Comm.  646,  647;  9  Wend. 
4:2:  8  Wheat.  174;  see  also  2  Ld.  Raym.  766,  849; 
where  the  proceeding  is  discussed;  7  Mod.  9:  3  Str. 
108:  I  Vent.  310;  iSalk.87,  3  Id.  116.  v-iSalk.  :i7; 
I  P.  A.  Browne,  253;  3  Marring.  411.  w-i  Penn.  245; 
6S.  &R.  296:  14  Id.  170;  Addis.  267:  2  Browne.  321  • 
3  Wash.  C.  C.  558.  X-T  Troubat  &  Haly  Pr.  Pt.  i, 
♦05-  y-5  Taunt.  264  :  6  Harr.  86  :  s'je  3  Pa.  72.  z-The 
judgment  docket  must  particularly  state  and  set  forth 
Ae  names  of  the  parties;  7  W.  &  S.  406;  3  Harr.  181. 


,  in  ,  in  the  State  of ,  or  to  any  othei 

attorney  of  said  court,  or  of  any  other  court  of 
record,  there  or  elsewhere. 

Whereas,  C.  D.,  by  a  certain  obligation  of  the 
same  date  herewith  is  bound  unto  A.  B.  in  the  sum 
of dollars: 

Therefore,  you,  or  any  of  you,  are  hereby 
authorized  to  appear  in  behalf  of  said  C.  D.,  his 
heirs,  or  legal  representatives,  in  any  of  said 
courts,  in  any  suit  brought  by  said  A.  B.,  his 
heirs,  assigns,  or  legal  representatives,  on  said 
obligation  without  the  issuing  or  service  of  pro- 
cess, and  confess  judgment  thereupon  against 
said  C.  D.,  his  heirs  or  legal  representatives,  for 

the  sum  of dollars,  interest  and  costs  of  suit 

in  any  manner  or  form,  as  you  shall  deem  proper. 

And  said  C.  D.,  for  himself,  his  heirs  and  legatk 
representatives,  does  hereby  release  and  waive 
all  errors,  mis-entries,  defects,  and  imperfections 
whatever  in  the  entry  of  said  judgment,  or  any 
process  or  proceedings  connected  therewith,  or 
anywise  touching  or  concerning  the  same. 

In  witness  whereof,  I  have  hereunto  set  my 
hand  (and  seal)  this day  of ,  A.  D. . 

(IVitnesses)  W.  T.,  N.  S.  (Signed)  C.  D. 

Judgement  Confessed  on  Warrant. 

Title  of  action,  etc.» 

Date .  Said  A.  B.,by  A.  Y.,  his  attorney, files 

his  (complaint,  or  declaration,  or  petition,  as  the  case 

tnay  be),  against  said  C.  D.  (for dollars  due 

for  or  on  accountofsiaiew/tai),a.nd  thereupon  A.  A., 
one  of  the  attorneys  of  this  court,  appeared  (in 
open  court)  in  behalf  of  said  C.  D. ,  and  by  virtue 
of  a  warrant  of  attorney,  executed  for  that  pur- 
pose, produced  and  duly  proved  the  same  to  said 
court,  waived  the  issuing  and  service  of  process, 
and  confessed  that  said  C.  D.  owes  said  A.  B. 

( dollars  of)  said  sum  of dollars,  as  stated 

in  said  A.  B.'s  (complaint,  or  declaration,  or  petition, 
as  the  case  may  be)  herein. 

It  is  therefore  considered  and  adjudged  that 
said  A.  B.  do  recover  of  said  C.  D.  said  sum  of 

dollars  confessed  due,  together  with  his  costs, 

herein  taxed  at dollars  and cents,  with  a 

release  of  all  errors  and  right  of  appeal,  by  virtue 
of  said  warrant  of  attorney. 

Auctioneers  are  those  who  sell  or  conduct 
the  sale  of  goods,  merchandise  and  real  prop- 
erty, by  public  sale  to  the  highest  bidder."  They 
are  generally  licensed  for  this  purpose  by  public 
authority. 

An  auctioneer  is  the  agent  of  the  seller,* 
and  of  the  buyer  for  some  purposes."  He  has 
a  special  property  in  the  goods,  and  may  bring 
an  action  for  the  price.''  He  has  a  lien  upon 
them  for  the  charges  of  the  sale,  his  commis- 
sion, and  the  auction  duty.®  He  must  obtain 
the  best  price  he  fairly  can,  and  is  responsible 
for  damages  arising  from  a  failure  to  pursue 
the  regular  course  of  business,  or  from  a  want 
of  skill ;'  and  where  he  sells  goods  as  the 
property  of  one  not  the  owner,  is  liable  for 
their  value  to  the  real  owner.8  See  Auctions, 
Sales. 

Bailees  are  persons  to  whom  personal 
property  is  delivered  for  some  specific  purpose; 
as,  to  be  carried  from  one  place  to  another,  to 
be  cared  for  and  kept  in  good  condition,  to  be 
manufactured,  to  be  held  as  security,  and  the 

a-5  Mass.  505  ;  19  Pick.  484.  b-3  T.  R.  14S  ;  2  Rich. 
464  ;  I  Parsons  Contr.  418.  c-4  Ad.  &  E.  792  ;  7  Ea.st. 
558  :  2  Taunt.  38  ;  3  Ves.  &  B.  57  ;  4  Johns.  Ch.  659 ; 
16  Wend.  28;  4  Me.  1,258:  6  Leigh.  j6  ;  2  Kent  Comm. 
539.  d-i  H.Bl.  81;  7  Taunt.  237;  19  Ark.  566;  5  S. 
&  R.  19:  1  Riley,  287;  t6 Johns,  i;  i  E.  D.  Smith. 
590:  see  5  Mees.  &  W.  645  ;  3  Carr.  &  P.  352:  5  B' 
&  Ad.  568.  e-15  Mo.  184  ;  2  Kent  Comm.  536.  f-3  B 
&  Aid.  616  ;  Cowp.  395  ;  2  Wils.  325.  g-?  Taufit.  237 , 
5  Esp.  103  ;  20  Wend.  21 ;  22  Id.  285  ;  5  Mo.  323.  And 
Me  2  Harring.  (Del.)  xyg. 


84 


AGENCY. 


like;  and  after  the  object  or  purpose  of  such 
delivery  is  accomplished,  to  return  the  property 
as  agreed.     See  Bailments. 

Brokers  are  those  engaged  for  others  to 
make  and  conclude  bargains  for  them,  for  a  fee 
or  commission.  Those  who  are  engaged  for 
others  in  the  negotiation  of  contracts  relative 
to  property,  the  custody  of  which  they  have  no 
concern.''  There  are  several  classes  of  brokers. 
See  Factors,  below. 

A  broker  is  for  many  purposes  the  agent  of 
both  parties.  He  is  in  the  first  place  deemed 
only  the  agent  of  his  original  employer,  and 
becomes  the  agent  of  the  other  when  the 
bargain  or  contract  has  been  definitely  settled 
in  its  terms  between  the  principals.* 

Exchange  Brokers  negotiate  bills  of  ex- 
change, domestic  and  foreign,  and  other  securi- 
ties, make  and  conclude  bargains  for  others,  in 
matters  of  money,  securities  and  merchandise, 
learn  the  rates  of  exchange  and  notify  their 
employers  of  the  same.  Their  business  some- 
times includes  the  purchase  and  sale  of  under- 
current currency,  gold  and  silver,  as  well  as 
drafts  and  checks  drawn  or  payable  in  other 
cities.  This  is  at  their  own  risk  and  for  their 
individual  profit,  and  is  not,  therefore,  included 
in  the  business  of  brokerage. 

Exchange  and  merchandise  brokers  negoti- 
ate the  sale  of  merchandise  without  having 
r  ossession  or  control  of  it,  as  factors  or  com- 
mission merchants  do. 

Insurance  Brokers  or  agents,  see  Stock 
Brokers,  procure  fire,  life  and  marine  insurance, 
and  negotiate  between  insurers  and  insured. 

Note  Brokers  negotiate  the  purchase  and 
sale  of  bills  of  exchange,  negotiable  bonds  and 
promissory  notes,  for  which  they  are  paid  a 
percentage  or  commission  by  the  seller,  whose 
name  it  is  not  their  custom  to  disclose.  There 
is  an  implied  warranty  that  what  they  sell  is 
what  they  represent  it  to  be ;  and  should  a  bill, 
bond  or  note  sold  by  them  turn  out  to  be  a  for- 
gery, they  are  responsible.  But  by  showing  a 
payment  over  to  their  principals,  or  other  special 
circumstances  attending  the  transaction,  which 
exonerates  them  in  the  premises,  they  will  be 
discharged  .J 

Pawn  Brokers  make  it  their  business  to 
lend  money  upon  property  deposited  with  them 
in  pledge,  at  usurious  rates  of  interest,  being 
licenced  therefor,  and  exempted  from  the  ope- 
ration of  usury  laws.  See  Bailments;  Pawn 
Brokers. 

Real  Estate  Brokers  or  agents  negotiate 
the  purchase  and  sale  of  real  estate,  procure  loans 
on  mortgage  security,  collect  rents,  lease  houses 
and  lands,  draw  conveyances,  and  furnish  ab- 
stracts of  title  to  property.   See  Conveyancing. 

Ship  Brokers  negotiate  the  purchase  and 
sale  of  ships  and  freighting  vessels.  Like 
other  brokers  they  receive  a  percentage  or 
commission  from  the  seller  or  freighter. 

Stock  Brokers  are  those  employed  to  buy 
and  sell  shares  of  stock,  whether  of  the  public 

ll-Paley  Ag.  13  ;  see  Com.  Dig.  Merck.  6 ;  1-Paley 
^.  171,  n.  p. ;  I  Younfe  J.  Exch.  387 ;  13  Met.  Mass. 


funds,  of  banks  or  other  corporations.  In  tht 
larger  cities  stock  brokers  are  associated  to- 
gether under  a  corporate  name,  as  "  Board  of 
Brokers,"  "  Merchants'  Exchange,"  "  Board 
of  Trade,"  and  the  like.  These  associations 
are  governed  by  rules  and  regulations  made  by 
themselves,  to  which  each  member  is  subject. 
Membership  is  procured  by  ballot  or  vote.  A 
member  defaulting  in  his  obligations  is  ex 
pelled  and  forfeits  his  seat.  A  regular  registci 
or  record  of  all  the  transactions  of  the  body  is 
kept  by  an  officer  of  the  association.  Ques- 
tions and  disputes  between  members  are  settled 
by  an  arbitration  committee.  The  stocks  dealt 
in  at  the  sessions  of  the  board  are  those  placed 
on  the  list  by  a  regular  vote  of  the  association, 
after  the  same  has  been  examined  into  by  a 
committee  for  that  purpose.  The  official  re- 
cord of  sales  is  the  best  evidence  of  the  price 
of  any  stock  jn  a  particular  day.* 
BROKERS'  FORMS. 
An  Order  to  Buy  (or  Sell)  Stock. 
Date . 

B.,  R.  and  S.,  Stock  Brokers. 

Please  (buy  or  sell;  for  my  (or  our)  account  and 
risk  (giving  the  number)  shares  {giving  the  names 
or  descriptions  p/  stocks) . 

This  order  good  until  countermanded. 

A.  B. 
Broker'!*  Receipt  for  Sloney  for  Stock. 
$ Date . 

Received  of  A.  B.  dollars,  for  shares 

stock. 

To  be  transferred  to .  B.,  R.  and  S. 

Broker's  Statement  of  Account,  etc. 

Date  . 

B.,  R.  and  S.,  Stock  Brokers,  etc. 

Bought  for  A.  B.  : 
100  shares  New  York  Central  R.  R.,  at$2o,  .  $2,000  00 
"  Pennsylvania  R.  R.,  at  J20,     -    .    2,000  00 

Commission,  12J4.   -    -    -    -         25  00 


Received  payment,  $4,025  oa 

B.,R.  andS. 

Carriers  are  those  who  undertake  to  carry 
properly  or  passengers  from  one  place  to  an- 
other.    See  Bailments. 

Clerks  are  assistants  in  a  shop  or  store,  who 
sell  goods,  keep  accounts,  etc. ;  those  who  are 
employed  in  the  use  of  the  pen  in  an  office, 
public  or  private,  in  keeping  records  and  ac- 
counts. A  clerk  is  always  a  subordinate.  He 
differs  from  a  factor  in  this,  that  the  latter 
wholly  supplies  the  place  of  his  principal  in 
respect  to  the  property  consigned  to  him,'  while 
a  clerk  attends  to  only  a  part  of  the  business, 
while  his  employer  superintends  the  whole. 

Consignees  are  the  persons  to  whom  goods 
or  other  things  are  delivered  in  trust,  for  sale 
or  superintendence ;  called  also  factors.  The 
goods  or  property  sent  is  called  the  consign- 
ment. 

When  the  goods  consigned  to  them  are  their 
own,  and  they  have  been  ordered  to  be  sent, 
they  are  at  his  risk  the  moment  the  consign  - 
ment  is  made,  according  to  the  consignee's 
direction ;  and  the  persons  employed  in  their 
transmission  are  his  agents."  When  the  goods 
are  not  the  consignee's,  if,  he  accept  the  con- 

463.  J-Edw.  Bills.api ;  4  Duer,  70.  k-Sewell,  Bankr. 
I-Parclesses  Droit  Com.  n.  38  ;  i  Cnitty  Pr.  80 ;  2  BouT. 
Inst.  n.  1287.    m-i  Liverm.  Ag.  9. 


AGENCY. 


85 


lignment  he  is  bound  to  pursue  the  instructions 
of  the  consignor ;  as,  if  the  goods  be  consigned 
upon  condition  that  he  will  accept  the  con- 
signor's bills  when  drawn  upon  him  he  is  bound 
lo  accept  them  when  presented,"  or  if  he  is  di- 
rected to  insure  he  must  do  so." 

Factors  or  Commission  Merchants  p  are 
agents  employed  to  sell  goods  or  merchandise 
consigned  or  delivered  to  them,  by  or  for  their 
prmcipals  for  a  compensation  commonly  called 
factorage  or  commission. i 

Where  the  agent  accompanies  the  ship, 
taking  a  cargo  aboard,  and  it  is  consiiTiv-d  to 
him  for  sale,  and  he  is  to  purchase  a  return 
cargo  out  of  the  proceeds,  such  agent  is  prop- 
erly called  a  factor;  he  is,  however,  usually 
known  by  the  name  of  a  supercargo.'  A  fac- 
tor differs  from  a  broker  in  some  important 
particulare,  viz.:  He  may  buy  and  sell  for  his 
principal  in  his  own  name  as  well  as  in  the 
name  of  his  principal ;  on  the  contrary,  a 
broker  acting  as  such  should  buy  and  sell  in 
the  name  of  his  principal."  Again,  a  factor  is 
intrusted  with  the  possession,  management,  dis- 
posal, and  control  of  the  goods  to  be  bought 
and  sold,  and  has  a  special  property  and  a  lien 
on  them;  the  broker,  on  the  contrary,  has 
usually  no  such  possession,  management,  con- 
trol, or  disposal  of  the  goods,  nor  any  other 
special  property  or  lien.' 

A  domestic  factor  or  commission  merchant 
is  one  who  resides  in  the  same  country  with 
his  principal.  By  the  usages  of  trade,  or  in- 
tendment of  law,  when  domestic  factors  are 
employed  in  the  ordinary  business  of  buying 
and  selling  goods,  it  is  presumed  that  a  recipro- 
cal credit  between  the  principal  and  the  agent 
and  third  persons  has  been  given ;  when  a  pur- 
chase has  been  made  by  such  a  factor,  he,  as 
well  as  his  principal,  is  deemed  liable  for  the 
debt;  and  in  case  of  a  sale  the  buyer  is  re- 
•iponsible  both  to  the  factor  and  principal  for 
the  purchase  money ;  but  this  presumption  may 
lie  rebutted  by  proof  of  exclusive  credit." 

A  foreign  factor  or  commission  merchant  is 
line  who  resides  in  a  different  country  from  his 
principal.  Foreign  factors  are  held  personally 
I  Me  upon  all  contracts  made  by  them  for  their 
fi!)|iloyers,  whether  they  describe  themselves  in 
ihe  contract  as  agents  or  not.  In  such  cases  the 
presumption  is  that  the  credit  is  given  exclu- 
sively to  the  factor.  But  this  presumption  may 
be  rebutted  by  proof  of  a  contrary  agreement.^ 

A  factor  or  commission  merchant  is  required 
t:o  use  reasonable  skill  and  ordinary  diligence 
in  his  vocation."     He  is  bound  to  obey  his  in- 

n-i  Liverm.  Ag.  139.  o-Id.  325.  p-See  generally  1 
Parsons  Contr.  80:  2  Kent  Comm.  629,  et.  seq.;  Story 
Bailm  ^^■x,i^,etseq.  q-Paley  Ag.  13  :  i  Liverm.  Ag.  68  ; 
Story  Ag.  §3^33  ;  Com.  Dig.  Merchant  B.  Malynes  Lex. 
Merc.  81  ;  Beawes  Lex.  Merc.  44;  3  Chity  C.  L.  193; 
z  Kent  Com.  (3  Ed.)  622,  note  d:  i  Bell.  Comm  385, 
??  408,  4op;  a  B  &  Aid.  143.  »*-Beawes  Lex.  Merc 
U.  47;  Liverm.  Ag.  69,  70;  i  Domat  b.  i  /.  16,  g  3, 
irt.  2.  s-3  Chitty  C.  L.  1J3,  210,  541  ;  2  B.  &  Aid.  143, 
48  :  3  Kent.  Comm.  C3d  Ed.)  622,  note  d;  t-Paley  Ag. 
3  (Lloyd's  Ed.):  i  Bell  Comm.  385.  n-Story  Ag.  ^ 
567,  291,  293  ;  9  B.  &  C.  78;  IS  East.  62.  v-Story  Ag 
}»68;  Paley  Ag.  248,  273;  B.  N.  P.  130;  Smith  Merc. 
!•  <6 ;  a  Liverm.  Ag.  249 ;  i  B.  &  P.  398 ;  15  Ewt.  63 ; 


structions ;  *  but  when  he  has  none  he  may  and 
ought  to  act  according  to  the  general  usages  of 
traded — to  sell  for  cash  when  that  is  usual,  or 
to  give  credit  on  sales  when  that  is  customary. 
He  is  bound  to  render  a  just  account  to  his 
principal,  and  to  pay  him  the  moneys  he  may 
receive  from  him. 

He  has  the  right  to  sell  goods  in  his  own 
name;  and  when  untrammeled  by  instruction, 
he  may  sell  them  at  such  times,  and  for  such 
prices,  as,  in  the  exercise  of  a  just  discretion, 
he  may  think  best  for  his  employer.*  He  is, 
for  many  purposes,  between  himself  and  third 
persons,  to  be  considered  as  the  owner  of  the 
goods.  He  may,  therefore,  recover  the  price 
of  the  goods  sold  by  him  in  his  own  name, 
and,  consequently,  he  may  receive  payment, 
and  give  receipts,  and  discharge  the  debtor, 
unless,  indeed,  r.otice  has  been  given  by  the 
principal  to  the  debtor  not  to  pay.  He  has  a 
lien  on  the  goods  for  advances  made  by  him, 
and  for  his  commissions.  He  has  no  right  to 
barter  the  goods  of  his  principal,  nor  to  pledge 
them  for  the  purpose  of  raising  money  for 
himself,  or  to  secure  a  debt  he  may  owe  ;»  but 
he  may  pledge  them  for  advances  made  to  his 
principal,  or  for  the  purpose  of  raising  money 
for  him,  or  in  order  to  reimburse  himself  to 
the  amount  of  his  own  lien.''  Another  excep- 
tion to  the  rule  that  a  factor  cannot  pledge  the 
goods  of  his  principal  is,  that  he  may  raise 
money  by  pledging  the  goods  for  the  payment 
of  duties,  or  any  other  charge  or  purpose  al- 
lowed or  justified  by  the  usages  of  trade." 

It  is  a  general  rule  that  when  property  re- 
mitted by  the  principal,  or  acquired  from  him 
by  his  order,  is  found  distinguishable  in  the 
hands  of  the  factor  or  merchant,  capable  of 
being  traced  by  a  clear  and  connected  chain 
of  identity,  in  no  case  the  link  of  it  degenera- 
ting from  a  specific  trust  into  a  general  debt, 
the  creditors  of  the  factor  who  has  become 
bankrupt  have  no  right  to  the  specific  property,* 
even  when  it  is  money  in  the  creditors'  hands;' 
but  the  rights  of  third  persons  dealing  bona 
fide  with  the  factor  or  commission  merchant  as 
a  principal,  where  the  name  of  the  principal  is 
sunk  entirely,  are  to  be  protected.'  See  Gen- 
eral Statutes. 

Forwarding  Merchants  are  those  who  re- 
ceive and  forward  goods,  taking  upon  them- 
selves the  expenses  of  the  transportation,  for 
which  he  receives  a  compensation.  He  has 
no  concern  in  the  cars  or  vessels  in  which  they 
are  transported,  and  no  interest  in  the  freight. 
See  Bailments. 

9  Barn.  &  C.  78.  W-i  Ventr  121.  X-3  N.  Y.  62:  14 
Pel.  479  ;  5  C.  B.  895.  y-T4  Pet.  479  :  7  Taunt.  164 :  5 
Day,  566;  3  Caines,  226;  Story  C.  C.  43.  *-3  C.  B. 
380.  a-5  Cush.  Ill  ;  2  Mass.  398:  13  Id.  178;  i  M'Cord, 
I  :  I  Mass  C.  C.  440;  5  Johns.  429  ;  see  3  Denio,  472  ; 
13  Eng.  L.  &  Eq.  261  l>-2  Kent  Comm.  ('3d  Ed.)  625' 
628;  4  Johns.  103;  7  East.  5:  Story  Bailm.  ^?  325-327 
C-2  Gall.  C.  C.  13:  6  S.  &  R.  386:  Paley  Ag.  217;  3 
Esp.  282.  «l-Cook  Bank.  L  400;  2  Str.  1182 ;  3  Maule 
&  S.  562.  e-2  Burr.  1369;  5  Ves.  Ch.  169 ;  s  T.  R 
277 :  14  N.  H.  38  ;  2  Dall.  60  :  2  Pick.  86  :  5  Id.  7 ;  and 
sec  Willes,  400  ;  i  Bos.  &  P.  539,  648  :  for  the  rule  as  ta 
promissory  notes,  f-7  T.  R.  360  :  3  Bingh.  139 ;  6  M 
&  S.  14. 


u 


AGENCY. 


Masters  of  Ships  are  commanders  or  first 
officers  of  merchant  ships ;  captains. 

The  master  of  an  American  ship  must  be  a 
citizen  of  the  United  States  ;*  a  similar  require- 
ment exists  in  most  maritime  states.  In  some 
countries  their  qualifications  and  skill  must  be 
attested  by  examination  by  proper  authorities ; 
in  the  United  States  the  civil  responsibility  of 
the  owners  for  their  acts  is  deemed  sufficient. 

A  vessel  sailing  without  a  competent  master 
's  deemed  unseaworthy,  and  the  owners  are 
liable  for  any  loss  of  cargo  which  may  occur, 
but  cannot  recover  on  a  policy  of  insurance  in 
case  of  disaster.''  The  master  is  selected  by 
the  owners,  and,  in  case  of  his  death  or  disa- 
bility during  the  voyage,  the  mate  succeeds. 
If  he  also  dies  in  a  foreign  country,  the  con- 
signee of  the  vessel,  or  the  consul  of  the 
nation,  may,  in  case  of  necessity,  and  in  the 
absence  of  other  authority,  appoint  a  master. 
The  master  himself  may,  in  similar  circum- 
stances of  necessity  and  distance  from  the 
owners,  appoint  a  substitute.*  During  the 
temporary  absence  of  the  master  the  mate  suc- 
ceeds.J  See  Charter  Parties,  Contracts, 
Maritime  Law. 

Partners.  It  may  be  stated,  as  a  general 
principle  which  governs  all  partnerships  in 
trade,  that  each  individual  partner  constitutes 
the  others  his  agents  for  the  purpose  of  entering 
into  all  contracts  for  him  within  the  scope  of 
the  partnership  concew,  and,  consequently, 
that  he  is  liable  to  the  performance  of  all  such 
contracts  in  the  same  manner  as  if  entered  into 
personally  by  himself.''  In  truth,  the  law  of 
partnership  is  a  branch  of  the  law  of  principal 
and  agent.  If  two  agree  that  they  should  carry 
on  a  trade  and  share  the  profits  of  it,  each  is  a 
principal  and  each  is  an  agent  for  the  other, 
and  each  is  bound  by  the  other's  contracts  in 
•carrying  on  the  trade  as  much  as  a  single 
{principal  would  be  by  the  act  of  an  agent  who 
•was  to  give  the  whole  of  the  profits  to  his  em- 
ployer.    See  Partnership. 

Principals  are  those  who,  being  legally 
competent  to  do  any  act  for  their  own 
benefit,  or  on  their  own  account,  confides  it  to 
another  person  to  do  it  for  them.'  The  word 
principal  is  used  in  opposition  to  agent,  and  in 
this  sense  it  signifies  that  the  principal  is  the 
prime  mover.  It  is  also  used  in  opposition  to 
the  word  surety ;  thus  we  say,  the  principal  is 
answerable  before  the  surety. 

Every  one  of  full  age,  and  not  otherwise  dis- 
abled, is  capable  of  being  a  principal;  for  it  is 
a  rule  that  whenever  a  person  has  power,  as 
owner,  or  in  his  own  right,  to  do  a  thing,  he 
may  do  it  by  another.™  Infants  are  generally 
incapable  of  appointing  an  agent;   but  under 

If-i  U.  S.  Stat,  at  L.  287.  I1-21  How.  7,  23 ;  6  Cow. 
270;  12  Johns.  128,  136;  21  N.  Y.  378.  l-i  Parsons 
Marit.  L.  387:  2  Sump.  C.  C.  206;  13  Pet.  387.  j-2 
Sumn.  C.  C.  588 ;  K-6  Bingh.  792  ;  Story  Partn.  i ;  20 
Miss.  122;  10  N.  H.  t6;  Collyer  Partn.  J  195;  Poth. 
Partn.  c.  5.  «.  90:  4  Exch.  623,  630.  l-i  Domat.  b.  i. 
lit.  15,  Introd.;  Story  Ag.  g  2.  m-Com.  Dig.  Atty.  (C. 
I  )  Hemeccius  ad  pand.  p.  i,  i,  3,  tit.  i.  ?  424:  9  Co. 
75  b;  Story  Ag.  3  6.  n-2  Kent  Comm.  333-243  ;  9  Co. 
t5>  76;  3  Burr.  1804;  6  Cow.  393;  10  Ohio,  37;  10  P«t. 


special  circumstances  they  may  make  such 
appointments.  For  instance,  an  infant  may 
authorize  another  to  do  any  act  which  is  bene- 
ficial to  him,  but  not  to  do  an  act  which  is  tc 
his  prejudice."  Idiots,  lunatics,  and  other  per- 
sons not  legally  competent,  are  wholly  incap- 
able of  appointing  an  agent." 

Their  Liabilities  to  agents  are  :  i.  To  re- 
imburse him  all  his  advances,  expenses,  and 
disbursements  lawfully  incurred  about  the 
agency,  and  also  to  pay  him  interest  upon  such 
advances  and  disbursements  whenever  interest 
may  fairly  be  presumed  to  have  been  stipulated 
for  or  to  be  due  to  the  agent. p  2.  To  pay  him 
his  commissions  as  agreed  upon,  or  according 
to  the  usage  of  trade,  except  in  cases  of  gratui- 
tous agency. 1  3.  To  indemnify  the  agent 
when,  without  his  own  default,  he  has  sus- 
tained damages  in  following  the  directions  of 
his  principal.  For  example,  when  the  agent 
has  innocently  sold  the  goods  of  a  third  person 
under  the  direction  or  authority  of  his  princi- 
pal, and  a  third  person  recovers  damages 
against  the  agent,  the  latter  will  be  entitled  to 
reimbursement  from  the  principal.' 

to  third   persons.      The   principal   is 

bound  to  fulfil  all  the  engagements  made  by 
the  agent  for  or  in  the  name  of  the  principal, 
and  which  come  within  the  scope  of  his  usual 
employment,  although  the  agent  in  the  particu- 
lar instance  has  in  fact  exceeded  or  violated 
his  private  instructions.*  And  where  an  ex- 
clusive credit  is  not  given  to  the  agent,  the 
principal  is  liable  to  third  persons  ujxjn  con- 
tracts made  by  his  agent  within  the  scope  of 
his  authority,  although  the  agent  contracts  in 
his  own  name  and  does  not  disclose  his  agency.' 
But  if  the  principal  and  agent  are  both  known, 
and  exclusive  credit  be  given  to  the  latter,  the 
principal  will  not  be  liable  though  the  agent 
should  subsequently  become  insolvent." 

Where  money  is  paid  by  a  third  person  to 
the  agent  by  mistake,  or  upon  a  consideration 
that  has  failed,  the  principal  will  be  liable  to 
repay  it,  although  he  may  never  have  received 
it  from  his  agent.^ 

A  principal  is  affected  by  notice  to  his  agent 
respecting  any  matter  distinctly  within  the 
scope  of  his  agency,  when  the  notice  is  given 
before  the  transaction  begins,  or  before  it  is  so 
far  completed  as  to  render  the  notice  nugatory.* 
The  notice  to  the  agent  may  be  implied  as  well 
as  express:  knowledge ohiamed  by  the  agent  in 
the  course  of  t/iat  very  transaction  is  notice. 
Notice  to  a  servant  of  the  princip.nl,  or  one  em- 
ployed by  the  principal,  affects  the  principal 
only  when  given  about  the  very  thing  the  ser- 
vant is  employed  to  do.  Notice  to  a  corpora- 
tion binds  it    only  when  made  to  an  officer, 

58,  69  ;  14  Mass.  463.  o-Story  Ag.  \  6.  n-Story  Ag. 
I?  335.  336,  338:  Story  Bailm.  196,  197;  Paley  Ag.  107, 
108.  q-Story  Ag.  ?  324;  Paley  Ag.  100-107.  r-Story 
Ag.  §  339;  9  Met.(Mass.)2i8.  s-Story  Ag.  §443  ;  Smith 
Merc.  L.  56,  59  ;  4  Watts.  222 :  21  Vt.  129 ;  26  Me.  84J; 
I  Wash.  C.  C.  174.  t-Story  Ag.  §  446.  n-Id.  ?  447.  V- 
Story  Ag.  §  451 ;  Paley  Ag.  293  :  2-East.  509.  w-2  Hil! 
(N.  y.)45i:  J  Hill  (N.  Y.)  567;  S.  C.  7  Hill,  427.  1 
Barb.  Ch.  287;  3  P.  Wms.  307;  2  Atkins,  630;  i  Id 
384 :  X  Ch.  Cas.  34 :  8  Ala.  519. 


AGENCY. 


87 


whose  situation  and  relation  to  the  corporation 
imply  that  he  has  authority  to  act  for  the  cor- 
poration in  the  particular  matter  in  regard  to 
which  the  notice  is  given.* 

liabilities  for  unlawful  or  wrongful  acts 

ef  agents.  The  principal  is  not,  in  general, 
liable  to  a  criminal  proseculion  for  the  acts  or 
misdeeds  of  his  agent,  unless  he  has  authorized 
or  co-operated  in  such  acts  or  misdeeds.?  He 
is,  however,  civilly  liable  to  third  persons  for 
the  misfeasance,  negligence,  or  omission  of 
duty  of  his  aj^ent  in  the  course  of  the  agency, 
although  he  did  not  authorize  or  know  of  such 
misconduct,  or  even  although  he  forbade  it.* 
And  he  is  liable  for  the  injuries  and  wrongs  of 
sub-agents  who  are  retained  by  his  direction, 
either  express  or  implied.*  But  the  responsi- 
bility of  the  principal  for  the  negligence  or 
unlawful  acts  of  his  agent  is  limited  to  cases 
properly  within  the  scope  of  the  agency. 

A  principal  is  not  liable  for  the  wilful  acts 
of  his  agent  whereby  damage  is  occasioned  to 
another,  unless  he  originally  commanded,  or 
subsequently  assented  to  the  act." 

A  principal  is  liable  for  the  fraud  or  miscon- 
duct of  his  agent,  so  far,  that  on  the  one  hand 
he  cannot  take  any  benefit  from  any  misrepre- 
sentation fraudulently  made  by  his  agent,  al- 
though the  principal  was  ignorant  and  innocent 
of  the  fraud;"  and  on  the  other  hand,  if  a 
parly  dealing  with  an  agent  suffer  from  such 
fraud,  the  principal  is  bound  to  make  him  com- 
pensation for  the  injury  so  sustained  ;••  and  this, 
although  the  principal  be  innocent,®  provided 
the  agent  acted  in  the  matter  as  his  agent,  and 
distinctly  within  the  line  of  business  intrusted 
to  him.' 

In  contracts  made  without  mentioning 

the  name  of  the  principal,  the  principal  may 
avail  himself  of  the  agreement;  for  the  con- 
tract will  be  treated  as  that  of  the  principal  as 
well  as  of  the  agent.  If,  however,  the  person 
with  whom  the  contract  was  made  was  bona 
fide  dealt  with  the  agent  as  owner,  he  will  be 
entitled  to  set  off  any  claim  he  may  have 
against  the  agent  in  answer  to  the  demand  of 
the  principal ;  and  the  principal's  right  to  en- 
force contracts  entered  into  by  his  agent  is 
affected  by  every  species  of  fraud,  mis- 
representation, or  concealment  of  the  agent 
which  would  defeat  it  if  proceeding  from  him- 
self* 

When  goods  are  intrusted  to  an  agent 

for  a  specific  purpose,  a  delivery  by  him  for  a 
different  purpose,  or  in  a  manner  not  authorized 
by  the  commission,  passes  no  property  in  them 

x-3  C.  B.  i6:  19  Vt.  410-425;  4  Paige.  127;  i  Hill 
(N.  Y.)  575;  3  Comst.  156-166;  I  Met.  308;  Story  Ag. 

fi  140  a.  140  i.  y-Story  Ag.  g  452  ;  Paley  Ag.  303  ;  i 
I.  &  M.  433.  B-Story  Ag.  ?  452  ;  Paley  Ag.  294,  307  ; 
Smith  Merc  L.  70,  71  ;  26  Vt.  112, 123  ;  6  Gill  &  J.  201 : 
20  Barb.  507;  7  Cush.  385.  a-Story  Ag.  2  454;  Paley 
Ag.  296  :  I  Bos.  &  P.  409.  b- Paley  Ag.  298,  299  ;  Story 
Ag.  ?  456:  9  Wend.  268;  23  Pick.  25 ;  20  Conn.  284.  c- 
12  M.  &  W.  520;  I  T.  R.  12;  2Stra.  1183  ;  21  Vt.  129, 
6  CI.  &  F.  448;  8  C.  &  P.  316;  I  Hill,  317:  8  How. 
134;  3  Story,  611.  d-i  Salk.  289;  i  Campb.  124;  3 
Strobh.  Eq.  263:  8  Texas,  6  e-7  Bing.  543;  4  T.  R. 
39-66 ;  I  Campb.  530 ;  20  E.  L.  &  E.  285 ;  20  Barb.  493. 


and  they  may,  therefore,  be  reclaimed  by  the 
owner.*" 

Where  the  principal  gives  notice  to  tht 

debtor  not  to  pay  money  to  the  agent,  unless  the 
agent  has  a  superior  right  from  a  lien  or  other- 
wise, the  amount  of  any  payment  afterward 
made  to  the  agent  may  be  recovered  by  the 
principal  from  the  debtor.' 

Money  paid  by  an  agent  may  also  be  recov- 
ered by  the  principal  under  any  of  the  follow- 
ing circumstances :  i.  Where  the  consideration 
fails.  2.  Where  money  is  paid  by  an  agem. 
through  mistake.  3.  Where  money  is  illegally 
extorted  from  an  agent  in  the  course  of  his  em- 
ployment. 4.  Where  the  money  of  the  princi- 
pal has  been  fraudulently  applied  by  the  agent 
to  an  illegal  and  prohibited  purpose.J 

Rights  of  action  under  a  contract  made  by 
an  agent.  In  contracts  by  deed  no  party  can 
have  a  right  of  action  under  them  but  the  party 
whose  name  is  to  them  ;•'  but  in  the  case  of  a 
simple  contract  an  undisclosed  principal  may 
show  that  the  apparent  party  was  his  agent,  and 
may  put  himself  in  the  place  of  his  agent;' 
but  not  so  as  to  affect  injuriously  the  rights  of 
the  othei-  parly.™  When  the  name  of  the 
principal  is  disclosed  at  the  time  of  the  contract 
is  made  by  the  agent,  the  former  is  the  proper 
party  to  sue  upon  the  contract. 

Against  third  persons.     In  general,  the 

principal,  as  against  third  persons,  has  a  right 
to  all  the  advantages  and  benefits  of  the  acts 
and  contracts  of  his  agent,  and  is  entitled  to 
the  same  remedies  against  such  third  persons 
in  respect  to  such  acts  and  contracts  as  if  they 
were  made  or  done  with  him  pei-sonally."  But 
to  this  rule  there  are  the  following  exceptions : 

1.  When  the  instrument  is  under  seal,  and  it 
has  been  exclusively  made  between  the  agent 
and  the  third  person ;  as,  for  example,  a  char- 
ter party  or  bottomry  bond  made  by  the  master 
of  a  ship  in  the  course  of  his  employment.  In 
this  case  the  principal  cannot  sue  orbe  sued  on  it.* 

2.  When  an  exclusive  credit  is  given  to  and 
by  the  agent,  and  therefore  the  principal  cannot 
be  considered  in  any  manner  a  party  to  the 
contract,  although  he  may  have  authorized  it 
and  be  entitled  to  all  the  benefits  arising  from 
it.  The  ca.se  of  a  foreign  factor  buying  or  sell- 
ing goods  is  an  example  of  this  kind.  He  is 
treated,  as  between  himself  and  the  other  party, 
as  the  sole  contractor,  and  the  real  principal 
cannot  sue  or  be  sued  on  the  contract.  This  is 
a  general  rule  of  commercial  law,  founded 
upon  the  known  usage  of  trade,  and  it  is  strictly 

f-S  Esp.  135  ;  3  M.  &  W.  505 :  2  Cr.  &  M.  392.  e-Story 
Ag.  22  420,  421,  440;  2  Kent  Comm  632;  Paley  Ag. 
324,  325;  3  Bos.  &  P.  490:  7  T.  R.  359,  360,  note;  i 
Caines,  299  ;  24  Wend.  45S  ;  3  Hill  (N.  Y.)  72.  h-Paley 
Ag-  340,  .341 :  3  P'ck.  495-  i-Story  Ag.  9  429  :  15  East. 
65:  4  Campb  60;  6  Cow.  181,  186.  j-Paley  Ag.  335, 
337.  K-i  Salk.  197 ;  2  L.  Rav.  1418.  I-4  6.  &  Aid. 
437;  10  B.  &  C  671 ;  I  Campb.  337;  4  B   &  C  664:  11 

jk*j.c..    o_  .    ^  .  tr*    _-  .   o  n*     o.  tir*  o_..    __    Tj    n^o       


ass.  80;  24  Vt.  33 ;  8  M.  &  W.  834;  12  Id   8c8.     m- 

^  T, K   S.  *  J   -"-  :  I  M.  &  W.  591 ;  7  Cush 

&  W.  231.     n-Story  Ag. 


7  T.  R.  359  :  5  B-  «  Ad.  389  ;  i  M.  &  W.  591  ;  7  Cush 
371;  10  B.  Mon.  349;  IS  ^*    '■  '"   —      —  "^ *- 


g?  418,  420;  Paley  Ag.  323;  8  La.  396:  2  Stark.  443 
o-Story  Ag.  2422;  Abbott  Ship  Pt.  3,  Ch.  i.ga;  < 
Wend.  28s;  1  Paine  C.  C.  253  ;  3  Wash.  C.  C.  560. 


88 


AGENCY. 


adhered  to  for  the  safety  and  convenience  of 
foreign  commerce.P 

3.  When  the  agent  has  a  lien  or  claim  upon 
the  property  bought  or  sold,  or  upon  Us  pro- 
ceeds, which  is  equal  to  or  exceeds  the  amount 
of  its  value,  the  principal  cannot  sue  without 
the  consent  of  the  agent.i 

Third  persons  are  liable  to  the  princi- 

f>al  for  any  tort  or  injury  done  to  his  property 
)r  rights  in  the  course  of  the  agency.  If  both 
the  agent  and  third  person  have  been  parties  to 
the  tort  or  injury,  they  are  jointly  as  well  as  sev- 
erally liable  to  the  principal,  and  he  may  main- 
lain  an  action  against  both  or  either  of  them/ 

The  rights  and  powers  of  principals  arise 
from  obligations  due  to  them  by  their  agents 
or  third  parties. 

Those  in  relation  to  their  agents  are : 

1.  To  call  them  to  an  account  at  all  limes 
in  relation  to  the  business  of  the  agency." 

2.  When  the  agent  violates  his  obligations 
to  his  principal,  either  by  exceeding  his  author- 
ity, or  by  positive  misconduct,  or  by  mere  neg- 
ligence or  omissions  in  the  discharge  of  the 
functions  of  his  agency,  or  in  any  other  man- 
ner, and  any  loss  or  damage  falls  on  his  princi- 
pal, the  latter  will  be  entitled  to  full  indemnity.* 
But  the  loss  or  damage  must  be  actual,  and  not 
merely  probable  or  possible." 

3.  Where  both  the  principal  and  agent  may 
maintain  a  suit  against  a  third  person  for  any 
matter  relating  to  the  agency,  the  principal  has 
a  right  to  supersede  the  agent  by  suing  in  his 
own  name  ;  and  he  may  by  his  own  intervention 
intercept,  suspend,  or  extinguish  the  right  of 
the  agent  under  the  contract. '^  But  an  excep- 
tion to  this  rule  arises  in  favor  of  the  agent 
to  the  extent  of  any  lien  or  other  interest  or 
superior  right  he  may  have  in  the  property." 

Actions  against  agents  to  determine  the  right 
of  a  principal.  Where  money  is  paid  to  one 
as  agent,  to  which  another  as  principal  has 
color  of  right,  the  right  of  the  principal  can- 
not be  tried  in  an  action  brought  by  the  party 
paying  the  money,  against  the  agent  as  for 
money  had  and  received  to  the  use  of  such 
party;  but  such  action  should  be  brought 
against  the  principal.*  Yox  a  party  who  deals 
with  an  agent  (acting  as  such,  and  within  the 
scope  of  Ins  authority)  has,  in  general,  no  right 
to  separate  him  from  his  principal,  and  hold 
him  liable  in  his  personal  capacity.  The  agent 
owes  an  account  of  his  actions  to  his  principal, 
and  that  he  may  be  able  to  render  that  account, 
the  law,  except  under  special  circumstances, 
refuses  to  impose  upon  him  a  duty  to  any  third 
party. 

Proxies  are  persons  deputed  or  substituted 
to  act  for  others  or  to  represent  them.  A  proxy 
is  the  agency  of  another  who  acts  as  a  substitute 

p-Story  .Ag.  \  423  ;  Smith  Merc.  L.  66;  15  East.  62  ; 
9  Barnew  &  C.  87  ;  4  Taunt.  574.  q-Story  Ag.  |?  403, 
407,  408,  424.  r-Story  Ag.  g  436  ;  3  Maule  &  S"  562. 
S-2  Bouv.  Inst.  28.  t-\  Liverm.  Ag.  398 ;  Paley  Ag  7, 
71,  74  ;  Story  Ag.  ?  217  c.  :  12  Pick.  328  ;  20  IH.  167  :  6 
Hare  Ch.  366  ;  7  Beav.  Rolls.  176.  n-Story  Ag.  j)  222  ; 
Paler  Ag.  7,  8,  74,  73  ;  but  see  Id.  74,  note  2.  v-Story 
A*.  J  403 ;  4  Campb.  194 ;  3  Hill  (N.  Y.)  72,  73 ;  6  S.  & 


for  his  principal ;  appearance  of  a  representa- 
tive ;  agency  of  a  substitute.  It  is  also  the  instru- 
ment by  which  a  person  is  appointed  so  to  act. 

The  right  of  voting  at  an  election  of  an  in- 
corporated company  is  not  a  general  right,  and 
the  party  claiming  it  must  show  a  special 
authority  for  that  purpose. 

A  Ship's  Husband  is  an  agent  appointed 
by  the  owner  of  a  ship,  and  invested  with 
authority  to  make  repairs  and  attend  to  the 
management  and  other  concerns  of  the  ship, 
lie  is  the  general  agent  of  the  owners  of  th« 
ship,  and  may  be  appointed  orally  or  in  writing. 
He  is  usually,  but  not  necessarily,  owner  o(  the 
ship.y     See  Maritime  Law. 

Supercargoes  are  persons  specially  em- 
ployed by  the  owners  of  cargoes  to  take  charge 
of  and  sell  to  the  best  advantage  merchandise 
which  has  been  shipped,  and  to  purchase  re- 
turning cargoes  and  receive  freight  as  they 
may  be  authorized.  A  supercargo  is  an  officer 
or  person  in  a  merchant's  ship  whose  business 
it  is  manage  the  sales  and  superintend  all  the 
commercial  concerns  of  the  voyage. 

Supercargoes  have  complete  control  over  the 
cargo  and  everything  which  immediately  con- 
cerns it,  unless  their  authority  is  either  expressly 
or  impliedly  restrained."  Under  certain  cir- 
cumstances they  are  responsible  for  the  cargo." 
A  supercargo  has  no  power  to  irkerfere  with 
the  government  of  the  ship.'' 

Warehousemen  are  those  who  receive 
goods  and  merchandise  to  be  stored  in  their 
warehouse,  for  hire.     See  BAILMENTS. 

Wharfingers  are  those  who  own  or  keep  a 
wharf  for  the  purpose  of  receiving  and  ship- 
ping merchandise  to  and  from  it,  for  hire.  See 
Bailments. 

Aggravation.  See  Criminal  Law  ;  Pleading. 
Asffressor.  See  Criminal  Law  ;  Pleading 
Agister.  See  Animals. 
Agreement.    See  Agency  ;  Contracts  ;  Insur* 

ANCE. 

Aid  and  Comfort.  See  Criminal  Law. 

Aiding  and  Abetting.  See  Criminal  Law. 

Air.  See  Real  Property. 

Alia  Enormia.  See  Pleading. 

Alias.  See  Practice. 

Alibi.  See  Evidence;  Practice. 

Alien.    See  Citizen  ;    Enemy  ;  Personal  Rkla. 

TIONS. 

Alienate.  See  Conveyances. 
Alienation.  See  Estates;  Medical  Law. 
Alimony.  See  Divorce. 
Aliunde.  See  Evidence. 
Allegation.  See  Pleading. 
Allegiance.  See  Citizen. 
Alliance.  See  International  Law. 
Allision.  See  Maritime  Law. 
Allodium.  See  Real  Property. 
Allonge.  See  Indorsement. 
Alloy.  See  Monet. 
Allnviuin.  See  Real  Propsrtt. 
Alms.  See  Pauper. 
Alteration.  See  Contract. 
Alternat.  See  International  Law. 

R.  27  :  2  Wash.  C.  C.  283  ;  7  Taunt.  237,  243  ;  i  MauTe 
&  S.  576.  w-Story  Ag.  g?  393,  397,  407,  408,  424.  x- 
II  A.  &  E.  926;  4  Burr.  1984-1986:  8  Taunt.  136;  5  Id. 
815;  12  Barb.  456:  7  Johns.  179;  10  Pet.  137:  13  Id. 
263;  7Cowen,456;  3  How.  236:  Cowp.  565  ;  i  Id.  204; 
jM.  &SeI.  344;  Merc.  Law,-B.  I,  c.  5,  <!  7:  12  M.  & 
W.  588 ;  7  El.  &  E.  528.  y-i  Parsons'  Maritime  Law, 
SS-12  Ea^.  381.  M-4  Mass.  115  ;  see  i  Gill.  &  J.  i 
PardeMtA,  n.  646;  i  Beulay-Paty  Dr.  Com.  4*1. 


^^ 


ANIMALS. 


^ 


Alternative.  See  Contracts. 

Ambassador.  See  Intbknational  Law. 

Ambl^^uity.  Sec  Construction;  Contracts. 

Ambulatory.  See  Wills. 

Amenable.  See  Criminal  Law. 

Amendment.  See  Legislation;  Practice. 

Amends.  See  Torts. 

Amercement.  See  Criminal  Law;  Practice. 

Amicable  Action.  See  Practice. 

Amicus  t'urife.  See  Practice. 

Amnesty.  See  Governmental  Law. 

Amotion.  See  Corporations;  Real  Property. 

Amount  l'overe<l.  See  Insurance. 

AnKiunt  of  Loss.  See  Insurance. 

Analog^y.  See  Argument;   Practice. 

Ancestor.  See  Descent;  Personal  Relations. 

Ancient  House.  See  House  :  Real  Property. 

Ancient  Lig'llts.  See  Lights;  Real  Property. 

Ancient  Rent.  See  Landlord  and  Tenant; 
Rent. 

Ancient  Wrltini^s.  See  Writings. 

ANIltlAliS.  See  Pleading;  Practice;  Prop- 
erty, etc.  ;  Sales  ;  Warranty,  etc. 

Animals  are  all  animated  beings  endowed 
with  the  power  of  voluntary  motion,  except 
those  of  the  human  species.  They  are  either 
domestic  or  wild,  base  or  valuable. 

There  are  animals  which,  though  domestic 
and  reclaimed,  are  not  such  that,  at  common 
law,  a  larceny  may  be  committed  of  them,  by 
reason  of  the  baseness  of  their  nature.  Of  this 
class  are  dogs  and  cats ;  and  others,  though 
wild  by  nature  and  reclaimed  by  art  and  indus- 
try, as  bears,  foxes,  apes,  monkeys,  ferrets  and 
the  like,  fall  within  this  class."  A  larceny  can- 
not be  committed  on  the  young  of  these  animals 
:n  the  nest,  kennel,  or  den."*  The  owner  of 
the  land  has,  however,  a  qualified  property  in 
them  by  reason  of  their  helplessness.®  To  be 
the  subject  of  a  larceny  under  the  statutes  the 
animal  must  be  the  property  of  another  and  of 
value.  Animals  of  a  valuable  nature  are  those 
capable  of  being  a  qualified  property,  such  as 
cattle,  poultry,  and  the  like.     But  see  below. 

Agistry  is  the  taking  and  feeding  of  an- 
other's cattle  in  the  public  commons  or  upon 
one's  own  land,  for  compensation.  Those  who 
pursue  this  occupation  are  called  agisters. 
They  must  not  put  more  cattle  upon  a  common 
or  pasture  than  the  herbage  will  sustain  or  than 
they  have  a  right  to  do ;«  if  they  do  they  are 
liable  in  damages.''  They  are  not,  like  inn- 
keepers, bound  to  take  all  horses  (or  cattle) 
offered  to  them  ;  but  are  not  liable  for  any  in- 
jury done  to  such  animals  in  their  care,  unless 
they  have  been  guilty  of  negligence,  or  from 
their  ignorance  negligence  may  be  inferred.' 
Agisters  of  cattle  have  no  iien,J  in  the  absence 
of  a  statute  allowing  it.'' 

Beasts  are  any  four-footed  animals  which 
may  be  used  for  food,  labor,  or  sport,  distin- 
guished from  birds,  fish,  etc.  Beasts  of  the  chase 
and  beasts  of  the  forest  are  all  those  wild  animals 
which  it  is  lawful  to  hunt ;  among  which  beside 
nthers  maybe  included  the  bear,  wolf,  fox,  etc' 

C-Co.  3d  Inst  109;  I  Hale  PI.  Cr.  511,  512;  i  Hawk. 
PI.  Cr.  33736  .  I  Bl.  Comm.  236 ;  2  East.  PI.  Cr.  614 ;  see 
I  Wms.  Saund.  84,  n.  2.  d-Co.  3d.  Inst.  109  ;  1  Russ. 
Cr.  153  e-2  BI.  Comm.  394.  f-Story  Bailm.  j  443.  g- 
3  Sharsw.  Bl.  Comm.  237;  i  Roll.  Abr.  399.  b-2  Id. 
238  n.  i-Holt.  457.  j-Cro.  Car.  271.  k-23  Penn.  St. 
193:  .see  3  Hill  (N.  Y.)  485.  I-See  Co.  Litt.  233 ;  2 
Sharsw.  Bl.  Comm.  39.  m-3  Binn.  546;  13  Miss.  333; 
lec  Iiut.  2, 1,  [4:   Dig.  4t,  I,  5,  2  ;    7  Johns.  16:   2  Bl. 


Bees,  while  unreclaimed,  are  by  nature  wild 
animals.™  Those  which  take  up  their  abode  in 
a  tree  belong  to  the  owner  of  the  soil,  if  unre- 
claimed, but  if  reclaimed  and  identified  they 
belong  to  their  former  owner."  If  a  swarm 
has  flown  from  the  hive  of  A.  they  are  his  so 
long  as  they  are  in  sight,  and  may  easily  be 
taken,  otherwise  they  become  the  property  of 
the  first  occupant."  Merely  finding  a  tree  on 
the  land  of  another,  containing  a  swarm  of 
bees,  and  marking  it,  does  not  vest  the  property 
of  the  bees  in  the  finder.i*  They  do  not  be- 
come private  property  until  actually  hived. ■> 

Cattle,  in  common  usage,  signifies  only 
beasts  of  the  bovine  genus,  as  oxen,  bulls, 
cows  and  their  young.  In  laws  respecting  do- 
mestic beasts,  horses,  sheep,  mules,  asses  and 
swine  are  generally  distinguished  from  cattle. 
Where,  however,  a  law  gives  damages  for  a 
trespass  by  ra/'//<f  breaking  into  an  enclosure, 
this  will  include  horses,  etc. 

Cows  are  animals  of  the  bovine  species  that 
have  had  a  calf,""  and  under  penal  statutes  which 
mention  Ijoth  cows  and  heifers  an  improper 
naming  of  the  one  for  the  other,  in  an  indict- 
ment, would  be  fatal.' 

Cruelty  to  animals  is  in  many  cases  an  in- 
dictable offence,  and  punishable  by  fine,  im- 
prisonment, or  both.  The  character  of  the 
acts  which  constitute  cruelty  is  in  general 
specified  by  the  statute  defining  the  offence  and 
prescribing  the  punishment.  See  General 
Statutes. 

Dogs  are  animals  of  a  domestic  nature. 

The  owner  of  a  dog  has  such  property  in 
him  that  he  may  mrjntain  an  action  for  an  in- 
jury to  him,  or  to  recover  him  when  unlawfully 
taken  away  and  kept  by  another." 

Dogs,  if  dangerous  animals,  may  lawfully  be 
killed  when  their  ferocity  is  known  to  their 
owner,  or  in  self-defence,' but  a  person  attacked 
cannot  lawfully  return  to  kill  the  animal  in  re- 
venge. When  a  dog  is  bitten  by  a  rabid  animal 
it  may  be  lawfully  killed  by  any  one." 

When,  in  consequence  of  his  vicious  pro- 
pensities, a  dog  becomes  a  common  nuisance, 
the  owner  may  be  indicted ;  and  where  one 
commits  an  injury,  if  the  owner  had  knowl- 
edge of  his  mischievous  propensity,  he  is  liable 
for  the  injury. '^ 

A  man  has  a  right  to  keep  a  dog  to  guard 
his  premises,  but  not  to  put  him  at  the  entrance 
of  his  house,  because  a  person  coming  there  on 
lawful  business  may  be  injured  by  him,  and 
this,  though  there  may  be  another  entrance  to 
the  house.*  But  if  a  dog  is  chained,  and  a 
visitor  so  incautiously  go  near  him  that  he  is 
bitten,  he  has  no  right  of  action  against  the 
owner.* 

Comm.  392.  n-15  Wend.  550  ;  see  i  Cow.  243  ;  2  D«r. 
162.     O-Inst.  2, 1,  14.     I>-7  Johns.  16.     Q-In.st.  2,  i,  14  ; 

3  Binney,  546.  r-2  East.  Pi.  Cr.  616  ;  i  Leech  Cr.  Cas 
105.  8-1  Met.  (Mass.)  555.  t-io  Johns.  363;  13  Id. 
312.  11-13  Id.  312.  v-B.  N.  P.  77;  2  Str.  1264;  I  Ld. 
Raym.  no;  i  B.  &  Aid.  620;  4  Camp.  198;  2  Esp.  482  ; 

4  Cow.  351  ;  6S.  &R.  36;  Addis,  215;  i  111.  492  ;  17 
Wend.  496;  23  Id.  354;  4  Der.  &  B.  146;  10  Cush.  509. 
ir-4C.  &  P.  297;  6  Id.  I.    x-3Sharws.  Bl.  Comm.  154. 


ANIMALS. 


Doves  are  animals  of  a  wild  nature.  They 
are  also  called  pigeons.  Doves  are  not  the 
fubjecl  of  larceny  unless  they  are  in  the  own- 
er's custody,  as,  for  example,  in  a  dove  house  ; 
or  in  the  nest  and  before  they  can  fly,  or  other- 
wise in  the  actual  possession  of  another.?  So 
also  where  they  are  reclaimed  and  tame,  and 
return  to  their  house  or  box.* 

Estray  animals  are  those  whose  owner  is 
unknown.*  Any  beast,  not  wild,  found  on 
one's  premises,  and  not  owned  by  the  occupant. 

i'roceedings  in  the  taking  up  of  stray  ani- 
mals are  ex  parte^  (one-sided — by  taker  up), 
and  governed  by  the  general  statutes. 

A  party  who  wishes  to  detain  property  as  an 
estray  must  show  an  exact  compliance  with  the 
law  on  the  subject  of  taking  up  estrays,  both 
on  his  own  part  and  that  of  the  officer  before 
whom  the  appraisement  was  made."  He  must 
perform  all  those  acts  which  the  law  requires 
to  be  performed,  in  order  to  vest  the  property 
of  the  stray  in  him,*  and  that  such  acts  have 
been  performed  must  affirmatively,  and  in  de- 
tail, appear  on  the  record." 

If  a  man  finds  stray  cattle  in  his  field,  he  is 
not  bound  to  impound  or  retain  them  for  the 
owner,  but  may  drive  them  off  into  the  high- 
way without  being  liable  for  a  conversion.^ 
But  a  person  who  chases  a  horse  out  of  his 
field  with  a  large,  fierce  dog,  commits  an  un- 
lawful act,  and  is  liable  for  any  injury  which 
the  act  occasion.8 

A  person  who  takes  an  estray  to  keep  for  the 
owner,  but  does  not  pursue  the  course  pre- 
scribed by  statute,  is  not  liable  to  an  action, 
unless  he  uses  the  stray''  or  refuses  to  deliver  it 
on  demand.'  Riding  a  horse  to  discover  the 
owner  is  not  use.J    See  General  Statutes. 

Fish  are  animals  of  a  wild  nature.  No  one 
has  any  property  in  them  until  they  are  cap- 
tured; and,  like  other  wild  animals,  if  having 
been  taken  they  escape  and  regain  their  lib- 
erty, the  captor  loses  his  property  in  them.  A 
person  has  no  right  to  fish  in  the  waters  of  an- 
other, and  acquires  no  property  in  the  fish 
caught  except  by  tlie  owner's  consent.  See 
Fishery;  Real  Property. 

Game  is  birds  and  beasts  of  a  wild  nature, 
obtained  by  fowling  and  hunting.^  Laws  reg- 
ulating the  killing  or  taking  of  birds  and  beasts 
are  in  force  in  the  different  States  and  may  be  con- 
sulted by  reference  to  the  General  Statutes. 

Horses  are  animals  of  a  domestic  nature 
.01  the  age  of  four  years  and  upwards ;'  under 
the  age  of  four  years  they  are  called  colts.' 
The  word  horse  is  used  as  a  generic  name  for 
3II  animals  of  the  horse  kind." 

Borrowing  renders  the  borrower  liable  for 
negligence,  misuse,  gross  want  of  skill  in  use, 

y-9  Pick.  15.  ai-2  Denio  Cr.  Cas.  361 ;  see  Id.  362, 
n. ;  4  C.  &  P.  131.  »-2  Kent  Comm.  359  ;  Spellman 
Gloss,  b-3  Mo.  302  ;  6  Id.  64.  C-3  Mo.  302 ;  13  111. 
64;  37  Mo.  119.  d-8  Id.  344.  e-3  Mo.  302;  6  Id.  64. 
f-i8  Pick.  277.  b:-6  Blackf.  258.  h-4  Pick.  240;  7 
Watts,  557.  I-4  Pick.  249.  J-7  Watts,  557.  K-Boc. 
Abr. ;  see  11  Met.  Mass.  to.  "I-i  Russ.  &  R.  Cr.  Cas. 
416.  in-3  Brev.  9  ;  see  Yelv.  67,  a.  n-27  L.  J.  Q.  B. 
167;  see  3  L.  T.  N.  S.  785.  o-i  Mod.  210,  S.  C ;  3 
SaUc.  S71:    4Saiidf.  8.      p-Story  Bailm.  300 ;    5  Mas*. 


and  fraud.  The  lender  is  liable  in  case  the 
thing  lent  is  unfit  or  dangerous,  and  thereby 
occasions  injury ;  as,  if  the  owner  of  a  horse, 
knowing  it  to  be  vicious  and  unmanageable, 
lends  it  to  one  ignorant  of  its  bad  qualitie.s, 
concealing  them  from  him,  and  by  reason 
thereof  the  rider  is  thrown  from  it  and  injured." 
The  animal  should  be  used  only  for  the  purpose, 
and  to  the  extent  stipulated.  A  borrowed 
horse  cannot  be  used  by  a  servant."  And  one 
borrowing  a  horse  for  a  week  to  go  to  Boston, 
keeping  him  a  month,  or  goes  to  Albany,  is  re- 
sponsible for  any  accident  to  the  horse  in  his 
journey  to  Albany  or  after  expiration  of  the 
week.P  When  no  time  is  fixed  a  reasonable 
time  for  the  purpose  intended  will  be  presumed. 
During  the  loan  the  borrower  must  care  for  and 
provide  the  horse  with  food,  drink  and  shelter.' 
If  from  exhaustion  he  refuses  his  food  he  should 
be  cared  for  and  unworked  until  restored.  If 
he  dies  from  disease,'  or  is  killed  by  inevitable 
accident,  or  the  like,  the  borrower  is  not  liable. 
When  the  purpose  of  the  loan  is  accomplished 
or  the  time  thereof  is  elapsed,  he  should  be  re- 
turned to  his  owner.  A  misuser  of  the  animal 
will  put  an  end  to  loan."    See  "  Hiring,"  below. 

Defects  that  are  patent,  that  is,  which  are 
manifest,  open  and  plain  to  an  ordinary  ob- 
server (as  a  horse  minus  an  eye  or  tail),  and 
those  also  which  are  known  to  the  buyer,  are 
not  usually  covered  by  a  general  warranty.' 
The  former  requires  no  skill  to  discover  them, 
and  the  latter  may  be  objected  to  or  acquiesced 
in  at  the  time  of  purchase.  In  the  case  of 
latent  defects  existing  in  such  a  condition  that 
they  could  not  be  detected  by  the  buyer,  and 
are  known  to  the  seller,  who  fails  to  disclose 
them  to  the  buyer,  this  is  a  constructive  fraud, 
unless  the  animal  is  sold  "  with  all  faults."  By 
consenting  to  purchase  the  horse  "  with  all 
faults,"  the  purchaser  takes  upon  himself  the 
risk  of  latent  or  secret  defects,  and  calculates 
the  price  accordingly."  But  even  this  kind  of 
a  purchase  would  be  voidable  if  the  seller  had 
purposely,  and  to  deceive  the  purchaser,  cov- 
ered, filled  up,  patched,  plastered,  or  otherwise 
practised  fraud  to  conceal  any  defects,  and  the 
seller  would  be  held  liable. '^ 

Hiring  out  a  horse  and  carriage  to  perform 
a  particular  journey  carries  with  it  the  warranty 
of  the  person  letting  that  the  horse''  and  carri- 
age, and  each  of  them,  is  fit  and  competent  for 
such  journey,  and  this  though  a  particular 
horse  has  been  selected  out  of  the  owner's 
stables.*  But  if  a  horse  is  hired  for  one  pur- 
pose and  is  used  for  another,  and  is  injured, 
the  hirer  is  liable  for  the  damage  sustained. 
The  hirer  is  in  all  cases  answerable  for  ordinary 
neglect.J"  If,  therefore,  he  uses  the  hired  horse  as 

104;  16  Ga.  25.  <|-2  B.  &  B.  359;  I  Gow.  I.  r-Palm. 
548  ;  2  V.  &  J.  394.  s-2  Exch.  482.  t-See  21  Tex.  300  ; 
10  Ves.  507  ;  2  Caines,  202  ;  2  J.  J.  Marsh.  587 ;  2  RoUe 
5  ;  2  Humph.  305  ;  2  Head.  314  ;  18  Penn.  St.  203  ;  i 
Eng.  166  ;  I  La.  An,  389  ;  28  Ala.  424  ;  24  Conn.  562  ; 
37  Vt.  155 ;  13  Rich.  L.  98.  n-3  Campb.  156.  v-4 
Taunt.  784,  785 ;  3  Campb.  508  ;  s'Bingh.  535  ;  2  Exch. 
';4i ;  Story  Sales,  126.  w-io  L.  T.  231,  308.  x-io  L. 
T.  231.  y-Jones  Bailm.  2$;  100  Mass.  40;  3  Alio 
564. 


ANIMALS. 


91 


A  pradent  man  would  his  own,  he  is  not  answer- 
able for  any  damage  which  the  horse  may  re- 
ceive.* If,  however,  he  keeps  the  hired  horse 
after  a  stipulated  time,  or  uses  it  differently 
from  his  agreement,  he  is  in  any  event  hable.* 
If  a  horse  is  taken  sick  on  an  agreed  journey, 
without  fault  of  the  hirer,  the  expense  of  the  cure 
must  be  born  by  its  owner."*  If  the  hirer  pre- 
scribe the  medicine  he  is  liable  for  improper 
treatment ;  but  not  so  if  he  calls  in  a  farrier.* 
The  hirer  must  pay  for  his  shoeing  during  the 
hire,  unless  the  horses  are  driven  by  the  ser- 
vants of  him  who  lets  them."*  If  the  hirer 
Sells  the  horse  the  owner  may  recover  its  value 
of  the  purchaser,  though  the  purchaser  had  in 
good  faith  given  the  hirer  full  value  for  it,  as 
the  hirer  could  give  him  no  better  title  than 
he  had  himself.*  If  one  under  the  pretence 
of  hiring  gets  a  horse  out  of  the  possession  of 
the  owner  and  offers  it  for  sale,  there  is  no 
criminal  offence  until  the  sale  is  actually  ef- 
fected.' If  the  horse  were  first  hired  in  good 
faith  and  afterwards  sold,  this  at  common  law 
is  no  felony. 8  If  through  the  hirer's  negli- 
gence the  horse  is  stolen  he  must  answer  for 
it."*  In  general,  the  owner  of  a  horse  is  lial)le 
for  any  accident  which  may  befall  it  when 
fairly  used  by  the  hirer.'  If  a  person  hire  a 
carriage  and  any  number  of  horses,  and  the 
owner  sends  his  postillion  or  servant  with  them, 
the  hirer  is  discharged  from  all  attention  to 
them,J  and  any  damage  done  through  the  negli- 
gence of  the  servants  must  be  answered  for  by 
their  employer  or  master.^  The  hirer  of  a  horse 
and  carriage  is  liable  for  damage  occasioned  by 
the  negligence  of  himself  or  his  servant. 
Where  two  persons  hire  a  carriage  they  are 
both  answerable  for  any  damage  occasioned  by 
the  negligent  driving  of  one  of  them.  Where 
it  is  hired  by  one  only,  the  other,  who  is  a 
mere  passenger,  is  not  liable.'  Where  a  master 
and  servant  are  together  in  a  carriage,  and  an 
injury  ensues,  the  master,  from  his  mere  pres- 
ence, is  a  co-trespasser,  if  the  act  of  his  servant 
amounts  to  a  trespass." 

Sales.  See  Defects,  above ;  Unsoundness, 
Vice,  Warranty,  below. 

Unsoundness  is  a  disqualification  for  work 
which  arises  either  from  disease  or  accident." 
If  at  the  time  of  sale  the  horse  has  any  disease 
which  either  does  actually  diminish  the  natural 
usefulness  of  the  animal  so  as  to  make  him  less 
capable  of  work  of  any  description,  or  which  in  its 
ordinary  progress  will  diminish  the  natural  use- 
fulness of  the  animal ;  or  if  the  horse  has,  either 
from  disease  or  accident,  undergone  any  alter- 

Z-3  Camp.  5  n.  a-Jones  Bailm.  121 ;  see  26  Miss. 
413  ;  15  Gray,  306.  b-Path.  Lonage,  i2q  ;  Story  Bailm. 
259;  3  Allen,  595  ;  13  Gray,  234.  0-3  Campb.  4.  «1- 
Poth.  Lonage,  107,  129 ;  Story  Bailm.  258.  e-5  C.  & 
P.  313:  I  C.  B.  672.  f-8  C.  &  P.  295:  see  i  Leach. 
212,400,420.  g-8  C.  &  P.  295.  h-Jones  Bailm.  88; 
jee  loCush.  117;  26Vt.  316;  29  Tex.  40;  41N.H.282; 
Am.  L.  Rev.  1871.  i-See  3  F.  &  F.  152  ;  2  C.  B.  N. 
5.  790,  and  12  M.  &  W.  60;  23  L.  J.  Exch.  108.  j- 
Jones  Bailm.  88;  5  Esp.  263  ;  2  M.  &  R.  i.  k-5  Esp. 
35  ;  5  B.  &  C.  558  ;  see  also  5  B.  &  C.  ss6  ;  6  M.  &  W. 
499  ;  5  B.  &  C.  S47.  1-4  Esp.  229.  m-Cr.  St  M  220  ; 
»ee  also  i  Cr.  &  M.  354 ;  4  M.  &  G.  48.  n-9  M.  &  W. 
tfi.    O-Chitty  Contr.  7  Am.   Ed.  464.     p-2  M.  Be  R. 


ation  of  structure  that  either  does  at  the  time, 
or  in  its  ordinary  effects,  will  diminish  the  nat- 
ural usefulness  of  the  horse,  such  horse  is  un- 
sound." Sound  means  that  the  auiraal  is  sound 
and  free  from  disease  at  the  time  he  is  war- 
ranted sound  ;P  and  the  only  qualification  which 
It  is  susceptible  of  arises  from  the  purpose  for 
which  the  warranty  is  given.i  A  horse  is 
sound  when  he  is  free  from  hereditary  disease, 
is  in  possession  of  natural  and  constitutional 
health,  and  has  a  physical  perfection  consistent 
with  his  natural  formation.' 

Vice  is  unsoundness ;  a  horse  is  free  from 
vice  when  he  has  no  bad  habits  that  make  him 
dangerous,  or  are  injurious  to  his  health,  or  in 
any  way  diminishes  his  natural  usefulness.' 

Warranty  is  distinct  from  the  contract  of 
sale ;  and  unless  it  is  made  a  part  of  the  con- 
tract of  sale  (as,  having  agreed  as  to  the  terms 
of  the  sale,  the  buyer  says  I  will  purchase  of 
you  if  you  will  warrant  the  article  so  and  so, 
etc.),  there  is  no  warranty  founded  on  the  sale." 
Warranty  "fe  a  distinct  contract,  and  must  be 
supported  by  a  consideration ;  in  the  above 
example,  the  consideration  is  the  purchase. 
If  the  warranty  is  made  after  the  sale  there 
must  be  a  new  and  distinct  consideration,^ 
See  Warranty. 

Hunting,  or  the  chase,  is  the  act  of  acquiring 
possession  of  animals,  wild  by  nature,  by  force, 
cunning,  or  address.  The  act  of  pursuing 
wild  animals  for  the  purpose  of  catching  or 
killing  them.  It  is  practised  for  food,  exercise, 
diversion,  or  for  the  destruction  of  noxious 
animals.  The  hunter  acquires  a  right  to  such 
animals  by  possessing  them,  and  they  thereby 
become  his  property."  But  no  man  has  a  right 
to  enter  the  lands  of  another  for  the  purpose 
of  hunting  without  his  consent.'' 

Injuries  to  animals  of  a  domestic  nature  are 
the  subject  of  an  action  at  law  for  the  damage 
sustained,  and  where  it  amounts  to  cruelty,  in 
many  States,  to  a  criminal  prosecution.  See 
Criminal  Law,  Pleading,  Practice. 

Mischievous  animals  render  their  owners 
liable  when  known  to  them  to  be  so,  and  they 
are  responsible  when  they  permit  them  to  go  at 
large,  for  the  damage  they  may  do.^  Any  per- 
son may  justify  the  killing  of  ferocious  animals.* 

Pounds  are  enclosures  erected  by  public 
authority,  in  which  cattle  and  other  beasts  are 
confined  and  detained  when  taken  in  trespass- 
ing, estray,  or  going  at  large  in  violation  of 
law.* 

Property  in. — In  tame  or  domestic  animals, 
such  as  horses,  cattle,  sheep,  poultry  and  the 

113.  q-See  i  M.  &  R.  137.  r-4  Campb.  281.  s-9  M. 
&W.  668;  2M.&R.  157;  4 Campb.  281;  i  Stark.  127; 
2  M.  &  R.  113  ;  2  Esp.  673  ;  10  Ala.  255  ;  i  Foster  N. 
H.  116;  5  Hprring.  233  ;  28  L  J.  Q.B.  9;  23  Ark.  730;  21 
Id.  349 ;  19  Md.  50  ;  7  Car.  &  P.  85  ;  R  &  M.  136 ;  21 
Ga.  69.  t-2  M.  &  Rob.  210.  U-37  Penn.  St.  147;  100 
Mass.  432;  41  Vt.  631.  v-t4Wis.  258;  5  Harring.  233; 
8  Bingh.  48  S.  C. ;  see  i  M.  &  S.  74 ;  2  Bingh.  183,  S. 
C.  ;  9  Monr.  356  ;  4  Gray  457  ;  5  Vt.  28  ;  9  Id.  285  ;  u 
Pick.  97.  W-4  Toull.  n.  7.  X-14  East.  249;  Poth. 
Propriete  Pt.  i.  Ch.  2,  a.  2.  y-2  Esp.  482;  i  Holt.  617. 
2  Str.  1264;  Ld.  Raym.  110;  B.  N.  P.  77 ;  i  B.  &  A. 
620;  2  C.  M.  &  R.  496;  5  C.  &  P.  I.  SB-9  JoltDS.  233, 
10  Id.  365 ;  13  Id.  312.    a-4  Pick.  258 ;  5  Id.  514 ;  9  Id.  14. 


^ 


ANIMALS— APPRENTICESHIP. 


like,  a  man  may  have  an  absolute  property, 
because  they  continue  perpetually  in  his  posses- 
sion and  occupation,  and  will  not  stray  from 
his  house  and  person  unless  by  accident  or 
fraudulent  enticement,  in  either  of  which  cases 
the  owner  does  not  lose  his  property."  But  in 
animals  wild  by  nature  a  man  can  have  no 
absolute  property;  they  belong  to  him  only 
while  they  continue  in  his  possession,  for  if  at 
any  time  they  regain  their  natural  liberty,  his 
property  instantly  ceases,  unless  they  have  the 
intention  of  returning,  which  is  only  to  be 
known  by  their  habit." 

Animals,  wild  by  nature,  so  long  as  they  are 
reclaimed  by  the  art  and  power  of  man,  are 
the  subject  of  a  qualified  property ;  but  when 
they  are  abandoned,  or  escape,  and  return  to 
their  natural  liberty  and  ferocity,  without  the 
intention  of  returning,  the  property  in  them 
ceases.  While  this  qualified  property  con- 
tinues, it  is  as  much  under  the  protection  of  the 
law  as  any  other  property,  and  every  invasion 
of  it  is  redressed  in  the  same  manner.*  If  an 
animal  belongs  to  the  class  of  tame  animals,  as 
for  instance,  to  the  class  of  horses,  sheep,  or 
cattle,  he  is  then  clearly  a  subject  of  absolute 
property;  but  if  he  belongs  to  the  class  of 
animals  which  are  wild  by  nature,  and  owe  all 
their  temporary  docility  to  the  discipline  of 
man,  such  as  deer,  fish,  and  the  several  kind 
of  fowl,  then  the  animal  is  the  subject  of 
qualified  property,  and  which  continues  so 
long  as  the  tameness  and  domestication  remain. 
Whether  the  animal  be  wild  or  tame  is  referred 
to  our  knowledge  of  his  habits,  derived  from 
fact  and  actual  experience. 

Pursuit  alone  gives  no  property  in  animals 
wild  by  nature.*  The  animal  must  have  been 
brought  within  the  power  of  the  pursuer  before 
property  in  the  animal  vests ;  for  mere  pursuit 
without  bringing  the  animal  within  the  power 
of  the  parly  is  not  sufficient.  The  possession 
must  be  so  far  established  by  the  aid  of  nets, 
snares,  or  other  means,  that  the  animal  cannot 
escape.  An  action  will  not  lie  against  a  per- 
son for  killing  and  taking  an  animal  which  has 
been  pursued  by  another,  and  was  then  actually 
in  view  of  the  person  who  had  originally  found, 
started,  and  chased  it,®  for  the  mere  pursuit  and 
being  in  view  of  the  animal  did  not  create  a 
property,  because  no  possession  had  been  ac- 
quired.^ And  property  in  a  wounded  wild  beast 
does  not  attach  until  the  beast  is  actually  taken. 8 

Sales  of  domestic  animals  are  governed  by 
the  general  law  of  sale  of  personal  property, 
and  whether  they  are  in  the  owner's  possession, 
or  under  his  immediate  control,  at  the  time  of 
sale,  is  not  a  matter  of  much  moment.  But  to 
make  a  valid  sale  of  animals  of  a  wild  nature, 

b-2  Bl  Comm.  390;  2  Mod.  319,  and  next  note,  c-a 
Bl.  Comm.  396:  3  Binn.  546:  Bro.  Ab.  Pro.  37;  Com. 
Dig.  Bl.  4:  7  Co.  17  3;  I  Ch.  Pr.  87;  Just.  2,  i,  15;  3 
Caines.  175;  Coop.  Just.  457-8 ;  7  Johns.  16;  Bro.  Ab. 
Dit.  «l-7  Co.  16-18.  e-3  Caines,  175.  f-20  Johns.  75. 
g;-Ip..st.  2,  I,  13.  h-Dig.  6, 1,  5,  2  ;  Inst.  2,  i,  9.  1-Inst. 
2,  I,  19.  J-i  Bouv.  Inst.  «.  167,  502.  li-i  Bl.  Comm. 
426,  2  Kent  Comm.  211;  3  Rawle,  307;  Chitty  App., 
4  T.  R..  735;  Bouv.  Inst.  Index.     1-Pardessus  Droit 


the  vender  must  have  a  qualified  property  in 
them,  produced  by  reclaiming,  taming,  or  con- 
fining them,  as  deer  in  his  park,  doves  in  his 
dove-cot,  or  fish  in  his  private  pond,  etc. 

Young.  It  is  a  rule  that  the  young  of  domes- 
tic or  tame  animals  belong  to  the  owner  of  the 
dam  or  mother,  according  to  the  maxim  :''  "  The 
offspring  follow  the  condition  of  the  mother."' 
This  is  the  law  in  case  of  slaves  and  animals.J 

Antino.  See  Intention. 

AniinuN  Fiirandi.  See  Stealing. 

Annexation.  See  Personal  Propbsty  ;  Real 
Property. 

Anno  Domini.  See  Pleading;  Time;  Year. 

Annual  Assay.  See  Money. 

Annuity.  See  Contracts;  Payment. 

Answer.  See  Pleading. 

Ante-Xu|>tial.  See  Marriage. 

Antenate.    See  Ascenoeni-s ;  Personal  Rll.-.- 

TIONS. 

Anticipation.  See  Acts. 
Apartment.  See  House. 
Apoplexy.  See  Medical  Law. 
Apparent.  See  Practice. 
Appeal.  See  Practice. 
Appearance.  See  Practice. 
Appointment.  See  Agency;  Authority. 
Apportionment.     See   Contracts;     Incum- 
brances; Representatives. 
Appraisement.  See  Practice. 
Apprehension.  See  Practice. 

APPREXTI€ESHIP.  See  Contracts;  Per- 
sonal Relations. 

An  APPRiiiNTiCE  is  a  person  bound  in  due 
form  of  law  to  a  master,  to  learn  from  him  his 
art,  trade,  or  business,  and  to  serve  him  during 
ihe  time  of  his  apprenticeship.^ 

Apprenticeship  is  a  contract  by  which  one 
person  who  understands  some  art,  trade,  pro- 
fession, or  business,  and  called  the  master, 
undertakes  to  teach  the  same  to  another,  who 
is  a  minor,  and  called  the  apprentice,  who,  on 
his  part,  is  bound  to  serve  the  master  during  a 
definite  period  of  time,  in  such  art,  trade,  pro- 
fession, or  business.  It  is  the  term  for  which 
an  apprentice  is  bound  to  serve  his  master.* 

Assignment.  Apprenticeship  is  a  relation 
which  cannot,  in  the  absence  of  a  statute  al- 
lowing it,  be  assigned.*"  Though  if  under 
such  an  assignment  the  apprentice  continue 
with  his  new  master,  with  the  consent  of  all  the 
parties  and  his  own,  it  will  be  construed  as  a 
continuation  of  the  old  apprenticeship." 

Binding  out.  By  the  common  law  an  in- 
fant could  bind  himself  apprentice  by  indenture 
because  it  is  for  his  benefit."  But  on  account 
of  liability  to  abuse,  this  right  has  beeu  regu- 
lated by  statute,  and  is  not  binding  upon  the 
infant  unless  entered  into  with  the  consent  of 
the  parent  or  guardian ;  the  father,  if  both 
parents  are  alive  ;P  the  parent  and  guardian 
where  he  has  both,  with  the  infant's  consent, 
which  must  be  made  a  part  of  the  contract ; « 
or  if  the  infant  is  a  pauper,  then  by  the  authori- 
ties and  without  his  consent.''     The  contract 

Comm.  n.  34.  ni-5  Binn.  413;  4  T.  R.  373:  Dou?l. 
70;  3  Keb.  519;  12  Mod.  554;  18  Ala.  N.  S  ;  99  Busb. 
419  n-Dougl.  70  •  4  T.  R.  373  :  19  Johns.  113  ;  s  Cow. 
363  ;  2  Bail.  93.  0-5  M.  &  S.  2^7 :  6  T.  R.  652 ;  R  Dowl. 
&  R.  339.  p-8  W.  &  S.  339.  «i-2  Kent  Comm  261 :  8 
Johns.  328 ;  T4  Id.  374;  2  Penn.  97'7;  4  Watts.  80;  43 
Me.  458;  12  N.  H.  437.  4  Leigh.  493.  r-sS.&R.isS; 
32  Me.  299;  3  Jones,  21 ;  15  B.  Mon.  499;  30  N.  U. 
104 ;  5  Gratt.  285. 


APPRENTICESHIP. 


93 


need  not  specify  the  particular  trade  to  be 
taught,  but  is  sufficient  if  it  be  a  contract  to 
teach  such  manual  occupation,  or  branch  of 
business  as  shall  be  found  best  suited  to  the 
genius  or  capacity  of  the  apprentice." 

A  Contract  of  apprenticeship  is  generally  by 
deed  or  indenture,'  to  which  the  infant,  as  well 
ts  the  parent  or  guardian,  must  be  a  party,  or 
the  infant  will  not  be  bound."  It  continues, 
generally,  if  the  apprentice  be  a  male,  during 
minority  only;  if  a  female,  until  she  arrives 
at  the  age  of  eighteen." 

To  be  binding  on  the  apprentice,  the  contract 
must  be  made  as  prescribed  by  statute."  An 
indenture  not  entered  into  according  to  law  is 
utterly  vc^d,  as  concerns  the  apprentice  therein 
bound ;  but  it  can  only  be  avoided  by  the  ap- 
prentice himself;*  and  if  the  apprentice  do 
elect  to  avoid  it,  he  will  not  be  allowed  to  re- 
cover wages  for  his  services,  the  relation  being 
sufficient  to  rebut  any  promise  to  pay  which 
might  otherwise  be  implied.?  The  master  will 
be  bound  by  his  covenants,  though  additional 
to  those  required  by  statute.* 

The  age  of  every  apprentice  must  be  inserted 
in  the  indenture ;  but  the  age  as  stated  in  the 
indenture  is  only  priftia  facie  evidence,  and 
may  be  contradicted  by  proof  of  the  true  age." 

In  a  common  indenture  of  apprenticeship 
the  father  is  bound  for  the  performance  of  the 
covenants  by  the  son."*  But  in  an  action  for 
non-performance  or  desertion  by  the  son,  he 
may  answer  that  the  master  has  abandoned  the 
trade  which  the  son  was  apprenticed  to  learn, 
or  that  he  has  driven  the  son  away  by  cruel 
treatment." 

Duties,  etc.  A.n  apprentice  is  bound  to 
obey  his  master  in  all  his  lawful  commands, 
take  care  of  his  property,  and  promote  his  in- 
terest ;  endeavor  to  learn  his  trade  or  business, 
and  perform  all  the  covenants  of  his  indenture, 
not  contrary  to  law.  He  must  not  leave  his 
master's  service  during  the  term  of  the  appren- 
ticeship.^ The  apprentice  is  entitled  to  pay- 
ment for  extraordinary  services,  when  promised 
by  the  master,®  and  even  when  no  express 
promise  has  been  made,  under  peculiar  circum- 
stances.' 

The  duties  of  the  master  are  to  instruct  the 
apprentice,  by  teaching  him,  in  good  faith,  the 
knowledge  of  the  art  which  he  has  undertaken 
to  teach  him,  though  he  will  be  excused  for 
not  making  a  good  workman  if  the  apprentice 
is  incapable  of  learning  the  trade,  the  burden 
Df  proving  which  is  on  the  master.*  He  ought 
to  watch  over  the  conduct  of  the  apprentice, 

S-9  Barb.  309 ;  i  Sandf.  672.  t-i  Salk.  68  ;  4  M.  &  S. 
283  :  loS.  &  R.  416  :  i  Vt.  69  ;  18  Conn.  337  ;  see  2  Kent 
Comm.  264;  I  Harrison  Dig.  206-227.  u-8  East.  25; 
3  B.  &  Aid.  584;  8  Johns.  328;  2  Yerg.  546;  4  Leigh. 
493:  4  Blackf.  437;  12  N.  H.  438;  see  al.so  18  Conn. 
337  ;  '3  Barb.  286  ;  10  S.  &  R.  416  ;  i  Mass.  172  ;  i  Vt. 
69;  1  Ashm.  267;  I  Mason  C.  C.  78.  v-2  Kent  Comm. 
264;  5  T.  R.  715.  w-5  Cush.  417;  5  Pick.  250.  x-9 
Barb.  309:  8  Johns.  328;  5  Strobh.  104.  y-12  Barb. 
473:  2  Id.  208;  but  see  13  Met.  (Mass.)  80.  z-io 
Humph.  (Tenn.)  179.  a-i  E.  D.  Smith.  408  :  i  Sandf. 
711.  b-Dougl.  500:  3  B.  &  Aid.  59.  c-4  Eng.  L  & 
Eq.  412  :  4  Miss.  480;  2  Pick.  357.  d-6  Johns.  274;  2 
Pick.  357.     e-i  Am.  L.  Jour.  308;  i  Whirl,  ii^.     f-a 


giving  him  good  advice,  and  showing  him  a 
good  example,  and  fulfilling  toward  him  the 
duties  of  a  father,  as  in  his  character  of  master 
he  stands  in  the  place  of  the  parent.  He  is 
also  required  to  fill  all  the  covenants  he  has 
entered  into  by  the  indenture.  He  must  not 
abuse  his  authority,  either  by  bad  treatment,  or 
by  employing  his  apprentice  in  menial  em- 
ployments, wholly  unconnected  with  the  busi- 
ness he  is  to  learn,  or  in  any  service  which  is 
immoral  or  contrary  to  law ;''  but  may  correct 
him  with  moderation  for  negligence  and  mis- 
behavior.' He  cannot  dismiss  his  apprentice 
but  by  consent  of  all  the  parties  to  the  inden- 
ture.J  or  with  the  sanction  of  the  court  approv- 
ing the  indenture,''  even  though  the  apprentice 
should  steal  his  master's  property,  or  by  reason 
of  incurable  illness  become  incapable  of  ser- 
vice— the  covenants  of  the  master  and  appren. 
tice  being  independent.'  He  cannot  reniovt, 
the  apprentice  out  of  the  State,  unless  such  re- 
moval is  provided  for  in  the  contract,  or  maj 
be  implied  from  |ts  nature ;  and  if  he  do  so 
remove  him,  the  contract  ceases  to  be  obli 
gatory." 

Employment  and  Enticing  Away,  etc. 
When  an  apprentice  is  employed  by  a  third 
person  without  the  knowledge  or  consent  of 
the  master,  the  master  is  entitled  to  all  his 
earnings,  whether  the  person  who  employed 
him  did  or  did  not  know  that  he  was  an  ap- 
prentice;" but  in  an  action  for  harboring  or 
enticing  away  an  apprentice,  a  knowledge  of 
the  apprenticeship  by  the  defendant  is  an  in- 
dispensable requisite  to  recovery"  in  such  an 
action. 

The  plaintiff  should  prove  the  apprenticeship 
by  the  indenture,  which  should  be  produced 
and  proved  in  the  usual  way.  It  should  be 
proved  that  the  defendant  knew  of  the  appren- 
ticeship at  the  time  of  his  enticing  away  or 
harboring  the  apprentice,?  but  it  is  sufficient  to 
show  that  the  apprentice  was  enticed  away  or 
harbored  by  the  defendant.  The  damage  mi'st 
be  proved.^  The  value  of  the  services  lost 
should  be  shown.  The  measure  of  damages 
is  not  to  be  ascertained  at  the  actual  loss  the 
plaintiflf  sustained  at  the  time,  but  for  the  in- 
jury done  by  causing  the  apprentice  to  leave 
the  plaintiff's  employment.'' 

The  defendant  should  be  prepared  to  dis- 
prove the  plaintiflPs  case ;  he  cannot,  however, 
avail  himself  of  any  objection  to  the  indenture 
of  apprenticeship.'  He  should  reduce  the 
damages  as  far  as  he  can. 

Termination,  etc.     Upon  the  death  of  the 

Cranch,  240,  270;  3  C.  Rob.  Adm.  237;  but  see  1 
Whart.  113.  g-2  Dana,  131;  5  Met.  (Mass.)  37;  1 
Dev.  &  Bat.  402.  I1-4  Clark  &  F.  Ho.  Lds.  334.  i- 
Ashm.  267.  J-i  S.  &  R.  330;  12  Pick,  no;  «  Barr. 
766;  I  Carr  &  K.  622.  It-i  Mass.  24;  2  Pick.  451;  8 
Conn.  14;  I  Bail.  209.  I-2  Pick.  45J  ;  2  Dowl.  &  R. 
465  ;  I  Barn.  &  C.  460.  in-6  Binn.  202  ;  6  S.  &  R.  526; 
2  Pick.  357;  13  Met.  80.  n-6  Johns.  274  ;  3  N.  H.  274  ; 
7  Me.  457;   2  Aik.  243  ;   1  E.  D.  Smith,  408;    i  Sandf. 


Willes,  582 

12.         S-2 

.5*. 


0-2  Harr.  &  G.  182;  i  Wesd.  376:  1  G:)m.  (Va.) 

i-Peake   R    55 ;    Peake   E.  v.  334  ; 

5  East.  39 ;   Burr.  1352.     r-4  Moody, 


46:  s  Ired.  216.  p-Peake  R  55:  Peake  E.  v.  334 
"2.  g-5  East.  39;  Burr.  1352.  r-4  Moody. 
H.  Bl.  jii ;    7  T.  R.  319.   I,  4,  i;    Anstr 


94 


APPRENTICESHIP. 


master,  the  apprenticeship,  being  a  personal 
trust,  is  dissolved.'  Upon  the  death  of  one  of 
two  masters  the  indenture  survives  to  and 
against  the  survivor.  Upon  the  removal  of  the 
master  from  the  State  he  may  be  released  from 
the  indenture  if  he  has  done  justice  by  his 
apprentice.  So,  also,  uixjn  quitting  his  trade 
or  business.     See  General  Statutes. 

APPRENTICESHIP    FORMS. 

Apprenticeship  Agreement  (  or  Inden- 

ttire) — General  Form. 

This  agreement  {or  indenture)  witnesseth  : 

That  A.  A.,  now  aged years,  and  with  the 

consent  of  P.  A.,  his  (father,  or  mother  in  case  ike 
father  be  not  living)  does  by  these  presents  appren- 
tice himself  unto  M.  M.,  of ,  to  learn  the  a.Tt{or 

business,  or  profession,  or  trade)  of  (state  what )  from 

the  date  of  these  presents   unto  the  day 

of . 

That  he  will  perform  all  the  duties  required  by 
law  of  him,  and  otherwise  conduct  and  demean 
himself  as  a  conscientious,  faithful  and  industri- 
ous apprentice  ought. 

That  in  consideration  thereof  said  M.  M.  does 
hereby  covenant,  promise  and  agree  to  use  the 
utmost  of  his  endeavors  to  have  said  apprentice 
taught  the  art  {or  business,  etc.)  aforesaid,  to 
read,  write,  elementary  rules  of  arithmetic,  and 

(state  juAat  further,  or  say  months'  schooling 

per  year  during  said  term),  and  in  the  meantime 
provide  said  apprentice  with  all  necessaries,  in- 
cluding food,  lodging,  clothing,  laundry  and  med- 
ical attendance,  and  at  the  expiration  of  said  term 
to  give  him dollars, clothes,  and . 

In  witness  whereof,  said  parties  have  hereunto 

subscribed  their  names,  this day  of . 

A.  A.,  A.  P.,M.  M. 

Apprenticeship  Agrreement  (or   Inden- 
ture)—Oeneral  Form. 

This  agreement  {or  indenture)  witnesseth  : 

That  P.  A.,  of ,  does  by  these  presents  bind 

out  his  (or  her)  son,  A.  A.,  and  that  said  A.  A. 
does  hereby  bind  himself  out  as  an  apprentice  to 

M.  M.,  of ,  to  learn  the  art  (business,  profession, 

»r  trade)  of  (state  what ). 

That  said  A.  A.  is,  at  the  date  hereof,  aged 

years. 

That  said  A.  A.  shall  dwell  and  serve  said  M. 
M.  as  such  apprentice,  from  the  date  hereof  until 
the day  or . 

That  during  all  said  term  said  apprentice  shall 
faithfully  serve  his  said  master,  keep  his  secrets, 
and  everywhere  and  at  all  times  readily  obey  his 
lawful  commands.  He  shall  do  no  damage  to 
his  said  master,  nor  wilfully  suffer  any  to  be  done 
by  others  ;  and  should  any  to  his  knowledge  be 
intended  he  shall  give  saici  master  reasonable  no- 
tice thereof;  he  shall  not  haunt  or  frequent  tav- 
erns, bawdy  or  tippling  houses,  saloons  or  gaming 
places,  and  shall  not  absent  himself  from  the 
service  of  his  said  master,  but  in  all  things  and 
at  all  times  shall  demean  and  conduct  himself  as 
a  good  and  faithful  apprentice  ought. 

That  said  M.  M.,  in  consideration  thereof,  does 
hereby  covenant,  promise,  and  agree,  to  instruct 
and  teach  said  apprentice,  or  cause  him  to  be  in- 
structed and  taught,  the  art  (business,  profession,  or 
trade)  aforesaid,  to  the  best  of  his  endeavors  and 
means;  to  instruct  and  teach  said  apprentice,  or 
cause  him  to  be  instructed  and  taught  to  read, 
write  and  cipher  as  far  as  the  rule  of  three,  if 
■aid  apprentice  be  capable  of  learning  the  same  ; 
to  find  and  provide  said  apprentice  with  good 
and  sufficient  food,  clothing,  lodging,  and  other 
necessaries  during  said  term  ;  and  at  the  expira- 
tion thereof  to  give  him  dollars  and  

clothing. 

In  witness,  etc. 

(Signed )  P.  A.,  A.  A.,  M.  M. 

Apprenticeship  As:reement  (or  Inden- 
ture)—General  Form. 

This  agreement,  made  this day  of ,  A. 

D. ,  between  A.  A.,  now  aged years,  and 

t-x  Salk.  66 ;  Stra.  384  ;  t  Day.  30. 


P.  A.,  his  father,  of county,  in  the  State  of 

,  and  M.  M.,  of county,  and  State  of , 

witnesseth  : 

That  A.  A.,  of  (his  or  her)  own  free  will,  does 
hereby  bind  (himself  or  herself)  to  serve  M.  M.,  as 
apprentice  (or  clerk)  in  the  trade  of  a  blacksmith 
(or  other  trade,  profession,  or  employment),  and  to 
learn  said  trade  (or  profession,  etc.)  until  (he  or  she 

is  of  the  age  of years,  which  will  be  on  the) 

day  of ,  A.  D. . 

That  during  all  which  time  said  apprentice  shall 
serve  said  master  faithfully,  honestly  and  indus- 
triously, his  secrets  keep,  and  lawful  commands 
everywhere  obey ;  at  all  times  protect  and  pre- 
serve the  goods  and  property  of  the  said  master, 
and  not  suffer  or  allow  any  to  be  injured  or 
wasted. 

That  he  (or%)\e.)  shall  not  buy,  sell,  or  traffic  in 
his  own  goods,  or  the  goods  of  others,  nor  be  ab- 
sent from  the  said  master's  service  day  or  night 
without  leave  ;  but  in  all  things  behave  as  a  faith- 
ful apprentice  ought  to  do,  during  said  term. 

That  said  master  shall  clothe  and  provide  for 
the  said  apprentice  in  sickness  and  in  health,  and 
supply  (him  or  her)  with  sufficient  and  suitable 
food,  raiment  and  lodging;  and  shall  use  and 
employ  the  utmost  of  his  endeavors  to  teach  or 
cause  said  apprentice  to  be  taught  and  instructed 
in  the  trade  of  {here  state  the  trade,  etc.,  as  above). 

That  he  shall  cause  said  apprentice  to  be  taught 
(state -what ,  as)  to  read  and  write,  and  the  elemen- 
tary rules  of  arithmetic,  the  compound  rules  and 
the  rule  of  three,  and  at  the  expiration  of  (his  or 
her)  time  of  service  give  (him  or  her). 

(If  money  is  paid  with  the  apprentice  insert  here), 

and  the  said  M.  M.  acknowledges  receipt  of 

dollars  with  the  said  A.  A.,  from  (his  lather  or 
mother,  P.  A.),  as  a  compensation  for  his  instruc- 
tion, as  above  mentioned. 

(Or  if  wages  are  to  be  paid  for  the  service  of  the 
apprentice  insert),  and  said  M.  M.  further  agrees 
to  pay  said  A.  A.  the  following  sums  of  money, 
to  wit:  for  the  first  year  of  his  service dol- 
lars ;  for  the  second  year  of  his  service dollars ; 

for  every  subsequent  year  until  the  expiration  of 
his  term  of  service  dollars  ;  which  said  pay- 
ments are  to  be  made  on  the day  of in 

each  year. 

And  for  the  true  performance  of  all  and  singular 
the  covenants  and  agreements  aforesaid,  the  said 
parties  bind  themselves  each  unto  the  other. 

In  witness  whereof,  the  parties  aforesaid  have 
hereunto  set  their  hands  the  day  and  year  first 
above  written. 

(Signature  of  Apprentice.)  A.  A. 

(Signature  of  Master.)  M.  M. 

(Signature  of  Parent  or  Guardian.)        P.  A. 

Apprenticeship  Indenture  or  Ag^ree- 
ment — General  Form. 

This  indenture  (or  agreement),  made  this day 

of ,  between  P.  A.,  of ,  father,  and  his  son 

A.  A.,  aged  years,  of  the  one  part,  and  M. 

M.,  of (state  occupation),   of  the  other  part, 

witnesseth  : 

That  said  A.  A.,  with  the  consent  of  his  father, 
P.  A.,  does  by  these  presents  bind  himself  out  as 
an  apprentice  to  said  M.  M. ,  to  be  taught  and  exer- 
cise and  employ  himself  in  the  (business,  <?r  occu- 
pation, or  profession,  or  science,  or  trade,  as  the  case 
7nay  be)  of  (state  what),  in  which  said  M.  M.  is  now 
engaged,  and  to  live  with  and  serve  as  an  appren- 
tice, from  the  date  hereof  until  the  day  of 

,  (or  for  a  term  of years  from  the  date  hereof). 

That  during  said  time  said  A.  A.  shall  and  witt 
to  the  best  and  utmost  of  his  ability,  skill  and 
knowledge  intelligently  and  faithfully  serve,  and- 
be  just  and  true  to  his  said  master,  his  secrets 
and  counsel  keep,  and  everywhere  and  at  all 
times  his  lawful  commands  obey. 

That  he  shall  do  and  attempt  no  hurt  to  his 
said  master,  in  person,  goods,  estate  or  other- 
wise, nor  willingly  suffer  the  same  to  be  done  by 
others,  but  forthwith  give  said  master  notice 
when  he  shall  have  any  knowledge  thereof. 

That  he  shall  not  embezzle  or  waste  his  said 
master's  goods  or  money,  nor  suffer  the  same  to 
be  done. 

That  he  shall  not  lend  his  master's  goods  or  ef- 
fects to  any  person  or  persons  whomsoevw,  nor 


APPRENTICESHIP. 


95 


cutferthe  same  to  be  done,  unless  by  his  knowl- 
edge and  consent. 

That  he  shall  not  traffic  with,  nor  buy  or  sell, 
goods  of  his  own  or  others  during  said  term, 
without  his  said  master's  leave. 

That  he  shall  not  play  at  cards,  dice,  nor  any 
unlawful  games,  whereby  he  or  his  master  shall 
suffer  damage  or  loss. 

That  he  shall  not  frequent,  haunt,  or  visit  play- 
houses, theatres,  taverns,  saloons,  or  ale-houses, 
except  it  be  about  his  master's  business  there  to 
be  done. 

That  he  shall  not  at  any  time,  by  day  or  by 
night,  absent,  depart,  or  quit  the  service  of  his 
said  master  without  his  leave. 

And  that  in  all  things  he  shall  and  will  behave, 
conduct,  and  demean  himself  to  his  said  master 
as  a  conscientious,  faithful,  good,  and  industrious 
apprentice  during  said  term. 

That  said  M.  M.,  in  consideration  of  the  prem- 
ises (and  the  sum  of dollars,  the  receipt  of  which 

is  hereby  acknowledged)  does  hereby  covenant, 
promise,  and  agree : 

That  he  will  instruct  and  teach,  or  cause  said 
apprentice,  or  otherwise  cause  him  to  be  well  and 
sufficiently  instructed  and  taught  in  the  (business, 
or  occupation,  or  profession,  or  trade)  aforesaid,  after 
the  best  manner  and  mode  of  the  time  {or  the  best 
Planner  and  way  he  shall  be  able). 

That  he  shall  and  will  allow  and  hnd  said  ap- 
prentice in  food,  drink,  washing,  lodging,  and 
apparel,  both  linen  and  v^roollen,  and  all  other 
necessaries  in  sickness  and  in  health,  which  shall 
••e  convenient,  necessary,  and  proper  for  such  an 
apprentice  during  said  term. 

That  he  shall  and  will  {here  state  the  extent  of 
education  to  be gmen  during  the  term). 

And  that  at  the  expiration  of  said  term,  he  shall 
«nd  will  give  said  apprentice  over  and  above  the 
clothing  he  shall  then  possess  the  following  ar- 
ticles of  apparel  {stating-  them  item  by  item,  as  coat, 
vest,  pants,  shoes,  stockings,  underwear,  linen,  hat,  etc.) 
fit  and  suitable  for  such  an  apprentice. 

And  for  the  true  performance  of  all  and  singu- 
lar the  agreements  and  covenants  aforesaid,  the 
said  parties  bind  themselves  each  to  the  other 
firmly  by  these  presents. 

In  witness  whereof,  said  parties  have  (inter- 
changeably) set  their  hands  (and  seals)  hereto  this 
day  of ,  A.  D. . 

{Witnesses)  {Signed)  A.  A.,  P.  A.,  M.  M. 

Consent  of  Father  or  Motlier  Indorsed. 

I  hereby  consent  to  the  binding  of  my  son  (or 
daughter),  A.  A.,  in  the  manner  and  for  the  pur- 
poses expressed  in  the  ■within  indenture  {or  agree- 
ment). P.  P. 

Apprenticeship  Agrreement  (or  Inden- 
ture)—Guardian  Consenting^. 

This  agreement  (or  indenture),  made  the day 

of ,  witnesseth  : 

That  A.  A.,  of ,  aged  years,  with  the 

consent  of  G.  N.,  his  duly  appointed  guardian 
^herein  indorsed),  his  father  and  mother  being  dead 
{or  his  father  being  dead  and  his  mother  refusing  her 
consent),  does  by  these  presents  bind  himself  unto 

M.  M.,  of  ,  as  an  apprentice  in  the  art  {or 

business,  or  occupation,  or  profession,  or  trade)  of 
{state  luhat). 

That,  etc.  {as  in  the  above  /arms). 

Apprenticeship  Agrreement  (or  Inden- 
tnre) — Magristrates  or  Overseers  of 
Poor,  etc..  Consenting^. 

This  indenture  {or  agreement),  made  this day 

of ,  vi^itnesseth  : 

That  A.  A. ,  of ,  with  the  consent  of ,  and 

,  justices  of  the  peace,  of  said (or  overseers 

of  the  poor  of  said ,  or  J.  J.,  judge  of ),  here- 
on indorsed,  does  by  these  presents  bind  himself 
out  to  M.  M.,  etc.  (as  in  the  above  forms). 

Apprenticeship  Asrreement  (or  Inden- 
tnre)— Parent,  Ciuardian,  Trustees, 
etc..  Consenting^. 

This  agreement  {or  indenture),  made  this day 

of ,  witnesseth : 

That  A.  A.,  of ,  aged  years,  with  the 

concurrence  and  consent  of  P.  A.,  his  father  (or 


G.  N.,  guardian,  his  guardian,  or  T.  R.,  U.  S.,  and  T 

S.,  trustees  of  the  in  ),  does  hereby  bind 

himself  out  to  M.  M.,  etc.  (as  in  the  above  iorms). 

Apprenticeship— Cancellation  Of  Ag^ree- 
inent,  etc. 

^Ve  hereby  cancel  the  within  agreement  {or 
indenture)  of  apprenticeship. 
Dated (5/g-«^<^)  A.  A.,  P.  A.,  M.  M. 

Apprenticeship— Guaranty  of  Fidelity. 

By  the  Father — Indorsed. 

In  consideration  of  the  performance  of  th* 
agreements  and  covenants  specified  in  the  >vithin 
agreement  {or  indenture),  by  M.  M.,  -wiiti  my  son, 
A.  A.  (and  the  further  consideration  of  one  dollar,  the 
receipt  of  which  is  hereby  acknowledged),  I  do  hereby 
bind  myself  to  said  M.  M.,  for  the  true  and  faith- 
ful observation  and  performance  of  all  the  matters 
and  things  by  said  A.  A.  agreed  and  covenanted 
therein,  and  that  he  shall  well  and  truly  serve 
said  M.  M. 

Witness  my  hand  this  day  of ,  A.  D. 

.  P.  A. 

Apprenticeship — Release. 

Know  all  men  by  these  presents : 

That  A.  A.,  son  of  P.  A.,  did  by  his  agreement 

{or  indenture),  bearing  date  the  day  of  , 

bind  himself  as  an  apprehtice  unto  M.  M.,  of , 

for  a  term  of from  the  date  thereof,  as  by  said 

indenture  more  fully  appears. 

That,  etc.  {stating  the  reasons  for  the  release). 

That  by  reason  thereof,  said  M.  M.  does  hereby 
release  and  forever  discharge  said  A.  A.  (and  his 
father  P.  A.)  of  and  from  said  agreement  (or  inden- 
ture), and  all  service  (suretyship),  and  all  other 
agreements,  covenants,  matters,  and  things  there- 
in contained,  on  their  or  either  of  their  parts  to 
be  observed  and  performed,  whatsoever,  from  the 
beginning  of  the  world  unto  the  date  hereof. 

In  witness  whereof,  I  have  hereunto  set  ray 
hand  this day  of ,  A.  D. .         M.  M. 

Approach.  See  Maritime  Law. 

Appropriation.  See  Interest  ;  Payments. 

Approval.  See  Bonds. 

Ap]>roved  Indorsed  Notes.  See  Notbs. 

Appurtenances.  See  Real  Property. 

Arbiter.  See  Agency;  Arbitration. 

Arbitration  and  Award.  See  Agency; 
Arbitration. 

Arbitrary  Punishment.  See  Punishmkmt. 

Arbitration.  See  Agency. 

Arbitrator.  See  Agency. 

Archives.  See  Government. 

Area.  See  House  ;   Real  Property. 

Arg^ument.  See  Practice. 

Aristocracy.  See  Government. 

Arm  of  the  Sea.  See  Water  ;  Real  Propk«tt. 

Armistice.  See  International  Law. 

Arms.  See  Military  Law. 

Arraig^nment.  See  Criminal  Law;  Practicb. 

Arrears.  See  Payment. 

Arrest.  See  Practice. 

Arrest  of  Judgement.  See  Judgment;  Prac- 
tice. 

Arson.  See  Criminal  Law. 

Articles.  See  Contract;  Partnership;  Prac- 
tice. 

Articles  of  Confederation.  See  Confed- 
eration ;  Government. 

Articles  of  Impeachment.  See  Impeach- 
ment. 

Articles  of  Partnership.  See  Partnership. 

Articles  of  War.  See  Military  Law  ;  War. 

Artificial.  See  Person. 

Ascendants.  See  Genealogy;  Personal  Re- 
lations. 

Asphyxy.  See  Medical  Law. 

Asportation.  See  Criminal  Law. 

Assassination.  See  Criminal  Law. 

Assault.  See  Criminal  Law. 

Assay.  See  Money. 

Assembly.  See  Legislation  ;  Government. 

Assent.  See  Contracts.  , 

Assessment.  See  Taxation;  Government.    ,,fi 

Assets.  See  Debtor;  Estates,;  MsRCANTi^yL 
Law  ;  Property,  etc. 


96 


ASSIGNMENT. 


AUHIG'SMENT.  See  Account;  Agrbbmbnt; 
Bond  ;   Bookkeeping  ;  Lbasb  ;   MoRTGikOE,  etc. 

An  assignment  is  a  transfer  by  writing,  as 
distinguished  from  one  by  delivery.  It  is  a 
transfer  or  making  over  to  another  the  v/hole 
of  any  property,  real  or  personal,  in  possession 
or  in  action,  or  of  any  estate  or  right  therein. 
A  transfer  of  title  or  interest  by  writing ;  the 
writing  by  which  the  assignment  is  made. 

An  assignment  differs  from  a  lease,  which  is 
the  conveyance  of  a  less  term  than  the  lessor 
has  in  the  estate. 

Every  demand  connected  with  a  right  of 
property,  real  or  personal,  is  assignable.  Rent 
to  grow  due;  the  right  to  cut  trees,  which 
have  been  sold  on  the  grantor's  land ;»  the  ser- 
vices of  an  indentured  apprentice  ;^  a  replevin 
bond  ;•  a  claim  for  sheriff's  fees  ;■*  future  debts  f 
a  guarantee;'  and  a  mere  possibility,  coupled 
with  an  interest,  may  be  assigned.^  As  a  gen- 
eral rule,  all  choses  in  action,  such  as  bonds, 
mortgages,  notes,  judgments,  debts,  contracts, 
agreements,  as  well  relating  to  personal  as  real 
estate,  are  assignable,  and  will  pass  to  the  as- 
signee a  right  of  action  in  the  name  of  such 
assignee,  against  all  parties  liable  to  an  action. •* 

When  a  cAose  in  action  is  assignable,  it  may 
be  assigned  in  separate  parcels  to  different  per- 
sons ;  and  either  of  the  assignees  may  maintain 
an  action  to  recover  the  portion  to  him  as- 
signed.* Where,  however,  a  debt  is  assigned 
in  separate  parcels,  it  is,  in  effect,  a  splitting 
of  the  cause  of  action,  and  the  whole  debt, 
notwithstanding  the  assignments,  should  be 
sued  for  in  one  action.J  If  the  owner  of  some 
part  of  the  debt  will  not  join  as  co-plaintiff,  he 
should  be  made  a  defendant.  A  single  debt  [a 
single  cause  of  action)  cannot  be  converted  into 
several  debts  [several  causes  of  action)  unless 
with  the  consent  of  the  debtor." 

Some  choses  in  action  are  not  assignable. 
For  example,  an  otficer's  pay  or  commission ;' 
or  the  salary  of  a  judge  ;■"  or  claims  for  fishing ; 
or  other  bounties  of  the  government;  or  rights 
of  action  for  fraud  or  tort."  Nor  can  personal 
trusts  be  assigned ;  as  the  right  of  a  master  in 
his  apprentice ;°  or  the  duties  of  a  testamentary 
guardian. P  A  person  cannot  sell  to  another  a 
debt  against  himself;  a  debtor  has  no  assign- 
able interest  in'  debts  owing  by  him.  A  de- 
mand due  from  a  person  to  himself  and  another 
as  partners,  is,  to  the  extent  of  his  own  interest 
in  it,  no  debt  against  him.i 

Consideration.  An  assignee  of  a  right  of 
action  is  not  bound  to  show  that  he  gave  any 

a-Hob.  173  ;  I  Greenl.  Ev.  g  27 ;  Cruise  Die.  tit.  i,  § 
45,  n;  7  N.  H.  522;  6  Me.  81,  200;  18  Pick.  569;  i 
Met.  313;  4  Id.  580;  9  Leigh.  548;  11  Ad.  &  E.  34.  b- 
S  Cow.  363;  Will.  Eq.  Juris.  460.  c-5  Hill,  293.  d-23 
How.  236;  14  Abb.  285.  e-13  Abb.  475.  1-1  Bosw. 
352.  >f-7  Paige,  76;  17  How.  (U.  S.)  368  ;  2  Seld.  187. 
n-See  Willard's  Eq.  Juris.;  Burril  Assignments,  65.  I-2 
Seld.  179 ;  8  How.  514.  J-See  10  N.  Y.  273 ;  3  Abb.  431. 
b-13  Mo.  300  ;  6  Cush.  282  ;  11  S.  &  R.  78.  I-2  Anstr. 
533  :  I  Ball  &  B.  Ch.  (Ir.)  387;  i  Swanst.  74;  3  T.  R. 
681  ;  2  Beav.  Rolls.  544 ;  Turn.  &  R.  459  ;  see  7  Mot. 
335;  13  Mass.  290;  15  Ves.  Ch.  139.  m-io  Humph.  342. 
n-i  Pet.  193;  6  Cole,  456;  3  E.  D.  Smith,  246;  22 
Barb,  no ;  26  Id.  635 ;  2  N.  H.  293 ;  3  Litt.  (Ky.)  41  ; 
9  Serg.  &  R.  344;  6  Madd.  Ch.  59;  Mylne  &  K.  592. 


valuable  consideration  for  the  assignment 
The  owner  of  the  cause  of  action  may  give  it 
away  if  he  choose,  and  the  donee  will  have  as 
good  a  right  as  though  he  were  an  assignee  for 
value.""  In  the  absence  of  evidence  to  the 
contrary,  it  will  be  presumed  the  assignment 
was  for  a  sufficient  consideration.*  Proof  of  a 
valuable  consideration  is  only  necessary  to  be 
made  when  a  defence  is  set  up,  which,  unless 
the  plaintiff  was  purchaser  for  value,  would 
conclude  him ;'  as  where  the  object  is  to  prove 
that  the  alleged  assignment  is  a  mere  sham." 
And  when,  in  pleading,  the  assignment  is  al- 
leged to  have  been  for  value  received,  the 
allegation  as  to  value  received  is  immaterial.^ 

No  formality  is  necessary  to  effect  a 
transfer  of  a  chose  in  action.  Any  transaction 
between  the  contracting  parties  which  indicates 
their  intention  to  pass  the  beneficial  interest 
in  the  instrument  from  one  to  the  other,  is 
sufficient  for  that  purpose ;  a  debt  or  claim  may 
be  assigned  by  parol  as  well  as  by  writing.* 

Proof  of  Assignment.  An  assignment  is 
proved  by  the  evidence  of  the  payee  of  the 
note  in  suit,  that  he  had  indorsed  (or  delivered 
without  indorsement,  for  a  valuable  considera- 
tion)'^ the  note  to  the  plaintiff,  and  that  he  has 
no  interest  in  the  note  when  sworn.'  The 
production  by  the  plaintiff,  on  the  trial,  of  an 
assignment  to  himself,  after  due  proof  of  the 
execution  thereof  by  the  assignor,  is  sufficient 
evidence  of  a  deliveiy  of  such  assignment,*  and 
that  it  was  delivered  on  the  day  it  bears  date.* 

Warranty.  In  every  assignment  of  an  in- 
strument, even  not  negotiable,  the  assignee 
impliedly  warrants  that  the  instrument  is  valid, 
and  the  obligor  liable  to  pay  it  ;*>  and  that  there 
IS  no  legal  defence  to  its  collection,  arising  out 
of  his  own  connection  with  the  original  trans- 
action." That  the  party  was  competent  to 
contract  ;*  and  that  the  amount  is  unpaid.* 

Where  a  debt  is  assigned  it  carries  with 
it  all  the  collateral  securities  held  by  the  as- 
signor for  its  collection,  although  they  are  not 
mentioned  or  referred  to  in  the  assignment.'  An 
assignment  of  a  guaranteed  note  carries  with  it 
the  guarantee  ;K  and  the  assignment  of  a  debt 
carries  with  it,  as  an  incident,  a  collateral  mort- 
gage,'* by  which  it  is  secured. 

The  proper  technical  and  operative 
words  in  assignment  are  "  assign,  transfer,  and 
set  over  "  ;  but  "  give,  grant,  bargain,  and  sell," 
or  any  other  words  which  show  the  intent  of 
the  parties  to  make  a  complete  transfer,  will 
operate  an  assignment.* 

O-ii  B.  Mon.  60;  I  Mass.  172;  8  Id.  299;  8  N.  H.  47*. 

B-12  N.  H.  431 ;  I  Hill,  375.  q-ii  Bart.  140.  r-i  E. 
.Smith,  400;  2  Id.  497;  4  Id.  220;  27  Barb.  178;  14 
Id.  79  ;  38  Id.  574  ;  i  Abb.  177.  8-10  N.  Y.  60  ;  16  Abb. 
146.      t-5  Sandf.  52  ;    2  Seld.  214.      n-2  Abb.  81.      V-s 


Cranch.  193  ;  1  Abb.  177.     IV-2  Story  Eq.  311 ;  4Taunt. 

326  ;    Robert's  Fr.  275  ;    i  Ves.  331  ;    17  Ho^ 

368  ;  Id.  6i2  ;  4  Blackf.  380;  3  Sm.  &  Marsh. 

D.  Smith,  273  ;    4  Id.  440 ;    i  Barb.  454  ;    39  Id.  163 ; 


Hilt.  77;  Id.  485  ;  ig  Johns.  95  ;  15  Barb.  371;  i  Johns. 
580;  12  Id.  346;  17  id.  284.  x-3  Kas.  295.  y-2oN.Y. 
472.  z-4  E.  D.  Smith,  423.  a-31  Barb.  155.  D-i2Sm.  & 
Marsh.  302  :  2  Ellis  &  Bl.  849.  <J-2o  N.Y.  226.  d-15  Id. 
574.  e-15  Id.  439.  f-2  Hilt.  484,  J5-39  Barb.  163.  b-f 
Cow.  aoa.    i-Watkins'  Conv.  (Prestoa  £d.)  B.  2,  C.  tab 


ASSIGNMENT. 


t»7 


ASSIGNMENT    FORMS. 

The  essential  requisites  of  an  assignment  are  : 

1.  The  proper  technical  and  operative  words  of 
assignment,  or  their  equivalent. 

2.  The  description  of  the  property  or  thing  assigned 
(so  that  a  stranger  may  know  and  distinguish  it  without 
difficulty). 

3.  The  conditions,  limitations,  restrictions,  etc.,  im- 
posed, with  time,  manner,  etc.,  of  performance,  if  any. 

4.  The  signature  of  the  assignor. 

When  an  assignment  is  made  on  conditions,  with  lim- 
itations, restrictions,  etc.,  and  the  assignor  does  not 
want  to  lose  control  of  the  property  or  thing  assigned 
(he  having  given  the  assignee  possession),  he  must  have 
It  recorded  or  registered  in  the  proper  office,  as  if  it 
were  a  mortgage  on  the  property  or  thing  assigned. 
And  when  all  the  conditions  are  complied  with,  he 
should  enter  satisfaction  on  the  record,  or  give  a  receipt 
to  that  effect. 

AsMigrnmeni— Simple  Forms. 

I  assign  (,state  wliat)  to  E.  F. 

Dated, .  {Signed)  A.  B. 

Another. 

I  hereby  assign  and  set  over  to  E.  F.  the  follow- 
ing articles,  viz.  (naming  theni). 

Dated, .  (Signed)  A.  B. 

Another. 

I  hereby  assign,  transfer  and  set  over  unto  E. 
F.  all  my  title  and  interest  in  and  rights  under 
the  following  (or  within)  (state  tvhat). 

Dated, .  (Signed)  A.  B. 

Another. 

On  account  of  (state  what)  I  assign  (state  what) 
to  E.  F. 

Dated, .  (Signed)  A.  B. 

Another. 

For  value  received  I  assign,  etc.  (stating  -what) 
to  E.  F. 

Dated, .  (Signed)  A.  B. 

Another. 

In  consideration  of  (state  what)  I  assign,  etc. 
(stating  what). 

Dated, .  (Signed)  A.  B. 

Another,  with  Conditions. 

When  the  assignee  has  possession  of  the  property  as- 
signed, this  assignment,  to  be  of  effect,  should  be  recorded 
in  the  proper  office. 

I  (or  we,  giving  names  of  assignor  or  assignors,  if 
desired )  hereby  assign,  transfer  and  set  over  unto 
E.  F.,  etc.  (subject  to  the  conditions  [or  stipulations] 
herein  contained)  all  the  following  described  prop- 
erty, viz.  (describing  it). 

In  consideration  thereof  said  E.  F.  has  delivered 
(or  paid,  state  what). 

And  it  is  hereby  agreed 

That  said  E.  F.  shall,  on  or  before  the day 

of ,  deliver  (or  pay,  state  what). 

That  said  property  shall  not  pass  from  his  pos- 
session or  the  ownership  vest  in  him  until  he  has 
made  said  delivery  or  payment,  etc.,  as  is  herein 
specified.  (Signed)  A.  B.,  E.  F. 

Asslgrnment — Oeneral  Form. 
With  Power  of  Attorney. 

In  consideration  of  the  sum  of dollars  (the 

receipt  of  which  is  hereby  acl<nowledged)  I  do  hereby 

assign,  transfer  and  set  over  to  E.  F.  (of ),  all 

my  right,  title  and  interest  in  and  to  (here  describe 
what) . 

(And  I  do  hereby  constitute  said  E.  F.  my  at- 
torney, in  my  name  or  otherwise,  but  at  his  own 
costs  and  charges,  to  take  all  legal  measures 
which  may  be  proper  or  necessary  for  the  com- 
plete recovery  and  enjoyment  of  the  premises). 

Witneas  my  hand  (and  s«al)  this day  of . 

(Witness)        C.  D.  A.  B.  [Seal.\ 

Assig'nmcnt — Cleneral  Form. 

With  Conditions.     With  Power  of  Attorney. 

Know  all  men  by  thfese  presents  : 

That  I,  the  undersigned,  for  value  received,  do 
hereby  grant,  assign,  transfer  and  convey  unto 
E.  F.  (here  describe  the  property  assigned). 

To  have  and  to   hold  the  same  forever,  hereby 

appointing  and   constituting  said   assignee  

true  and  lawful  attorney  in  name     ,  place     , 

ur.d  stefd    .  for  the  purposes  aforesaid,  to  ask, 


demand,  sue  for,  attach,  levy^  recover,  and  re- 
ceive all  such  sum  and  sums  of  money,  which 
are  now  or  may  hereafter  become  owing  and 
payable  for  or  on  account  of  all  or  any  of  the  ac- 
counts, dues,  debts,  demands,  judgments,  rights, 
credits,  and  choses,  above  assigned,  giving  and 
granting  unto  the  said  attorney  full  power  to  do 
and  perform  all  and  every  act  and  thing  whatso- 
ever requisite  and  necessary,  as  fully  to  all  intents 
and  purposes  as  I  might  or  could  do  if  personally 
present,  with  full  power  of  substitution  and  rev- 
ocation, hereby  ratifying  and  confirming  all  that 
the  said  attorney  or  his  substitute  shall  lawfully 
do  or  cause  to  be  done  by  virtue  hereof. 

In  witness  whereof,  I  have  hereunto  set  my 
hand  this day  of ,  A.  D. . 

(Witness.)  A.  B. 

Asslg^nment — General  Form. 

By  Indorsement. 

For  value  received,  I  assign  (transfer  and  set  over) 
the  'within,  above,   or  foregoing)  written   note   (ar 
other  instrument),  together  with  all  my  title  and 
interest  in  and  rights  under  the  same,  to  E.  F. 
(Signed)  A.  B. 

Asslgnmenl^-General  Form. 
Personal  Property,  by  Indorsement  with  Power,  etc. 

Know  all  men  by  these  presents: 

That  the  undersigned,  A.  B.,  in  consideration 

of dollars,  to  me  paid  by  A  F. ,  have  assigned, 

transferred  and  set  over  unto  said  E.  F.  all  my 
title  and  interest  in  and  rights  under  the  within- 
written  instrument,  and  every  clause,  article  and 
thing  therein  contained. 

That  I  hereby  appoint  and  constitute  said  E.  F. 
my  attorney,  in  my  name,  place  or  stead,  or 
otherwise,  to  his  own  use  to  take  all  legal  meas- 
ures which  may  be  proper  for  the  complete  re- 
covery aad  enjoyment  of  the  assigned  premise, 
with  full  power  of  substitution. 

In  witness,  etc. 

Assigrnment— General  Form. 

Property  in  Schedules  Attached. 

This  assignment,  made  this  day  of , 

witnesseth : 

That  A.  B.  (of ),  in  consideration  of dol- 
lars, [the  receipt  of  which  is  hereby  acknowl- 
edged] assigns,  transfers  and  sets  over  to  E.  F. 
(of  )  [his  executors,  administrators  and  as- 
signs] all  his  title  and  interest  in  and  rights  under, 
accounts,  debts,  demands,  goods,  merchandise, 
notes,  wares,  etc.,  etc.  (according  to  the  nature  of 
the  property  scheduled  )  set  forth  in  the  schedules 
(marl<ed  A,  B,  C,  etc.)  attached  to  and  made  a  part 
of  this  assignment. 

That  said  A.  B.  gives  said  E.  F.  [his  executors, 
administrators  and  assigns]  the  full  pov^er  to 
ask,  demand,  collect,  receive,  receipt  for,  com- 
pound, and  give  acquittance  for  the  same  or  any 
part  thereof;  and  in  said  assignor's  name,  or 
otherwise,  but  at  his  ar  their  own  costs,  to  pros- 
ecute and  withdraw  any  suits  at  law  or  in  equity 
therefore. 

Given  under  my  hand  (and  seal)  (at ),  the  day 

and  year  first  above  written.  A.  B. 

Assig^nment — Account. 

Know  all  men  by  these  presents ; 

That  I,  A.  B.  (of^ ),  in  consideration  of 

dollars,  the  receipt  of  which  is  hereby  acknowl- 
edged, do   hereby  assign,  transfer  and  set  over 

unto  E.  F.  (of )  (his  executors,  administratore  and 

assigns,  and  to  his  and  their  own  proper  use  and  bene- 
fit), all  my  title  and  interest  in  and  rights  under 
any  and  all  sum  or  sums  of  money  now  due  or  to 
grow  due  upon  the  annexed  account  or  upon  the 
sales  (loans,  services,  etc.)  therein  mentioned. 

That  I  do  hereby  give  said  E.  F.  (his  executors, 
administrators  and  assigns)  full  authority  and  power 
to  ask,  collect,  demand,  receive,  receipt  for,  com- 
pound and  acquit;  and  in  my  name  or  otherwise 
to  institute,  prosecute  and  vtrithdraw  aay  action 
at  law,  or  suits  in  equity  therefore. 

In  witness,  etc. 

Assi$;nment — Acknowledgrment. 

The  assignor  may  in  any  case  acknowledge  his  as- 
signment before  a  competent  officer,  whose  certificate 
should  be  indorsed  on  or  attached  to  the  assignment. 
Such  acknowledgment  will  entitle  the  assignment  to  be 
introduced  in  evidence  without  proof  of  its  execution. 


9« 


ASSIGNMENT. 


and  also  enable  the  holder  to  have  it  recorded  if  neces- 
sary. For  form  of  Acknowledgment,  see  that  title,  ante. 
Assigrniiient— Apprentice. 

Apprenticeship  is  a  relation  which  cannot,  in  the  ab- 
sence of  a  statute  allowing  it,  be  assigned."  Though  if 
binder  such  an  assignment  the  apprentice  continue  with 
his  new  master,  with  the  consent  <>f  all  the  parties  and 
his  own,  it  will  be  construed  as  a  continuation  of  the  old 
apprenticeship.* 

Know  all  men  by  these  presents : 

That  I  (the  within  named)  A.  B.  (of ),  for  value 

received,  hereby  assign,  transfer,  and  set  over  the 
within  indenture  and  apprentice  therein  named 

unto  E.  F.  (of ),  his  executors,  administrators, 

and  assigns,  for  the  residue  of  the  term  within 
mentioned ;  he  and  they  performing  all  and 
singular  the  covenants  therein  contained,  on  my 
part  to  be  kept  and  performed,  and  indemnifying 
me  for  the  same. 

In  \vitness,  etc.  (Signatures  of  old  fnaster, 

parent  or  guardian,  apprentice  and  neju  master.) 
Assl^j^iiinent— Bill  of  Sale. 

Know  all  men  by  these  presents: 

That  A.  B.,  by  his  deed  and  bill  of  sale,  bearing 

date  the  day  of ,  and  which  is  hereunto 

annexed,  did  for  the  consideration  (of )  therein 

expressed,  bargain,  sell,  and  deliver  to  said  C.  D. 
the  household  goods,  implements,  and  utensils  in 

and  about  his  dwelling-house  at ,  a  schedule 

of  which  is  attached  to  said  bill  of  sale  hereunto 
annexed. 

That  said   C.   D.,  for  a  consideration  of  

dj>llars,  does  by  these  presents  bargain,  sell,  as- 
sign, and  set  over  to  E.  F.  all  and  every  said 
goods,  implements,  and  utensils  which  are  in 
said  bill  of  sale  and  schedule  annexed  mentioned, 
to  have  and  to  hold  the  same  forever. 

And  said  C.  D.  does  hereby  covenant  that  said 
foods,  implements,  etc.,  are,  etc. 

In  witness,  etc. 

Asslg^nment— Bill  of  Sale. 
Part  of  a  Vessel. 

Knov7  all  men  by  these  presents : 

That  I,  the  within-named  A.  B.,  in  considera- 
tion of  the  sum  of dollars  (the  receipt  of  which 

is  hereby  acknowledged)  do  by  these  presents  grant, 
assign,  transfer,  and  set  over  unto  E.  F.  the  with- 
in-written bill  of  sale,  and  all  my  title  and  interest 
in  and  rights  under  the  same,  and  in  the  one  full 
and  equal  sixteenth  part  of  the  v^rithin  described 
and  mentioned  vessel,  V,  tc^gether  with  all  her 
anchors,  apparel,  boats,  cables,  furniture,  gun- 
powder, masts,  munitions,  <'opes,  sails,  sail-yards, 
shot,  tackle,  and  all  other  appurtenances  within 
granted  and  to  said  vessel  belonging.  To  have 
and  to  hold  the  same  unto  himself,  his  heirs  and 
assigns  forever. 

That  I  do  covenant,  "promise,  and  agree  that 
•aid  sixteenth  part  of  iaid  vessel,  with  the  ap- 
purtenances, are  and  shall  remain  free  and  clear 
of  all  debts  and  encumbrances  whatsoever  by  or 
through  my  means,  consent,  or  procurement. 

In  witness,  etc. 

Assignment'— Bill  of  Sale. 
Part  of  a  Vessel. 

Know  all  men  by  these  presents : 

That  I,  the  v«^ithin-named  A.  B.,  in  considera- 
tion of  the  sum   of  dollars,  the  receipt  of 

>vhich  is  hereby  acknowledged,  do  hereby  assign, 
transfer,  and  set  over  to  E.  F.  the  within-written 
bill  of  sale  of  one  full  and  equal  sixth  part  (  f  the 
within-mentioned  steamer,  "Century,"  and  all 
her  anchors,  apparel,  boats,  cables,  furniture, 
masts,  munitions,  oars,  sails,  tackle,  yards,  and 
all  appurtenances  thereunto  belonging,  and  all 
tny  title  and  interest  in  and  rights  under  said  bill 
of^sale,  to  have  and  to  hold  the  same  forever. 

That  I,  the  said  A.  B.,  do  hereby  for  myself,  my 
heirs,  executors,  and  administrators,  covenant 
and  agree  with  said  E.  F.  that  said  one-sixth 
part  of  said  steamer,  with  the  appurtenances,  are 
now,  and  shall  continue  unto  said  E.  F.,  his  heirs 
and  assigns,  free  and  clear  of  all  debts  and  encum- 
brances whatsoever  made  or  suffered  by  me,  or 

¥r-S  Binn.  423  ;  4  T.  R.  373  ;   Dougl.  70 ;  3  Keb.  519  ; 
xa  Mod.  554;  18  Ala.  N.  S. ;  99  Bush.  419.     x-Dougl. 
~         373;  19  Johns.  113;  5  Cow.  363;  2  Bail.  93. 


xa  Mod.  554 
r>:4T.B, 


any  other  person  whatsoever,  by  Or  through  «y 

consent,  means,  or  procurement. 
In  witness,  etc. 

ANSii^nment— Bond. 

Know  all  men  by  these  presents: 

That  I,  A.  B.,the  undersigned,  in  consideration 

of  the  sum  of dollars,  the  receipt  of  which  is 

hereby  acknowledged,  do  by  these  presents  as- 
sign, sell,  and  transfer  unto  C.  D.,  his  executors, 
administrators,  and  assigns,  a  certain  v^^ritten 
bond  or  obligation,  and  the  conditions  thereof, 
bearing  date  the day  of  ,  A.  D. ,  exe- 
cuted by  E.  F.  and  V^.  his  wife,  to  said  A.  B., 
and  all  the  sum  and  sums  of  money  due  and  to 
grow  due  thereon,  together  with  all  my  title  and 
interest  in  and  rights  under  the  same. 

In  witness  whereof,  I  have  hereunto  set  my 
hand  this day  of ,  A.  D. .  A.  B. 

Assi^^nment — Bond. 

Assignor  to  be  liable. 

For  value  received  I  do  hereby  assign,  transfer, 
and  set  over  to  E.  F.  the  within  obligation,  and 
all  moneys  due  and  to  become  due  thereon. 

In  case  the  same  cannot  be  recovered  of  the 
within-named  C.  D.,  I  agree  and  promise  to  pay 
to  said  E.  F.  the  amount  thereof,  together  with 
all  necessary  and  reasonable  charges  thereupon 
accruing. 

Witness  my  hand,  etc.  A.  B. 

(  Witnesses) 

Another. 

For  value  received  I  hereby  assign,  transfer, 
and  set  over  to  E.  F.  the  within  obligation,  here- 
by guaranteeing  payment  thereof.  A.  B. 

(  Witnesses) 

Assi$;'nnient — Bond. 

Assignor  not  to  be  liable. 

For  value  received  I  hereby  assiga,  transfer, 
and  set  over  to  E.  F.  the  within  obligation,  and 
all  moneys  due  (and  to  become  due)  thereon.  All 
fcilure  of  recovery,  liabilities,  losses  wholly  at 
the  risk  of  said  E.  F.,  without  recourse  in  any 
event  upon  me.  A.  B. 

( Witnesses) 

Assigrnment^Bond. 

Covenant  of  amount  due  ;  power  to  sue,  etc. 

Know  all  men  by  these  presents : 

That  I,  A.  B.,  in  consideration  of ,  hereby 

assign,  transfer,  and  set  over  unto  E.  F.  a  certain 
written  bond  or  obligation,  and  the  conditioo 
thereof,  bearing  date  the  day  of .  Exe- 
cuted by  C.  D.  to  me  the  said  A.  B. 

That  I  have  good  right  to  assign  said  bond. 

That  there  is  nov/  due  thereon,  according  to  the 

condition  thereof, dollars,  principal,  and 

dollars,  interest. 

That  said  E.  F.  is  hereby  authorized  and  em- 
powered at  his  own  costs,  and  for  his  own  use 
and  benefit,  to  ask,  collect,  demand,  receive, 
cancel,  compound,  discharge,  and  give  acquit- 
tances for  the  same  or  any  part  thereof. 

In  witness  whereof,  etc. 

Assig^nment — Bond,  etc. 

Covenants,  Guaranty,  Power  to  Sue,  etc. 

Know  all  men  by  these  presents : 

That  C.  D.  (of ),  in  and  by  a  certain  bond  or 

obligation,  bearing  date  the  day  of ,  be- 
came bound  to  the  undersigned  A.  B.  (of ),  in 

the  sum  of dollars,  with  interest,  on  the 

day  of ,  last  past. 

That  there  remains  due  said  A.  B.  of  the  princi- 
pal and  interest  on  said  bond  or  obligation  the 
sum  of dollars. 

That  in  consideration  of dollars  (the  receipt 

of  which  is  hereby  aclcnowledged)  said  A.  B.  does  by 
these  presents  sell,  assign,  transfer,  and  set  over 

to  E.  F.  (of ),  said  bond  or  obligation,  and  all 

his  title  and  interest  in  and  rights  under  the  same, 
and  all  sums  of  money  due  or  to  grow  due  there- 
on. Subject,  however,  to  all  the  conditions 
thereof. 

That  there  is  now  due  on  said  bond  or  obliga- 
tion, according  to  the  condition  thereof,  principal, 

dollars,  and  interest, dollars  (or  interest 

from  the day  of ). 

That  said  A.  B.  hereby  guarantees  the  payment 
(»r  collection,  or  coUectability)  of  said  sum. 


ASSIGNMENT. 


99 


That  said  A.  B.  haa  not  recaived,  and  shall  not 
raceive  payment  of  any  of  the  sums  secured  to 
be  paid  or  payable  by  said  bond  or  obligation 

(saving  and  excepting — state  what  exception,  ij  any), 
and  shall  not  release,  cancel  or  discharge  the 
same  or  any  part  thereof,  or  do,  or  permit  know- 
ingly, any  act  or  thing  to  hinder  said  E.  F.  from 
collecting  or  enforcing  the  same. 

That  said  E.  F.  is  hereby  appointed,  authorized, 
constituted  and  empowered  my  true  and  lawful 
attorney,  irrevocable,  with  full  power  of  substi- 
tution and  revocation,  for  me  and  in  my  name,  or 
otherwise,  and  for  his  sole  use  and  benefit  to  ask, 
demand,  enforce  and  receive  of  said  C.  D.  the 
money  due  or  to  grow  due  on  said  bond  or  obli- 
gation ;  and  on  non-payment  (or  non-performance) 
thereof  to  sue  for,  enforce,  recover  and  receive 
the  same,  and  on  satisfaction  thereof  to  cancel 
and  deliver  up  said  bond  or  obligation,  and  give 
the  customary  or  necessary  acquittances,  dis- 
charges or  releases  thereof. 

In  witness  whereof,  etc. 

Assignment — Bond. 
By  Indorsement. 

Knowr  all  men  by  these  presents : 

That  I,  the  within-named  A.  B.,  in  considera- 
tion of  the  sum   of dollars,  to  me  paid,  the 

receipt  of  which  is  hereby  acknowledged,  do  by 
these  presents  assign,  convey  and  set  over  the 
within-written  bond  or  obligation,  and  the  sum 
of dollars  mentioned  in  the  conditions  there- 
of, and  all  my  title  and  interest  in  and  rights 
under  the  same  unto  E.  F.  (his  heirs,  executors, 
administrators  and  assigns),  subject  nevertheless  to 
the  conditions  thereof. 

That  I  hereby  authorize  said  E.  F.,  in  my  name 
or  otherwise,  to  demand,  sue  for,  recover  and 

enjoy  said  sum  of dollars  and  interest,  to  his 

own  use  absolutely  forever. 

In  witness,  etc. 

Another. 

Kno\v  all  men  by  these  presents  : 

That  I,  the  within-named  A.  B.,  for  value  re- 
ceived, do  hereby  assign,  transfer,  and  set  over 
unto  E.  F.  the  within-written  bond  or  obligation 
and  all  sums  of  money  payable  by  virtue  thereof. 

That  I  do  hereby  constitute  said  E.  F.  my  lawful 
attorney,  irrevocable,  to  demand,  sue  for,  recover, 
receive  and  use  the  same  for  his  sole  use  and 
benefit. 

In  Case  of  Death  add: 

That  in  case  of  my  death  before  the  same  shall 
be  recovered,  that  my  legal  representatives  shall 
give  said  E.  F.  full  power  as  aforesaid,  to  recover 
and  use  the  same. 

In  witness,  etc. 

Assignment— Bond. 
For  the  Payment  of  Money,  etc. 

KnoAV  all  men  by  these  presents  : 

That  I, the  undersigned,  A.  B.,  in  consideration 

of  the  sum  of  dollars  (the  receipt  of  which  is 

hereby  acknowledged),  do  hereby  assign,  transfer 
and  set  over  unto  E.  F.  (his  heirs,  executors,  admin- 
istrators and  assigns)  all  my  title  and  interest  in  and 
right  under  a  certain  bond  or  obligation,  in  the 
^vords  and  figures  as  follows  (copying  the  bond  at 
length),  (or  a  certain  bond  or  obligation,  bearing  date 

the  day  of ,  executed  by  for,  etc.,  with 

conditions,  etc.) 

That  I  authorize  said  E.  F.  to  ask,  demand,  sue 
for,  release,  receipt,  and  acquit  for  the  same,  for 
his  sole  use  and  benefit,  in  the  manner  required 
by  law,  with  full  power  of  substitution. 

In  witness,  etc. 

Assig:nment — Bond. 

Far  Peaceable  Enjoyment  of  Vessel,  etc. ,  Assigned. 

Know  all  men  by  these  presents : 

That  A.  B.,  by  an  obligation,  under  his  hand, 

.n  the  sum  of ,  bearing  date  the day  of , 

and  reciting  therein  the  transfer,  by  bill  of  sale, 

to  C.  D.,  of  a  certain  vessel,  of tons  burthen, 

known  as  the  V.,  whereof  M.  R.  is  master,  and 
all  appurtenances  and  things  to  said  vessel  be- 
longing, free  from  all  former  grants,  charges,  or 
incumbrances  whatever,  with  condition  for  the 
security  and  peaceable  enjoyment  of  said  vessel. 

That  said   C.  D.,  for  the   consideration  of 

(the  receipt  of  whjcb  js  hereby  a9kpowled|;ed),  dO?* 


hereby  assign,  transfer  and  set  over  unto  B.  F. 
all  his  title  and  interest  in  and  rights  under  said 
bond  or  obligation. 

That  said  C.  D.  does  hereby  appoint,  make  and 
name  said  E.  F.  his  lawful  attorney,  in  his  name, 
place  and  stead  to  ask,  demand,  receive,  sue  for, 
recover  and  release,  and  acquit  said  obligation 
for  his  own  and  proper  use,  employing  ^vhatever 
means,  remedy,  or  course  to  that  end  which  he 
may  see  fit  lawfully  to  use,  with  full  power  of 
substitution. 

In  witness,  etc. 

Assig^nment— Chattels. 

See  Assignment — Personal  Property,  etc.,  below. 
Assig^nment— Claims. 

For  Money  Due. 

Know  all  men  by  thesp  presents: 

That  I,  A.  B.  (ot ),  in  consideration  of 

dollars  (the  receipt  of  which  is  hereby  acknowledged), 
hereby  assign,  transfer  and  set  over  to  E.  F.  the 
annexed  account  of  moneys  due  me  by  C.  D.,  and 
all  sums  of  money  due  and  payable  by  virtue  of 
the  same,  and  all  my  title  and  interest  in  and 
rights  under  the  same. 

That  said  account  and  moneys  shall  be  for  the 
sole  and  proper  use  of  said  E.  F.,  without  any 
account  to  be  given  for  the  sanHe. 

That  I  hereby  give  and  grant  said  E.  F.  full 
authority  and  pov^er  to  demand,  receive,  sue  for, 
and  collect  said  accounts  and  moneys,  and  upon 
receipt  thereof  to  give  discharges  for  the  same  or 
any  part  thereof. 

That  I  hereby  covenant  and  agree  to  and  with 

said  E.  F.  thatthesum  of dollars  is  justly  due 

and  o\Aring  on  said  account,  and  that  I  have  not  re- 
ceived or  discharged  the  same  or  any  part  thereof. 

In  witness  whereof,  etc. 

Assignments-Contract. 

Sale  of  Real  Property. 
See  Assignment — Deed,  below. 

Know  all  men  by  these  presents : 

That  I,  the  undersigned,  A.  B.,in  consideration 

of dollars,  do  hereby  sell,  transfer,  assign, 

and  set  over  unto  E.  F.  all  my  title  and  interest 
in  and  rights  under  a  contract  bearing  date  the 

day  of ,  executed  by  C.  D.  (of )  to  me, 

for  the  sale  to  me  of  the  following  described  real 

estate,   situated   in  ,  to  wit  (copy  description 

given  in  the  contract  assigned  ). 

That  this  assignment  is  subject,  nevertheless,  to 
the  conditions  and  covenants  therein  mentioned. 

That  I  hereby  authorize  and  empower  said  E. 
F.,  upon  his  performance  of  said  covenants  and 
conditions,  to  demand,  enforce  and  receive  of 
said  C.  D.  the  deed  covenanted  in  said  contract 
to  be  given ;  and  all  relief  concernin|f  the  same 
to  obtain  in  the  same  manner,  to  all  intents  and 
purposes  as  I  myself  might  or  could  do  were 
these  presents  not  executed. 

In  writness,  etc.  A.  B. 

Assig^nments-Consent. 

I  hereby  consent  to  the  foregoing  assignment, 
together  with  all  conditions  and  terms  therein 
contained.  C.  D. 

Another. 

I,  the  undersigned,  C.  D.,  in  the  foregaing  in- 
strument named,  hereby  consent  to  the  assign- 
ment of  that  part  of  my  agreement  with  A.  B. 
(of ),  and  agree  to  make  and  execute  the  con- 
veyance therein  mentioned  to  said  E.  F.  upon  the 
performance  of  said  agreement.  C.  D. 

Assignment— Copyrig^tat. 

bee  title  Copyright. 
Assignment— Corporation  or  Companx* 

Know  all  men  by  these  presents  : 

That  "The  C.  Y.  Company,"  (of )  is  a  cor- 
poration organized  (or  existing)  under  (the  Saws  of 

the  State  of ,or  An  Actof  the  Legislature  or  General 

Assembly  of  the  State   of ,  Approved   or   Passed, 

March ,  Entitled,  etc.,  setting  out  the  title  of  the 

act). 

That  said  company,  in  pursuance  of  a  resolu- 
tion of  its  directors  (or  trustees),  passed   on  the 

dayof ,and  in  consideration  of dollars 

(if  paid  say:  the  receipt  of  which  is  hereby  acknowl- 
edged) h?reby  sells,  transfers,  assigns  and  aeta  ov«r 


lOO 


ASSIGNMENT. 


anto  B.  P.  all  its  title  and  interest  in  and  rights 
under  the  following  described  property,  to  wit: 

All  the  machinery,  shafting,  belting,  fixtures, 
furniture,  tools,  patterns,  dies,  moulds,  and  their 
accessories,  mentioned  in  schedule  "A,"  hereunto 
annexed. 

All  stock  and  material  of  every  kind,  whether 
raw,  manufactured,  in  process  of  manufacture, 
or  otherwise,  ail  waste,  etc.,  etc.,  mentioned  in 
schedule  "B,"  hereunto  attached 

AH  office  fixtures,  furniture,  conveniences,  etc., 
etc.,  mentioned  in  schedule  "C,"  hereunto  at- 
tached, etc.,  etc. 

That  a  more  full  and  accurate  description  of 
the  property  hereby  conveyed  may  be  had  by 
reference  to  a  full  and  minute  inventory  thereof, 

made  on  the day  of ,  and  contained  in  an 

inventory-book  of  said  company  (and  delivered  by 
;:onsent  of  parties  to  one  G.  H). 

(Covenant  of  right  to  sell,  value,  etc.,  Warranty,  etc., 
see  ante  and  post. ) 

In  witness  \vhereof,  the  president  and  secretary 
of  said  company  have  hereunto  set  their  hands 

and  affixed  the  seal  thereof  (at  ),  this  

day  of .  P.  P. ,  President. 

(IVitnesses)        [Seal.]  S.Y.,  Secretary. 

G.  H. 

1.  K. 

Assignment — Debt. 

I,  the  undersigned  A.  B.  (of ),  in  considera- 
tion of dollars  (the  receipt  of  which  I  hereby  ac- 
knowledge), do  assign,  transfer,  and  set  over  to 

E.  F.  (of )  a  certain  debt  due  and  owing  me 

from  C.  D.  (of ),  for  (here  state  what  the  debt  is 

for),  amounting  to dollars. 

I  do  hereby  covenant  that  said  sum  of dol- 
lars is  justly  owing  and  due  to  me;  that  there 
is  no  counter-claim,  cross-demand,  or  set-off 
against  the  same,  and  that  the  same  is  not,  nor 
will  be  barred  by  the  statute  of  limitations  for 

from  the  date  hereof.   And  that  I  have  neither 

done  nor  shall  do  anything  to  discharge  or  lessen 
said  debt,  or  hinder  said  E.  F.  or  his  assigns 
from  collecting  the  same. 

In  \vitness,  etc. 

Assigrnment— Debt. 

As  security,  -with  power,  etc. 

Know  all  men  by  these  presents : 

That  A.  B.  (of ).  in  consideration  of  , 

now  due  from  him  to  E.  F.  (of \,  and  to  secure 

payment  of  the  same  to  said  E.  F.,  do  by  these 
presents  grant,  assign,  transfer,  and  set  over  all 
his  title  and  interest  in  and  rights  under  a  debt 

due  him  from  C.  D.  (of ),  for ,  amounting 

to dollars. 

That  said  A.  B.  does  hereby  constitute  and  ap- 
point said  E.  F.  his  attorney  irrevocable,  in  his 
name,  place,  and  stead,  at  his  own  costs  and  ex- 
pense, to  ask,  demand,  sue  for,  recover,  receive, 
receipt  for,  and  release  said  debt,  for  his  own  use 
and  benefit. 

Provided,  nevertheless,  that  if  said  A.  B. ,  or 
his  legal  representatives,  shall  pay  or  cause  to  be 

paid  said  sum  of dollars  due  within from 

the  date  hereof,  said  E.  F.,  as  aforesaid,  then  this 
assignment  and  every  matter  and  thing  herein 
contained  shall  be  absolutely  void  and  of  no  effect 
^whatever. 

In  >vitness,  etc. 

Assljsrnment— Deed. 

See  "Assignment — Contract,"  «/r., above 

Know  all  men  by  these  presents  : 

That  A.  B.  (of ),  the  within-named  (^r  under- 

•isjned)  grantee,  and  W.,  his  wife,  in  consideration 

of  the  sum  of  dollars  (the  receipt  of  which  is 

hereby  acknowledged),  hereby  grant,  bargain,  sell, 

assign,  transfer,  and  set  over  unto  E.  F.  (of ) 

ali  the  within  (or  following)  described  tract  or  par- 
cel of  land  situated  in  ,  to  wit  {describing it), 

containing acres,  more  or  less,  together  with 

the  appurtenances,  to  have  and  to  hold  the  same 
unto  himself,  his  heirs  and  assigns  forever. 

IThat  said  premises  are  the  same  that  G  H.. 
■  -'  Penning.  521  ;  19  N.  H.  240;  23  Pick.  80,  88:  4 
AL.  iN.  S.)  160:  4  Me.  67:  2  Ind.  388:  Tudor  L.  Cas 
51.  b-2  Bl.  Coram.  136.  i  Washb.  R.  Prop.  229.  c- 
jef.  20  Ala.  (N.  S.)662;  7  Monr  337;  5  Conn.  462.  i 
«Vir'»ht?-  R    Prop   22?,  ''    *'7-    <I-Th?  remedy  of  the 


by  the  within-written  conveyance  {or  a  conveyance 

bearing  date  the  day  of )  conveyed  to  said 

A.  B.  on  the day  of ,  and  which  is  recorded 

in   office    of  the  ,  in  deed    book,  No.   , 

page .] 

That  said  A.  B.  shall  and  will  wanrant  and  de- 
fend  these  presents  against  all  and  every  other 
person  or  persons  whomsover,  lawfully  claiming 
or  to  claim  the  same  or  any  part  thereof,  by, 
from,  or  under  him. 

In  witness  whereof,  etc.  A.  B. 

{Witnesses.)  W.  B. 

For  form  of  "Acknowledgment,"  see  that  title. 

Assig^nment— Dower. 

By  Heir. 

The  assignment  of  dower  is  an  act  by  which  the  share 
of  a  widow  in  her  deceased  husband's  real  estate  is  as- 
certained and  set  apart  to  her. 

The  assignment  may  be  made  by  the  heir,  or  hii 
guardian,  or  the  devisee,  or  other  persons  in  possession 
of  the  lands  subject  to  dower,"  or  it  may  be  made  after 
a  course  of  judicial  proceedings,  where  a  voluntary 
assignment  is  refused.  In  this  case  the  assignment  is 
made  by  the  sheriff,  who  sets  off  her  share  by  metes  and 
bounds. t"  The  assignment  should  be  made  within  the 
time  limited  by  law  after  the  death  of  the  husband,  dur- 
ing which  time  the  widow  shall  remain  in  her  husband's 
principal  residence."  The  share  of  the  widow  is  usually 
one-third  of  all  the  real  estate  of  which  the  husband  has 
been  possessed  during  the  marriage  ;  and  no  writing  or 
delivery  is  necessary  in  a  valid  assignment,  the  doweress 
being  in  according  to  the  view  of  the  law  of  the  posses- 
sion of  her  husband."'  If  the  guardian  of  a  minor  heir 
assign  more  than  he  ought,  the  heir  on  coming  of  a||e 
may  enforce  an  admeasurement  of  dower." 

Know  all  men  by  these  presents : 

That  A.  B.  was  in  his  lifetime,  and  at  the  time 

of  his  death,  on  the day  of ,  seized  in  fee 

of  divers  lands  and  tenements  in (or  as  follows: 

describing  them),  which  upon  his  decease  -de- 
scended unto  I.  B. 

That  said  W.  B.  is  the  widow  of  said  A.  B. 

That  said  I.  B.  hereby  assigns,  endows,  and 
sets  over  unto  said  'W.  B.  the  third  part  of  said 
lands  and  tenements,  to  wit  {describing  the  same). 

That  said  W.  B.  shall  have  and  hold  said  prern- 
ises  during  her  natural  life  as  dower  and  in  recom- 
pense and  satisfaction  of  all  dower  which  said 
W.  B.  ought  to  have  in  said  lands  and  tenements. 

In  witness  whereof,  etc.  ")  I.  B. 

Signed,  sealed,  acknowled 
delivered  in  presence  of  W. 

For  form  of  ".Acknowledgment,"  see  that  title. 
As«4lg'nnicnt — Gronnd  Rent. 

Know  all  men  by  these  presents: 

That  the   undersigned  A.  B.  (of ),  and  W. 

his  wife,  for  and  in  consideration  of  the  sum  of 

dollars  (at  or  before  the  stating  and  delivery  of 

these  presents,  the  receipt  of  which  is  hereby  acknowl- 
edged), have  and  by  these  presents  do  alien,  assign, 
bargain,  convey,  confirm,  enfeoff,  grant,  sell,  set 
over,  and  transfer  unto  E.  F.  (of )  all  that  cer- 
tain yearly  rent,  charge,  and  sum  of dollars, 

chargeable   half-yearly,  issuing  and   payable  by 

C.  D.  (of ),  his  heirs  and  assigns,  on  the  first 

day  of  the  months  of  January  and  July  of  each 
and  every  year,  forever,  without  any  deduction 
for  taxes  out  of  and  for  all  that  certain  lot  and 

tract  of  ground  situated  in ,  and  described  as 

follows,  to  wit  (describing  it  by  tnetes  and  bounds), 
together  with  all  the  ways,  means,  rights,  privi- 
leges, remedies,  power  of  entry,  distress,  and  re- 
entry for  recovery,  payments  of  the  aforesaid 
yearly  rent  charge,  and  the  arrearage  thereof,  and 
the  reversions  and  remainders  thereof,  and  all  the 
estate,  right,  title,  interest,  property,  claim,  and 
demand  whatsoever  of  them.  To  have  and  to 
hold  the  same  together  with  the  appurtenances 
forever. 

That  said  A.  B.,  for  himself,  his  heirs,  executors, 
and  administrators,  does  by  these  presents  cove- 
nant and  agree  to  and  with  said  E.  F.,  his  heirs 
widow  when  the  heir  or  guardian  refuses  to  assign 
dower  :  4  Kent  Comm.  63.  e-2  Ind.  336:  i  Pick.  314; 
Co.  Litt.  34,  35;  Fitzh.  Nat.  Brev.  148;  Finch.  314, 
Stat.  Westm.  2  (13  Edw.  \.)c.  7;  i  Washb.  R.  Prop 
222-250;  I  Kent  Comm-  63,  ^:  2  Bo«v.  Inst  n.  1743. 


a  lanas  ana  n 

edged, and  V 
J.  I.,T.  S.  ) 


ASSIGNMENT. 


loi 


tnd  assigns,  that  he  will  warrant  and  forever  de- 
fend these  presents  against  himself  and  his  heirs 
and  against  all  and  every  person  and  persons 
whomsoever,  lawfully  claiming  or  to  claim  the 
same  or  any  part  thereof,  by,  from  or  under  him, 
them,  or  any  of  them. 
In  witness  whereof,  etc. 

{Uglinesses.)  A.  B. 

W.  B. 
For  form  of  "Acknowledgment,"  sec  that  title. 
Asslg'nment — Indenture. 
See  Assignment — Apprentice,  above. 
Asslg^nment — Indorsed. 
General  Form. 
For  value  received,  I  assign  (transfer  and  set  over) 
the  (within,  above,  or  foregoing)  written   note  (or 
ether  instrument),  together  with  all  my  title  and 
interest  in  and  rights  under  the  same,  to  E.  F. 
{Witnesses.)  {Signed)  A.  B. 

Assiffnnient— Insolvent  Debtor. 

Know  all  men  by  these  presents: 

That  I,  A.  B.,of  ,  am  indebted  to  divers 

persons  and  unable  to  pay  the  several  amounts 
of  their  claims  in  full,  and  desire  to  convey  all 
my  property  for  the  benefit  of  all  my  creditors, 
without  preference  or  priority. 

That  in  consideration  of  the  premises,  I  do  by 
these  presents  grant,  bargain,  sell,  assign,  trans- 
fer and  set  over  unto  E.  F.,  all  my  lands,  tene- 
ments, hereditaments,  goods,  chattels,  rights, 
credits  and  effects  of  every  name,  nature  and  de- 
scription (saving  only  such  property  as  is  exempt  by 
law  from  attachment  and  execution),  in  trust,  never- 
theless, to  sell  and  dispose  of  and  collect  the 
same,  with  full  power  to  compound,  adjust  and 
settle  for  the  same  or  any  part  thereof,  and  apply 
the  proceeds  thereof  as  follows : 

To  pay  all  costs  and  charges  of  these  presents, 
and  the  lavtrful  expenses  of  executing  the  trust 
hereby  created. 

To  distribute  and  pay  the  remainder  of  said 
proceeds,  ratably  and  in  equal  proportions,  to  my 
creditors,  in  satisfaction  and  release  of  all  debts 
by  me  owing. 

To  repay  me,  my  executors,  administrators  and 
assigns  the  residue  of  said  proceeds,  if  any  there 
be. 

In  witness  whereof,  etc. 

Assiji^ninent — Insolvent  Debtor. 

Know  all  men  by  these  presents  : 

That  A.  B.  is  unable  to  pay  all  his  just  debts. 

That  said  A.  B.,  by  the  assent  and  concurrence 
of  his  creditors,  who  have  subscribed  their  names 
to  these  presents,  does  hereby  assign,  transfer 
and  set  over  all  his  estate,  real,  personal  and 
mixed,  his  lands,  tenements  and  hereditaments, 
goods,  chattels  and  effects  (saving  only  household 
furniture  and  supplies),  goods,  wares  and  merchan- 
dise, moneys,  sureties  for  moneys,  rights  and 
credits  of  whatever  nature  soever,  and  all  his 
title  and  interest  in  and  rights  under  the  same, 
tinto  E.  F.,  in  trust,  nevertheless,  for  the  benefit 
of  all  his  creditors,  as  follows: 

That  said  E.  F.  shall  forthwith  take  possession 
of  the  premises,  and  with  diligence,  by  private 
and  public  sale,  and  for  the  best  price  he  can  pro- 
cure, convert  the  same  into  money,  and  collect 
all  sum  and  sums  of  money  aforesaid. 

That  said  E.  F.,  after  deducting  the  costs, 
charges  and  expenses  of  said  trust,  and  paying 
said  A.  B. ,  in  consideration  of  his  services  in  the 
adjustment  and  settlement  of  his  affairs,  and  for 
support  and  maintenance  of  himself  and  family, 

dollars,  he  shall  pay  and  discharge,  in  equal 

proportion,  the  respective  debts  of  all  the  credi- 
tors whose  names  are  hereunto  subscribed. 

That  said  E.  F.,  after  full  satisfaction  and  dis- 
charge of  the  debts  of  said  subscribing  debtors, 
shall,  out  of  the  residue,  pay  all  other  creditors 
of  said  A.  B.  in  equal  proportions. 

That  said  E.  F.  shall  pay  over  any  surplus  re- 
maining to  said  A.  B.,  his  executors  or  adminis- 
trators. 

{Add  any  further  clauses  which  may  be  desirable^ 
{Signed)    A.  B.  (Signed)     E.  F. 


Creditors'  Signatures. 


Creditors'  Signature*. 


Asslg^nmont — Insolvent  Debtor. 

JVith  Conditions,  etc. 

Know  all  men  by  these  presents : 

That  A.  B.,with  the  assent  and  concurrence 
of  his  creditors,  whose  names  are  hereunto  sub- 
scribed, and  for  the  considerations  hereinafter 
mentioned,  hereby  grants,  assigns,  transfers  and 
sets  over  to  E.  F.  and  his  assigns,  all  his  house- 
hold goods,  his  wares,  merchandise,  stock  in 
trade,  accounts,  bills  receivable,  mortgages,  notes 
and  all  his  rights,  credits  and  effects.  In  trust, 
nevertheless,  to  sell  or  dispose  of  the  same,  at 
public  or  private  sale,  at  said  assignees'  ior  tnis- 
tees')  discretion,  and  to  collect  and  convert  the 
same  into  cash,  and  after  deducting  the  necessary 
and  usual  charges  divide  the  v^rhole  of  the  proceeds 
and  collections  thereof  among  said  subscribing 
creditors  of  said  A.  B.,  pro  rata  and  in  proportion 
to  the  amount  of  their  respective  claims  against 
him. 

Classes  /or  insertion  when  applicable. 
Concealment  of  Property. 

That  in  case  said  subscribing  creditors,  or  any 
of  them,  shall  at  any  time  hereafter  prove  or 
make  appear  that  said  A.  B.,on  the  date  of  these 
presents,  or  at  anytime  hereafter,  was  possessed 
of  or  interested  in  any  other  goods,  wares,  mer- 
chandise,  rights,  credits  or   effects  whatsoever 

(saving  wearing  apparel),  to  the  value  of dollars 

or  upwards,  besides  what  are  included  or  referred 
to  in  the  annexed  schedules,  then  said  A.  B.  shall 
have  no  benefit  whatever  from  these  presents,  or 
from  any  releases,  receipts  or  acquittances  by  any 
of  said  creditors  given  ;  but  such  releases,  re- 
ceipts and  acquittances  shall,  except  for  the 
amounts  actually  paid  or  value  therefore  received, 
be  absolutely  void. 

Creditors  not  Benefited. 

That  every  creditor  who  shall  not  come  in  and 

execute  these  presents  within days  from  the 

date  thereof,  shall  not  be  entitled  to  any  distribu- 
tion or  advantage  therefrom  whatsoever  ;  and  in 
such  case  the  proportion  or  proportions  of  the 
premises  hereby  assigned,  to  which  they  would 
otherwise  be  entitled  to  receive,  shall  be  p«id 
over  to  said  A.  B.,  or  such  person  or  persons  as 
he  shall  in  writing  appoint. 

Creditors'  Release. 

That  said  subscribing  creditors,  for  the  consid- 
erations in  this  agreement  mentioned,  do  sever- 
ally for  themselves  (and  partners)  release  unto 
said  A.  B.  all  manner  of  action  and  actions,  ac- 
counts, bills  payable,  bonds,  executions,  judg- 
ments, deeds,  mortgages,  notes,  and  all  claims 
and  demands  whatsoever,  from  the  beginning  of 
the  world  unto  the  date  of  these  presents. 

Debtors'  Allowances. 

That  said  A.  B.  shall  be  allowed  the  sum  of  five 
per  cent,  out  of  the  net  produce  of  all  the  estate 
hereby  assigned  which  shall  be  paid  him  by  said 
assignee  {or  trustee). 

That  said  trustee  shall,  out  of  said  trust  moneys, 
pay  the  rent  and  taxes  of  the  dwelling  house  of 

said  A.  B.,  on  next,  and  the  wages  due  the 

servants  of  said  A.  B.,  and  all  debts  due  from 

said   A.  B.   under  dollars  apiece,   provided 

said  debts  shall  not  exceed  in  the  aggregate 

dollars. 

Debtors'  Assistance. 

That  said  A.  B.  shall,  upon  reasonable  notice, 
attend  said  trustee  and  assist  him  in  making  out 
all  accounts  relating  to  the  subjects  of  this  as- 
signment. 

Debtors'  Covenants. 

That  said  A.  B.  has  not  heretofore  assigned,  en- 
cumbered, received  or  discharged  any  part  of  the 
premises  hereby  assigned  in  trust  as  aforesaid, 
and  that  he  will  not  do  or  suffer  any  act  to  hinder 
or  obstruct  said  assignee  (or  trustee)  from  receiv- 
ing or  recovering  the  same  or  any  part  thereof,  or 
such  satisfaction  as  may  be  had  for  the  same. 

That  said  A.  B.  shall,  at  the  request  and  costs 
of  said  subscribing  creditors,  execute  and  per- 
form all  further  and  reasonable  acts  necessary  to 
the  execution  and  performance  of  the  trust  herein, 
and  for  the  better  and  further  assuring  and  assign- 
ing of  the  premises,  and  for  cnabKng  said  as- 


t02 


ASSIGNMENT. 


•ignee  {or  trustee)  to  collect,  recover,  and  receive 
the  same  and  every  part  thereof. 

Debtor's  Power  to  Assignee  (or  Trustee.) 

That  said  A.  B. ,  with  the  assent  and  concurrence 
of  his  said  subscribing  creditors,  hereby  appoints, 
authorizes,  constitutes,  and  empowers  said  E.  F., 
and  his  assigns,  his  lawful  attorney  irrevocable,  in 
his  name  or  otherwise,  as  is  lawful  and  proper,  to 
ask,  demand,  sue  for,  recover,  and  receive  all  and 
singular  the  premises  assigned,  and  upon  receipt 
of  the  same,  or  any  part  or  satisfaction  thereof, 
to  give  the  necessary  releases,  receipts,  and  ac- 
quittances; to  compound,  compromise,  and  arbi- 
6ate  all  matters,  when  in  his  opinion  the  same  is 
to  the  best  interests  of  said  creditors,  and  gen- 
erally to  do  all  acts  necessary  to  effect  the  pur- 
poses of  these  presents. 
*  Insurance. 

That  said  assignee  (or  trustee)  may,  in  his  dis- 
cretion, cause  said  trust  estate  to  be  insured,  and 
deduct  the  necessary  premiums  of  such  insurance 
from  the  same. 

Proving  Claims. 

That  no  dividend  or  distribution  shall  be  made 
by  said  assignee  {or  trustee)  of  any  part  of  the 
effects  assigned  in  trust  by  these  presents  to  or 
among  any  of  the  creditors,  parties  to  the  same, 
until  such  creditor  shall  have  made  affidavit  or 
affirmation  of  the  amount,  character,  date,  items, 
and  justness  of  his  claim  or  demand,  and  that  the 
same  is  founded  on  a  sufficient  legal  considera- 
tion, before  some  person  authorized  by  law  to 
administer  the  same. 

Sales. 

That  said  assignee  [or  trustee "i  may  dispose  of 
said  household  goods,  merchandise,  etc.,  at  such 
prices  as  he  can  (after  due  notice  of  such  sales)  ob- 
tain for  the  same. 

Surplus. 

That  when  said  subscribing  creditors  shall  have 
received  the  whole  of  their  respective  debts,  and 
all  allowances,  charges,  and  commissions  have 
been  deducted  from  said  trust  moneys,  said  as- 
signee {or  trustee)  shall  deliver  or  pay  over  the  re- 
mainder (if  any;  to  said  A.  B.,  his  executors  or 
administrators. 

Trustee's  {or  Assignee's)  Acceptance. 

Said  E.  F.  hereby  accepts  the  trust  created  by 
the    above    instrument,    and    agrees    fully    and 
faithfully  to  perform  the  same.      (Signed)  E.  F. 
Trustee's  (or  Assignee's)  Accounting. 

That  said  assignee  (;<)r  trustee)  shall  not  be  liable 
or  chargeable  for  any  assets  other  than  ■what  he 
shall  actually  receive  by  virtue  of  these  presents, 
nor  be  accountable  for  any  losses  that  shall  hap- 
pen in  the  management  and  disposal  of  said  es- 
tate occurring  without  his  default  or  negligence. 
Trustee's  {or  Assignee's)  Compensation. 

That  said  assignee  (or  trustee)  may  reimburse 
himself  all  necessary  costs  and  expenses  incurred 
in  the  management  and  performance  of  the  trusts 
hereby  reposed  in  him, together  v^ith  an  allovv:- 
ance  and  commission,  as  follows,  etc. 

Trustef/s  [or  Assignee's)  Covenants. 

That  said  E.  F.  covenants  and  agrees  with  said 
A.  B.,  and  v^rith  said  subscribing  creditors  sever- 
ally, that  he  will  fully  and  faithfully  execute  and 
perform  all  the  trusts  herein  and  hereby  reposed 
in  him,  and  will  at  the  request  of  said  subscribing 
Creditors,  or  their  majority,  render  them  his  ac- 
count in  writing  touching  said  trusts,  and  will 
make  a  just  and  speedy  distribution  of  all  trust 
moneys  (less  the  necessary  deductions  herein  specified) 
among  said  creditors  according  to  the  true  intent 
and  purpose  of  these  presents. 

Trustee's  {or  Assignee's)  Death,  etc. 

That  should  said  assignee  (or  trustee)  die  pos- 
sessed of  said  trust  estate  and  moneys,  said  sub- 
scribing creditors,  or  their  majority,  shall  appoint, 
in  writing  under  their  hands,  another  person  as 
assignee  ^or  trustee)  in  the  place  and  stead  of  said 
assignee  {or  trustee). 

That  upon  reasonable  notice  to  said  A.  B.,or 
bis  executor  or  administrators,  of  such  appoint- 
ment, he  or  they  shall  thereupon  deliver  and 

t»-3  Suiqin.  Ch.  345 ;  10  Paige,  Ch.  445 ;  i  |«r.  V.  10;  ; 


transfer  all  and  singular  said  trust  estate  and 
premises  to  such  new  assignee  {or  trustee),  subject 
to  the  trusts  in  these  presents  declared,  and  to 
such  other  agreements,  conditions,  and  cove- 
nants as  shall  be  agreed  upon  by  said  subscribing 
creditors,  or  their  majority,  and  said  last-named 
assignee  {or  trustee). 

Triistee's  {or  Assignee's)  Receipts. 

That  the  receipts  of  said  assignee  (or  trustee)  of 
or  for  any  of  said  assigned  premises  shall  be  an 
effectual  discharge  to  all  persons  to  whom  the 
same  shall  be  given. 

Assignment — Insolvent  Debtor. 

In  most  States  general  assij^nments  in  trust  made  by 
insolvent  and  other  debtors  for  the  discharge  of  their 
debts  are  regulated  by  the  general  statutes,  which  see.' 
It  is,  however,  a  well-established  doctrine  that  the  debtor 
must  make  an  unconditional  surrender  of  his  effects  for 
the  benefit  of  those  to  whom  they  rightfully  belong.''  And 
any  reservation  for  himself  of  power  to  revoke  the  con- 
veyance ;  or  change  the  trusts  by  giving  a  preference  to 
other  creditors  at  a  future  time ;  or  direction  that  the 
surplus,  after  paying  the  preferred  creditors,  shall  be 
returned  to  him,  and  all  conditions,  exceptions,  or  the 
like,  will  render  the  conveyance  void,  unless,  indeed, 
they  are  allowed  by  statute. 

Deeds,  etc.,  regularly  executed  and  acknowledged, 
should  accompany  the  assignment  where  real  estate  is 
included  in  it.  And  all  other  evidences  should  in  like 
manner  accompany  it. 

Know  all  men  by  these  presents  : 

That  this  assignment,  made  the day  of , 

in  the  year  ,  by  A.  B.  and  C.  D.,  partners  in 

trade  and  business,  under  the  name,  style,  or  firm 
of  B.  &  D.,  of  the  first  part,  to  E.  F.,  of,  etc.,  of 
the  second  part,  witnesseth  : 

That  whereas  the  said  copartnership  is  justly 
indebted  in  considerable  sums  of  money,  and  has 
become  unable  to  pay  and  discharge  the  same 
with  punctuality,  or  in  full :  and  the  said  parties 
of  the  first  part  are  now  desirous  of  making  a 
fair  and  equitable  distribution  of  their  property 
and  effects  among  their  creditors :  Now,  there- 
fore, the  said  parties  of  the  first  part,  in  consid- 
eration of  the  premises,  and  of  the  sum  of  one 
dollar  to  them  in  hand  paid  by  the  party  of  the 
second  part,  the  receipt  whereof  is  hereby  ac- 
knowledged, have  granted,  bargained,  and  sold, 
released,  assigned,  transferred,  and  set  over,  anW 
by  these  presents  do  grant,  bargain  and  sell,  re- 
lease, assign,  transfer  and  set  over  unto  the  saiiA 
party  of  the  second  part,  and  to  his  heirs  and  as- 
signs forever,  all  and  singular  the  lands,  tene- 
ments, and   hereditaments,  situate,  lying,  and 

being,  within  the  State  of ,  and  all  the  goods, 

chattels,  merchandise,  bills,  bonds,  notes,  boo7£ 
accounts,  claims,  demands,  choses  in  action, 
books  of  account,  judgments,  evidences  of  debt, 
and  property  of  every  name  and  nature  whatever, 
of  the  said  parties  of  the  first  part,  more  partica- 
larly  enumerated  and  described  in  the  schedule 
hereto  annexed,  marked  "Schedule  A"  ;  to  havis 
and  to  hold  the  same,  and  every  part  and  parcel 
thereof,  with  the  appurtenances,  to  the  said  part; ' 
of  the  second  part,  his  heirs,  executors,  adminis- 
trators, and  assigns:  In  trust,  nevertheless,  and 
to  and  for  the  following  uses,  intents,  and  pur- 
poses, that  is  to  say  :  that  the  said  party  of  the 
second  part  shall  take  possession  of  all  and  sin- 
gular the  lands,  tenements,  and  hereditaments, 
property  and  effects,  hereby  assigned,  and  sell 
and  dispose  of  the  same,  upon  such  terms  and 
conditions  as  in  his  judgment  may  appear  best, 
and  most  for  the  interest  of  the  parties  concerned, 
and  convert  the  same  into  money:  and  also  to 
collect  all  and  singular  the  said  debts,  dues,  bills, 
bonds,  notes,  accounts,  claims,  demands,  and 
choses  in  action,  or  so  much  thereof  as  may 
prove  collectable ;  and  thereupon  to  execute,  ac- 
knowledge, and  deliver  all  necessary  convey- 
ances and  instruments  for  the  purposes  afore- 
said :  and  by  and  with  the  proceeds  of  such  sales 
and  collections,  the  said  party  of  the  second  part 
shall  first  pay  and  disburse  all  the  just  und  rea- 
sonable expenses,  costs,  charges,  and  commis- 
sions, of  executing  and  carrying  into  effect  thi^ 
20  Ga.  44.  b-14  Johns.  458;  5  Cow.  547;  11  Weqd 
187 ;  6  Hill,  438. 


ASSIGNMENT. 


103 


assignment,  and  all  rents,  taxes  and  assessments 
due  or  to  become  due  on  the  lands,  tenements 
and  hereditaments  aforesaid,  until  the  same  shall 
be  sold  and  disposed  of;  and  by  and  with  the 
residue,  or  net  proceeds  and  avails  of  such  sales 
and  collections,  the  said  party  of  the  second  part 
shall. 

First.  Pay  and  discharge  in  full  the  several  and 
respective  debts,  bonds,  notes  and  sums  of 
money  due  or  to  grow  due  from  the  said  parties 
of  the  first  part,  or  for  which  they  are  liable,  to 
the  said  party  of  the  second  part,  and  the  several 
other  persons  and  firms  designated  in  the  sched- 
ule hereto  annexed,  marked  "Schedule  B,"  to- 
gether with  all  interest  moneys  due,  or  to  grow 
due  thereon  ;  and,  if  said  net  proceeds  and  avails 
■hall  not  be  sufficient  to  pay  and  discharge  the 
same  in  full,  then  such  net  proceeds  and  avails 
shall  be  distributed  pro  rata,  share  and  share 
alike,  among  the  said  several  persons  and  firms 
named  in  said  schedule  B,  according  to  the 
aniount  of  their  respective  claims  ;  and. 

Second.  By  and  with  the  residue  and  remainder 
of  said  net  proceeds  and  avails,  if  any  there  shall 
be,  the  said  party  of  the  second  part  shall  pay 
and  discharge  all  the  other  co-partnership  debts, 
demands  and  liabilities  whatsoever,  now  exist- 
ing, whether  due  or  hereafter  to  become  due, 
provided  such  remainder  shall  be  sufficient  for 
that  purpose;  and,  if  insufficient,  then  the  same 
shall  be  applied  pro  rata,  share  and  share  alike, 
to  the  payment  of  said  debts,  demands  and  liabil- 
ities, according  to  their  respective  amounts;  and. 
Third.  By  and  with  the  residue  and  remainder 
of  the  said  net  proceeds  and  avails,  if  any  there 
shall  be,  the  said  party  of  the  second  part  shall 
pay  and  discharge  all  the  private  and  individual 
debts  of  the  parties  of  the  first  part,  or  either  of 
them,  whether  due,  or  to  grow  due,  provided 
such  remainder  shall  be  sufficient  for  that  pur- 
pose ;  and,  if  insufficient,  then  the  same  shall  be 
applied  pro  rata,  share  and  share  alike,  to  the 
payment  of  the  said  debts,  according  to  their  re- 
spective amounts;  and. 

Lastly.  The  said  party  of  the  second  part  shall 
return  the  surplus  of  the  said  net  proceeds  and 
avails,  if  any  there  shall  be,  to  the  said  parties 
of  the  first  part,  their  executors,  administrators, 
or  assigns. 

And,  for  the  better  execution  of  these  presents, 
and  of  the  several  trusts  hereby  reposed,  the 
said  parties  of  the  first  part  do  hereby  make, 
nominate  and  appoint  the  said  party  of  the  second 
part,  and  his  executors,  administrators,  and  as- 
signs, their,  and  each  of  their  true  and  lawful 
attorney  irrevocable,  with  full  power  and  author- 
ity to  do,  transact,  and  perform  all  acts,  deeds, 
matters  and  things,  which  can  or  may  be  neces- 
sary in  the  premises,  as  fully  and  completely  as 
the  said  parties  of  the  first  part,  or  either  of  them, 
might  or  could  do,  \vere  these  presents  not  exe- 
cuted ;  and  attorneys,  one  or  more,  under  him  to 
make,  nominate  and  appoint,  with  full  power  of 
substitution  and  revocation  ;  hereby  ratifying  and 
confirming  all,  and  everything  whatever,  our  said 
attorney  and  his  attorneys  shall  do,  or  cause  to 
be  done,  in  the  premises. 

In  witness  whereof,  the  said  parties  of  the  first 
part  have  hereunto  set  their  respective  hands  (and 
seals),  the  day  and  year  above  written. 
Signed, sealed  and  delivered  )  A.  B.     [Seal.] 

in  the  presence  of  G.  H.     j"  CD.    [.SVa/.J 

Asslg^ninent — .Tudg^nieiit. 
On  Record. 
For  value  received  {or  in  consideration,  etc.,  as 
m.hoTe\,  I  hereby  assign  and  transfer  the  judgment 
in  this  or  the  above  entitled  action,  together  with 
all  my  title  and  interest  in  and  rights  under  the 
same,  to  E.  F.  (Signed)  A.  B. 

Attest : 
C.  C,  Clerk  of  said  Court  (or  ^ .  P.,  Justice  of  the  Peace.) 
Asslg^nment— Judgement. 
—  Cou-;^:}-    In  the  — court. 

A.  B.,  plaintifT,     "|  Judgment  for  $ and  in- 

vs.  V    terestat  —  p.  ct.  Judgment 

C.  D. ,  defendant.  )     Record,  Vol.  — ,  page  — . 
For  value  received  {or  in  consideration  of  the  sum 
pf dollars,  the  receipt  of  ^high  is  hereby  acknowl- 


edged), I  do  hereby  assign  and  transfer  the  judg- 
ment in  the  above  entitled  action,  together  With 
all  my  title  and  interest  in  and  rights  under  the 
same,  to  E.  F.  (Signed)  A.  B. 

(lyitness)   G.  H. 

AKslKriiineiit'— Insurance  Policy. 

IVith  Agent's  Approval. 

The  property  hereby  insured,  having  been  pur- 
chased by  E.  F.,the Insurance  Company  con- 
sent that  the  interest  of  C.  D.  in  the  within  policy 
may  be  assigned  to  said  purchaser,  subject,  nev- 
ertheless, to  all  the  terms  and  conditions  thereia 
mentioned  and  referred  to. 

Dated  at ,  this day  of . 

A.  A.,  Agent. 

For  value  Keceived,  I  hereby  assign,  transfer 
and  set  over  unto  E.  F.  (and  his  assigns;  all  my  title 
and  interest  in  and  right  under  this  policy  of  in- 
surance, and  all  benefit  and  advantage  to  b* 
derived  therefrom. 

Witness  my  hand  (and  seal)  this day  of 1 

( ^Vitness)  .  C.  D. 

Asslgrnment— Judjerment. 

Recovered  by  a  Verdict. 

Know  all  men  by  these  presents: 

That  A.  B.,  on  the  day  of ,  in  the  — ' 

court,  recovered  a  judgment  against  C.  D.  for 

and  interest  thereon,  at  the  rate  of per  cent. 

per  annum,  together  with  his  costs,  taxed  at . 

That   ( of)   said  judgment  remains  wholly 

unsatisfied. 

That  on  the day  of execution  >vas  issued 

for  the  same. 

That  said  A.  B.,  for  a  consideratien  of (the 

receipt  of  which  is  hereby  acknowledged)  does,  by 
these  presents  grant,  sell,  assign,  transfer  and 
set  over  all  his  title  and  interest  in  and  rights 
under  the  same  to  E.  F. 

That  said  A.  B.  does  hereby  make,  constitute 
and  appoint  said  E.  F.  his  true  and  lawful  attor- 
ney, irrevocable,  with  full  power  of  substitution 
and  revocation,  for  his  own  use  and  benefit  to 
prosecute  said  execution  and  all  further  process 
to  satisfaction. 

In  witness,  etc. 

Assig^nment— liCase. 

Know  all  men  by  these  presents : 

That  I,  A.  B.,  (of ),  for  and  in  consideration 

of dollars,  to  me  duly  paid  by  E.  F.,  (of ), 

do  by  these  presents  grant,  convey,  assign,  trans- 
fer and  set  over  unto  said  E.  F.  a  certain  instru- 
ment of  lease,  bearing  date  the day  of , 

executed  by  C.  D.,  (of ),  to  me  for  a  term  of 

years,  reserving  unto  said  C.  D.  the  yearly 

rent  of dollars,  payable  (monthly  or  quarterlv, 

etc.) 

That  this  assignment  shall  take  effect  on  the 

day  of next,  to  continue  during  all  the 

rest,  residue  and  remainder  of  said  term  of 

years,  subject,  nevertheless,  to  the  rents,  cove- 
nants, conditions  and  provisions  in  said  leasft 
mentioned. 

(That  I  do  hereby  covenant,  promise  and  agrei; 
that  said  assigned  premises  are  now  free  And 
clear  of  all  assessments,  assignments,  back  rents, 
bargains,  demands,  gifts,  grants,  encumbrances, 
executions,  judgments,  leases,  liens,  pledges, 
taxes,  etc.,  etc.,  whatsoever). 

In  witness  wfhereof,  etc. 
For  form  of  "Acknowledgment,"  see  that  title. 

ANsi$;n  men  t — I.iease. 

jfoint  Interest  0/  One  to  Another. 

Know  all  men  by  these  presents  : 

That  A.  B.  and  C.  D.  did,  by  their  lease  bearing 

date  the day  of ,  let  unto  E.  F.  and  G.  H. 

all  that  part  and  parcel  of  land  (or  lot  No.  — ,  etc.), 

situated  in ,  and  described  as  follo^vs,  to  virix. 

{describing  it),  together  with  the  appurtenances, 

for  a  term  of ,  at  the rent  of ,  with  full 

power  to  underlet  and  assign  said  lease. 

That  said  E.  F.,in  consideration  of ,  etc., 

does  by  these  presents  assign,  transfer  and  set 
over  all  his  title  and  interest  in  and  rights  under 
said  lease  and  premises,  unto  said  G.  H.,  for  and 
during  the  rest  and  residue  yet  to  come  and  un 
expired  of  said  term. 

That  said  Q.  H<  shall  keep  and  $ave  said  1$.  p 


104 


ASSIGNMENT. 


harmless  and  indemnified  of  and  from  all  and 
every  charge  and  encumbrance  whatever,  by  rea- 
son of  the  covenants,  conditions  and  rents  in  said 
lease  contained  and  recited. 

That  said  G.  H.  shall  wholly  pay  or  cause  to  be 
paid  all  rents  and  other  expenses  to  be  incurred 
by  reason  of  said  lease,  for  and  during  all  the  rest 

and  residue  of  said  unexpired  term  of ,  etc, 

^saving  only — state  what,  if  anything). 

In  witness,  etc. 
For  form  of  "Acknowledgment,"  see  that  title. 

Asslg^nment— Lease. 

Pew. 

Know  all  men  by  these  presents : 

That  A.  B.  did,  on  the day  of ,  lease  a 

certain  pew   or  seat,  numbered   {or  lettered) , 

situated   in   the  division  (or  part)  of  the 

church,  in  ,  with  the  right  of  its  use  at  all 

times  of  divine  service,  and  at  all  other  proper 

and  seasonable   times,  for  the  term  of from 

said  date,  together  with  the  power  to  lease  or 
underlet  the  same,  subject  to  the  terms  thereof. 

That  said  pew  is  at  the  date  of  these  presents 
free  and  unencumbered  of  and  from  all  rents, 
charges  or  encumbrances  whatsoever  (excepting, 
etc.) 

That  said  A.  B.,  in  consideration  of (the 

receipt  of  which  is  hereby  acknowledged),  does  hereby 
grant,  bargain,  sell,  assign,  transfer  and  set  over 
all  his  title  and  interest  in  and  rights  to  (the  east 
O'le-half,  etc.  of)  all  said  pew  or  seat  unto  E.  F.  for 
and  during  all  the  rest  of  said  term  by  said  lease 
{■ranted  and  yet  unexpired,  subject,  however,  to 
all  the  covenants,  conditions  and  agreements  in 
laid  lease  contained. 

In  witness,  etc. 

Assigrnment — liCase. 

Security  for  a  Debt  on  a  Bond,  etc. 

Know  all  men  by  these  presents  : 

That  A.  B.  is  indebted  to  E.  F.  in  the  sum  of 
..— ,  bearing  interest,  etc.,  upon  a  bond,  in  the 

sum  of ,  bearing  date  the day  of ,  and 

conditioned  for  the  payment  of  said  debt  and  in- 
terest, to  said  E.  F.  on  the day  of . 

That  said  A.  B.  did  on  the day  of lease 

unto  C.  D.  a  certain  lot  ior  tracts  of  land  situated 

in ,  and  described  as  follows  {describing  it),  for 

a  term  of ,  at  the  yearly  rent  of ,  payable 

as  foWowa  (stating  payments). 

That  said  A.  B.,  for  the  better  securing  the 
payment  of  said  bond,  does  by  these  presents  as- 
sign, transfer,  and  set  over  unto  said  E.  F.  all  his 
title  and  interest  in  and  rights  under  said  lease 
to  said  C.  D.  for  and  during  the  rest  and  residue 
of  said  term,  with  full  power  to  ask,  demand,  re- 
ceive, and  receipt  for  said  rents. 

That  said  A.  B.  has  not  done  or  suffered  any 
act  or  acts  whereby  said  lease  is  or  may  become 
forfeited,  or  said  leased  premises  encumbered, 
and  that  said  E.  F.  shall,  in  his  name,  place,  and 
stead,  enjoy  all  rights  heretofore  enjoyed  by  said 
A.  B. 

Provided,  nevertheless,  that  if  said  A.  B.,  his 
heirs,  executors,  or  administrators,  shall  well  and 
truly  pay  and  discharge  said  debt,  interest,  and 
bond,  then  this  assignment  shall  be  absolutely 
void  and  of  no  effect  whatever. 

In  witness,  etc. 

Asslgrn  meiit— liCase. 

Por  Years. 

Know  all  men  by  these  presents : 

That  A.  B.  did  by  a  lease,  bearing  date  the 

day  of ,  let  unto  C.  D.  (lot  No. ,  in ,  etc.) 

or  a  tract  of  land  situate  in ,  and  described  as 

follONVs,  to  wit  {describing-  it),  for  a  term  of 

from  said  date,  at  the  yearly  rent  of ,  payable 

*s  follows  {giving  payments),  together  with  the 
(Privilege  of  underleasing  and  letting  the  same  at 
pleasure. 

That  said  C.  D.  for  a  consideration  of ,  the 

receipt  of  which  is  hereby  acknowledged,  does 
by  these  presents  assign,  transfer,  and  set  over 
•11  his  title  and  interest  in  and  rights  under  said 
lease,  together  with  all  the  conditions  and  stipu- 
lations therein  contained,  to  E.  F.,  his  heirs  and 
assigns,  for  and  during  the  rest  and  remainder  of 
said  term. 

That  said  C.  D.  has  not  done  or  suffered  any 


act  or  thing  to  be  made  or  done  whereby  at  the 
execution  of  these  presents  said  lease  has  become 
forfeited,  void,  or  voidable. 

That  said  E.  F.  shall  quietly  hold,  occupy,  and 
enjoy  said  premises  and  its  appurtenances  with- 
out eviction,  interruption,  or  disturbance  during 
the  rest  and  remainder  of  said  term  hereby  as- 
signed. 

That  said  E.  F.,  or  his  legal  representatives, 
shall  at  all  times  hereafter  pay  or  cause  to  be 
paid  the  rents,  and  perform  the  covenants  and 
conditions  of  said  lease,  which  on  his  assignor's 
part  shall  and  is  therein  stipulated  to  be  per- 
formed according  to  the  true  intent  and  purpose 
of  said  agreement. 

In  witness,  etc. 

Assigrnment— Tje^RCies. 

One  Residuary  Legatee  to  another. 

Know  all  men  by  these  presents: 

That  D.  D.,  deceased,  made  his  last  will  and  tes- 
tament, bearing  date  the day  of ,  and  the 

same  was  admitted  to  probate  the day  of , 

etc. 

That  said  D.  D.,  by  said  last  will  and  testa- 
ment, did  constitute  and  appoint  E.  X.  and  T.  R. 
executors  thereof,  and  did  give  them  or  their  sur- 
vivors all  the  rest  and  residue  of  his  personal 
estate,  after  his  funeral,  etc.,  expenses,  debts, 
and  legacies  were  discharged  and  paid. 

That  the  following  effects  were  not  by  said  tes- 
tator specifically  bequeathed  (describing  them). 

That  upon  the  division  of  the  residuary  part  of 
said  testator's  effects  said  T.  R.  shall  have  for  his 
own  exclusive  use  and  benefit,  all  the  said  effects, 
and  all  interest  that  shall  accrue  to  or  grow  from 
the  same. 

That  in  consideration  of  the  premises  and  other 
valuable  considerations  said  E.  X.  does  hereby 
assign,  transfer,  and  set  over  unto  said  T.  R.  all 
his  title  and  interest  in  and  claim  to  said  effects, 
to  have  and  to  hold  the  same  unto  said  T.  R.,  his 
heirs  and  assigns  forever. 

In  witness,  etc. 

ANsig'ii  in  eni — I<eg:aci  es. 

In  Payment  of  a  Bond  Debt. 

Know  all  men  by  these  presents: 

That  D.  D.,  of ,  deceased,  by  his  last  will 

and  testatnent,  bearing  date  on  or  about  the 

day  of ,  after  therein  bequeathing  and  dispos- 
ing of  divers  parts  of  his  estate  and  effects,  did 
give,  bequeath,  and  devise  all  the  rest,  residue, 
and  remainder  of  all  and  singular  his  real  and 
personal  estate  of  what  kind  and  nature  soever 

not  therein  disposed  of  to  A.  B.,  of ,  C.  D.,  of 

,  and  G.  H.,  of ,  their  heirs  and  assigns,  in 

trust,  nevertheless,  that  said  residuary  legatees, 
upon  the  decease  or  marriage  of  said  testator's 
wife,  W.  D.,  should  out  of  the  residue  of  said 
estate  pay  unto  L.  E.  the  sum  of . 

That  said  testator  did  by  said  last  will  and  tes- 
tament appoint  said  A.  B. ,  C.  D. ,  and  G.  H. 
executors  of  said  will. 

That  on  or  about  the day  of  ■ ,  said  execu- 
tors duly  proved  said  will,  and  took  upon  them- 
selves the  execution  thereof. 

That  said  W.  D.,  wife  of  said  testator,  died  on 
or  about  the day  of ,  last  past. 

That  said  legacy  thereupon  became   payable, 

and  the  sum  of ,  part  thereof,  is  now  due  and 

owing  to  said  L.  E. 

That  said  L.  E.,  by  a  certain  bond  or  obligation, 

bearing  date  the day  of ,  became  bound 

to  E.  F.  in  the  sum  of ,  bearing  interest,  etc., 

with  the  condition  that  the  same  should  become 
void  upon  payment  thereof  to  said  E.  F.,  or  his 

legal  representatives,  on  the day  of ,  next 

ensuing,  and  now  past. 

That  said  L.  E.  has  not  paid  ( of)  the  same 

(nor  .qny  part  thereof). 

That,  in  consideration  of  the  premises,  said  L. 
E.  does  by  these  presents  hereby  grant,  convey, 

assign,  transfer  and  set  over  the  sum  of ,  so 

given  and  bequeathed  in  and  by  said  last  will  and 
testament,  together  with  all  interest  to  accrue  or 

become  payable  for  said  sum',  from  the  day 

of last  past,  and  all  his  estate,  right,  title, 

interest,  claim  and  demand  whatsoever,  both  in 
law  and  equity,  in  said  sum,  part  of  the  legacy 
aforesaid)  to  £.  F.,  his  heirs  and  assigns. 


ASSIGNMENT. 


105 


That  said  L.  E.  does  by  these  presents  make, 
•onstitute  and  appoint  said  E.  P.  his  true  and 
lawful  attorney,  irrevocable,  for  and  in  his  name, 
place  and  stead,  in  to  his  own  use,  and  at  his  own 
cost  and  expense,  to  demand,  sue  for  and  recover 
the  same  from  said  executors  or  their  survivors, 
and  upon  payment  and  receipt  of  the  same,  or  any 
part  thereof,  to  release,  receipt  for,  and  acquit- 
tance give,  in  such  manner  as  he  may  lawfully 
and  properly  do. 
In  witness,  etc. 

Assienment^Iietter  of  Attorney. 
Know  sill  men  by  these  presents  : 
That  P.  R.  and  D.  D.,  deceased,  in  his  lifetime, 
were  partners,  as  R.  &  D.,  and  as  such  were,  and 

■till  are,  indebted  to  A.  R.  in  the  sum  of ,  for, 

etc. 

That  said  A.  R.  is  administrator  of  the  estate 
and  effects  of  said  D.  D. 

That  said  A.  R.,  in  consideration  of (the  re- 
ceipt of  which  is  hereby  acknowledged),  do  by  these 
presents  make,  appoint  and  constitute  said  P.  R. 
his  assignee  and  attorney,  in  this  behalf,  in  his 
o^wn  name  or  the  name  of  said  deceased  and  my- 
self, or  otherwise,  as  he  may  lawfully  see  fit  in  the 
premises,  and  to  his  own  use  and  benefit  to  ask, 
demand,  sue  for  and  receive  all  and  singular  such 
debts  as  may  or  shall  be  due  or  anywise  belong- 
ing to  said  D.  D.  ;  and  upon  payment  and  receipt 
«f  .the  same  to  release,  receipt  for,  discharge  and 
acquit  the  same. 
la  witness,  etc.                              (Sig~ned)    A.  R. 
Assljs'nnient — ^oney. 
On  Account. 
Knowr  all  men  by  these  presents : 

That  A.  B. ,  in  consideration  of  the  sum  of ,  to 

him  in  hand  paid,  dots  hereby  assign,  transfer  and 
set  over  all  his  title  and  interest  in  and  rights  under 
an  account  for  {state  what)  in  the  sum  of ,  here- 
unto annexed,  and  all  other  sum  and  sums  of 
money  remaining  due  and  payable  upon  said  ac- 
count, unto  E.  F.,  with  full  power  to  ask,  demand 
and  receive  the  same  (at  his  own  costs  and  expenses) 
to  his  own  use,  and  to  give  discharges  and  receipts 
for  the  same,  or  any  part  thereof. 
That  there  is  due  said  A.  B.,  on  said  account,  at 

the  date  of  these  presents,  the  sum  of ,  and 

that  he  has  not  received  or  discharged  the  same. 
In  witness,  etc. 

Assignment — 9Ioney. 
Due  for  Freight. 
Know  all  men  by  these  presents  : 

That  A.  B. ,  in  consideration  of ,  does  hereby 

grant,  assign,  transfer  and  set  over  to  E.  F.,  all 
nis  right,  title  and  interest  in  and  to  one  full  and 
equal  tenth  part  of  all  such  sums  of  money  as  are 
remaining  due  and  owing  from  all  persons  for  or 
onaccount  of  the  steamer  S.  R.,  M.  R.,  master, for 
all  freights,  hire  and  service  of  said  vessel,  now 
due  and  payable  to  said  A.  B.,  for  the  tenth  part 
of  said  steamer,  of  which  he  is  the  owner. 

That  there  is  due  and  payable  to  said  A.  B.,  at 
the  date  of  these  presents,  by  reason  of  the  prem- 
ises, the  sum  of dollars. 

(Add  power  to  collect  ivhen  required. ) 

Another. 
Know  all  men  by  these  presents : 
That  A.  B.  is  entitled  to  the  several  sums  of 
money  hereinafter  mentioned,  due  and  owing  on 
account  of  freight,  etc.  (imported  in  the  ship  S.  in 

her  late  voy^e  from  to ;  or  shipped  via  the 

transportation  company  of ,  from to .) 

That  the  same  and  every  part  thereof  is  due  and 
unpaid. 

That  said  A.  B.,  in  consideration  of (the  re- 
ceipt of  which  is  hereby  acknowledged),  does  by  these 
|>resents  assign,  transfer  and  set  over  all  his  right, 
title  and  interest  in  and  to  said  sum,  to  E.  P., 
^(vith  full  power  (at  his  own  costs  and  expenses),  and 
to  his  own  use  to  ask,  demand,  sue  for,  collect, 
receive  and  receipt  for  the  same. 
In  witness,  etc. 

AssljBTnment— Mortgragre* 

Kno\v  all  men  by  these  presents : 

That  I,  A.  B.,the  within-named  mortgagee,  for 

a  consideration  of dollars  {if  paid,  say,  the  re- 

taipt  <)f  which  is  hereby  acknowledged),  hereby  as- 


sign, transfer,  and  set  ovsr  unto  E.  P.,  his  heir* 
and  assigns,  the  within-named  instrument  of 
mortgage,  and  all  the  real  estate,  with  the  appur- 
tenances therein  mentioned  and  described,  to 
have  and  to  hold  the  same  forever.  Subjecti 
nevertheless,  to  the  equity  and  right  of  redemp- 
tion of  tne  within-named  C.  D.,  bis  heirs  and 
assigns  therein. 
In  witness,  etc. 
For  form  of  "Acknowledgment,"  see  that  tille. 

Assig^nment— Mort^ag^e. 

To  Secure  Payment  of  Notes,  etc. 

Know  all  men  by  these  presents : 

That  A.  B.  is  the  owner  of  three  notes,  eack 

bearing  date  the day  of ,  etc.,  made  and 

signed  by  C.  D.,  as  principal,  and  S.  Y.,as  surety 
— one  for  the  sum  of dollars  ;  one,  etc.,  paya- 
ble to  said  A.  B.,  on  the day  of ,  etc.,  and 

each  bearing  interest  at  the  rate  of per  cent. 

per  annum — and  secured  by  a  mortgage  of  said 

C.   D.  upon  ,  etc.,  which  is  recorded  in  the 

office  of ,  etc.,  in  Mortgage  Record,  Vol. , 

page . 

That  E.  P.  has  purchased  said  premises,  sub- 
ject to  the  said  mortgage  and  notes,  and  for  the 
removal  and  cancellation  and  satisfaction  of  the 
same  has  sold  and  conveyed  unto  said  A.  B.  all 

that  part  and  parcel  of  land,  situate  in ,  and 

described  as  follows,  etc. 

That,  in  consideration  of  the  premises,  the  said 
A.  B.  does  by  these  presents  assign,  transfer  and 
set  over  unto  said  E.  P.  the  aforesaid  mortgage 
and  notes  and  all  his  right,  title  and  interest  in 
and  to  the  same,  without  recourse  upon  him, the 
said  A.  B. ,  in  any  event,  and  subject  to  all  and 
every  agreement,  condition,  covenant  and  stipu- 
lation therein  contained. 

In  witness,  etc. 
For  form  of  "Acknowledgment,"  see  that  title. 

Assig'nment— Mortg^age. 

In  Fee. 

Know  all  men  by  these  presents  : 

That  A.  B.,  on  the day  of ,  for  a  consid- 
eration therein  mentioned,  conveyed  unto  C.  D.  a 

(lot  or)  tract  of  land,  situated  in ,  and  described 

as  follows,  to  wit  {describing- it  by  metes  and  bounds), 
with  the  conditions,  etc.  {as  in  the  mortgage). 

That  said  premises  are  free  and  unencumbered. 

That  C.  D.,  in  consideration  of (the  receipt 

of  which  is  hereby  acknowledged),  does  by  these 
presents  assign,  transfer  and  set  over  all  his  title 
and  interest  in  and  rights  under  said  conveyance, 
to  E.  F.,  subject,  nevertheless,  to  all  the  cove- 
nants, conditions  and  agreements  therein  nien- 
tioned,  together  with  all  rights  of  redemption 
(and  saving  and  excepting,  etc.) 

In  witness,  etc. 
For  form  of  "Acknowledgment,"  see  that  title. 
Assignment — Mortgagee 
Of  a  Lease  for  Years. 

Know  all  men  by  these  presents  : 

That  A.  B.,by  a  lease  bearing  date  the day 

of ,  and   for  a  consideration   of ,  did   let 

unto  C.  D.  the  premises  situate  in  ,  and  de- 
scribed as  follows,  to  wit  {describing  it),  for  a  term 

of years,  at  the  yearly  rent  of ,  payable, 

etc. 

That  said  C.  D.  did,  on  the  day  of , 

mortgage  the  same  to  G.  H.,  to  secure  the  pay- 
ment of ,  etc. 

That  there  is  due  and  unpaid,  at  the  date  of 
these  presents,  on  said  indebtedness,  the  sum 
of . 

That  said  G.  H.,  for  a  consideration  of (th« 

receipt  of  which  is  hereby  acknowledged ),  does  by 
these  presents  grant,  sell,  assign,  transfer  and 
set  over  unto  E.  P.,  all  his  right,  title  and  interest 
in  and  to  all  said  debt,  together  with  said  motl- 
gage  securing  the  same,  with  full  power  fat  his 
own  costs  and  charges),  and  for  his  own  use  and 
benefit,  to  ask,  demand,  sue  for,  enforce,  collect, 
receive,  receipt  for,  release  and  acquit  the  same 

In  witness,  etc. 
For  form  of  "Acknowledgment,"  see  that  title. 
Assig'nment — Mortg^ag'e  and  Bond. 
Clause,  ivhen  intended  as  Collateral  'iecuritjf. 

Know  all  men  by  these  presents: 


to6 


ASSIGNMENT. 


That  In  consideration  of  the  aum  of dollars, 

the  receipt  of  which  is  hereby  acknowledged,  I 
hersby  assign,  transfer,  and  set  over  to  E.  F.  (of 

),  the  mortgage,  bearing  date  the day  of 

,  executed  by  A.  B.  and  his  wife  W.  (of ), 

unto  C.  D.  (of ),  recorded  in  the  (county  clerk's, 

•r  recorder,  or  register  of  deeds')  office,  in  mortgage 

record ,  page ,  together  with  the  bond  or 

obligation  (therein  described,  and  the  money  due  and 
to  grow  due  thereon,  with  interest ; — or,  bearing  date  the 
day  aforesaid,  executed  by  said  A.  B.  to  said  C.  D.  in 
the  penal  sum  of dollars,  conditioned  for  the  pay- 
ment of dollars,  and  secured  by  the  above  mort- 
gage on  the day  of ,  with  interest). 

That  I   hereby  covenant  that  the  sum  of 

dollars,  Avith  ititerest  from  the day  of ,  is 

BOW  due  and  owing  on  said  bond  and  mortgage, 
and  that  I  have  good  right  to  assign  the  same. 

In  witness  whereof,  etc. 

\\Vhen  the  bond  and  tnortgage  is  assigned  as  col- 
lateral security,  insert:  That  this  assignment  is, 
nevertheless,  made  upon  the  express  condition 
that  if  said  C.  D.  {or  his  legal  representatives)  shall 
wrell  and  truly  pay  or  cause  to  be  paid  to  said  E.  F. 

(orhis  legal  representatives)  the  sum  of dollars  on 

or  before  the  day  of ,  with  interest 

from  the  date  hereof,  this  assignment  shall  be 
void  and  of  no  effect ;  it  being  made  for  the  pur- 
pose of  securing  the  payment  of  said  sum  and 
for  no  other  purpose  whatever. 

That  in  case  said  E.  F.  {or  his  legal  representa- 
tives) shall  collect  and  receive  the  money  due  on 
said   mortgage   and    bond    hereby   assigned,  he 

shall,  after  retaining  the  sum  of dollars,  with 

interest  thereon,  and  his  reasonable  costs  and 
charges  in  that  behalf  expended,  pay  all  surplus 
«0  said  C.  D.  {or  his  legal  representatives). 

In  witness  whereof,  etc. 

Assignment— BTotes. 
Assignor  to  be  liable. 

Pay  to  P.  E.        {Signed)  Pi..  B. 

Pay  to  the  order  of  P.  E.  {Signed)  A.  B. 

Pay  to  P.  E.  or  order.         {Signed)  A.  B. 
Assignor  not  to  be  liable. 
See  "Assignment,"  without  recourse,  below. 

Pay  to  P.  E.,  without  recourse. »        A.  B. 

Pay  to  the  order  of  P.  E.,  without  recourse. 

A.  B. 

Pay  to  E.  F.  or  order,  without  recourse. 

A.  B. 
Assig'nment — Kotes. 
In  Satis/action  of  a  Debt. 

Know  all  men  by  these  presents: 

That  A.  B.,  by  his  promissory  note,  dated  the 

>—  day  of ,  promised  to  pay  C.  D.  ,  on 

the  day  of ,  with  interest  at  the  rate  of 

—  per  cent,  per  annum. 

That  said  sum  is  due  and  owing  said  A.  B. 

That  said  C.  D.,  in  consideration  of (to  him 

In  hand  paid),  does  by  these  presents  grant,  as- 
sign, transfer,  and  set  over  unto  E.  F.  the  said 
note,  and  all  interest  accrued  and  to  accrue  there- 
on, together  with  all  his  title  and  interest  in  and 
rights  under  the  same,  for  the  following  uses, 
purposes,  and  intents,  viz.: 

That  out  of  the  proceeds  of  said  note  said 
B.  F.  shall 

I.  Retain  for  costs  and  charges  of  collection 
the  sum  of . 

a.  Retain  for  his  o^vn  use  the  sum  of . 

3.  Return  and  pay  unto  said  C.  D.  the  surplus 
amount  of  said  moneys. 

Etc.,  etc. 

In  witness,  etc. 

Asslji^'nnient — Order. 

For  value  received,  I,  the  within-named  A.  B., 
hereby  assign,  transfer,  and  set  over  all  my  title 
and  interest  in  and  rights  under  the  within  writ- 
ten order,  and  the  moneys  thereby  secured  unto 
£.  F.     Dated  this day  of .  A.  B. 

( Witnesses  present.) 

Asslicnnient— Partnership. 

Mutual— Of  Bad  Debts. 
Know  all  men  by  these  presents  : 

That  A.  B.  and  C.  D.  were,  unto  the day  of 

a-These  are  the  words  generally  used,  3  Mass.  225  ; 
i;  Id.  14 :  and  arp  ^dded  to  an  indorsement  in  order  to 


last  past,  partners  engaged  in  the  business 

of ,  at ,  under  the  firm-nanre  of  B.  &  D. 

That  several  debts  are  still  standing  out  owing 
and  unreceived  by  said  partnership,  and  by  said 
parties  accounted  desperate  and  doubtful,  sched- 
ules of  which  are  hereunto  annexed  and  herein- 
after referred  to. 

That  by  reason  of  the  premises,  and  for  the 
considerations  hereinafter  set  forth,  said  parties 
do  by  these  presents  assign,  transfer,  and  set 
over  to  each  other  for  their  respective  and  several 
uses  and  benefits  said  debts,  as  follows : 

To  said  A.  B.,  all  the  debts  described,  men- 
tioned, and  referred  to  in  the  schedule  hereunto 
annexed,  marked  A  {or  numbered  one  [i] ). 

To  said  C.  D.,  all  the  debts  described,  men- 
tioned, and  referred  to  in  the  schedule  hereunto 
annexed,  marked  B  {or  numbered  two  [2] ). 

That  said  debts  remain  due  and  unpaid  (except, 
etc.). 

That  said  debts  are  assigned  without  recourse 
for  any  cause  whatever,  and  are  to  be  collected 
at  the  cost  and  expense  of  the  respective  as- 
signee, and  in  such  manner  as  said  assignee  may 
lawfully  elect. 

In  witness,  etc. 

Asslg:nnien  t — Par  tn  ership. 

Partnership  Interest  or  Share. 

Know  all  men  by  these  presents: 

That  A.  B.,  C.  D.,  and  E.  F.  were,  on  the  ' 

day  of ,  partners  engaged  in  the  business  of 

,  at ,  under  the  firm-name  and  style  of  A, 

B.  &  Co. 

That  by  the  articles  of  agreement  entered  into 
as  such  partners,  it  was  stipulated  (among  other 
things )  that  on  the  death  of  a  partner  the  survivors 
should  pay  his  executors  or  administrators  for 
his  share,  and  become  bound  to ,  pay  and  in- 
demnify them  for  the  same,  and  that  thereupon 
they  should  assign,  transfer  and  set  over  unto 
said  partners  said  deceased's  share. 

That  on  the day  of said  C.  D.  died. 

That  by  the  last  will  and  testament  of  said  de- 
ceased, E.  X.  and  T.  R.  were  appointed  execu- 
tors thereof. 

That  on  the  day  of  ,  said  executors 

proved  said  will  and  accepted  the  trust  therein 
in  them  reposed. 

That  the  value  of  said  share,  upon  a  faithful 
and  true  inventory,  and  full  and  correct  account- 
ing, is  ascertained  to  be  of  the  value  of . 

That  said  A.  B.  and  E.  F.  have  given  a  bond  in 

the    sum    of  to    indemnify  said   executorn 

against  all  and  every  liability  and  obligation 
whatsoever  by  reason  of  said  deceased  being  of 
and  interested  in  said  partnership  concern. 

That  said  E.  X.  and  T.  R.,  by  reason  of  the 
premises  and  in  consideration  of  the  sum  of  — — 
(the  receipt  of  which  is  hereby  acknowledged)  do  by 
these  presents  (subject,  however,  to  the  approval  of 

the court)  grant,  sell,  assign,  transfer,  and  set 

over  unto  said  A.  B.  and  E.  F.  all  the  right,  title, 
and  interest  of  said  C.  D.,  deceased,  in  and  to  his 
share  in  all  estate  and  effects  of  said  partnership 
concern  ;  subject,  however,  to  all  the  agreements, 
conditions,  and  stipulations  in  said  partnership 
agreement  contained,  and  all  duties  and  liabili' 
ties  imposed  thereby,  or  by  reason  thereof. 

In  witness,  etc. 

Assignment — Partnership  Property. 
Upon  Settlement. 

Know  all  men  by  these  presents  : 

That  the  copartnership  heretofore  existing  be- 

t>»een  A.  B.,  of ,  and  C.  D.,  of ,  under  th« 

firm-name  and  style  of  B.  &  D.,  is  this day  ol 

dissolved  by  mutual  consent. 

That  said  A.  B.  does  hereby  sell,  assign,  trans- 
fer, and  set  over  unto  said  C.  D.  his  half  part  of 
all  the  goods,  wares,  merchandise,  rights,  credits, 
and  effects,  stock  in  trade,  accounts,  notes,  bills, 
bonds,  rights  in  action,  claims  and  demands,  be- 
longing or  owing  to  said  copartnership,  in  trust, 
NKVERTHELESS,   to   Sell  Said  property  as  he  may 

think  proper,  but  not  upon  a  credit  exceeding ■ 

days  ;  to  collect,  demand,  sue  for,  and  receive  all 
avoid  incurring  any  liability;  Chitty  Bills,  179;  7 
Taunt.  160;  I  Carr.  N.  Y.  538;  3  Cranch.  193;  7  Id. 
1^9  ;  J2  Mass.  172 ;  14  S.  S  R.  325. 


ASSIGNMENT. 


tof 


•urns  of  money  due  or  to  become  due  upon  said 
accounts,  notes,  bills,  bonds,  rights  in  action, 
claims  and  demands,  and  with  the  proceeds 
thereof  to  pay  and  discharge  all  the  debts  and 
obligations  of  said  firm,  if  the  same  shall  be  suffi- 
cient therefor ;  and  the  surplus,  if  any  there  be, 
to  pay  one-half  part  to  said  A.  B.  or  his  legal 
representatives. 

That  said  A.  B.  does  hereby  make,  constitute 
and  appoint  said  C.  D.  his  true  and  lawful  attor- 
ney irrevocable,  to  sell  said  property  and  effects, 
and  all  his  said  interest  therein  ;  to  ask,  demand, 
sue  for,  collect  and  receive  all  debts  evidenced  as 
aforesaid,  or  otherwise,  and  compound  the  same 
and  prosecute  suits  for  the  recovery  thereof,  at 
his  discretion  ;  to  defend  any  and  all  suits  that 
may  be  brought  against  said  firm  ;  to  make,  ex- 
ecute, deliver  and  acknowledge  all  necessary 
deeds,  conveyances,  releases,  receipts  and  dis- 
charges in  the  premises,  and  generally  to  do  any 
and  every  act  and  thing  requisite  and  necessary 
to  secure  a  full,  entire,  complete  and  speedy  set- 
tlement of  all  the  business  and  affairs  of  the  said 
firm  ;  hereby  ratifying  and  confirming  any  and 
everything  which  the  said  C.  D.  may  do  in  the 
premises. 

That  the  said  C.  D.  will  sell  the  aforesaid  prop- 
erty to  the  best  of  his  ability,  and  for  the  best 
price  he  can  obtain  therefor,  and  will  use  reason- 
able diligence  to  collect  all  accounts,  notes,  bills, 
bonds,  rights  in  action,  claims  and  demands  due 
said  firm  ;  and  that  he  will  faithfully  apply  the 
proceeds  of  such  sales  and  claims  in  accordance 
writh  the  above  recited  trust. 

That  the  said  A.  B.  will,  after  the  entire  pro- 
ceeds of  said  property  and  effects  have  been 
faithfully  applied  to  the  payment  of  the  debts, 
liabilities  and  obligations  of  said  firm,  pay  and 
satisfy  the  one-half  part  of  any  remaining  debt, 
liability  or  obligation. 

In  witness  whereof,  etc. 

Assig'nment — Patent  Rlg^ht. 

See  title  Patents,  post. 

Asfslgrnmeiit — Personal  Property. 

Referring  to  Forfner  Bill  of  Sale,  etc. 

Know  all  men  by  these  presents  : 

ThatC.  D.,  by  his  bill  of  sale,  hereunto  attached 

{or  annexed),  bearing  date  the day  of ,  did, 

for  the  consideration  therein  expressed,  grant, 
bargain,  sell,  transfer  and  deliver  unto  me,  the  un- 
dersigned, A.  B.,  the  goods,  chattels  and  effects 
therein  described  {or  the  followinggoods, chattels  and 
effects,  viz.)  and  all  his  title  and  interest  in  and 
rights  under  the  same,  to  have  and  to  hold  the 
satne  unto  me,  my  heirs  and  assigns  forever. 

That  said  goods,  chattels  and  effects  are  nov«r 

in  the  building  No. ,  on street,  in  the  city 

of ,  etc. 

That  I,  the  said  A.  B.,  for  a  consideration  of 

dollars   {if  paid,   say — the   receipt  of  which   is 

hereby  acknowledged),  do  bargain,  sell,  assign, 
transfer  and  set  over  unto  E.  F.,  all  my  title  and 
interest  in  and  rights  under  said  bill  of  sale,  and 
all  the  goods,  chattels  and  effects  therein  men- 
tioned and  described,  to  have  and  to  hold  the  same, 
unto  said  E.  P.,  his  heirs  and  assigns  forever. 

In  witness  ^vhereof,  etc. 
Asslg^nment — Per!«onal  Property. 
As  Collateral  Security. 

Know  all  men  by  these  presents : 

That  A.  B.  is  indebted  to  C.  D.  in  the  sum  of 
,  for  (upon  or  on  account  of) due  and  pay- 
able the day  of next. 

That  said  A.  B.,  in  consideration  of  the  prem- 
ises and  to  secure  the  payment  thereof,  does  by 
these  presents  assign,  transfer  and  set  over  unto 
•aid  E.  F.  all  his  right,  title  and  interest  in  and  to 
the  following  goods  and  chattels,  to  wit : 

Description  of  Goods.  Value. 

$  I  c. 

That,  in  case  of  default  in  the  payment  of  said 
indebtedness,  at  the  time  when  the  same  shall 
become  due,  or  of  any  other  sum  or  sums  advanced 
said  A.  B.  from  time  to  time  by  said  E.  F.,  then 
said   E.  F.,  or  his   assigns,  may  and  are  hereby 

authorized  to  sell  said  goods  and  chattels  (for 

per  cent,  less  than  the  values  above  given  them,  or  at 


their  discretion,  or  at  such  times,  in  sucb  a  manner  and 

for  such  sums  as  they  will  bring)  (at  public  sale,  on 

days'  notice  thereof,  to  the  highest  bidder),  and  from 
the  proceeds  thereof,  after  deducting  the  neces- 
sary costs  ana  expenses,  to  reimburse  himself  for 
all  sums  that  shall  be  due  him  from  said  A.  B.,and 
thereupon  pay  the  surplus,  if  any,  to  said  A.  B. 

That  if  said  A.  B.,  or  his  legal  representatives, 
shall  pay  or  cause  to  be  paid  all  sums  at  the 
times  and  according  to  the  stipulations  hereia 
stated  and  made,  then  this  assignment  shall  be 
void  and  of  no  effect. 

In  witness  v^^hereof,  etc. 

Assig^nment — Prizes. 
Taken  at  Sea. 

Know  all  men  by  these  presents  : 

That  I,  the  undersigned,  M.  R.,  master  of  the 

privateer  P.  R.,in  consideration  of (tlie  receipt 

of  which  is  hereby  acknowledged),  do  by  these  pres- 
ents assign,  transfer  and  set  over  unto  E.  F.,  all 
my  right,  title  and  interest  in  and  to  all  sums  of 
money  due,  owing.'payable  or  belonging  to  me,  for 

my shares  in,  to  and  out  of  two  several  ships, 

with  their  appurtenances,  lading  and  cargoes — 
one  called  the  S.  and  the  other  the  V. — both  of 

them  having  been  taken  by  said  privateer,  at , 

and  since  condemned  as  lawful  prizes,  to  have 
and  to  hold  the  same  to  his  own  use  and  benefit. 

That  I  do  hereby  make,  constitute  and  appoint 
said  E.  F.  my  true  and  lawful  attorney,  irrevoca- 
ble, to  ask,  demand,  receive  and  receipt  for  the 
same,  hereby  ratifying  and  confirming  all  that 
my  said  attorney  may  lawfully  do  or  cause  to  be 
done  in  the  premises. 

In  witness  whereof,  etc. 

Assignment— Recipe,  or  Formula,  or 
Compound. 

Know  all  men  by  these  presents : 

That  I,  the  undersigned,  A.  B.,  am  the  inventor 
and  proprietor  of  a  method  of  manufacturing  a 
valuable  and  marketable  compound  known  aa 
{Description  hereunto  attached). 

That,  for  the  consideration,  hereinafter  men- 
tioned, I  do  hereby  grant,  bargain,  sell,  assign, 
convey,  transfer  and  set  over  all  my  right,  title 
and   interest  in   said  compound,  unto  E.  F.   (of 

),  together  with  the  exclusive  right,  against 

me,  my  heirs,  executors  and  administrators, 
to  manufacture  and  sell  said  compound  forever: 
Provided,  always,  upon  the  full,  true,  unintef  > 
rupted  and  continued  payment  of  the  considera- 
tion hereinafter  mentioned,  therefor. 

That  said  E.  F.  shall,  in  consideration  thereof, 
pay  unto  me,  or  my  legal  representatives,  the 
sum  of dollars  per  year,  for years,  as  fol- 
lows {stating  times  of  payment)  (and  in  default  thereof 
shall  forfeit  all  rights  under  this  assignment.) 

That  I  do,  for  myself,  my  heirs,  executors  and 
administrators,  covenant  and  agree  to  and  with 
said  E.  F.,his  heirs,  executors,  administrators 
and  assigns,  that  said  recipe  or  formula  contains 
the  full,  true  and  precise  description  of  the  pro- 
portions of  the  elements  of  said  compound,  witAl 
the  directions  for  manufacturing  the  same  ;  th;it 
I  have  not  heretofore,  and  will  not  hereafter, 
without  the  consent  of  said  E.  F.,  directly  or  in- 
directly disclose  the  secret  of  the  composition 
thereof,  and  will  not,  without  such  consent,  com- 
pound, manufacture  or  sell,  or  in  anyway  permit 
or  be  interested  in  the  compounding,  manufac- 
ture or  sale  of  the  same,  or  any  compound  formula 
or  recipe  containing  the  same  or  similar  elements 
or  ingredients,  and  designed  for  a  like  purpose. 

In  witness  whereof,  etc. 

A!^sigrnnient— Recourse. 

See  Assignment — Note,  above,  and  Assignment — 

Without  Recourse,  below. 

Assignment — Security  Clause. 

See  Assignment — Mortgage  and  Bond,  aboVe. 
Collateral  Security  Clause. 

{Add  after  describing  the  property  assigned,) 

Provided,  however: 

Upon  the  condition,  however,  etc.,  or 

Subject,  nevertheless,  to  the  condition,  that  if 
a  certain  promissory  note  ior  other  deht,  or  evi' 
dence  of  debt,  describing  it)  for  the  sum  of dol- 
lars, given  {or  due)  from  said  A.  B.  to  said  E.  F.| 


io8 


ASSIGNMENT— AUTHORITIES. 


bearing  date  the day  of ,  is  well  and  truly 

paid,  according  to  the  terms  or  tenor  thereof, 
then  this  assignment  shall  be  void. 

Assigrnment— Servant. 

See  Assignment — Apprentice,  above. 

In  consideration  of  the  sum  of dollars,  the 

receipt  of  which  is  hereby  acknowledged,  I,  the 
undersigned  A.  B.,  do  hereby  assign,  transfer, 
and  set  over  the  within-named  servant  to  serve 
B.  P.,  his  executors,  administrators,  and  assigns 
in  the  manner  and  for  the  residue  of  the  term 
within-mentioned.     (Signature,  Master)      M.M. 

Witnesses,  etc.        {Signature,  Servant)    S.  T. 
{Signature  of  New  Master)     M.  R. 
Assl§rninent~-Shares  of  Stock. 

Know  all  men  by  these  presents : 

That  I,  the  undersigned,  for  a  consideration  of 

dollars  hereby  assign  all  my  title  and  interest 

tn  and  rights  under  the  shares,  scrip,  and  capital 
stock  and  property  of  the  company  and  corpora- 
tion known  as  the  C.  Y.  Company  of ,  in  the 

State  of ,  and  described  as  follows  : 

Abstract  of  Shares  of  Capital  Stock,  etc. 

That  I  hereby  covenant  and  agree  with  said  E. 
F.,and  his  legal  representatives,  that  at  the  re- 
quest of  him,  or  them,  I,  and  my  legal  representa- 
tives, shall  and  will  at  anytime  hereafter  execute 
any  instrument  or  writing  which  shall  be  neces- 
sary to  vest  completely  in  him  or  them  all  my 
said  right,  title,  and  interest  in  and  to  said  prop- 
erty ;  and  to  enable  him  or  them  to  possess,  con- 
trol, enjoy,  and  transfer  the  same,  or  any  part 
thereof. 

In  \vitness  whereof,  etc. 

Another. 

For  value  received,  I,  A.  B.  (of ),  assign  all 

my  title  and  interest  in  and  rights  under 

shares  (numbertd  consecutively  from  10736  to  10746), 

in  the  Bank  (or  company)  to  E.  F.  (of ), 

and  constitute  him,  his  assigns  and  substitutes, 
my  attorneys,  with  full  power  to  receive  in  his  or 
their  names,  certificates  for  said  shares,  hereby 
obliging  myself,  at  his  or  their  request,  to  do  all 
necessary  matters  and  things  for  the  more  effect- 
ually transferring  the  said  shares  to  him  or  them. 

Witness  my  hand,  etc.  A.  B. 

Executed  and  acknowledged    before  me  this 

day  of- — ,  A.  D. . 

N.  P.,  Notary  Public, 

in ,  county . 

Assignment— Wages. 
General  Form. 

Kno\w  all  men  by  these  presents : 

That  1,  A.  B.  (of ),  in  consideration  of 

dollars,  the  receipt  of  which  I  hereby  acknowl- 
edge, do  hereby  assign,  transfer,  and  set  over  to 

E.  F.  (of ),  all  claims  and   demands  which  I 

now  have,  and  M.  which  at  any  time  between  the 

date  hereof  and  the day  of next,  may  or 

shall  have  against  C.  D.  for  all  sums  of  money 
due  or  to  become  due  to  me  for  services  as . 

That  I  do  hereby  appoint  and  constitute  said 
E.  F.  and  his  assigns  my  attorney  irrevocable  to 
do  and  perform  all  acts,  matters  and  things  in  the 
premises,  in  like  manner  and  to  all  intents  and 
purposes  as  I  could  if  personally  present. 

In  vritness  whereof,  etc. 

Assignment^ — Wages. 

Sailors. 

Knovv  all  men  by  these  presents : 

That  A.  B.  is  indebted  to  E.  F.  in  the  sum  of 

■ for  (upon  or  on  account  of) ,  which  was  due 

and  payable  on  the day  of last  past. 

That  there  is  due  said  A.  B.  for  his months' 

services  on  board  the  ship  S.,  M.  R.,  master,  the 
sum  of . 

That  by  reason  of  the  premises,  in  satisfaction 
and  discharge  of  said  indebtedness,  and  for  the 

further  consideration  of ,  the  said  A.  B.  does 

hereby  assign,  transfer,  and  set  over  unto  said 
E.  F.  all  his   right,  title,  and  interest  in  and  to 

said   sum  of  dollars,  the   wages  aforesaid 

(without  recourse,  etc.) 

That  said  A.  B.  does  hereby  make,  constitute, 
and  appoint  said  E.  F.  and  his  assigns  his  true 
and  lawful  attorney,  in  his  name  or  otherwise,  to 
ask,  demand,  receive,  and  receipt  for  said  wages. 

In  witness,  etc. 


Assignment^Witiioat  Recourse. 

For  value  received,  I  hereby  assign  and  trans- 
fer (state  what),  together  with  all  my  title  and  in- 
terest in  and  rights  under  the  same  to  E.  F.: 
Providi.ig,  always,  that  this  assignment  is  with- 
out recourse.  (Signed)  A.  B. 

( IVitness)  G.  H. 

Assignment  of  Dower.  SeeDowm;  Wife. 

Assignment  of  Errors.  See  Practice. 

Assumpsit.  See  Practice. 

Assurance.  See  Conveyancing  ;  Insurance. 

Assured.  See  Insurance. 

Atlieist.  See  Personal  Relation  ;  Practick. 

Attainder.  See  Treason. 

Attempt.  See  Criminal  Law. 

Attestation.  See  Conveyances  ;  Writings. 

Attesting  Witness.  See  Contracts  ;  Convet- 
ANCEs ;  Witness. 

Attorneys.  See  Agency. 

Attornment.  See  Contracts. 

Attorney-General.  See  Office  and  Offi- 
cers. 

Auction.  See  Sales. 

Auctioneers.  See  Agency  ;  Agents. 

Audita  Querela.  See  Practice. 

Auditor.  See  Office  and  Officer. 

Autlientication.  See  Practice. 

AUTHORITIES.  See  Evidence;  Law. 

An  Authority  is  an  enactment  or  an 
opinion  relied  upon  as  establishing  or  declaring 
the  rule  of  law  which  is  to  be  applied  in  any 
case.  The  opinion  of  a  court,  or  of  counsel, 
or  of  a  text-writer,  upon  any  question,  is  usually 
fortified  by  a  citation  of  authorities. 

The  authority  of  the  constitution  and  of  the 
statutes  and  municipal  ordinances  are  para- 
mount; if  there  is  any  conflict  among  these 
the  constitution  controls,  and  courts  declare  a 
statute  or  ordinance  which  conflicts  with  the 
former  to  be  of  no  authority. 

The  decisions  of  courts  of  justice  upon  simi- 
lar cases  are  the  authorities  to  which  most  fre- 
quent resort  is  to  be  had;  and  although  in 
theory  these  are  subordinate  to  the  first  class, 
yet  m  practice  they  continually  explain,  en- 
large, or  limit  the  provisions  of  enactments,  and 
thus  in  effect  largely  modify  them.  The  word 
authorities  is  frequently  used  in  a  restricted 
sense  to  designate  citations  of  this  class. 

The  opinions  of  legal  writers  of  the  vast 
number  of  treatises,  commentaries,  and  text- 
books, are  another  and  still  more  subordinate 
class  of  authorities.  Opinions  of  a  text-writer 
upon  any  particular  point  must  be  considered 
not  merely  as  the  opinion  of  the  text-writer, 
but  as  the  supposed  result  of  the  authorities  to 
which  he  refers.  If,  on  examination  of  those 
authorities,  they  are  found  not  to  establish  it, 
his  opinion  is  disregarded."  Where,  however, 
the  writer  declares  his  own  opinion  as  founded 
upon  principle,  the  learning  and  ability  of  the 
writer,  together  with  the  extent  to  which  the 
reason  which  he  assigns  commend  themselves 
to  the  reader,  determine  the  weight  of  his 
opinion.  In  estimating  the  learning  and  ability 
of  an  author,  his  judicial  or  non-judicial  station 
is  not  a  just  test  of  his  authority,  though  it  may 
be  borne  in  mind.^ 

An  authority  may  be  of  any  degree  of  weight 
from  that  of  absolute  conclusiveness  down  t» 
the  faintest  presumption. 

a-3  B.  &  P.  301.  b-See  j  T.  R.  64,  241;  Ram. 
Judgments,  93. 


AUTHORITIES. 


1<)9 


Abbreviations  are  one  or  more  letters  used 
for  a  word,  thus  :  Bl.  Comm.,  for  Blackstone's 
Commentaries,  U.  S.  A.,  for  United  States  of 
America.  They  are  also  arbitrary  marks  or  signs, 
thus:  Jl  for  dollar,  and  the  like.  Christian  names, 
articles  of  trade  and  commerce,  quantities,  qual- 
ities, as  well  as  text-books,  reports,  etc.,'  are 
frequently  represented  by  abbreviations  often 
understood  by  the  individual,  professional, 
tradesman,  etc.,  only.  In  matters  of  impor- 
tance, as  accounts,  agreements,  amounts,  dales, 
names,  qualities,  and  the  like,  abbreviations 
should  be  avoided,  as  tending  to  misconstruc- 
tion, misunderstanding,  and  controversy;*  yet, 
if  an  abbreviation  is  adopted  in  the  inception 
of  any  transaction,  it  should  be  canied  through 
to  its  final  consummation. 

Abbreviations  should  approach  as  nearly  as 
possible  to  the  outlines  of  the  original  word. 

Tables  of  abbreviations,  etc.,  of  authorities 
in  general  use,  and  cited  in  this  volume,  may 
be  found  in  the  various  law  catalogues,  legal 
bibliography,  reports,  etc. 

Authentication  is  a  proper  or  legal  attesta- 
tion. Acts  done  with  a  view  of  causing  an 
instrument  to  be  known  and  identified.  An 
act  or  attestation  of  the  authenticity  of  any  in- 
strument, copy,  or  writing.  See  Acknowl- 
edgment; Evidence. 

AUTHENTICATION  FORMS. 

Anthentication— Oeneral  Form. 

United  States  of  America,  State  of  — -,  

county,  ss : 

I,  the  undersigned  (here  insert  official  title),  of 
,  in ,  hereby  certify  that  {here  state  the  sub- 
ject of  authentication). 

In  testimony  whereof,  I  have  hereunto  set  my 

hand  and  omcial  seal,  at  my  office  in  ,  this 

. day  of ,  A.  D.  . 

{Seal.  ]  {Signature  and  official  title.) 

Anth'^ntlcation — Copy  of  Account. 

State  of , county,  ss. 

1  hereby  certify  that  the  (above,  or  foregoing,  or 
within)  is  an  exact  (exemplified)  copy  of  the  (ad- 
ministration, or  other)  account  of  A.  B.  {or  A.  R., 
administrator  of  the  estate  of  D.  D.,  deceased,  or  E.  X., 
executor  of  the  last  will  and  testament  of  D.  D.,  de- 
ceased, audited,  passed,  and  filed  in  the  office  of  the 
«        ,  of county,  etc.) 

In  testimony  whereof,  etc. 

[Seal.]  (Signature  and  official  title.) 

Aattaenticatlon— Copy  on  File. 

State  of , county,  ss. 

I  hereby  certify  that  I  have  compared  the 
(above,  or  annexed,  or  foregoing,  or  within)  copy  and 
indorsements  thereon  with  the  original  (state 
what),  on  file  in  this  office,  and  that  the  same  are 
full,  true  and  correct  transcripts  of  the  same. 

In  testimony  whereof,  etc. 

[Seal.  ]  (Signature  and  official  title) . 

Authentication— Copy  of  Inventory. 

State  of , county,  ss. 

I  hereby  certify  that  the  above,  etc.,  is  an  exact 
capy  of  an  inventory  oi  (state  what). 
In  testimony,  etc. 

Authentication— Copy  of  Record. 

State  of , county,  ss. 

I  hereby  certify  that  the  above  (or  annexed,  or 
foregoing,  or  within)  has  been  carefully  compared 
with,  verified,  and  is  a  correct  transcript  of  the 
whole  of  (state  what),  as  the  same  appears  of  re- 
cord. Vol.    — ,  pages ,  of  (state  the  kind  or 

nature  of  record),  in  the  office  of  the  ,  of , 

in . 

In  testimony,  etc. 

a-Sec  4  C.  &  P.  SI ;  9  Co.  48. 


Authentication— Copy  of  Will. 

State  of , county,  ss. 

I  hereby  certify  that  the  above  (or  annexed,  etc.^ 
is  an  exact  copy  of  the  last  will  and  testament 
of  D.  D.,  deceased,  which  was  duly  admitted  to 

probate,  and  is  filed  of  record  in  the  office  of , 

of ,  etc. 

In  testimony,  etc. 

Authentication— Official  Character. 

State  of , county,  ss. 

I,  O.  R.,  a  (giving  official  title),  in  end  for  said 
county  and  State,  do  hereby  certify  that  O.  C, 
whose  name  is  subscribed  to  the  above  (or  an- 
nexed, or  foregoing,  or  within — state  rvhat),  is  a  (state 
what,  giving  his  official  title,  etc  ,  in  full),  in  and  for 

,  and  is  duly  qualified  and  acting  as  such 

That  I  am  well  acquainted  with  the  handwriting 
of  said  O.  C,  and  that  his  signature  to  said  in- 
strument is  genuine. 

In  testimony,  etc. 

Authentication— Transcript  of  Jnd|p- 
ment. 

State  of , county,  ss. 

I  hereby  certify  that  the  above  is  a  full  and 
correct  transcript  of  a  judgment  entered  on  th» 

. day  of ,  in  the  court,  in  favor  of  A, 

B.,  in  an  action  wherein  A.  B.  was  plaintiff  and 
C.  D.  defendant,  as  the  same  appears  tn  Judgment 
Record  No. ,  page . 

In  testimony,  etc. 

Citation  of  authorities  is  the  reference  to 
the  text  of  the  acts  of  legislatures,  treatises, 
text-books,  reports  of  causes  decided  by  the 
courts,  for  the  purpose  of  supporting  the  pro- 
positions advanced,  and  to  offer  facilities  for 
their  examination  and  comparison  upon  partic- 
ular subjects. 

The  knowledge  of  the  law  is  to  a  great 
degree  the  knowledge  of  precedents.  This 
makes  a  frequent  reference  to  such  precedents 
necessary,  in  order  to  confirm  a  statement  of 
the  law.  Constant  reference  to  enacted  law  is 
absolutely  necessary.  Reference  to  works  of 
legal  writers  is  also  necessary,  to  elucidate 
doubtful  points  of  law.  The  laws  of  the  gen- 
eral government  are  generally  cited  by  their 
date,  as:  Act  of  June  15,  1876;  Act  of  1876, 
Ch.  170,  U.  S.  Statutes  at  Large,  etc.  In  most 
States  reference  is  had  to  the  General  Statutes. 
Text-books  and  reports  of  cases  decided  in  the 
various  courts  are  cited  by  the  number  of  the 
volume  and  page.  Sometimes  the  book  is 
cited  by  paragraphs  or  sections. 

Law  is  that  which  is  laid  down  or  estab- 
lished by  the  supreme  power  of  a  State,  by  the 
legislature.  It  is  the  aggregate  of  those  rules 
and  principles  of  conduct  which  the  governing 
power  in  a  community  recognizes,  and  which 
it  will  enforce  and  sanction,  and  by  and  ac- 
cording to  which  it  will  regulate,  limit,  or  pro- 
tect the  conduct  of  its  members.  It  includes 
not  only  the  acts  of  the  legislature  and  consti- 
tution but  reports  of  adjudicated  cases,  text. 
books,  treatises,  etc. 

Leading  cases  are  those  cases  decided  by 
a  court  of  last  resort  which  decides  some  par- 
ticular point  in  question  and  to  which  reference 
is  constantly  or  frequently  made,  for  the  pur- 
pose of  determining  the  law  in  similar  cases. 
The  character  of  a  leading  case  depends  upon 
its  priority,  the  character  of  the  court,  the 
amount  of  consideration  given  it,  and  its  free- 
dom from  collateral  matters  and  questions. 


tio 


AUTHORItl£S— BAILMENTS. 


Maxims  are  principles  of  law  universally 
admitted  as  just,  and  consonant  with  reason. 
Maxims  of  law  are  similar  to  axioms  in  geom- 
etry.* They  are  authorities  and  principles  and 
part  of  the  general  customs  or  common  law  of 
I  he  land,  and  are  of  the  same  strength  as  statute 
law,  when  the  judges  have  decided  what  is  a 
III  ixim ;  and  this  belongs  to  the  judges  and  not 
the  jury.*  Maxims  of  the  law  are  considered 
law.' 

Precedents  are  those  legal  acts,  decisions, 
formulae,  instruments,  etc.,  which  are  deemed 
worthy  to  serve  as  rules  or  models  for  subse- 
quent cases.  It  is  much  better  to  stick  to  the 
known  general  rules  than  to  follow  any  one 
particular  precedent  which  may  be  founded  on 
reasons  unknown  to  us.'  A  former  decision  is 
in  general  to  be  followed,  unless  "  manifestly 
absurd  and  unjust " ;  and  in  the  latter  case  it  is 
declared,  when  overruled,  that  the  former  sen- 
tence was  not  law,  not  that  it  was  bad  law. 
The  consideration  and  deliberation  upon  which 
it  was  made  is  an  important  element.*  The 
length  of  time  during  which  it  has  been  acted  on 
as:  a  rule  of  property  is  to  be  considered,  and  the 
length  of  time  it  has  stood  unquestioned ;  since 
where  a  rule  declared  to  be  law,  even  by  an  in- 
ferior tribunal,  having  been  habitually  adopted 
and  acted  upon  by  the  community,  becomes  thus 
irubedded  in  the  affairs  of  men,  and  it  may 
frequently  be  better  to  enforce  it  as  it  is  than  to 
disturb  or  unsettle  it.  In  order  to  give  pre- 
cedents a  binding  effect  there  should  be  a 
current  of  decisions.''  The  antiquity  and  fre- 
quency of  their  adoption  in  questions  of  prop- 
erty might  unjustly  affect  vested  rights  by  a 
departure  from  them,  and  this,  therefore,  is 
very  cautiously  done. 

Written  forms  of  procedure  which  have  been 
sanctioned  by  the  courts,  or  by  long  professional 
usage,  and  are  commonly  followed,  are  also 
precedents.'     See  Pleading. 

Principles  are  truths  or  propositions  so  clear 
that  they  cannot  be  proved  or  contradicted, 
unless  by  propositions  which  are  still  clearer. 
Principles  are  of  two  kinds — universal  and  first 
principles.  Universal  principles  are  those 
known  as  axioms  and  maxims.  First  principles 
are  those  which.  First,  are  so  clear  that  they 
cannot  be  proved  by  anterior  or  more  manifest 
truths ;  Second,  are  almost  universally  received ; 
Third,  are  so  strongly  impressed  on  our  minds 
that  we  conform  ourselves  to  them  whatever 
may  be  our  avowed  opinions.  Courts  recog- 
nize but  do  not  establish  principles;  thus  "the 
right  to  defend  one's  self  continues  as  long  as 
there  is  an  unjust  attack,"  was  a  principle  long 
before  it  was  ever  decided  by  a  court. 

C-i  Bl.  Coram.  68.  d-Termes  delaley,  Doct.  &  Stud. 
Dial.  I  Ch.  8.  e-Co.Litt.  11,67,  4C0. ;  see  Plowd.  27,  ^. 
f-Cas.  <^>«/.  Tabot,  26;  i  Bl.  Comm.  70.  k'-4Co.  94. 
h-Cro.  Car.  528  ;  Cro.  Jac.  386  ;  8  Co.  163.  l-Stephen  PI. 
392.  I-Co.  Litt.97, 18^  ;  I  Bl.  Comm.  70 ;  7  Toull.  n.  566. 
k-5  Johns. 239.  1-2  Cranch.  187,  238;  4  Dallas,  416;  7 
Wheat.  273,  335  :  I  Denio,  376:  2  Comm.  85,  90;  6 
Wend.  475;  9  Mod.  66.  in-3  Wheat.  610;  9  Ves.  Ch. 
147.  n-2  Esp.  700  ;  5  Cranch.  535  ;  6  S.  &  R.  484  ;  3 
W»nd.  173;  I  Gray,  175.  0-2  Bl.  Comm.  451.  See  Id. 
395.     A  delivery  of  a  thing  in  truK,  for  some  special 


Reason  is  that  power  by  which  we  distin- 
guish truth  from  falsehood  and  right  from 
wrong,  and  by  which  we  are  enabled  to  com- 
bine means  for  the  attainment  of  particular 
ends.  Reason  is  the  soul  of  the  law,  for  when 
the  reason  ceases  the  law  ceases.l  A  person 
deprived  of  reason  is  not,  in  many  cases,  crim- 
inally responsible  for  his  acts,  nor  can  he  enter 
into  any  contract. 

Seals  are  impressions  upon  wax,  wafers  or 
some  tenacious  substance  capable  of  being  im- 
pressed.'' The  public  seal  of  a  foreign  state 
proves  itself,  and  public  acts,  decrees  and  judg- 
ments exemplified  under  this  seal  are  received 
as  true  and  genuine,'  if  such  state  has  been 
acknowledged  within  the  jurisdiction  within 
which  the  forum  is  located."  The  seal  of  a 
notary  public  is  taken  judicial  notice  of  the 
world  over."     See  Seals. 

Authority.  See  Agency;  Authorities;  Con- 
tracts; Government. 

Auter  fols  Acquit.  See  Criminal  Law. 

Auter  fois  Attaint.  See  Criminal  Law. 

Aver.  See  Practice. 

Average.  See  Insurance. 

Averment.  See  Pleading. 

Avoidance.  See  Pleading. 

Avordnpois.  See  Weights  and  Measuxbs. 

Avow.  See  Practice. 

Avowry.  See  Pleading. 

Avulsion.  See  Real  Property. 

Award.  See  Agency  ;  Arbitration. 

Away-Ooing'  Crop.  See  Crop  ;  Implements  ; 
Personal  Property. 

Back- Water.  See  Real  Property  ;  Water. 

Back-Side.  See  Conveyances;  Real  Prop- 
erty; Yard. 

Badge.    See  Office  and  Officers. 

Baggage.  See  Bailments;  Carriers;  Common 
Carriers  of  Passengers. 

Bail.  See  Practice. 

Bail-Bond.  See  Practice. 

Bail-Piece.  See  Practice. 

Bailable  Action.  See  Action;  Pkacticb. 

Bailable  Process.  See  Practice  ;  Process. 

Bailee.  See  Bailments. 

BailifT.  See  Office  and  Officer. 

Bailiwick.  See  Practice. 

BAIIiMENTS.  See  Agency;  Contracts. 

Bailment  is  a  delivery  of  personal  property 
by  one  party  to  another,  to  be  held  according 
to  the  purpose  or  object  of  delivery,  and  to  be 
returned  or  delivered  over  when  the  purpose  or 
object  of  the  delivery  is  accomplished.  It  is 
the  delivery  of  goods  in  trust  upon  a  contract, 
either  expressed  or  implied,  that  the  trust  shall 
be  faithfully  executed  on  the  part  of  the 
bailee." 

The  Bailor  is  the  person  delivering  the 
goods. 

The  Bailee  is  the  person  to  whom  the  goods 
are  delivered. 

Practically,  bailments  are  of  three  kinds : 

I.  Bailments  which  are  for  the  benefit  of  the 
bailor,  or  some  person  whom  he  represents. 

object  or  purpose,  and  upon  a  contract,  express  or  im- 
plied, to  conform  to  the  object  or  purpose  of  the  trust 
Story  Bailm.  §  2.  See  Merlin  Repert,  Bailnt.  A  deliv- 
ery of  goods  in  trust  upon  acontract,  express  or  implied, 
that  the  trust  shall  be  duly  executed,  and  the  goods  re- 
stored by  the  bailee  as  soon  as  the  purposes  of  the  bail- 
ment shall  be  answered.  2  Kent  Comm.  559.  A  delivery 
of  (roods  on  a  condition,  express  or  implied,  that  they 
shall  be  restored  by  the  bailee  to  the  bailor,  or  accord- 
ing to  his  directions,  as  soon  as  the  purposes  for  which 
they  are  bailed  shall  be  answered.    Jones  Bailm.  x. 


BAILMENTS. 


Ill 


2.  Bailments  which  are  for  the  benefit  of  the 
tjailee,  or  some  person  represented  by  him. 

3.  Bailments  which  are  for  the  benefit  of 
both  parties. 

There  are  three  degrees  of  care  and  dili- 
gence required  of  the  bailee,  and  three  degrees 
of  negligence,  for  which  he  is  responsible, 
according  to  the  purpose  and  object  of  the 
bailment.  Thus,  in  the  first  class,  the  bailee  is 
required  to  exercise  only  slight  care,  and  is  re- 
sponsible only  for  gross  neglect ;  in  the  second, 
he  is  required  to  exercise  great  care,  and  is 
responsible  even  for  slight  neglect;  in  the 
third,  he  is  required  to  exercise  ordinary  care, 
and  is  responsible  for  ordinary  neglect. 

Diligence  is  the  doing  things  in  the  proper 
time.''  The  following  are  the  three  degrees  of 
diligence :'' 

1.  Ordinary  diligence  is  that  degree  of  dili- 
|;ence  which  men  of  ordinary  prudence  exercise 
in  respect  to  their  own  concerns. 

2.  Great  or  extraordinary  diligence  is  that 
•which  very  prudent  persons  take  of  their  own 
cxmcerns. 

3.  Slight  diligence  is  that  degree  of  diligence 
■which  men,  habitually  careless,  or  of  little  pru- 
dence, generally  exercise  in  the  management 
of  their  own  business. 

Negligence  consists  of  the  followingdegrees : 

1.  Ordinary  negligence  is  the  want  of  ordi- 
nary diligence. 

2.  Slight  negligence  is  the  want  of  great 
diligence. 

3.  Gross  negligence  is  the  want  of  slight 
diligence. 

There  is  a  supplementary  class  of  bailments, 
founded  upon  the  policy  of  the  law,  in  which  the 
bailee  is  responsible  for  loss  without  any  neglect 
on  his  part,  being,  with  certain  exceptions,  an 
insurer  of  the  safety  of  the  thing  bailed. 

When  a  person  receives  goods  or  property 
of  another  to  keep  without  recompense,  and  he 
acts  in  good  faith,  keeping  them  as  his  own,  he 
is  not  answerable  for  the  loss  or  injury,  as  he 
derives  no  benefit  from  the  bailment;  he  is 
responsible  only  for  bad  faith  or  gross  negli- 
gence." But  this  obligation  may  be  enlarged 
or  decreased  by  a  special  acceptance  ;*  and  a 
spontaneous  offer  on  the  part  of  the  bailee  in- 
creases the  amount  of  care  required  of  him ;« 
knowledge  by  the  bailee  of  the  character  of  the 
goods,''  and  by  the  bailor  of  the  manner  in 
which  the  bailee  will  keep  them,*  are  important 
circumstances.  So,  when  a  person  receives  an 
article,  and  uridertakes  gratuitously  some  com- 
mission in  respect  to  it,  as  to  carry  it  from  one 
place  to  another,  he  is  only  liable  for  its  injury 
or  loss   through   his   gross   negligence.     It  is 

l»-Story  Bailm. ;  5  Kas.  433,467.  c-Edw.  Bailm.  35, 
67-74  ;  17  Mass.  479  ;  ii  Mart.  402  ;  38  Me.  55  ;  3  Mas. 
C.  C.  ».;  2  C.  B.  877;  4  Nev.  &  M.  170:  i  Ld.  Raym. 
913  ;  see  Siory  Bailm.  ?  64;  C.  C.  Rob.  Adm.  316.  d- 
2  Kent  Comm.  565 ;  Story  Bailm.  g  63 ;  Willes,  118 :  2 
Ld.  Raym.  910  ;  3  Hill,  9  ;  7  Id.  5^2-  ©-2  Kent  Cwim. 
563.  f-Jones  Bailm.  38.  gr-38  Me.  55.  I1-6  C.  Rob. 
Adm.  141:  3  Mas.  C.  C.  132:  6  N.  H.  537,  i  Const. 
117;  Edw.  Bailm.  102-108;  as  to  the  amount  of  skill 
tuch  bi.ilee  must  possess  and  exercise,  see  2  Kent  Comm. 
509;  Story  Bailm.  Jg  174-178 ;  11  M.  &  W.  113;  5  T.  R. 


enough  if  he  keep  and  carry  it  as  he  does  his 
own  property."* 

The  borrower,  on  the  other  hand,  who  re- 
ceives the  entire  benefit  of  the  bailment,  must 
use  extraordinary  diligence  in  taking  care  of 
the  thing  borrowed,  and  is  responsible  for  even 
the  slightest  neglect.'  He  must  apply  it  only 
to  the  very  purpose  for  which  it  was  borrowed  ;i 
he  cannot  permit  any  other  person  to  use  it ;' 
he  cannot  keep  it  beyond  the  time  limited;* 
and  cannot  keep  it  as  a  pledge  for  a  demand 
otherwise  arising  against  the  bailor." 

In  the  third  class  of  bailments  the  benefits 
derived  from  the  contract  are  reciprocal ;  it  is 
advantageous  to  both  parties.  In  the  case  of  a 
pledge  given  on  a  loan  of  money  or  to  secure 
the  payment  of  a  debt,  the  one  party  gains  a 
credit,  and  the  other  security,  by  the  contract. 
And,  in  a  bailment  for  hire,  one  party  acquires 
the  use  of  the  thing  bailed,  and  the  other  the 
price  paid  therefor;  the  advantage  is  mutual. 
So,  in  a  bailment  for  labor  and  services,  as 
when  one  person  delivers  materials  to  another 
to  be  manufactured,  the  bailee  is  paid  for  his 
services,  and  the  owner  receives  back  his  prop- 
erty enhanced  in  value  by  the  process  of  manu- 
facture. In  these  and  like  cases  the  parties 
stand  upon  an  equal  footing ;  there  is  a  perfect 
mutuality  between  them.  And,  therefore,  the 
bailee  can  only  be  held  responsible  for  the  use 
of  ordinary  care  and  common  prudence  in  the 
preservation  of  the  property  bailed." 

The  diligence  required  is  proportioned  to 
the  value  of  the  property  bailed,  or  the  delicacy 
of  the  operation  to  be  performed.*  A  man 
would  not  be  expected  to  take  the  same 
care  of  a  bag  of  oats  as  a  bag  of  gold ;  or  a 
bale  of  cotton,  as  a  box  of  diamonds ;  or  a  load 
of  wood,  as  a  box  of  rare  paintings;  or  a  rude 
block  of  marble,  as  an  exquisitely  sculptured 
statue.  The  bailee  should  proportion  his  care 
to  the  injury  or  loss  which  is  likely  to  be  sus- 
tained by  any  improvidence  on  his  part.P 

A  BAILEE  is  one  to  whom  goods  are 
bailed ;  the  party  to  whom  personal  property  is 
delivered  under  a  contract  of  bailment.  His 
duties  are  to  act  in  good  faith,  and  perform  his 
undertaking  in  respect  to  the  property  intrusted 
to  him,  with  the  diligence  and  care  required  by 
the  nature  of  his  engagement.  When  the 
bailee  alone  receives  benefit  from  the  bailment, 
as  where  he  borrows  goods  and  chattels  for 
use,  he  is  bound  to  exercise  extraordinary  care 
and  diligence  in  preserving  them  from  loss  or 
injury.i  When  the  bailment  is  mutually  bene- 
ficial to  the  parties,  as  where  goods  and  chattels! 
are  hired  or  pledged  to  secure  a  debt,  the  bailee 
is  bound  to  exercise  ordinary  diligence  in  pre- 

143 ;  2  Ad.  &  E.  256 :  8  B.  Mon.  415  :  4  Johns.  84 ;  11 
Wend.  25  ;  7  Mart.  460  ;  20  Id.  77  ;  3  Fla.  27  ;  and  more 
skill  may  be  required  in  cases  of  voluntary  offers  or 
special  undertakings ;  2  Kent  Comm.  573.  1-Edw. 
Bailm.  138;  7  La  253.  j-2  Ld.  Raym.  915;  Story 
Bailm.  §g  232,  233.  k-i  Mod.  210.  1-Story  Comm.  257 ; 
5  Mass.  104.  ni-iKent  Comm.  574;  Edw.  Bailm.  141. 
n-Edw.  Bailm.  38,  30;  13  Johns.  211;  9  Wend.  60;  s 
Bingh.  217.  0-8  Ind.  3x5.  p-4  B.  &  A.  21,  36,  4*;  5 
Id.  342:  I  Stark.  238;  16  How.  475.  <|-Story  Bailm. 
g  237 :  Edw.  Bailnu  1(4. 


112 


BAILMENTS. 


serving  the  property.''  When  the  bailee  re- 
ceives no  benefit  from  the  bailment,  as  where 
he  accepts  goods,  chattels,  or  money  to  keep 
without  recompense,  or  undertakes  gratuitously 
the  performance  of  some  commission  in  regard 
to  them,  he  is  answerable  only  for  the  use  of 
the  ordinary  care  which  he  bestows  upon  his 
own  property  of  a  similar  nature.* 

The  bailee  is  bound  to  redeliver  the  property, 
according  to  the  nature  of  his  engagement,  as 
'soon  as  the  purpose  for  which  it  was  bailed 
shall  have  been  accomplished.  In  bailments 
which  are  beneficial  to  both  of  the  parties  to 
the  contract,  the  bailee  has  a  right  to  retain  the 
thing  bailed  until  the  object  of  the  bailment 
has  been  accomplished.  A  bailee  for  work, 
labor,  and  services,  such  as  a  mechanic  or  arti- 
san, who  receives  chattels  or  materials  to  be 
repaired  or  manufactured,  has  a  lien  upon  the 
property  for  services.*  Other  bailees,  inn- 
keepers, common  carriers,  and  warehousemen, 
also  have  a  lien  for  their  charges." 

The  bailee  has  a  special  property  in  the 
goods  or  chattels  intrusted  to  him,  sufficient  to 
enable  him  to  defend  them  by  suit  against  all 
persons  but  the  rightful  owner.  The  depositor 
and  mandatory  acting  gratuitously,  and  the 
finder  of  lost  property,  have  this  right. ^  A 
bailee,  with  a  mere  naked  authority,  having  a 
right  to  remuneration  for  his  trouble,  but 
coupled  with  no  other  interest,  may  support  tres- 
pass for  any  mjury  amounting  to  a  trespass  done 
while  he  was  in  actual  possession  of  the  thing.^ 

A  bailee  cannot  dispute  his  bailor's  title.'' 

A  bailee  is  not  responsible  for  losses  by  rob- 
bery,'  lightning,  tempest,  inundation,  and  other 
like  calamities,  unless  there  has  been  some  un- 
justifiable delay,  or  the  party  has  taken  upon 
him  the  risk  of  the  casualty,  or  he  is  at  the 
same  time  guilty  of  neglect.*  But  losses  by 
mere  private  or  secret  theft,  to  excuse  the 
party,  depend  upon  the  nature  of  the  bailment, 
and  the  particulnr  circumstances  of  the  case.* 

A  BAILOR  is  one  who  bails  a  thing  to  an- 
other; the  party  who  delivers  personal  property 
under  a  contract  of  bailment.  The  bailor  must 
act  in  good  faith  toward  the  bailee  ;*>  he  must 
permit  him  to  enjoy  the  thing  bailed  according  to 
the  contract;  and,  in  some  bailments,  as  in 
hiring,  warrant  the  title  of  the  thing  hired, 
and,  probably,  keep  it  in  suitable  order  and  re- 
pair for  the  purpose  of  the  bailment,"  accord- 
ing to  custom,  or  as  the  parties  may  agree. 

CARRIERS  are  those  who  undertake  to 
transport  goods  from  one  place  to  another."*  • 

r-Edw.  Bailm.  223,  312;  Story  Bailm.  308,  309.  8- 
Edw.  Bailm.  66-74-102-108 ;  Story  Bailm.  jj  65,  67, 
174-186.  t-4  Bouv.  Inst.  201,  309,  310,  355.  u-Id.  307- 
309,411-414,547-552.  v-Edw.  Bailm.  55,  57,  61.  w- 
4  Bouv.  Inst.  ft.  3608.     x-Edw.  Bailm.  288,  289,  305, 


S'^S-     y-Story  Bnilm.  r.  i,?26.     as-Id.  %  36-37.     a-i 
Humph.  99;  14  Eng.  L.  &  Eq.  327.     b-Story  Bailm. 
74.   76,  77-     C-Id.   g?  388-392.     a-i   Parsons  Contr. 


632.  e-Stnry  Bailm.  'i}_  494-496;  2  Kent  Comm.  598, 
599;  Redf.  Rlys.  §  124;  i  Saik.  249;  2  Ga.  348;  14 
Ala.  N.  S.  261;  I  Bouv.  Inst.  n.  1020;  it  has  been 
doubted  whether  carmen,  8  C.  &  P.  207,  and  coasters,  6 
Cow.  ■66,  were  common  carriers  ;  but  these  cases  stand 
alone,  and  are  contradicted  by  many  authorities,  19 
Barb.  577;  34  Id.  533;  9  Rich.  (S.  C.)  193    f-19  Wend. 


Carriers  are  either  common  or  private  carriers 

Common  carriers  are  such  as  carry  goods  foi 
hire,  indifferently  for  all  persons. 

The  definition  includes  carriers  by  land  and 
water.  They  are,  on  the  one  hand,  stage-coach 
proprietors,  railway  companies,  truckmen,  wag- 
oners and  teamsters,  carmen  and  porters,  and 
express  companies,  whether  such  persons  un- 
dertake to  carry  goods  from  one  portion  of  the 
same  town  to  another,  or  through  the  whole 
extent  of  the  country,  or  even  from  one  state 
or  kingdom  to  another.  And,  on  the  other 
hand,  this  term  includes  the  owners  and  mas- 
ters of  every  kind  of  vessel  or  water  craft  who 
set  themselves  before  the  public  as  the  carriers 
of  freight  of  any  kind  for  all  who  choose  to 
employ  them,  whether  the  extent  of  their  navi- 
gation be  from  one  continent  to  another,  or 
only  in  the  coasting  trade,  or  whether  employed 
in  lading  or  unlading  goods,  or  in  ferrying, 
with  whatever  mode  of  motive  power  they 
adopt.* 

Common  carriers  of  passengers  are  such  as 
carry  persons  for  hire,  and  are  bound  to  carry 
all  who  offer.' 

Private  carriers  are  such  as  do  not  carry 
goods  for  hire  indifferently  for  ail  persons. 

Common  Carriers.  Where  a  carrier  un- 
dertakes to  carry  only  for  the  particular  occa- 
sion, he  cannot  be  held  responsible  as  a  common 
carrier.  So,  also,  if  the  carrier  be  employed 
in  carrying  for  one,  or  a  definite  number  of 
persons,  by  way  of  special  undertaking.  To 
constitute  one  a  common  carrier,  he  must  make 
it,  for  the  time,  a  regular  employment  to  carry 
goods  for  hire  for  all  who  choose  to  employ 
him. 8  This  rule  embraces  the  proprietors  of 
stage  wagons  and  coaches,  omnibuses  and  rail- 
ways ;'•  also  carters,  expressmen,  porters,  ship- 
owners, and  all  who  engage  regularly  in  the 
transportation  of  goods  or  money,  either  from 
town  to  town,  or  from  place  to  place  in  the 
same  town. 

Common  carriers  are  held  to  the  responsi- 
bility of  insurers  for  the  safe  delivery  of  prop- 
erty intrusted  to  their  care,  upon  the  grounds 
of  public  policy,  to  prevent  fraud,  and  collusion 
with  thieves,  and  because  the  owner,  having 
surrendered  up  the  possession  of  his  property, 
is  generally  unable  to  show  how  or  where  the 
loss  occurred.' 

Common  carriers  are  responsible  for  all  loss 
or  damage  during  transportation,  from  what- 
ever cause,  except  the  act  of  God,  or  the  public 
enemy.J     The    carrier  is   not   responsible   for 

239 :  10  N.  H.  486 :  15  111.  472 ;  2  Sumn.  C.  C.  221  ;  3 
Brod.  &  B.  54  ;  9  Pick.  408.  tf-2  Kelly  349,  353  :  i  Salk. 
249;  2  C.  &  P.  598;  I  Nev.  &  Per.  22;  1  Pick.  50;  23 
Vt.  186;  I  Conn.  54.  h-Story  Bailm.  |  496,  and  c-ises 
cited,  l-i  Daly  (C.  P.)  547.  J-Aug.  Carr.  70,  §  67 ;  i 
T.  R.  27;  2  Ld.  Raym.  909,  918:  1  Wils.  281  :  i  Salk. 
18,  and  cases  cited ;  4  Bingh.  (N.   C.)  314;  25  Eng.  L. 


598 


5.q.  595;  story  Bailm.  g  490;  2  Kent  i..,omm.  597, 
;  7  Yerg.  340 ;  3  Munf.  230  ;  i  Dev.  &  B.  273 ;  2 
Bail.  157:  6  Johns.  160;  21  Wend.  190:  23  Id.  306;  5 
Strobh.  119  ;  Rice,  108  :  4  Zabr.  697 ;  2  Id.  273 :  i  Conn. 
487:  12  Id.  410;  4  N.  H.  259;, 1 1  111.  579;  the  act  of 
God  is  held  to  extend  only  to  such  inevitable  accidents  as 
occur  without  the  intervention  of  man's  agency ;  i  T 
R.  2j :  31  Wend.  19a ;  3  Esp.  127 ;  4  Dougl.  387. 


BAILMENTS. 


"3 


losses  occurring  from  natural  causes,  such  as 
frost,  fermentation,  evaporation,  or  natural  de- 
cay of  perishable  articles,  or  the  natural  or 
necessary  wear  in  the  course  of  transportation, 
provided  the  carrier  exercises  all  reasonable 
care  to  have  the  loss  or  deterioration  as  little 
Bs  practicable.^ 

Carriers  both  by  land  and  water,  when  they 
undertake  the  general  business  of  carrying 
every  kind  of  goods,  are  bound  to  carry  all 
which  offer;  and  if  they  refuse,  without  just 
excuse,  they  are  liable  to  an  action.''  But  any 
common  carrier,  whether  a  natural  person,  or 
corporation,  may  restrict  his  business  within 
•such  limits  as  he  may  deem  expedient,  and  he 
is  not  bound  to  accept  goods  out  of  the  line  of 
his  usual  business.' 

Authority  of  Agents  and  Servants.  The 
board  of  directors  have  all  the  power  that  re- 
sides in  the  corporation,  unless  restricted  by 
the  charter  and  by-laws;  other  agents  and  ser- 
vants cannot  bind  the  company  beyond  their 
sphere  of  operation,™  and  an  agent  who  as- 
sumes to  bind  the  company  beyond  his  sphere, 
cannot."  But  the  fact  that  a  company  has 
ratified  other  similar  contracts  of  the  particular 
servant  might  be  evidence  against  them."  A 
notice  by  the  company  of  want  of  authority  in 
servants,  renders  their  acts  void.P  A  servant 
may  bind  the  company  even  when  he  disobeys 
their  directions,  if  acting  in  the  scope  of  his 
authority.*!  A  common  carrier  of  goods  is 
liable  for  the  acts  of  all  the  servants  of  his 
sub-contractors,''  and  it  makes  no  difference 
that  the  emoluments  were  allowed  to  be  re- 
tained by  the  servants  as  a  part  of  their  com- 
pensation, unless  this  were  known  to  the  owner 
of  the  goods,  and  he  contracts  with  the  servants 
as  principals. •  An  owner  may  countermand 
the  destination  of  goods  through  the  proper 
agent.*  An  agent's  authority  is  a  matter  of 
fact." 

Baggage — Limitations  and  Restrictions. — 
They  are  not  liable  for  merchandise  which  a 
passenger  carries  covertly,^  and  it  makes  no 
difference  that  the  passenger  has  no  other 
trunk."     Jewelry,  being  female  attire,  and  a 

J-B.  N.  P.  69  ;  2  Kent  Comm.  299,  300;  Story  Bailm. 
J  492,  a;  6  Watts.  424;  Redf.  Rlys.  141.  b-2  Show. 
332  ;  5  T.  R.  143 ;  5  B.  &  Aid.  32 :  8  M.  &  W.  372 ;  i 
Pick    so  ;  5  Mo.  36  ;  15  Conn.  539  ;  2  Sumn   C.  C.  221 ; 

6  Rly.  Cas.  61;  6  Wend.  335;  2  Story  C.  C.  16;  12 
Mod.  484 ;  4  C.  B.  555 ;  6  Id.  775  ;  i  Ball  &  B.  54 :  9 
Price,  408.  I-23  Vt.  186;  14  Penn.  St.  48;  10  N.  H. 
481;  30  Mi.ss.  231  ;  4  Exch.  369;  12  Mod.  484.  in-i8 
Eng.  L.  &  Eq.  557,  in  note;  16  Jur.  1069:  S.  C.  14 
Eng.  L.  &  Eq.  175,  ii-3  Foster,  275;  :8  Conn.  484;  3 
Exch.  268;  2  Duer.  341.  0-3  Exch.  268;  2  Duer.  341. 
p-14  C.  B.  647;  S.  C.  26  Eng.  L.  &  Eq.  297;  18  Barb. 
500;  26  Barb.  564  ;  i  Allen,  9  ;  t8  C.  B.  (N\  S.)  748.  q- 
14  How.  U.  S.  468,  483;  5  Duer.  193;  2  C.  &  P.  599. 
r-2  Exch.  415;  S.  C.  5  Rly.  Cas.  302.     s-8  N.  H.  146; 

7  Id.  157;  2  Harr.  481.  t-12  Iowa,  348  ;  16  Jur.  1069;  S. 
C.  14  Eng.  L.  &  Eq.  175.  11-18  Barb.  500  ;  12  Iowa,  340  ; 
1(5  Jur.  1069  ;  S.  C.  14  Eng.  L.  &  Eq.  175.  v-S  Exch  30 ; 
S.  Co  Eng.  L.  &  Eq.  477  ;  2  Bosw.  589  ;  3  Am.  L.  Reg. 
(N.  S.)  126:  S.  C.  44:  N  H.  325:  25  Wend.  459;  10 
Cush.  '^06 ;  6  Hill,  586 ,  12  Ga.  217  ;  3  E.  D.  Smith,  571. 
W-25  Wend.  459;  10  Cush.  506.  x-4Bing  218:  3  Penn. 
St.  451 :  20  Mo.  513  ;  6  Porter,  242.  y-9  Wend.  85  ;  19 
Id.  534;  4  E.  D.  Smith,  59,  178;  1  Abb.  Pr.  32;  30  N. 
Y.  594;  9  Humph.  6;  11  Id.  419:  6  Porter,  242  K-6 
Porter,  242.    a-6  Porter,  242.     b-Newberry's  Admr. 


watch  in  a  trunk  is  proper  baggage.*  So,  also, 
is  money  for  expenses,^  books  for  reading,' 
clothing,*  spectacles,*  tools  of  trade,  and  many 
other  similar  things."  A  carrier  is  responsible 
for  baggage  when  the  passenger  goes  by  another 
conveyance.*  Carriers  cannot  restrict  all  re- 
sponsibility for  baggage,*  but  may  make  rea- 
sonable regulations  and  follow  them.' 

Stage  proprietors  and  omnibus  drivers,  whd 
assume  to  carry  luggage  for  all  who  apply, 
from  railway  stations  about  the  towns,  are  re- 
sponsible as  common  carriers ;  and  it  does  not 
affect  the  responsibility  of  such  carriers  where 
they  enter  the  names  of  passengers  on  way- 
bills, but  do  not  enter  the  baggage;'  where 
they  are  employed  by  hotel-keepers  to  trans- 
port their  guests,  both  are  responsible.* 

Responsibility  for.    It  is  an  elementary 

principle  of  law  that  railways,  steamboats,  and 
other  carriers  of  passengers,  although  not  liable 
for  injuries  to  their  passengers  without  their 
fault,  are  nevertheless  responsible,  as  common 
carriers,  for  their  baggage,  or  luggage.''  Where 
one  company  checks  baggage  through  a  suc- 
cession of  lines,  owned  by  different  companies, 
each  company  becomes  responsible  for  the 
whole  route.'  The  baggage-check  given  at  the 
time  of  receiving  such  baggage  is  regarded  as 
prima  facie  evidence  of  the  liability  of  the 
company,  and  such  responsibility  continues  un- 
til the  delivery  of  the  same  to  the  passenger, 
or  to  his  order  ;J  a  check  therefor  "  stands  in 
the  place  of  a  bill  of  lading;"''  and  where 
different  railways,  forming  a  continuous  line, 
run  their  cars  over  the  whole  line,  and  sell  tick- 
ets for  the  whole  route,  the  action  lies  against 
either  company  for  the  loss  of  baggage;'  they 
remain  liable  until  a  full  and  unequivocal  de- 
livery to  the  owner.™  But  the  company  is  not 
liable  unless  the  baggage  is  given  in  charge  of 
their  servants,"  and  if  the  servant  accepts,  the 
carrier  is  responsible  for  the  baggage."  Their 
liability  results  from  duty,  and  not  from  con- 
tract.? 

Bill  of  Lading — Effect  upon  Carrier.  A 
bill  of  lading,  or  carrier's  acknowledgment  of 

404.  c-io  How  Pr.  330:  40  Miss.  39:  10  Ohio,  145;  4 
E.  D.  Smith,  178;  Id.  181;  38  111.  219;  25  Ga.  61.  d- 
2  Blatch.  C.  Ct.  336.  e-4  C.  B.  (N.  S.)  257  ;  5  Jur.  (N. 
S.)  1056.  f-i  Strob.  468.  £-4  Cush.  115.  h-4  Bing 
2i8 ;  6  Hill  (N.  y.)  586 ;  10  N.  H.  481  ;  26  Wend.  591 ; 
7  Rich.  158;  13  Wend.  611 ;  2  Bos.  &  P.  416;  6  East. 
564;  S.  C.  4  Esp.  177.  1-8  N.  V.  37;  2  E.  D.  Smith, 
J84.  J-i  C.  B.  839  ;  2  B.  &  P.  416 ;  4  Bing.  218 ;  6  Hill, 
586:  26  Wend.  591  ;  10  N.  H.  481  ;  7  Rich.  158.  fc-7 
Rich.  158  ;  3  E.  D.  Smith,  246;  10  C.  B.  (N.  S.)  453  ;  6 
Gray,  450;  4  E.  D.  Smith,  453 ;  7  Gray,  92,  86;  i  Hil- 
ton, 280.  1-4  Seld.  37;  2  E.  D.  Smith,  84;  29  Barb.  35, 
4  H.  &  N.  615  :  5  Cush.  69.  in-2i  Wend.  354  ;  7  C.  B. 
839 :  16  Id.  13  :  S.  C.  29  Eng.  L.  &  Eq.  347 ;  7  Hill  (N. 
Y.)47;  2  Bos.  &  Pul.  416;  2  Duer.  335;  16  B.  Mon. 
302,  308 ;  26  Wend,  siqi  :  4  E.  D.  Smith,  453 ;  19  Wis. 
40;  35  Vt.  605:  12  C.  B  (N.  S.)  75;  S.  C.  8  Jur.  (N. 
S.)  1213  ;  49  Barb.  T48  ;  36  Id.  5S7 ;  34  N.  Y.  548.  n-io 
C.  B.  726 ;  S.  C.  2  Eng.  L.  &  Eq.  331  ;  12  C.  B.  291 ;  S. 
C.  6  Eng.  L.  &  Eq.  397 ;  12  C.  B.  304 ;  S.  C.  10  Eng.  L. 
&  Eq.  521  ;  I  Hilton,  244;  2  Duer,  335;  12  III.  344;  13 
Id.  746  :  7  Cush.  15s  ;  4  Ohio  St.  722  :  28  Miss.  792  ;  11 
Rob.  (Louis.)  24;  3  Dana.  91 ;  37  Miss.  391;  12  Jur. 
(N.  S.)  266;  L.  R.  I  Q.  B.  54;  S.  C.  6  B.  &  S.  961.  o- 
21  Wend.  354;  31  Conn.  281.  p-ii  C.  B.  655  ;  S.  C.  7 
Eng.  L.  &"Eq.  519;  36  N.  H.  26;  I  E.  D.  Smith,  95;  4 
Id.  453- 


tf4 


BAILMENTS. 


the  receipt  of  goods,  is  generally  the  written 
evidence  of  the  contract  between  the  parties, 
and  is  expected  to  contain  all  the  exemption 
from  general  responsibility  which  it  is  competent 
for  the  carrier  to  claim.  Parol  evidence  is  not 
admissible  to  vary  the  contract  of  shipment  thus 
evidenced."!  But  as  between  immediate  parties 
the  bill  of  lading  is  not  conclusive  as  to  the 
quantity  or  condition  of  the  goods  at  the  time  of 
shipment,  especially  when  there  was  no  oppor- 
tunity to  inspect  them.'  Between  the  consignor 
and  carrier  the  bill  of  lading  is  (in  the  absence 
of  proof  to  the  contrary)  evidence  of  the  truth 
of  its  contents.*  Questions  of  quantity  and 
quality  of  goods  cannot  be  raised  where  inter- 
mediate carriers  are  cencerned.*  A  bill  of 
lading  may  be  explained,"  but  cannot  be  con- 
tradicted or  controlled  as  to  the  terms  of  the 
contract,  by  oral  evidence.^  The  goods  must 
be  forwarded  according  to  the  bill  of  lading." 
If  a  shipper  give  separate  bills  of  lading  to  the 
different  owners  of  wheat,  shipped  in  the  same 
car,  he  is  liable  to  each  owner  for  the  conver- 
sion of  his  portion.*  The  statement  in  a  bill 
of  lading  that  the  goods  were  received  in  good 
order  is  not  conclusive  evidence  of  that  fact; 
but  it  is  competent  to  show  that  such  was  not 
the  fact.y  A  bill  of  lading  must  be  construed 
with  reference  to  the  nature  of  the  route  and 
the  course  of  business.*  The  bill  is  conclusive 
as  to  third  parties  who  act  upon  it.*  A  transfer 
by  indorsement  and  delivery  of  the  bill  of  lading 
passes  to  the  indorsee  all  vested  and  contingent 
rights  of  action.''  An  exception  in  a  bill  of 
lading  does  not  affect  its  general  construction.* 
The  bill  as  to  the  receipt  of  goods  is  evidence 
only  as  between  the  parties,  but  conclusive  as 
to  parties  acting  in  good  faith  under  it."*  But 
in  cases  of  fraud  the  estoppel  will  not  bind  the 
owner  of  a  vessel  or  his  interest  in  it.*  Delivery 
must  be  made,  if  practicable,  as  agreed,'  or  the 
carrier  must  show  loss  by  excepted  risks.' 
Terms  used  in  a  bill  of  lading,  as  in  other 
written  instruments,  will  receive  such  construc- 
tion as  the  usage  of  the  business  requires.*  An 
assignment  of  a  bill  of  lading  transfers  the  title 
to  goods  but  not  the  claim  for  damages. '^ 

A  passenger's  baggage  is  not  at  his  own  risk 
by  reason  of  any  notice  printed  on  his  ticket, 
and  posted  in  the  company's  office,  unless  such 
notice  is  brought  home  to  the  owner.' 

Bll^IiS  OF  I.ADING  FORMS. 
Bill  of  liadingr— Domestic. 

The Express  Co. 

Place ,  Date. 

Received  from  {consignor' s  or  shipper's  name). 
One  package  (box  or  bundle,  etc.);  value  (state 
»mount). 

Marked  {consignee's  name  and  other  marks  or 
directions'). 

q-4  Ohio,  334 ;  2  Sumn.  C.  C.  567 ;  Ang.  Carr.  ?g 
228,  229.  r-i  M.  &  R.  186  ;  7  Ad.  &  E.  29  ;  9  B.  Mon. 
112.  8-1 1  Pick.  43;  7W.  Law  J.  302;  3  Coins.  322;  4 
Seld.  497  ;  24  Ind.  447  ;  13  La.  An.  452  ;  19  L.  Rep.  376; 
16  L.  Reg.  229  ;  10  Wis.  4 ;  50  Maine,  339  ;  18  III.  172  ; 
9  Leigh.  347.  t- 1 8  Barb.  586.  u-9  B.  Mon.  112  ;  19  L. 
Rep.  43;  16  III.  408;  28  Barb.  323.  v-4  Ohio,  334  ;  2 
Sunn.  567  ;  3  Gray,  97;  Angell.  Carriers  ?^  228,  9.  w- 
L.  Rep.  Jijy,  1857,  129 ;  3  Mica.  36S :  4  Barb.  158 ;   la 


It  i.^  a  part  of  the  consideration  of  this  contract  and 
it  is  agreed  that  the  said  Express  Company  are  forward- 
ers only,  and  are  not  to  be  liable  or  responsible  for  any 
loss  or  damage  while  being  conveyed  by  the  carriers  or 
agents,  to  whom  said  property  may  be  by  said  Express 
Company  intrusted,  or  arising  from  the  dangers  of  ocean 
or  river  navigation,  railroads,  steam,  fire  in  stores,  de- 
pots, or  in  transit,  or  from  any  cause  whatever,  unless  in 
every  case  the  same  be  proved  to  have  occurred  from  the 
fraud  or  gross  negligence  of  said  Express  Company  or 
their  servants  ;  nor  in  any  event  beyond  the  sum  of  fifty 
dollars,  at  which  the  article  carried  is  hereby  valued, 
unless  as  otherwise  herein  expressed  ;  nor  liable  for  any 
damage  to  glass  or  any  fragile  article  unless  herein  spe- 
cially insured.  And  if  the  same  is  intrusted  or  delivered 
to  any  other  express  company  or  agent  (which  the  said 

Express  Company  are  hereby  authorized  to  do), 

such  company  or  person  so  selected  shall  be  regarded  ex- 
clusively as  the  agent  of  the  depositor,  and  as  such  alone 

liable ;  and  the Express  Company  shall  not  be  in 

any  event  responsible  for  the  negligence  or  non-perform- 
ance of  any  such  company  or  person,  nor  in  any  event 
shall  said  Express  Company  be  liable  for  any  loss  or 
damage,  unless  the  claim  therefor  shall  be  presented  to 
them  in  writing  at  their  said  office,  within  thirty  days 
after  the  time  when  said  property  has  or  ought  to  have 
been  delivered.  It  is  further  agreed  that  said  Company 
shall  not  in  any  event  be  liable  tbr  any  loss  or  damage  or 
detention  caused  by  civil  or  military  authority,  or  by  re- 
bellion, insurrection,  or  riot.  Owner's  risk  against  leak- 
age or  breakage.  Glassware  received  only  at  shipper's 
risk. 

Not  negotiable. 

Freight  paid  \or  collect). 
For  the  proprietors,       A.  A.  (Bailee's  Agent). 

Bill  of  liading:— Domestic. 

For  Money,  imth  Insurance  added. 
Adams  Express  Company. 
$ .  Place, ,  Date. 

Received  from  (consignor' s  or  shipper's  name)  ont 
package,  sealed  and  said  to  contain  (state  amount). 

Addressed  (give  address,  etc.) 

Upon  the  special  acceptance  and  agreement  that  this 
Company  is  to  forward  the  same  to  its  agent  nearest  or 
most  convenient  to  destination  only,  and  there  to  deliver 
the  same  to  other  parties  to  complete  the  transportation 
— such  delivery  to  terminate  all  liability  of  this  Com- 
pany for  such  package  :  and  also,  that  this  Company  are 
not  to  be  liable  in  any  manner,  or  to  any  extent  for  any 
loss,  damage  or  detention  of  such  package,  or  of  its 
contents,  or  of  any  portion  thereof,  occasioned  by  the 
acts  of  God,  or  by  any  person  or  persons  acting  or 
claiming  to  act  in  any  military  or  other  capacity  in  hos- 
tility to  the  government  of  the  United  States,  or  occa- 
sioned by  civil  or  military  authority,  or  by  the  acts  of 
any  armed  or  other  mob  or  riotous  assemblage,  piracy 
or  the  dangers  incident  to  a  time  of  war,  nor  wnen  occa- 
sioned by  the  dangers  of  railroad  transportation,  or 
ocean  or  river  navigation,  or  by  fire  or  steam,  unless 
specially  insured  by  this  Company,  and  so  specified  in 
this  receipt.  In  no  event  is  this  Company  to  be  liable 
for  a  greater  sum  than  that  above  mentioned,  nor  shall 
it  be  liable  for  any  such  loss  unless  the  claim  therefor 
shall  be  made  in  writing,  at  this  office,  within  thirty 
days  from  this  date,  in  a  statement  to  which  this  receipt 
shall  be  annexed  ;  and  the  shipper  and  owner  hereby 
severally  agree  that  all  the  stipulations  and  conditions  in 
this  receipt  contained  shall  extend  to  and  inure  to  the 
benefit  of,  each  and  every  company,  or  person,  to  whom 
the  Adams  Express  Company  may  intrust  or  deliver 
the  above  described  property  for  transportation,  and* 
shall  define  and  limit  the  liability  therefor  of  such  othei' 
company  or  person. 

Freight  paid  {or  collect). 

For  the  Company,  A.  A. 

Insured  by  Adams  Express  Company,  for , 

to only.  For  the  Company, 

Insurance,  $ .  A.  A. 


La.  An.  752  ;  Id.  783  ;  30  L.  Times,  26 ;  13  Ind.  518.  x- 
18  N.  Y.  518.  y-23  III.  117;  L.  Rep.  iC.  P.  649;  14 
La.  An.  298.  1-3  Wallace,  225.  «-7  Allen,  454;  Id. 
456;  II  Gray,  458,  i  Bailey,  174;  34  Me.  554;  50  Id. 
139;    I  Hilton,  221.     b-L.  Rep.  i  P.  C.  248;    S.  C^  11 


i 


ur.  (N.  S.)  258.     c-9  Allen,  299;   40  Ala.  184.     d-i8 
low.  (U.  S.)  182.     e-i8  Id.  182.     f-12  Gray,  488.     jr- 


^ow  , 

16  Ohio,  421  ;    8  Bosworth,  213. 

Camp.  330.    i-i2  Gray,  388. 


t»-«  Gray,  aSi ;  j 


BAILMENTS. 


"5 


BUI  of  liadlng— Domestic. 

For  Freight. 
Adams  Express  Company. 

Place ,  Date . 

Iteceived  of  (consignor  or  shipper's  name) . 

Value,  ■ dollars  (or  asked  and  not  given). 

For  which  this  Company  charges  (give  amount). 

Marked  {consignee' s  name,  and  other  directions, 
marks  and  figures). 

Which  it  ie  mutually  agreed  is  to  be  forwarded  to  our 
agency  nearest  or  most  convenient  to  destination  only, 
and  there  delivered  to  other  parties  to  complete  the 
transportation. 

It  is  part  of  the  consideration  of  this  contract,  and  it 
is  agreed,  that  the  said  Express  Company  are  forward- 
ers only,  and  are  not  to  be  held  liable  or  responsible  for 
any  loss  or  damage  to  said  property  while  being  con- 
veyed by  the  carriers  to  whom  the  same  may  be  by  said 
Express  Company  intrusted,  or  arising  from  the  dangers 
of  railroads,  ocean  or  river  navigation,  steam,  fire  in 
stores,  depots,  or  in  transit,  leakage,  breakage,  or  from 
any  cause  whatever,  unless,  in  every  case,  the  same  be 
proved  to  have  occurred  from  the  fraud  or  gross  negli- 
gence of  said  Express  Company  or  their  servants  ;  nor 
in  any  event  shall  the  holder  hereof  demand  beyond  the 
sum  of  fifty  dollars,  at  which  the  article  forwarded  is 
hereby  valued,  unless  otherwise  herein  expressed,  or 
unless  specially  insured  by  them,  and  so  specified  in  this 
receipt,  which  insurance  shall  constitute  the  limit  of  the 
liability  of  the  Adams  Express  Company.  And  if  the 
same  is  intrusted  or  delivered  to  any  other  express  com- 
pany or  agent  (which  said  Adams  Express  Company  are 
hereby  authorized  to  do),  such  company  or  person  so 
selected  shall  be  regarded  exclusively  as  the  agent  of 
the  shipper  or  owner,  and  as  such  alone  liable,  and  the 
Adams  Express  Company  shall  not  be,  in  any  event,  re- 
sponsible for  the  negligence  or  non-performance  of  any 
such  company  or  person,  and  the  shipper  and  owner 
hereby  severally  agree  that  all  the  stipulations  and 
conditions  in  this  receipt  contained  shall  extend  to  and 
inure  to  the  benefit  of  each  and  every  company  and  per- 
son to  whom  the  Adams  Express  Company  may  intrust 
or  deliver  the  above-described  property  for  transporta- 
tion, and  shall  define  and  limit  the  liability  therefor  of 
such  other  company  or  person.  In  no  event  shall  the 
Adams  Express  Company  be  liable  for  any  loss  or  dam- 
age, unless  the  claim  therefor  shall  be  presented  to  them 
in  writing,  at  this  office,  within  thirty  days  after  this 
date,  in  a  statement  to  which  this  receipt  shall  be  an- 
nexed. All  articles  of  glass  or  contained  in  glass,  or 
any  of  a  fragile  nature,  will  be  taken  at  shipper's  risk 
only,  and  the  shipper  agrees  that  the  Company  shall  not 
be  held  responsible  for  any  injury  by  breakage  or  other- 
wise, nor  for  damage  to  goods  not  properly  packed  and 
secured  for  transportation.  It  is  further  agreed,  that 
said  Company  shall  not,  in  any  event,  be  liable  for  any 
loss,  damage,  or  detention  caused  by  the  acts  of  God, 
civil  or  military  authority,  or  by  rebellion,  piracy,  insur- 
rection, or  riot,  or  the  dangers  incident  to  a  time  of  war, 
or  by  any  riotous  or  armed  assemblage.  If  any  sum  of 
money,  besides  the  charge  for  transportation,  is  to  be 
collected  from  the  consignee  on  delivery  of  the  above- 
described  property,  and  the  same  is  not  paid  within 
thirty  days  from  the  date  hereof,  the  shipper  agrees  that 
this  Company  may  return  said  property  to  him  at  the 
expiration  of  that  time,  subject  to  the  conditions  of  this 
receipt,  and  that  he  will  pay  the  charges  for  transporta- 
tion both  ways,  and  that  the  liability  of  this  Company 
for  such  property  while  in  its  possession  for  the  purpose 
of  making  such  collection,  shall  be  that  of  warehouse- 
men only. 

Freight  paid  {or  collect). 

For  the  Company,  A.  A. 

Bill  of  L.adinjsr— Forelgrn. 

Freight,  Money,  etc. 
American-European  Express. 

Place ,  Date . 

Received  of  C.  R. 

One  box  (or  package,  etc.)     Value,  $ . 

Numbered  and  marked  as  in  the  margin,  to  be 

forwarded  by  us  only  to , ,  as  per  address 

in  "  Marks  and  numbers." 

It  is  agreed,  and  is  part  of  the  consideration  of  this 
contract,  that  said  Company  are  not  to  be  held  respon- 
sible, except  as  forwardei-s,  nor  for  any  loss  or  damage 
arising  from  dangers  of  fire,  at  sea  or  on  shore,  accidents 
from  machinery,  boilers,  steam,  leakage,  or  any  other 
accidents  or  dangers  of  the  seas,  rivers  and  iteam  navi- 


gation, of  whatever  nature  or  kind  soever,  or  by  dangers 
of  railroads,  restraints  of  princes  or  potentates,  or  for 
any  cause  whatever,  unless  the  same  be  proved  to  have 
occurred  from  the  fraud  or  gross  negligence  of  our- 
selves, our  agents  or  servants,  and  we,  in  no  event,  be 
liable  beyond  our  route,  as  herein  receipted.  Valued 
under  fifty  dollars,  unless  otherwise  herein  stated.  Not 
accountable  for  specie,  jewelry,  or  precious  stones,  un- 
less value  is  declared.  Not  accountable  for  leakage  or 
breakage.     Contents  unknown. 

Marks  and  numbers: 

C.  E. . 

Freight,  $ . 

Insurance,  $— — . 

Total,  $ . 

Duties  and  customs  charges  payable  by  con- 
signee at  destination. 

For  F.  S.  &  Co. ,  Forwarders. 

A.  A.,  Agent. 

BUI  of  liadln^— Domestic. 

The Railroad. 

Place ,  Date . 

Received  from  {consignee  or  shipper's  name)  the 
following  freight,  marked  as  below,  which  we 
promise  to  deliver  on  the  platform  of  the  Com- 
pany's freigiit  station,  at  .  Incidental  dan- 
gers of  railroad  transportation,  leakage,  fire  in 
cars  or  at  stations,  excepted. 

All  goods  offered  for  transportation  must  be  in  good 
order,  and  distinctly  marked  with  name  of  station  at 
which  they  are  to  be  left,  otherwise  the  Company  will 
not  be  responsible  for  loss  of  goods  or  wrong  delivery  ; 
nor  will  the  Company  be  responsible  for  the  safety  of 
way  freight,  after  its  delivery  on  the  platform  of  the 
station  for  which  it  is  marked. 

When  receipts  are  required,  duplicates  ready  for  sign- 
ing must  be  furnished  by  the  consignor. 

Marked . 

Number  and  description  of  packages, . 

{Signed)  Company's  name  by  Agent. 

Bill  of  leading:— Domestic. 

The Railroad  Station. 

Conditions. 

Freight  offered  for  transportation  must  be  in  good  or- 
der, properly  packed,  and  to  prevent  loss  and  miscar- 
riage, the  agents  are  instructed  not  to  receive  any 
packages  or  goods  of  any  description  whatever,  unless 
they  are  plainly  marked  with  the  owner's  name  and 
destination. 

The  company  will  not  be  responsible  for  leakage  of 
liquids,  breakage  of  ware,  nor  will  they  hold  themselves 
responsible  for  any  goods  lost,  stolen,  or  damaged,  be- 
yond the  value  of  fifty  dollars  per  package. 

When  receipts  are  required,  duplicates,  ready  forsign- 
ing,  must  be  furnished  by  the  consignor. 

Gunpowder,  gun-cotton,  and  like  combustibles,  will 
not  be  received  except  by  special  arrangement  at  each 
consignment. 

Coal  oil  and  friction  matches  will  only  be  received  for 
transportation  on  Mondays  and  Thursdays,  previous  to 
4  o'clock  p.  M.  Packages  containing  these  and  all 
similar  freight  requiring  extra  caution,  such  as  acids, 
turpentine,  benzine,  naphtha,  etc.,  must  be  marked  so  as 
to  plainly  show  the  nature  of  their  contents.  Shippers 
concealing  this  in  such  cases  will  be  held  responsible 
for  any  damage  resulting. 

Received  this  day  of  ,  A.  D.  ,  of 

{consignor  or  shipper's  natne),  the  following  articles 
to  forward,  subject  to  the  above  conditions. 

Marked . 

Number  and  description  of  packages. 
(Signed) 
Company's  name  by  agent. 
BUI  of  liading^-— Domestic. 
With   Invoice. 
The Railroad. 

Coal  oil,  friction  matches,  and  gunpowder  will  be  re- 
ceived for  transportation  on  Mondays  only  until  4  p.  M. 
Packages  containing  these  and  all  similar  freight  re- 
quiring extra  caution,  such  as  acids,  turpentine,  benzine, 
naphtha, etc.,  must  be  marked  so  as  to  plainly  show  the 
nature  of  their  contents.  Shippers  concealing  this  in 
such  cases  will  be  held  responsible  for  any  damage 
resulting. 

When  goods  for  more  than  one  mark  are  comprised 
in  one  dray-load,  separate  receipts  must  be  sent  for 
each. 

Received  (^place) ,  this day  of  ,  at 


Il6 


BAILMENTS. 


— — ,  ot  (consignor  or  shipper's  name),  the  follo^Aring 
articles,  contents  and  conditions  unknown. 

Marked . 

To  be  carried  to  and  delivered  ,  at  

Station,  upon  the  terms  and  according  to  the 
agreement  as  specified  on  the  back  of  this  receipt 
'set  forms  below). 

Number  and  description  of  packages. 

(JSigned)  A.  A. 

For  the  Company. 

Invoice. 

To .  Place ,  Date . 

,    Receive  and  forward,  subject  to  conditions  of 
pMll  of  lading  attached,  as  follo^vs : 
I    Marks . 

Number  and  description  of  packages.    |    Weight. 
S.  "R.,  Shipper. 

Bill  of  liRdlng:— Domestic. 

The Railroad  Company. 

IVay  Freight. 

Place ,  Date . 

Received  oi  {consignor  or  shipper^ s  moiie). 
{Specify  articles  or  goods,  bundles,  bales,  barrels, 
tic.) 

Marked  ,  to  be  transported  to ,  and  de- 
livered   to  ,  or    order,  upon    the    following 

terms : 

1.  The  Company's  liability  is  not  to  commence  until 
the  goods  are  actually  received  and  ready  for  transpor- 
tation, and  it  is  to  terminate  on  delivery  at  the  Com- 
pany's wharf  or  depot,  or  such  other  convenient  place 
as  they  may  provide  for  that  purpose,  or  (if  not  sooner 
removed)  shall  terminate,  without  notice  or  demand,  at 
the  end  of  six  working  hours  after  they  are  ready  for 
delivery  at  such  point  or  place,  and  if  not  removed 
within  that  time  they  may  be  either  held  or  stored  at  the 
sole  risk  and  expense  of  the  owner,  or  whom  it  may 
concern,  and  without  insurance. 

2.  In  the  case  of  goods  to  be  forwarded  beyond  this 
Company's  line  their  liability  is  to  extend  only  to  their 
own  portion  of  the  route  over  which  the  goods  are  to  be 
transported. 

3.  Except  when  their  agents  are  guilty  of  gross  negli- 
gence, this  Company  is  not  to  be  responsible  for  injuries 
to  goods  that  may  arise  from  the  dangers  of  the  seas  or 
railroad,  canal,  river  or  lake  transportation,  or  from 
providential  or  other  unavoidable  cause,  or  from  fire,  or 
from  the  effects  of  heat  or  cold,  or  from  the  perishable 
eharacter  or  fragility  of  the  goods  themselves,  such  as 
furniture  or  castings;  or  from  defective  package,  such 
as  loss  of  contents  of  packages  covered  with  cloth, 
injuries  from  breakage  of  glaijs  or  other  brittle  ware, 
leakage  of  liquids,  escape  of  grain,  or  other  small  arti- 
cles from  bags,  decay,  rust  on  iron,  deterioration,  loss 
of  'feight  by  natural  causes,  etc.,  or  for  changes  of  the 
market  during  the  period  of  transportation. 

4.  Claims  for  loss  or  damage  shall  be  made  in  writing 
immediately,  and  if  delayed  for  more  than  ten  days 
arter  the  delivery  of  the  article,  or  after  due  time  for  the 
delivery  thereof,  the  Company  shall  not  be  liable.  In 
case  of  loss  or  damage  to  any  of  the  goods  herein  men- 
tioned, for  which  this  Company  would  be  liable,  it  is 
agreed  that  they  shall  have  the  benefit  of  any  insurance 
that  may  have  been  or  may  be  effected  on  said  goods, 
and  shall  in  no  case  be  answerable  over  ti  the  insurers. 

5..  In  pursuance  of  a  law  of  New  Jersey,  pa.ssed 
March  loth,  1853.  authorizing  Railroad  Companies  to 
limit  their  responsibility  for  5^00  for  every  100 pounds  of 
goods,  unless  additional  compensation  be  paid,  it  is 
agreed  that  this  Company  are  not,  in  any  case,  to  be 
liable  for  more  than  a  dollar  a  pound  for  the  loss  or 
damage  to  the  goods  carried  under  this  agreement. 

6.  In  the  case  of  goods  received  for  transportation 
from  connecting  lines,  this  Company  shall  have  the 
benefit  of  any  exemptions  from  liability  stipulated  for  in 
the  bills  of  lading  given  to  the  shipper  or  consignor. 

7.  The  goods  herein  referred  to  shall  be  subject  to  a 
Ken,  and  may  be  retained  for  freight  and  charges  on 
other  goods,  due  from  the  party  on  whose  account  they 
arc  transported,  as  well  as  for  freight  and  charges  on 
the  goods  retained. 

Not  negotiable.  (Signed)  A.  A. 

For  the  Company. 
InTolce. 

To .  Place ,  Date . 

Receive  and  forward,  subject  to  the  conditions 
•f  bill  of  lading,  from . 


Marked . 

For . 

\Veighing . 

Measuring . 

8.  Vi.,  Shipper. 
Bill  of  l.adin«r— Domestic 

The Railroad  Company. 

Received  at  ,  this  day  of ,  of 

the  following  articles,  contents  and  condition^ 
unknown,  to  be  carried  and  delivered  on  the 
terms  and  according  to  the  agreement  as  speci- 
fied on  the  back  of  this  receipt. 

Marked . 

Number  and  description  of  packages  : . 

Agreement. 
It  is  agreed,  and  is  part  of  the  consideration  of  thi« 
contract. 

1.  That  all  goods  received  for  transportation  shall  be 
properly  packed,  and  distinctly  marked  with  the  name 
of  the  consignee  and  the  station  where  consigned  ;  they 
shall  also  be  accompanied  by  an  invoice,  stating  date, 
weight,  amount,  value,  and  to  whom  consigned. 

2.  That  the  Company  shall  not  be  responsible  for  the 
melting  of  ice,  decay  or  injury  to  perishable  articles 
from  heat  or  cold,  or  for  any  loss,  injury,  or  damage 
from  the  danger  of  railroad  transportation,  explosions, 
fire  in  stores,  depots,  or  in  transit  leakage,  breakage, 
theft,  or  from  any  cause  whatever,  unless  the  same  be 
proved  to  have  occurred  from  the  fraud  or  gross  negli- 
gence of  said  Company  or  their  servants;  nor  in  any 
event  beyond  the  sum  of  fifty  dollars,  unless  otherwise 
herein  expressed  ;  nor  liable  for  any  damage  to  glass  or 
fragile  articles,  unless  herein  specially  insured.  And 
when  goods   are   intrusted    to   any  other  company  or 

agent   (which   said Railroad   Company  is  hereby 

authorized  to  do\  such  company  or  person  so  selected 
shall  be  regarded  exclusively  as  the  agent  of  the  owner, 
and  as  such  alone  liable:  and  the Railroad  Com- 
pany shall  not  in  any  event  be  responsible  for  the  negli- 
gence or  non-performance  of  any  such  company  or  per- 
son ;  nor  in  any  event  shall  the Railroad  Company 

be  liable  for  any  loss  or  damage,  imless  the  claim  there- 
for shall  be  presented  to  them  in  writing,  at  their  office, 
within  thirty  days  after  the  time  when  said  property  has 
or  ought  to  have  been  delivered.  The  goods  transported 
shall  be  subject  to  a  lien — and  may  also  be  retained — for 
all  arrearages  of  freight  due  on  other  goods  by  the  same 
consignee  or  owner. 

3.  Storage  will  be  charged  on  goods  allowed  to  remain 
over  twenty-four  hours  in  the  Company's  depots  or 
warehouses. 

4.  Articles  requiring  cooperage  will  be  charged  there- 
with. 

5.  Gunpowder,  gun-cotton,  friction  matches,  and  like 
combustibles  are  not  received  or  transported  except  by 
special  contract  to  be  made  with  the  General  Freight 
Agent.  The  Company's  agents  are  authorized  to  open 
any  packages  supposed  to  contain  the  same,  and  the 
parties  offering  them  under  false  invoices  will  be  prose- 
cuted according  to  law. 

6.  Goods  at  private  turnouts  shall  be  at  the  owner's 
risk  until  attached  to,  and  after  they  are  detached  from, 
the  train. 

7.  All  articles  will  be  at  the  risk  of  the  owners  at  the 
several  "  way  stations "  and  platforms  where  depot 
buildings  have  not  been  established  by  the  Company, 
from  the  moment  such  articles  are  delivered  from  the 
cars  as  directed  or  marked. 

8.  The  responsibility  of  the  Company  under  this  bill 
of  lading  to  commence  upon  the  shipment  of  the  goods 
from  this  station,  and  to  terminate  when  unloaded  from 
the  cars. 

9.  Machinery,  furniture,  stoves,  agricultural  imple- 
ments, and  all  similar  articles,  when  not  packed  in 
boxes,  will  always  be  at  owner's  risk  of  breakage  from 
handling  or  any  other  cause. 

Not  negotiable. 

A.  A.,  Receiving  Agent. 

IiiTOlce. 

The Railroad  Company. 

Place ,  Date . 

Receive  and  forward,  subject  to  the  conditions 
on  back  of  receipt. 

Received  of . 

Marked . 

Number  and  description  of  packages: . 

S.  R.,  Shipper. 


BAILMENTS. 


117 


Bill  of  liRdins'— Domestic. 

The Railroad  Company. 

When  goods  for  more  than  one  mark  are  comprised  in 
one  dray-load,  separate  receipts  must  be  sent  for  each. 

Through  and  Local  Freight  will  not  be  received  after 
6  o'clock  p.  M. 

All  freight  must  have  the  name  of  the  station  at 
winch  it  is  to  be  delivered //ii/«^  marked  on  the  pack- 
ages and  on  this  receipt. 

Place ,  date . 

Received  of  (consignor  or  shipper's  name). 

Number  and  description  of  goods,  etc., . 

Marked . 

To  be  transported  to ,  and  delivered  to , 

or  order,  upon  the  terms  and  according  to  the 
agreement  as  specified  on  the  back  of  this  receipt. 

Agreement. 
It  is  agreed,  and  is  part  of  the  consideration  of  this 

contract : 

1.  That  all  goods  received  for  transportation  shall  be 
properly  packed  and  distinctly  marked  with  the  name 
of  the  consignee,  and  the  station  where,  and  to  whom 
consigned. 

2.  That  the Railroad  Company  shall  not  be  re- 
sponsible for  the  melting  of  ice  :  decay  or  injury  to  per- 
ishable articles  from  heat  or  cold  ;  or  for  any  loss,  injury, 
or  d:»mage  from  the  dangers  of  railroad  transportation, 
explosions,  fire  in  stores,  depots,  or  in  transit,  leakage, 
breakai;e,  theft,  or  from  any  cause  whatever,  unless  the 
same  be  proved  to  have  occurred  from  the  fraud  or  gross 
negligence  of  said  Company  or  its  servants  ;  nor  liable 
for  any  damage  to  glass  or  fragile  articles,  imless  herein 
specially  insured.    And  when  g)ods  are  intrusted  to  any 

other  company   or   person   (which  said  Railroad 

Company  is  hereby  authorized  to  do'^,  such  company  or 
person  so  selected  shall  be  regarded  exclusively  as  the 
agent  of  the  owner,  and  as  such  alone  liable;  and  the 
Railroad  Company  shall  not  in  any  event  be  re- 
sponsible for  the  negligence  or  non-performance  of  any 
such  company  or  person ;  nor  in  any  event  shall  the 

Railroad  Company  be  liable  for  any  loss  or  damage 

unless  the  claim  therefor  shall  be  presented  to  them  in 

writing  at  the  office  of  said  Company  in  ,  within 

five  days  after  the  time  when  said  property  has  or  ought 
to  have  been  delivered.  The  goods  transported  shall 
be  subject  to  a  lien — and  may  also  be  retained — for  all 
arrearages  of  freight  and  charges  due  on  other  goods  by 
the  same  consignee  or  owner. 

Freight  to  be  paid  upon  the  weight  of  goods  as  ascer- 
tained by  the  Company's  scales. 

3.  Storage  will  be  charged  on  goods  allowed  to  remain 
over  twenty-four  hours  in  the  depots  or  warehouses  of 
said  Company. 

4.  Articles  coopered  will  be  charged  therewith. 

5.  Gunpowder,  gun-cotton,  friction  matches,  and  like 
combustibles  are  not  received  or  transported  under  this 
contract. 

6.  Goods  at  private  turnouts  shall  be  at  the  owner's 
risk  >mtil  attached  to  and  after  they  are  detached  from 
the  train. 

7.  All  articles  will  be  at  the  risk  of  the  owners  at  the 
several  "way  stations"  and  platforms  where  depot 
buildings  have  not  been  established  by  the  Company, 
from  the  moment  such  articles  are  delivered  from  the 
cars  as  directed  or  tnarked. 

8.  Freight  carried  by  this  Company  must  be  removed 

from  the  station  at  during  business  hours  on  the 

dav  of  its  arrival,  or  it  maybe  stored  at  owner's  risk 
and  expense,  and  in  the  event  of  its  destruction  or  dam- 
age from  any  cause  while  in  the  depot  of  the  Company, 
't  is  agreed  that  said  company  shall  not  be  liable  to  pay 
any  damages  therefor. 

9  The  responsibility  of  the  Company  under  this  bill 
of  lading  to  commence  upon  the  shipment  of  the  goods 
from  this  station,  and  to  terminate  when  unloaded  from 
the  cars. 

Machinery,  furniture,  stoves,  agricultural  implements, 
and  .ill  similar  articles,  when  not  packed  in  boxes,  will 
always  be  at  owner's  risk  of  breakage  from  handling  or 
any  other  cause. 

A.  A. ,  Agent. 
Invoice. 

Place ,  date . 

The Railroad  Company. 

Receive  and  forward,  subject  to  the  conditions 

of  bill  of  lading,  from  ,  to  .     (State  what.) 

Marked . 

fot .  S.  R. ,  Shipper. 


Bill  or  I.adinK— Bomestie. 

The Railkoad  Company. 

Place ,  date , 

Received  of  'consignor  or  sliipper' s  name). 

Number  and  description  of  packages. 

Marked ,  Freight,  $ . 

To  be  transported  to ,  and  delivered  to  (con 

signee's  navie),  or  order,  to  be  by  us  forwarded  to 
(state  where),  by  (state  whom),  or  if  by  (him  or  them ; 
refused  to  be  sent,  by  any  other  direct  and  con- 
venient route,  upon  the  follov/nig  terms,  on  pay- 
ment of  freight,  as  hereinbefore  specified. 
It  is  agreed,  and  is  part  of  the  consideration  of  this 

contract : 

1.  That  all  goods  received  for  transportation  shall  be 
properly  .racked,  and  distinctly  marked  with  name  of 
consignee,  and  the  station  where,  and  to  whom  coi»i 
signed. 

2.  That  the Railroad  Company  shall  not  be  re- 
sponsible for  the  melting  of  ice;  decay  or  injury  to 
perishable  articles  from  heat  or  cold ;  or  for  any  less, 
injury,  or  damage  from  leakage,  breakage,  or  for  any 
cause  whatever,  unless  the  same  be  proved  to  have  oc- 
curred from  the  fraud  or  gross  negligence  of  said  Com- 
pany or  its  servants  :  nor  liable  for  any  damage  to  glass 
or  fragile  articles,  imless  herein  specially  insured  :  nor 
in  any  event  shall  this  Company  be  liable  for  any  dam- 
age, unless  the  clnim  shall  be  presented  to  them  in  writ- 
ing, at  the  office  of  .said  Company,  within  ten  days  after 
the  time  when  the  said  property  has  or  ought  to  have 
been  delivered.  Nor  will  the  Company  be  responsible 
for  any  goods  lost,  stolen,  or  damaged,  beyond  the  value 
of  fifty  dollars  per  package,  unless  the  value  is  disclosed 
and  receipted  for.  The  goods  transported  shall  be  sub- 
ject to  a  lien — and  may  also  be  retained — for  all  arrear- 
ages of  freight,  and  charges  due  on  other  goods  by  the 
same  consignee  or  owner.  When  goods  are  intrusted  to 
any  other  railroad  or  transportation  company  (which  is 
hereby  authonzedi,  such  company  so  selected,  shall  be 
regarded  exclusively  as  the  agent  of  the  owner,  and  as 
such  alone  liable :  and  the  Company  shall  not  in  any 
event  be  responsible  for  the  negligence  or  non-perform- 
ance of  any  such  company. 

Freight  to  be  paid  upon  the  weight  of  goods  as  ascer- 
tained by  the  Company's  scales. 

3.  Storage  will  be  charged  ongoods  allowed  to  remaik 
over  twenty-four  hours  in  the  depots  or  warehouses  of 
said  Company. 

4.  Articles  coopered  will  be  charged  therewith. 

5.  Gunpowder,  gun-cotton,  friction  matches,  and  like 
combustibles,  are  not  received  or  transported  under  this 
contract. 

6.  Goods  at  private  turn-outs  shall  be  at  the  owner's 
risk  until  attached  to  and  after  they  are  detached  from 
the  train. 

7.  All  articles  will  be  at  the  risk  of  the  owners,  at  the 
several  "way  statit'ns"  and  platforms,  where  depst 
buildings  have  net  been  established  by  the  Company, 
from  the  moment  such  articles  are  delivered  from  the 
cars  as  directed  or  marl-;ed. 

8  The  responsibility  of  the  Company  under  this  bill 
of  lading  to  commence  upon  the  shipment  of  the  goods 
from  this  station,  and  to  terminate  when  unloaded  from 
the  cars. 

9.  In  pursuance  of  a  law  of  New  Jersey,  passed 
March  loth,  1853,  authorizing  railroad  companies  to 
limit  their  responsibilities  to  Sioo  for  every  100  pounds 
of  goods,  unless  additional  compensation  be  paid,  it  is 
agreed  that  this  Company  is  not,  in  any  case,  to  be  lia- 
ble for  more  than  a  dollar  a  pound  for  the  loss  or  damage 
to  the  goods  imder  this  agreement. 

Machinery,  furniture,  stoves,  agricultural  implements, 
and  all  similar  articles,  when  not  packed  in  boxes,  wilt 
always  be  at  the  owner's  risk  of  breakage  from  handling 
or  any  other  cause 

For  the  Company.                     A.  A. 
Invoice. 
To  the .  Place ,  Date . 

Receive  and  forward,  subject  to  the  conditiona 
of  bill  of  lading,  from .    (State  what.) 

Marked .     For . 

Weighing pounds. 

Measuring cubic  feet. 

Freight  paid  (or  collect)  $ . 

S.  Yt..,  Shipper. 
Bill  of  Tiadine— Bomestic   or  Foreig^n. 
Merchandise  by  Saiiing,  etc..  Vessel. 

Shipped  in  good  order  and  condition,  by  A.  ■■ 


liS 


BAILMENTS. 


ft  Co.,  in  and  upon  the  (kindef  vesstt),  called  the 
{name  of  vessel),  v/hercot (name  of  tnas/er)  is  mas- 
ter for  this  present  voyage,  and  now  lying  in  the 
port  of ,  and  bound  for  (state  destination). 

( Describe  goods. ) 

Being  marked  and  numbered  as  per  margin, 
and  are  to  be  delivered  in  the  like  good  order  and 
condition  at  the  port  of  (state  destination  ag-ain), 
(the  dangers  of  the  seas,  fire  and  collision  only  excepted) 
unto  (consignee' s  name),  or  to  his  (or  their)  assigns, 
he  or  they  paying  freight  on  the  said  merchandise 
at  the  rate  of ,  and  average  accustomed. 

In  witness  whereof,  the  master  or  purser  of  the 
said  ship  or  vessel  hath  affirmed  to  two  bills  of 
lading  of  this  tenor  and  date,  one  of  which  being 
accomplished  the  other  to  stand  void. 

Weight  and  contents  unknown. 

Slarg'inal  Invoice. 

Draft  of  vessel  as  loaded : 

feet, in.  forward ;  feet, in.  aft. 

bushels.    quarters. 

@ s. d.  per  quarter. 

Freight,  £ . 

Total,  £ . 

Dated  at ,  this day  of . 

(Signed)  M.  R. 

Bill  of  liadin^— Domestic  or  Forelsrn. 

Barrels,  etc.     General  Form — Sailing  Vessel,  etc. 

Shipped  in  good  order  and  condition,  by  A.  B. 
&  Co.,  on  board  the  (kind  of  vessel)  called  the 
{name  of  ziessel^,  whereof  (name  of  master)  is  mas- 
ter for  this  present  voyage,  and  now  lying  in  the 
port  of ,  and  bound  for  {state  destination  again). 

(Describe  goods.) 

Which  are  marked  and  numbered  as  per  mar- 
gin, and  are  to  be  delivered  in  like  good  order  and 
condition  at  the  aforesaid  ^OTtoi (state  destination) , 
(the  dangers  of  the  seas,  fire  and  collision  only  excepted) 
unto  (consignee' s  name),  or  to  his  (or  their)  assigns, 
he  or  they  paying  freight  upon  the  said  merchan- 
dise at  the  rate  of shillings pence  per 

gallons  (gross  gauge),  delivered  with  five  per  cent, 
primage  and  average  accustomed. 

tn  witness  whereof,  the  master  or  purser  of  the 

■aid  vessel  hath  affirmed  to  bills  of  lading, 

all  of  this  tenor  and  date,  one  of  vtrhich  being  ac- 
complished the  rest  to  stand  void. 
IVarg'lnal  Invoice. 


Shipping  Marks. 


Brands. 


Bbls. 


Total  No.  bbls. . 

gallons  (gross  gauge.) 

payable  bbls. ,  @ s. d.  per galls. 

Freight,  £ . 

Primage,  5  per  cent.,  t . 

Total,  £ . 

Gauge  and  contents  unknown ;  not  accounta- 
ble for  leakage  or  breakage. 

Freight  payable  on  barrels  delivered  full,  part 
full,  or  empty. 

Dated  at ,  this day  of . 

(Signed)  M.  R. 

Bill  of  I^adin;;^— Foreign  or  Domestic. 

Shipped  in  good  order  and  condition  by  (state 
whom),  on  board  the  (kind  of  vessel),  called  the 
(name  vessel),  whereof  (name  tf  master)  Is  master, 

now  lying  in  the  port  of ,  and  bound  for  (state 

destination). 

(Describe  goods.) 

Being  marked  and  numbered  as  in  the  margin, 
and  to  be  delivered  in  the  like  good  order  and 
condition,  at  the  aforesaid  port  of  (state  destination 
again),  (the  dangers  of  the  seas,  fire  and  collision  ex- 
cepted), unto  (consignee's  name),  or  to  his  (or  their) 
assigns,  he  or  they  paying  freight  for  the  said 

goods,  in  U.  S.  currency,  at  the  rate  of ,  with 

per  cent,  primage  and  average  accustomed. 

In  witness  whereof,  the  master  or  agents  of  the 
said  vessel  hath  affirmed  to  (give  number)  bills  of 
lading,  all  of  this  tenor  and  date ;  one  Of  which 
being  accomplished  the  others  to  stand  void. 

Not  accountable  for  leakage,  breakage,  cooper- 
age or  rust.     Weights  and  contents  unknown. 

To  be  received  alongside  within  reach  of  ves- 
sel's tackles. 

Lighterage,  if  any,  at  the  expense  and  risk  of 
•onsignces. 


IWarfrinal  Invoice. 

Marks  and  numbers, .    Freight, .    Pri 

mage, .) 

Dated  at ,  the day  of . 

(Signed)  M.  R. 

Bill  of  liading— Forelgrn  or  Domestic. 

Cork  for  Orders — Sailing  Vessel,  etc. 

Shipped  in  good  order  and  condition,  by  A.  B. 
&  Co.,  in  and  upon  the  (kind  of  vessel)  called  the 
(name  of  vessel),  whereof  (name  of  master)  is  mas- 
ter for  this  present  voyage,  and  now  lying  in  the 

port  of ,  and   bound  for  Cork  («)r  Falmouth,  or 

Queenstown,  or  Plymouth,  etc.)  for  orders. 

(Describe  goods.) 

Being  marked  and  numbered  as  per  margin, 
and  are  to  be  delivered  in  the  like  good  order  and 
condition  at  the  port  of  ultimate  destination  (the 
dangers  of  the  seas,  fire  and  collision  only  excepted)  unto 
(consignee's  name),  or  to  his  (or  their)  assigns,  he  or 
they  paying  freight  on  the  said  merchandise,  as 
per  terms  and  conditions  of  charter  party,  dated 
the day  of ,  and  fulfilling  all  other  condi- 
tions thereof. 

In  witness  whereof,  the  masteror  purser  of  said 
ship  or  vessel  hath  affirmed  to  two  bills  of  lading, 
of  this  tenor  and  date,  one  of  which  being  accom- 
plished the  other  to  stand  void. 

Marginal  Invoice. 

Marks, .     Bushels, .    quarters. 

Weight  and  contents  unknown. 

Dated  in ,  this day  of . 

(Signed)  M.  R. 

lay-days  were   used   in  loading  vessel  at 

,  leaving  lay-days  for  discharging  cargo 

at  the  port  of  discharge  and  awaiting  orders  at 
port  of  call. 

Bill  of  liading-— Domestic. 

Place ,  Date . 

Shipped  hy  (state  7vkom)  in  apparent  good  ordes 

on  board  the  steamship ,  with  leave  to  trans 

fer  to  any  other  steamship  of  the  line,  and  bound 

for ,  with  liberty  to  call  at  any  port  or  ports, 

for  whatever  purpose. 

(Describe  goods.) 

Marked  and  numbered  as  per  margin,  and  to 
be  delivered  in  like  apparent  good  order  at  . 

The  acts  of  God,  war  or  the  enemy,  restraint  of  gov- 
ernments, fire  while  on  board  the  vessel,  at  sea,  in  port, 
or  on  shore,  accidents  from  machinery,  boilers,  steam, 
or  any  other  accidents  of  the  seas,  rivers  and  steam  nav- 
igation, of  whatsoever  nature  or  kind,  excepted,  and 
with  liberty  to  sail  with  or  without  pilots,  and  tow  and 

assist  vessels  in  all  situations,  unto ,  or  assigns,  he 

or  they  paying  freight  therefor,  as  per  tariff,  and  charges 
as  per  margins,  in  bankable  money. 

Weights,  contents  and  condition  of  packages  being 
unknown,  no  responsibility  is  assumed  therefor,  nor  wiU 
the  company  be  responsible  for  cooperage  or  mending, 
loss  in  weight,  leakage, breakage,  or  rust ;  nor  for  frost, 
heat,  natural  decay  of  goods,  or  unavoidable  exposure 
to  weather  ;  nor  for  the  value  of  above  merchandise,  if 
all  or  part  of  it  be  taken  out  of  the  possession  of  this 
line,  by  process  or  color  of  law,  the  snipper  having  re- 
ceived notice  of  the  fact ;  nor  for  goods  not  specified  in 
this  bill  of  lading.  Goods  to  be  taken  from  the  wharf 
immediately  after  the  arrival  of  the  steamer,  otherwise 
they  will  be  stored  at  the  owner's  expense,  and  at  his 
risk  of  fire,  loss  or  injury,  in  the  warehouse  designated 
by  the  agent.  And  it  is  further  agreed,  that  the  receipt 
or  possession  of  this  bill  of  lading  by  the  owner,  shipper, 
consignee  or  agent  of  either  or  all  of  them,  shall  be 
deemed  sufficient  proof  of  their  knowledge  of  and  agree- 
ment to  the  foregoing. 

Itfarsrinal  Invoice,  etc. 

The  goods  herein  referred  to  shall  be  subject  to  a  lien^ 
and  may  be  retained  for  freight  and  charges  on  othei 
goods,  due  from  the  party  on  whose  account  they  ar« 
transported,  as  well  as  for  freight  and  charges  on  th* 
goods  retained 

No  claims  for  loss  or  damage  allowed,  unless  notified 
thereof  at  the  time  of  the  delivery  of  the  goods,  nor  will 
any  package  be  estimated  to  contain  artic.  .ti  of  more 
value  than  8100,  unless  specially  certified  to  the  contrary 
when  shipped. 

Marks  and  numbers, . 

Freight,  $ . 

Charges,  $ k  A.  A.,  for  Agent*. 


BAILMENTS. 


119 


BUI  of  I<adlii(r— Forel^m. 

Place ,  Date  ■; . 

Shipped  by  {consignor  or  shipper's  name\,  in  ap- 
parent good  order,  on  board  the  steamship . 

(Describe  goods.) 
U nto  ( give  destination). 

Marked  and  numbered  as  per  margin,  with  liberty  to 
ship  by  or  transfer  to  any  other  boats  of  the  line,  to  call 
for  any  purpose  at  any  port  or  ports,  going  or  returning, 
to  sail  with  or  without  pilots,  to  tow  and  assist  vessels 
in  all  situations,  and  to  stop  at  any  wharves  or  landings 

at  or  between  the  ports  of and  ,  or  other  ports 

between  or  in  the  vicinity  thereof.  To  be  delivered,  un- 
less the  same  be  taken  out  of  possession  by  process  or 
color  of  law,  in  like  apparent  good  order  (the  acts  of 
God,  war  or  the  enemy,  restraint  of  government,  colli- 
r.ion,  fire  whilst  on  board  the  vessel  or  at  sea,  in  port,  or 
on  shore  awaiting  shipment  or  delivery,  piracy,  robbery, 
theft  and  detention,  accidents  of  the  seas,  rivers,  inland 
and  steam  navigation  of  every  nature  and  kind  ex- 
cepted) on  wharf  of  this  line  at  the  port  of ,  upon 

surrender  of  this  bill  of  lading,  and  payment  in  bank- 
able money  of  freight  and  charges  thereon,  and  all  ar- 
rearages of  freight  and  charges  upon  other  goods  due  by 
the  same  consignees  or  owners  ;  or  if  the  marks  indicate 
a.  destination  to  a  point  beyond  said  port,  to  a  connect- 
ing company  or  companies  to  be  transferred  and  deliv- 
ered by  it  or  them  to  such  person  or  persons  upon  such 
surrender  and  payment  as  aforesaid. 

Upon  the  following  conditions :  In  cases  where  the 
marks  in  margin,  as  above,  indicate  an  ultimate  destina- 
tion beyond  the  port  of ,  this  line  is  authorized  to 

deliver  the  goods  from  their  wharf  as  above,  notwith- 
standing anything  hereinbefore  mentioned,  to  any  con- 
necting steamboat,  railroad,  transportation,  express  or 
forwarding  companies  or  agents,  to  be  transported  to 
such  ultimate  point,  and  delivered  by  them  to  the  per- 
son or  persons  above  named ;  which  companies  or 
agents  so  selected  shall  be  regarded  exclusively  as  the 
owner  or  consignee's  agent,  entitled  to  the  benefit  of  the 
conditions  and  provisions  of  this  and  of  their  own  bill 
of  lading,  if  any,  given  therefor,  and  of  all  insurance. 
In  cases  of  loss,  detriment  or  damage  to  the  goods,  the 
transportation  company  in  whose  actual  custody  they 
shall  be  at  the  time  of  its  occurrence  shall  alone  be  re- 
sponsible therefor.     This  line  shall  not  be  liable  beyond 

the  port  of ,  though  it  may  have  fixed,  charged  or 

received  a  through  rate  of  freight,  and  may  have  deliv- 
ered the  goods  as  above  provided,  to  be  transported  to 
such  ultimate  point. 

This  line  is  not  responsible  for  the  goods  while  on  the 
pier  or  wharf  awaiting  shipment,  nor  after  they  have 

been   discharged  upon   the   wharf  at  the  port  of . 

Transportation  companies  taking  possession  of  them  for 
delivery  to  any  place  beyond  are  not  responsible  after 
their  arrival  at  their  wharf,  depot  or  station  at  such 
place.  The  goods  shall  be  received  by  the  consignee  or 
owner  at  the  ultimate  port  of  delivery,  package  by  pack- 
age, and  if  not  taken  away  during  the  day  of  their  ar- 
rival, may,  at  the  option  of  this  line,  or  at  that  of  such 
other  company,  be  sent  to  store,  or  be  permitted  to  lay 
where  landed,  or  be  returned  to  the  port  of  shipment, — 
all  at  the  expense  and  risk  of  the  owner,  shipper  or 
consignee. 

No  responsibility  will  be  assumed  forgold,  silver,  pre- 
c.ous  stones  or  metals,  jewelry  or  treasures  of  any  kind, 
pictures,  plate-glass,  china,  glass  or  statuary,  unless 
bills  of  lading  are  signed  therefor,  in  which  their  nature 
and  value  are  expressed,  nor  for  goods  not  specified  in 
this  bill  of  lading,  nor  for  any  package  beyond  the  value 
of  Sioo,  unless  another  valuation  be  in  such  bill  of  lading 
declared. 

All  claims  for  damage  to  goods  must  be  adjusted  in 
;he  presence  of  an  officer  of  the  company  having  the 
;ame  then  in  custody  before  they  are  removed  from  the 
station  or  wharf.  Their  value,  unless  they  shall  subse- 
quently have  fallen  in  price,  shall  be  taken  to  be  their 
value  or  cost  at  the  place  and  time  of  shipment.  Unless 
written  demand  for  damage  done  shall  be  made  upon  the 
company  liable  therefor,  or  upon  the  company  which 
actually  delivred  the  goods,  within  ten  days  after  de- 
livery, it  shall  be  taken  to  have  been  waived,  and  no  suit 
thereafter  shall  be  brought  to  recover  the  same. 

Weights,  contents  and  condition  of  packages  being 
unknown,  no  responsibility  therefor  is  assumed.  There 
shall  be  no  liability  for  cooperage  or  mending,  for  loss  in 
weight,  for  leakage,  breakage,  sweat  or  rust,  nor  for 
frost,  heat,  natural  decay  of  goods,  or  unavoidable 
exposure  to  weather.     Varnish,  turpentine,  camphene. 


burning  fluid,  or  inflammable  goods  of  any  descriptioa, 
on  deck  only,  and  in  all  cases  to  be  at  owner's  risk. 

And  it  is  further  expressly  stipulated,  that  in  case  the 
steamship  shall  be  detained  at  the  quarantine,  and  be 
there  obliged  to  discharge  the  articles  named  in  this  bill 
of  lading,  that  all  risk  and  liability  to  the  steamship  or 
to  the  owners  thereof,  shall  cease,  and  the  obligations 
of  the  steamship  under  this  bill  of  lading  be  deemed  to 
have  been  fully  accomplished,  when  the  articles  shall 
have  been  delivered  from  the  tackles  of  the  steamship, 
and  all  risks  and  expenses  incurred  thereafter  shall  be  on 
account  of  the  aforesaid  owner,  shipper  or  consignee. 

The  acceptance  of  this  bill  of  lading  is  an  agreement 
on  the  part  of  the  owner  of  the  goods  to  abide  by  all  il* 
stipulations,  exceptions  and  conditions. 

In  witness  whereof  (^^w««w//J(rr)  bills  of  lading, 
all  of  this  tenor  and  date,  have  been  signed,  one 
whereof  being  accomplished  the  others  to  stand 
void. 

Rates  guaranteed  only  from to per  xo« 

lbs.  A.  A. 

For  the  parties  in  interest  severally  but  not  jointly. 

Marks  and  numbers. 


If       I      If 
ist  class  2d  class 


If 

3d  class 


If 

4th  class 


If 

5th  class 


If 

6th  class 


Freight,  $ . 

Charges,  $ . 

Insurance,  $ . 

Bill  of  leading:— Foreign. 

Shipped  in  apparent  good  order  and  condition 

by  {consignor  or  shipper's  name)  in  and  upon  the 

steamship  called  the ,  now  lying  in  the  port 

of ,  and  bound  for ,  with  option  to  call  a^ 

,  or  other  intermediate  ports. 

{Description  of  goods. ) 

Which  are  marked  and  numbered  as  in  the  margin, 
and  are  to  be  delivered  in  the  like  good  order  and  con- 
dition at  the  port  of (the  act  of  God,  the  king's 

enemies,  pirates,  robbers,  thieves,  vermin,  barratry  of 
master,  or  mariners,  restraints  of  princes  and  rulers,  or 
people ;  loss  or  damage  resulting  from  sweating,  leak- 
age, breakage,  rust,  decay,  rain,  spray,  loss  or  damage 
from  stowage  or  contact  with,  or  smell  or  evaporatioB 
from  any  other  goods,  inaccuracies,  obliterations  or  ab. 
sence  of  marks,  numbers,  addresses  or  descriptions  of 
goods  shipped  ;  injury  to  wrappers,  however  caused,  or 
from  any  of  the  following  perils,  whether  arising  from 
the  negligence,  default  or  error  in  judgment  of  the  pilot, 
master,  mariners,  engineers  or  other  pei-sons  in  the  ser- 
vice of  the  ship,  or  for  whose  acts  the  ship-owner  is 
liable,  or  otherwise,  howsoever,  namely,  risk  of  craft  or 
hulk  or  trans.shipment,  explosion,  heat  or  fire  at  sea.  in 
craft  or  hulk,  or  on  shore,  either  before  lading  or  after 
unlading,  boilers,  steam  or  machinery,  or  from  the  con- 
sequences of  any  damage  or  injury  thereto,  however  such 
damage  or  injury  may  be  caused,  collision,  stranding  or 
other  peril  of  the  seas,  rivers,  navigation  or  land  transit 
of  whatever  nature  or  ki  nd  soever,  and  howsoever  caused, 
being  excepted,  with  liberty  in  the  event  of  the  steamer 

putting  back  to or  into  any  port,  or  otherwise  being 

prevented  from  any  cause  from  proceeding  in  the  on'i- 
nary  course  of  her  voyage,  to  transship  the  goods  by  any 
other  steamer  or  vessel  under  and  subject  to  all  condi- 
tions and  exceptions  in  this  bill  of  lading.  All  fines, 
expenses,  losses  or  damage  which  the  ship  or  cargo  may 
incur  or  suffer  on  account  of  incorrect  or  insufficient 
marking  of  the  packages,  or  description  of  their  con- 
tents, or  dangerous  nature  thereof,  shall  be  paid  by  the 

shippers  or  consignee  [as  may  be  required  ],  and  the 

shall  have  a  lien  upon  the  goods  for  the  payment  thereof, 
and  with  liberty  to  sail,  with  or  without  pilots,  to  call  at 
any  intermediate  port,  and  to  tow  and  assist  vessels  in  all 
situations. 

Unto  (consignee's  name),  or  to  his  (or  their)  as- 
signs.    Freight  on  said  goods  to  be  paid  at  (state 

place  or  destination) ,  at  the  rate  of ,  with  5  per 

cent,  primage  and  average  accustomed. 

In  witness  whereof,  the  master  or  agents  of  the 
said  ship  hath  affirmed  to  (give  number)  bills  of 
lading,  all  of  this  tenor  and  date,  one  of  vtrhich 
bein(  accomplished  the  others  to  stand  void. 

The  goods  to  be  taken  from  alongside  by  the  con- 
signees immediately  the  vessel  is  ready  to  discharge,  or 
they  will  be  liable  to  be  landed  by  the  master  and  do- 
posited  at  the  expense  of  the  consigiiices,  and  at  theii 
risk  of  fire,  loss  or  injtuy  on  the  wh<uf,  or  m  the  war* 


no 


BAILMENTS. 


house  or  shed  provided  for  that  purpose  or  sent  to  the 
public  store,  as  the  collector  for  the  district  shall  direct, 
at  the  expense  and  risk  of  consignees.  Thecollectur  of 
the  port  being  hereby  authorized  to  grant  a  general  order 
for  discharge  immediately  after  entry  of  the  ship.  Not 
accountable  for  gold  or  silver,  manufactured  or  unman- 
ufactured, or  in  shape  of  coin,  plated  articles,  glass, 
china,  jewelry,  precious  stones,  trinkets,  watches,  time 
pieces,  mosaics,  bills,  bank  notes  of  any  country,  orders, 
notes,  or  securities  for  the  payment  of  money,  stamps, 
maps,  writings,  title  deeds,  paintings,  engravings,  pic- 
tures, statuary,  silks,  furs,  lace,  cashmere,  manufactured 
or  unmanufactured,  made  up  into  clothes  or  otherwise 
contained  in  any  parcel  or  package  shipped  under  a  bill 
of  lading,  unless  the  value  thereof  be  therein  expressed, 
and  extra  freight,  as  may  be  agreed  to,  be  paid.  In  case 
of  damage,  loss  or  non-delivery,  liability  under  this  bill 
of  lading  not  to  exceed  the  invoice  value  of  the  goods, 
and  for  that  only  if  the  goods  are  correctly  described  on 
the  bill  of  lading.  Freight  on  goods  to  order,  and  on  all 
perishable  goods  must  be  prepaid,  unless  otherwise 
agreed  upon.  Prepaid  freight  will  not  be  returned, 
goods  lost  or  not  lost.  Shippers  will  be  held  account- 
able for  all  damage  caused  by  goods  of  an  inflammable, 
explosive,  or  otherwise  dangerous  character,  shipped 
without  permission  or  without  full  disclosure  of  their 
nature,  whether  such  shippers  shall  be  aware  thereof  or 
not,  and  whether  such  shippers  shall  be  principals  or 
agents  only,  besides  incurring  the  penalty  provided  by 
the  Act  of  Congress,  1851. 

In  case  the  vessel  is  prevented  by  ice  in  the  river 

from  reaching ,  the  privilege  is  reserved  at  the  ves- 
sel's  expense,  but  without  vessel's    risk,  to  discharge 

and  store  the  within-mentioned  merchandise  at ,  or 

other  accessible  point,  in  warehouses  or  lighters,  to  be 

forwarded  as  soon  as  practicable  to ,  by  lighters  or 

rail,  at  the  vessel's  option  and  expense,  but  at  the  risk 
of  the  owners  of  the  goods. 

Merchandise  to  be  received  on  quay  at ,  and  de- 
livered therefrom  by  the  person   appointed  by  the  agent 

of  the line,  ancf  to  beat  owner's  risk  imtil  removed, 

owner  to  pay  the  expense  of  watching,  at  the  rate  of  three 
francs  for  twenty-four  hours,  and  of  delivery  charge  at 
not  exceeding  one  franc,  twenty-five  centimes  per  ton. 

Parcels  for  different  consignees,  collected  and  made 
up  in  single  packages,  addressed  to  one  party  for  deliv- 
ery in  Europe,  for  the  purpose  of  evading  the  payment 
of  freight,  will,  upon  examination  in  Europe  by  the  cus- 
toms, be  charged  the  proper  freight.  Sample  parcels 
have  best  attention,  but  no  liability  is  taken  for  delivery. 

Weight,  gauge,  contents  and  value  unknown. 

In  accepting  this  bill  of  lading,  the  shipper  or  other 
agent  of  the  owner  of  the  property  carried,  expressly 
accepts  and  agrees  to  all  its  stipulations,  exceptions  and 
conditions,  whether  written  or  printed. 
Marg^inal  Invoice. 

Tons.     Cwt.     Qrs.     Lbs. 

Freight  on ,  at  —  ^  ton,  f 

Freight  on  —  ft.  —  in.  at— fi  ton 
Primage, ^  cent. 


Stg. 


Charge  to ,  £ 

5  per  cent. 

Total,  £ Stg. 

Dated  at ,  the day  of .       — .  — ., 

For  General  Agents. 
Original  Receipt. 

Per  steamer .  Place ,  Date . 

Received  in  apparent  good  order  by ,  of , 

the  following  packages,  to  be  forwarded  subject 
to  tils  conditions  in  the  bills  of  lading. 

Conditions  :  This  is  to  be  exchanged  for  the  usual  bill 
of  lading  of  the  line,  notice  of  the  terms  of  which  is 
hereby  admitted  ;  and  this  property  is  received  subject 
to  all  the  provisions  therein  contained. 

Full  name  of  consignee  must  be  given  on  this 
receipt. 

Marked :  I 

Line.  R.  C,  Receiinng  Clerk. 

Np  bills  of  lading  will  be  signed  oa  and  after 


day  of  sailing  of  steamer  by  which  goods  undei 
this  receipt  are  shipped. 

Duplicate  Receipt. 

Per  sleamer  - — .  Place ,  Date . 

Received  of  (consignor  or  shipper' s  name). 
Full  name  of  consignee  must  be  given  on  this 
duplicate. 

Marked : 


Line. 


R.  C,  Receiving  Clerk. 


Bill  of  L.adin$;— Foreij^n. 

Shipped  in  good  order  and  in  apparent  good 
condition  by  t  consignor  or  skipper's  name},  in  An^i. 

upon  the  steamship  called  the  ,  whereof 

is  master  for  this  present  voyage,  or  whoever  else 
may  go  as  master  in  the  said  ship,  and  now  lying 

in  the  port  of ,  and  bound  for ,  with  option 

calling  at . 

Description  of  goods. 

Which  are  marked  and  numbered  as  in  the  margin, 
and  are  to  be  delivered  in  the  like  good  order  and  ap- 
parent good  condition  at  the  aforesaid  port  of ,  (The 

act  of  God,  the  public  enemy,  pirates,  robbers,  thieves, 
vermin,  barratry  of  master  or  mariners,  restraints  of 
princes  and  rulers,  or  people,  loss  or  damage  resulting 
from  insufficiency  in  the  strength  of  package,  sweating, 
breakage,  leakage,  rust,  decay,  rain,  sprr.y,  loss  or  dam- 
age from  stowage  or  contact  with  or  smell  or  evapora- 
tion from  any  other  goods  ;  inaccuracies,  obliterations  or 
absence  of  marks,  numbers,  addresses,  or  descriptions  of 
goods  shipped  ;  injury  to  wrappers  however  caused;)  or 
from  any  of  the  following  perils  (whether  arising  from 
the  negligence,  default,  or  error  in  judgment  of  the  pilot, 
master,  mariners,  engineers,  or  other  persons  in  the  ser- 
vice of  the  ship,  or  for  whose  acts  the  ship-owner  is 
liable,  or  otherwise  howsoever),  excepted ;  namely : 
risk  of  craft  or  hulk,  or  transshipment,  explosion,  heat  or 
fire  at  sea,  in  craft  or  hulk,  or  on  shore;  either  before 
lading  or  after  unlading;  boilers,  steam  or  machinery, 
or  from  the  consequence  of  any  damage  or  injury  there- 
to, howsoever  such  damage  or  injury  may  be  caused; 
collision,  stranding,  straining,  or  other  peril  of  the  seas, 
rivers,  navigation  of  whatever  nature  or  kind  soever  or 
howsoever  caused,  being  excepted:  with  liberty  in  the 

event  of  the  steamship  putting  back  into  or  into 

any  other  port,  or  otherwise  being  prevented  from  any 
cause  from  proceeding  in  the  ordinary  course  of  her 
voyage  to  transship  the  goods  by  any  other  steamship, 
under  and  subject  to  all  the  conditions  and  exceptions 
in  this  bill  of  lading.  All  fines,  expenses,  losses,  or 
damage  which  the  ship  or  cargo  may  incur  or  suffer  on 
account  of  incorrect  or  insufficient  marking  of  the 
packages  or  description  of  their  contents,  or  dangerous 
nature  thereof,  shall  be  paid  by  the  shippers  or  con- 
signees (as  may  be  required),  and  the  ship-owner  shall 
have  a  lien  upon  the  goods  for  the  payment  thereof,  and 
with  liberty  to  sail  with  or  without  pilots,  to  call  at  any- 
intermediate  port,  and  to  tow  and  assist  vessels  in  all 
situations. 

Unto  (consignee's  name),  or  to  his  {or  their)  as- 
signs, he  or  they  paying  freight  and  charges  im- 
mediately on  landing  of  the  goods,  without  any 
allowance  of  credit  or  discount,  at  the  rate  of 
,  with  primage  and  average  accustomed. 

In  witness  whereof,  the  master  or  agent  of  said 
ship  hath  affirmed  to  ( giz>e  number)  bills  of  lading, 
all  of  this  tenor  and  date  :  one  of  which  bills  being 
accomplished,  the  others  to  stand  void. 

The  master  porterage  of  the  delivery  of  th» 
cargo  to  be  done  by  the  consignees  of  the  ship, 
and  the  expense  thereof  to  be  paid  by  the  re- 
ceivers of  the  cargo.  This  bill  of  lading,  duly 
indorsed,  to  be  given  up  to  the  ship's  consignees 
in  exchange  for  delivery  order. 
.  Weight,  gauge,  contents,  and  value  unknown.  The 
goods  to  be  taken  from  alongside  by  the  consignees  im- 
mediately the  vessel  is  ready  to  discharge.  It  being 
expressly  understood  and  agreed  to  by  the  shippers,  that 
all  liability  of  said  ship,  under  this  bill  of  lading,  ceases 
as  soon  as  the  articles  named  therein  are  delivered  from 
the  tackles  of  the  ship  at  her  port  of  destination,  or 
otherwise  they  will  be  landed  by  the  master  and  i» 


BAILMENTS. 


121 


poaitcd  at  the  expense  of  the  consignees  and  at  their 
risk  of  fire,  loss,  or  injury  in  the  warehouse  or  shed 
provided  for  tiiat  purpose,  or  sent  to  the  public  store,  as 
the  collector  for  the  district  shall  direct,  and  when  de- 
posited in  the  warehouse  no  expense  for  storage  to  be 
charged  to  the  government,  and  the  keys  of  the  ware- 
bouse  or  shed  to  be  delivered  to  and  kept  in  charge  of 
the  officers  of  customs  under  direction  of  the  collector. 
The  collector  of  the  port  being  hereby  authorized  to 
grant  a  general  order  for  discharge  immediately  after 
entry  of  the  ship.  The  Company  is  not  accountable  for 
gold  or  silver,  or  other  presious  metals,  manufactured 
or  unmanufactured,  or  in  the  shape  of  coin,  plated 
articles,  glass,  china,  jewelry,  precious  stones,  trinkets, 
watches  or  clocks,  timepieces,  mosaics,  bills,  bank 
notes  of  any  country,  orders,  notes  or  securities  for 
payment  of  money,  stamps,  maps,  writings,  title  deeds, 
paintings,  engravings,  pictures,  statuary,  silks,  furs, 
face,  cashmere,  manufactured  or  unmanufactured,  made 
up  into  clothes  or  otherwise;  contained  in  any  parcel 
or  package  shipped  under  a  bill  of  lading,  nor  for  any 
tlaim,  notice  of  which  is  not  given  before  the  removal 
of  the  goods,  unless  the  value  thereof  be  therein  ex- 
pressed, and  extra  freight  to  be  paid  as  may  be  agreed 
upon,  and  not  accountable  for  any  of  the  same  articles 
when  shipped  as  passengers'  luggage,  or  otherwise  not 
under  a  bill  of  lading,  when  the  value  shall  exceed  J50, 
unless  at  the  time  of  delivery  the  value  shall  be  declared 
and  the  increased  charge  mentioned  in  the  company's 
notices  be  paid.  Not  accountable  for  loss  of  or  damage  to 
goods  which  is  capable  of  being  covered  by  insurance, 
nor  in  any  case  for  more  than  the  invoice  value  of  the 

foods,  nor  for  a»y  claim,  notice  of  which  is  not  given 
efore  the  removal  of  the  goods.  Freight  on  goods  to 
order  and  on  all  perishable  goods  must  be  prepaid  un- 
less otherwise  agreed  upon.  Prepaid  freight  will  not 
be  returned,  goods  lost  or  not  lost.  Shippers  will  be 
held  accountable  for  all  damages  caused  by  goods  of  an 
inflammable,  explosive,  or  otherwise  dangerous  charac- 
ter, shipped  without  permission,  or  without  full  disclo- 
sure of  their  nature,  whether  such  shippers  shall  be 
aware  thereof  or  not,  and  may  be  seized  and  confiscated 
or  destroyed  by  the  ship-owner  at  any  time  before  de- 
livery without  any  compensation  to  the  shippers  or  con- 
signees, whether  such  shippers  shall  be  principals  or 
agents  only,  besides  incurring  the  penalty  provided  by 
Act  of  Congress  of  1851.  The  owners  or  agents  of  the 
line  to  have  a  lien  on  these  goods,  not  only  for  the 
freight  and  charges  herein,  but  for  all  previously  unsat- 
isfied freights  and  charges  due  to  them  by  the  consignee. 
It  is  also  stipulated  that  in  case  the  whole  or  any  part 
of  the  goods  specified  herein  be  prevented  by  any 
cause  from  going  in  said  ship,  the  ship-owner  is  only 
bound  to  forward  them  by  succeeding  ships  of  this  line. 
The  ship-owner  is  not  responsible  for  any  discrepancy 
\)etween  the  contents  of  the  packages  and  the  descrip- 
tion of  the  same  in  this  bill  of  lading. 

Freight  payable  in upon  the  gross  weight  deliv- 
ered. In  accepting  this  bill  of  lading  the  shippers  or 
other  agents  of  the  owners  of  the  property  carried,  ex- 
pressly accept  and  agree  to  all  its  stipulations,  excep- 
tions, and  conditions,  whether  written  or  printed.  The 
merchandise  to  be  received  and  delivered  according  to 
the  customs  and  usages  of  the  respective  ports. 

Parcels  for  diflferent  consignees,  collected  and  made 
up  in  single  packages,  addressed  to  one  party  for  deliv- 
ery in for  the  purpose  of  evading  the  payment  of 

frrjght,  will,  upon  examination  in by  the  customs, 

be  charged   with   the  proper  freight.     Parcel  samples 

hate  best  attention,  but  no  liability  is  taken  for  delivery. 

Maris^inal  Invoice. 

Shipper's  mark  : . 

Tons.     Cwt.     Qrs.     Lbs. 

Freight  on ,  at  —  f*  ton,  £ 

Freight  on  —  ft.  —  in.  at  —  ^  ton 

Primage, f»  cent. 

£ 


Charge  to ,  £ 

5  per  cent. 

Total,  £ Stg. 

Dated  at ,  this day  of ,  A.  D. 

A.  A.,  For  General  Agents 


Stg. 


Place ,  Date > 

Per  steamer . 

Received  in  apparent  good  order  by ,  of , 

the  following  packages,  to  be  forwarded  subject 
to  the  conditions  in  the  bills  of  lading. 

Conditions  :  This  is  to  be  exchanged  for  the  usual  bill 
of  lading  of  the  line,  nbtice  of  the  terms  of  which  is 
hereby  admitted ;  and  this  property  is  received  subject 
to  all  the  provisions  therein  contained. 

Full  name  of  consignee  must  be  given  on  this 
receipt. 

Marked :  I 

Line.  R.  C,  Receiving  Clerk. 

Per  steamer . 

Place ,  Date . 

Received  oi  (consigner  or  shipper's  name.) 
Full  name  of  consignee  must  be  given  on  thifi 
duplicate. 

Marked : 


R.  C. ,  Receiving  Clerk. 


Line. 

Shippers  are  requested  to  fill  up  the  receipt  and 
duplicate. 

Course  of  Business  and  Usages  of 
Trade.  Those  who  employ  railway  com- 
panies are  bound  to  know  their  manner  of 
transacting  their  business.J  for  the  usages  of 
any  particular  trade,  such  as  are  uniform  and 
general,  are  presumed  to  be  familiar  to  all 
having  transactions  in  that  trade  or  business. 
Contracts  for  transportation  contain  by  impli- 
cation known  usages  of  the  business.'' 

Damages  and  other  Incidents.  Dam- 
ages for  total  loss  are  the  value  of  the  goods  at 
the  place  of  destination.^  If  the  goods  are 
only  damaged  the  owner  is  bound  to  receive 
them  and  the  amount  of  damage.™  Upon 
evidence  of  a  servant's  unfaithfulness  or  negli- 
gence, some  explanation  must  be  given,  or  the 
company  will  be  held  liable."  A  company  is 
liable  for  special  damages  where  they  act  in  bad 
faith,"  but  ordinarily  they  are  not  liable  for 
special  damage.?  The  consignor  owning  the 
goods  is  the  proper  party  to  sue.i  Actions  may 
be  brought  in  the  name  of  bailees,  or  agents 
who  have  the  rightful  custody  of  the  goods, 
and  who  make  the  bailment  (but  a  recovery  in 
such  cases  bars  the  claim  of  the  general 
owner),""  or  in  the  name  of  the  owner."    Where 

j-25  Wend.  660 :  S.  C.  6  Hill,  157 ;  23  Vt.  211,  12  ;  21 
Ga.  526.  k-io  "Texas,  344 :  28  Ga.  543.  I-4  Whart. 
204;  13  B.  Mon.  239,  243  ;  16  111.  408;  II  La.  An.  324; 
26  Ga.  122;  2  Head.  488;  i  Hilton,  543;  13  Ind.  164;  3 
Bosworth,  7;  4  Allen,  112;  Sedgw.  Dam.  356;  2  B.  & 
Ad.  932  ;  12  S.  &  R.  183 ;  1  Cal.  108  ;  10  Cash.  416;  i<. 
Ga.  283;  2  Gray,  564;  5  Bosw.  625;  54  Me.  376;  14. 
Mich.  489 ;  12  La.  An.  352 ;  L.  Rep.  1  C.  P.  329.  m- 
5  Rich.  462 ;  2  Kernan,  509 ;  35  N.  H.  390 ;  13  Ind.  263; 
8  Gray,  215;  23  Wend.  306.  n-2  Bing.  (N.  C.)  222;  14 
111.  279;  I  Florida,  403;  Newb.  Adm.  504;  Story  Bailm. 
a  529  a.-  loCush.  177;  I  H.  &  N.  408;  S.  C.  38  Eng 
L.  &  Eq.  335;  L.  Rep.  i  C.  P.  559;  S.  C.  12  Jur.  (N. 
S.)  321;  14  La.  An.  429;  40  Miss.  39;  38  Ilf.  219;  9 
Iredell,  138.  o-ii  Exch.  742.  |»-io  C.  B.  726;  35  N. 
H.  390;  L.  Rep.  3  P.  C.  499.  q-ii  Cush.  155;  i  Q. 
B.  483 ;  Id.  491 ;  3  B.  &  -\ld.  277 ;  37  Penn.  St.  170;  1 
Johns.  215;  8  Cranch.  317;  8  How.  (U.  S.)  420;  ic 
Penn.  St.  254;  3  B.  &  F.  582;  3  Taunt.  423:  4  Blackf. 
364;  Cheeves,i74;  3H.&N.  i;  15  Johns.  39;  6  HiU 
588;  26  Wend.  591  ;  10  Watts,  337;  3  H.  &  N.  1.  r- 
28  Vt.  268:  13  Barb.  57;  S.  C.  2  Kernan,  243.  11-19  N 
H.  337;  23  Vt.  268;  Hilt.  33s;  3«  111.  116. 


ISS 


BAILMENTS. 


a  general  property  is  in  the  consignee,  he 
should  sue.*  If  a  carrier  deviate  from  the 
regular  route,  and  the  goods  are  lost,  it  is  a 
conversion." 

rule  of,  etc.     To   excuse  a  common 

carrier  for  damage  and  loss  of  goods  during  the 
carriage,  the  force  must  be  above  human  con- 
trol, or  that  of  public  enemies,^  hence  carriers 
are  held  as  insurers  against  fire,  unless  caused 
by  lightning.''  If  a  carrier  expose  himself  to 
perils,  he  must  bear  the  loss,  but  not  of  delay 
from  unknown  perils.^  He  is  liable  for  actual 
damage  resulting  from  negligence  and  delay 
caused  by  his  fault  ;y  but  only  obvious  actual 
damage  can  be  recovered. 

Demurrage.  Demurrage  is  a  claim  by  way 
of  compensation  for  the  detention  of  property 
which  is  subsequently  restored."  An  allowance 
made  to  the  owner  of  a  vessel  for  delay  or  de- 
tention in  port  beyond  the  appointed  time  of 
departure.  This  expense  is  paid  by  the  mer- 
chant who  causes  the  detention.  Strictly  speak- 
ing, it  is  only  due  when  expressly  stipulated  for 
in  the  contract  for  affreightment.*  A  railway 
has  no  lien  for  the  compensation  impliedly  due 
them,  for  the  detention  of  their  cars  an  unrea- 
sonable time,  in  discharging  a  cargo,  the  cars 
remaining  during  the  time  in  a  public  highway .•> 

Philadelphia  Ucmnrrage  aiiU  L.ay-I)ay 
Scale, 

As  approved  by  the  Philadelphia  Maritime  Exchange, 
on  the  6th  of  June,  1882,  and  in  the  absence  of  any- 
special  agreement  to  the  contrary,  to  be  understood  as 
thereafter  governing  all  grain  and  petroleum  charters 
made  on  Philadelphia  account  or  for  vessels  to  load  at 
Philadelphia,  is  : 

For  Vessels  Loading  Grain,  Petroleum,  or 
General  Cargoes  to  European  Ports. 


Si 


Tons. 


£-Se 


I  DEMURRAGE  SCALE. 

The  demurrage  on  sea  going  sall- 

>•--  2  ing  vessels  shall  be  as  follows,  viz  • 
■01!  "     \Fot  vessels  of  200  tons  or  under,  12 

**"  c  l^ents  per  ton.  For  vessels  over  200 
Jj  u—      itons,  and  not  exceeding  500  tons,  {24 

for  the  first  200  tons,  and  8  cents  per 

To  load  ton  for  each  ton  additional.  For  ves- 


and    dis-jv,eis  over  500  tons,  and  not  exceed- 
charge__,,ug   900  tons.  $48  for  the    first  500 

21  days  [tons,  and 6  cents  per  ton  for  each  ton 

22  "  ladditional  For  vessels  over  900 
tons,  $72  for  the  first  900  tons,  and  3 
cents  per  ton  for  each  Con  additional. 

CASE  CARGOES. 
In  absence  of  any  fixed  scale  of 
days,  either  at  Philadelphia  or  New 
Yorlc,  it  has  been  customary  to  use 
the  barrel  oil  <.cale:  and  taking  cases 
at  five  to  the  barrel,  on  the  present 
scale,  makes  an  arrangement  satis- 
^factory  alike  to  vessel  and  shipper. 
For  Vessels  Loading  Petroleum  for 

Foreign  Ports, 
2000  to  2500  bbls.  capacity  10  lay  days, 
2501  **  3000  "        12      ** 

3001  "  4000  "       14      " 

4001  "  5000  "       15      " 

5001  "  6000  *'       17      " 

6001  "  7000  "       20      " 

7001  "  8000  "        22      " 

Soot  "  9000  "       25      " 

Customary  despatch  for  discharjrin^. 

For  steamer  charters  demurrage  and  lay-days  are  sub- 


Prom  aoo  to  250 

"  251  to   300 

•'  301  to   35Q 

"  351  to  40Q 

"  401  to  450 

"  4S«  to   500 

"  501  to   550    27 

"  551  to  600!  28 

**  601  to    650:  29 

"  651  to   700!  30 

"  7ot  to   800J  jt 

"  801  to   9«>]  32 

•*  901  to  loro    33 

"  1001  to  lino 

**  lioi  to  X200   35 

"  1201  to  tyx> 

"  1301  to  1400 

"  I40t  to  1530 

"  1501  to  ifoo 

•*  1601  to  1700 

"  1701  to  iSoo 


ject  to  special  agreement.' 


t-13  Barb.  57.  u-26Ga.6i7;  7  Allen, 351.  v-6  John- 
son, 160;  1  Smith's  Leading  Cases,  219,  ed.  1847;  268 
ed.  1853,  and  note  of  Am.  editor;  21  Wend.  190;  5 
Strob.  iiQ  ;  1  Wilson,  281  ;  4  Zab.  697  ;  i  Murph.  173  ; 
Stewart  L.  C.  591,  and  note;  24  How.  U.  S.  386  ;  i 
M'Cord,  Law  439  ;  i  Bosw.  77 ;  30  Ala.  608  ;  31  Id.  501 ; 
so  Wis.  5()4,  w-2  Zab.  372,  379  ;  i  T.  R.  27:  5  T.  R. 
389;  4  Bing.  N,  C.  314;  Disney,  480;  20  111.  407:  26 
Me,  181 ;  12  Barb.  595,  x-6  Bing,  716 ;  S.  C.  4  M.  & 
P-  S¥>i  7  Blaclcf.  497;   Wright,  193;   30  Penn,  St,  171, 


Duty  in  general,  etc.  It  is  a  well-settled 
principle  of  the  law  that  common  carriers,  both 
of  goods  and  passengers,  are  bound  to  carry  for 
all  persons  that  apply,  unless  they  have  a  reason- 
able excuse  for  the  refusal  so  to  do,**  Railway 
companies,  and  others  who  carry  goods,  in  any 
mode,  for  all  who  apply,  are  common  carriers.* 
Railways  are  made  liable  as  common  carriers 
of  passengers'  baggage  and  of  freight,'  and  their 
responsibility  results,  not  from  any  contract,  but 
from  the  nature  of  the  office  and  business ;  and 
action  may  be  in  tort  or  contract.* 

at  common  law.     A  carrier  is  bound 

to  follow  instructions  given  by  the  owner  or  his 
agent,  unless  that  becomes  reasonably  imprac- 
ticable, whether  given  at  the  time  or  before 
delivery,'' 

Express  carriers  who  undertake  to  sell  com. 
modities  intrusted  to  them  are  common  carriers 
of  the  money  received,'  Usage  to  collect  and 
return  price  will  bind  carriers.^ 

Railway  companies,  steamboats,  and  other 
carriers,  who  allow  express  companies  to  carry 
parcels  and  packages  on  their  cars  or  boats,  or 
other  vehicles,  are  liable  as  common  carriers  to 
the  owners  of  the  goods  for  all  loss  or  damage 
which  occurs,  without  regard  to  the  contract 
between  them  and  such  express  carrier.^ 

by  course  of  business.  The  busi- 
ness of  common  carriers  is  not  one  imposed 
upon  any  particular  person,  natural  or  artificial, 
and  any  one  may  undertake  it  at  will,  and  may 
enter  upon  so  much  of  the  entire  business  as  he 
chooses,  and  will  be  bound  to  the  extent  of  their 
usage,  and  course  of  business ;'  but  this  ques- 
tion arises  only  when  they  refuse  to  carry.™ 
They  are  bound  to  serve  all  who  apply;  for  it 
is  the  general  duty  of  all  who  undertake  to 
serve  the  public  in  any  particular  business  to 
serve  all  who  come," 

A  carrier  cannot  transship  freight,  except  in 
cases  of  strict  necessity." 

It  is  competent  to  prove  whether  goods  usually 
arrive  in  a  safe  or  damaged  condition  as  a  ground 
of  presumption  of  negligence,  or  the  contrary. p 

An  owner  of  goods  consigned  by  railway  is 
bound  to  take  notice  of  the  course  of  the  busi- 
ness, and  call  for  them  at  the  ordinary  time  of 
arrival,  and  remove  them,  or  the  carrier  is  only 
responsible  for  ordinary  negligence.i 

175-  y-26  111-  205  ;  30  Penn.  St.  242  ;  6  Duer,  275  ;  15 
Wis.  129.  a!-9  Wheaton.  362.  a-17  B.irb.  184.  b-io 
Bcsworth,  77.  0- Young's  Ship-owner  and  Master's  Man- 
ual, 1876.  d-6  C.  B.  775  ;  Story  Bailm.  {)  591  ;  2  Sumn. 
221,  224  ;  18  Barb.  500;  3  Brod.  &  B.  54^  S.  C.  9  Price, 
408.  e-7  Man.  &  G.  253  ;  8  M.  &  W,  421  ;  Id,  749 ;  la 
Id.  766;  6Whart.5o5;  19  Wend  534;  13  Id.  6rt  ;  Story 
Bailm.  Jscxj;  Angell  on  Carriers,  ?  78:  9  111.  518;  3 
Wend.  327;  27  Vt.  399;  Id.  no;  30  L.  T.  285;  8  El.  & 
Bl.  728,  19  Barb.  346;  S.  C,  16N.  Y.  515.  f-i  Met. 
60  :  2  Sumner,  221 ;  13  Wend.  611 ;  25  Id.  459  ,  25  Eng. 
L.  &  Eq.  287 ;  S.  C.  14  C.  B.  255,  K-8  Ad.  &  El.  963 ; 
I  P.  &  D.  4.  I1-7  Moore,  283  ;  S.  C.  i  Bing.  34.  I-4 
Watts.  443  ;  II  Johns.  107  ;  2  Conn.  389  ;  i  Bailey,  553  ; 
4  Grant,  407.  J-39  III.  312  ;  3  Watts.  65  ;  i  Bailey,  553, 
l*-6  How.  344  ;  9  B.  Aton,  112.  1-23  V.  186;  6  How, 
U.  S.  344  ;  23  B.  &  S.  66 ;  15  C,  B.  (N.  S.)  680.  ni-4 
Exch.  367  ;  S.  C  6  Rly.  Cas.  61  ;  6"Wend.  335  ;  2  Story, 
16  ;  Dyer,  158  ;  Godb.  346  ;  12  Mod.  482  ;  4  C.  B.  555. 
n-i2  Mod.  482.  0-37  Ala.  505.  p-Id,  11  Jur,  (N.  S..' 
935.    Q-38  Vt.  403 ;  7  AUen,  giiS. 


Bailments. 


123 


Freight  of  dangerous  quality.  The 
owner  must  inform  the  carrier  of  the  character 
of  the  goods,  whenever  it  is  essential  to  be 
known,  either  on  account  of  carrying  the  par- 
ticular goods  safely,  or  of  carrying  them  in  such 
a  manner  that  other  goods  may  not  be  damaged 
by  coming  in  contact  with  them ;  and  for  any 
default  in  this  particular  the  owner  is  responsi- 
ble, not  only  to  the  extent  of  any  damage  oc- 
curring to  the  goods,  but  even  beyond  that.'' 

delivery,   time  of.     A  carrier  is  not 

bound,  unless  he  stipulate  absolutely  to  deliver 
goods  by  a  particular  time,  to  do  more  than  to 
deliver  in  a  reasonable  time,  under  all  the  cir- 
cumstances attending  the  transportation. ■"  But 
if  the  carrier  contract  specially  to  deliver  in  a 
prescribed  time,  he  must  perform  his  contract, 
or  suffer  the  damages  sustained  by  his  failure.' 
He  is  liable  upon  general  principles,  where  the 
goods  are  not  delivered  through  his  default,  to 
the  extent  of  their  value  at  the  place.  In  the 
absence  of  a  special  contract  the  carrier  is 
bound  to  deliver  the  goods  at  their  destination ; 
or,  at  the  end  of  his  route,  to  the  next  carrier, 
in  a  reasonable  time  according  to  his  usual 
course  of  business,'  or  according  to  contract." 
A  delay  caused  by  an  unusual  press  of  business 
will  not  make  the  carrier  liable,^  nor  the  loss 
of  a  bridge  from  an  unusual  freshet."  A  carrier 
is  excused  by  the  custom  and  usual  course  of 
navigation.^  Where  two  companies  are  using 
the  same  line,  the  one  is  not  liable  for  delay 
caused  by  the  negligence  of  the  other.y 

A  carrier  is  liable  upon  general  principles 
where  the  goods  are  not  delivered  through  his 
default,  to  the  extent  of  their  value  at  the  place 
of  their  destination ;  and  this  includes  the 
profits  of  the  adventure.'  If  the  goods  are 
only  damaged,  or  not  delivered  in  time,  the 
owner  is  bound  to  receive  them.  He  will  be  en- 
titled to  damages,  but  cannot  repudiate  the  goods 
and  recover  from  the  carrier  as  for  a  total  loss.* 

In  an  action  against  a  carrier  for  damage 
done  to  goods  carried,  it  is  enough  to  prove  the 
good  condition  of  articles  when  put  into  his 
possession  and  their  deteriorated  state  when  re- 
ceived from  him.     Any  damage  resulting  from 

q-5  C.  B.  (N.  S.)  149  ;  Id.  882;  28  Vt.  180;  5  Jur. 
(N.  S.)  648 ;  S.  C.  2  El.  &  Bl.  66  ;  11  C.  B.  (N.  S.)  553 ; 
8  Jur.  (N.  S.)  868.  r-Story  Bailm.  545,  a;  5  M.  &  G. 
551  ;  6  McLean,  C.  C.  296;  19  Barb.  36;  12  N.  Y.  245. 
What  is  a  reasonable  time  is  to  be  decided  by  the  jury, 
from  a  consideration  of  all  the  circumstances,  7  Rich. 
190,  409.  s-i  Duer,  209 ;  12  N.  Y.  99.  t-5  M.  &  G. 
551  ;  6  McLean,  296  ;  7  Rich,  iqo,  409  ;  6  Duer.  375  ;  8 
L.  T.  (N.  S.)  421  :  S.  C.  4  B.  &  S.  466 ;  16  Mo.  484 ;  5 
W.  &  S.  123;  5  N.  H.  358;  II  Mass.  229;  5  Man.  & 
G.  316:  8T.  R.259;  28  Mo.  124;  30  Ala.  608.  u-i8 
Ene.  L.  &  Eq.  557;  i  C.  B.  637;  S.  C.  25  Eng.  L. 
&  Eq.  347;  I  Jones  (N.  C.)  211;  14  Wend.  210; 
Story  Bailm.  §  545,  a  ;  14  111.  156  ;  22  Barb.  278  ;  i 
Rich.  409;  Id.  190;  2Kernan,99;  A ng.  Carriers,  §294  ; 
n  Wis.  407  ;  28  Mo  124,  243  :  30  Ala.  608 ;  7  H.  &  N. 
400;  S.  C.  5  L.  T.  (N.  S.)399;  i4lowa,2i4.  •v-9  Barb. 
36;  S.  C.  2  Kernan,  245;  18  III.  488.  w-7  Rich.  409. 
Newb.  Adm.  464.  x-6  McLean,  296;  28  L.  J.  51  ;  32 
L.  T.  94.  y-i  C.  P.  38s  ;  S.  C.  12  Jur.  (N.  S.)  372  ;  32 
111.  116.  JB-4  Whart.  204;  11  La.  An.  324;  Sedgw. 
Dam.  356 ;  2  B.  &  Ad.  932  ;  see  also  12  S.  &  R.  183  ;  i 
Cal.  T^.  a-5  Rich.  462  ;  12  N.  Y.  509  ;  35  N.  H.  390. 
b-2  F.  &  F.  796;  3  F.  &  F.  77.  <l-i  Conn.  487.  e-B. 
N.  P.  69;   3  Kent  Comm.  299,  300,  301 ;   Story  Bailm. 


bad  package  will  go  to  lessen  the  amouat  of 
damage.*" 

—  —  bad  package,  internal  decay.   Losser 

from  natural  causes,  as  frost,*  evaporation,*  or 
natural  decay  of  perishable  articles,*  the  carrier 
exercising  all  reasonable  care  to  preserve  tbem,* 
and  from  the  natural  and  necessary  wear  by  care- 
ful transportation,*  in  the  mode  to  which  the 
carrier  is  accustomed,  or  from  the  defective  na- 
ture of  the  vessels  or  packages  in  which  the 
things  are  put  by  the  owner  or  consignor,  will 
excuse  the  carrier.  The  carrier  is  not  respon- 
sible for  natural  decay  or  leakage.'  So,  al.so, 
except  for  damages  caused  by  delay,  where  the 
owner  selects  his  own  carriage,  and  loads  it ;« 
but  the  carrier  must  do  all  in  his  power  to  arrest 
damage  to  goods,  though  he  may  not  have  been 
in  fault  on  account  of,  or  responsible  for  its 
occurrence.''  The  owner  must  bear  the  damage 
of  loss  from  dampness  of  the  hold,  as  one  of 
the  accidents  of  navigation,  if  it  be  excepted 
from  the  risk,  and  is  no  fault  of  the  carrier."  A 
bill  of  lading,  staling  the  goods  in  good  order, 
is  only  prima  facie  evidence  of  that  fact  and 
refers  to  the  external  appearance  of  packages.' 
The  owner  is  responsible  for  loss  from  defects 
in  the  article.^ 

Lien  for.     A  carrier  is  entitled  to  a 

lien  for  freight  for  goods  carried ;'  but  if  he 
once  deliver  the  goods  this  lien  is  waived."* 
Or,  if  the  goods  be  damaged  in  a  manner  for 
which  the  carrier  is  liable,  the  owner  may  de- 
duct the  amount  of  injury  from  the  freight." 
But  the  goods  must  be  carried,  and  ready  for 
delivery,  or  the  carrier  has  no  right  to  detain 
them  for  freight."  But  if  freight  through  be 
paid  to  the  first  carrier,  lien  does  not  ordinarily 
attach.P  A  wrong  doer  cannot  create  a  valid 
lien  against  the  real  owner.?  A  passenger 
carrier  has  a  lien  upon  baggage  for  fare.'  Car- 
riers have  no  lien  for  a  general  balance  of  ac- 
count.' Carrier's  liens  may  be  waived  in  the 
same  manner  as  other  liens.'  But  if  a  delivery 
be  obtained  by  fraud,  the  goods  will  be  restored 
by  replevin."  The  last  carrier  upon  the  route 
may  detain  the  goods  until  the  whole  freight  is 
paid,^  and  charges  during  transit  of  warehouse- 
men and  forwarders. 

492,  a;  6  Watts,  424  ;  37  Miss.  601 ;  Ang.  Carriers,  §J 
210,211,212;  4  Kernan,  570;  3  Met.  (Ky.)5i ;  6  Duer, 
375;  Am.  Ry.  Times,  No.  14;  16  111.  502 ;  20  Id.  623; 
7  L.  Reg.  348;  S.  C.  S2  Penn.  St.  414  ;  2  H.  &  N.  575; 
28  Vt.  180 ;  5  Jur.  (N."  S.)  648 ;  S.  C.  2  El.  &  Bl.  66.  f- 
I  Black.  (N.  S.)  170;  Id.  156.  g-2o  N.  Y.  232;  27  Ga. 
535.  I1-18  Penn.  St.  224;  12  La.  An.  410;  21  Wis.  21. 
1-12  How.  (U.  S.)  272.  J-18  Id.  231 ;  21  Id.  7.  1-2  Ld. 
Raym.  752;  6  Humph.  70;  18  111.  488.  in-13  B.  Mon. 
239,243;  16  111.408.  11-13  B.  Mon.  239,  243;  16  111. 
408;  Snow  7IS.  Carruth,  U.  S.  Dist.  Ct.  Mass.i  19  Law 
Rep.  98  ;  I  Watts.  39  ;  5  Id.  446  ;  6  Whart.  435  ;  i  Scam. 
462;  II  Ohio,  303;  Lalor'sSupp.  to  H.  &  Denio,  163; 
6  Gray,  539.  0-16  Johns.  348,  and  cases  cited,  p-8 
Doug.  (Mich.)  I  ;  i  T.  R.  659;  8  Id.  330;  42  Me.  5^2. 
g-5  Cush.  137:  8  Gray,  262,  42  Maine,  197:  2  Ld. 
Raym.  866;  6  Whart.  418;  20  Wend.  267-275.   r-Story 


Jailm.  g  604  ;  2  Camp.  631  :  26  Vt.  316.  s-6  East.  510; 
2  Halst.  108;  4  Burr.  2214;  2  Grant's  Cas.  139;  26  111. 
195.  t-4  B.  &  Aid.  50:  26  111.  195.  11-6  Hill,  43;  S. 
C.  4  Denio,  496 ;  i  Sandford,  248.  v-Lalor's  Supp.  to 
H.  &  Denio,  163 ;  tq  Wend.  386;  4  Hill,  107;  i  Strange, 
556;  I  Holt.  N.  P.  C.  383;  I  Keut  Comm.  642:  2* 
Maine,  339 ;  25  Mo.  76. 


tH 


BAILMENTS. 


A  carrier  cannot  sell  goods  in  satisfaction  of 
fien.*  An  ownei  may  pay  freight  and  sue  for 
goods  lost.*  A  carrier  is  bound  to  keep  goods 
a  reasonable  time,  if  they  are  refused  by  the 
consignee.'  The  carrier's  lien  does  not  cover 
the  expense  of  keeping  it  until  the  debt  is 
paid,  when  it  is  detained  against  the  will  of  the 
debtor,*  but  it  covers  the  back  charges.*  The 
lien  for  freight  in  favor  of  the  last  company  is 
not  affected  by  defaults  of  the  first  company. •» 

Carriers  have  no  lien  for  goods  carried  for 
the  national  government." 

If  an  owner  accept  goods  at  any  intermedi- 
ate place  short  of  the  original  destination,  he 
will  be  liable  to  pay  freight  pro  rata.^     And 
when  the  carrier  pays  for  the  loss  of  goods,  it 
is  equivalent  to  delivery,  and  he  is  entitled  to 
deduct  freight.*     If  goods  are  unlawfully  de- 
tained, the  consignee  being  ready  to  pay  freight, 
may  maintain   trover,  without  formal  tender.' 
A  consignee,  indorsing  a  bill  of  lading,  without 
recourse,*!  or  a  mere  agent  for  the  delivery  of 
goods  for  another,  is  not  personally  responsible 
for   freight.''     As    in    other   cases   of    lien,    a 
waiver  will  be  presumed  by  an  unconditional 
delivery  of  goods ;'  but  a  delivery  of  a  part  of 
the  cargo  will  not  operate  as  a  waiver  of  the 
lien  upon  the  portion  not  delivered.J     It  is  a 
question  of  fact  whether  there  has  been  a  com- 
plete delivery.''     There  is  no  lien  for  a  general 
balance ;'  such  a  custom  is  void.""     A  carrier's 
lien  does  not  attach  upon  loading  the  goods  on 
ooard,  or  until  the  voyage  is  entered  upon,"  or 
*here  there  is  a  special  contract  as  to  payment." 
Freight  may  be  demanded  before  delivery,?  but 
is  only  payable  according  to  the  bill  of  lading.i 
Where  a  carrier  claims  more  than  is  due,  it 
dispenses  with  tender  of  the  amount  actually 
due.' 

Payment  of.     A  carrier  is  entitled  to 

demand  his  pay  in  advance ;  but  if  no  such 
condition  is  insisted  upon  at  the  time  of  the 
delivery  of  the  goods,  the  owner  is  not  obliged 
to  tender  the  freight,  nor  in  an  action  is  it 
necessary  to  allege  more  than  a  willingness  and 
readiness  to  pay  a  reasonable  compensation  to 
the  carrier."  A  refusal  to  carry  excuses  any 
tender  of  compensation.*  Payment  of  freight 
and  fare  will  sometimes  be  presumed." 

A  carrier  is  not  bound  to  receive  goods 
which  he  is  not  accustomed  to  carry,  or  when 
his  means  of  conveyance  are  all  employed,  or 
before  he  is  ready  to  depart  ;^  or  where  prop- 
erty is   publicly  exposed  to  the  depredations 

■w-ii  Barb.  41 ;  i  Strange,  5^6.  x-28  Penn.  St.  505. 
T-31  I>.-iw  Times,  38;  S.  C.  2  Hurl.  &  Nor.  491.  z-8 
Ho.  Lids.  338;  S.  C.  6  Jur.  (N.  S.)  761.  a-is  Iowa, 
253;  12  La.  An.  24.  b-6  Allen,  246;  11  Id.  295;  4  G. 
Greene,  516;  32  Penn.  St.  270.  c-i  Maine,  301.  d-i 
Nott  &  M'C.  132.  e-i  Bay,  loi.  f-9  Cush.  215.  ^-2 
Exch.  37;  I  C.  P.  689;  I  Taunt.  31T :  10  Watts,  384; 
13  East.  399.  h-8  M.  &  W.  798.  i-4  Allen,  212  ;  i 
Black.  108.  .1-1  Gale,  17.  U-Id.  I-5  B.  &  Aid.  350. 
m-3  Scott.  52T  ;  S.  C.  3  Bing.  (N.  C.)  09  n-3  Har.  & 
G.  225;  5  Binn.  392.  0-18  Johns,  i^t,  8  Wheaton,6o5; 
12  Moore,  361.  p-Law  Rep.  2  C.  P.  348 :  2  Moore,  P. 
C.  (N.  S.)277:  14  Gray,  149.  q-3  Hurl.  &  Nor.  715. 
r-5  Id.  931.  s-2  Show.  81:  Id.  129  and  notes;  Cro. 
Jac.  162;  2  Show.  327;  8  M.  &  W.  372;  18  111.  288:  i 
Hilton,  499;  13  Iowa,  191:  27  Mo.  17.     t-i  East.  303; 


of  the  mob,''  or  where  goods  are  not  safe  to  be 
carried."  So,  too,  he  may  excuse  himself  by 
showing  that  loss  happened  through  negligence 
of  the  owner  of  the  goods  in  packing  or  other- 
wise, or  from  internal  defect,  without  his  fault.' 
The  carrier  cannot  refuse  to  carry  a  parcel  be- 
cause the  owner  refuses  to  disclose  the  con- 
tents. There  should  be  uniformity  in  rate  of 
charges.*  Goods  may  be  rated  according  to 
custom.* 

Goods  must  be  received,  and  carried  in  thd 
order  in  which  they  are  offered.* 

Insurable  Interest  in  Goods. — The  car- 
rier has  an  insurable  interest  in  the  goods,  both 
in  regard  to  fire  and  marine  disasters,  except 
such  as  result  from  inevitable  accident,  such  as 
fire  by  lightning  and  the  like.''  Carriers  may 
insure  for  their  own  benefit,  and  their  insurable 
interest  continues  so  long  as  the  liability  of 
carrier  continues,  even  where  they  employ  other 
carriers."  A  warehouseman  or  wharfinger  may 
insure  and  recover  the  full  value  of  the  goods 
"  in  trust."^  Carriers,  not  responsible  for  loss 
by  fire,  may  insure  goods  in  their  possession, 
describing  them  as  "  goods  in  trust  as  carriers," 
and  recover  their  full  value.* 

Responsibility — Carrier's,  begins  when. 
The  liability  of  the  carrier  begins  when  the 
goods  are  delivered  to  him,  or  his  proper  ser- 
vant, authorized  to  receive  them  for  carriage. 
A  delivery  at  the  usual  place  of  receiving 
freight,  or  to  the  employees  of  the  company  in 
the  usual  course  of  business,  is  sufficient.'  But 
where  carriers  have  a  warehouse  at  which  they 
receive  goods  for  transportation,  and  goods  are 
delivered  there  not  to  be  forwarded  until  some 
event  occur,  the  carriers  are,  in  the  meantime, 
only  responsible  as  depositaries  ;8  and  where 
goods  are  received,  as  wharfingers,  or  ware- 
housers,  or  forwarders,  and  not  as  carriers,  lia- 
bility will  be  incurred  only  for  ordinary  negli- 
gence.'' Wiiere  goods  are  so  miMked  as  to  pass 
over  successive  lines  of  railway,  or  other  trans- 
portation having  no  partnership  oonnection  in 
the  business  of  carrying,  the  successive  carriers 
are  only  liable  from  the  time  of  n-.ceiving  the 


A  delivery  at  the  usual  place  o."  receiving 
goods  with  notice  to  the  proper  serv  i;t  of  the 
company  is  sufficient,^  for  a  carrier  is  vx'und  to 
keep  goods  safely  after  delivery  to  l-im  'for 
carriage,  as  well  as  to  carry  safely  ;J  Vkhen 
goods  are  delivered  to  be  carried,  the  carri'^r  is 

2  Kent  Comm.  598-599  and  note;  14  Ala.  249,  261.     n- 

3  Penn.  St.  451  ;  i  Parson's  Contr.  649.  v-i  Ld.  Raym. 
652;  I  Ventris,  190;  2  Lev.  69;  3  Doug.  389;  19  Barb. 
36.  w-i  East.  604  ;  20  Wis.  594.  x-Story  Bailm.  \ 
328;  2  Kent  Comm.  599;  Hodges  RIwvs.  613;  Ang. 
Carr.  ?  125.  y-2  Greenl.  Ev.  214;  5  Watts,  446;  19 
Penn.  St.  243:  3  Watts  &  S.  21  ;  31  Maine,  228;  11 
Pick.  41  ;  6  Bing.  743;  22  Vt.  213.  a!-i6  Ga.  558;  3  C. 
B.  (N.  S.)  324.  a-40  Mo.  491 ;  13  La.  An.  553.  b-12 
Barb.  595  c-12  Barb.  595  ;  13  Id.  353,  361.  d-5  El.  & 
Bl.  870;  S.  C.  34  Eng.  L.  &  Eq.  116;  i  Black.  (U.  S.l 
574,  582  ;  2  Sandf.  S.  C.  290 ;  8  Gray,  281.  e-i  Ellis  & 
Ellis,  652.  f-20  Conn.  534;  2  Carr  &  K.  680;  2  M.  & 
S.  172  ;  16  Barb.  383:  Ang.  Carr.  J?  129,  147,  and  ca.ses 
cited.  8P-24  N.  H.  71.  I1-7  Cow.  497.  1-8  Rich.  246. 
l-i  Wilson,  281:  20  Conn.  354;  9  Ind.  400;  5  Bosw 
1525  '<  3  B°^-  &  P-  4'^:  1°  I^-  ^-  Tl^- 


BAILMENTS. 


12_ 


liable  from  the  time  of  delivery ."^  but  is  not  re- 
sponsible on  a  continuous  line  of  transportation 
until  they  receive  the  goods.'  An  acceptance 
by  an  agent  is  sufficient  without  a  payment  of 
freight.™  It  is  a  question  of  fact  whether  the 
carrier  took  charge  of  the  goods."  It  is  suffi- 
cient to  charge  the  company  that  the  goods  are 
put  in  charge  of  their  servants.** 

If  goods  are  kept  back  by  direction  of  the 
owner,  the  company  are  only  responsible  as 
depositaries  ;p  and  if  the  defendants  are  both 
warehousemen  and  carriers,  and  receive  goods 
with  instruction  to  forward  immediately,  they 
are  liable  as  carriers.*!  Instructions  to  forward 
may  be  inferred  from  the  course  of  business, 
in  the  absence  of  express  proof.' 

For  Carriage  beyond  the  Com- 
pany's Road.  In  the  absence  of  special  con- 
tract, the  carrier  is  only  liable  for  the  extent  of 
his  own  route,  and  for  safe  storage  and  delivery 
to  the  next  carrier."  He  may  undertake  for 
the  whole  route,'  and  this  is  presumed  when 
they  are  connected  in  business,"  even  though 
the  connection  is  only  temporary.* 

Carriers  are  only  responsible  for  safe  carriage 
and  delivery  to  the  next  carrier  according  to 
ordinary  usage."  Where  special  directions  are 
given  to  a  carrier  they  must  be  followed.*  Avd 
it  makes  no  difference  that  portions  of  the  roi  te 
are  by  steamboat  and  other  portions  by  land 
where  no  railway  exists.^ 

Receiving  freight  for  the  entire  route  binds 
the  carrier  to  that  extent,  unless  proof  be  given 
to  rebut  that  implication.* 

For   Parcels  carried  by  Express, 

etc.  Carriers  who  allow  servants  to  carry  par- 
cels are  liable  for  their  loss,*  and  allowing 
perquisites  to  go  to  agents  will  not  excuse  a 
company. 

An  owner  of  parcels  carried  by  express  may 
look  to  the  company ,''  and  may  sue  any  of  the 
subsequent  carriers  in  the  line  of  transportation, 
guilty  of  a  default  in  duty,  although  his  con- 
tract was  made  with  the  first  carrier,  to  whom 
he  delivered  the  goods." 

k-i6  Barb.  383.  1-8  Rich.  240;  4  Law  J.  38,  S.  C. 
tiom.;  Dav.  C.  C.  Rep.  83;  1  Hilton,  223.  in-2  C.  & 
Kirwan,  680.  n-2  M.  &  S.  172.  0-2  Story  16;  8  Pick. 
182 :  12  M.  &  W.  766 ;  8  C.  &  P.  361  ;  I  Car.  &  M.  14S  ; 
23  Conn.  595  ;  21  Ind.  54.     p-4  Foster,  71  ;  7  Cow.  497  ; 

7  Mich.  515;  39  111.  335.  q-25  Penn.  St.  338;  3  Kernan, 
569.  r-4  Foster,  71.  s-i6  Vt.  52;  18  Id.  131  :  23  Id. 
186;  6  Hill  (N.  Y.)  158;  22  Conn.  I  ;  S.  C.  22  Conn. 
502;  I  Gray,  502;  4  Am.  Law  Reg.  234.  t-19  Wend. 
534;  I  Florida,  403;  10  Rich.  (N.  C.)  382;  i  Hilton, 
223:  24   111.  332;  Id.  389.     u-27  Vt.  no;  3  Sanf.  610; 

8  Cow.  223  :  note  Eds.  Am.  L.  Reg.  4  vol.  238  ;  7  Rich. 
201  :  I  E.  D.  Smith,  115  ;  Id.  234 ;  11  Exch.  790  :  S.  C. 
36  Eng.  L.  &  F.q.  482  ;  i  H.  &  N.  517;  28  Law  T.  260; 
S.  C.  38  Eng.  L.  &  Eq.  593 ;  5  H.  &  N.  969 ;  5  Jur.  CN. 
S.')  1367.  v-2  Kernan,  24=;,  2^5  ;  19  Wend.  534  :  25  Id. 
660;  S.  C.  6  Hill,  157:  8  M.  &  W.  421;  14  C.  B.  25;; 
I  Parson's  Contr.  686-687;  18  Wend.  175;  2  Bing.  170; 
I  Sim.  52  ;  6  Hill,  157.  W-28  Barb  485  :  24  N.  Y.  497 ; 
Da  vies,  82  :  46  Barb.  103.  x-20  111.  375;  38  Id.  389. 
y-2  H.  &  N.  702;  9  Ir.  Com.  L.  474.  z-9  Iowa,  487; 
a  corporation,  established  for  the  transportation  of  goods 
for  hire  between  certain  points,  and  receiving  goods  di- 
rected to  a  more  distant  place,  is  not  responsible  beyond 
the  end  of  its  own  line  as  a  common  carrier,  but  only  as 
a  forwarder,  unless  it  make  a  positive  agreement  ex- 
tending its  liability ;  100  Mass.  29 ;  i  Gray,  502 ;  4 
Allen,  520;  II  Id.  293,  and  cases  cited;  47  Me.  573;  3a 


Express  companies  are  responsible  as  com- 
mon carriers,  and  such  companies  who  carry 
parcels  or  baggage  from  one  city  to  another,  or 
from  one  depot  to  another,  are  common  car- 
riers.^ Omnibus  lines  and  railways  are,  w.  the 
full  sense  of  the  term,  common  carriers .• 

The  limitations  by  which  express  companie:-. 
may  restrict  their  responsibilities  must  be  made 
in  such  a  mode  as:  i.  Presumptively  to  have 
come  to  the  knowledge  of  the  owner  of  the 
goods,  or  his  agent,  authorized  to  act  on  his 
behalf  2.  They  must  be  of  such  a  natu-.^l 
and  reasonable  character  that  the  law  can 
recognize  them  as  not  inconsistent  with  good 
policy  and  fair  dealing.  An  agent  authorized 
to  procure  goods  is  competent  to  bind  the 
owner  by  the  conditions  accepted  by  him. » 

An  express  company  is  bound  for  safe  car- 
riage through  its  line,  and  for  safe  delivery  to 
the  next  express  agent,  and  in  many  cases  for 
safe  delivery  at  the  point  of  destination,''  and 
cannot  be  excused  from  this  except  by  a  clear 
and  understanding  stipulation  to  that  effect  on 
the  part  of  the  employer,  and,  in  a  particular 
which  is  reasonable,  and  not  against  good 
morals  or  good  policy,*  and  must  deliver  to  the 
consignee  at  the  earliest  moment  after  arrival, 
and  within  the  usual  business  hours  ;J  and  in- 
convenience is  no  excuse  for  omitting  personal 
delivery.'' 

Where  goods  are  sent  by  carrier  to  be  paid 
for  on  delivery,  the  consignee  is  entitled  to  a 
reasonable  time  to  inspect  the  goods  before  he 
accepts  them.' 

Notice  brought  home  to  the  other  party  will, 
in  general,  control  the  carrier's  responsibiliiy, 
except  for  negligence." 

Carrier's,  ends  when.  The  re- 
sponsibility of  a  carrier  terminates  after  the 
arrival  of  the  goods  at  their  destination,  and  a 
sufficient  time  has  elapsed  for  the  owner  to  re- 
ceive them  in  business  hours.  After  that  the 
carrier  may  put  them  in  a  warehouse,  and  is 
only  responsible  for  ordinary  care."     And  a 

Vt.  665;  16  Mich.  119,  120;  this  principle  is  also  laid 
down  in  the  following  cases:  6  Hill,  157;  18  Vt.  131, 
140;  23  Id.  186,  209;  22  Conn.  I  ;  23  Id.  457;  24  Id. 
468;  Contra  19  Wend.  534:  3  Sandf.  610;  24  111.  332; 
24  Id.  466 ;  34  Id.  389  :  27  Vt.  no ;  i  Fla.  403 ;  9  Barb. 
317.  a-23  Vt.  186,203,  204;  Parson's  Contr.  656;  ig 
Johns.  235 :  II  Mass.  99  ;  15  Id.  370 ;  2  C.  &  P.  613  ;  6 
Wend.  351 ;  2  Id.  327;  Angell  on  Carriers,  ?  101,  n.  4; 
2  Story,  16;  2  Kent,  609;  i6  Mo.  126:  29  Ala.  263;  19 
N.  H.  122  :  15  Ind.  345.  b-6  How.  344:  39  Barb.  488. 
C-6  Binncy,  129  ;  9  Vt.  407 ;  4  Taunt.  582  ;  15  East.  62  ; 
5  B.  &  Ad.  389  :  19  Wend.  534  :  5  Sanf.  180;  22  Penn. 
St.  522:  5  Cush.  145;  2  E.  D.  Smith,  195;  3  Barb.  S. 
C.  388  :  15  La.  An.  14 ;  32  N.  Y.  247  ;  i  Chitty  PI.  134  : 
4  C.  B.  (N.  S.)  307,  311.  d-i  E.  D.  Smith,  115:  28 
Barb  403;  23  111.  197:  S.  C.  26  Id.  504;  8  Allen.  189: 
2  E.  D.  Smith,  19s ;  5  C.  B.  (N.  S.)  336  ;  7  Jur.  (N.  S."! 
234 ;  9  Id.  1234  :  S.  C.  I  B.  &  S.  112  ;  S.  C.  12  C.  B. 
(N.  S.')  63  :  6  How.  ^44  ;  97  Mass.  124  ;  36  Ga.  365.     e- 

2  Bosw.  =89.  r-19  111.  5=6  :  Id.  578.  gr  7  H.  &  N.  400; 
S.  C.  8  Jur.  (N.  S.)58:  V  H.  &  N.  867.  I1-6  Allen,  254  ; 
i-4  Ohio  St.  362  ;  10  Id.  65,  citing  Id.  145  ;  6  Allen,  486 ; 
32  Mo.  256.  J-7  Wis.  I  :  17  Conn.  138.  fc-6  Bosw. 
23s;  17  Conn.  \-&.    I-46  N.  H.  49.    m-i  West  Va.  87: 

3  C.  P.  14;  2  C."&  P.  76:  55  Penn.  St.  53;  Id.  140;  21 
VVis.  152;  49  Barb.  21,  283  :  i^  Mich.  41:8  ;  36  Ga.  635, 
532.  n-io  Met.  (Mass.)  472;  27  N.  H.  86;  4  T.  R. 
581 :  2  M.  &  S.  172;  2  Kent  Comm.  591,  59*;  Slorj 
Bailm.  \  444. 


126 


BAILMENTS. 


nurier's  responsibility  continues  until  an  actual 
delivery  to  the  consignee,  or  at  his  dwelling  or 
place  of  business  f  if  he  deliver  a  parcel  to  a 
wrong  person,  without  fault  on  the  part  of  the 
owner,  he  is  liable  as  for  a  conversion  ;P  but 
this  mode  of  delivery  has  no  application  to  the 
ordinary  business  of  railways  as  common  car- 
riers of  goods,  for  they  are  not  bouud  to  deliver 
ordinary  freight,"*  or  give  notice  of  their  arrival.** 
In  carriage  by  water  the  carrier  is,  as  a  general 
rule,  bound  to  give  notice  to  the  consignee  of 
the  arrival  of  goods.''  Nothing  more  is  ever 
required  of  carriers  by  ships  and  steamboats 
than  landing  goods  at  the  wharf,  and  giving 
notice  to  the  consignee,  and  keeping  the  goods 
safe  a  sufficient  time  after  to  enable  the  party  to 
take  them  away ;  after  that  the  carrier  may  put 
them  in  warehouse,  and  will  only  be  liable  as  a 
depositary,  for  ordinary  neglect.*  Generally 
the  consignee  must  have  a  reasonable  time  to 
remove  the  goods.'  After  this  the  carrier  is 
only  liable  for  ordinary  neglect."  If  the  goods 
arrive  out  of  time,  the  consignee  must  have 
time  to  remove  them  after  knowledge  of  their 
arrival.^  So,  also,  if  the  company's  agent  mis- 
inform the  consignee.''  When  the  consignee 
assumes  control  of  goods  the  carrier  is  excused.'' 
The  keeping  of  goods  in  warehouse  at  interme- 
diate points  is  not  for  the  convenience  of  the 
carrier,  but  the  owner  of  the  goods.y  If  the 
next  carrier  has  a  place  of  receiving  goods,  re- 
sponsibility ceases  upon  delivery  there."  Ware- 
housemen, who  are  also  carriers,  are  generally 
held  responsible  on  receipt  of  goods.* 

Goods  addressed  by  a  carrier  to  his  own 
agent  does  not  terminate  the  carrier's  responsi- 
bility upon  delivery  to  him.^ 

Where  goods  have  been  tendered  to  the  con- 
signee and  refused  by  him,  there  is  no  rule  of 
law  that  the  carrier  is  bound  to  give  notice  to 
the  consignor;  he  is  only  bound  to  do  what  is 
reasonable ;'  he  is  bound  to  keep  them  as  car- 
rier, until  the  owner  or  consignee,  by  the  use 
of  diligence,  has  time  to  remove  them  ;  when 
his  duty  as  carrier  ceases,^  he  may  put  the  goods 
in  his  own  or  another  warehouse.*  Where  the 
carrier  by  water  cannot  find  the  consignee,  he 
may  exonerate  himself,  by  delivery  to  a  respon- 

O-S  T.  R.  380 ;  2  Wm.  Bl.  916 :  3  Wil.  429,  433  ;  32 
Mo.  256;  2  Hilton,  71 ;  2  Esp.  693  ;  M'Clel.  &  Y.  136. 
p-3  Brod.  &  B.  177;  16  C.  B.  163;  32  Eng.  L.  &  Eq 
338;  7  Allen,  341;  38  Barb.  574;  11  Wis  407  q-23  Vt. 
186,  209  ;  27  Id.  no  ;  i  Parsons'  Contr.  661  ;  14  La.  An. 
335;  14  Id.  411;  33  Ala.  630,  12  Id.  349;  14  La.  An.  417. 
r-Redf.  R'ys.  ?  130.  8-4  T.  R.  581  ;  8  Taunt.  413;  S. 
C.  2  J.  B.  Moore,  500;   2  Kent,  605  ;   2  Head.  488.     t- 


30  Penn.  St  247.  u-ioMet.  472  ;  4  T.  R.  581  ;  6  Jones' 
Law.  343-  1^-2X11011.538;  14(33.277;  4  Foster,  71  ; 
II  Cush.  70;  16111.502;  Id.  561;  9  Penn.  St.  114  ;  35 
Barb.  305.  w-i  Gray, 277.  x-ii  Met.  509  ;  6  Id.  542; 
14  Wend.  225;  20  111.  404  ;  Id^4i2^;  Id.  23;  11  Rich 
Law.  337  ;  6  Mich.  2< 
V-& 


Law,  337;  6  Mich.  243.  y-4  T.  R.  583;  32  Mo.  471 
V-&  Rich.  240;  4  Law  J.  38  ;  S.  C  nam.  Day  ;  C.  C 
Rep.  83;    I   Hilton,  223.     »-9  Barb.  317.     b-i6  N.  V 


515-  C-2  H.  &  N.  575.  d-3  H.  &  N.  182  S.  C.  .  30 
Penn.  St.  247;  10  Met.  472;  4  T.  R.  581;  6  Jones' 
Law,  343  :  15  Johns.  39 ;  6  W.  &  S.  62  ;  32  N.  H.  523  ; 
7  Foster,  86;  6  Whart.  505.  e-io  Met.  472  ;  i  Denio, 
»5  ;  30  Penn.  St.  247,  250  ;  10  Barb.  612:  23  Vt  186, 
all ;  I  Gray,  263;  16  111.  502  ;  25  Ind.  434.  l-n  .Allen, 
J08.  K-4Csp.  262;  I  M.  &  W.  174.  h-i  Camp.  451 ; 
M Qel.  &  Y.  136;    10  Q.  B.  517;    10  East.  530      i-i 


sible  warehouseman.'  The  carrier's  responsi- 
bility ends  when  the  warehouseman's  crane  is 
attached  to  hoist  the  goods. s  An  unlawful 
seizure,  or  invalid  lien,  is  no  excuse  to  the  car 
rier  for  non- delivery.''  In  carnage  ky  water, 
the  delivery  to  the  consignee  must  be  according 
to  the  custom  of  trade,  and  the  usages  of  the 
port,  and  in  regular  business  hours.'  A  tender 
to  the  party  entitled  to  receive  the  goods  will 
exonerate  the  carrier,  as  such,  and  he  will  then 
only  be  responsible  as  an  ordinary  bailee  ;J  but 
any  reasonable  arrangement  between  the  carrier! 
and  consignee  as  to  mode  of  delivery  will  be 
binding,  and  the  carrier  exonerated  by  delivery 
in  the  mode  thus  stipulated,''  and  he  will  be 
responsible  for  any  injury  to  the  goods  resulting 
from  not  delivering  in  conformity  to  the  arrange- 
ment.' 

In  carriage  by  water,  in  general,  there  must 
be  notice  to  the  consignee,  and  delivery  at  the 
wharf,  or  else  the  goods  put  in  safe  condition, 
to  remain  until  called  for.™ 

A  carrier  cannot  charge  for  carrying  to  and 
from  the  depot,  unless  the  customer  requires 
such  service  to  be  performed  by  hiin.'» 

Carriers — Notice  restricting.  Com- 
mon carriers  may  qualify  their  common  law 
re'=ponsibility  by  special  contract,  but  not  so  as 
to  ixcuse  gross  negligence." 

..io,  also,  by  notice  brought  home  to  the 
knowledge  of  the  owner  of  the  goods,  and 
assented  to  by  him,  the  earner  may  qualify  his 
responsibility  ;P  but  as  a  matter  of  evidence  it 
is  received  with  caution,  and  the  carrier  must 
show  the  consignor  acquiesced  to  the  demands 
of  the  notice  by  making  no  remonstrance  ;i  but 
neither  will  excuse  the  carrier  for  negligence.'' 

Notice  of  one  kind  will  not  excuse  the  car- 
rier from  responsibility  of  another." 

A  written  notice  will  not  affect  one  who  can- 
not read.'  A  carrier  must  see  to  it  that  his 
notice  is  made  effectual,"  and  it  must  be  shown 
that  knowledge  of  notice  came  to  the  con- 
signor.'' 

A  carrier  cannot  stipulate  for  exemption  from 
liability  for  negligence ;"  but  he  may  be  allowed 
to  stipulate  for  exemption  from  responsibility  as 
an  insurer." 

Bosw  &  Pul.  (N.R.)  16;  loVt.  56;  sWatU&S.  123; 
3  La.  An.  695  ;  28  N.  Y.  78.  J-23  How.  (U.  S.)  28.  k- 
23  How.  (U.  S.)  28.  l-i  Blatch.  C.  C.  173.  in-2  Cur- 
tis C.  C.  21  ;  15  111.  473 ;  3  La  An.  395 ;  21  Wis.  236  ;  x 
Bailey.  553  :  18  Barb.  32.  n-6  C.  B.  (N  S.)  639 ;  i  C. 
B.  (N.  S.)437;  2  Law,  T.  (N.  S.)376;  S.C.6Ji<r.(N 
S.)  008.  0-8  Penn.  St.  479  ;  23  Id.  532  ;  31  Id  242  ;  * 
Rich.  (S.  C.)2oi.  p-5  East.  507;  5  Bing.207,  8  M.  & 
W  243  ;  6  How.  344  .  3  Me.  228  ;  11  Id  442  ;  11  N.  Y. 
491  ;  9  Watts,  87  ;  6  W.  &  S.  465  ;  8  Penn.  St.  479  ;  31 
Id  209;  2  Rich.  (S.  C.)286;  12  B.  Mon.63;  23  Vt 
186;  4  Harr.  &  J.  317;  3  Kas.  205.  The  N  Y  courts 
have  dissented  from  this  rule,  or  held  it  with  such  quali- 


fications as  to  leave  it  very  little  force.  19  Wend.  234 ; 
26  Id.  594  :  2  Hill,  623  ;  7  Id.  533;  13  Barb.  353;  14  Id. 
524.     «|-6  How.  (U  S.)344;  31  Maine,  228;  3  Fairfield, 


422  .  21  Ga.  526  ;  7  Law  Reg  352  r-31  .Maine,  228 ;  4 
Dutcher,  180.  8-13  Q  B.  347.  t-2  Starkie's  Cases,  279. 
11-2  Starkie,  53.  v-2  Camp.  415  ;  10  M.  &  W.  161  ,  t 
Holt  N.  P.  C.  317;  5  Rawle,  179;  3  Fairfield,  422: 
Story  Bailm  g  558  ;  4Bing.  218;  3  Camp.  27;  3  Bine. 
2  ;  16  Mich.  243  3  H.  &  N.  813  ;  2  Starkie,  461  ;  3  B 
&  C.  601.  w-23  Vt.  205,  and  cases  cited;  32  Penn.  St 
414;  3  id.  242;  10  111.  136. 


BAILMENTS. 


12? 


It  is  reasonable  to  claim  exemption  from  risk 
tn  transporting  fresh  fish."  So,  in  carrying  dogs 
and  horses,  unless  a  value  is  declared,  and  a 
premium  above  that  value  paid,'  for  a  fanciful 
value  is  often  attached  to  these  animals,  and 
these  limitations  must  be  claimed  at  the  time 
of  the  delivery  to  the  carrier,*  and  the  burden 
of  showing  the  reasonableness  of  the  condition 
annexed  to  the  carrier's  undertaking  devolves 
upon  the  carrier.'  The  exception  of  one  risk 
cannot  cover  another.'' 

A  carrier  is  always  responsible  for  negli- 
gence." 

NOTICE  FORHIS. 
See  "Conditions"  in  "Bills  of  Lading,"  above. 

Stoppage  in  trans.tu.  Stoppage  in  tran- 
situ^ is  the  right  which  resides  in  the  vender  of 
goods  upon  credit  to  recall  them  upon  discov- 
ering the  insolvency  of  the  vendee,  before  the 
t;oods  have  reached  him,  or  any  third  party  has 
acquired  bona  fide  rights  in  them."  A  carrier 
is  liable  if  he  do  not  surrender  the  goods  to  one 
having  the  right  of  stoppage  in  transitu^  but 
may  delay  them  until  that  right  is  determined.* 

The  right  to  stop  goods  in  transitu  is  nothing 
more  than  the  extension  of  the  lien  which  the 
vender  has  on  all  sales,  for  the  price,  until  after 
delivery  (so  long  as  the  goods  are  under  the 
control  of  the  carrier,''  but  not  when  they  reach 
the  consignee's  agent  for  another  purpose),*  to 
the  very  point  of  the  goods  coming  to  the  actual 
custody  of  the  vendee,  or  his  agent.J 

Carriers  are  compelled  to  solve  the  question 
of  the  claimant's  right  (upon  admonition  by 
telegraph  from  an  unknown  party  miles  dis- 
tant), at  their  peril.'' 

Conflicting  claims  of  this  kind  may  be  deter- 
mined by  replevin,  or  interpleader,'  or  the  car- 
rier may  deliver  the  goods  to  the  rightful 
claimant,  and  defend  against  the  bailor."" 

Common  Carriers  of  Passengers.  Com- 
mon carriers  of  passengers  are  bound  to  carry 
all  who  offer."  They  are  responsible  for  the 
utmost  care  and  watchfulness,"  and  this  extends 
to  everything  connected  with  the  transporta- 
tion.p  They  are  not  responsible  as  insurers  of 
the  safety  of  their  passengers  as  common  car- 

x-8  W.  R  651 :  S.  C.  3  H.  &  C.  337.  y-2  B.  &  S. 
122  :  S.  C.  6  Jur.  (N.  S.)  954.  11-9  Law,  T.  (N.  S.)  86 
15  Ir.  Com.  L.  37 ;  i  Jur.  (N.  S.)  12  ;  i  L.  Bl.  &  S.  112  ; 
S.  C.  7  Jur.  (N.  S.)  1234.  a-9  Jur.  (N.  S.)  914 ;  S.  C. 
10  H.  Lds.  Cas.  473  ;  15  C.  B.  (N.  S.)  582.  b-52  Penn. 
St.  382.  C  Law  Rep.  3  Exch.  9.  A-"  In  the  passage" 
merchandise  is  said  to  be  "  in  transitu  "  while  on  its 
way  to  the  consignee,  Tayler's  L.  Gloss,  p.  201.  e-2 
Kent  Comm.  540  etseq. ;  i  Henry  Black.  357  ;  S.  C.  6 
East.  21 ;  S.  C.  2  T.  R.  63  ;  i  Smith  L.  Cases,  388  and 
notes,  where  the  whole  law,  Eng.  &  Am.,  on  the  subject 
will  be  found.  See  12  Pick.  313.  f-7  Taunt.  169 ;  3 
Ea-st.  381 ;  4  T.  R.  260.  jf-sC.  B.  (N.  S.)  149;  Id.  88s; 
28  Vt.  180:  sJur.  (N.  S.)64i;  S.C.  2  Bl.  &  El.  6C  ;  11 
C.B  (N.S.)5S3;  8  Jur.  (N.  S.)868.  ll-4  Man.  &  Gr. 
1080;  6Duer.  606;  4C.  B.  618;  S.  C.  s  Jur.  (N.  S.) 
348  :  8  Taunt.  83  ;  i  M.  &  W.  20  ;  2  Id.  372  ;  3  T.  R. 
^64 ;  4  Bing.  516 ;  3  Bos.  &  P.  119  ;  9  H.  R.  108 ;  S.  C. 
6  B.  &  C.  107,  10  M.  &  W.  436.  1-18  How.  (U.  S.) 
231 ;  23  Wend.  611 ;  20  Vt.  172.  J-i2  Pick.  313.  fc-34 
vt.  49  :  s  Taunt.  759  ;  i  B.  &  AcT  450 ;  Story  Bailm.  § 
582;  L.  Rep.  lAdm.  370;  L.  Rep  i  P.  C.  ai9;iL. 
Rep.  6  Eq.  44.  1-7  Bing.  399  ;  10  Id.  246  ;  18  Vt.  186. 
in-ii  Vt.  323;  26  Id.  707  ;  37  Barb.  122  ;  i  Duer.  79  ; 
Story  Bailm.  §  450;  i  B.  &  Ad.  458. _  n-i9Wend^239 
« N.  H      "  '■" 


riers  of  goods  are.  But  they  are  bound  to  the 
very  highest  degree  of  care  and  watchfulness 
in  regard  to  all  their  appliances  for  the  conduct 
of  their  business;  so  that,  as  far  as  human 
foresight  can  secure  the  safety  of  passengers, 
there  is  an  unquestionable  right  to  demand  it 
of  all  who  enter  upon  the  business  of  passenger 
carriers."*  And  it  will  make  no  difference  if  the 
passenger  do  not  pay  his  fare ;'  so  also  where 
the  train  is  hired  for  an  excursion,*  or  is  undei 
control  of  State  officers.'  Passenger  carrien 
are  not  responsible  for  accidents  without  fault  ;^ 
they  contract  only  for  their  own  acts.'  They' 
must  adopt  every  precaution  in  known  use.' 
It  is  their  duty  to  inform  passengers  of  peril 
requiring  caution  to  escape.''  A  pei-son  pur- 
chasing a  ticket  becomes  a  passenger,  and  is 
entitled  to  protection  on  reaching  his  seat  in  the 
carriages.'  Passenger  carriers  are  bound  to 
exclude  disorderly  persons  from  their  carri- 
ages;' and  a  company  is  bound  to  fence  its 
stations  so  as  to  hinder  passengers  entering  by 
a  dangerous  way.*  A  passenger  carrier  who 
attempts  to  carry  ordinary  passengers  and  sol- 
diers at  the  same  time  is  responsible  for  the 
consequences.'' 

The  passenger  must  be  ready  and  willing  to 
pay  such  fare  as  is  required  by  the  established 
regulations  of  the  carriers  in  conformity  with 
law.  But  an  actual  tender  of  fare  or  passage- 
money  does  not  seem  requisite  in  order  to 
maintain  an  action  for  the  absolute  refusal  to 
carry,  and  much  less  is  it  necessary  in  an  action 
for  any  injury  sustained."  The  rule  of  law  is 
the  same  in  regard  to  paying  fare  in  advance 
that  it  is  as  to  freight,  except  that  the  usage  in 
the  former  casejbeing  to  take  pay  in  advance ;  a 
passenger  is  expected  to  have  procured  his 
ticket  before  he  had  taken  passage ;  and  the 
law  will  imply  payment  according  to  such 
usages.^  Carriers  of  passengers  are  bound  to 
carry  for  the  whole  route  for  which  they  stipu- 
late, and  according  to  their  public  advertise- 
ments and  the  general  usage  and  custom  of 
their  business."  But  they  are  not  bound  to 
carry  persons  of  offensive  and  disorderly  con- 

&  B.  54  ;  9  Price,  408.  0-2  Esp.  533 ;  17  111.  496 ;  J| 
Met.  274 ;  2  Camp.  79  ;  i  C.  &  P.  636 ;  Peake's  Cas.  8i» 
9  Bing.  457;  13  Pet.  (U.S.)  150,181,192.  p-i6  Vt. 
566 ;  2  B.  a:  Ad.  169 ;  4  Clarke  (la.)  541  ;  3  Bing.  319 ; 
II  Gratt.  697;  I  C.  &  P.  414;  13  Pet.  (U.  S.)  150,  181, 
102:  21  Conn.  557;  13  Id.  319;  13  Wend.  6n,  626:  i 
McLean,  540;  2  Id.  157;  1  Gill.  406:  19  Wend.  236;  21 
Conn.  24s ;  12  La.  An.  84.  q-2  Ejsp.  533  ;  17  111.  496. 
r-Hodges  on  R'ys,  621 ;  12  C.  B.  578  ;  S.  C.  26  Enj. 
L.  &  Eq.  443 ;  s  Ind.  340  ;  15  N.  V.  444 ;  2  Redf  R'ys, 
g  251,  pi.  5  ;  21  Ind.  48  ;  30  111.  9  ;  25  N.  Y.  442  ;  18  111. 
416;  14  How.  (U.  S.)  843  ;  16  Ind.  469, 474;  26  Barb. 
641 ;  29  Id.  602  ;  37  III.  484.  8-5  Exch.  787;  S.  C.  « 
Eng.  L.  &  Eq.  360  ;  8  Ohio  (N.  S.)  57° :  2°  I"-  235-  *- 
20  Penn  St.  497.  u-Seeante,  DtrrY  at  Common  Law, 
Rule  of  Damages,  etc.  v-26  111.  373 ;  23  Id.  357 ;  ig 
N.  V.  408.  534;  "  C.  B.  (N.  S.)  587,  594;  S  L.  T.  (N. 
S.)  682 ;    S.  C.  7  H.  &  N.  1037.    w-2  F.  &  F. 


486  ;  15  111.  472 ;  2  Siunn.  C.  C.  221 ;    3  Brod.    |  j6s< 

8 


N.  V.  408.  534;   "  C.  B.  (N.  S.)  587,  594;   S  L. 
~       "  C.  7  H.  &  N.  1037.     w-2  F.  &  F.  730  ;    11 

Allen,  312;  1  Moore  P.  P.  C.  (N.  S.)33q  :  i  Wallace, 
543;  22  Ind.  26;  5  Bosw.  699.  x-11  Minn.  277;  21 
Conn.  245,  254;  I  Camp.  167;  Law  Rep.  3  C.  P.  216. 
y.8  Allen,  227.  1-7  Am.  L.  Reg.  (N.  S.)  14 :  S.  C.  53 
Penn.  St.  512.  a-6  C.  B.  (N.  S.)  923.  b-34  Conn.  554. 
C-6  C.  B.  775  ;  Story  Bailm.  g  591 ;  i  East.  203 ;  2  Kent. 
Comm.  598,  599-  d-3  Penn.  St.  451.  e-i  Campb.  167  ; 
Story  Bailm.  g  €00;    19  Wend.  534;   8  Eng. 'll.  &  £<}. 


12$ 


BAILMENTS. 


duct,  or  those  infected  by  contagion,  or  otherwise 
offensive  in  character,  heahh,  or  habits,  as  to  be 
unsuitable  companions  for  other  passengers/ 

By-laws  or  Statutes.  It  is  incident  to  all 
corporations  to  enact  by-laws  or  statutes  for  the 
control  of  their  officers  and  agents,  and  to  regu- 
late the  conduct  of  their  business  generally. 
In  the  case  of  railways  this  includes  the  regu- 
lation of  the  conduct  of  passengers  and  others 
who  are  in  any  way  connected  with  them  in 
business ;  but  such  regulations  must  be  reason- 
able and  not  against  law.s  By-laws  in  viola- 
tion of  common  right  are  void.''  By-laws  are 
not  required  to  be  in  any  particular  form,  un- 
less required  by  express  provisions  of  the  char- 
ter or  laws  of  the  State.*  Railways  may  law- 
fully discriminate  between  fare  paid  in  the  cars 
and  at  the  stations.J  They  cannot  refuse  to  be 
responsible  for  baggage.''  The  by-laws  or 
statutes  operate  upon  the  members  of  the  cor- 
poration from  their  promulgation,  and  upon  all 
others  from  the  time  of  knowledge  of  the 
same.'  Regulations  for  the  accommodation  of 
passengers,  during  the  passage,  must  yield  to 
the  right  of  others  to  be  carried ;™  this  is  the 
general  practice  in  all  modes  of  transportation 
in  America. 

By-laws  of  a  company  must  be  published." 

As  to  Passengers.     Passenger  carriers 

may  establish  reasonable  regulations  in  regard 
to  the  conduct  of  passengers,  and  discriminate 
between  those  who  conform  to  their  rules  in 
regard  to  obtaining  tickets,  and  those  who  do 
not — requiring  more  fare  for  the  latter."  Passen- 
gers may  be  required  to  go  through  on  the  same 
train  or  forfeit  the  remainder  of  their  tickets.? 
Where  one  procures  a  railway  ticket  marked 
"good  for  this  trip  only"  with  the  view  to  go 
in  the  next  through  train,  but  is  unexpectedly 
detained,  he  may  lawfully  claim  to  go  upon  the 
ticket  on  a  subsequent  day.i  Railway  passen- 
gers, when  required  by  the  regulations  of  the 
company  to  surrender  their  tickets  in  exchange 
for  the  conductor's  checks,  are  liable  to  be  ex- 
pelled from  the  cars  for  a  refusal  to  comply 
with  such  regulation,  or  to  pay  fare  again."^  A 
passenger  is  liable  to  be  expelled  from  the  cars 
for  refusal  to  exhibit  his  ticket  at  the  request 
of  the  conductor  in  compliance  with  the  stand- 
ing regulations  of  the  company.'  Railway 
companies  may  exclude  merchandise  from  their 
passenger  trains.  A  company  is  not  bound  to 
carry  a  person  daily  upon  his  paying  fare,  when 

f-2  Sumn.  C.  C.  221;  8  N.  H.  523.  8'-6  Q.  B.  383; 
14  M.  &  W.  76;  2  Peere  Wms.  207;  Ang.  &  A.  c.  10;  2 


Kent  Comm.  296;  i  Duv.  143;  5  Mich.  520;  5  Dutcher, 
393;  6  Jur.  (1<  S.)  1113;  S.  C.  9  Id.  1081  :  S.  C.  4  B. 
«  S.  1059;  S.  C.  10;  Ho.  Lds.  Cas.  404;    8  Jur.  N.  S. 


640.  I1-5  Conn.  301  ;  i7Vesey,  315;  5  Coke,  64;  2  P. 
Vf^ms.  207.  l-Walford,  249  ;  Hodges,  552,  553.  j-34 
N.  H.  230  ;  29  Vt.  i6g ;  18  1)1.  460 :  53  Me.  279  ;  10  111. 
353,  43  111-  St.  L.  A.  &  T.  H.  R.  R.  vs  South,  k-io 
Exch.  15  ;  S.  C.  28  Eng.  L.  &  Eq.  439.  1-6  Jones  Law, 
558.  m-s  Mich.  520.  11-12  C.  B.  313;  S.  C.  II  Eng. 
L.  &  Eq.  546;  5  Am.  Law.  Reg.  364;  see  also  upon  the 
subject  of  by-laws  to  passengers  on  railways,  Redf. 
R'ys,  ^  28  and  notes.  o-i8Ill.  460;  34N.  H.  230;  29 
Vt.  160;  7  Met.  2  (Mass.)  596;  12  Id.  482  ;  4  Zab.  435  ; 
99  Eng.  L.  &  Eq.  143 :  Redf.  R'ys,  \  28  and  notes  :  24 
Conn.  249.  p-ii  Met.  (Mass.)  121 ;  i  Am.  R'y  Cas. 
601.    q-24  Barb.  514.    r-22  Id.  130.     8-15  N.  Y.  455. 


his  trunk  or  trunks  contain  merchandise, 
money,  and  other  valuable  matter,  known  as 
"  express  matter,"  where  its  by-laws  exclude 
merchandise  from  passenger  trains  and  confine 
its  transportation  to  freight  trains.' 

An  officer  in  fact  may  enforce  the  rules  of 
the  company,"  but  is  liable  for  an  excess  of 
force."  A  company  cannot  enforce  a  rule 
against  a  passenger  where  they  are  in  fault.' 

As  to  Stations  and  Grounds.    Railway 

companies  may  exclude  persons  without  busi- 
ness,'' and  regulate  the  conduct  of  others. 
The  superintendent  may  exclude  from  the 
stations  and  grounds  persons  who  pei-sist  in 
violating  reasonable  regulations  prescribed  for 
their  conduct,  and  thereby  annoy  passengers 
and  interrupt  the  officers  and  servants  of  the 
company  in  the  discharge  of  their  duty." 

A  railway  freight  station  or  freight  ware- 
house is  not  exempt  from  search-warrant;  and 
it  is  not  necessary  that  such  warrant  should  be 
executed  during  the  usual  business  hours,  or 
that  the  officer  should  consult  the  person  who 
has  charge  of  such  station.y 

Damage — Rtde  of — For  Injury  of  Passen- 
gers. The  parly  injured  must  recover  all  his 
damages,  present  and  prospective,  in  one  ac- 
tion;* but  these  should  be  obvious  and  not 
merely  conjectural.*  New  trials  are  allowed 
for  excessive  damages'*  only  in  extreme  cases.* 
The  plaintiff  may  show  the  value  of  his  time 
lost.*  There  is  no  well-defined  rule  for  esti- 
mating damages,  it  generally  rests  very  much 
in  the  discretion  of  the  jury.*  In  an  action  or 
loss  of  service,  mental  anguish  cannot  be  in- 
cluded.' A  woman  claiming  damages  for  per- 
sonal injury  cannot  prove  the  state  of  her 
family  or  death  of  her  husband.* 

The  right  to  damages  is  a  question  of  law ; 
the  amount,  one  of  fact.**  Special  damages 
cannot  be  recovered  unless  alleged  and  proved.' 
A  plaintiff  who  claims  damages  for  loss  of  time 
and  business,  may  prove  the  nature  of  the  busi- 
ness, and  probable  profits.J 

Duty  of  connecting  Companies  to  Passenger i 
and  others.  A  company  is  bound  to  keep  its 
road  safe  -^  and  they  cannot  excuse  themselves 
from  liabilities  for  injury  to  passengers  carried 
over  any  part  of  their  road  because  it  was  oc- 
casioned by  the  act  of  another  company.' 
Passenger  carriers  are  bound  to  make  their 
landing-places  safe."  But  those  who  ride 
upon  freight  trains  by  favor,  can  only  require 

t-5  Law  Reg.  364.  u-34  N.  H.  320;  2  Dutch.  324.  ▼- 
I  Law  R  I  Q.  B.  7;  S.  C.  12  Jur.  (N.  S.)  331.  W-il 
C.  B.  46;  S.  C.  36  Eng.  L.  &  Eq.  253  ;  7  Met.  596:  S. 
C.  I  Am.  R'y  Cas,  389  ;  12  Met.  482.  x-7  Met.  596  ;  8 
N.  H.  523;  12  Met.  482  ;  S.  C.  1  Am.  R'y  Cas.  410. 
y-41  Maine,  233.  z-ii  Ad.  &  Ell.  301  ;  18  Vt.  252 ;  ao 
Barb.  282  :  10  Id.  621 ;  10  La.  An.  33.  a-20  Barb.  282  ; 
10  Id.  621  :  36  N.  H.  9.  b-i2  Barb.  492:  ig  Id.  461; 
20  Id.  282  ;  18  111.  460.  C-9  Johns.  45  ;  10  Id.  443.  €l- 
23  Wend.  425.  e-ii  Grattan,  697.  f-io  La.  An.  33  ;  10 
Am.  R'y  Times,  No.  12  ;  6  Am.  L.  Reg.  355.  S'-8  Gray, 
45.  h-4  H.  &  C.  232;  S.  C.  Law  Rep.  1  Exch.  117; 
12  Jur.  (N.  S.)  233.  i-47  Maine,  419.  J-5S  Penn.  St. 
396;  16  Mich.  t8o:  37  N.  Y.  287.  k-i  Ad.  &  El.  223; 
id.  230  ;  Redf.  R'ys,  \  145,  pi.  7,  8,  and  note.  I-4  Cusn. 
400.  in-9  Foster,  9  :  10  M.  &  W.  109 ;  27  Vt.  377;  19 
N.  Y.  127 ;  23  Ind.  >;34 :  2  Seld.  397 :  3  C.  B.  N.  S.  346; 
6  Id.  923 ;  8  El.  &  Bl.  1035 ;  S.  C.  31 ;  L.  T.  12. 


BAILMENTS. 


129 


»uch  security  as  is  usual  upon  such  trains." 
Owners  of  all  property  are  bound  to  keep  it  in 
such  a  slate  as  not  to  expose  others  to  injury, 
as  the  fencing  off  a  hole  or  area  adjoining  a 
highway,  and  dangerous  to  passers-by;"  and  this 
rule  extends  to  railways,  where  persons  are  right- 
fully on  them  ;»  and  one  who  keeps  open  works 
is  bound  to  keep  them  safe  for  use.P  Corpora- 
tions are  presumptively  responsible  to  the  same 
extent  as  natural  persons  in  the  same  situation. 

I     Restdting  from  the    Sale  of  Through 

Passenger  Tickets  in  the  form  of  Coupons. 
The  general  duty  of  common  carriers  of  pas- 
sengers is  not  the  same  as  where  goods  and 
baggage  are  ticketed  through. •"  Through  tick- 
ets in  the  form  of  coupons  are  to  be  regarded 
as  distinct  tickets  for  each  road,  sold  by  the 
first  company  as  agents  for  the  others,  and  may 
be  used  when  the  holder  elects."  The  first 
company  are  to  be  regarded  as  agents  for  the 
others.'  If  the  business  of  the  entire  line  is 
consolidated,  it  is  different,"  but  in  general  it 
is  not  regarded  as  a  case  of  partnership.^  The 
companies  being  in  different  States  and  king- 
doms makes  no  difference.*  The  first  com- 
pany were  held  liable  for  baggage  not  checked 
when  demanded.*  So,  also,  for  an  injury  oc- 
curring on  another  line  over  which  they  had  sold 
tickets.'  A  stage  route  intersected  by  a  ferry 
hired  to  carry  the  coaches  over,  is  responsible 
for  the  safety  of  passengers  on  the  ferry.* 

The  sale  of  through  tickets  for  an  entire 
route  composed  of  several  successive  com- 
panies of  carriers  having  no  partnership  con- 
nection, does  not  render  each  company  liable 
for  the  injuries  to  passengers  occurring  on  any 
part  of  the  route.* 

Free  Pass.  One  who  rides  upon  a  free  pass, 
or  in  the  baggage-car,  is  not  thereby  deprived 
of  his  remedy  against  the  company  for  injuries 
received  through  their  want  of  due  care,  pro- 
vided he  was  at  the  time  a  passenger  and 
without  fault  on  his  own  part. 

Injuries —  Wrongful  Expulsion  from  Cars. 
Where  a  passenger  is  wrongfully  expelled  from 
cars,  the  company  is  not  held  liable  for  exem- 
plary damages  unless  they  ratified  the  expul- 
sion,*"  but  upon  principle  the  company  should 
be  liable  for  special  damage.  And  in  such 
cases  they  are  trespassers  if  they  refuse  to  de- 
liver baggage."  The  company  must  keep 
strictly  to  the  terms  of  any  by-law  regarding 
the  production  of  tickets  when  called  for."* 
Conductors  are  bound  to  exclude  disorderly  or 
JbfTensive  persons.*     One   wrongfully  expelled 

mo  Foster,  9 ;  lo  M.  &  W.  109 ;  27  Vt.  377;  19 
N.  Y.  127;  23  Ind.  534:  2  Seld.  397;  3  C.  B.  N.  S. 
346;  6  Id.  923 ;  8  El.  &  Bl.  103S :  S.  C.  31 ;  L.  T.  12. 
11-2  Carr.  &  K.  661  ;  6  N.  fl.  147;  6  Johns.  90;  26 
Vt.  602;  jH.  &N.  164:  S.  C.  31  L.  T.;  II  Ad.  &  El. 
223;  II  Exch.  257;  5  Duer.  674.  O-14  Penn.  St.  141. 
p-3  H.  &  Norm.  164 ;  4  Jur.  (N.  S.)  636 ;  5  B.  &  A. 
837.  r-4  E.  D.  Smith,  181.  S-29  Vt.  421  ;  22  Conn.  1  ; 
S.  C.  Id.  502:  26  Ala.  733:  2  E.  D.  Smith,  184:  15 
Mich.  332.  t-29  Vt.  421;  22  Conn,  i;  S.  C.  Id.  502; 
26  Ala.  733;  2  E.  D.  Smith,  184:  31  N.  V.  661.  u- 
II  Wend.  572;  S.  C.  18  Id.  175:  4  Sneed,  203.  v-26 
Ala.  733;  19  Barb.  222;  16  Md.  331.  W-29  Barb.  35; 
17N.  Y.  306.  x-7  Allen,  3^9.  y-7  H.  &  N.  987  ;  S.  C. 
8  Jut.  (N.  S.)  1013.    «-ii  Minn.  277.    a-22  Conn.  502  ; 


from  the  cars  is  not  entitled  to  special  damages, 
unless  it  occurs  clearly  without  his  fault.' 
Where  a  ticket  is  lost,  the  person  is  liable  to 
pay  fare. 8  One  wrongfully  put  on  shore,  by  a 
passenger  boat,  short  of  his  destination,  may 
show,  to  enhance  damages,  that  it  was  done  in 
an  insulting  manner.'' 

Fault  of  the  Party  Injured.     Where  a 

passenger  is  injured  on  a  railway,  the  prima 
facie  presumption  is  that  it  resulted  from  the 
want  of  due  care  on  the  part  of  the  company.* 
But,  nevertheless,  it  is  competent  to  prove  that 
the  damage  occurred  without  their  fault.' 

From    leaping   from     Carriages,    etc. 

Passengers  may  recover  if  they  have  reasonable 
cause  lo  leap  from  the  carriage  and  sustain  in- 
jury ;J  but  not  where  their  own  misconduct  ex- 
poses them  to  peril.''  But  where  one  incurs 
peril  by  attempting  to  escape  danger,  the  author 
of  the  first  motive  is  liable  for  all  the  necessary 
or  natural  consequences.'  But  one  leaps  from 
cars  because  the  train  passes  the  station  at  his 
own  risk,*"  but  may  recover  compensation  for 
the  inconvenience,  loss  of  time,  and  labor  of 
travelling  back.™  If  a  person  being  safely 
seated  is  injured  while  leaving  the  cars,  he  can- 
not recover  if  he  was  guilty  of  negligence 
which  contributed  to  his  injury."*  The  com- 
pany are  bound  to  stop  their  trains  at  all  stations 
where  they  profess  to  leave  passengers  a  suffi- 
cient time  for  them  to  alight.  If  they  do  not, 
and  one  is  injured  in  consequence,  while  at- 
tempting to  leave  the  cars,  the  company  are 
liable."  No  recovery  can  be  had  when  the 
passenger  leaves  on  the  wrong  side.P 

Married  Woman.     In  a  suit   by  the 

husband  for  injury  to  the  wife,  he  may  recover 
the  expenses  of  the  cure.i  But  such  expenses 
cannot  be  recovered  in  a  suit  on  behalf  of  the 
wife  for  her  personal  injuries.'" 

Law  of  Place.  Corporations  can  only  act 
in  conformity  with  the  law  of  the  State  or  sov- 
ereignty by  which  they  are  created ;  hence, 
they  are  liable  as  carriers  only,  to  the  extent, 
and  in  conformity  to  the  law  of  the  State  at 
jurisdiction  where  the  contract  was  made  or 
duly  undertaken ;  and  it  will  make  no  difference 
whether  the  action  is  in  form  "  upon  contract" 
or  "  for  tort "  (or  wrong),  this  is  in  conformity 
to  the  general  rule  of  law,  upon  the  subject  of 
contracts  and  torts.* 

Liability — What  will  excuse  a  Company 
from  carrying  Passengers.  A  company  is  not 
bound  to  carry  where  the   carriages  are  full. 


29  Vt.  421  ;  2  E.  D.  Smith,  184 
N.  S.  733 :  Redf.  R'y,  I      " 
Redf.  R'ys.  9  225 


19  Barb.  222  ;  26  Ala. 
S.  733  ;  Redf.  R'y,  g  158,  and  cases  cited,  b-3  R.  I. 
88;  2  Redf.  R'ys,  ?225.  C-3  Gray,  328.  d-Law  Rep. 
Q.  B.  7;  S.  C.  13  taw  T.  (N.  S.)  231 ;  Law  Rep.  i  Q. 
B.  10:  S.  C.  L.  T.  (N.  S.)  323.  e-ii  Allen,  304;  Id. 
306.  f-Law  Rep.  3  Q.  B.  25.  g-so  N.  J.  388.  I1-8 
Jur.  875.  i-Am.  L.  Reg.  (N.  S.)  715,  721 ;  36  Mo.  418; 
14  How.  (U.  S.)  468 ;  7  Ind.  474:  5  Id.  340;  30  111.  9. 
J-9  Met.  i;  i  Sandf.  89;  13  Pet.  (U.  S.)  i8i ;  17  lU. 
406 ;  24  Ga.  356 :  i  Stark.  493.  k-15  111.  468.  I-23  Penn. 
St.  147,  150;  I  McLean,  510.  550.  m-i  Id.  510,  5<;o;  9 
La.  An.  441  :  40  Miss.  374.  n-6  Gray,  64.  0-32  fenn. 
St.  292.  p-33  Id.  318.  q-3  Comst.  489  ;  20  Wend.  210; 
14  B.  Mon.  204.  r-2i  Conn.  571;  3  Comst.  489;  20 
Wend.  210;  14  B.  Mon.  204;  50  Barb.  628.  s-g  jur- 
(N.  S.)  522:  S.  C.  I  H.  &  C.  219;  8  Jur.  (N.  S.J  568. 


>ao 


BAILMENTS. 


Bat  it  should  undoubtedly  be  an  extreme  case 
to  justify  the  absolute  refusal  of  a  passenger.' 
They  are  not  bound  to  carry  disorderly  persons 
or  those  otherwise  offensive — as  infected  by 
contagion,  or  offensive  in  person  or  conduct." 
A  carrier  is  liable  in  tort  for  breach  of  duty 
aside  from  any  contract.'^  The  purchase  of  a 
ticket  does  not  constitute  the  contract;*  the 
company  has  a  right  to  impose  reasonable  reg- 
ulations as  to  the  carriage  of  passengers.'^ 

of  a  Carrier  where  both  parties  are  in 

fault.  Railway  companies  are  not  liable  as 
passenger  carriers  unless  they  are  in  fault/  nor 
when  the  plaintiff's  fault  contributes  directly  to 
the  injury;*  but  where  there  is  an  intentional 
wrong  on  the  part  of  the  defendant,  he  is  lia- 
ble, notwithstanding  negligence  on  the  part  of 
the  plaintiff.'  The  plaintiff  may  recover  for 
gross  neglect  of  the  company,  although  in  fault 
himself,''  but  not  where  he  knew  his  neglect 
would  expose  him  to  injury.'  And  he  may  re- 
cover, though  riding  in  the  baggage  car.**  But 
the  company  does  not  owe  such  duty  to  wrong- 
doers.* The  plaintiff  may  recover,  although 
out  of  his  place  on  the  train,'  but  he  must  be 
lawfully  in  the  place  where  injured.*  Passen- 
gers are  bound  to  conform  to  the  regulations 
of  the  company  and  directions  of  conductors.'' 
Proof  of  the  company's  negligence  is  on  the 
plaintiff,'  negligence  on  the  plaintiff's  part  is 
not  presumed  ;J  and  after  proof  of  presumptive 
negligence,  the  company  must  show  thai  no 
reasonable  precaution  could  prevent  it.''  One 
crossing  a  railway  track  must  look  out  for  trains 
or  he  cannot  recover.'  Rushing  across  a  track 
when  a  train  is  approaching  is  foolhardy  mis- 
conduct, and  no  recovery  can  be  had  for  the 
injury."  So  for  injury  the  result  of  heedless- 
ness." Negligence  to  preclude  recovery  must 
directly  tend  to  produce  the  injury."  Ordina- 
rily, proof  must  be  given  of  defendant's  negli- 
gence, and  that  but  for  such  negligence  the 
injury  would  not  have  occurred.?  Passenger 
carriers  must  provide  suitable  accommodations 
for  all  passengers,"!  then  passengers  must  con- 
form to  the  usages  and  rules  of  the  company 
or  fail  to  recover. •■  Where  a  passenger  is  in- 
jured by  the  fault  of  carrier's  employees,  he 
may  recover,  but  not  if  done  by  his  own  invi- 
tation.* 

t-i6  Jur.  196;  S.  C.  8  Eng.  L.  &  Eq.  362;  i  Redf. 
R'ys,  \  131 ;  Id.  {  26,  n.  6.  u-2  Sumner,  221 ;  8  N.  H. 
523;  19  Wend.  239;  10  N.  H.  486;  15  Hi.  472;  3  Brod. 
&  Bing.  54;  S.  C.  9  Price,  408.  v-2  El.  &  El.  844;  19 
C.  B.  (N.  S.)3io;    S.  C.  II  Jur.  (N.  S.)672.     w-g  C. 

B.  (N.  S.)  310;  S.  C.  II  Jur.  (N.  S.)  730;  13  L.  T.  (N. 
S.)  20.  x-ii  Oiiio  St.  457.  y-22Vt.2i3;  ij  East. 60; 
6  Whart.  311  ;  19  Wend.  399;  21  Id.  188;  Id.  615;  10 
Conn.  507  ;  12  Barb.  492 ;  16  C.  B.  175  ;  30  Eng.  L.  & 
Eq.  473  ;  n  Allen,  500  ;  5  Barb.  337  ;  8  Id.  368 ;  8  Rich. 
120;  16  111.  548;  13  Cal.  599.  *-22Vt.  21-?;  1  Ad.  & 
El.  (N.  S.)29;  iMoo.  &M.  169;  2  est*  421:  Id. 
601;  6  Cow.  189,  119;  3M.  &G.  59;  iQ.  B.  29;  19 
Conn.  566;  23  Id.  437;   26  Id.  591  ;  10  M.  &  W.  546;  5 

C.  &P.  190;  24  Ga.  75;  26  III.  255.  a-2Hill(N.  Y.) 
281  :  3  M.  &  W.  244  ;  18  Ga.  679,  686  ;  i  Dutcher,  556  ; 
21  Barb.  339  ;  16  Id.  558  ;  17  Barb.  94  ;  27  Id.  528  ;  4 
Zab.  268,  824  :  10  Ga.  440.  b-19  Conn.  507  ;  4  Bing. 
628;  3B.  &  Aid.  304;  8C.  &P.  691;  10  C.  B.  (N.  S.) 
470;  7H.  &N.  736;  3B.  &S.  244.  c-Butterfield  vs. 
Forrester,  to  East.  60.    d-i  Duer,  571 ;  aa  Barb.  91 ;  43 


where  one  company  uses  the  trad  »/ 

another.  A  railway  company  which  receives 
the  cars  of  another  company  upon  its  track, 
placing  them  under  the  control  of  its  agents 
and  servants,  and  drawing  them  by  its  locomo- 
tive power,  assumes  toward  the  passengers  the 
common  liability  of  passenger  carriers ;'  and  it 
makes  no  difference  in  regard  to  the  liability 
of  the  company  to  passengers  passing  over  their 
road,  whether  they  purchased  tickets  of  them  or 
of  any  other  railway  company  or  agent  author- 
ized to  sell  such  tickets.* 

Passenger  carriers  who  run  over  other  roads 
than  their  own  are  responsible  for  the  entire 
route,  and  must  take  the  risk  of  the  negligence 
of  the  employees  of  the  other  companies." 

where  trains  do  not  arrive  on  time.    A 

company  is  liable  for  not  delivering  a  passenger 
according  to  contract,'  but  they  may  excuse 
themselves  by  special  notice.  They  are  liable 
for  damages  caused  by  the  discontinuance  of  a 
train."  Carriers  not  performing  according  to 
previous  notice  are  liable  to  all  injured,  as  for 
breach  of  duty,"  but  are  not  liable  for  an  injury 
caused  by  a  stage  company  connecting  with  the 
lailway.J"  They  will  not  be  liable  where  pas- 
sengers mistake  the  place  of  changing  cars,  and, 
by  remaining  in  the  same  car,  are  carried  out 
of  their  intended  route,  upon  proper  notice  of 
the  course  of  th«ir  trains  and  places  of  chang- 
ing cars.*  In  order  to  enable  the  plaintiff  to 
recover  special  damages  claimed  to  have  been 
sustained  by  reason  of  the  failure  of  a  contract 
to  carry  him  as  a  passenger,  it  must  appear 
clearly  and  by  affirmative  proof  that  the  dam- 
ages were  sustained  without  any  fault  on  his 
part,  and  in  spite  of  his  utmost  efiTorts  to  avoid 
them.* 

Negligence — what  is  prima  facie  evidence  of. 
Where  a  stage  coach  is  overturned  when  laden 
with  passengers,  it  is  regarded  as  prima  facie 
evidence  of  negligence  in  the  proprietor  or  his 
servants.'"  And  where  any  injury  occurs  to  a 
passenger  upon  a  railway,  it  has  been  consid- 
ered prima  facie  evidence  of  the  culpable  ne- 
glect of  the  company." 

Payment  of  money  into  court  in  actions 
against.  Payment  of  money  into  court  where 
the  declaration  in  tort  is  general,  only  admits 
damages  to  the   extent  of  the  amount  paid. 

MaiBe,  501 ;  6  Duer,  382.  e-8  Barb.  368;  4  Penn.  St. 
375.  f-23  Id.  532.  g-i  Duer,  571-2.  I1-8  Penn.  St. 
479;  2tld.  203;  7  Porter  (Ind. )  474  ;  9  Rich.  84.  I- 
7  Gray,  92.  J-18  N.  Y.  248;  27  Vt.  62  ;  37  Id.  501.  k- 
18  N.  Y.  408.  1-1 8  Id.  422.  in-24  Id.  430.  M-4  H.  & 
N.  781.  0-27  Conn.  393  ;  8  C.  &B.  (N.  S.)  56?;  7  Jur. 
(N.  S.)  168.  p-ii  Ir.  Com.  L.  377;  I  C.  B.  (N.  S.) 
588 ;  S.  C.  8  Jur.  (N.  S.)  796 ;  2  H.  &  C.  722  ;  13  C.  B. 
(N.  S.)43o:  S.  C.  9  Jur.  (N.  S.^970;  3H.&C.  596: 
16  C.  B.  (N.  S.)  399 ;  24C.  B.(N.  S.)54-  <1-34N.  Y. 
670.  r-7  Allen,  207 ;  8  Id.  234;  37  N.  Y.  287  ;  53  Penn. 
St.  460  ;  10  Allen,  387.  s-Law  Rep.  3  C.  P.  368,  374  & 
n.  t-9  Cush.  24.  u-5  Wall.  90;  3  Exch.  146.  V- 
Hodges  R'ys,  619  ;  19  L.  Rep.  379.  W-16  Jur.  196;  S. 
C.  8  Eng.  L.  &  Eq.  362 ;  5  El.  &  Bl.  860;  i  H.  &  N. 
408;  S.  C.  38  Eng.  L.  &  Eq.  335;  13  Vt.  388:  i  Redf. 
R-'ys,  §  131,  n.  14.  x-32  Miss.  17;  36  Id.  660.  y-2« 
Conn.  I.  «-6  Duer,  523.  H'-g  Bosworth,  412.  D-13 
Pet.  181.  c-5  Q.  B.  747  ;  8  Penn.  St.  483 ;  25  III.  471  ; 
16  Barb.  113,  356;  20  Id.  282;  Redf.  R'y*,  2  i49>  «•  t> 
and  cases  cited. 


BAILMENTS. 


13» 


But  in  cases  of  special  contract  it  admits  the 
contract  and  breach  alleged.* 

Private  Carriers.  Private  carriers  incur 
the  responsibility  of  the  exercise  of  ordinary 
diligence  only  like  other  bailees  for  hire.' 

for  compensation.     Private  carriers  are 

bound  to  the  same  diligence  and  skill  as  pru- 
dent and  careful  men  ordinarily  exercise  in 
similar  employments.  They  must  do  every- 
thing, and  omit  nothing,  which  careful  men  are 
accustomed  to  do  in  similar  business  where  they 
themselves  are  bolli  the  carriers  and  owners  of 
the  goods.  Warehousemen  and  forwarders 
are  responsible  to  the  same  extent  as  private 
carriers.'  So,  also,  tow-boat  owners  and  wharf- 
ingers.* Deputy  postmasters  are  bound  to  care 
and  diligence,"*  but  not  as  common  carriers,^ 

A  common  carrier  may  become  a  private  car- 
rier.J  Where  goods  are  injured  while  in  the 
custody  of  a  private  carrier  or  warehousemen, 
the  burden  is  upon  him  to  show  that  it  occurred 
from  some  other  cause  than  his  want  of  care, 
diligence,  or  skill.'' 

The  recovery  of  judgment  without  satisfac- 
tion, against  a  private  carrier,  in  an  action  of 
assumpsit,  for  not  transporting  and  delivering 
the  articles  according  to  his  contract,  is  no  bar 
to  an  action  against  a  third  person  who  has 
purchased  the  property  of  the  bailee.' 

without  compensation.     A  contract  to 

convey  without  compensation  is  not  binding 
until  entered  upon ;  then  it  must  be  faithfully 
performed ;  and  if  any  damage  befall  the  prop- 
erty in  the  course  of  transportation,  through  the 
fault  of  the  carrier,  he  is  responsible  for  it  ;■" 
but  his  duty  depends  upon  the  nature  of  the 
property."  It  is  his  duty  to  carry  according  to 
his  known  custom  and  usage."  If  injury  hap- 
pen to  the  property  while  in  the  custody  of  the 
bailee,  the  interference  of  the  bailor  to  remedy 
the  evil  will  not  release  the  bailee  from  the 
consequences  of  his  default.? 

A  gratuitous  bailee  has  such  an  interest  in 
the  property  while  in  his  custody,  and  is  so  far 
responsible  for  its  security  that  he  may  maintain 
an  action  against  a  stranger  for  any  injury  to  it.i 

Warehousemen  and  wharfingers  are  not  gra- 
tuitous bailees."^ 

COMMISSION  is  an  undertaking  without 
reward  to  do  something  for  another  with  re- 
spect to  a  thing  bailed." 

d-17  Jur.  532 ;  S.  C.  20  Eng.  Law  &  Eq.  238 ;  16  Vt. 
286 :  7  Cush.  581 ;  6  M.  &  W.  9 :  3  Id.  486 :  6  Exch. 
123 ;  S.  C.  3  Eng.  L.  &  Eq.  548.  e-Story  Bailm.  § 
495  ;  13  Barb.  481  ;  i  Wend.  272  :  i  Hayw.  14  ;  2  Dana, 
430;  4  Taunt.  787  ;  6  Id.  577;  2B.  &S.  417;  2  C.  B. 
877;   see  ante,  Common  Carrier,     f-8  M.  &  W.  258; 

1  Peake  N.  P.  C.  114;  26  Miss.  253;  9  Wend.  268.  jf- 
13  Wend.  387;  2  Barb.  S.  C.  326;  3  Hill,  545.  fi- 
Cowp.  182  ;    5  Burr,  27C9  ;    4  Id.  2149  ;    3  Wils.  443.     1- 

2  Bay,  551  ;  8  Watts,  453.  j-i  Wend.  272.  k-g  C.  & 
P.  632.  I-13  N.  H.  494.  in-2  Ld.  Raym.  909;  S.  C. 
Com.  133  ;  3  Mason,  132:  1  Stark,  237 ;  i  Swan.  St. 
452.  n-38  Me.  55  :  18  Id.  74 ;  14  S.  &  R.  275  ;  28  Vt. 
180  :  I  Moore  &  P.  583.  0-38  Me.  55  ;  Wright,  528  ;  20 
Mo.  519.  p-7  Watts,  542.  q-i  B.&  Aid.  59.  r-ii  Q. 
B.  43.  8-Rutnerford  Inst.  105.  t-Jones  Bailm.  36,  117; 
o  Ma.ss.  470.  A  bailment  of  goods  to  be  kept  by  the 
bailee  without  reward,  and  delivered  according  to  the 
object  or  purposes  of  the  original  trust.  Story  Bailm.  \ 
41,    A  contract,  by  which  one  of  th?  contracting  par- 


DEPOSIT  is  a  naked  bailment  of  goods  to 
be  kept  for  the  depositor  without  reward,  and 
to  be  returned  when  he  shall  require  it.' 

An  irregular  deposit  arises  where  one  depos- 
its money  with  another  for  safe  keeping,  in 
cases  where  the  latter  is  to  return,  not  the  spe- 
cific money  deposited,  but  an  equal  sum. 

A  quasi  deposit  arises  where  one  comes  law- 
fully into  possession  of  the  goods  of  another  by 
finding. 

The  rule  of  responsibility  in  deposits  is,  that 
the  bailee  must  act  in  good  faith,  and  in  the 
manner  as  he  conducts  his  own  affairs  ;"•  and 
special  undertakings  by  the  bailee  are  binding 
upon  him  to  the  extent  understandingly  made.^ 

The  degree  of  diligence  to  be  exei'cised  by 
the  bailee  depends  upon  circumstances ;  he  is 
not  responsible  for  theft  or  robbery  without  his 
fault." 

A  depository  is  bound  to  take  only  ordinary 
care  of  the  deposit,  which  will,  of  course,  vary 
with  the  character  of  the  goods  to  be  kept,  and 
other  circumstances.'^  He  has,  in  general,  no 
right  to  use  the  thing  deposited,?  unless  in  cases 
where  permission  has  been  given,  or  may  from 
the  nature  of  the  case  be  implied.*  He  is 
bound  to  return  the  identical  deposit,  and  in 
the  same  state  in  which  he  received  it ;  if  it 
is  lost,  or  injured,  or  spoiled,  by  his  fraud  or 
gross  negligence,  he  is  responsible  to  the  extent 
of  the  loss  or  injury."  He  is  bound  to  restore, 
not  only  the  thing  deposited,  but  any  increase 
or  profits  which  may  have  accrued  from  it ;  if 
an  animal  deposited  bear  young,  the  latter  are 
to  be  delivered  to  the  owner.'' 

In  case  of  irregular  deposits,  as  those  with  a 
banker,  the  relation  of  the  banker  to  his  cus- 
tomer is  that  of  debtor  or  creditor,  and  does  not 
partake  at  all  of  a  fiduciary  character.  It  ceases 
altogether  to  be  the  money  of  the  depositor,  and 
becomes  the  money  of  the  banker.  It  is  his  to 
do  what  he  pleases  with  it,  and  there  is  no  trust 
created."  The  banker  is  not  liable  for  interest 
unless  expressly  contracted  for ;  and  the  deposit 
is  subject  to  the  statute  of  limitations.* 

If  the  bailee  puts  the  goods  to  a  use  not  jus- 
tified by  the  bailment,  he  is  guilty  of  a  conver- 
sion, and  responsible  for  all  losses.* 

In  cases  of  a  joint  deposit,  where  there  is  a 
.special  undertaking  to  keep  and  restore  to  all 
jointly,  the  bailee  cannot  deliver  to  one.* 

ties  gives  a  thing  to  another  to  keep,  who  is  to  do  so 
gratuitously,  and  obliges  himself  to  return  it  when  he 
shall  be  requested.  See  Executions  ;  Practice,  post. 
U-2  Ld.  Raym.  913;  i  Id.  646;  Jones  Bailm.  46;  a 
Strange,  1099;  S.  C.  i  Corw.  100;  17  Mass.  179-514;  7 
Cow.  278  ;  3  Dana,  205 ;  23  Pick.  330;  i  B.  &  Aid.  59. 
V-Willes,  iiq;  3  Petersdorff,  363.  W-Wright,  411  ;  3 
Kas.  257  ;  3  Petersdorff,  363.  x-See  14  S.  &  R.  275  ; 
17  Mass.  479  ;  3  Mas.  C.  C.  132 ;  2  Ad.  &  E.  256  ;  1  B.  & 
Aid.  59.  y-Bac.  Abr.  Bailm.  D.  Z-Story  Bailm.Jgo; 
Jones  Bailm.  80,  81  ;  i  Bouv.  Inst.  n.  1008.  a- Jones 
Bailm.  36,  46,  120 ;  17  Mass.  479:  Hawks,  145;  i 
Dane  Abr.  c ;  17  Art.  i  &  2.  l»-Story  Bailm.  |  99.  c- 
17  Wend.  94  :  1  Merriv.  568.  The  legal  remedy  is  a  suit 
at  law  for  debt ;  the  balance  cannot  be  reached  by  a  bill 
in  equity,  as  there  is  no  trust  raised.  2  Ho.  L.  Cas.  30; 
I  Younge  &  C.  Ch.  464.  «l-i  Phill.  401,  405 ;  2  Ho.  L. 
Cas.  39,  40;  see  Sewell,  Banking,  4  Blackf.  495.  e-t3 
East.  197 ;  Jones  Bailm.  51 ;  7  El.  &  Bl.  234 ;  S.  C-  */* 
Eng.  L.  &  Eq.  105. 


«32 


BAILMENTS. 


A  dapository  is  not  liable  to  an  action  for  not 
restoring  a  thing,  until  after  demand,  unless  he 
have  put  it  to  some  use  not  justified  by  the 
bailment.' 

Whenever  a  person  receiving  the  goods  has 
an  option  to  return  the  same  thing,  or  another 
article  of  the  same  kind  and  value,  the  property 
passes  to  him  as  efiFectually  as  in  an  ordinary 
case  of  sale  and  exchange,  and  the  risk  is  with 
ihe  bailee,^  or  person  receiving  the  goods. 
'  A  mere  deposit  of  money,  or  other  thing,  is 
iways  subject  to  recall  at  the  election  of  the 
depositor.'' 

Money  requires  more  vratchful  care  than 
most  other  property.' 

FORWARDING  MERCHANTS  are 
persons  who  receive  and  forward  goods,  taking 
upon  themselves  the  expenses  of  transportation, 
for  which  they  receive  a  compensation  from  the 
owners,  but  who  have  no  concern  in  the  ves- 
sels, cars,  or  wagons  by  which  they  are  trans- 
ported, and  no  mterest  in  the  freight.  A 
forwarding  merchant  is  not  deemed  a  common 
carrier,  but  a  mere  warehouseman  or  agent.J 
He  is  required  to  use  only  ordinary  diligence 
in  sendincf  the  property  by  responsible  persons.* 
GRATIS  undertakings  are  those  without 
reward  or  compensation.  When  a  bailee  un- 
dertakes to  perform  some  act  or  work  gratis  he 
is  answerable  for  his  gross  negligence  if  any 
loss  should  be  sustained  in  consequence  of  it ; 
but  a  distinction  exists  between  a  misfeasance 
and  a  nonfeasance — between  a  total  omission 
to  do  an  act  which  one  gratuitously  promises 
to  do  and  a  culpable  negligence  in  the  execu- 
tion of  it — in  the  latter  case  he  is  responsible, 
while  in  the  former  he  would  not,  in  general, 
be  bound  to  perform  his  contract.' 

HIRE.  Hire  is  a  bailment  in  which  com 
pensation  is  to  be  given  for  the  use  of  a  thing 
or  for  labor  and  services  about  it.™ 

There  are  three  species  of  this  contract : 

1.  The  hire  of  labor  and  work  to  be  done, 
or  care  and  attention  to  be  bestowed,  or  the 
goods  let  by  the  hirer  for  a  compensation. 

2.  The  hire  of  the  carriage  of  goods  from 
one  place  to  another  for  a  compensation." 

3.  The  bailment  of  a  thing  to  be  used  by 
the  hirer  for  a  compensation  to  be  paid  by  him. 

This  contract  arises  from  the  principles  of 
natural  law;  it  is  voluntary,  and  founded  in 
consent;  it  involves  mutual  and  reciprocal 
obligations;  and  it  is  for  mutual  benefit.  In 
some  respects  it  bears  a  strong  resemblance  to 
the  contract  of  sale;  the  principal  difference 
between  them  being  that  in  cases  of  sale  the 

f-9  Johns.  361 ;  aGreenl.aoS:  Cox,  298  :  3  Hill  fS. 
0284:  56  Penn  St.  115;  38  III  289  |f-i  Ohio  St. 
244  :  3  Iowa,  599.  h-33  N  H.  171 :  2  E.  D.  Smith,  60. 
I-Wright,  410:  iSneed,248:  35  Mo  487.  j-12  Johns. 
*3'  :  7  Cow.  497  K-2  Cow.  593  ;  see  Story  Bailm  I- 
4  Johns.  84:  5T.  R.  143:  2  Ld.  Raym.  913.  m-2  Kent 
Comm.  456:  Story  Bailm.  3.S9.  n-Jones  Bailm.  85,86, 
00, 103,  118  :  Kent  Comm.  456 :  see  Common  Carriers, 
CoMMOi*  Carriers  of  Passengers,  Private  Car- 
riers, above.  o-Vinnius  lib.  3  tit.  25,  in  pr.  Poth. 
Lonage,  n.  n.  a-4 :  Jones  Bailm.  86 :  Story  Bailm.  \  371  ; 
Parsons,  Story,  Contr.  2  Kent  Comm.  456.  |»-i  Domat. 
i^:  Bk.  I.  p|.  iv.  g  li   art  1;  »  Const.  121:  Wh.  Am. 


owner  parts  with  the  whole  proprietary  interest 
in  the  thing,  and  in  cases  of  hire  the  owner 
parts  with  it  only  for  a  temporary  use  and  pur- 
pose. In  a  sale  the  thing  itself  is  the  subject 
of  the  contract;  in  hiring  the  use  of  the  thing 
is  the  object." 

Hiring  Things.  The  engagements  of  a 
person  who  takes  anything  to  hire  are  to  put 
the  thing  to  no  other  use  than  that  for  which  it 
is  hired ;  to  use  it  well ;  to  take  care  of  it ;  to 
restore  it  at  the  time  appointed;  to  pay  the 
rent  or  hire ;  and,  in  general,  he  ought  to  ob- 
serve whatever  is  prescribed  by  the  covenant, 
by  law,  and  by  custom  ;P  and  he  stipulates  for 
requisite  skill  and  diligence  to  accomplish  the 
purpose  of  the  bailment,  prudently  and  safely.' 

In  hiring  horses,  the  hirer  is  bound  to  feed 
properly  at  his  own  expense,  and  treat  the  ani- 
mals judiciously  and  prudently,  unless  where  the 
owner  retains  control  of  the  team  by  his  driver.' 

A  hirer  may  allow  his  servants  to  use  the 
thing,  he  being  responsible  for  their  conduct.* 
But  he  is  not  ordinarily  responsible  for  the  acts 
of  the  servants  of  the  owner.* 

The  right  of  possession  of  the  thing  during 
bailment  is  in  the  bailee." 

If  the  thing  fails  to  answer  the  purpose,  the 
hirer  is  not  bound  to  pay  the  price  ;^  the  same 
rule  applies  to  letting  of  the  use  of  things  for 
a  term  of  time  at  a  fixed  price."  The  price  is 
only  due  to  the  extent  of  the  service.* 

Letting  Things.  The  leading  incidents 
of  this  class  of  bailments  are  as  follows  : 

1.  The  thing  bailed  must  be  of  a  personal 
quality ; 

2.  It  must  be  tangible  and  under  the  power 
and  control  of  the  bailor,  either  as  his  own 
property,  or  under  his  own  control,  with  the 
assent  of  the  owner ; 

3.  It  must  of  course  be  a  thing  capable  of 
being  let ; 

4.  There  must  be  a  price  agreed  between 
the  parties,  or  at  least  it  must  be  implied  that 
a  reasonable  compensation  is  to  be  paid  for  the 
use  in  some  way  ; 

5.  There  must  be  a  delivery  of  the  thing  to 
the  bailee  for  a  particular  time,  or  for  some 
particular  use,  and  until  that  is  accomplished. 
A  hirer  of  things  is  bound  to  exercise  watch- 
fulness to  keep  them  securely.* 

In  case  of  mere  deposit  of  goods,  or  where 
there  is  only  a  payment  for  house  room,  and 
nothing  for  care  and  custody  of  the  things 
bailed,  the  bailee  is  not  responsible  for  the  loss, 
unless  upon  proof  of  some  particular  default 
or  neglect  ;y  unless  there  was  a  total  default  in 

Com.  239  ;  13  Johns.  211  :  i  Cow.  322  :  6  Ga.  213.     q- 

2  Ld.  Raym  909  ;  2  Fol.  62.  b.;  3  Petersdorf  Ab.  374  ; 
I  Esp.  N  P.  C.  314 :  I  Cow.  30.  r-2  Br.  &  B.  359 : 
Story  Bailm.  388-389;  3  Petersdorf  Ab.  376,  and  note. 

3  Camp.  4 :  5  Esp.  35  :  Id.  263.  S-i  Mod.  210;  S.  C.  3 
Salk.  271;  Story  Bailm.  §  400.  t-S  B.  &  C.  547;  i 
Redf.  Railw.  503.  ?  129  :  24  Barb.  355 ;  3  Gray,  349 ;  6 
M  &  W.  499  il-Velv.  172:  10  Vt.  208;  5  Mass.  104; 
3  Pick.  A92  ;  12  Id.  139  ;  17  Vf.  499  ;  40  111  320 :  46  N. 
H.  75;  2  Camp  335  v-3  Barb.  380.  w-i  Head.  258: 
I  Met.  (Ky.)288.  3  Ala.  562.  21  Texas,  478.  x-2  C. 
B.  877;  S.  C.  10  Jur.  435.  y-io  Gush.  117;  9  Wend 
27.. 


BAILMENTS. 


153 


delivering  up  the  goods  on  demand,  and  no 
explanation,  or  an  evasive  one,  or  one  that  is 
improbable.' 

Work  and  Custody.  All  mechanics  and 
artisans,  who  undertake  to  do  work  and  re- 
pairs in  the  line  of  their  employment,  naturally 
become  responsible  for  competent  knowledge, 
skill,  and  experience,  and  also  for  the  exercise 
of  that  diligence,  care,  and  faithfulness  which 
is  requisite  to  the  successful  accomplishment 
of  the  work.  And  where  the  result  of  the  un- 
dertaking is  not  successful,  the  laborer  is  not 
entitled  to  compensation  ;  and  he  is  also  liable 
to  an  action  for  any  injury  to  the  materials 
furnished  and  with  which  he  attempted  to 
■work.* 

The  general  property  of  the  thing  bailed  re- 
mains in  the  bailor,  and  if  during  the  course 
of  the  work  it  is  destroyed  by  fire  or  otherwise, 
without  the  fault  of  the  bailee,  the  loss  will 
fall  on  the  bailor,  and  he  will  also  be  liable  to 
the  bailee  for  the  work  already  accomplished;' 
but  articles  made  to  order  are  at  the  risk  of  the 
owner. '' 

In  cases  where  the  thing  delivered  for 
manufacture  is  not  to  be  returned  in  specie 
but  in  kind,  it  is  a  sale,  and  not  a  bailment," 
as  where  grain  is  delivered  to  be  paid  for  in 
flour,  etc. 

Bailees  for  hire  commonly  have  a  lien  for 
work  and  materials  furnished  by  them.*'  But 
no  lien  can  be  created  except  by  the  owner's 
consent.* 

Where  work  is  not  done  in  time,  or  accord- 
ing to  contract,  the  bailor  is  only  responsible 
/or  what  it  benefits  him.' 

A  bailee  for  work  for  reward  is  not  entitled 
to  use  material  superior  to  those  stipulated, 
with  any  view  to  higher  compensation,  unless 
t/iere  is  evidence  of  the  previous  or  subsequent 
dssent  of  the  bailor ;«  nor  will  the  bailee  be 
allowed  to  charge  extra  compensation  for  extra 
work,  unless  the  deviation  was  previously  or 
subsequently  sanctioned  by  the  bailor.'' 

Agisters  of  cattle  or  livery-stable  keepers  are 
jnly  bound  to  use  such  care  and  diligence  as 
prudent  men  Ho  in  their  own  affairs.' 

INNKEEPERS.  An  inn  is  a  house  for 
xhe  lodging  and  entertainment  of  travellers ; 
often  a  tavern  where  liquors  are  furnished  for 
travellers  and  others.J 

An  innkeeper  is  the  keeper  of  a  common 
inn  for  the  lodging  and  entertainment  of  trav- 

y-io  Cush.  117;  9  Wend.  271.  sB-i  Chit.  PI.  96,  140; 
I  Car.  &  P.  352 ;  2  Id.  378 ;  2  Wils.  325 ;  8  East.  348  ;  i 
Camp.  138;  3  Stark.  6;  i  Gow.  30.  a-2  Kent  Comm. 
590;  I  Taunt.  137;  3  Burr.  1592.  b-Story  Bailm.  ?  427. 
a.  C-3  Hill,  28;  3  Mason,  478;  8  Greenl.  loi  ;  7  Cow. 
752;  I  Ohio  St.  244;  13  Mich.  10.  d-Yelverton,  65, 
«nd  note,  e-19  Pick.  228.  f-7  £351,479:  14  Johns. 
377;  15  Vt.  515;  I  Barn.  &  C.  92 ;  2  Mass.  147;  19  Vt. 
131  :  3  Stark,  6;  i  Camp.  39,  190  ;  8  Vt.  54;  12  Id.  617. 
g:-4  Taunt.  745,  749.  11-24  Vt.  347;  "  W.  549;  19  Id. 
121  :  3  T.  R.  590.  i-Holt.  N.  P.  547;  22  Texas,  657: 
>4  Mo.  600.  j-Webst.  Diet.  Luke  ii  :  in  most  of  the 
States,  the  words  Inn,  Tavern,  and  Hotel  are  synony- 
mous:  Wcbst.  Diet.:  see  2  Kent  Comm.  fgth  Ed.)  597;* 
note  A.  k-Bac.  Abr.  Inns,  etc.;  Story  Bailm.?  475; 
"  It  ought  to  be  a  common  inne  "  for  passengers,  not  for 
neighbors  or  boarders :  8  Co.  32 ;  it  is  not  requisite 
that  stable*  b«  connected  with  the  house,  or  that  trav- 


ellers and  passengers,  their  horses  and  attend- 
ants, for  a  reasonable  compensation.''  But  one 
who  entertains  strangers  occasionally,  although 
he  may  receive  compensation  for  it,  is  not  an 
innkeeper.' 

A  guest  is  a  traveller  who  stays  at  an  inn  or 
tavern  with  the  consent  of  the  keeper.™ 

A  boarder  is  one  who  being  an  inhabitant 
of  a  place,  makes  a  special  contract  with 
another  person  for  board,  including  food  and 
lodging,"  and  is  to  be  distinguished  from  a 
guest." 

A  boarding-house  or  restaurant  keeper  is  not 
an  innkeeper,  either  as  to  duty,  right,  or  re- 
sponsibility.p 

Guests — Rights  and  Responsibilities. 
All  who  become  the  patrons  of  an  innkeeper 
(not  of  a  victualer,  or  boarding-house  keeper, 
or  a  farmer,  or  other  person),  in  his  capacity  as 
such,  are  guests.  But  it  is  requisite  that  the 
place  where  entertainment  is  sought  be  a  com- 
mon inn;  and  the  guest  must  become  a  patron 
of  the  inn  upon  the  expectation  of  both  parties, 
to  pay  for  what  he  receives ;  and  the  guest 
must  not  have  changed  his  relation  of  a  tran- 
sient guest  to  that  of  a  permanent  boarder ;  for, 
if  so,  he  is  no  longer  entitled  to  that  higher 
degree  of  responsibility  which  attaches  to  the 
office  of  an  innkeeper.  One  may  acquire  the 
rights  of  a  guest  as  to  his  horse  by  leaving  him 
at  the  stable  of  an  inn."!  So,  also,  where,  in 
addition  to  that,  he  took  some  of  his  meals  at 
the  inn.*" 

If,  after  taking  lodgings  at  an  inn,  a  guest 
leaves  his  horse  there  and  goes  elsewhere  to 
lodge,  he  is  still  to  be  considered  as  a  guest;' 
but  not  if  he  merely  leaves  goods  for  keeping, 
for  which  the  landlord  receives  no  compensa- 
tion.' The  length  of  time  a  man  is  at  an  inn 
makes  no  difference,  whether  he  stays  a  day,  a 
week,  or  a  month,  or  longer,  or  only  for  tem- 
porary refreshment.  So,  always,  that  though 
not  strictly  transient,  he  retains  his  character 
as  a  traveller."  But  if  a  person  comes  under 
a  special  contract  to  board  at  an  inn,  he  is 
not,  in  the  sense  of  the  law  a  guest,  but  a 
boarder.'^ 

Innkeepers  are  generally  liable  for  all  goods 
belonging  to  the  guest  brought  within  the  inn. 
It  is  not  necessary  that  the  goods  should  have 
been  in  the  special  keeping  of  the  innkeeper 
to  make  him  liable.     This  rule  is  founded  on 

ellers  exclusively  receive  entertainment  there,  3  B.  & 
Aid.  283  ;  8  Co.  290 ;  and  it  will  not  vary  the  character 
of  the  relation  that  one  remains  ever  so  long,  or  that 
terms  of  compensation  are  fixed  by  previous  contract; 
7  Cush  417  :  Story  Bailm.  \  477.  I-2  Dev.  &  B.  424:  7 
Ga.  296;  I  Morr.  (Tenn.)  184.  in-Bac.  Abr. /««j,  C 
5  :  8  Co.  32.  n-7  Cush.  424.  o-Story  Bailm.  \  477  .  26 
Vt.  343  :  26  Ala   (N.  S.)  271  ;  7  Cush.  417.    p-6  Vt.  294  ; 

1  Salk.  387;   I  Ld.  Raym.  479:  3  El.  &  Bl.  144;  S.  C 

25  Eng.  I,.  &  Eq.  76.  q-i  Salkeld.  388.  S.  C.  Ld. 
Raym.  866:  Yelv.  67;  Cro.  Jac.  188;  26  Vt.  316:  i 
Smith's  Leading  Cases,  50,  note  to  Cayle's  case  :  8  Co. 
32 :  Bac.  Abr.  Chitty  Court.  476 ;  9  Pick.  280 ;  25 
Wend.  653  :  3  Hill,  486  ;  8  Blackf.  535  ;  16  Ala.  666.  r- 
5  T.  R.  273;  I  Smith  L.  Cas.  50,  note  to  C's  case-  53 
Mann.  163;  33  Cal.  S57-     S-26  Vt.  316.     t-i  Salk.  388; 

2  Ld.  Raym.  866:  Cro.  Jac.  188.  n-5  T.  R.  273;  s 
Barb  560.   v-Bac.  Abr.  Inns,  C  5;  Story  Bailm   §  477; 

26  Ala.  (N.  S.)  377;  26  Vt.  33^,  343;  see  7  Cush.  417. 


«34 


BAILMENTS. 


principles  of  public  utility  to  which  all  private 
considerations  ought  to  yield.'' 

A  restaurant-keeper  is  not  responsible  as  an 
innkeeper."  But  one  who  occasionally  entertains 
travellers  may  be  an  innkeeper.'  And  one  is 
clearly  not  responsible,  as  such,  to  another  not  a 
guest." 

An  innkeeper  is  responsible  for  an  injury  to  a 
horse  left  at  his  stable,  while  driven  for  exercise.^ 

One  wishing  to  liecome  a  guest  at  an  inn,  and 
ready  and  willing  to  pay  for  his  entertainment, 
may  recover  damages  for  refusal  to  receive  him." 

Innkeepers — Duties  and  Responsibili- 
ties. An  innkeeper  is  bound  to  take  in  and 
receive  all  travellers  and  wayfaring  persons,  and 
to  entertain  them  if  he  can  accommodate  them, 
for  a  reasonable  compensation  ;*  and  he  must 
guard  their  goods  with  proper  diligence.  He 
is  liable  only  for  the  goods  which  are  brought 
within  the  inn.?  A  delivery  of  the  goods  into 
the  personal  custody  of  the  innkeeper  is  not, 
however,  necessary  in  order  to  make  him  re- 
sponsible ;  for,  although  he  may  not  know  any- 
thing of  such  goods,  he  is  bound  to  pay  for 
them  if  they  are  stolen  or  carried  away,  even 
by  an  unknown  person  ;*  and  if  he  receive  the 
guest,  the  custody  of  the  goods  may  be  consid- 
ered as  accessory  to  the  principal  contract,  and 
the  money  paid  for  the  apartments  as  extending 
to  the  care  of  the  box  and  portmanteau.*  The 
liability  of  an  innkeeper  is  the  same  in  charac- 
ter and  extent  with  that  of  a  common  carrier.'' 
He  is  responsible  for  the  acts  of  his  domestics 
and  servants,  as  well  as  for  the  acts  of  his  other 
guests,  if  goods  are  stolen  or  lost  ;*  but  he  is 
not  responsible  for  any  tort  or  injury  done  by 
his  servants,  or  others,  to  the  person  of  his 
guest,  without  his  own  co-operation  or  con- 
sent.* But  the  innkeeper  will  be  excused 
whenever  the  loss  has  occurred  through  the 
fault  of  the  guest.* 

An  innkeeper  is  responsible  presumptively 
for  all  losses,  and  can  excuse  himself  only  by 
showing  that  he  did  all  in  his  power  to  prevent 
it.f  He  is  responsible  for  all  money  and  other 
articles  the  guest  finds  it  convenient  to  carry 
with  reference  to  his  expenses  and  business. 
And  if  money  is  stolen  from  the  guest,  he  may 
recover,  although  he  omitted  to  put  it  in  the 
safe  ;K  but  this  will  depend   somewhat  on  the 

r-2  Kent  Comm.  459;  i  Hayw.  40;  14  Johns.  175; 
Dig.  4,  9,  I :  see  3  B.  &  Aid.  283 ;  4  M.  &  S.  306 ;  i 
Holt.  N.  P.  209;  I  Salk.  387;  Garth.  417;  i  Bell. 
Comm.  469  ;  Dane  Abr.  Index  ;  Yelv.  67,  a;  1  Smith 
L.  Cas.  47  :  8  Co.  32  ;  14  Barb.  193  ;  t  C.il.  221  ;  7  Cush. 
417  ;  26  Vt.  242.  8-1  Hilton,  103.  t-2  Texas,  798.  a- 
II  C.  B.  (N.  S.)  638  ;  9  Jur.  (N!  S.)  1284.     v-2  H.  "    ■ 


M.  494;  7C. 
3  B.  &  Aid. 


14;  S.  C.  9  Jur.  (N.  S.)  444.     w-i  Car. 

&  P.  213  ;    8  M.  &  W.      x-5  T.  R.  274 

285  :  I  C.  &  K.  404 :  7  C.  &  P.  213 ;   4  Excfi.  367.    y-8 

Co.  32 ;  Jones  Bailm.  91.     «-8  Co.  32  ;  i  Hayw.  41  ;   14 

Johns.  175  ;  23  Wend.  642  ;   5  Barb.  560 ;    7  Cush.  114  ; 

see  25  Eng.  L.  &  Eq.  91  :    27  Miss.  668 ;    i  Bell  Comm. 

469.      a- Jones  Bailm.  94:    Story  Bailm.  J  470;    i    Bl. 


Comm.  430;    2  Kent  Comm.  45&-463.      b-< 


B.  &C.  9; 


7  Cush.  417  ;  9  Humph.  746 ;    1  Cal.  221  , 
31  Me.  478  ;  8  Blackf.  535  ;  see  5  Q.  B.  164  ;  23  Vt.  177  ; 
26  Id.  317;  14  111.  129.    c-7  Cush.  417;  5  Barb.  560.    a- 

8  Co.  32.  e-Story  Bailm.  §  483;  4  M.  &  S.  306;  i 
Stark,  251,  «;  2  Kent  Comm.  461 ;  i  Yeates,  34.  f-26 
Vt.  316,  33S.  1^-14  La.  An.  324  ;  S.  P.  Id.  524;  17  111. 
yam  ;  4^  Barb.  31 :  ji  Id.  632 ;    14  Johns.  175 ;  i  Yeates, 


amount  and  use.s  The  obligation  upon  the 
guest  to  place  his  money  in  the  safe  seems  to 
depend  upon  the  amount  and  what  is  prudent.* 

The  guest  must  deposit  his  goods  in  the  or- 
dinary place,  in  care  of  the  proper  person. 
There  is  no  particular  course  to  be  adopted  by 
the  guest,  except  to  be  prudent.  It  is  the  duty 
of  the  host  to  be  watchful  at  all  points.*  He 
must  not  trust  to  the  opinion  of  his  guest,  but 
see  to  it  himself  that  the  goods  are  positively  kept 
safe.  The  omission  of  the  guest  to  fasten  his 
door,  etc.,  will  not  excuse  indifference  on  the  part 
of  the  host.  Where  the  guest  exposes  his  money 
to  be  seen  by  others,  and  then  leaves  it  within 
their  reach,  he  has  no  redress  if  it  is  stolen.' 

The  guest  must  either  take  exclusive  possession 
of  his  goods  or  else  utterly  disregard  all  ordinary 
precautions  for  safety,  in  order  to  exonerate  the 
innkeeper  ;J  and  to  charge  the  guest  with  negli- 
gence, exonerating  the  innkeeper,  it  should  ap- 
pear that  the  guest  fully  understood  the  danger 
and  persisted  in  leaving  his  goods  exposed.'' 

The  innkeeper  is  responsible  for  all  money 
and  other  property  the  guest  finds  it  convenient 
to  have  with  him,  he  using  all  reasonable  precau- 
tions himself  not  needlessly  to  expose  it  to  loss.' 
An  innkeeper  must  furnish  reasonable  lodgings." 

A  mere  boarding-house  keeper  cannot  be 
subjected  to  the  responsibilities  of  an  inn- 
keeper." And  so  if  a  guest  takes  a  room  at  an 
inn  for  the  purpose  of  selling  goods  therein, 
the  landlord  is  presumptively  not  responsible 
for  their  safety." 

Lien  upon   the  effects  of   the 

GUEST.  The  innkeeper  is  entitled  to  a  just 
compensation  for  his  care  and  trouble  in  taking 
care  of  his  guest  and  his  property ;  and,  to  en- 
able him  to  obtain  this,  the  law  invests  him 
with  some  peculiar  privileges,  giving  him  a  lien 
upon  the  goods  brought  into  the  inn  by  the  guest ; 
and,  it  has  been  said,  upon  goods  on  the  person 
of  his  guest  for  his  compensation  ;P  and  this, 
though  the  goods  belong  to  a  third  person,  if  he 
was  ignorant  of  the  fact.i  He  has  a  lien  upon  all 
the  goods  of  a  guest  in  his  custody  for  all  ex- 
penses incurred  ;*■  and  this  will  extend  to  his 
horse,  harness  and  carriage,  for  the  keeping  of 
his  horse,  and  probably  for  the  whole  sum  due  ;■■ 
and  this  lien  will  not  be  affected  by  any  defect 
in  the  title  of  the  guest. • 

34;  I  Cal.  221.  I1-27  Miss.  657  ;  21N.  Y.  iii:  i  Bosw. 
321 ;  4  E.  D.  Smith,  88  ;  13  Md.  126.  I-3  F.  &  F.  306  ; 
14  Johns.  175  ;  8  N.  H.  508  ;  8  Wend.  547  ;  i  Ad.  &  El. 
522  ;  S3  Me.  163  ;  6  Hurl.  &  N.  205 ;  S.  C.  F.  &  F.  283 ; 
24  Barb.  384  ;  14  La.  An.  524  ;  17  Q.  B.  261 ;  4  Mam.  & 
S.  306 ;  24  Ind.  347.     i-2  Met.  (Ky.)  439 ;  8  B.  &  C.  9 

1  Ad.  &  El.  522 ;  I  Hilton  N.  Y.  C.  P.  84.  k-Redf.  on 
Car.  &  Bailm.  §g  74,  76.  I-7  Cush.  417,  427 ;  2  B.  &  Ad. 
8oj;  6  Eng.  L.   &  Eq.  349;  17  Q.  B.  261 ;  1  Haym.  40; 

2  Kent  Comm.  592,  594;  Story  Bailm.  478,  481;  i 
Yeates,  35  ;  12  Mod.  483,  487.  m-See  8  M.  &  W.  269. 
n-i2  Mod.  254;  I  Salk.  387:  S.C.  i  Ld.  Raym.  479;  4 
Camp.  77 :  3  El.  &  Bl.  144  ;  S.  C.  25  Eng.  L.  Rep.  76 ; 
8  C.  B.  (N.  S.)  254;  33  Cal.  557.  0-4  Maiile  &  Selw. 
306;    t  Holt  N.  P.  209  :    S.  C.  I  Stark.  N.  P.  249.     p- 

3  B.  &  Aid.  287:  8  Mod.  172  ;  I  Show.  270;  see  7  C.  & 
P.  67 :  3  Hill,  485  :  1  Rich.  213 ;  26  Vt.  335  ;  3  M.  &  W. 
248;    Bac.  Abr.  Inns, etc.,  D.      q-3  Stark.  172  ;    12  Q 

B.  197;  7  C.  &  B.  208  ;  n  Barb.  41.  As  to  detaining 
the  horse  of  a  guest,  see  25  Wend.  654 ;  9  Pick.  280.  r 
Story  Bailm.  ?  476  ;  3  M.  &  W.  348.     8-13  Q.  B.  197 ;  ; 

C.  B.  (N.  S.)  267  :  10  Exch.  .^17;  28  Eng.  L.  &  Eq.44j 


BAILMENTS. 


'35 


An  innkeeper  has  no  lien  upon  the  effects 
of  his  ordinary  boarders  for  their  expenses  in- 
curred.' 

An  innkeeper  has  a  lien  upon  a  traveller's 
horse  put  in  his  stable,  although  he  lodge 
elsewhere.  So,  also,  upon  all  property  the 
guest  leaves  in  his  possession,  for  all  expense 
incurred." 

The  lien  of  an  innkeeper  is  not  affected  by 
the  fact  that  the  guest  is  an  infant.' 

The  landlord  may  also  bring  an  action  for 
tiie  recovery  of  his  compensation. 

LOANS  are  bailments  without  reward. 
Bailments  of  arlicles  for  use  or  consumption 
without  reward.     The  things  so  bailed. 

A  loan,  in  general,  implies  that  a  thing  is  lent 
without  reward  ;  but,  in  some  cases,  a  loan  may 
be  for  a  reward ;  as,  the  loan  of  money."  It 
would  be  an  inquiry  too  purely  speculative, 
whether  this  use  of  the  term  loan  originated  in 
the  times  when  the  taking  of  interest  was  con- 
sidered usury  and  improper — the  bailment  of 
money  which  was  to  be  returned  in  kind — the 
supposition  would  furnish  a  reasonable  expla- 
nation to  the  exception  to  the  general  rule  that 
loan  includes  properly  only  those  bailments 
where  no  reward  is  given  or  received  by  the 
bailee.  In  order  to  make  a  contract  usurious 
there  must  be  a  loan,''  and  the  borrower  must 
be  bound  to  return  the  money  at  all  events.^ 
The  purchase  of  a  bond  or  note  is  not  a  loan,' 
but  if  such  a  purchase  be  merely  colorable,  it 
will  be  considered  as  a  loan.* 

For  consumption.  A  loan  for  con- 
sumption is  a  contract  by  which  the  owner  of  a 
personal  chattel,  called  the  lender,  delivers  it 
to  the  bailee,  called  the  borrower,  to  be  re- 
turned in  kind.  For  example,  if  a  person  bor- 
rows a  bushel  of  wheat,  and  at  the  end  of  a 
month  returns  to  the  lender  a  bushel  of  equal 
value.  This  class  of  loans  is  commonly  con- 
sidered under  the  head  of  bailments ;  but  it 
lacks  one  essential  element  of  bailments :  that 
of  a  return  of  the  property ;  it  is  more  strictly 
a  barter  or  exchange;  the  property  passes  to 
the  borrower.''  Those  cases,  sometimes  called 
ventem  (the  corresponding  civil  law  term),  such 
as  where  corn  is  delivered  to  a  miller  to  be 
ground  into  meal,  or  wheat  into  flour,  are 
either  cases  of  hiring  of  labor  and  service,  as 
where  the  miller  grinds  and  returns  the  identi- 
cal wheat  ground  into  flour,  retaining  a  portion 
for  his  services ;  or  constitute  a  mere  exchange, 
,as  where  he  mixes  the  wheat  with  his  own,  un- 
dertaking to  furnish  an  equivalent  in  corn.  It 
amounts  to  a  contract  of  sale,  payment  being 

t-8  Rich.  423.  u-25  Wend.  653  :  9  Pick.  280.  v-2 
Duval,  147.  •9l-^  Pet.  109.  x-Cowp.  112,  770;  Ves. 
Ch.  527 ;  2  Bl.  859  :  3  Wils.  390.  y-2  Sch.  &  L.  Ch.  Ir. 
470.  *-3  Sch.  &  L.  Ch.  Ir.  469  ;  9  Pet.  103.  a-2  Johns. 
Ca.s.  60,  66 :  12  S.  &  R.  46  ;  15  Johns.  44.  b-4  N.  Y. 
7<5;  8  Id.  433;  I  Ohio  St.  98;  3  Mas.  C.  C.  478;  i 
Blackf.  353  ;  Story  Bailm.  g  439.  c-2  KentComm.  (4th 
Ed-)  573-  d-Story  Bailm.  2  223.  e-2  Ld.  Raym.  913. 
(■Story  Bailm.  g  225;  13  Vt.  161.  g-Story  Bailm.  g 
aeS.  li-Id.  ?g  50,  162,  302,  380.  l-i  Atk.  Ch.  235  ;  8  T. 
R.  199;  2  Tiunt.  268.  J-iMod.  210;  4  Sandf  8.  k- 
j  Mass.  104;  J  Const.  121  ;  3  Bingh.  (N.  0468;  Brac- 
ton,  ^9. '00.      1-j  Bingh.  (N.  C.).)68;    j.^  111.  8^;   4 


stipulated  for  in  a  specified  article  instead  of 
money. 

For  use.     A  loan  for  use  is  a  bailment 

of  an  article  to  be  used  by  the  borrower  without 
paying  for  the  use.*  A  loan  for  use  (called  com- 
modatum  in  the  civil  law)  differs  from  a  loan 
for  consumption  (called  mutuum  in  the  civil 
law)  in  this,  that  the  commodahim  must  be  spe- 
cifically returned,  the  mutuum  is  to  be  returned 
in  kind.  In  the  case  of  a  commodatum  the 
property  in  the  thing  remains  in  the  lender ; 
in  a  mutttwn  the  property  passes  to  the  bor- 
rower. 

The  loan,  like  other  bailments,  must  be  of 
something  of  a  personal  nature;*  it  must  be 
gratuitous*  for  the  use  of  the  borrower;  and 
this  is  the  principal  object  of  the  bailment;' 
and  must  be  lent  to  be  specifically  returned  at 
the  determination  of  the  bailment.'  The  gen- 
eral law  of  contracts  governs  as  to  the  capacity 
of  the  parties,  and  the  character  of  the  use  ;^  he 
who  has  a  special  property  may  loan  the  thing, 
and  this  even  to  the  general  owner,  and  the 
possession  of  the  general  owner  still  be  that  of 
a  borrower.' 

The  borrower  may  use  the  thing  himself;  but 
may  not,  in  general,  allow  others  to  use  itJ 
during  the  time,  and  for  the  purposes,  and  to 
the  extent  contemplated  by  the  parties.''  He  is 
bound  to  use  extraordinary  diligence  ;'  he  is  re- 
sponsible for  accidents,  though  inevitable,  which 
injure  the  property  during  any  excess  of  use ;"' 
he  must  bear  the  ordinary  expenses  of  the  thing," 
and  must  restore  it  at  the  time  and  place,  and 
in  the  manner  contemplated  by  the  contract,* 
including  also  all  accessories,?  or  increase.  He 
must,  as  a  general  rule,  return  it  to  the  lender.i 
The  borrower  of  goods  is  responsible  for  any 
damage  or  loss,  if  it  was  occasioned  by  his  ne- 
glect, or  if  he  used  the  goods  in  a  manner  not 
warranted  by  the  terms  of  the  loan  ;*■  he  is  bound 
to  exercise  all  the  care  and  diligence  that  the 
most  careful  persons  are  accustomed  to  apply  to 
their  own  affairs ;  and  in  his  case  the  omission 
of  the  most  exact  and  scrupulous  caution  is  re- 
garded as  culpable." 

The  borrower  puts  the  thing  to  any  other 
use  at  his  peril,  and  he  must  do  all  he 
would  to  preserve  his  own  property,  of  equal 
value.' 

The  borrower  is  not  responsible  for  loss  by 
robbery  without  his  fault." 

The  lender  may  terminate  the  loan  at  hi^ 
pleasure;"  he  is  perhaps  liable  for  expenses, 
adding  a  permanent  benefit."     The  lender  still 

Sandf.  8.  ni-5  Mass.  194 ;  16  Ga.  25.  n-Jones  Bailm. 
67.  0-16  Ga.  25  ;  12  Texas,  373  ;  Story  Bailm.  99.  1»- 
16  Ga.  25;  2  Kent  Camm.  (4th  Ed.)  566.  As  to  the 
place  of  delivery  see  9  Barb.  189;  i  Me.  120;  i  N.  H. 
295;  I  Conn.  255;  5  Id.  76;  16  Mass.  453  ,  Chipman 
Contr.  25.  q-7Cow.  278;  i  B.  &  Ad.  450:  11  Mass. 
211.  r-Wright,  410;  I  Sneed.  248;  35  Mo.  487;  2 
Ld.  Raym.  909;  10  Johns.  172;  10  Mass.  125  :  Jones 
Bailm.  64.  S-i  Abb.  Dig.  368 ;  4  Sandf.  S.  C.  5 ;  14 
111.  84  ;  17  Ind.  155 ;  21  111.  259 ;  3  Allen,  594 ;  9  Barb. 
176;  13  Vt.  161.  t'37  111.  259;  Story  Bailm.  ^  2, 
3,  4.  a-28  Ind.  167.  v-9  East.  49 ;  i  T.  R.  480 :  5 
Cow.  687 ;    8  Johns.  432  ;    16  Ga.  25.     w-Story  Bailn) 


136 


BAILMENTS. 


retains  his  property  as  against  third  persons, 
and,  for  some  purposes,  his  possession.'' 

MANDATE  is  a  bailment  of  property  in 
regard  to  which  the  bailee  engages  to  do  some 
act  without  reward.' 

Mandates  and  deposits  closely  resemble  each 
other;  the  distinction  being,  tliat  in  mandates, 
the  care  and  service  are  the  principal,  and  the 
custody  the  accessory;  while  in  deposits,  the 
custody  is  the  principal  thing,  and  the  care  and 
service  are  merely  accessory.' 

The  mandator  is  the  person  employing  an- 
other to  perform  a  mandate." 

The  mandant  is  the  bailor  in  a  contract  of 
mandate. 

The  mandatary  is  the  one  who  undertakes  to 
perform  a  mandate. 

For  the  creation  of  a  mandate  it  is  neces- 
sary:' I.  That  something  should  exist  which 
should  be  the  subject-matter  of  the  contract; 
2.  That  it  should  be  done  gratuitously ;  and  3. 
That  the  parties  should  voluntarily  intend  to 
enter  into  the  contract. 

There  is  no  particular  form  or  manner  of 
entering  into  the  contract  of  mandate  pre- 
scribed, in  order  to  give  it  validity.  It  may  be 
verbal  or  in  writing ;  express  or  implied ;  in 
solemn  form,  or  in  any  other  manner."  The 
contract  may  be  varied  at  the  pleasure  of  the 
parties.  It  may  be  absolute  or  conditional, 
general  or  special,  temporary  or  permanent.'' 

A  voluntary  undertaking  is  not  obligatory; 
but  if  entered  upon,  the  confidence  created  by 
the  delivery  of  the  ^oods  imposes  upon  the 
bailee  the  duty  of  performing  the  service  ac- 
cording to  the  expectation  thus  voluntarily 
created .y  But  a  bailee  without  reward,  or 
profession  of  skill,  is  only  bound  to  act  accord- 
ing to  his  ability.'  The  mandatary,  upon  un- 
dertaking his  trust  and  receiving  his  article,  is 
bound  to  perform  it  as  agreed  upon,*  and  is 
responsible  only  for  gross  negligence  ;*>  but  in 
considering  the  question  of  negligence,  regard 
is  to  be  had  to  any  implied  undertaking  to 
furnish  superior  skill,  arising  from  the  known 
ability  of  the  mandatary."  He  must  render 
an  account  of  his  proceedings,  and  show  a 
compliance  with  the  conditions  of  the  bail- 
ment.* 

One  may,  by  special  undertaking,  or  inter- 

r-ii  Johns.  285  ;  6  Id.  195  ;  13  Id.  141,  561  ;  7C0W.  753  ; 
9  Id.  687;  I  Pick.  389:  5  Mass.  303  ;  i  T.  R.  480:  2Campb. 
464;  2  Bingh.  172;  I  B.  &  Aid.  59  :  2Cr.  M.  &  R.  659.  As 
to  whether  the  property  is  transferred  by  a  recovery  of 
judgment  for  its  value  see  26  Eng.  L.  &  Eq.  328  ;  2  Str. 
1078;  Mete.  Yelv.  67,  n.  ;  5  Me.  147:  i  Pick.  62  ;  see 
generally  Edw.  Jones  &  Story  Bailm.  ;  Kent  Comm.; 
Lect.  46  ;  Chipman  &  Parsons,  Contr.  »-Story  Bailm. 
i  137.  t-Id.  g  140.  n-i  Brown  Civ.  Law.  382;  Halif. 
Anal.  Civ.  Law,  70.  v-Poth.  Pand.  i,  17,  i.  i,  p.  i,  § 
i;  Poth.  de  Mandat  c.  i,  ?  2.  w-Story  Bailm.  J  160. 
X-Wood  Civ.  Law,  242  ;  i  Domat  fi.  i,  i.  15,  ??  1,6,  7, 
8;   Poth.  de  MonJat  c.  ?  3,  nn.  34-36.     y-2  Ld.  Raym. 


909;  5  T.  R.  143;  4  Johns.  84;  2  Johns.  Cas.  92;  3 
Mason  C.  C.  1^2;  2  Murphy,  373:  Wright,  410;  i 
Sneed.  248:  35  Mo.  487.     z-i  H.  Bl.  158:  4  Mo.  &  M. 


170  :  2  Ad.  &  El.  256 ;  18  Maine,  174  ;  2  Murphy,  373  ; 
8  Met.  91  ;  5  Ind.  131  ;  Id.  462  ;  18  Ga.  495  ;  17  III.  170  ; 
3  Met.  (Ky.)  378  ;  21  Texas,  148.  R-2  Ld.  Raym.  919 ; 
I  Taunt.  523;  5  B.  &  .\ld.  117;  i  Sneed,  248:  6  Binn, 
308;  5  Fla,  38.  b-2  Kent  Comm.  (4th  Ed.)  571-573;  1 
H,  Bl.  158.  ^  B.  &  C.  345;  »  Ad.  &  E.  256:  16  How. 


meddling  with  goods,  make  himself  responsible 
for  all  losses.* 

A  mandatary  may  use  the  thing  in  a  reason- 
able manner,  by  himself  or  his  servants;  but 
if  he  possesses  skill,  he  is  bound  to  use  it  the 
same  as  a  hirer,  who  undertakes  to  use  skill.' 

A  mandatary,  who  does  not  stipulate  for 
compensation,  must  be  understood  to  act  with- 
out, unless  the  circumstances  indicate  the  con- 
trary.* 

A  promise  of  a  bailee  to  return  goods  does 
not  increase  his  responsibility.'' 

The  question  of  gross  negligence  is  one  fof 
the  jury  ;J  and  the  plaintiff  must  show  it.'' 

The  dissolution  of  the  contract  may  be  by 
renunciation  by  the  mandatary  before  com- 
mencing the  execution  of  the  undertaking;'  by 
revocation  of  authority  by  the  mandator;""  by 
death  of  the  mandator;"  by  death  of  the  man- 
datary ;"  by  insanity  or  bankruptcy  of  either 
party  ;P  and  by  change  of  state  of  the  parties  ;*• 
and,  in  some  cases,  by  operation  of  law."" 

PAWN  OR  PLEDGE  is  a  bailment  of 
personal  property  as  security  for  some  debt  or 
engagement.  It  is  when  the  debtor  delivers 
any  personal  property  to  the  creditor,  to  be 
kept  by  him  until  the  debt  is  paid ;  and  upon 
failure  of  the  debtor  to  meet  his  obligation, 
according  to  its  terms,  to  dispose  of  the  pledge 
in  payment  of  the  debt  as  far  as  it  will  go,  and 
if  anything  remains  after  full  payment,  to 
return  it  to  the  pledgor. 

There  is  a  clear  distinction  between  mort- 
gages and  pledges.  In  a  pledge  the  legal  title 
remains  in  the  pledgor.  In  a  mortgage  it 
passes  to  the  mortgagee.  In  a  mortgage  the 
mortgagee  need  not  have  possession.  In  a 
pledge  the  pledgee  must  have  possession, 
though  it  be  only  constructive.  In  a  mortgage 
at  common  law,  the  property,  on  non-payment 
of  the  debt,  passes  wholly  to  the  mortgagee;  in 
a  pledge  the  property  is  sold,  and  only  so  much 
of  the  proceeds  as  will  pay  his  debt  passes  to 
the  pledgee.  A  mortgage  is  a  conditional  con- 
veyance of  property,  which  becomes  absolute, 
unless  redeemed  at  a  specified  time.  A  pledge 
is  not  strictly  a  conveyance  at  all,  nor  need  any 
day  of  redemption  be  appointed  for  it.  A 
mortgagee  can  sell  and  deliver  the  thing  mort- 
gaged, subject  only  to  the  right  of  redemption. 

475;  3  Mason  C.  C.  132;  14  S.  &  R.  275;  17  Mass. 
459;  2  Hawks.  146;  8  Met.  (Mass.)  91.  C-Story  Bailm. 
§g  177,  182;  Jones  Bailm.  14,  16;  20  Mart.  68;  whether 
a  bank  is  liable  for  neglect  of  its  agent  in  collecting 
notes,  see  22  Wend.  215;  3  Hill,  560;  8  N.  Y.  459;  3 
Hill  (S.  C.)  77:  4  Rawle,  384;  2  Gall.  C.  C.  565;  10 
Cush.  583;  12  Conn.  303:  6  Harr.  &  J.  146;  4  Whart. 
105;  I  Pet.  25.  d-Story  Bailm.  J  iqi,  et  seg.  e-i  Stark. 
237.  f-9  C.  &  P.  383;  II  M.  &  W.  113;  13  Wis.  104;  8 
B.  Mon.  415.  K'-i2  La.  An.  119;  16  Id.  155;  5  Bosw. 
85.  I1-33  Barb.  241  :  Jones  Bailm.  601.  J-2  Ad.  &  E. 
256;  3  Bingh.  (N.  C.)  468:  11  Wend.  25.  k-3  East. 
192;  4  Esp.  165;  2  Ad.  &  E.  80;  10  Watts,  335:  see  3 
Johns.  170;  2  Wheat.  100:  7  B.  Mon.  661;  8  Humph. 
fTenn.)  430.  I-2  M.  &  W.  145;  i  M.  &  R.  38;  2  Ld. 
Raym.  909  ;  22  Eng.  L.  &  Eq.  501  ;  8  B.  Mon.  415:  3 
Fla.  38.  in-6  Pick.  198;  5  Binn.  316;  5  T.  R.  213; 
see  4  Taunt.  541  :  16  East.  382.  11-6  East.  356 ;  5  Esp. 
1 18;  2  Ves.  &  B.  Ch.  Ir.  51;  2  Mass.  C.  C.  244;  8 
'  Wheat.  174.  0-2  Kent  Comm.  504;  8  Taunt.  40-^.  p- 
i  Story  Bailm.  §262-264;  2  Mason  C.  C.  24a;  8  Wheat, 
i    174.    q-Story  Ag.  \  i,%i.    r-ld.  \  500. 


BAILMENTS. 


«37- 


A  pledgee  cannot  sell  and  deliver  his  pawn  until 
the  debt  is  due  and  payment  denied.  Pledge 
and  mortgage  are,  therefore,  different  in  law.* 

Any  langibU  property  may  be  pledged. 
Hence,  not  only  goods  and  chattels,  and  money, 
but  also  negotiable  paper  may  be  put  in  pledge. 
So  may  choses  in  action,  patent  rights,  coupon 
bonds,  and  manuscripts  of  various  sorts.'  A 
life  policy  of  insurance,  or  a  wife's  life  policy 
may  be  pledged.  So,  also,  a  bank  can  pledge 
the  notes  left  with  it  for  discount,  if  it  is  appar- 
ent on  the  face  of  the  notes  that  the  bank  is 
their  owner.  But  the  common  law  does  not 
permit  the  pay  and  emoluments  of  officers  and 
soldiers  to  be  pledged  from  public  policy." 
Hence,  probably,  a  fishing  bounty  could  not  be 
pledged,  on  the  ground  that  pensions  and 
bounties  to  soldiere,  sailors,  etc.,  for  their  per- 
gonal benefit,  cannot  be  pledged. 

One  may  pledge  future  accessions  to  existing 
projjerty ;''  as  bricks  to  be  made  upon  a  brick- 
yard, in  security  for  the  use  of  the  same  ;*  and 
the  product  of  a  farm  to  be  held  as  security  for 
rent.* 

A  pledge  in  security  of  a  debt  does  not  sus- 
pend the  right  of  action  upon  the  debt,  unless 
it  be  so  stipulated  .y 

The  pledge  of  negotiable  securities  shuts  out 
all  equitable  defences.* 

Coupon  bonds  pledged  are  not  to  be  collected 
by  the  pledgee,  but  sold  in  the  market  ;■  but  he 
may  collect  the  interest  coupons  as  they  fall  due.** 

A  bond  and  mortgage  secured  on  real  estate 
may  be  pledged.* 

Where  an  illegal  debt  is  secured  by  pledge, 
the  pledgor  cannot  recall  the  pledge  without 
payment  of  the  debt."* 

Factors  have  no  power  to  pledge  the  goods 
of  their  principals,*  unless  that  power  is  ex- 
pressly given  by  statute.' 

The  pledgee  may  assign  the  goods  and  debt 
so  as  to  transfer  his  interest.* 

A  Co-Plee)GEE  may  hold  a  pledge  for 
another  pledgee  also,  and  it  will  be  a  good 
pledge  for  both.  If  the  pledge  be  not  large 
enough  for  both  debts  after  sale,  and  no  other 
arrangement  be  made,  the  prior  pledgee  will 
have  the  whole  of  his  debt  paid  before  any 
part  of  the  proceeds  is  applied  to  the  subse- 
quent pledgee.  If  there  is  no  priority  of  time 
they  will  divide  ratably.  But  an  agreement 
between  the  parties  will  always  determine  the 

s-3  Brown  Ch.  21;  Yelv.  178;  Prac.  in  Ch.  419:  i 
Ves.  Ch.  358;  2  Id.  372:  I  Bulstr.  29:  Com.  Dig. 
Mortgage:  5  Johns.  260:  8  Id.  97:  2  Pick.  607;  5  Id. 
60:  3  Penn.  St.  208;  6  Mass.  425  ;  22  Me.  248;  6  Pet. 
449:  2  Barb.  538:  4  Wash.  C.  C.  418;  2  Ala.  CN.  S.) 
555;  9  Me.  82:  5  N.  H.  545;  4  Denio,  489:  5  Blackf. 
320;  3  Mo.  516;  4  Barb.  491 ;  3  Texas,  119;  i  Edm. 
Sel.  Cas.  201 ;  i  Parsons  Contr.  591,  et  seq.  t-i  Ves. 
Ch.  278:  2  Taunt.  268;  15  Mass.  389,534;  2  Blackf. 
198  ;  7  Me.  28  ;  4  Denio,  227 :  2  N.  Y.  443 ;  i  Stockt. 
667:  Story  Bailm.  §290.  u-H.  BI.627;  4  T.  R.  248. 
V.I  Pick.  398 ;  4  Mason,  515  ;  i  Pet.  (U.  S.)  448.  W-14 
Pick.  497.  X-18  Vt.  461.  y-iQ  Pick.  117;  34  Vt.  89; 
23  Me.  202  ;  II  Met.  226 ;  10  Ala.  535  ;  7  S.  &  M.  179  ; 
1  La.  An.  344:  Id.  379;  14  N.  H.  567;  i  Grant.  Cas. 
397  ;  10  B.  Mon.  239  ;  6  Cal.  643  ;  4  Ind.  425  ;  10  Bosw. 
io8 ;  II  Iowa,  410;  7  Mich.  355:  12  Ind.  427;  i^  Ohio 
St.  I  :  13  Minn.  232.  «-i3  Gray,  7.  a-i  Beasley,  323. 
|»-48  AJaine,  335.    C-^8  Maine,  355 ;  9  Bosw.  522 ;  Id. 


rights  of  two  or  more  pledgees.*  When  pos- 
session is  given  to  one  of  three  pledgees,  to 
hold  for  all  three,  the  other  two  have  a  con- 
structive possession,  which  is  equally  good,  for 
the  purpose  of  sharing,  when  in  actual  posses- 
sion ;  hence  the  mere  manual  possession  of  one 
pledge  will  not  give  a  right  to  discharge  a 
whole  debt  of  the  holder,  and  a  part  only  of 
his  co-pledgee's.  So,  by  the  rule  of  constructive 
possession,  if  the  holder  should  lose  the  pledge 
by  his  own  negligence,  he  would  be  liable  to 
his  co-bailees  out  of  actual  possession,  as  well 
as  to  his  bailor. 

Delivery  of  Pledge.  The  first  essential 
thing  to  be  done  is  the  delivery  of  the  pledge 
to  the  pledgee.  Without  his  possession  of  the 
thing  the  transaction  is  not  a  pledge.'  But  a 
constructive  possession  is  all  that  is  required 
of  the  pledge.  Hence,  goods  at  sea  or  in  a 
warehouse  may  pass  by  transfer  of  the  muni- 
ments of  title  or  by  symbolic  delivery.  Stocks 
and  equitable  interests  may  be  pledged ;  and 
it  will  be  suflicient  if,  by  proper  transfer,  the 
property  be  put  within  the  power  and  control 
of  the  pledgee.J  Stocks  are  usually  pledged 
by  delivery  of  the  company's  certificate,  leav- 
ing the  actual  transfer  to  be  made  subsequently. 
But  the  joint  stock  company  must  be  notified 
of  the  transfer. 

Prima  facie,  if  the  pledgee  redeliver  the 
pledge  to  the  pledgor,  third  parties  without 
notice  might  regard  the  debt  as  paid ;  still  this 
presumption  may  be  rebutted.  A  temporary 
redelivery  to  the  pledgor  makes  him  only  the 
agent  or  bailee  of  the  pledgee,  and  the  latter 
does  not  lose  his  special  property  or  even  his 
constructive  possession.'^ 

It  is  no  objection  to  the  validity  of  a  pledge 
that  the  creditor  has  sufficient  security  for  the 
payment  of  the  debt;  he  is  entitled  to  hold  all 
his  securities  until  the  debt  is  paid.' 

Factors  cannot  at  common  law  pledge  his 
principal's  goods,  and  the  principal  may  recover 
them  from  the  pledgee's  hands. "•"  This  power 
is,  by  statute,  subject  to  various  modifications, 
.given  to  factors  in  many  States."  See  General 
Statutes. 

Holding  the  Pledge  for  other  Debts, 
A  pledge  cannot,  in  general,  be  held  for  any 
other  debt  than  that  which  it  was  given  to  se- 
cure, except  on  the  special  agreement  and  con- 
sent of  the  parties.* 

532.  el-6  Allen,  139.  e-5  T.  R.  604;  Story  Bailm.  \ 
325  :  3  B.  &  A.  616 ;  3  B.  &  C.  342  ;  15  Mass.  389 ;  i  M. 
&  S.  140,  484;  6  Id.  i;  5  Johns.  Ch.  429;  2  Kent. 
Comm.  625  ;  5  Cush.  iii  ;  this  question  is  very  fully  dis- 
cussed in  Parsons  Marit.  L.  363.  I-7  B.  &  C.  517:  6 
M.  &  W.  572  ;  2  M.  &  R.  22  ;  3  Denio,  472  ;  4  Id.  323  ; 
2  Sandf.  68.  g-20  Pick.  399:  Story  Bailm.  g  324;  C 
Met.  I1-12  Mass.  321.  i-37  Me.  543.  j-12  Mass.  300  ; 
20  Pick.  405  ;  22  N.  H.  196 ;  2  N.  Y.  40^  ;  7  Hill,  497. 
k-5  Bing.  (N.  C.)  136;  II  Eng.  L.  &  Eq.'584  ;  3  Whart. 
531;  5  Humph.  308;  32  Me.  211;  i  Sanf.  248.  I-2 
Wheat.  390;  15  Wend.  218.  in-2  Str.  1178 :  6  M.  &  S. 
I  ;  3  Bingh.  139.  163 ;  2  B  &  B.  639  :  4  B.  &  C.  5 ;  i 
M'Cord,  I  ;  6  Met.  (Mass.)  68  ;  20  Johns.  421 ;  4  H.  & 
M.  432  ;  18  Mo.  147,  191 ;  it  How.  209,  226.  n-7  B.  & 
C.  517  :  6  M.  &  W.  572  ;  2  M.  &  R   22  ;  3  Denio,  472 ; 


4  Id.  323;  2  Sanf  68.     0-7  East.  224:  6  T.  R.  258; 
Ves.  Ch.  372;  6  Id.  226;  7  Port.  (Ala.)  466;   15  Mass 
389;  3  Leigh.  493;  i^  Barb.  536;  se?  2  PeU  Comm-  ?? 


138 


BAILMENTS. 


Loss  OF  Pledge.  A  pledgee  is  not  respon- 
lible  for  theft  or  robbery,  unless  he  refuses  to 
return  the  goods  after  the  bailment  expires." 
Loss  by  theft  is  prima  facie  evidence  of  a  want 
of  ordinary  care,  and  the  bailee  must  rebut  the 
presumption;  the  facts  in  each  case  regulate 
the  liability.  Theft  is  only  evidence,  in  short, 
and  not  absolute  presumption  of  negligence. 
Perhaps  the  only  safe  rule  is,  that  where  the 
pledgee  pleads  loss  by  theft  as  a  ground  for  not 
performing  his  duty,  to  excuse  himself,  he  must 
show  that  the  theft  could  not  have  been  pre- 
vented by  ordinary  care  on  his  part.  If  the 
bailor  should  assert  in  his  complaint  that  the 
pledge  was  lost  by  the  bailee's  fault,  he  would 
be  compelled  to  prove  the  charge  as  laid. 

Property  in  the  Pledge.  A  pledgee  has 
at  common  law  a  special  property  in  the  pledge, 
and  is  entitled  to  the  exclusive  possession  of  it 
during  the  time  and  for  the  objects  for  which  it 
is  pledged.  If  a  wrong-doer  take  the  pledge 
from  him,  he  is  not  thereby  ousted  from  his 
right.  His  special  property  is  enough  for  him 
to  support  replevin  or  trover  against  the  wrong- 
doer. He  has,  moreover,  a  right  to  action  be- 
cause he  is  responsible  to  his  pledgor  for  proper 
custody  of  the  bailment.  The  pledgor,  also, 
may  have  his  action  against  the  wrong-doer, 
resting  it  on  the  ground  of  his  general  property. 
A  judgment  for  either  pledgor  or  pledgee  is  a 
bar  against  a  similar  action  by  the  other.? 

The  bailee,  having  a  special  property,  recov- 
ers only  the  value  of  his  special  property  as 
against  the  owner,  but  the  value  of  the  whole 
property  as  against  a  stranger,  and  the  balance 
beyond  the  special  property  he  holds  for  the 
owner.i  So,  if  the  owner  begins  the  action  and 
recovers  the  whole  damages,  including  those  for 
deprivation  of  possession,  it  must  be  with  the 
consent  of  the  pledgee. 

A  pledgee  may  bring  replevin  or  trover  against 
the  pledgor  if  the  latter  remove  his  pledge  be- 
fore paying  the  debt,  and  thus  injure  the 
pledgee's  rights,  on  the  ground  that  the  owner 
has  parted  with  his  absolute  right  of  disposing 
of  the  chattel  until  he  has  redeemed  it  from  its 
slate  of  pledge.' 

Redemption.  Where  no  definite  day  is  ap- 
pointed the  pledge  may  be  redeemed  at  any 
time,  in  the  absence  of  a  statute  to  the  contrary ; 
hence,  if  the  pledgee  himself  do  not  give  notice 
to  the  pledgor  to  redeem,  the  latter  has  his  whole 
lifetime  in  which  to  do  so ;  and  his  right  of  re- 
demption survives  and  goes  to  his  representa- 
tives.* 

Sale  of  Pledge.  If  the  pledgor  fail  to  pay 
the  debt,  the  pledgee  may  sell  the  pledge.  A 
demand  of  payment,  however,  must  be  made 
before  the  sale ;  and  if  the  pledgee  mentions  no 

•-B.  N.  P.  720;  4  Co.  83;  Yelv.  178;  2Exch.  479;  5 
Vt.  532  ;  S  Johns.  261  ;  2  Pick.  267  :  8  Johns.  96 ;  4  Cow. 
481 ;  2  Ves.  Jr.  372,  378 ;  Story  Eq.  Jur.  g?  1030,  1033. 
p-a  Bl.  Coram.  395:  6  Bligh.  N.  S.  27;  i  B.&Ald. 
59;  5  Binn.  457;  16  Wend.  335;  9  Gill.  7;  13  Me. 
436;  13  Vt.  504.  Q-15  Conn.  302.  r-2  Taunt.  268  ;  i 
Sandf.  208;  22N.  H.196;  n  N.  Y.  150:  2  M'Cord, 
126.  Yet  in  trover  the  damages  recovered  cannot  be 
greater  than  the  amount  of  the  debt.  If  the  defendant 
(jerJYSs  no  titje  MnjJ^r  the  pledgor.     ^  Barb,  .^i ;    13  III. 


time  of  sale,  he  may  demand  at  once,  and  ma^ 
sell  in  a  reasonable  time  after  demand.'  The 
pledge  must  be  sold  at  public  auction,  and,  if  it 
be  divisible,  only  enough  must  be  sold  to  pay 
the  debt.  In  general,  also,  the  pledgee  must 
not  buy  the  pledge  when  put  up  at  auction.  He 
must  not  bid  bona  fide  and  bring  up  the  pawn. 
Still,  the  purchase  of  the  pledgee  is  not  in  itself 
void,  but  voidable  at  the  election  of  the  pledgor, 
and  the  latter  may  ratify  the  purchase  by  receiv- 
ing the  surplus  over  the  debt,  or  avoid  it  by  re- 
fusing to  do  so ;  the  pledgee  may  charge  the 
pledge  with  expenses  rightfully  incurred,  as 
costs  of  sale,  etc.  If  the  pledge  when  sold 
bona  fide  does  not  bring  enough  to  pay  the 
debt,  the  pledgee  has  still  left  a  good  claim 
against  the  pledgor  for  the  balance." 

Transfer  of  Pledgor's  Interest.  The 
pledgor  may  sell  or  transfer  his  right  to  a  third 
party,  who  can  bring  trover  against  the  pledgee 
if  the  latter,  after  tender  of  the  amount  of  his 
debt,  refuse  to  deliver  the  pawn.'  A  creditor 
of  the  pledgor  can  take  only  his  interest,  and 
must  pay  the  debt  before  getting  the  pawn.  The 
pledgor's  general  property  in  the  pawn  may  be 
sold  at  any  time  on  execution,  and  the  pur- 
chaser or  assignee  of  the  pledgor  succeeds  to  the 
pledgee's,  and  may  himself  redeem.  A  pledgee 
may  dispose  of  the  pledge  in  payment  of  the 
debt  at  maturity.''  A  pledgee  may  assign  a 
debt  and  pledge  together." 

Use  of  Pledge.  The  reasonable  use  of  a 
pledge  is  allowed,  provided  it  be  of  no  injury 
or  peril  to  the  bailment.  The  reason  is,  that 
where  use  of  the  pledge  is  beneficial  to  it,  ot 
cannot  depreciate  it,  the  consent  of  the  pledgor 
may  fairly  be  presumed,  but  not  otherwise.  If 
the  pawn  be  in  its  nature  a  charge  upon  the 
pawnee — as  a  horse  or  cow — he  may  use  it 
moderately,  by  way  of  recompense.  For  any 
unusual  care  he  may  get  compensation  from  the 
owner,  if  it  were  not  contemplated  by  the  par- 
ties or  implied  in  the  nature  of  the  bailment.' 
The  pawnee  is  answerable  in  damages  for  an 
injury  happening  while  he  is  using  the  pawn. 
Still,  though  he  use  it  tortuously,  he  is  only  an- 
swerable by  action.  His  pledgee's  lien  is  not 
thereby  forfeited.'  A  pledgee  can  exercise  a 
horse,  but  not  loan  it  for  hire ;  the  rule  is  that 
if  he  derive  any  profits  from  the  pledge  they 
must  be  applied  to  the  debt.*  Hence,  if  a 
slave  be  pledged  as  security  for  a  debt,  the 
creditor  must  account  for  the  profits  of  the  slave 
and  apply  them  to  extinguish  the  debt.** 

RECEIPTOR.  A  receiptor  is  a  person 
who,  when  goods  are  attached,  becomes  suret\ 
to  the  officer  to  have  them  forthcoming  on  de- 
mand, or  in  time  to  respond  to  the  judgment, 
when  the  execution  (or  order  of  sale)  shall  lie 

465.  S-3  Mo.  316  1  Call.  290.  t-Glanville  lib.  x.  c.  6 ; 
5  Bligh.  (N.  S.)  136;  9  Mod.  275  ;  2  Johns.  Ch.  100;  i 
Sandf.  351  :  8  III.  423;  4  Denio,  227;  3  Texas,  iig;  i 
Browne,  176;  22  Pick.  40  ;  2  N.  Y.  443.  ll-See  below, 
Transfer  of  Pledgor's  interest,  v-9  Cow.  52  :  13  M.  /5t 
W.  480.  w-2  Ld.  Raym.  909 :  tone?  Bftilm.  74  et  seq. 
X-2  Vt.  309  ;  14  Pick.  197  ;  13  Id.  216  ;  9  Wend.  345. 
y-Ld.  Raym.  909:  2  Salk.  522;  Parsons'  Contr.  593- 
38-4  Watts,  414.  a-2  Murphy,  III.  Ill- Wythe,  55;  i^ 
Ala.  (N.S.)55l. 


BAILMENTS. 


m 


is!>ued,  upon  which,  the  goods  are  bailed  to 
him.*" 

The  practice  of  delivering  property  attached 
to  a  bailee,  for  safe-keeping,  must  have  been 
coeval  with  the  practice  of  making  attachments. 
It  is,  in  its  nature,  a  simple  deposit,  a  delivery 
of  the  property,  to  be  kept  by  the  depositary, 
without  compensation,  until  called  for  by  the 
attaching  officer  ;^  a  practice  which  is  not  only 
lawful,  but,  in  a  high  degree,  useful  and  conve- 
"nlent."  It  is  not  necessary,  but  is  better,  to  take 
from  the  bailee  a  writing  acknowledging  the 
receipt  and  promising  to  re-deliver  the  property 
lo  the  officer  on  demand/ 

Receipt  for  Attaelied  Property. 

A.  B^plamtiff,     ) 

vs.  y    In  the Court. 

C.  D.,  defendant.  ) 
Place ,  Date .  Received  of  C.  C,  con- 
stable, of ,  in  said  county,  the  following  prop- 
erty, by  him  attached  in  the  above  entitled  action, 
to  wit :  (Aere  particularly  describe  the  property,  so 
it  can  6e  identified) ,t  promising  to  redeliver  such 
property  to  said  officer  on  demand.  B.  E. 

Usually,  a  friend  of  the  defendant,  though 
the  plaintiff,  may  become  bailee.''  The  bailee 
has  no  power  to  sell  the  goods,'  but  must  return 
the  identical  articles  delivered  to  him,  or  pay 
the  debt  J  upon  demand;''  and  he  is  liable  to 
the  officer  for  the  property,'  or  its  full  value,™ 
or  the  extent  of  the  officer's  liability,"  or  for 
damages."  He  is  the  servant  or  agent  of  the 
officer.P 

If  the  bailee  abandon  possession  and  cus- 
tody of  the  property,  and  it  is  attached  by  an- 
other officer,'  or  come  into  possession  of  an 
adverse  claimant,''  the  lien  of  the  first  attach- 
ment is  lost. 

An  officer,  by  the  levy  of  an  attachment,  ac- 
quires a  special  property  in  the  goods  seized, 
which  is  not  lost  by  the  bailment,"  and  he  be- 
comes liable  for  them,  at  the  termination  of  the 
suit,  either  to  the  plaintiff'  or  defendant ;"  but 
not  to  the  plaintiff  where  the  bailee,  nominated 
and  approved  by  such  plaintiff,  is  in  default.^ 

Property  may  be  returned  to  the  person  in 
whose  possession  it  was  found  or  to  the  defend- 
ant upon  the  execution  of  an  undertaking  for 
its  return  to  the  officer  )s  required  by  law. 
This  undertaking,  like  the  bailment  of  attached 
property,  does  not  discharge  the  lien  of  the  at- 
tachment." Property  thus  bonded  cannot  be 
seized  under  another  attachment,  or  under  a 
junior  execution.'' 

TELEGRAPH  COMPANIES.  The 
electro-magnetic  telegraph  is  an  instrument  or 
apparatus  which,  by  means  of  iron  wires  con- 
ducting the  electric  fluid,  conveys  intelligence 

C-Story  Bailm.  g  124.  d-8  Foster,  266.  e-5  N.  H. 
433.  f-i  Vt.  9  :  31  Maine,  152  ;  40  Miss.  472  ;  23  Ark. 
6i.  |f-i2  N.  H.  341.  I1-20 Conn.  364.  i-8Vt.  15.  j- 
iR.  I.  454.  k.-8  Foster,  266 ;  i6Mass.453;  i4Vt.  491. 
I-i  R.  1.454;  II  Vt.  230;  13  Id.  235;  II  N.  H.  256;  13 
Conn.  507.  m-a  N.  H.  142  ;  10  Id.  9  ;  19  Maine,  49  ;  i 
D.  Chip.  396.  n-15  Maine,  79;  31  Id.  287;  41  N. 
H.  283;  3  Id.  299;  II  Id.  256;  13  Id.  507;  13  Vt. 
"35-  0-14  Maine,  429;  28  Id.  505;  15  Id.  79.  p-9 
Mass.  104;  Id.  265;  13  Id.  394;  14  Id.  217;  i  Pick. 
232  ;  19  Maine,  255 ;  23  Id.  248  ;  6  Johns.  195  ;  9  Id. 
361 :  7  Cowen,  274  ;  8  Wend.  667  ;  34  Vt.  188.  q-i6 
Pick.  144.  r-8  Pick.  419.  s-i  D.  Chip.  51 ;  Id.  280 ;  4 
Vt.  605 ;  5  Id.  263  ;  8  Id.  15;   15  Id.  310;  31  Id.  433 ;  2 


to  any  given  distance  with  the  velocity  of 
lightning.' 

A  telegraph  is  a  message  sent  by  telegraph,* 
a  telegraphic  message,  dispatch,  or  communica- 
tion. 

The  telegraph  is  a  machine  for  communi- 
cating intelligence  from  a  distance  by  various 
signals  or  movements  previously  agreed  on; 
which  signals  represent  letters,  words,  or  ideas, 
which  can  be  translated  from  one  station  to  an- 
other, as  far  as  the  signals  can  be  seen.  This 
machine  was  invented  by  the  French  about  the 
year  1793-94.  The  electro-magnetic  telegraph 
is  an  apparatus  for  communicating  words  or 
language  to  a  distance  by  the  use  of  electricity 
as  above  stated. 

Telegraphic  communications  must  be  proved 
in  the  same  manner  as  other  writings,  such  as 
letters  and  contracts,  are — that  is,  by  the  origi- 
nal. If  that  is  lost,  it  may  be  proved  by  copy, 
or,  in  default  of  that  being  obtainable,  by  oral 
testimony."  Sometimes  the  person  to  whom  it 
is  addressed  is  in  the  office  when  it  is  received ; 
in  such  case,  if  it  is  not  reduced  to  writing,  it 
can  only  be  proved,  like  other  matters  resting 
in  parol,  by  the  recollection  of  the  witnesses  in 
whose  hearing  it  was  repeated.'* 

Where  both  parties  agree  to  communicate  by 
telegraph,  each  assumes  the  risk  of  his  own 
messages."  If  one  employ  a  special  operator, 
he  assumes  the  risk  of  transmission  ;•*  it  is  his 
own  act  by  his  agent."*  Notice  that  the  com- 
pany will  not  be  responsible  for  mistakes  in 
unrepeated  messages  is  binding.®  But  they  are 
always  responsible  for  ordinary  neglect."  Com- 
panies can  only.be  regarded  as  insurers  of  the 
accuracy  of  repeated  messages,*  and  responsible 
where  specially  captioned ;''  but,  generally,  are 
not  responsible  for  errors  in  unrepeated  mes- 
sages, except  on  proof  of  negligence  or  want 
of  skill.8  They  are  not  responsible  as  common 
carriers,  and  may  limit  responsibility  to  their 
own  lines  and  to  repeated  messages,  if  not 
guilty  of  negligence.''  It  is  the  duty  of  the 
company  to  transmit  the  messages  promptly  and 
fairly.  The  company  must  make  good  the  loss 
resulting  directly  from  any  default  on  their 
part.'  So,  also,  in  cases  of  failure  to  send  mes- 
sages by  telegraph  companies,  according  to  their 
duty  and  undertaking.^ 

Where  a  merchant  in  San  Francisco  receivet 
a  telegraphic  message  from  New  York,  which 
leads  him  into  a  purchase  involving  inevitable 
pecuniary  loss,  such  as  would  not  have  occurred 
but  for  an  error  in  the  transmission  of  the  mes- 
sage, he  is  not  compelled  to  seek  through  an 

N.  H.  66;  10  Id.  9;  13  Mass.  394;  20  Conn.  364:  i\ 
Pick.  318;  I  Vt.  9.  t-Cases  above  cited,  u-2  N.  H. 
142.  V-19  Pick.  520:  20  Maine,  183  ;  21  Id.  558;  24  Id. 
250.  w-20  Miss.  622  :  12  Ala.  138 ;  6  Ala.  (N.  S.)  45 : 
7  Mo.  411 ;  7  111.  468 ;  10  Pet.  400;  10  Humph.  (Tenn.) 
434.  x-6  Ala.  (N.  S.)  45  ;  7  B.  Mon.  651 ;  4  La.  304. 
y-S.  F.  B.  Morse,  z- Webster  Diet.  a-2QVt.  127;  21 
111.  591  ;  37  N.  Y.  457  ;  37  Mass.  682.  b-29  Vt.  127. 
e-41  Barb.  255  ;  i  Kernan,  441  ;  9  How.  390.  <l-35 
Barb  463.  e-33  Eng.  L.  &  Eq.  180  ;  S.  C.  17  C!  B.  3. 
f-55  Penn.  St.  262.  Jf-i3  Allen, 226;  i  Met.  (JCy.)  164; 
S  Am.  Law  Reg.  (N.S.)407;  S.  C.  i  Daly  C.  P.  547; 
4S  Barb.  274.  h-15  Mich.  525;  37  Mo.  472.  i-i6  N 
V.  489.     I-32  Barb.  530. 


MO 


BAILMENTS, 


extensive  chain  of  telegraphic  communication 
to  ascertain  where  the  error  was  made,  but  the 
company  to  which  the  message  was  originally 
delivered,  and  to  which  the  whole  compensation 
for  its  price  was  paid,  is  liable.  Having  pecu- 
liar facilities,  the  obligation  is  then  upon  this 
company  to  ascertain  where  and  how  the  error 
occurred,  and  to  fix  the  ultimate  responsibility 
where  it  belongs.^  The  party  entitled  to  re- 
cover penalty  is  the  contracting  party.'  It  is 
the  duty  ot"  the  company  to  serve  all  without 
discrimination  or  preference.™  Statutory  pro- 
hibition against  disclosing  the  secrets  of  the 
office,  or  communicating  messages,  docs  not 
extend  to  a  disclosure  as  a  witness  in  a  court 
of  justice." 

Placing  poles  in  the  highway,  without  legisla- 
tive authority,  creates  a  nuisance,"  but  telegraph 
poles  once  legally  established  in  the  highway 
cannot  afterward  be  removed  or  treated  as  a 
public  nuisance.P  Their  right  to  "  pass  directly 
across  a  railway  "  does  not  justify  their  boring 
under  it.'  Erecting  posts  in  a  highway  without 
legislative  authority  is  a  nuisance,  even  if  suffi- 
cient space  remain  for  the  passage  of  travel.' 
TEIiEGRAPH    FORMS. 

Telegraph   2ttesitag:e — Oeneral  Form. 

As  delivered  by  sender  to  the  Company's  A^^eni. 

The Telegraph  Company. 

All  mesaages  taken  by  this  Company  subject  to 
the  following  terms : 

To  guard  against  mistakes  or  delays,  the  sender  of  a 
message  should  order  it  repeated ;  that  is,  telegraphed 
back  to  the  originating  office  for  comparison.  For  this, 
one-half  the  regular  rate  is  charged  in  addition.  It  is 
agreed  between  the  sender  of  the  following  message  and 
this  company,  that  said  company  shall  not  be  liable  for 
mistakes  or  delays  in  the  transmission  or  delivery,  or  for 
non-delivery  of  any  unrepeated  message,  whether  hap- 
pening by  negligence  of  its  servants  or  otherwise,  beyond 
the  amount  received  for  sending  the  same;  nor  for  mis- 
takes or  delays  in  the  transmission  or  delivery,  or  for 
non-delivery  of  any  repeated  message  beyond  fifty  times 
tlie  sum  received  for  sending  the  same,  unless  specially 
insured  ;  nor  in  any  case  for  delays  arising  from  unavoid- 
able interruption  in  the  working  of  their  lines,  or  for 
errors  in  cipher  or  obscure  messages.  And  this  Com- 
pany is  hereby  made  the  agents  of  the  sender,  without 
liability,  to  forward  any  message  over  the  lines  of  any 
other  company  when  necessary  to  reach  its  destination. 

Correctness  in  the  transmission  of  messages  to  any 
point  on  the  lines  of  this  Company  can  be  insured  by 
contract  in  writing,  stating  agreed  amount  of  risk,  arid 
payment  of  premium  thereon  at  the  following  rates,  in 
addition  to  tne  usual  charge  for  repeated  messages,  viz. : 
one  per  cent,  for  any  distance  not  exceeding  i,ooo  miles, 
and  two  per  cent,  for  any  greater  distance.  No  em- 
ployee of  the  Company  is  authorized  to  vary  the  fore- 
going. 

Th«  Company  will  not  be  liable  for  damages  in  any 
case  where  the  claim  is  not  presented  in  writing  within 
sixty  days  after  sending  the  message. 

S.  Y.,  Secretary.                              P.  P.,  President. 
Place ,  Date . 

Send  the  following  message  subject  to  the 
above  terms  which  are  agreed  to. 

To  R.  R.,  at ,  in . 

(Here  write  tnessag-e.) 

(Signed)  S.  R. 

Telefrraph  Messaire— General  Form. 

As  delivered  by  sender  to  Company's  Agent. 

The  Telegraph  Company. 

All  messages  taken  by  this  Company  subject  to 
the  following  terms : 

(  Terms  same  as  abo7/e  /orm.) 

P.  P.,  President.  S.  Y.,  Secretary. 

k-i  Daly  (C.  P.)  547.  l-i5Cal.472-  m-6  El.  &  Bl. 
341.  11-2  Parsons,  274.  0-9  Cox  C.  C.  174 :  S.  C.  6  L. 
r.  (N.  S.)  378 ;  30  Bear.  287;  S.  C.  8  Jur.  (N.  S.)  583. 


No. 
79- 


Sent  by 
A.  B. 


Time. 


Rec'd  by 
C.  D. 


Check. 

6  wds.  pd.  (or 
col.)  75  c. 


Place ,  Date . 

Send  the  following  message  subject  to  the 
above  terms  which  are  agreed  to. 

To  R.  R.,  at ,  in . 

{Here  -write  the  message.) 

{Signed)  S.  R. 

Teleg^raph  Messag^e— General  Form. 
As  delivered  by  the  Company  to  the  person  /*  tuham 
sent. 

The Telegraph  Company. 

The  rules  of  this  Company  require  that  all  me*. 
sages  received  for  transmission  shall  be  written 
on  the  message  blanks  of  this  Company,  under 
and  subject  to  the  conditions  printed  thereon, 
which  conditions  have  been  agreed  to  by  the 
sender  of  the  follo\ving  message. 

P.  P.,  President.  S.  Y.,  Secretary. 


No. 


Sent  by 


Time. 


Rec'd  by 


Check. 


Dated, .  Rec'd  at .    Day , 

To  R.  R.,  at .  Year ,  Hour . 

(Here  follows  the  message  sent. ) 

(Signed)  S.  R. 

Telegrrapli  Hessag^e — General  Form. 

As  delivered  by  the  Company  to  the  person  to  v/hotH 
sent. 

The Telegraph  Company 

Notice. 

This  Company  transmits  and  delivers  messages  only 
on  conditions,  limiting  Its  liability,  which  have  been  as- 
sented to  by  the  sender  of  the  following  message. 

Errors  can  be  guarded  against  only  by  repeating  a 
message  back  to  the  sending  station  for  comparison,  and 
the  Company  will  not  hold  itself  liable  for  errors  or  de- 
lays in  transmission  or  delivery  of  unrepeated  messages. 

This  message  is  an  unrepeated  message  and  is  deliv- 
ered by  request  of  the  sender  under  the  conditions  named 
above. 

S.  Y.,  Secretary.  P.  P.,  President. 

Dated  at ,  day ,  year ,  hour . 

Received  at ,  day ,  year ,  hour . 

To ,  at . 

{Here  follows  the  message.) 

(Signed)  S.  R. 

Read  the  notice  at  the  top. 

Tele^rraph  Message— By  Cable. 

As  delivered  by  sender  to  the  Company' s  Agent. 

The Telegraph  Companies. 

Terms  and  Conditions. 

All  messages  destined  for  points  beyond  the  United 
States,  via  the  Direct  United  States  Cable  Company, 
which  are  received  by  these  Companies  for  transmission, 
will  be  so  received  and  sent  forward  over  their  lines  to 
the  terminus  thereof,  and  there  delivered  to  the  Direct 
United  States  Cable  Company,  on  the  following  terms 
and  conditions  only : 

To  guard  against  mistakes  on  the  lines  of  these  Com- 
panies, the  sender  of  any  such  message  should  order  it 
repeated ;  that  is,  telegraphed  back  from  the  terminus 
of  said  lines  to  the  originating  office.  For  such  repeat- 
ing, the  sender  will  be  charged  in  additicn  one-half  the 
usual  tolls  of  these  Companies  on  that  portion  of  their 
lines  over  which  such  message  passes. 

These  Companies  will  not  assume  any  responsibili^ 
in  respect  to  any  message  beyond  the  terminus  of  their 
own  lines  ;  and  it  is  agreed  between  the  sender  of  the 
following  message  and  these  Companies,  that  said  Com- 
panies shall  not  be  liable  for  mistakes  or  delays  in  trans- 
mission or  delivery,  or  for  non-delivery  to  the  Cable 
Company  of  any  unrepeated  message,  beyond  the  amount 
of  that  portion  of  the  charge  which  may  or  shall  accrue 
to  these  Companies  out  of  the  amount  received  from  the 
sender  for  this  and  the  other  Companies  by  whose  lines 
such  message  may  pass  to  reach  its  destination  ;  and  that 
these  Companies  shall  not  be  liable  for  mistakes  in  the 
transmission  or  delivery,  or  for  non-delivery  to  the  Cabit 
Company,  of  any  repeated  message  beyond  fifty  times 
the  extra  sum  received  by  these  Companies  from  the 

p-97  Mass.  555.  q-9  Exch.  363  ;  S.  C.  24  Eng.  L.  & 
Eq.  513  ;  Redf  R'ys.  ?2  »3<^.  M3,  164-  «'-9  Cox  C.  C 
174 ;  3  F.  &  F.  73 ;  8  Jur.  (N.  S.)  1153. 


BAILMENTS. 


Ul 


tender  for  repeating  such  message  over  their  own  lines  ; 
and  that  these  Companies  shall  not  be  liable  in  any  case 
foe  delay*  arising  from  interruption  in  the  working  of 
their  lines,  nor  for  errors  in  cipher  or  obscure  messages. 
And  these  Companies  are  hereby  made  the  agent  of  the 
tender,  without  liability,  to  forward  any  message  over 
the  lines  to  any  other  company  to  reach  its  destination. 

These  Companies  will  not  be  liable  for  damages  in  any 
case  where  the  claim  is  not  presented  in  writing  within 
sixty  days  after  the  sending  of  the  message. 

P.  P.,  President.  S.  Y.,  Secretary. 


No. 
93- 


Sent  by 
A.  B. 


Time. 
3  P-  M. 


Rec'd  by 
X.  Y. 


Check. 

3  wds.  pd.  (or 

col.)  $3.00. 


.  Place ,  Date . 

'   Send   the    following   message    subject   to  the 
nbove  terms  which  are  agreed  to. 
To  R.  R.,  at ,  in . 

{Here /olicnus  message.) 

{Signed)        S. 


R. 


Telesrraph  Message — By  Cable. 

As  delivered  by  sender  io  the  Company. 

The Telegraph  Company. 

All  messages  destined  for  points  beyond  the 
United  States,  via  the  Atlantic  cables  and  the 
cables  to  Cuba,  which  are  received  by  this  Com- 
pany for  transmission,  will  be  so  received  and 
sent  forward  over  its  lines  to  the  terminus  thereof, 
and  there  delivered  to  the  next  connecting^  tele- 
graph company,  only  on  the  terms  and  conditions 
printed  on  the  back  hereof. 

P.  P.,  President.  S.  Y.,  Secretary. 

Place ,  Date . 

Send  the  following  message  subject  to  terms 
and  conditions,  printed  on  the  back  hereof,  which 
are  agreed  to : 

Terms  and  Conditions. 
{Same  as  in  preceding  Jonn.) 

To  S.  R.,  at ,  in . 

{Here  write  out  th*  tnessage.) 

{Signed)        S.  R. 

Telegrrapli  Message — By  Cable. 

As  delivered  by  the  Company  to  the  person  to  whom 
sent. 

The Telegraph  Company. 

All  cable  messages  received  for  transmission 
must  be  written  on  the  message  blanks  provided 
by  this  Company  for  that  purpose,  under  and 
subject  to  the  conditions  printed  thereon,  and  on 
the  back  hereof,  %vhich  conditions  have  been 
agreed  to  by  the  sender  of  the  following  message. 
S.  Y.,  Secretary.  P.  P.,  President. 

Conditions. 
To  guard  against  mistakes  on  the  lines  of  this  Com- 
pany, the  sender  of  every  message  should  order  it  re- 
peated ;  that  is,  telegraphed  back  from  the  terminus  of 
said  lines  to  the  originating  office.  For  such  repeating, 
the  sender  will  be  charged  in  addition,  one-half  the  usual 
tolls  of  this  Company,  on  that  portion  of  its  lines  over 
which  such  message  passes. 

This  Company  will  not  assume  a»y  responsibility  in 
respect  to  any  message  beyond  the  terminus  of  its  own 
lines  ;  and  it  is  agreed  between  the  sender  of  the  follow- 
ing message  and  this  Company,  that  said  Company 
shall  not  be  liable  for  mistakes  or  delays  in  transmission 
•r  delivery,  or  for  non-delivery  to  the  next  connecting 
Telegraph  Company,  of  any  unrepeated  message,  be- 
yond the  amount  of  that  portion  of  the  charge  which 
may  or  shall  accrue  to  this  Company  out  of  the  amount 
received  from  the  sender  for  this,  and  the  other  com- 
panies, by  whose  lines  such  message  may  pass  to  n  ach 
its  destination ;  and  that  this  Company  shall  not  be 
liable  for  mistakes  in  the  transmission  or  delivery,  or  for 
non-delivery  to  the  next  connecting  Telegraph  Com- 
pany, of  any  repeated  message,  beyond  fifty  times  the 
extra  sum  received  by  this  Company  from  the  sender 
for  repeating  such  message  over  its  own  lines  ;  and  that 
this  Company  shall  not  be  liable  in  any  case  for  delays 
arising  from  interruptions  in  the  workings  of  its  lines, 
nor  for  errors  in  cipher  or  obscure  messages.  And  this 
Company  is  hereby  made  the  agent  of  the  sender,  with- 
out liability,  to  forward  any  message  over  the  lines  of 
any  other  company  to  reach  its  destination. 

This  Company  is  not  to  be  liable  for  damages  in  any 
case,  where  the  claim  is  not  presented  in  writing,  within 
ioixif  days  after  the  sending  of  the  message. 


\     Received  at . 

ToR.  R.,at .  I 

Day ,  Year ,  Hour . 

{Here  follows  the  message  as  sent.) 

{Signed)        S.  R. 

Telesrraph  Messagre— Cable. 

As  deliveredby  the  Company  to  the  person  to  whom 
sent. 

The AND Telegraph  Companies. 

The  rules  of  these  Companies  require  that  all 
messages  received  for  transmission  shall  be  writ- 
ten on  the  message  blanks  of  these  Companies, 
under  and  subject  to  the  conditions  printed 
thereon,  which  conditions  have  been  agreed  to  by 
the  sender  of  the  following  message. 

P.  P.,  President.  S.  Y.,  Secretary. 


No. 

Sent  by. 

Time. 

Rec'd  by. 

Check. 

Dated . 

ToR.  R., at 

-,in . 

Received  at .    Day 

,  Year ,  Hour  — . 

(Here  follows  the  message  as  sent.) 

{Signed)        S.  R. 
Tcle8:raph  Sfessagre — Half- Rate. 

As  delivered  to  Company's  Agent  by  sender. 

The Telegraph  Company  will  receive  ines- 

sages  for  the  principal  stations  in  the  United 
States  east  of  the  Mississippi  river,  to  be  sent  dur- 
ing the  night,  at  one-half  the  usual  rates,  on  con- 
dition that  the  Company  shall  not  be  liable  fo« 
errors  or  delay  in  the  transmission  or  delivery,  or 
for  non-delivery  of  such  messages,  from  whatever 
cause  occurring,  and  shall  only  be  bound  in  such 
case  to  return  the  amount  paid  by  the  sender. 

No  claim  for  refunding  will  be  allowed,  unless 
presented  in  Tvriting  within  twenty  days. 

P.  P.,  President.  S.  Y.,  Secretary. 


No. 


Sent  by. 


Time. 


Rec'd  by. 


Check. 


Send  the  following  message  subject  to  the 
above  terms  v(^hich  are  agreed  to. 

Place ,  Date . 

To  R.  R.,  at ,  in . 

{Here  write  the  tnessage.)  {Signed)        S.  R. 

Teleg-rapti  Message— Half-Rate. 
As  delivered  by  sender  to  Company's  Agent. 

The Telegraph  Company. 

Terms  and  Conditions. 
The  business  of  telegraphing  is  liable  to  errors  and 
delays,  arising  from  causes  which  cannot  at  all  times  be 
g-jarded  against,  including  sometimes  negligence  of  ser- 
vants and  agents  whom  it  is  necessary  to  employ.  Most 
errors  and  delays  may  be  prevented  by  repetition,  for 
which,  during  the  day,  half  price  extra  is  charged  in  ad- 
dition to  the  full  tariff  rates. 

The Telegraph  Company  will  receive  messages 

for  transmission  between  stations  in  the  United  States 
east  of  the  Mississippi  river,  to  be  sent  without  repe- 
tition during  the  night,  at  one-half  the  usual  rates,  on 
condition  that  the  sender  will  agree  that  he  will  not 
claim  damages  from  it  for  errors  or  delays,  or  for  non- 
delivery of  such  messages,  happening  from  any  cause 
other  than  the  acts  of  its  corporate  officers,  beyond  a 
sum  equal  to  ten  times  the  amount  paid  for  transmission ; 
and  that  no  claim  for  damages  shall  be  valid  unless  pre- 
sented in  writing  within  twenty  days  from  sending  the 
message. 

The  Company  will  be  responsible  to  the  limit  of  its 
lines  only,  for  messages  destined  beyond,  but  will  act  as 
the  sender's  agent  to  deliver  the  message  to  connecting 
companies  or  carriers,  if  desired,  without  charge  and 
without  liability. 

S.  Y.,  Secretary.  P.  P.,  President. 

Place ,  Date . 

Send  the  following  half-rate  message  subject  t« 
the  above  terms,  which  are  agreed  to. 

To  R.  R.,  at ,  in . 

{Here  write  message.)  {Signed)        S.  R. 

Telesrraph  Message— Half- Rate. 

As  delivered  by  the  Company  to  the  person  to  whom 

sent. 

The  Telegraph  Company  require  that  al 

messages  received  for  transmission  shall  be  \vrit- 
ten  on  the  blanks  of  the  Company,  under  and 
subject  to  the  conditions  printed  thereon,  whick 


f44 


BAILMENTS. 


conditions  have  been  agreed  to  by  the  sender  of 
the  following  half-rate  message. 
P.  P.,  President.  S.  Y.,  Secretary. 

Sent  by       Time.     ~Rec'd  by  Check. 

CD.        II. lo  E.  F.         6(wds.)paid 

a.m.  {or  co\\^c^)^sc. 


No. 
3 


Dated .  I     Received  at . 

To  R.  R.  I     . 

(Here  foUonvs  the  message  received.) 

(Signed)        S.  R. 

Telegraph  Message— Half-Rate. 

As  deliver^  by  the  Company  to  the  person  to  whom 
sent. 

The Telegraph  Company  require  that  all 

messages  received  for  transmission  shall  be  wrrit- 
ten  on  the  blanks  of  the  Company,  under  and 
subject  to  the  conditions  printed  thereon,  which 
conditions  have  been  agreed  to  by  the  sender  of 
the  following  half-rate  message. 

S.  S.,  Secretary.  P.  P.,  President. 

Dated,  Day ,  Year ,  Hour . 

Received  at . 

To . 

{Here  /allows  the  message  as  sent.) 

{Signed)        S.  R. 

VALUATION  is  the  act  of  ascertaining 
the  worth  of  a  thing.  The  estimated  worth  or 
value  of  a  thing.  It  differs  from  price,  which 
does  not  always  afford  a  true  criterion  of  value, 
for  a  thing  may  be  purchased  at  a  sacrifice,  or 
at  an  extravagant  price.  In  the  case  of  bail- 
ments the  thing  bailed  is  sometimes  valued  at 
the  time  of  making  the  contract,  so  that  if  lost, 
no  dispute  may  arise  as  to  the  amount  of  the 
loss.' 

WAREHOUSEMEN  are  persons  who 
receive  goods  and  merchandise  to  be  stored  in 
their  warehouses  for  hire.  They  are  bound  to 
use  ordinary  care  in  preserving  such  goods  and 
merchandise,  and  their  neglect  to  do  so  will 
render  them  liable  to  the  owner.*  The 
warehouseman's  liability  commences  as  soon 
as  the  goods  arrive  and  the  crane  of  the  ware- 
house is  applied  to  raise  them  into  the  ware- 
house."   See  Wharfingers,  below. 

WHARFINGERS  are  persons  who  own 
and  keep  a  wharf  for  the  purpose  of  receiving 
and  shipping  merchandise  to  and  from  it  for 
hire.  A  wharfinger  stands  in  the  situation  of 
a  bailee  for  hire,  and,  therefore,  like  a  ware- 
houseman, he  is  responsible  for  ordmary  neglect, 
and  is  required  to  take  ordinary  care  of  the 
goods  intrusted  to  him  as  such.''  He  is  not, 
like  an  innkeeper  or  carrier,  to  be  considered 
as  an  insurer,  unless  he  superadd  the  character 
of  a  carrier  to  that  of  wharfinger.'  The  re- 
sponsibility of  a  wharfinger  begins  when  he 
acquires,  and  ends  when  he  ceases,  to  have  the 
custody  of  the  goods  in  that  capacity. 

Wharfage  is  the  money  paid  for  landing 
goods  upon  or  loading  them  from  a  wharf.* 

«-Story  Bailm.  gg  253,  254.  t-i  Peake,  114;  i  Esp. 
315;  Story  Bailm.  g  444;  Jones  Bailm.  49,  06,  07;  7 
Cow.  497;  12  Johns.  232;  2  Wend.  593;  9  Id.  268 :  2 
Ala.  284.  11-4  Esp.  262.  v-2  Barb.  328;  4  Ind.  368; 
10  Vt.  56 ;  Peake,  119 ;  4  T.  R.  581 :  2  Stark  400.  w-i 
Stark,  72  ;  4  Campb.  225 ;  5  Burr,  28, 25  ;  12  Johns.  232  ; 
7  Cow.  497  ;  5  Mo.  97.  X-DaneAbr.  Index;  4Cal.  41, 
45.  y-ii  Ala.  (N.  S.)  s86:  see  5  Hill  (N.  Y.);  7  Id. 
429;  21  Wend,  no;  i  £.  D.  Smith,  80,  294;  2  Rich. 
}fo;  8  B.  &  C.  42  ;  2  Mann.  &  R.  107.  z-a  Stark,  40: 
\p  Vt.  56;  7  Cow.  497;  3  Taunt.  264;  11  Cush.  70;  26 
Vt  316;  13  Barb.  481.    a-3  Campb.  414;  4  Id.  72;  6 


Owing  to  the  interest  which  the  public  have  ill 
the  matter,  rales  of  wharfage  may  be  regulated 
by  statute.^ 

Warehousemen,  wharfingers,  and  forwarding 
merchants  are  bound  to  have  proper  accommo- 
dations for  the  amount  and  kind  of  business 
they  profess  to  do,  and  which  will  be  likely  to 
arise  at  the  particular  point ;  to  employ  compe- 
tent and  trustworthy  agents ;  exercise  a  constant 
and  judicious  supervision  of  the  business,  so  as 
to  secure  its  accomplishment  in  due  time,  with 
the  proper  exemption  from  loss  or  damage ;  and 
if  there  is  a  defect  in  any  of  these  particulars/ 
or  any  other,  they  are  liable.  The  master 
should  be  held  responsible  for  the  larceny  of 
his  own  servants  while  holding  the  goods  as 
his  servants.* 

When  a  wharfinger  begins  and  ceases  to 
have  custody  of  goods  and  merchandise  de- 
pends, generally,  upon  the  usages  of  trade  and 
of  the  business.  When  goods  are  delivered  at 
a  wharf,  and  the  wharfinger  has  agreed,  ex- 
pressly or  by  implication,  to  take  the  custody 
of  them,  his  responsibility  commences ;  but  a 
mere  delivery  at  the  wharf  without  such  assent 
does  not  make  him  liable.*  When  goods  are 
in  the  wharfinger's  possession,  to  be  sent  on 
board  a  vessel  for  a  voyage,  as  soon  as  he  de- 
livers the  possession  and  the  care  of  them  to 
the  proper  officers  of  the  vessel,  although  they 
are  not  actually  removed,  he  is,  by  the  usages 
of  trade,  deemed  exonerated  from  all  further 
responsibility.''  The  wharfinger  does  not,  how- 
ever, discharge  his  duty  by  delivering  them  to 
one  of  the  crew,  but  should  deliver  them  to 
the  captain  of  the  vessel,  or  some  other  person 
in  authority  on  board  of  if." 

A  wharfinger  or  warehouseman  has  a  lien 
upon  the  particular  goods  for  the  freight  and 
charges  already  incurred,  and  may  detain  them 
until  paid.^  A  wharfinger  has  equally  a  lien 
on  a  vessel  for  wharfage.*  He  may  insure  for 
the  full  value  and  recover  for  the  benefit  of  the 
general  owner.' 

A  warehouseman  is  bound  to  look  after  the 
goods,  and  see  that  they  do  not  suffer  from 
dampness  or  exposure.*  Buf  he  is  only  re- 
sponsible for  such  neglect  as  a  prudent  man 
would  not  be  expected  to  suffer  in  regard  to 
his  own  property  of  equal  value.'' 

Factors,  bailiffs,  and  commission  merchants 
are  bound  to  that  degree  of  knowledge,  skill, 
and  diligence,  which  will  enable  them  to  tran- 
sact the  matters  intrusted  to  them  in  such  \ 
manner  as  to  secure  safety  and  reasonable 
benefit  and  profit  to  the  owner.' 

They  have  a  lien  upon  the  goods  and  papers 

Cow.  757:  10  Vt.  56;  2  Stark,  400;  14  M.  &W.  28.  !►- 
5  Esp  41;  Story  Bailm.  g  453;  Abb.  Shipping,  226; 
Malloy  b.  2,  c.  2,  j.  2  ;  Roccus,  Nat.  88  ;  Dig.  9,  4,  3  ; 
I  M.  &  W.  174;  16  Id.  119:  I  Gale,  420.     c-i  C.  «'.  P. 


638;  and  see  10  Bingh.  246:  2  C.  &  M.  531;  7  Scott, 
876;  4Q.  B.  5JI.  d-7  Watts  &  S.  466;  18  111.  286;  9 
Wend.  268;  I  E.sp.  109;  3  Id.  81 ;  6  East.  519;  7  Id 
224:  4  B.  &  Aid.  50;  12  Ad.  &  E.  639;  7  B.  &  C.  212. 
e-Ware.  Dist.  Ct.  354;  Gilp.  Dist;  Ct.  loi;  i  Newb. 
Adm.  553.  f-34  Eng.  L.  &  Eq.  116.  U'-28  Vt.  452 ;  4 
Ind.  368.  h-8  Jones  Law,  482  ;  17  La.  An.  8g ;  18  Wis 
471.     1-1  Bing.  34. 


BAILMENTS— BILLS,  BONDS.  AND  NOTES. 


U?y 


ill  their  hands  for  their  charges  in  regard  to  the 
particular  business.y 

If  a  bailee  delivers  the  goods  to  a  wrong 
person,  he  is  guilty  of  conversion.*  See  title 
"  Liens." 

Bailor.  See  Bailments. 

Balance.  See  Bookkeeping;  Mercantile  Law. 

Balanec-Slieet.  See  Bookkeeping. 

BaiilNlinieiit.  See  Criminal  Law. 

Bankable.  See  Mercantile  Law. 

Banking'.  See  Mercantile  Law. 

Bank  Account.  See  Bookkeeping:  Mercan- 
tile Law. 

Bank-Note.  See  Bills  op  Exchange  and 
Promissory  Notes,  etc. 

Banker's  Note.  See  Mercantile  Law. 

Bankruptcy.  See  Mercantile  Law;  Per- 
sonal Relations  ;  Practice. 

BanH  of  Matrimony.  See  Marriage. 

Bar.  See  Actions;  Contract?     Practice. 

Bargain  and  Sale.  See  Cona.  kts. 

Barratry.  See  Criminal  Law  ;  Insurance  ; 
M  \ritime  Law. 

Barren  Money.  See  Money. 

Barrenness.  See  Medical  Law. 

Barter.  See  Contracts. 

Bastard.  Sec  Personal  Relations. 

Battery.  See  Criminal  Law. 

Bawdy-House.  See  Criminal  Law. 

Bay.  See  Real  Property  ;  Water. 

Bayou.  See  Real  Property  ;  Water. 

Beaconage.  See  Maritime  Law  ;  Money. 

Bearer.  See  Mercantile  Law. 

Beasts.  See  Animals. 

Bed.  See  Real  Property  ;  Water. 

Bees.  See  Animals. 

Beggar.  See  Pauper  ;  Personal  Relations. 

Behoof.  See  Conveyances. 

Belief.  See  Evidence. 

Bencb.  See  Court. 

Bench- Warrant.  See  Practice;  Process; 
Warrant. 

Beneficial  Interest.  See  Contracts  ;  Inter- 
est ;  Property,  etc. 

Beneficiary.  See  Personal  Relations. 

Bequest.   See  Gifts. 

Best  Evidence.  See  Evidence. 

Betrothinent.   See  Marriage. 

Better  Equity.  See  Practice. 

Betterments.  See  Real  Propertt. 

Beyond  the  $iea.  See  Domicil. 

Bias.   See  Practice. 

Bid.  See  Auction  Sales. 

Bidder.   See  Auction  Sales. 

Bigamy.  See  Criminal  Law. 

Bill.  See  Legislation  ;  Mercantile  Law  ;  Prac- 
tice. 

Bill  of  Adventure.  See  Mercantile  Law. 

Bill  of  Costs.   See  Practice. 

Bill  of  Credit.  See  Mercantile  Law;  Money. 

Bill  Of  Debt.  See  Practice. 

Bill  of  Discovery.  See  Practice. 

Bill  of  Exceptions.  See  Practice. 

BIL,L,>S  OF  EXCHANGE.  NEOOTIABI.E 
BONUS,  AND  PBO.mSSORY  NOTES, 
ETC.    See  Bookkeeping,  AIercantile  Law. 

Bills  of  E.xchange,  Bank  Notes,  Bonds, 
Checks,  Certificates  of  Deposit,  and 
Promissory  Notes,  are  commercial  substi- 
tutes for  money,  evidences  of  indebtedness, 
and  the  general  mediums  of  business  and  mer- 
cantile exchange.  They  are  negotiable  and 
non-negotiable. 

Negotiable  is  a  term  applied  to  a  contract, 
the  right  of  action  of  which  is  capable  of  being 
transferred  by  indorsement  (of  which  delivery 
is  an  essential  part)  in  case  the  undertaking  is 

y-Yelv.  ,679,  and  Met.'s  note;  2  W.  Black.  1154; 
Cowp.  251 :  3  T.  R.  119.  85-1  Stark.  104;  4  Barb.  (S. 
0361.  a-4M.  &  W.  403;  12  Pick.  314;  16  Id.  474. 
b-13  Ind.  521  ;  46  Id.  62  ;  43  Id.  35.  c-45  Id.  122.  d- 
\6  Id.  62 ;  43  Id.  35.     e-43  Id.  35.      f-7  Johns.  461 ;   23 

10 


to  A.,  or  his  order.  A.,  or  his  agent,  or  the 
like,  or,  by  delivery  alone,  in  case  the  under- 
taking is  to  A.,  or  bearer,  the  assignee  in  either 
case  having  a  right  to  sue  in  his  own  name 
with  all  the  rights  of  the  assignor. 

Bills  of  exchange,  promissory  notes,  govern- 
ment. State,  county,  township,  district,  munici- 
pal and  corporate  bonds,  and  bank  notes,  to 
order  or  bearer,  are  universally  negotiable ;  and 
bills  of  lading,"  and  notes  not  to  order  or 
bearer,  are  qtiasi  negotiable ;  that  is,  an  in- 
dorsement will  give  a  right  of  action  in  the 
name  of  the  assignee.  In  general,  any  chose  in 
action  can  be  assigned  so  that  the  assignee  can 
bring  an  action  in  his  own  name,  and  with  all 
the  rights  of  the  assignor.  There  are,  how- 
ever, some  exceptions  to  this  rule;  as,  in  some 
States;  this  quality  of  negotiability  is  restricted 
by  statute ;  for  example,  in  some  States,  in  addi- 
tion to  being  payable  to  order  or  bearer,  they 
must  also  be  payable  in  a  bank  incorporated 
under  some  law  of  that  commonwealth,  or 
some  bank  organized  therein  under  some  law 
of  the  United  States;  and  in  others  all  prom- 
issory notes  are  by  statute  negotiable,  but  not 
as  inland  bills  of  exchange  unless  they  are  pay- 
able in  a  bank  in  the  State**  having  an  actual 
existence  at  the  time  the  note  is  executed,"* 
and  the  note  must,  on  its  face,  designate  the 
particular  bank,*  as  this  cannot  be  ascertained 
or  shown  by  extrinsic  evidence.* 

Non-Negotiable.  Notes  payable  in  spe- 
cific articles  are  not  negotiable,'  but  are  as- 
signable. When  given  for  value  received, 
and  it  is  so  expressed  on  the  face  of  the  instru- 
ment, it  is  not  necessary  in  the  first  instance  to 
prove  the  consideration  for  the  promise.^  But 
when  such  note  does  not  purport  to  have  been 
given  for  value  received,  it  is  a  special  con- 
tract ;  and  if  no  consideration  appear  upon  the 
face  of  it,  and  none  be  alleged,  it  cannot  be 
given  in  evidence  under  a  count  for  money ; 
nor  can  the  real  consideration  be  proved.'' 
Notes  payable  in  chattels,  goods,  or  choses  in 
action,  not  being  promissory  notes,  are  to  be 
construed  and  enforced  as  other  parol  contracts. 
So,  also,  an  order  for  a  given  sum,  payable  ia 
goods  or  the  proceeds  thereof,  is  not  a  bill  of 
exchange,  and  therefore,  when  the  drawee  has 
accepted  such  bill,  the  payee  cannot  recover  on 
it,  unless  he  avers  and  proves  that  the  acceptor 
has  in  his  hands  either  goods  or  the  proceeds 
of  them,  such  as  are  described  in  the  order, 
sufficient  for  the  payment.  But  if  the  order  is 
so  drawn  as  to  imply  that  the  drawee  has  a 
fund  in  his  hands  sufficient  to  meet  the  draft, 
the  acceptance  of  it,  though  it  be  not  a  bill 
of  exchange,  is  deemed  an  admission  which 
will  support  an  action  for  money  had  and  re- 
ceived.'  So,  the  acceptance  of  a  draft  drawn  on 
a  present  fund  in  the  hands  of  the  drawee  is 
prima  facie  evidence  of  the  sufficiency  of  that 

Wend.  70.  g-For  the  acknowledgment  of  value  re- 
ceived, it  is  sufficient  to  cast  upor  the  promisor  the  bur- 
den of  proving  that  there  was  no  consideration,  i  Johns. 
484  ;  7  Id.  321  ;  I  Bosw.  402  S.  C.  120  N.  Y.  472.  ll-lo 
Johns.  418.     1-2  Bl.  R.  1072  ;  15  Barb.  274. 


144 


BILLS,  BONDS,  AND  NOTES. 


fund.J  The  possession  of  a  promissory  note  not 
negotiable  is  not  prima  facie  ey'idence  of  a  trans- 
fer to  the  plaintiff  before  maturity  of  the  note,  or 
before  the  commencement  of  the  action.  An  in- 
dorsee must  aver  and  prove  the  consideration  of 
the  transfer  to  him."*  Non-negotiability,  like 
overdue  paper,  is  notice  to  all  that  the  note  or 
instrument  is  subject  all  the  time  to  such  just 
defences  as  the  maker  may  have ;  and  whoever 
takes  such  non-negotiable  paper,  even  before 
due,  takes  it  subject  to  all  such  equities.' 

A  BANK  NOTE  is  a  promissory  note,"  payable 
on  demand  to  the  bearer,  made  and  issued  by  a 
person  or  persons  acting  as  bankers,  and  author- 
ized by  law  to  issue  such  notes. 

For  many  purposes  they  are  not  looked  upon 
as  common  promissory  notes,  and  as  such  mere 
evidences  of  debt,  or  security  for  money.  In 
ordinary  transactions  of  business,  they  are  rec- 
ognized, by  general  consent,  as  cash.  The  busi- 
ness of  issuing  them  being  regulated  by  law, 
a  certain  credit  attaches  to  them  that  ren- 
ders them  a  convenient  substitute  for  money." 
The  practice  is,  therefore,  to  use  them  as  money ; 
and  they  are  good  tender  unless  objected  to.° 
They  pass  under  the  word  "  money  "  in  a  will, 
and,  generally  speaking,  they  are  treated  as 
cash.P  When  a  payment  is  made  in  bank  notes 
they  are  treated  as  cash,  and  receipts  are  given 
as  for  cash.i  A  payment  of  a  debt  in  bank  notes 
discharges  the  debt;""  but  it  is  the  duty  of  the 
persons  receiving  them  to  ascertain,  as  soon  as 
possible,  their  value,  by  presenting  them  for 
payment."  Payment  in  forged  bank  notes  is  a 
nullity.*  But  where  the  bank  itself  receives 
notes  purporting  to  be  its  own,  and  they  are 
forged,  it  is  otherwise."  If  a  note  be  cut  in  two 
for  transmission  by  mail,  and  one-half  be  lost, 
the  6ona  fide  holder  of  the  other  half  can  re- 
cover the  whole  amount  of  the  note.^ 

Bank  notes  are  governed  by  the  rules  appli- 
cable to  other  negotiable  paper.  They  are 
assignable  by  delivery.''  The  holder  of  a  note 
is  entitled  to  payment,  and  cannot  be  affected 
by  the  fraud  of  a  former  holder,  unless  he  is 
proved  privy  to  the  fraud.''  The  bona  fide 
holder  who  has  received  them  for  value  is  pro- 
tected in  their  possession,  even  against  the  real 
owner  from  whom  they  have  been  stolen. 

Bank  notes  may  be  taken  on  execution ;  but 
they  are  not  to  be  sold.? 

BASTK   NOTE   FORIttS. 
Bank  Note — National. 

B  No. . 

The  First  National  Bank  of will  pay 

dollars  to  bearer  on  demand. 
C.  R.,  Cashier.  P.  P.,  President. 

No. . 

J-3  Marsh,  184;  2  Greenl.  123;  11  Mass.  145;  4  Tyr. 
290;  2  C.  &M.  530  S.  C.  ;  3  Pick.  38.  k-21  Barb.  241  ; 
I  Bosw.  402:  :8  How.  Pr.  R.  265;  3  Iowa,  334.  1-6 
K.-IS.  489.  in-14  Gray,  59.  n-2  Hill,  241;  i  Id.  13. 
0-9  Pick.  542  ;  7  Johns.  476;  8  Ohio,  169;    11  Me.  475; 

5  Yerg.  199  :  6  Ala.  (N.  S.)  226,  see  3  Halst.  172  ;  4  N. 
H.  206  :  4  Dev.  &  B.  435.     p-19  Johns.  115:7  Id.  476  ; 

6  Hill,  340.  q-i  Ohio,  189,  524  ;  15  Pick.  177 ;  5  Gill 
&J-'58;  3  Hawks.  328:  5  J.  I.  Marsh.  643  ;  12  Johns. 
200;  0  Id.  120;  10  Id.  144;  I  Johns.  Ch.  231  ;  i  Sch.  & 
L.  318,319:    II  Ves.  Ch.  662;    I  Rop.  Leg.  3.     r-i  W. 


Bank  Note— United  Staten. 

A  No. .    $ . 

The  U  nited  States  will  pay  to  bearer doUara 

>Vashington,  D.  C. 

R.  R. ,  Register  o/the  T.  R. ,  Treasurer  of  the 

Treasury.  United  States. 

No. . 

Bonds  issued  by  States  or  corporations  under 
authority  of  law,  and  drawn  in  negotiable  form, 
are  another  species  of  negotiable  paper.  The 
title  to  these  instruments,  which  are  generally 
made  payable  to  bearer,  passes  by  mere  deliv- 
ery. The  form,  design,  and  nature  of  the  in- 
strument show  that  it  is  intended  for  negotiation 
and  sale,  like  a  negotiable  note  or  bill  of  ex- 
change. It  is  itself  an  absolute  contract  for 
the  payment  of  a  certain  sum  of  money  to  the 
bearer;  and  the  common  usage  is  to  sell  such 
bonds  in  the  market,  and  transfer  them  by 
delivery. 

BOND  FORMS.' 

Private  Corporation  Bond — General 

Form. 

Amount  of  Loan  $150,000. 

First  Mortgage per  cent.  Loan  of  the 

Railway  Company  of . 

United  States  of  America,  State  of . 

$500.  No. . 

Know  all  men  by  these  presents  : 

That  the  Railway  Company  of  ac- 
knowledges itself  indebted  to of ,  or  the 

bearer  hereof,  in  accordance  with  the  condition 
as  to  registration  hereinafter  mentioned,  in  the 
sum  of  five  hundred  dollars,  lawful  money  of 
the  United  States  of  America,  payable  at  the 
financial  agency  of  said  Company,  in  the  city  of 

,  the  first  day  of ,  with  interest  thereon  at 

the  rate  of  per  cent,  per  annum,  payable 

semi-annually,  from  the  date  hereof,  on  the  first 
days  of  April  and  October,  on  the  presentation 
and  surrender  of  the  proper  interest  coupon 
hereto  attached. 

This  bond  is  one  of  a  series  of  five  hundred  of 
like  tenor  and  date,  two  hundred  and  fifty  of 
which  are  for  the  sum  of  one  hundred  dollars 
each,  amounting  in  the  aggregate  to  one  hundred 
and  fifty  thousand  dollars,  the  payment  of  which, 
with  the  interest  as  aforesaid,  is  secured  by  a 
mortgage  bearing  even  date  herewith,  upon  the 
railway  rolling  stock  and  corporate  franchises  of 
said  Company,  duly  executed  and  delivered  to  the 

Company  aforesaid,  in  trust  for  the  holders 

of  said  bonds  and  interest  coupons,  duly  recorded 
in  the  office  of  the ,  of ,  in  the  State  of . 

The  principal  of  this  bond  and  the  interest 
thereon  are  payable  at  the  financial  agency  of  the 

Company,  in  the  city  of .without  deduction 

for  any  taxes  which  said  Company  are  now  or 
may  at  any  time  hereafter  be  required,  by  any 

law  of  the  United  States,  or  the  State  of ,  or 

either,  to  retain  therefrom,  for  national  or  State 
purposes,  when  and  as  the  same  respectively  be- 
come due  and  payable,  the  said  Company  hereby 
agreeing  to  pay  the  same. 

This  bond  is  accepted  subject  to  the  condition 
as  to  registration  that  it  shall  be  transferable  by 
delivery,  except  when  registered  on  the  books 
of  the  Company  in  the  name  of  the  owner,  and 
such  registry  indorsed  thereon.  Such  registered 
owner  may  at  any  time  make  the  same  transfer- 
able by  delivery  by  having  it  registered  as  afore- 
said, payable  to  bearer. 

This  bond  shall  not  become  obligatory  until  it 

&S.92;  u  Ala.  280;  see  13  Wend.  loi  ;  Ji  Vt.  516; 
9H.  H.  365:  2  Hill  (S.  0509.  «-"  Wend.  9;  13  Id. 
loi ;  II  Vt.  516 ;  9  N.  H.  365  •  10  Wheat.  333  ;  6  Mass. 
182;  t8  Barb.  545.  ,t-2  Hawks.  326;  3  Id.  568  ;  3  Penn. 
St.  330;  5  Conn.  71.  n-io  Wheat.  333  :  see  6  B.  &  C. 
373.  v-6Wend  378:  6Miinf.  166:  4  Rand.  186.  W- 
Rep.  temp.  Hardw.  53;  9  East.  48;  4  Id.  510;  Dougl. 
236.  x-1  Burr.  452  :  4Rawle,  185;  11  East.  135;  Dan« 
Abr.  Inde.x:  Powell,  Mort.  Index ;  U.  S.  Dig.  Bouv 
Inst,    y-io  Barb.  157,  596.    z-Lehman  &  Bolton,  Phila. 


BILLS,  BONDS,  AND  NOTES. 


HS 


•hall  have  become  authenticated  by  a  certificate 
annexed  to  it,  duly  executed  by  the  trustee. 

In  witness  whereof,  the Railway  Company 

of have  caused  these  presents  to  be  sealed 

with  their  corporate  seal,  duly  attested  by  their 

secretary  and  signed  by  their  president,  this 

day  of .  (Signed)    P.  'P.,  President. 

ISeal.]  {Attest)     S.  Y.,  Secretary. 

Authentication  by  Trustee. 

The  Company   hereby   certifies  that    the 

within  bond  is  one  of  the  same  secured  by  the 
mortgage  herein  named.  P.  P., President. 

Reg^lstratlon. 


)ate  of  registry. 


In  whose  name 
registered. 


Transfer 
agent. 


Interest  Coupon. 

The Railway  Company  of 

Will  pay,  on  the  first  day  of ,  at  its  finan- 

jial  agency,  in ,  on  surrender  of  this  coupon, 

to  bearer  if  registered  to  bearer,  or  to  the  regis- 
tered  owner    or    order,  dollars,  being    six 

months'  interest  due  that  day  on  bond  No. . 

(Signed)        T.  R.,  Treasurer. 

Private  Corporation  Bond— General 
Form. 

United  States  of  America,  State  of . 

$i,ooo.        The Railroad  Company.        $i,ooo. 

For  value  received,  and  without  defalcation, 

the Railroad  Company  promise  to  pay  to  the 

Trust  Company,  of  the  city  of ,  or  bearer, 

one  thousand  dollars  in  gold  coin  of  the  coinage 
of  the  United  States  of  America,  on  the  first  day 

•f  November,  in  the  year  ,  with  interest  in 

coin,  at  the  rate  of per  centum  per  annum, 

payable  on  the  first  days  of  the  months  of  May 
and  November,  in  each  year  hereafter,  on  presen- 
tation of  the  respective  coupons  hereto  attached. 

The  principal  and  interest  of  this  bond  are  pay- 
able at  the  office  of  the  trustee  herein  named,  or 
of  its  successor  in  the  trust,  in  the  city  of . 

This  bond  is  one  of  the  series  of  nine  hundred 
first  mortgage  bonds,  five  hundred  of  which  are 
numbered  from  one  to  five  hundred  inclusive,  and 
are  for  one  thousand  dollars  each,  and  four  hun- 
dred of  which  are  numbered  from  five  hundred, 
and  one  to  nine  hundred  inclusive,  and  are  for 
five  hundred  dollars  each,  of  vt^hich  said  nine 
hundred  bonds  there  is  no  priority  of  lien  or  pay- 
ment by  one  over  the  other,  amounting  in  the 
aggregate  to  seven  hundred  thousand  dollars  and 
secured  by  an  indenture  of  mortgage  or  deed  of 
trust,  bearing  even  date  herewith  and  executed 

by  this  Company,  conveying  to  the  said Trust 

Company,  of  the   city  of  ,  the   railroad,  its 

branches  and  appendages,  rolling  stock  and 
equipments,  and  the  franchises,  rights,  lands,  real 
estate,  and  property  of  the  said  Railroad  Com- 
pany, now  existing  or  hereafter  to  be  acquired. 

This  bond  is  valid  only  when  authenticated  by 
a  certificate  indorsed  thereon,  duly  signed  by  said 
trustee. 

In  witness  w^hereof,  the Railroad  Company 

has  caused  its  corporate  seal  to  be  hereto  affixed 
and  these  presents  to  be  signed  by  its  president 

and  countersigned  by  its  treasurer,  this day 

of .  {Signed)        P.P.,  President. 

[5>a/.]        {Countersigned)     T.  R.,  Treasurer. 
Authentication    Certificate. 

The  Trust   Company,  of  the   city   of  , 

trustee,  certifies  that  the  above  bond  is  one  of  the 
series  of  nine  hundred,  of  which  five  hundred  are 
for  one  thousand  dollars  each,  and  four  hundred 
are  for  five  hundred  dollars  each,  all  of  which  are 
secured  by  a  mortgage,  dated  the  first  day  of  No- 
vember,   ,  on  the  railroad  property  and  fran- 
chises of  the  Railroad  Company,  executed 

aforesaid  and  duly  recorded  in  the  proper  offices 

for  recording  the  same,  in  the  State  of . 

{Signed)  P.  P.,  President 

of  the Trust  Company  of  the  city  of . 

Interest  Coupon. 

.* .    The Railroad  Company  ^vill  pay  the 

bearer  hereof dollars  in  gold  coin  of  the  Uni- 
ted States  of  America,  free  of  all  taxes,  at  the 
#ifice  of  the •  Trust  Company,  or  its  successor 


in  trust,  in  the  city  of ,on  the  first  day  of , 

in  the  year ,  being  six  months'  interest  due  on 

that  day  on  their  bond  No. . 

{Signed)            T.  R.,  Treasurer. 
County  Bond— General  Form. 
$ioo.  State  of ,  County  of .  $ioo. 

It  is  hereby  certified  that  the  county  of is 

indebted  to ,  or assigns,  in  the  sum  of  one 

hundred  dollars,  payable  on  the day  of , 

or  before,  at  the  discretion  of  the  county  com- 
missioners of  said  county,  with  interest,  until 
called  in  for  payment  at  the  office  of  said  county 

commissioners,  from  the  first  day  of ,  payable 

semi-annually,  on  the  first  days  of  April  and  Oc- 
tober, in  each  and  every  year,  at  per  cent. 

per  annum,  on  presentation  of  the  proper  coupon 
hereunto  annexed  to  the  treasurer  of  said  county, 

at  his  office,  in  the  city  (or  town)  of ,  in  the 

county  aforesaid. 

This  loan  is  authorized  by  an  act  of  the  General 
Assembly  {or  Legislature)  of  the  State  of ,  enti- 
tled "An  Act  to  regulate  the  manner  of  increasing 
the  indebtedness  of  municipalities,  to  provide  for 
the  redemption  of  the  same,  and  to  impose  pen- 
alties for  the  illegal  increase  thereof."    Approved 

{or  passed)  the  — :-  day  of ,  and  is  issued  to  pay 

outstanding  indebtedness. 

This  certificate  of  indebtedness  is  transferable 
only  on  the  books  of  the  commissioners,  in  per- 
son or  by  attorney. 

T^itness  the  seal  of  said  county  and  the  signa- 
tures of  the  commissioners,  at ,  this day 

of .  (Signed)        C.  C,  M.  R.,  N.  S., 

(Attest)     C.  C,  Clerk.  Commissioners. 

Interest  Coupon. 

$ .    The  county  of will  pay  to  the  bearer, 

at  the  treasury  of  the  county,  in ,  on  the  first 

day  of , dollars,  for  six  months'  interest 

on  bond  No. . 

(Signed)  ,  Clerk. 

Municipal  Bond General  Form. 

$i,ooo.      Consolidated  Loan, Series.     $i,ooo. 

United  States  of  America,  State  of . 

The  City  of . 

Know  all  men  by  these  presents  : 

That  the  city  of is  indebted  and  is  hereby 

held  and  firmly  bound  unto ,  or  bearer,  in  the 

sum  of  one  thousand  dollars,  lawful  money  of  the 
United  States,   payable   twenty  years  from  the 

date  hereof,  at  the  First  National  Bank  of , in 

the  city  of ,  with  interest  thereon  at  the  rate 

of per  cent,  per  annum,  from  the  first  day  of 

,  payable  semi-annually,  at  said  bank,  on  the 

first  day  of  April  and  October  of  each  year,  on 
presentation  of  the  proper  coupons  hereunto 
annexed. 

By  act  of  Assembly  {or  Legislature),  approved 

(or  passed)  the day  of ,  this  bond  is  made 

a  legal  investment  for  all  moneys  held  by  execu- 
tors, administrators,  guardians,  or  trustees  in 
trust,  and  is  issued  in  pursuance  of  an  act  of  the 
General  Assembly  (or  Legislature)  of  the  State  of 

,  approved  (or  passed)  the  day  of ,  and 

an  ordinance  of  the  councils  of  the  city  of , 

approved  (or  passed)  the  day  of ,  to  pro- 
vide for  funding  the  indebtedness  of  said  city. 

In  witness  whereof,  and  in  pursuance  of  said 
ordinance,  the  president  of  the  commissioners  of 
said  city  has  signed  this  bond  and  caused  the  seal 
of  said  city,  duly  attested  by  the  clerk  of  said 

commissioners,  to  be  hereunto  affixed,  ttiis 

day  of .  (Signed)  P.P.,  President. 

[Seal.}  (Attest)         C.  C,  Clerk. 

Interest  Coupon  or  Warrant. 

No. .    The  city  of will  pay  the  holder 

hereof,  on  the day  of ,  at  the bank,  in 

, dollars,  for  interest  due  on  bond  No. . 

$ .  C.C.,  Clerk. 

Municipal  Bond— General  Form. 

United  States  of  America. 

^ater  Loan,  $100,000. 

$500.  City  of .  No. . 

Kno'w  all  men  by  these  presents: 

That  the  inhabitants  of  the  city  of acknowl' 

edge  themselves  indebted  to  ,  or  bearer,  in 

the  sum  of  five  hundred  dollars,  to  be  paid  at  the 
office  of  the  City  Treasurer,  in  said  city,  on  thr 


146 


BILLS,  BONDS,  AND  NOTES. 


first  day  of  Septeiiiber,  in  the  year ,  with  in- 

Rrest  thereoi.,  to  be  computed  from   the  date 

nereof,  at  the  rate  of per  cent,  per  annum, 

payable  semi-annually,  at  the  office  aforesaid,  on 
the  first  days  of  March  and  September  in  each 
year,  on  the  presentation  and  delivery  of  the 
annual  warrants  as  they  severally  become  due. 

This  bond  is  a  part  of  -'The  Water  Loan," 
created  by  virtue  of  an  ordinance  of  the  common 
council  of  said  city,  entitled  "An  ordinance  to 
authorize  the  issuing  of  bond^.  for  the  purpose  of 
making  the  necessary  repairs  and  improvements 
in  the  mains,  machinery,  and  other  works  of  the 
' \Vater  Works,'  passed . " 

In  witness  whereof,  the  inhabitants  of  the  city 

ef have  caused  this  bond  to  be  sealed  with 

their  common  seal,  and  signed  by  the  mayor  and 
•ttested  by  the  treasurer  this day  of . 

ISfa/.]  (Signed)        lA.^t..,  Mayor. 

{Attest)    T.  R.,  Treasurer. 

Interest  Coupon  or  IVarvant. 

City  of ,  Water  Loan. 

interest  warrant  for dollars,  payable  to 

the  bearer  at  the  treasurer's  office,  the day 

•f ■,  for  six  months'  interest  on  bond  No. . 

{Signed)        T.  R.,   Treasurer. 
State  Bond— Oeneral   Form. 

United  States  of  America,  State  of . 

^100.  No. . 

This  certifies  that  the  State  of is  indebted 

unto  ,  or  bearer,  in  the  sum  of hundred 

dollars,  payable  on  the day  of ,  with 

per  cent,  interest,  payable  semi-annually  on  the 
first  days  of  January  and  July  in  each  year  at  the 

Bank,  in  the  city  of ,  on  the  presentation 

of  the  proprr  coupon  hereunto  annexed. 

This  bond  is  issued  in  pursuance  of  an  act  of 
the  General  Assembly  (or  Legislature)  of  said  State 

of ,  entitled  "An  Act,"  etc.  (reciting-  the  title), 

approved  {or  passed)  the day  of . 

In  testimony  whereof,  the  Governor  of  said 
State  has  executed  these  presents,  duly  attested 
by  the  seal  of  said  State,  and  countersigned  by 

the  secretary  and  auditor  (or  controller),  the  

d^  of . 

Dated  at ,  this day  of . 

(Signed)        G.  R.,  Governor. 
(Countersigned)    S.  Y.,  Secretary, 

A.  R.,  Auditor  {or  Controller). 
Interest  Coupon. 

The  State  of will  pay  to  the  bearer,  at  the 

Bank,  in  the  city  of , dollars,  for  six 

months'  interest  due  the day  of ,  on 

bond.  No. ,  for dollars. 

A.  R.,  Auditor  {or  Controller). 
Township  Bond— Oeneral  Form. 
United  States  of  America. 
No. .  The  Township  of .  $100. 

Know  all  men  by  these  presents: 

That  the  township  of is  indebted  to ,  or 

bearer,  in  the  sum  of dollars,  lawful  money 

of  the  United  States  of  America,  payable  on  the 
first  day  of  November,  in  the  year  of  our  Lord 

,  with  interest  at  the  rate  of per  cent,  per 

annum,  payable  semi-annually  on  the  first  day  of 
May  and  November  in  every  year  hereafter  until 
said  principal  sum  shall  be  due,  on  presentation 
of  the  annexed  interest  warrants  or  coupons 
at  the Bank,  in . 

This  bond  is  one  of  a  series  of  bonds  issued  by 
said  township  in  pursuance  of  authority  vested 
in  it  by  an  act  of  the  General  Assembly  (or  Legis- 
lature) of  the  State  of ,  entitled  "An  Act  to 

authorize   the  township   of  to  (state  what), 

approved  (or  passed)  the day  of ." 

And  the  faith  of  said  township,  and  also  the 

net  income  of  said  ,  and  the  proceeds  of  an 

annual  tax  of  not  less  than  five  mills  on  the  dol- 
lar on  the  taxable  property  of  said  township  arc 

J5-2  Pet.  589;  10  Id.  572;  12  Pick.  483;  15  Wend. 
527;  3  A.  K.  Marsh.  488;  i  Const.  400;  i  Hill  (S.  C.) 
44;  4  Leigh.  37  ;  15  Me.  136:  18  Id.  292;  20  Id.  1^9;  8 
Dana,  133;  9  N.  H.  558;  4  Wash.  C.  C.  148;  but  "see  5 
Johns.  384;  17  Ala.  247:  see  next  note,  a-25  Miss. 
143.  As  to  whether  a  bill  is  considered  as  foreign  or  in- 
land when  made  partly  in  one  place  and  partly  in  an- 


pledged  for  the  payment  of  the  principal  and 
interest  of  said  bond. 

In  witness  whereof,  the  , and  of 

said  township,  have  hereunto  set  their  hands  and 

affixed  the  seal  of  said  township,  at ,  in , 

this day  of . 

\Seal.^  {Signed) . 

Interest  Coupon  or  M'arrnnt. 

No. . 

The  township  of will  pay  the  bearer,  at  the 

Bank, dollars,  for  six  months'  interest 

due  the day  of . 

$ .  (Signed)        T.  R.,  Treasurer. 

A  Bill  of  Exchange  is  a  written  order 
from  A.  to  B.,  directing  B.  to  pay  to  C.  a  sum 
of  money  therein  named. 

A.  is  called  the  drawer,  B.  the  drawee,  and 
C.  the  payee.  Sometimes  A.,  the  drawer,  1. 
himself  the  payee.  And  usually  the  bill  is  made 
payable,  not  to  the  payee  alone,  but  to  his  order 
or  to  the  bearer.  When  B.,  the  drawee,  has 
undertaken  to  pay  the  bill,  he  is  called  the 
acceptor. 

If  the  bill  is  made  payable  to  C,  or  bearer, 
C.  may  transfer  the  bill  to  D.,  by  merely  deliv- 
ering it  into  his  hands;  then  D.  stands  in  the 
same  situation  with  regard  to  B.,  the  acceptor, 
as  C,  the  original  payee,  did. 

If  the  bill  be  payable  to  C,  or  order,  then 
C.  cannot  transfer,  except  by  a  written  order, 
usually  on  the  back  of  the  bill,  called  an  in- 
dorsement, after  which  C.  is  called  the  indorser, 
and  D.,  to  whom  it  may  be  so  transferred,  the 
indorsee. 

A  foreign  bill  of  exchange  is  one  of  which 
the  drawer  and  drawee  are  residents  of  coun- 
tries foreign  to  each  other.  In  this  respect  the 
States  of  the  United  States  are  held  foreign  to 
each  other.* 

An  inland  bill  of  exchange  is  one  of  which 
the  drawer  and  drawee  are  residents  of  the 
same  State  or  county.*  The  distinction  be- 
tween inland  and  foreign  bills  becomes  impor- 
tant with  reference  to  the  question  whether 
protest  and  notice  are  to  be  given  in  case  of 
non-acceptance.'' 

A  holder  of  a  bill  of  exchange  is  the  person 
who  is  legally  in  the  possession  of  it,  either  by 
indorsement  or  delivery,  or  both,  and  entitled 
to  receive  payment  either  from  the  drawer  or 
acceptor,  and  is  considered  as  an  assignee.* 

The  bill  must  be  written."  It  must  be  prop- 
erly dated  both  as  to  place  and  time  of  making.* 
The  subscription  of  the  sum  for  which  the  bill 
is  payable  will  aid  an  omission  in  the  bill,  but 
it  is  not  indispensable.'  The  time  of  payment 
should  be  expressed ;  but  if  no  time  is  men- 
tioned it  is  considered  as  payable  on  demand.. 
The  place  of  payment  may  be  prescribed  by  the 
drawer,^  or  by  the  acceptor  on  his  acceptance,* 
but  is  not,  as  a  general  practice;  in  which  last 
case  the  bill  is  considered  as  payable,  and  to  be 
presented  at  the  usual  place  of  business  of  the 

other,  see  5  Taunt.  529  :  8  Id.  679  ;  Gow.  56 ;  1  M.  & 
S.  87.  bSee  3  Kent  Comm.  95.  C-4  Dall.  53.  c-t 
Parde.ssus,  344  ;  3  Str.  955.  d-Beawes.  Lejf.  Merc.  pi. 
3  ;  2  Pardess.  tt.  333;  i  B.  &  C.  398  ;  see  30  Vt.  11. 
e-2  East.  Pi.  Cr.  951  ;  i  R.  I.  398.  f-7  T.  R.  427."  »  B. 
&  C.  157.  gr-Beawes.  Lex.  Merc.  pi.  3:  8  C.  B.  433. 
b-Chitiy  Bills,  172;  3  Jur.  34;  7  Barb.  652. 


BILLS,  BONDS,  AND  NOTES. 


«47 


drawee,*  at  his  residence,  where  it  was  made,  or 
to  him  personally  anywhere.J  Such  an  order  or 
request  to  pay  must  be  made  as  demanding  a 
right  and  not  as  asking  a  favor  ;*  and  it  must 
be  absolute  and  not  contingent.'  Mere  civility 
in  the  terms  does  not  alter  the  legal  effect  of 
the  instrument. 

It  should  be  addressed  to  the  drawer  by  the 
Christian  name  and  surname,  or  by  the  full  style 
of  the  firm." 

It  should  be  subscribed  by  the  drawer,  though 
it  is  sufficient  if  his  name  appear  in  the  body  of 
the  instrument." 

The  parties  to  a  bill  of  exchange  are  the 
drawer,  the  drawee,  the  acceptor,  and  the 
payee.  Other  parties  connected  with  a  bill 
in  case  of  a  transfer,  as  parties  to  the  trans- 
fer, are,  the  indorser,  indorsee,  and  holder.  It 
sometimes  happens  that  one  or  more  of  the 
apparent  parties  to  a  bill  are  fictitious  persons. 
The  rights  of  a  bona  fide  holder  are  not  thereby 
prejudiced  where  the  payee  and  indorser  are 
fictitious,"  or  even  where  the  drawer  and  payee 
are  both  fictitious  ;P  and  all  the  different  parties 
need  not  be  different  persons.i  The  qualifi- 
cations of  parties  who  are  to  be  made  liable  by 
the  making  or  transfer  of  bills  are  the  same  as 
in  case  of  other  contracts. 

The  sum  for  which  the  bill  is  drawn  should 
be  written  in  full  in  the  body  of  the  instrument, 
as  the  words  in  the  body  govern  in  case  of 
doubt.*"  The  amount  must  be  fixed  and  cer- 
tain, and  not  contingent."  It  must  be  payable 
in  money  and  not  in  merchandise,*  and  it  is  not 
negotiable  if  payable  in  bank  bills  or  in  cur- 
rency, or  other  substitutes  for  legal  money  of 
similar  denominations." 

Words  requiring  payment.  The  word  pay  is 
not  necessary ;  deliver  is  equally  operative,'^  as 
well  as  other  words,"  but  they  must  be  words 
requiring  payment. '^  A  bill  should  designate 
the  payee  ;y  but  where  no  payee  is  designated, 
the  holder  by  indorsement  may  fill  the  blank 
with  his  own  name,''  and  if  payable  to  bearer  it 
is  sufficient.*  To  make  it  negotiable  it  must  be 
payable  to  the  order  of  the  payee,  or  to  the 
bearer,  or  must  contain  other  equivalent  and 
operative  words  of  transfer. *>  But  negotiability 
is  not  necessary  to  the  validity  of  a  bill  in 
England  and  the  United  Slates." 

Value  received  is  often  inserted,  but  is  not 
of  any  use  in  a  negotiable  bill.* 

Various  provisions  may  be  made  by  the 
drawer  and  inserted  as  a  part  of  the  bill,  as  for 

i-ii  Penn.  St.  456.  j-io  B.  &  C.  4  ;  M.  &  W.  381  ; 
4C.  &P.  35.  U-M.  &M.171.  1-8  Mod.  363  ;  4  Ves. 
Ch.372:  I  Russ.  &  R.Cr.  Cas.  193;  2B.  &Ald.  417: 
5  T.  R.  482;  4  Wend.  275  ;  11  Mass.  14;  13  Ala.  205  ;  3 
HhIsI.  262  ;  6  J.  J.  Marsh.  170  :  1  Ohio,  272  ;  9  Miss. 
303;  5  Ark.  401  ;  i  La.  An.  48;  10  Texas,  155.  nni-2 
I'cirdessiis  «.  335 :  Beawes  I.ex.  Merc.  pi.  3 ;  Chitty 
Hills,  j86.  n-2  I.d.  Raym.  1376;  r  Str.  609;  i  Iowa, 
2^1  ;  27  Ala.  N.  S.  515  :  see  12  Barb.  57.  0-2  H.  Bl. 
78:  3  T.  R.  174,  481;  I  Campb.  130;  19  Ves.  Ch.  311. 
|>-io  B.  &  Aid.  468.  q-r8  Ala.  76 :  i  Story  C.  C.  72. 
r-5  Bingh.  (N.  C.I425;  8  Blnckf.  144;  i  R.  I.  398.  «- 
a  Salk.  375  ;  2  Miles,  442.  t-7  Johns.  321,  461  :  4  Cow. 
4=3  ;  11  Me.  398  :  6  N.  H,  159  :  7  C'"in.  tto;  i  Nott.  & 
NI'C.  254:  3  Ark.  73  :  8  B.  Moii.  16S :  see  7  Miss.  52. 
U-2  McLean,  C.  C.  10;  3  Id.  106 ;  3  Wend.  71  ;  7  Hill, 
359  ;  "  Vt.  268 ;  3  Humph.  171 ;  6  Id.  303  ;  7  Mo.  595; 


applying  to  another  person ;  for  a  return  with- 
out protest;  for  limiting  the  damages  for  re- 
exchange,  expense,  etc.,  in  case  of  the  failure 
or  refusal  of  the  drawee  to  accept  or  to  pay.* 

As  per  advice,  Inserted  in  a  bill,  deprives  the 
drawee  of  authority  to  pay  the  bill  until  advised. 

A  direction  to  place  to  the  account  of  some 
one,  drawer,  drawee,  or  third  person,  is  often 
added,  but  is  unnecessary.' 

Bill  of  Exchangee— General  Form. 

$ .  Place ,  Date . 

days  {or  months)  after  sight  (or  date)  pay  to 

C,  or  order,  dollars,  value  received  yan  am- 

count  of ,  or,  and  charge  to  the  account  of). 

To  B.  (at) .  A. 

AnotAer. 

9 .  Place ,  Date . 

Sixty  days  after  date  (or  sight)  pay  to  P.  E.,  or 
order,  Five  Hundred  Dollars.  D.  R. 

To  D.  E.  (at) . 

Bill  of  Excban§re— At  or  After  Sifrht. 

No. .  Place ,  Date . 

At  sight  (ot days  after  sight)  pay  to  the  order 

of  P.  E., dollars,  and  charge  the  same  to  the 

account  of  D.  R. 

To  D.  E.,at . 

Bill  of  Exchangre— After  Date,  etc. 

$ .  Place ,  Date . 

days  after  date  (or  on  the  day  of ), 

pay  to  the  order  of  P.  E., dollars. 

Value  received.  D.  R. 

To  D.  E.,  at . 

Bill  of  Exchange — As  per  I^etter  of 

Advice. 
As  per  letter  of  advice,  pay  to  P.  E.,  or  order, 

dollars,  and  charge  to  the  account  of 

ToD.  E.,at .  D.  R. 

Bills  of  Excbaiig'e— Set  of  Foreign. 

Place  ,  Date . 

Exchange  for  £ Sterling. 

after of  this  FIRST  of  exchange  (second 

and  third  unpaid)  pay  to  the  order  of  P.  E. 

Value  received  and  charge  the  same  to  account 
of  D.  R. 

To  D.  E.,at . 

No. . 

2. 

Place ,  Date . 

Exchange  for  £ Sterling. 

after of  this  SECOND  of  exchange  (fit*t 

and  third  unpaid)  pay  to  the  order  of . 

Value  received  and  charge  the  same  to  account 
of  D  R. 

To  D.  E.,at . 

No. . 

3. 

Place ,  Date  ■ . 

Exchange  for  £ Sterling. 

after of  this  THIRD  of  exchange(first 

and  second  unpaid)  pay  to  the  order  of . 

Value  received  and  charge  the  same  to  account 
of  D.  R. 

To  D.  E.,at . 

No. . 

5  Ark.  481 ;  13  Id.  12  :  Contra  15  Ohio,  118  ;  16  Id.  5  ; 
17  Miss.  457  ;  9  Mo.  697  :  6  Ark.  255  ;  i  Texas,  13,  246, 
503;  4  Ala.  (N.  S.)  88.  v-2  Ld.  Raym.  1397;  8  Mod. 
364.  ir-9  C.  B.  570.  x-io  Ad.  &  E.  98, 'Wz'i^aj  plaira 
de  payer"  is,  in  France,  the  proper  language  of  a  bilL 
PaiUiet.  Man.  841.  y-26  Eng.  L.  &  Eq.  404  ;  36  Id. 
165;  1 1  Barb.  241:  13  Ga.  55  :  30  Miss.  122;  16  111.  169, 
and  see  I  E.  D.  Smith,  I  ;  8  Ind.  18.  «-2M.  &S.  90; 
4  Campb.  97 ;  see  6  Ala.  (A.  S.)  86.  a-3  Burr.  »526. 
b-i  Salk.  132  ;  Ld.  Raym.  1545 ;  6  T.  R.  123 ;  9  B.  & 
C.  409 ;  I  Deac.  &  C.  275  ;  i  Dall.  194 ;  3  Caines,  137: 
2  0111,348;  I  Harring,  (Del.)  32;  3  Humph.  612;  i 
Ga.  2;;6  :  i  Ohio.  272.  c-3  Kent  Comm.  78  ;  6  T.  R. 
123  ;  (5  Taunt.  328  ;  9  Johns.  217  ;  10  Gill.  &  J.  299  ;  31 
Pe»n.  St.  506.  fi-2  McLean  C.  C.  213  ;  3  Met.  ^Mass./ 
363:  :5  Me.  131  ;  3Rich.4i3;  5  Wheat.  277  ;  4ria.47: 
31  Penn.  St.  506.  e-Chitty  Bills,  188.  f-C'om  Dig. 
M^ch.  F.  s ;  I  B.  &  C.  398.. 


148 


BILLS,  BONDS,  AND  NOTES. 


Checks. 

A  certified  check  is  a  check  which  has  been 
recognized  by  the  proper  officer  as  a  valid  ap- 
propriation of  the  amount  of  money  therein 
specified  to  the  person  therein  named,  and 
which  bears  upon  itself  the  evidence  of  such 
recognition.  Certification  of  a  check  is  usually 
accomplished  by  writing  the  name  of  the  officer 
authorized  to  bind  the  bank  in  that  manner 
across  the  face  of  the  check.s  There  is  a  prac- 
tice of  marking  checks  "good"  by  the  banker, 
which  fixes  his  responsibility  to  pay  that  par- 
ticular check  when  presented,  and  amounts,  in 
fact,  to  an  acceptance.  Such  a  marking  is 
called  certifying;  and  checks  so  marked  are 
called  certified  checks. 

A  Check  is  a  written  order  or  request,  ad- 
dressed to  a  bank,  or  persons  carrying  on  the 
business  of  banking,  by  a  party  having  money 
in  their  hands,  desiring  them  to  pay,  on  pre- 
sentment to  the  person  therein  named,  or  bearer, 
or  to  such  person,  or  order,  a  specified  sum  of 
money.  The  chief  differences  between  checks 
and  bills  of  exchange  are :  ist.  A  check  is  not 
due  until  presented,  and,  consequently,  it  can 
be  negotiated  at  any  time  before  presentment, 
and  yet  not  subject  the  holder  to  any  of  the 
equities  existing  between  the  previous  parties.'' 
2d.  The  drawer  of  a  check  is  not  discharged 
for  want  of  immediate  presentment  with  due 
diligence,  while  the  drawer  of  a  bill  of  ex- 
change is.  The  drawer  of  a  check  is  only  dis- 
charged by  such  neglect  when  he  sustains  actual 
damage  by  it,  and  then  only  pro  tanto}  3d. 
The  death  of  the  drawer  of  a  check  rescinds 
the  authority  of  the  banker  to  pay  it ;  while  the 
death  of  the  drawer  of  a  bill  of  exchange  does 
not  alter  the  relations  of  the  parties.J  4th. 
Checks,  unlike  bills  of  exchange,  are  always 
payable  without  grace.*  A  bank  check  is  sub- 
stantially the  same  as  an  inland  bill  of  ex- 
change ;  it  passes  by  delivery  when  payable  to 
bearer,  and  the  rules,  as  to  presentment,  dili- 
gence, of  the  holder,  etc.,  which  are  applicable 
to  one,  are  generally  applicable  to  the  other.' 

Checks  are  in  use  only  between  banks  and 
bankers  and  their  customers,  and  are  designed 
to  facilitate  banking  operations.  It  is  of  their 
very  essence  to  be  payable  on  demand,  because 
the  contract  between  the  banker  and  customer 
is  that  the  money  is  payable  on  demand."  A 
check  on  a  banker  is,  in  legal  effect,  an  inland 
bill  of  exchange,  drawn  on  a  banker,  payable 
to  bearer,  on  demand,  and  subject,  in  general, 
to  the  rules  which  regulate  the  rights  and  lia- 
bilities of  parties  to  bills  of  exchange."  It  is 
generally  made  payable  to  bearer,  but  its  char- 

g-Sewall,  Bank.  Sec  Checks.  I1-3  Johns.  Cas.  s, 
9 :  9  B.  &  C.  388  :  Chitty  Bills  (?,  Ed.)  546.  i-6  Cow. 
484  ;  Kent  Comm.  Lect.  44,  5th  Ed.  p.  104,  «  .•  3  Johns. 
Cas.  5,  259  ;  10  Wend.  306:  2  Hill,  425.  j-3  Man.  &  G. 
57'.  573-  fc-25  Wend.  672  ;  6  Hill,  174.  '  I-4  Har.  &  J. 
*76;  3  Johns.  Cas.  5;  Id.  259  ;  6  Wend.  445  ;  20  Id. 
192:  6  Cowen,  484  ;  iBIackf  104:  4  Seld.  190.  m- 
9t  Wend.  372  ;  7  T.  R.  419,  426 ;  6  Wend.  443  ;  6  Cow. 
484  ;  a  Selden,  412.  n-io  Wend.  304.  0-6  Wend.  445. 
The  party  receiving  a  check  has  till  the  following  day 
to  present  it,  where  there  are  ordinary  means  of  doing 
$0,4  Bingh.  (N.  C)  268;  Eng.  C.  L.  R.  Vol.  33;  s 
Scott,  694,  S.  C.    And  the  holder  has  tke  whole  of 


acter  is  not  changed  by  the  fact  that  it  is  made 
payable  to  the  order  of  the  person  to  whom  it 
is  given."  Being  indorsed,  the  holder,  if  he 
would  preserve  his  right  to  resort  to  the  drawers 
and  indor&ers,  must  use  the  same  diligence  in 
presenting  it  for  payment  and  in  giving  notice 
of  the  drawer's  default,  as  that  would  be  re- 
quired of  him  as  the  holder  of  an  inland  bill.' 
A  check  ought  to  be  drawn  within  the  State 
where  the  bank  is  situated,  because  if  not  so 
drawn  they  become  foreign  bills  of  exchange, 
subject  to  the  law  merchant.  This  law  re- 
quires that  they  be  protested,  and  that  due 
diligence  be  used  in  presenting  them,  in  order 
to  hold  the  drawer  and  indorsers.  It  is  not 
necessary  to  use  diligence  in  presenting  an 
ordinary  check  in  order  to  charge  the  drawer, 
unless  he  has  received  damage  by  the  delay.< 
It  must  be  presented  for  payment  within  a 
reasonable  lime;  and  it  is  asserted  that  the 
holder  is  required  to  use  even  greater  diligence 
in  presenting  it  for  payment  than  is  necessary 
in  presenting  common  inland  bills  of  exchange.' 
The  maker's  or  drawer's  undertaking  is  not 
that  he  will  pay  the  amount,  but  that  the  bank 
will  pay  it  on  presentment.  The  drawer  of  a 
check  is  not  discharged  by  the  holder's  failure 
to  present  it  in  due  time,  unless  he  have  sus- 
tained actual  prejudice,  as  by  the  failure  of  the 
banker.' 

In  common  with  other  kinds  of  negotiable 
paper,  they  must  contain  an  order  to  pay 
money,  and  words  of  negotiability.  This 
enables  a  bona  fide  holder,  for  value,  to  collect 
the  money  without  regard  to  the  previous  his- 
tory of  the  paper.'  They  must  be  properly 
signed  by  the  person  or  firm  keeping  the  ac- 
count at  the  banker's ;  and  it  is  part  of  the  im- 
plied contract  of  the  banker  that  only  checks 
so  signed  shall  be  paid. 

checks  being  payable  on  demand  are  not  to 
be  accepted,  but  presented  at  once  for  pay- 
ment. 

Giving  a  check  is  no  payment  unless  the 
check  is  paid."  But  a  tender  was  held  good 
when  made  by  a  check  contained  in  a  letter, 
requesting  a  receipt  in  return,  which  the  plain- 
tiff sent  back,  demanding  a  larger  sum  without 
objecting  to  the  nature  of  the  tender.^ 

A  check  cannot  be  the  subject  of  a  gift  in  pros- 
pect of  death,  unless  it  is  presented  and  paid 
during  the  life  of  the  donor ;  because  his  death 
revokes  the  banker's  authority  to  pay."  Though 
in  such  a  case  a  check  has  been  considered  as 
of  a  testamentary  character.* 

Checks  written  across  with  the  word  "  mem- 
orandum "  or  "  mem."  are  given  thus,  not  as 

banking  hours  of  the  next  day  within  which  to  present 
it,  Chitty,  385  ;  2  Taunt.  388  ;  2  Camp.  537.  p-21  Wend. 
372;  2o  Id.  205;  10  Id.  306;  12  Story  C.  C.  502,  51a. 
q-2  Pet.  586 ;  2  N.  Y.  425  ;  s  Johns.  Cas.  a ;  i  Ga.  304 ; 
2  Mood.  &  Rob.  401 ;  3  Scott  (N.  R.)  555  ;  3  Kent 
Comm.  Csth  Ed.)  104,  ».  Story  Prom.  Notes,  §  492.  r- 
13  Wend.  549  ;  10  Id.  304;  4  Due.',  122.  s-2  Wood  ft 
Rob.  401 ;  3  Scott  (N.  R.)  555 ;  7  M.  &  G.  10,  67 :  Eng. 
C.  L.  R.  vol.  49:  9  Q-  B.  52;  Eng  C.  L.  R.  vol.  58 
t-i6  Pet.  I  ;  5  Johns.  Ch.  54;  20  JohtM.  437;  3  Ken 
Comm.  81.  u-i  Hall,  56,  78;  4  Johns.  296;  7  S.  &  R. 
116;  2  Pick.  204.  v-3  Bouv.  Inst.  «,  2436.  w-4  l^rown 
Ch.  386.    X-3  Curt.  Eccl.  esQ. 


BILLS,  BONDS,  AND  NOTES. 


149 


an  ordinary  check,  but  as  a  memorandum  of 
indebtedness ;  and  between  parties  this  seems 
to  be  their  only  effect.  But  m  the  hands  of  a 
third  party,  for  value,  they  have  all  the  force 
of  checks  without  such  word  of  restriction.? 

CHECK  FOR9IS. 

9 .  Place ,  Date . 

A.  B.  pay  to  P.  E.,  or  bearer  {or  order),  

dollars.                                                                D.  R. 
$  Place ,  Date . 

First  National  Bank,  pay  to  the  order  of  P.  E. 
dollars.  D.  R. 

A  CERTIFICATE  OF  DEPOSIT  is  on  the  Same 
fooling  as  a  promissory  note.'  It  changes  the 
character  of  a  custodian  of  the  funds  to  that 
of  a  debtor.' 

CERTIFICATE  OF  DEPOSIT  FORMS. 

B.  R.  S.  &  Co.,  Bankers. 

S .  Place ,  Date . 

D.  R.  has  deposited  with  us dollars,  pay- 
able to  P.  E.  (fit-  himself)  or  order  (on  return  of  this 
certificate).                                           B.  R.  S.  &  Co. 

A  Promissory  note  is  a  written  promise  to 
pdy  a  certain  sum  of  money  at  a  future  time 
unconditionally.'' 

A  holder  of  a  promissory  note  is  one  to  whom 
a  promissory  note  is  indorsed  for  collection  as 
an  agent,  for  the  purpose  of  transmitting  no- 
tices.o 

A  promissory  note  differs  from  a  mere 
acknowledgment  of  debt  without  any  promise 
to  pay,  as  when  the  debtor  gives  his  creditor 
an  I.  O.  U.*  In  its  form  it  usually  contains  a 
promise  to  pay,  at  a  time  therein  expressed,  a 
•ium  of  money  to  a  person  therein  named,  or  to 
his  order,  for  value  received.  It  is  dated  and 
signed  by  the  maker.     It  is  never  under  seal. 

A  note  by  two  or  more  makers  may  be  either 
joint  or  joint  and  several.  A  note  signed  by 
more  than  one  person,  and  beginning,  "  We 
promise,"  etc.,  is  a  joint  note  only.  A  joint 
and  several  note  usually  expresses  that  the 
makers  jointly  and  severally  promise.  But  a 
note  signed  by  more  than  one  person,  and  begin- 
ning, "  I  promise,"  etc.,  is  several  as  well  as 
joint.®  So,  a  note  beginning,  "  I  promise," 
and  signed  by  one  partner  for  his  copartners, 
is  a  joint  note  of  all.'  A  note  in  the  form  "  I 
promise,"  etc.,  subscribed  by  two  persons,  is  a 
joint  and  several  note.s  Persons  who  sign 
their  names  to  a  note  will  be  presumed  to  be 
joint  makers  in  the  absence  of  anything  to  the 
contrary  on  the  face  of  the  note."^  But  one  of 
the  signers  of  a  note,  joint  in  form,  is  not  es- 
topped by  its  terms  from  showing  that  he  is 
surety;  such  showing  does  not  contravene  the 
stipulations  of  the  note.' 

No  precise  words  of  contract  are  essential  in 
a  promissory  note,  provided  they  amount  in  a 

y-Story  Prom.  Notes,  \  499.  z-4  Cal.  37  ;  29  Id.  503. 
R-7  Id.  543.  l>-7  W.  &  S.  264;  2  Humph.  143:  10 
Wend.  675  ;  i  Ala.  263 ;  7  Mo.  42  ;  2  Cow.  536 ;  6  N.  H. 
364;  7Vern.  22.  C-20  Johns.  372  ;  2  Hall,  112:  6  How. 
248.  d-See  2  Yerg.  50;  15  M.  &  W.  23  ;  but  .•iee  2 
Humph.  143;  6  Ala.  (N.  S.)  373.  e-Peake,  130;  Holt 
N.  P.  C.  474  ;  so  a  bond  in  the  singular  number,  exe- 
cuted by  several,  is  several  as  well  as  joint ;  i  Lutw.  695  ; 
I  Camp.  403;  10  East.  264  S.  C.  f-n  Johns.  543.  }f-7 
Mass.  58;  2  Bailey,  88;  19  Barb.  S.  C.  248:  6  Foster, 
76.  h-ao  Ala.  370;  I  Carter  (Ind.)  391.  i-5  Kas.  483. 
I -And  where  for  an  executed  consideration,  d,  not«  wsM 


legal  effect  to  a  promise  to  pay.J  A  promise 
to  deliver  the  money,  or  to  be  accountable  for 
it,  or  that  the  payee  shall  have  it,  is  sufficient,'' 

Although  a  promissory  note,  in  its  original 
shape,  bears  no  resemblance  to  a  bill  of  ex- 
change, yet  when  indorsed  it  is  exactly  similar 
to  one ;  for  then  it  is  an  order  by  the  indorser 
of  the  note  upon  the  maker  to  pay  the  indorsee. 
The  indorser  is,  as  it  were,  the  drawer;  the 
maker,  the  acceptor;  and  the  indorsee,  the 
payee.'  Most  of  the  rules  applicable  to  bills' 
of  exchange  equally  affect  pro.missory  notes.    ' 

There  are  two  principal  qualities  essential  to 
the  validity  of  a  note :  i.  That  it  be  payable  at 
all  events,  and  not  dependent  on  anv  contin- 
gency.™ 2.  It  is  required  that  it  be  for  the 
payment  of  money  only,"  not  in  bank  notes.* 

A  promissory  note  payable  to  order,  or 
bearer,  passes  by  indorsement,  and  the  holder 
may  brmg  suit  on  it  in  his  own  name.  And 
though  a  simple  contract  a  sufficient  considera- 
tion is  implied  from  its  nature." 

married  Woman's  Bfote  in   X.  Y. 

$ .  Place ,  Date—. 

For  value  received,  I  promise  to  pay  A.  B.,  or 
order, dollars,  one  year  from  date  with  in- 
terest. And  I  hereby  charge  my  individual 
property  and  estate  with  the  payment  of  this 
note.  M.  W. 

Indiana  Form. 

$ .  Place ,  Date . 

Days    after    date,   for    value    received,   I 

promise  to  pay  to  P  E  ,  or  bearer  {or  order),  ^— 
dollars  without  defalcation  for  value  received. 

M.  R. 

Pennsylvania  Form. 

$ .  Place ,  Date . 

days  after  date  I  promise  to  pay  P.  E.  {or 

order), dollars,  without  defalcation.     Value 

received.  M.  R. 

Missonri    Form. 

Same  as  above,  except  it  concludes  —  for  value 
received  ;  negotiable  and  payable,  without  de« 
falcation  or  discount. 

General    Form. 

$ .  Place  Date, . 

Ninety  days  after  date  I  promise  to  pay  P.  E., 

or  bearer  (or  order),  five  hundred  dollars,  at , 

with  interest  thereon,  at  the  rate  of per  cent. 

per  annum,  from  date  {er  maturity)  until  paid. 
Value  received.  M.  R. 

Promissory  Note— For  Cbaitels  Siiold, 
etc. 

$ .  Place  ,  Date . 

On  the day  of ,  I,  M.  R.,  of ,  in 

county,  State  of ,  promise  to  pay  P.  E.  {or 

order),  at  the Bank,  in , dollars,  with 

interest  at  the  rate  of per  cent,  per  annum, 

from  date  {or  maturity),  until  paid,  and  costs  and 
expenses  of  collection,  if  not  paid  \vhen  due;  in 
(part  »>■  full)  payment  for  (state  what),  the  title  of 
which  shall  remain  in  said  P.  E.  until  this  note  is 
fully  paid.  M.  R. 

Promissory  Note— On  I>emand. 

$ — — .  Place ,  Date . 

On  demand  I  promise  to  pay  P.  E.,  or  order  {or 

bearer), dollars,  for  value  received.      M.  R. 

given,  expressed  to  be  "for  £20,  borrowed  and  received," 
but  at  the  end  were  the  words,  "  which  I  promise  never 
to  pay,"  the  word  iie7ier  was  rejected,  2  Atk.  32 ;  4 
Camp.  115 ;  Bayley.  5  Ed.  5  ;  6  B.  &  C.  433  ;  13  Eng. 
C.  L.  227.  k-Chitty  Bills,  53,  54.  I-4  Burr.  669;  4 
T.  R.  148;  3  Burr.  1224.  m-2o  Pick.  132:  22  Id.  132. 
n-3  J.  J.  Marsh.  170,  542 ;  5  Ark.  441 ;  2  Blackf.  48 :  i 
Bibb.  503;  9  Miss.  393;  3  Pick.  541;  4  Hawks.  102;  5 
How.  382.  o-io  S.  &  R.  94;  4  Watts,  400;  II  Vt.268; 
Contra  9  Johns.  120 ;  19  Id.  144.  p-See  5  Com.  Dig. 
133.  «.  '5'.  472  ■■  Smith  Merc.  L.  ^  3  e.  I.;  4  B.  &  C 
335 ;  I  Carr.  &  M.  i6. 


ISO 


BILLS,  BONDS,  AND  NOTES. 


Promissory  Note — Guaranty. 

To  be  Indorsed  art  Note. 

For  value  received  I  guarantee  the  payment  {or 
collection,  or  collectibility;  of  the  within  note. 

Dated .  G.  R. 

Promissory  Note— Joint. 

$ .  Place ,  Date . 

days   after  date  "We  promise,"  etc.  {as 

it/>07ie). 
Promissory  Note— Joint  and  Several. 

$ .  Place ,  Date . 

days  after  date  "  \Ve,  or  either  of  us  "  (or 

we,  jointly  and  severally),  etc.  (as  al)07>e). 
/Promissory    Note— Payable  at  a  Par- 
ticular Place. 

fi .  Place ,  Date . 

days  after  date  I  (or  we,  or  either  of  us,  or  we, 

jointly  .-ind  severally  >,  promise  to  pay  to  the  order 

of  P.  E.,  at  the Bank,  in  (or  other  place, 

designating  it),  dollars,  with    interest,  etc. 

Value  received.  M.  R. 

Promissory  Note— Judgment  Note. 

A  judgment  note  is  a  promissory  note  given  in  the 
usual  form,  and  containing,  in  addition,  a  power  of  at- 
torney to  appear  and  confess  judgment  for  the  sum 
therein  named.  It  usually  contains  a  great  number  of 
stipulations  as  to  the  time  of  confessing. the  judgment," 
against  appeal  and  other  remedies  for  setting  the  judg- 
ment aside,"  and  other  conditions. P 

Cotnmon  Form — With   Waiver. 

$ .  Place ,  Date . 

after  date    promise  to  pay  ,  or 

bearer, dollars,  with  interest  at  the  rate  of 

per  cent,   per  annum,  from  maturity  until 

paid,  and  without  defalcation.  And do  here- 
by confess  judgment  for  the  above  sum,  with  in- 
terest and  costs  of  suit,  a  release  of  all  errors  and 
waiver  of  all  rights  to  inquisition  and  appeal,  and 
to  the  benefit  of  all  laws  exempting  real  or  per- 
sonal property  from  levy  and  sale. 

(Signed)     A.  B.     [&«/.] 

Promissory  Note— Jndgrment  Note. 

With  Waiver  and  Po^ver  of  Attorney. 

See  Agency,  Attorneys,  above. 

$ .  Place ,  Date . 

after  date  I  (or  we),   the  undersigned  (of 

■ ),  promise  to  pay dollars  to  the Bank 

of ,  or  order  at  their  office  in  ,  for  value 

received,  with  interest  at  the  rate  of percent. 

per  annum,  from  maturity  until  paid. 

(Signed)        A.  B. 

Know  all  men  by  these  presents  : 

That  I,  the  undersigned,  am  justly  indebted  to 

the Bank  of ,  upon  a  certain  promissory 

note  of  even  date  herewith,  for dollars,  value 

received,  with  interest  at  the  rate  of per  cent. 

per  annum,  from  maturity  until  paid,  and  ma- 
turing   . 

Now,  therefore,  in  consideration  of  the  premi- 
ses I   do   hereby  make,  constitute  and  appoint 

,  or  any  attorney  of  any  court  of  record,  to  be 

my  true  and  lawful  attorney,  irrevocably  for  and 
in  my  name,  place,  and  stead,  to  appear  in  any 
court  of  record,  in  term  time  or  in  vacation,  in 
any  State  or  Territory  of  the  United  States,  at 
any  time  after  the  said  note  becomes  due,  to 
waive  the  service  of  process,  and  confess  judg- 
ment in  favor  of  the  said  bank,  or  their  assigns, 
upon  said  note, for  the  amount  thereof  and  inter- 
est thereon,  together  with  costs  and dollars, 

attorneys'  fees  ;  and  also  to  file  a  cognovit  for  the 
amount  thereof,  with  an  agreement  therein,  that 
no  proceeding  in  error  or  appeal  shall  be  prose- 
cuted, or  bill  of  equity  filed  to  interfere  in  any 

n-ii  111.  62-?.  o-See  9  Johns.  80 :  20  Id.  296  :  2  Cow. 
465 ;  3  Penn.  St.  501 ;  15  111.  356.  p-See  General  Stat- 
ITTES.  q-Byles,  92  ;  8  Cowen,  88  ;  31  Penn.  St.  506.  A 
promissory  note  imports  a  consideration,  and  none  need 
be  proved  unless  it  be  impeached.  6  Vt.  165  ;  17  Johns. 
301;  7  Id.  321;  2  Bailey,  451  ;  6N.  H.  511:  9  Johns. 
217;  9  Conn.  545  :  Minor,  362;  5  Wheat.  277;  5  Por- 
ter, 154;  5  Ala.  383.  r-7  Cowen,  322  ;  7  Johns.  26;  14 
Pick.  198  :  7  Watts.  130  :  3  Watts  &  Sere  266.  s-5 
Barn.  &  Cress.  203 ;  3  Johns.  Cas.  5.  259 ;  4  Hill,  442.  t- 
I  Johns.  Cas.  51  ;  3  Id.  29  ;  8  Johns.  454  ;  5  Wend.  600. 
n-3  Cowen,  252.  The  indorsee  who  takes  the  note  after 
it  is  due  takes  it  subject  to  all  the  eqiuties  between  the 


manner  ^vith  the  operation  of  said  judgment,  ano 
also  to  release  all  errors  that  may  intervene  ii; 
the  entering  up  of  said  judgment  or  issuing  exe- 
cution thereon  :  to  waive  all  benefits  which  i 
may  be  entitled  to  by  virtue  of  any  homestead, 
exemption,  appraisement,  or  valuation  law,  now, 
or  hereafter  in  force,  wherever  such  judgment 
may  be  entered  or  enforced,  hereby  ratifying  and 
confirming  all  that  my  said  attorney  shall  or  may 
do,  by  virtue  hereof. 

Witness  my  hand  this day  of ,  A.  D. . 

(Witness)        (Signed)        A.  B.     \Seal.\ 

CONSIDERATION.  Negotiable  note;^ 
and  bills  of  exchange  are  presumed  to  have 
been  made  for  a  valid  and  adequate  considera- 
tion, and  whether  they  purport  to  have  been 
given  for  value  received  or  not,  it  is  unne- 
cessary for  the  plaintiff  in  the  first  instar-.e 
to  allege  or  prove  a  consideration. 1  In  this  re- 
spect they  differ  from  other  parol  contracts. 

Between  the  original  parties  the  considera- 
tion may  be  inquired  into,'  but  the  burden  of 
proof  lies  on  the  defendant  to  rebut  the  pre- 
sumption raised  by  implication  of  law."  The 
consideration  may  also  be  inquired  into  when 
the  plaintiff  takes  the  note  after  it  becomes 
due,'  or  has  been  dishonored ;'  for  in  such  cases 
the  purchaser  takes  it  subject  to  every  defence 
which  existed  against  it  before  it  was  nego- 
tiated ;"  but  it  lies  with  the  defendant  to  show 
that  the  plaintiff  received  it  after  it  was  due.' 
The  consideration  may  also  be  inquired  into 
where  the  plaintiff  purchased  the  note  or  bill, 
knowing  it  to  be  void  in  the  hands  of  the  party 
from  whom  he  received  it,  either  on  account 
of  fraud,*  failure,"  want,?  or  illegality  of  con- 
sideration.* When  a  purchaser  takes  a  bill  or 
note  with  notice  of  the  facts  impeaching  its 
validity,  or  with  sufficient  information  on  the 
subject  to  put  him  upon  his  inquiry,  he  cannot 
recover  upon  it  as  a  bona  fide  holder.'  But 
though  he  has  such  notice,  yet  if  he  derives  his 
title  from  a  bona  fide  holder  for  value,  he  may 
recover  thereon. •• 

The  law  presumes  in  favor  of  negotiable 
paper  a  good  consideration,  until  the  contrary 
appears ;°  it  presumes  that  the  holder  is  the 
owner  until  circumstances  of  suspicion  are 
shown ;''  it  presumes  in  relation  to  indorsed 
paper  that  the  indorsement  was  made  before  it 
became  due ;®  that  the  party  in  possession  took 
the  same  in  the  usual  course  of  business  for 
value ;'  that  the  maker  of  a  note  is  the  primary 
debtor  ;8  and  that  the  acceptor  of  a  bill  of  ex- 
change is  primarily  liable  thereon. *» 

Parol  or  verbal  evidence  is  not  admissible  to 
contradict  or  vary  an  absolute  engagement  to 
pay  money  on  the  face  of  a  bill  or  note,  but  it 
is  admissible  to  establish  a  defence  on  the 
ground  of  want,  failure,  or  illegality  of  consid- 

original  parties  to  the  note,  including  want  or  failure  of 
consideration.  i5PicK.92;  6  Id.  259 ;  14^.293;  4 
Mass.  370  :  s  Id.  543  ;  7  Watts,  130.  v-8  Wend.  600. 
w-2  Adol.  &  Ellis  (N.  S.)  196,  211 ;  19  Me.  102  ;  14  Id. 
449.  X-I2  Pick.  545  ;  5  Wend.  20  ;  8  Conn.  336.  y- 
15  Johns.  270.  z-9  Shepley,  488.  a-i  Denio,  583.  D- 
19  Me.  102  ;  14  Id.  449;  2  Adol.  &  Ellis  (N.  S.)  196,  211. 
C-9  Johns.  217:  12  Wend.  484;  13  Id.  557  ;  8  Cowen, 
77;  16  N.  Y.  129.  d-3  Johns.  Cas.  5.259  ;  18  Barb.  344  : 
2  Camp.  5  ;  4  Sand.  97.  e-8  Wend.  600 :  7  Paijje  Ch 
615.      f-6  Hill,  336;    Chitty  Bills,  69 ,    Story  NotCN.  ?* 

B81.     jf-i  Denio,  u6.      I1-4  Dana,  353 ;  2  Burr,  674 - 
ougl.  394;  8  Esp.  47. 


BILLS,  BONDS,  AND  NOTES. 


'5' 


eration,'  or  fraud.J  A  verbal  agreement  made 
at  the  same  time,  and  inconsistent  with  the 
note,  cannot  be  proved  to  vary  its  terms,*  either 
in  respect  to  time  of  payment,'  period  of  col- 
lection," or  the  condition  on  which  it  is  to  be 
enforced." 

Failure  of.  An  entire  failure  of  consid- 
eration has  the  same  effect  as  the  original  and 
total  absence."  The  failure  of  consideration, 
either  in  whole  or  in  part,  may  be  set  up  as  a 
defence  betvvteu  the  original  parties,  or  any 
other  than  a  bona  fide  holder  without  notice.P 
But  in  order  to  constitute  a  perfect  defence  or 
bar  to  a  recovery  in  such  an  action,  a  total 
failure  of  the  consideration  must  be  shown.i 
Where  a  note  is  given  on  a  sale  of  goods  for 
the  purchase  money,  the  rule  is,  that  if  the 
chattel  be  of  no  value  to  any  one,  it  cannot  be 
the  basis  of  a  bargain.  If  it  be  beneficial  to 
the  purchaser,  he  certainly  ought  to  pay  for  it ; 
if  it  be  a  loss  to  the  seller,  he  is  certainly  enti- 
tled to  remuneration  for  his  loss.""  Though  the 
thing  sold  possess  only  a  speculating  value,  still 
if  there  be  no  deception  practised,  and  the  pur- 
chaser does  not  exact  a  warranty,  but  gives  his 
note  for  the  price,  there  is  not  what  the  law  re- 
gards as  a  failure  of  consideration.'  There  is 
a  plain  distinction  between  mere  inadequacy 
and  a  total  or  partial  failure  of  consideration.' 
Inadequacy  of  consideration  is  not  in  itself  any 
defence  to  an  action  on  a  bill  or  note."  But  a 
total  failure  or  want  of  consideration  is  a  per- 
fect defence,  and  a  partial  failure  is,  to  that  ex- 
tent, a  good  defence. 

Good  Faith.  No  one  can  be  considered  a 
bona  fide  holder  of  a  negotiable  note  or  bill 
of  exchange  unless  he  receives  the  same  in 
good  faith,  or,  as  it  is  sometimes  expressed, 
without  notice  of  the  facts  and  circumstances 
going  to  impeach  its  validity  or  diminish  the 
amount  recoverable  thereon.  Though  he  takes 
the  note  before  due,  he  cannot  recover  on  it  if 
he  takes  it  with  the  knowledge  that  it  has  been 
paid.''  A  person  cannot  be  deemed  a  bona  fide 
holder  who  takes  partnership  paper  for  the  debt 
of  an  individual  partner.' 

Illegality  of.  It  is  a  fundamental  prin- 
ciple thac  contracts  which  have  for  their  object 
anything  repugnant  to  the  general  policy  of 
the  law,  or  are  contrary  to  the  provisions  of 
a  statute,  are  void  ;*  and  when  a  note  or  bill  is 
founded  upon  or  given  to  secure  the  perform- 

1-Chitty  Bills,  142;  i  Tyrw.  84;  5  Denio,  514.  j-s 
Denio,  514.  li-s  Vt.  114,  152:  5  Denio,  516 ;  i  Hill, 
116.  l-i  u.  &  Aid.  223.  m-io  B.  &  C.  729.  n-i 
Cromp.  &  Jer.  234;  i  Tyrw.  84.  0-2  C.  &  M.  516;  6 
C.  &  P.  316;  5M.  &  W.  7.  P-4N.  H.  444;  6  Id.  447; 
iB.niley,  517;  1  Conn.  432  ;  10  Johns.  198;  6  Pick.  497; 
13  Wend.  60s:  2  Root,  53:  2  Wend.  431:  3  Id.  236:  4 
J.  J.  Marsh,  154;  2  Hill,  606  :  17  Wend.  188:  2  McLean, 
464:  3  Dev.  390;  6  How.  (Miss.)  106;  24  Me.  289;  22 
Pick.  166;  8  S.  &  Marsh.  332.  q-25  Wend.  107;  11 
Conn.  432;  II  Shepley,  284;  14  Pick.  293;  5  Humph. 
496 ;  4  Conn.  428.  Nothing  less  than  a  total  failure  of 
the  consideration  can  be  shown  in  bar  of  a  recovery  of 
a  note  or  bill,  10  Barn.  &  Cress.  877  ;  19  Johns.  113  ;  24 
vVend.  97.  r-23  Pick.  283.  s-2  Hill,  606 ;  8  Conn.  469. 
t-i  Hill,  606.  n-i  Stark.  51 :  21  Wend.  503.  \-\\  Johns. 
128.  w-4  Johns.  251  :  7  Wend.  158:  6  Duer,  309.  x-2 
Johns.  399.  This  is  a  rule  as  well  in  law  as  equity,  ex 
turpi  contractu  actio  non  oritur,  19  N.  Y.  37 ;  4  N.  H. 


ance  of  such  a  contract,  neither  or'  tLe  parties 
to  the  transaction  can  enforce  it  against  the 
other.y  If  part  of  the  consideration  of  a  bill 
or  note  be  fraudulent  or  illegal,  the  instrument 
is  vitiated  altogether."  Where  parties  have 
woven  a  web  of  fraud  or  wrohg,  it  is  no  part 
of  the  duty  of  courts  of  justice  to  unravel  the 
thread*  as  between  the  immediate  parties  to  the 
instrument.**  If  a  bill  originally  given  upon 
an  illegal  consideration  be  renewed,  the  re- 
newed bill  is  also  void,"  unless  the  amount  be 
reduced  by  excluding  so  much  of  the  consid- 
eration for  the  original  bill  as  was  illegal.* 

Contracts  made  in  furtherance  of  immorality, 
or  designed  to  facilitate  and  continue  an  im- 
moral course  of  life,  are  illegal  and  void ;  as, 
where  rooms  are  let  for  the  purpose  of  prosti- 
tution,* or  notes  and  bonds  are  given  to  secure 
the  continuance  of  illicit  intercourse.'  But 
past  illicit  intercourse  is  not  an  illegal  consid- 
eration for  a  bond  or  other  specialty  to  indem- 
nify the  injured  party  where  executed  for  that 
purpose  alone.K  So,  contracts  for  sale  of  libel- 
ous or  immoral  and  obscene  works,*"  or  for  the 
commission  of  an  unlawful  act ;'  and  contracts 
of  indemnity  against  the  consequences  of  an 
unlawful  actjj  are  illegal  and  void,  and,  conse- 
quently, no  action  can  be  sustained  upon  a 
promise  based  thereon. 

Agreements  for  the  general  restraint  of  trade 
are  illegal  and  void,''  on  the  ground  of  public 
policy;  but  a  partial  restraint,  not  injurious  to 
the  public,  founded  on  a  fair  and  beneficial 
consideration,  is  valid.' 

It  is  a  general  rule  of  commercial  law  that 
the  illegality  of  the  consideration  of  a  bill  of 
note  will  not  invalidate  it  in  the  hands  of  a 
bona  fide  holder  if  taken  in  the  usual  course 
of  trade,  unless  made  void  by  statute."  In 
general,  no  person  is  entitled  to  be  considered 
the  bona  fide  holder  of  negotiable  paper  unless 
he  acquires  the  same  before  it  becomes  due  in 
good  faith  and  for  value." 

Value.  On  a  question  of  title,  where  ne- 
gotiable notes  or  bills  have  been  misappro- 
priated, lost,  or  stolen,  if  a  subsequent  holder 
takes  them  innocently  for  a  full  or  valuable 
consideration  by  giving  money,  or  money  and 
goods  for  them,  in  the  usual  course  of  trade, 
he  is  entitled  to  recover  on  them."  As  between 
him  and  the  real  owner  the  equities  are  equal, 

385;  6  Bing.  321.  y-2  Johns.  Gas.  58;  s  Johns.  ^27. 
z-2  Burr.  1077  '•  3  Taunt.  226 :  5  C.  &  P.  19 ;  i  Al.  & 
R.  100;  S.  C.  Story  Notes,  §  190.   »-7  Foster,  230.     b- 

14  Johns.  465  ;  9  Shepley,  488  ;  5  Cowen,  547  ;  13  Barb. 
533:  3  Eng.  L.  &  Eq.  416;  10  Foster,  540;  2  Gray,  258. 
C-2  B.  &  Aid.  588;  I  Russ.  293 ;  2  Stark.  237.  <l-2  B. 
&  Aid.  588;  I  Russ.  293:  2  Stark.  237;  Bayley  (6th 
Ed.)  527.  e-i  Esp.  13.  f-s  Ves.  291;  5  Cow.  253:  4 
Denio,  439.  gr-i3  S.  &  R.  29  ;  Chitty  Con.  660-661 ;  i 
Johns.  Ch.  329  ;  8  Ohio  St.  265.  I1-4  Esp.  97;  13  Barb. 
533.  l-io  Wend.  384.  j-4  N.  H.  385 ;  5  Johns.  327  :  6 
Binn.  321.  K-3  B.  322  ;  21  Wend.  157;  see  Contracts. 
1-4  East.  190;  I  P.  Wms.  181  ;  6  A.  &  E.  438  ;  Id.  959  ; 
33  Eng.  C.  L.  R.  08,  254;  7  Cow.  307;  9  Mass.  522;  5 
T.  R.  118;  6  Seld.  241.  in-2  Hill,  449.  n-i  Camp 
10;  4  Greenl.  415 :  13  Peters,  56 ;  i  Johns.  Cas.  55;  4 
Mass.  370;  8  Id.  418;  5  Johns.  n8.    0-20  Johns.  657; 

15  Id.  231 ;  15  Id.  270;  5  Wend.  566;  6  Id.  615;  <>  Id. 
172:  Id.  X70;  31  Id.  499:  34  Id.  (is:  3  Hill,  30*:  i 
Denio,  383. 


ts* 


BILLS,  BONDS,  AND  NOTES. 


and  therefore  the  law,  in  order  to  facilitate  the 
negotiation  of  commercial  paper,  allows  the 
holder  who  has  acquired  it  fairly,  in  the  usual 
course  of  business,  and  parted  with  value  for 
it,  to  hold  it  even  as  against  the  real  owner.P 
If  the  holder  has  acquired  the  instrument 
without  having  parted  with  value  for  it,  there 
is  no  good  ground  for  excluding  a  defence  in- 
terposed by  the  parties  to  the  bill  or  note.i 
And  hence  the  law  does  not  protect  the  inno- 
cent holder  of  negotiable  paper  against  an 
equitable  defence,  unless  he  has  received  it  in 
the  usual  course  of  business  for  a  valuable 
consideration;  it  is  not  enough  that  it  be  a 
valid  consideration,  as  between  the  parties  to 
the  transfer;  it  must  also  be  valuable.'' 

Want  of  Consideration.  A  valid  and 
sufficient  consideration  is  the  very  essence  of 
every  contract  not  under  seal ;  and  promissory 
notes  and  bills  of  exchange  are  no  exception 
to  the  general  rule.*  Where  a  note  is  made 
for  the  accommodalion  of  the  payee,  it  is  self- 
evident  that  no  action  can  be  sustained  thereon 
in  the  name  of  the  payee  against  the  maker.* 
No  more  can  the  drawer  of  a  bill  maintain  an 
action  thereon  against  the  drawee  who  has  ac- 
cepted the  same  for  his  accommodation."  Be- 
tween the  parties  to  the  transaction  the  making 
of  such  a  note  or  the  accepting  of  such  a  bill 
is  a  mere  loan  of  credit,  designed  to  enable  the 
borrower  to  raise  money,  either  generally  in 
the  market  or  in  a  particular  manner ;  and,  un- 
til the  bill  or  note  is  negotiated,  no  obligation 
attaches  to  the  instrument.  A  note  made  for 
the  accommodation  of  the  payee  has  no  legal 
inception  until  it  is  transferred  for  value. ^ 
The  maker  of  a  note,'  the  drawer  of  a  check,'' 
an  indorser,y  and  the  acceptor  of  a  bill,*  for 
the  accommodation  of  another  party,  without 
restriction  in  respect  to  the  use  which  is  to  be 
made  of  the  paper,  authorizes  the  accommo- 
dated party  to  make  any  use  of  it  of  which  the 
paper  is  capable ;  to  deliver  it  for  future  ad- 
vances,' as  collateral  to**  or  in  payment  of  an 
antecedent  debt,"  or  he  may  get  it  discounted 
and  appropriate  the  proceeds.  But  in  order  to 
recover  on  such  paper,  which  has  been  mis- 
appropriated, the  plaintiff  must  have  received 
it  in  good  faith.  Evidence  that  he  gave  value 
for  it  is  prima  fade  proof  of  good  faith,  and 
whatever  shows  him  to  have  acquired  the 
paper  in  bad  faith,  or  with  notice  of  facts  im- 
peaching its  validity,  will  defeat  his  right  of 
recovery.*  So,  if  a  bill  or  note  be  lost  or 
stolen,  and  afterward  negotiated  to  one  having 

p-3  Burr.  1516  ;  i  Burr  R.  452.  q-7  C.  &  P.  633. 
r-See  authorities  reviewed  in  6  Hill,  93.  s-Chitty  Con. 
f7,  i8;  25  Eng.  L.  &  Eg.  371.  t-7  T.  R.  121  :  5  Bing. 
^32  :  3  Burr,  1568  :  23  Wend.  311.  u-9  B.  &  B.  241 ;  i 
Mees.  &  Wels.  212 ;  0  B.  &  C.  241.  v-3  Sand.  Ch.  77 ; 
It  Ohio.  62 ;  18  N.  Y.  327.  w-i  Bosw.  335  :  5  Paige, 
509 ;  2  Bosw.  248.  X-6  Duer,  587.  y-2  Paige,  509  ;  5 
Duer,  87;  20  Conn.  475.  *-5  Sand.  7;  2  Id.  105.  B-18 
V.  Y.  502.  b-i  Bosw.  335  ;  2  Id.  248 ;  2  Paige,  soQ  :  34 
?enn.  St.  138.  c-6  Duer,  587;  5  Sand.  7;  29  Conn. 
475  d-5  Wend.  600;  11  Johns.  128:  12  Id.  300;  15  Id. 
«70 ;  2  Id.  50 :  8  Wend.  478 ;  i  Denio,  583 ;  5  B.  &  Ad. 
9c<i ;  10  A.  &  E.  784 :  5  Diicr.  462  ;  i  Id.  309.  e-i  Burr. 
453;  3  Doug,  63^;  3  awt,  1516.    f-io  jobot.  331:  15 


no  knowledge  of  these  facts,  for  a  valuable 
consideration,  in  the  usual  course  of  business, 
his  title  is  good,  and  he  shall  recover  the 
amount."  Where  a  note  or  bill  has  been  di- 
verted from  its  original  destination,  in  violation 
of  the  agreement  upon  which  it  was  made  or 
indorsed,  the  holder  cannot  recover  upon  it 
against  the  accommodation  maker  or  indorser, 
without  showing  that  he  received  it  in  the 
ordinary  course  of  trade,  giving  for  it  a  valu- 
able consideration.'  And,  in  general,  where 
the  holder  takes  a  note  or  bill  aftei  it  is  due, 
he  takes  it  subject  to  every  defence  existing 
against  it  in  the  hands  of  the  person  from 
whom  he  receives  it,8  because  he  acquires  it 
out  of  the  ordinary  course  of  business,  and 
after  it  has  been  dishonored.'' 

An  exchange  of  notes  for  the  same  amount 
made  by  two  firms  of  the  same  tenor  is,  in  legal 
effect,  a  sale.'  So,  when  a  person  gives  his 
own  note  in  exchange  for  another  note,  he  is  a 
purchaser  for  value.i  So,  cross  acceptances  for 
mutual  accommodation  are,  respectively,  con- 
siderations for  each  other.''  A  fluctuating  bal- 
ance may  form  a  consideration  for  a  bill.'  The 
same  general  rules  as  apply  to  the  nature  of 
the  consideration  for  other  simple  contracts, 
are  also  applicable  to  the  various  contracts  on 
a  bill  or  note.  Consideration  is,  in  general, 
either  some  detriment  to  the  plaintiff,  sustained 
for  the  sake  or  at  the  instance  of  the  defendant, 
or  some  benefit  to  the  defendant  moving  from 
the  plaintiif.  It  is  not  necessary  th3t  the  con- 
sideration should  move  to  the  defendant  per- 
sonally; if  it  moves  to  a  third  person  by  his 
desire  or  acquiescence,  that  is  sufficient.  There- 
fore, the  debt  of  a  third  person  is  a  good  con- 
sideration to  support  a  contract  on  a  bill  pay- 
able at  a  future  day.™  Thus  a  note  cannot  be 
supported  as  a  gift,  for  a  gift  is  not  consummate 
and  perfect  until  the  delivery  of  the  thing 
promised,  and  until  then  the  party  may  revoke 
his  promise." 

From  whatever  cause  arising,  the  want  of 
consideration  will  defeat  a  recovery  on  a  note, 
bill,  or  check,  as  between  the  original  parties. 
Want  of  consideration  destroys  the  validity  of 
a  note  without  any  regard  to  the  bona  fides  of 
the  transaction."  Fraud  destroys  the  contract. 
But  if  the  party  defrauded  would  disaffirm  the 
contract,  he  must  do  so  at  the  earliest  prac- 
ticable moment  after  the  discovery  of  the  cheat, 
and  must  return  whatever  he  has  received  upon 
it.  But  if  the  thing  received  be  entirely  value- 
less, or  a  different  thing  from  that  contracted 

Id.  270;  5  Wend.  266;  6  Id.  615:  9  Id.  172:  37  Penn. 
St.  367 :  5  Duer,  260  ;  27  Conn.  381  ;  18  Mees.  &  Welsby, 
494;  13  Gray,  7.  ^-3  Barb.  Ch.  403;  5  Paige,  650;  i 
Johns.  Cas.  s'  :  8  Johns.  454  ;  24  Wend.  97.  l»-i  Taunt. 
224;  Chitty  Bills,  217.  219:  7  Johns.  363:  36  Penn.  St. 
285 ;  38  Id.  307.  I-3  Denio,  187,  and  cases  there  cited. 
J-4  Barb.  304;  i  Mill,  513;  4  Duer,  331.  k-7  T.  R. 
565 ;  3  East.  72 :  I  B.  &  Ad.  521  ;  2  Denio,  621 ;  sHill, 
504;  I  Cush.  168:  6  Ga.  472:  13  Ala.  346;  i  Doug. 
188;  4  Harring.  311.  l-i  B.  &  C.  122  :  5  M.  &  Rv  89, 
S.  C:  I  C.  M.  &  R.  849 :  5  Tyr.  255,  S.  C  m-2  C.  & 
M.  368.  5  Tyr.  320,  S.  C;  4  Johns.  296;  6  N.  H.  386. 
n-7  Johns.  25  :  5  B.  &  C.  501 ;  8  D.  &  R.  163 ;  23  Barb. 
565.  0-17  Johns.  301 ;  8  Id.  i»;  9  Wend.  273  :  5  Enf 
L.  &  £q.  408. 


BILLS,  BC5NDS,  AND  NOTES. 


153 


for,  he  may  rescind  without  returning  or  offer- 
ing to  return  it.P 

CONSTRUCTION.'"  Contracts  are  to  be 
construed  so  as  to  carry  into  effect  the  intention 
of  the  contracting  parties.'  Where  the  lan- 
guage is  plain  and  unambiguous,  there  is  no 
room  and  no  occasion  for  interpretation.*  On 
the  other  hand,  where  the  words  used  admit 
of  two  interpretations,  the  rule  is  to  adopt  that 
which  will  give  effect  to  the  contract  according 
to  the  understanding  of  the  parties.*  It  is  an 
established  principle  that  the  construction  of 
personal  contracts  is  to  be  regarded  by,  and 
their  validity  depends  upon,  the  laws  of  the 
place  where  they  were  made,  except  when  made 
with  a  view  to  performance  in  some  other  State 
or  country,  and  then  the  law  of  such  country  is 
to  prevail."  The  remedy  on  contracts  is  regu- 
lated according  to  the  law  of  the  place  where 
a  judicial  enforcement  is  sought.^ 

DRAWING  AND  MAKING.  Bills  of 
exchange  and  promissory  notes  are  usually 
written  on  paper.  They  may  be  written  on 
parchment,  cloth,  leather,  or  any  other  substi- 
tute for  paper,  capable  of  being  transferred 
from  hand  to  hand.  They  may  be  written  in 
any  language,  and  in  any  form  of  words ;  and, 
like  any  other  contract,  may  be  written  in  pen- 
cil as  well  as  in  ink.'  It  is  enough  if  the  words 
employed  import  an  absolute  engagement  to 
pay  a  certain  sum  of  money.  There  are  no 
precise  words  requisite  to  make  a  promissory 
note.*  The  signature  or  indorsement  of  nego- 
tiable paper  may  be  by  a  mark.? 

A  date  in  general  is  not  essential  to  the 
validity  of  a  biL  or  note ;  and,  if  there  be  no 
date,  it  will  be  considered  as  dated  at  the  time 
when  it  was  made."  The  date  expressed  in  the 
instrument  is  prima  facie  evidence  of  the  time 
when  the  instrument  was  made.*  And  this  rule 
applies  to  written  instruments  in  general. *>  In 
general  a  bill  or  note  may  be  post  dated"  or 
ante  dated. 

The  time  of  payment  is  regularly  and  usually 
stated  at  the  beginning  of  the  note  or  bill ;  but 
if  no  time  be  expressed  the  instrument  will  be 
payable  on  demand."*  The  expression  "  after 
sight,"  on  a  bill  of  exchange,  means  after  ac- 
ceptance, or  protest  for  non-acceptance,  and 

p-i  Denio,  69;  2  Denio,  139;  2  Sand.  421.  q-i 
M.  &  G.  795 ;  10  B.  &  C.  729 ;  2  Scott  (N.  R.)  183, 
S.  C.  ;  iC.  &J.  231;  I  Tyr.  84,  S.  C.  ;  2M.  &W.  414; 
5  Dowl.  585  :  7  C.  &  P.  633  ;  i  Dans.  &  Lloyd,  159 ;  1 
M.  &  M.  226.  r-2  Kent's  Comm.  553,  555.  s-See  title 
Contracts.  t-Id.  2  Atk.  32  ;  3Cowen,284.  «-6  Paige 
Ch.  627  ;  2  Burr,  1077;  12  Pet.  410,  436;  i  How.  i^, 
183  ;  8  Paige,  261 ;  13  Mass.  23 ;  12  Barb.  631 ;  9  La.  An. 
185:  8  Johns.  189;  6  Pet.  172;  13  Id.  65  ;  17  Johns. 
511 :  7  De.  G.  M.  &  G.  78  ;  31  Eng.  L.  &  Ea.  443  ;  4  N. 
T.  319  ;  23  Penn.  St.  137  ;  6  McLean,  622  ;  i  Wms.  8.  v-2 
Mass.  84 ;  6  Id.  358  :  13  Id.  20  ;  16  Id.  157 ;  i  Pick.  506 ;  i 
Johns.  Cas.  139  ;  i  Johns.  235  ;  3  Id.  263  ;  4  Id.  285  ;  8  Id. 
189;  2  Wash.  282;  1  Gallison,375  ;  3  Conn.  253;  2  Johns. 
Cas.  355;  1H.&J.453.  W-5B.&C.234;Dow.  &R.653, 
S.  C.  ;  I  Stark,  267;  i  Phil.  122  ;  Id.  53;  2  Id. 73.  x-i 
Stra.  629 ;  2  Ld.  Raym.  1356 ;  8_Mod.  362.    y-i  M.  &  M. 


3  B.  &  P.  173;   6M.  &S.  73; 
Ha 


516.     K-3  Show.  422 ; 

Chitty,  300,  S.  C.  ;  32  Maine,  524';"  17  Ala.  45  ;  2'flar. 
&  Johns.  328:  8S.  &R.425:  3Vt.  82;  2  Johns.  300. 
B-6  Bing.  296  ;  8  Scott,  853,  S.  C. :  i  Stark.  175  ;  i  M. 
&M.486;  I  M.  &R.341;  4M.  &P.  472,  S.  C.  b-4 
M.  &  W.  318 ;  7  Scott  (N.  R.)  8x3 ;  3  Exch.  195 ;  17  L. 


not  after  a  mere  private  exhibition  to  the 
drawee ;  for  the  sight  must  appear  in  a  legal 
way.®  A  bill  payable  so  many  days  after  sight 
means  legal  sight,  and  the  bill  begins  to  run 
from  the  presentment  and  acceptance,  and  not 
from  the  time  of  mere  presentment.'  A  bill  or 
note  must  be  certain  as  to  the  lime  of  payment.* 
So,  also,  the  amount  to  be  paid.""  The  order  to 
pay  need  be  in  no  particular  form ;  any  expres- 
sion amounting  to  an  order,'  or  direction,  is 
sufficient.J 

The  payee  should  be  described  so  that  ht 
cannot  be  confounded  with  another  person  of 
the  same  name.''  A  promise  to  pay  a  given 
sum  on  demand,  for  value  received,  without 
saying  to  whom,  is  mere  waste  paper. 

The  signature  of  a  drawer  or  maker  of  a  bill 
or  note  is  usually  subscribed  in  the  right  hand 
corner;  but  it  is  sufficient  if  written  in  any 
other  part.""  "  I,  J.  S.,  promise  to  pay,"  has 
been  held  a  sufficient  signature  of  a  promis- 
sory note.'  A  man  who  cannot  write  may  sign 
a  bill  by  his  mark."  If  a  bill  be  not  made 
payable  either  to  any  payee  in  particular,  or  to 
the  drawer's  order,  or  to  the  bearer  in  general,  it 
is  mere  waste  paper." 

Unless  a  bill  or  note  be  payable  to  orders  or 
to  bearer,  it  is  not  negotiable,  though  still  a 
valid  security  as  between  the  original  parties.' 
A  bond,  note,  or  bill  of  exchange,  drawn  pay- 
able to  any  person  or  persons  alone,  and  not 
drawn  payable  to  any  order,  bearer,  or  assigns, 
is  not  negotiable."!  A  bill  or  note  may  be  pay- 
able to  A.  B.,  or  order,  or  to  A.  B.,  or  bearer, 
or  to  the  drawer's  own  order. ■"  If  made  pay- 
able to  order,  it  is  assignable  by  indorsement; 
if  made  payable  to  bearer,  it  is  assignable  by 
mere  delivery.* 

It  is  not  necessary  to  make  notes  and  bills 
payable  at  any  particular  place,  unless  required 
by  statute.  It  is  very  convenient  to  name  the 
place  of  payment  in  the  body  of  the  instru- 
ment ;  and  when  this  is  done  it  should  be  pre- 
sented at  that  place  for  payment.* 

The  words  "value  received"  are  not  neces- 
sary to  a  bill  of  exchange  or  other  negotiable 
instrument,'  for  it  is  implied,"  and  need  not  b« 
alleged  or  proved.^ 

J.  233.  C-13  East.  517:  8  Wend.  478.  d-iD.  &R. 
356;  2B.  &C.  257:  aC.  &  P.  ii,S.  C. :  Bayley.sth 
Ed.  109  ;  I  C.  B.  401.  e-Marius,  19  :  6  T.  R.  212.  f- 
I  Mason,  176.  g-Chitty  Bills,  134  ;  Ld.  Raym.  1396;  8 
Mod.  363  ;  T  Burr.  323  ;  4  Ves.  372  :  15  Mass.  387;  4 
Mod.  242  :  7  Id.  417;  Stra.  1151  :  2  Bing.  185  ;  9  Yeager, 
24  ;  1  Cow.  692  ;  6  Id.  51 ;  5  Pick.  401  :  WiUes,  396. 
h-2  Stark.  375  ;  20  Pick.  132  ;  10  Serg.  &  R.  94.  i-it 
L.  J.  393,  Exch.;  4  Exch.  200,  S.  C.  J-Beawes.  3; 
Marius,  II.  Ii-4T.  R.  28;  2  Stark.  29;  i  Id.  106;  13 
l^yer,  5  ;  2  B.  &  Aid.  417 ;  i  Stra.  706 ;  4  B.  &  C.  235 ; 
6D.  &  R.  306,  S.  C. ;  Tyr.  96;  2  N.  H.  446;  5  Blackf. 
593  :  8  Eng.  43 :  13  Ga.  55.  I-i  Stra.  399  :  2  Bos.  & 
Pul.  238.  in-i  Moody  &  Malkin,  516.  n-6  Wend.  637. 
O-i  H.  Bl.  608  ;  Russ.  C.  C.  185 ;  R.  &  R.  C.  C.  195 
n-6  T.  R.  123 ;  I  Esp.  S.  C.  231  ;  6  Taunt.  325 ;  R.  & 
R.  300;  G.  S.  1868,  Ch.  14,  g  I.  q-i  Harring,  32;  3 
Humph.  61  ;  21  Kelly,  236.  r-Drawn  payable  to  the 
drawer's  order,  it  is  payable  to  himself;  5  East.  476  ;  2 
Smith,  443,  S.  C.  s-3  Johns.  Cas.  17.  t-2  McLean, 
213:  3  Met.  363;  3  Rich.  413;  2  E.  D.  Smith,  395;  31 
Penn.  St.  506.  n-2  McLean,  213;  3  Met.  363;  if 
Maine,  131 ;  t  Demo,  116;  9  Wend.  873;  13  !«•  557< 
V-4HU1,44B. 


«S4 


BILLS,  BONDS,  AND  NOTES. 


It  is  common  to  insert  in  bills  of  exchange 
«rords  of  advice,  specifying  to  what  account  the 
amount  directed  to  be  paid  is  to  be  charged. 
The  drawer  sometimes  gives  the  drawee  a  gen- 
eral direction  in  words  like  these,  "  and  charge 
the  same  to  my  account,"  and  sometimes  makes 
it  specific  by  directing  the  payee  to  "  put  it  to 
the  account  of  A.  B.,"  or  "to  the  B.  road  as- 
sessment," or  to  the  cargo  of  a  certain  ship, 
etc.*  But  such  words  of  advice  are  not  essen- 
tial in  bills  of  exchange.* 

A  bill  of  exchange  being  an  open  letter  of 
request  for  the  payment  of  money,  must  be  reg- 
ularly addressed  to  the  person  on  whom  it  is 
drawn  ;  and  this  is  usually  done  at  the  bottom 
on  the  left  hand  of  the  bill.  For  no  one  can 
be  liable  as  acceptor  but  the  person  to  whom 
the  bill  is  addressed,  unless  he  be  an  acceptor 
for  honor.y 

Ambiguous,  Conditional,  and  Irregular 
Instruments.  A  note  cannot  be  made  by  a 
man  to  himself,  without  more.  Neither  can  it 
be  made  to  himself  and  another  man.'  But  a 
note  made  payable  to  the  maker's  order  be- 
comes, in  legal  effect,  when  indorsed  in  blank, 
a  note  made  payable  to  bearer  ;*  and  when  spe- 
cially indorsed  a  note  payable  to  the  indorsee's 
order.* 

If  an  instrument  be  made  in  terms  so  ambig- 
uous that  it  is  doubtful  whether  it  be  a  bill  of 
exchange  or  promissory  note,  the  holder  may 
treat  it  as  either  at  his  election." 

A  man  may  draw  a  bill  on  himself.* 

Bills  and  notes  must  be  for  the  payment  of 
money  only,  and  not  for  the  payment  of  money 
and  the  performance  of  some  other  act.*  There- 
fore a  note  to  deliver  up  horses  and  a  wharf 
and  pay  money  at  a  particular  day  is  no  promis- 
sory note.'  Nor  must  a  bill  or  note  be  in  the 
alternative.*  And  it  must  be  for  the  payment 
of  money  in  specie.^  And  for  the  payment  of 
money.'  The  order  or  promise  must  be  to  pay 
absolutely,  and  at  all  events  ;J  the  payment 
must  not  depend  upon  a  contingency.''  It  is 
hot  material  that  the  time  when  the  event  may 
happen  is  uncertain,  provided  it  must  happen 
Rt  some  time  or  other ;  thus,  a  note  payable  on 
^he  death  of  A.  B.,  or  of  the  maker,  is  good.' 
The  bill  or  note  must  not  be  made  payable  out 

W-Chitty  Bills,  163  :  Story  Bills,  ?  65  :  4  Hill,  262. 
X-i  Barn.  &  Cress.  302  ;  i  Wend.  522.  y-3  Barn.  & 
Adol.  114.  SB-2  B.  &  P.  14  n. ;  Id.  120 ;  8  B.  &  C.  345. 
R-17  L.  J.  280,  C.  P. ;  6  C.  B.  336.  b-i7  L.  J.  287,  C. 
P.  ;  6  C.  B.  336.  C-i  Bay.  66  ;  i  Wend.  5:^2  ;  Minor, 
TQ5  :  14  Conn.  362  ;  7  Watts  &  S.  264  ;  9  Watts,  353  ;  13 
Penn.  St.  173.  d-Carthe,  508 ;  i  Shaw.  163:  2  Burr. 
1077.  e-t6  Barb.  643.  f-2  Stra.  1271  ;  B.  N.  P.  272  ; 
ig  L.  J.  6  Exch, ;  4  Exch.  410,  S.  C.  ;  9  Q.  B.  312.  jf- 
Gilb.  Cas.  L.  E.  93  ;  Ld.  Raym.  1396.  h-A  note  pay- 
able in  current  funds,  or  New  York  funds,  is  not  negoti- 
able, 2  McLean,  10;  3  Humph.  171;  11  Vt.  268;  23 
W<nd.  71 ;  6  Humph.  303;  3  Mcl-ean,  106 :  15  Ohio, 
118:  9  Sm.  &  Marsh.  457;  '9  Mo. 697;  i60hio,5;  i 
Erg.  155 ;  I  Texas,  13 ;  Id.  246  :  Id.  503.  A  bill  pay- 
Able  in  "currency"  is  not  a  bill  of  exchange,  7  Miss. 
595  ;  so,  a  draft  payable  in  "Arkansas  money,"  5  Pike, 
481.  1-Where  the  instrument  contains  a  stipulation  that 
the  money  or  a  portion  of  it  shall  be  paid  by  a  set  off,  it 
s  no  promissory  note,  10  Ad.  &  Ellis,  92;  2  P.  &  D. 
«56,  S.  C.  J-35  Me.  364.  k-5  T.  R.  482 ;  4  Mod.  24a  ; 
xBurr,333,-  aCamp.aos;  4M.&W.  168;  3Stia.iZ5i; 


of  a  particular  fund,"  for  the  fund  may  prore 
insufficient. 

If  a  bill  be  defective  as  a  bill  or  note  it  may 
still  be  evidence  of  an  agreement. 

Any  material  alteration  made  in  a  note  after 
its  execution  or  indorsement,  such  as  inserting 
words  of  negotiability  or  altering  the  time  01 
place  of  payment,  discharges  the  previous  par- 
ties to  it.°  But  where  a  blank  is  left  in  it, 
there  is  an  implied  authority  to  the  holder  to 
fill  up  the  instrument,  and  make  it  in  fact  what 
It  was  designed  to  be.®  If  made  payable  tc 
blank,  the  person  to  whom  it  is  negotiated  may 
fill  it  up  by  inserting  his  own'  name  ;P  if  made 
payable  to  the  person  who  shall  thereafter  in- 
dorse it,  it  is  negotiable  without  any  alteration, 
and  may  be  transferred  by  indorsement."!  Also, 
if  a  person  sign  his  name  upon  a  blank  piece 
of  paper,  and  deliver  it  to  another  to  draw 
above  his  signature,  he  by  that  act  authorizes  it 
to  be  filled  up  for  any  amount.' 

Agreements  intended  to  control  the 
OPERATION  of  Bills  OR  NoTES.  Such  agree- 
ments are  either  written  or  verbal.  Such  written 
agreement  is  either  on  the  instrument  itself  or  on 
a  distinct  paper ;  and  is  either  contemporaneous 
with  the  completion  of  the  bill  or  note,  or  it  is  a 
subsequent  agreement,  A  memorandum  on  a 
bill  or  note,  made  before  it  is  complete,  is  some- 
times considered  as  a  part  of  the  instrument  so  as 
to  control  its  operation,  and  sometimes  not.  If 
a  memorandum  make  the  payment  contingent,  it 
will  be  incorporated  in  the  note.*  But,  where 
it  is  merely  directory,  as  if  it  points  out  the 
place  of  payment,*  or  be  merely  the  expression 
of  an  intended  courtesy,"  or  import  that  a  col- 
lateral security  has  been  given,'  or  be  intended 
to  identify  the  instrument,*  it  does  not  affect  its 
operation. 

A  written  agreement,  on  a  distinct  paper,  to 
renew,  or  in  other  respects,  to  qualify  the  lia- 
bility of  the  maker  or  acceptor,  is  good  as 
between  original  parties.*  But  a  written  agree- 
ment, though  contemporaneous,  will  not  re- 
strain the  operation  ol  the  bill  or  note,  if  it  be 
collateral,  that  is,  if  other  persons  besides 
the  parties  to  the  bill  or  note   be   parties  to 

it.y 

No  verbal  agreement  can  take  effect,  if  con- 
Comb.  227,  S.  C. ;  Bayley  16,  6  Ed.  ;  2  B.  &  P.  413  ;  a 
Camp.  417  ;  2  &  Ad.  660 ;  5  Q.  B.  599  ;  i  N.  &  W.  146 ; 
2  Bing.  185;  9  Mo.  358;  2  Ld.  Raym.  1563;  11  A.  & 
E.  214.  1-2  Stra.  1217;  2  Per.  &  Dav.  365;  10  Ad.  & 
El.  272  :  111-2  Ld.  Raym.  1361 ;  8  Mod.  265  ;  1  Stra. 
591,  S.  C. ;  2  Ld.  Raym.  1563;  2  Bla.  R.  782;  3  Wils. 
207,  S.  C. ;  I  Ves.  Jun.  280  ;  5  T.  R.  482.  //  is  esseu- 
tial  to  a  bill  or  note  that  it  be  payable  in  money  only 
and  net  out  of  a  particular  fund,  i  Cowen,  691  ,  6  Id. 
108 ;  4  Porter,  205  ;  11  Mass.  143  ;  3  Hals.  262  ;  2  Blackf 
'•  -    M 


47  :  6  J-  J-  Marsh,  iro;  1  S.  &  Marsh,  393  ;  3  Pike 
541  ;  I  Harr.  440;  i  Spears,  127:  8  B.  Mon.  168;  4 
'       ■  -  "  ■  ■  ;    17W      ■ 

. .....  ^'  ;? ' 

St.  443 ;  85  £ng.  C.  L.  238V   0-17  Wend.  238;  7  Cowen, 


Denio,  159;    8  Eng.  12.     11-19  Johns.  391  :    17  Wend. 
~    ■  ~       .St.  80;      "■ 

1.238;  7 

.  .31-     P-3J 
90;  31  Barb.  100.    q-2  Hill,  59.     r-i  H.  Bl.  313;  21 


238  ;  24  Id.  374 ;  3  Barb.  374  ;  35  Penn.  St.  80 ;    9  Ohio 

St.  443;  85  Eng.  C.  L.  238.     0-17  Wend, 

J36 ;    10  Wend.  93 ;    2t  New  York,  531.     p-3  Maule  & 


111.  223.  M-2  Camp.  205  :  4  M.  &  Sel.  25;  4  Camp.  127, 
S.C. ;  14M.&W.  344.  t-4M.&Sel.  505.  11-4  Camp. 
217;  I  Stark.  53.  v-4  Ad.  &E.  786;  6  Nev.  &  M.  364. 
8  Har.  &  W.  49,  S.  C.  W-i  M.  &  W.  232.  x-4  Taunt 
344 ;  9  B.  &  C.  758  ;  4  Man.  &  Ryl.  591,  S.  C.  y-lj 
.  L-  J-  34  Q-  B. 


BILLS,  BONDS,  AND  NOTES. 


t55 


temporaneous  with  the  making  of  the  instru- 
ment; for  that  would  be  to  allow  verbal 
evidence  to  vary  a  written  contract.?  Evidence 
is  admissible  to  deny  the  receipt  of  value,  but 
not  to  vary  the  engagement.* 

GUARANTY.  The  engagement  of  a 
surety  is  accessory  to  the  agreement  of  the 
principal,  and  it  is  a  general  rule  of  law  that 
whatever  discharged  the  contract  of  the  prin- 
cipal discharges  also  that  of  the  surety.  It 
results  from  the  definition  of  a  surety's  engage- 
ment, as  being  accessory  to  a  principal  obliga- 
tion, that  the  extinction  of  the  principal  obliga- 
tion necessarily  extinguishes  that  of  the  surety, 
it  being  of  the  nature  of  an  accessory  obligation 
that  cannot  exist  without  its  principal ;  there- 
fore, whenever  the  principal  is  discharged,  in 
whatever  manner  it  may  be,  not  only  by  actual 
payment  or  a  compensation,  but  also  by  a  re- 
lease, the  surety  is  discharged  likewise ;  for  the 
essence  of  the  obligation  being  that  the  surety 
is  only  obliged  on  behalf  of  the  principal  debtor, 
he  therefore  is  no  longer  obliged  when  there  is 
no  longer  any  principal  debtor  for  whom  he  was 
obliged.  In  like  manner  the  surety  is  dis- 
charged by  the  novation  of  the  debt.*  A  per- 
son who  guarantees  a  note  is  no  party  to  the 
note.''  His  contract  is  special,  and  must  be 
specially  declared  on."  An  absolute  guaranty 
of  payment  made  on  a  good  consideration,  in- 
dorsed on  the  back  of  a  note,  is  an  engagement 
that  the  maker  shall  pay  it  at  maturity,  and  that 
if  it  is  not  so  paid  the  guarantor  will  himself 
pay  it.**  A  guaranty  for  collection  is  a  very  dif- 
ferent contract  from  a  guaranty  of  payment ; 
the  latter  being  a  contract  that  the  money  shall 
be  paid  at  maturity,  while  the  former  is  in  sub- 
stance a  warranty  that  it  is  collectable.®  A 
guaranty  that  a  note  is  collectable  is  a  condi- 
tional promise,  binding  upon  the  guarantor  only 
in  case  of  diligence.  In  order  to  perfect  the 
obligation  so  as  to  render  him  liable  thereon, 
the  guarantee  must  use  diligence  in  the  en- 
deavor to  collect  the  note,  for  this  is  a  condition 
precedent.^  The  terms  of  the  guaranty  must 
be  complied  with  before  the  guarantors  can  be 
rendered. liable  on  the  contract.  Notice  of 
non-payment  is  not  necessary  in  order  to  charge 
the  guarantor,  but  it  is  advisable  to  give  him 
notice,  inasmuch  as  it  frequently  becomes  im- 
portant to  prove  notice  as  a  means  of  rebutting 
the  presumption  of  laches  in  the  party  guaran- 
teed.s  A  general  guaranty  of  the  note,  or  a 
guaranty  of  its  collection,  implies  a  right  on  the 
guarantor's  part,  that  the  party  guaranteed  shall 
use  diligence  in  collecting  the  debt  of  the 
principal  debtor,  and  give  to  him  (the  guaran- 
tor) every  opportunity  to  protect  himself  against 

y-The  cases  are  too  numerous  to  begin  to  cite,  a-i 
M.  &G.  795;  loB.  &C.  729;  2  Scott  (N.  R.)  183,  S. 
C.  ;  I  C.  &  J.  231  ;  I  Tyr.  84,  S.  C;  2M.&W.  414; 
5  Dowl.  585  ;  7  C.  &  P.  633 ;  i  Dans.  &  Lloyd,  159 ;  i 
M.  &  M.  226.  »-Post.  Novation,  Poth. ;  Ob.  p.  2  ch. 
6,  3  1 ;  Chitty  Con.  528;  3  J.  J.  Marsh.  527;  7  Monr. 
398  :  4  Id.  494  :  9  Wheat.  680 ;  8  Wend.  512.  b-6  Barb. 
S.  C.  282;  5  Wend.  307;  2  Hill,  190.  c-i  Chitty  PI. 
339;  II  How.  Pr.  218.  d-20  Johns.  365.  e-19  Johns. 
i)  ;  20  Id.  365  ;  6  Cowen,  624  ;  4  Id.  173 ;  i  Wend.  457  : 


his  principal.''  The  terms  of  the  contract  of 
guaranty  are  construed  strictly.' 

INDORSEMENT  AND  TRANSFER. 
To  indorse  is  to  write  on  the  back.  Bills  of 
exchange  and  promissory  notes  are  indorsed 
by  a  party's  writing  his  name  on  the  back. 

An  indorser  is  the  person  who  makes  an  in- 
dorsement. 

An  indorsee  is  the  person  to  whom  the  in- 
dorsement is  made. 

The  indorsement  is  that  which  is  written  on 
the  back  of  an  instrument  in  writing,  and  which 
has  relation  to  it;  writing  any  name  on  the 
back  of  a  promissory  note  or  other  negotiable 
instrument.^ 

A  blank  indorsement  is  one  in  which  the 
name  of  the  indorser  only  is  written  upon  the 
instrument.  Though  generally  made  by  writing 
the  indorser's  name  on  the  back,''  .still  a  writing 
across  the  face  may  answer  the  same  purpose.' 

A  conditional  indorsement  is  one  made  sub- 
ject to  some  condition  without  the  performance 
of  which  the  instrument  will  not  be  or  remain 
valid.™ 

An  indorsement  in  full  is  one  in  which  men- 
tion is  made  of  the  name  of  the  indorsee." 

A  qualified  indorsement  is  one  which  re- 
strains, or  limits,  or  qualifies,  or  enlarges  the 
liability  of  the  indorser,  in  any  manner  differ- 
ent from  what  the  law  generally  imports  as  his 
true  liability,  deducible  from  t|ie  nature  of  the 
instrument."  The  words  generally  used  are 
"  sans  recours  "  ("  without  recourse  ").p 

An  indorsement  is  generally  made  primarily 
for  the  purpose  of  transferring  the  rights  of  the 
holder  of  the  instrument  to  some  other  person. 
It  has,  however,  various  results,  such  as  ren- 
dering the  indorser  liable  in  certain  events; 
and  hence  an  indorsement  is  sometimes  made 
merely  for  the  purpose  of  additional  security. 
This  is  called  accommodation  indorsement 
when  done  without  consideration  other  than 
an  exchange  of  indorsements. 

A  restrictive  indorsement  is  one  which  re- 
strains the  negotiability  of  the  instrument  to  a 
particular  person  or  for  a  particular  person 
or  purpose.*! 

The  effect  of  the  indorsement  on  a  ne- 
gotiable promissory  note  or  bill  of  exchange  is 
to  transfer  the  property  in  the  note  or  bill  to 
the  person  mentioned  in  the  indorsement  when 
it  is  made  in  full,  or  to  any  person  to  whose 
possession  it  may  lawfully  come  thereafter  even 
by  mere  delivery,  when  it  is  made  in  blank,  so 
that  the  possessor  may  sue  upon  it  in  his  own 
name,  as  well  as  if  he  had  been  named  as  the 
payee.''  And  any  person  who  has  possession 
of  the  instrument  is  presumed  to  be  the  legal 

13  Id.  543;  14  Id.  231 ;  21  Id.  255  ;  2  Hill,  139;  5  Barb.  ' 
501;  6  Id.  547.  f-2  Hill,  159;  13  Wend.  543;  24  Id. 
231  ;  19  Johns.  69  ;  6  Barb.  547  ;  11  A.  &  E.  438;  3  B. 
&  P.  249.  g-Story  Bills,  305.  h-12  Peters,  407 ;  9  S. 
&  R.  198;  12  Pick.  133,  416;  2  How.  457;  4  Humph. 
303;  9  Ship.  164;  12  S.  &  M.  595.  I-14  Barb.  123.  J- 
20  Vt.  499.  U-13  S.  &  R.  315.  I-18  Pick.  63;  16  East. 
12.  in-4  Taunt.  30.  n-Chitty  Bills,  170.  o-Id.  (81b 
Ed.)  261.  p-3  Mass.  225;  12  Id.  14.  q-i  Rob.  X2t 
r-ii  Pet.  80;  2  Hill,  80. 


ts6 


BILLS,  BONDS,  AND  NOTES. 


bona  fide  holder  and  owner  for  value,  until  the 
contrary  is  shown.  When  the  indorsement  is 
made  before  the  note  becomes  due,  the  mdorsee 
and  all  subsequent  holders  are  entitled  to  re- 
cover the  face  of  the  note  against  the  maker, 
without  any  right  on  his  part  to  offset  claims 
which  he  may  have  against  the  payee;  or,  as  it 
is  frequently  stated,  the  indorsee  takes  it  free 
from  all  equities  between  the  antecedent  parties 
of  which  he  had  no  notice." 

Indorsers,  also,  unless  the  indorsement  be 
qualified,  become  liable  to  pay  the  amount  de- 
manded by  the  instrument  by  the  failure  of  the 
principal  (the  maker  of  a  note,  or  acceptor  of  a 
bill),  upon  due  notification  of  such  failure,  to 
any  subsequent  indorsee  who  can  legally  claim 
to  hold  through  the  particular  indorser.' 

Where  a  person,  not  the  payee  of  a  note  on 
demand  or  on  time,  puts  his  name  on  the  back 
at  the  time  of  its  inception,  he  is  liable  as  an 
original  promissor  or  surety,  but  not  as  in- 
dorser." 

Notes  and  bills  payable  to  order,  or  to  bearer, 
or  containing  any  words  to  make  them  assign- 
able, may  be  transferred  so  as  to  give  the  in- 
dorsee a  right  of  action  against  all  antecedent 
parties;  and  bills  or  notes  containing  no  ex- 
press words  to  make  them  assignable,  may,  in 
general,  be  assigned  so  as  to  give  the  assignee 
a  right  of  action  upon  them  against  the  as- 
signor.'' 

A  bill  or  note,  if  payable  to  order,  is  not 
transferable  except  by  indorsement ;  if  payable 
to  bearer,  it  is  transferable  by  mere  delivery.* 
If  a  bill  be  made  payable  to  A.,  or  order,  for 
the  use  of  B.,  B.  has  but  an  equitable  title,  and 
the  right  of  transfer  is  in  A.  alone. ^  No  one 
but  the  payee  or  person  legally  interested  in  the 
instrument  can  convey  the  title  by  indorsement.? 
Indorsements  are  of  two  kinds :  an  indorse- 
ment in  blank,  or,  as  it  is  sometimes  termed,  a 
blank  indorsement,  and  an  indorsement  in  full, 
or  a  special  indorsement.  No  particular  form 
of  words  is  essential  to  any  indorsement.  The 
mark  of  a  person  who  cannot  write  is  a  suffi- 
cient indorsement.*  A  blank  indorsement  is 
made  by  the  mere  signature  of  the  indorser  on 
the  back  of  the  bill ;  its  effect  is  to  make  the 
instrument  thereafter  payable  to  the  bearer." 
An  indorsement  in  full,  besides  the  signature 
of  the  indorser,  expresses  in  whose  favor  the 
indorsement  is  made.  Thus,  an  indorsement 
in  full  by  A.  B.  is  in  this  form :  "  Pay  C.  D., 
or  order;  A.  B.,"  the  signature  of  the  indorser 

s-3  T.  R.  80,  83  ;  7  Id.  423 ;  8  M.  &  W.  504 :  8  Conn. 
505;  13  Mart.  150;  16  Pet.  1.  t-Story  Bills,  §  224; 
Parsons  Bills,  u-8  Pick.  122;  4  Id.  311;  24  Id.  64;  9 
Mass.  314;  36  Me.  147;  4  Pick.  385;  7  Mass.  233;  14 
Id.  279;  II  Id.  436;  5  Rich.  30s;  18  Mo.  17;  Id.  140; 

1  G.  Greene,  331  ;  2  Duer.  33.  v-Bayley  Bills,  65 ; 
Byles  Bills,  113.  w-Ante.  x-Carthe,  5;  2  Vent.  207; 
.Skin.  264:  4  Esp.  187;  2  B.  &  C.  293.    y-4  Esp.  187; 

2  Barn.  &  Cress.  293;  15  N.  Y.  575;  7  Gray,  217;  i 
Hill,  287  ;  20  N.  Y.  138  ;  i  Comst.  116;  i  H.  Bla.  607; 
4  T.  R  28;  17  N.  Y.  605;  6  Mass.  388.  By  the  law 
merchant,  bills  and  notes  payable  to  order  can  be  trans- 
ferred only  by  indorsement,  2  Bibb.  83:  2  Brock.  20;  7 
.Mass.;  6  Id.  386;  16  Id.  314.  «-i  M.  &  M.  516.  a- 
Doug.  611,612.  b-Com.  Rep.  311;  i  Stra.  557:  2  Bnrr. 
t2i6;  I  Bla.  295,  S-  C;  3  Bing.  N.  €.829;  5  Scott.  3; 


being  subscribed  to  the  direction ;  its  effect  is  to 
make  the  instrument  payable  to  C.  D.,  or  his 
order  only,  and  accordingly,  C.  D.  cannot 
transfer  it  otherwise  than  by  indorsement.  The 
omission  of  the  words  "  or  order  "  is  not  ma- 
terial in  a  special  indorsement,  for  the  indorsee 
takes  it  with  all  its  incidents,  and,  among  the 
rest,  with  its  negotiable  quality,  if  it  were 
originally  made  payable  to  order.**  The  in 
dorsee  may  convert  a  blank  indorsement  into  a 
special  one  in  his  own  favor  by  superscribing 
the  necessary  words."  The  indorsee  may  also 
convert  the  blank  indorsement  into  a  special 
one  in  favor  of  a  stranger,  by  superscribing 
above  the  indorsement  the  words  "  pay  A.  B., 
or  order;"  and  if  he  transfer  the  bill  in  that 
way  instead  of  indorsing,  he  is  not  liable  as  an 
indorser.*  Where  there  are  several  blank  in- 
dorsements, the  holder  may  fill  up  the  first  one 
of  them  to  himself,  or  may  deduce  his  title 
through  all  of  them.®  The  holder  of  a  pro- 
missory note  indorsed  in  blank  may  fill  it  up 
with  any  contract  consistent  with  the  character 
of  an  indorsement.'  It  is  not  essential  to  the 
validity  of  these  written  transfers  that  they  be 
on  the  back ;  they  may  be  on  the  face  of  the 
bill.K  All  payees  of  a  bill  or  note  must  join  in 
the  indorsement.*'  There  is  no  legal  limit  to 
the  number  of  indorsements.  A  misspelling 
will  not  necessarily  avoid  an  indorsement.* 
Neither  indorsement  nor  acceptance^  are  com- 
plete before  delivery  of  the  bill.'' 

Liability  of  an  Indorser.  Every  indorser 
of  a  bill  is  in  the  nature  of  a  new  drawer,'  and 
is  liable  to  every  succeeding  holder  in  default 
of  acceptance  or  payment  by  the  drawee.  But 
a  man  may  indorse  a  bill  without  personal 
responsibility,  by  expressing  on  his  indorse- 
ment that  it  is  made  with  this  qualification,  that 
he  shall  not  be  liable  on  default  of  acceptance 
or  payment  by  the  drawee.  An  indorsement 
"  without  recourse,"  or  at  the  indorsee's  "  own 
risk,"  will  not  expose  the  indorser  to  any  lia- 
bility." While  these  words,  or  any  words 
which  convey  the  same  meaning,  protect  the 
indorser  from  any  demand  on  him,  they  con- 
vey to  the  indorsee  the  paper  itself,  with  all  the 
negotiable  qualities,  in  the  same  way  as  an  in- 
dorsement with  no  words  of  restriction  or  ex- 
ception would  do ;°  but  without  these  the  in- 
dorser is  liable  for  the  whole  amount."  A 
party  transferring  a  bill  may  also  decline  per- 
sonal responsibility,  by  converting  an  existing 
blank  indorsement  into  a  special  one  in  favor 

6  Dowl.  63  ;  6  C.  B.  336.  c-12  Mod.  193 ;  i  Salk.  126. 
<l-2  Camp.  442.  e-8  Pick.  48:  11  Id.  316;  12  Mass. 
78.  f-7  Cowen,  336 ;  2  Penn.  St.  911  ;  6  Harr.  &  Johns. 
282;  II  Johns.  52  ;  i  Mo.  67  ;  11  Mass.  436;  14  Pick. 
385  ;  15  Mass  436  ;  4  Watts,  448  ;  2  South.  821 ;  1  Denio, 
367;  2  Humph.  346;  4  Ired.  266.  jf-i6  East.  6.  I1-3 
McLean,  94  ;  2  Doug.  653  ;  5  Monroe,  172.  But  see  for 
a  disregard  of  this  rule  in  reference  to  a  payee  whose 
name  was  left  in  the  note  by  mistake,  6  How.  190.     i-2 

C.  &  M.  589;  I  Tyr.  415,  S.  C.    J-s  B.  &  Aid.  474;  i 

D.  &  Ry.  38,  S.  C.  k-5  Price.  428 :  3  P.  &  D.  174  ;  12 
Ad.  &  El.  455;  I  M.  &  W.  ^,69;  Bayley  Bills  (6  Ed.) 
137.  1-2  C.  M.  &  R.  441 :  5  Tyrw.  107,  S.  C;  «  M.  & 
W  317;  5  Dowl.  460;  1  M.  &  H.  44,  S.  C.  111-3  Mass. 
225;  12  Id.  14;  5  Met.  201;  33  Me.  424.  n-^  Barr. 
468;  5  Met.  201.    0-7  Taunt.  iSQ. 


BILLS,  BONDS,  AND  NOTES. 


«S5 


of  his  transferree.P  A  bill  may  be  indorsed  con- 
ditionally,  so  as  to  impose  on  the  drawee,  who 
afterward  accepts,  a  liability  to  pay  the  bill  to 
the  indorser  or  his  transferrees  in  a  particular 
event  only.  An  indorsement  admits  the  signa- 
ture and  capacity  of  every  prior  party.i  The 
striking  out  of  an  indorsement  by  mistake  will 
not  discharge  the  indorser.""  Nor  the  strik- 
ing out  by  mistake  of  the  acceptance.'  But  the 
striking  it  out  by  design  will.  In  an  action  by 
the  holder  of  a  note  against  an  indorser,  the 
plaintiff  cannot  be  permitted  to  strike  out  the 
name  of  any  indorser  prior  to  the  defendant.* 
"When  a  bill  is  returned  to  the  first  indorser 
after  protest,  he  may  strike  out  his  indorsement, 
though  it  be  in  full,  and  maintain  an  action  in 
his  own  name."  A  holder  of  a  bill,  with  sev- 
eral indorsements  in  blank,  may  strike  out  all 
the  indorsers'  names  after  the  first,  and  write 
over  the  first  indorser's  name  an  assignment  to 
himself.'' 

Of  a  person  transferring  by  deliv- 
ery. A  transfer  by  mere  delivery,  without  in- 
dorsement, of  a  bill  of  exchange  or  promissory 
note  made  or  become  payable  to  bearer,  does  not 
render  the  transferrer  liable  on  the  instrument 
to  the  transferree.  It  is  a  general  rule  that  the 
transferrer  is  not  even  liable  on  the  considera- 
tion, if  the  bill  or  note  so  transferred  by  deliv- 
zry,  without  indorsement,  turn  out  to  be  of  no 
value  by  reason  of  the  failure  of  the  other  par- 
ties to  it.  For  the  sending  to  market  a  bill  or 
note  payable  to  bearer  without  indorsing  it,  is 
prima  facie  a  sale  of  the  bill ;  and  there  is  no 
miplied  guaranty-of  the  solvency  of  the  maker, 
or  any  other  party.^  Such  seems  to  be  the  gen- 
eral rule  governing  the  transfer  by  delivery,  not 
only  of  ordinary  bills  of  exchange  and  promis- 
sory- notes,  but  also  of  bank  notes.  Nor  is 
there  any  hardship  in  such  a  rule,  for  the  rem- 
edy against  the  transferrer  may  always  be  pre- 
served by  indorsement  or  by  special  contract. 
The  rule,  however,  is  not  without  exceptions. 
If  instead  of  cash  the  creditor  consents  to  take 
notes,  this  is  a  favor  to  the  debtor,  and  it  will 
thence  be  inferred,  in  absence  of  evidence  to 
the  contrary,  that  the  notes  were  not  to  be  in 
payment,  if  they  turn  out  to  be  of  no  value 
without  the  fault  of  the  creditor.  A  bill  of  ex- 
change or  promissoiy  note,  either  of  a  debtor  or 
any  other  person,  is  not  payment  of  a  precedent 
debt,  unless  it  be  so  expressly  agreed.''  Giving 
a  creditor  a  bank  check  is  not  payment.?  But 
if  the  bill  or  note,  made  or  become  payable  to 
bearer,  be  delivered  without  indorsement,  not 
in  payment  of  a  pre-existing  debt,  but  by  way 

p-See  ante,  q-i  Ld.  Raym.  443;  la  Mod.  244;  i 
Salk.  127;  2  Barnard,  82  :  2  Camp.  182  ;  Holt.  N.  P. 
R.  550;  3  B.  &  C.  280;  5  D.  &  R.  214,  S.  C.  r-3  B.  & 
C.  428;  5  D.  &  R.  403,  S.  C.  8-15  East.  17;  2  B.  & 
Ad.  757.  t-8  Porter  (Ala.)  360.  n-3  Wheat.  183; 
Paine,  156;  i  Sumn.  480.  v-5  Munfordf,  388 ;  Pet.  C. 
C.  171 :  3  Marsh,  158.  w-6  B.  C.  373  ;  i  C.  &  M.  637. 
X-s  Johns.  68  ;  2  Watts,  121  ;  9  Id.  280;  9  Johns.  310  ; 
2Hali,  547;  Co.xe,8s;  9  Conn.  23;  6  Cranch.  253  ;  2 
Bailey,  574 ;  i  Cowen,  359  ;  2  Southard,  765  ;  2  A.  K. 
Marsh,  277;  8  Conn.  472  ;  i  Doug.  507;  3  McL.  265;  7 
Hill,  128;  2  Rich.  241  ;  9  Mo.  59  :  5  Barb.  S.  C.  398. 
y-2  Pick.  204;  4  Johns.  296;  7S.  &R.  116;  i  Hall,  56; 
Id.  78 ;  fo  Wend.  602.      «-Per  Lord  Kenyon,  3  T.  R. 


of  exchange  for  goods  or  other  bills  or  notes,  or 
for  money  transferred  to  the  party  delivering 
the  bill,  at  the  same  time,  such  a  transaction  is 
a  .sale  of  the  bill  by  the  party  transferring  it, 
and  a  purchase  of  the  instrument  with  all 
risks  by  the  transferree.  It  is  extremely  clear, 
that  if  the  holder  of  a  bill  send  it  to  market 
without  indorsing  his  name  upon  it,  neither 
morality  nor  the  laws  of  the  country  will  com- 
pel him  to  refund  the  money  for  which  he  sold 
it,  if  he  did  not  know  at  the  time  that  it  was 
not  a  good  bill.'  A  transferrer  by  delivery, 
though  he  does  not  in  general  warrant  the  sol- 
vency of  the  maker  of  a  promissory  note  or  bill 
of  exchange,  does  warrant  that  the  bill  or  note 
is  not  forged  or  fictitious."  A  transferrer  by  de- 
livery cannot  be  liable  in  any  case  to  a  subse- 
quent transferree,  either  on  the  instrument  or 
the  consideration.''  But,  in  all  cases,  if  notes 
or  bills  are  transferred  as  valid,  when  the  trans- 
ferrer knows  they  are  good  for  nothing,  the  sup- 
pression of  the  truth  is  a  fraud,  and  he  is  liable. 
If  A.  could  show  fraud  or  knowledge  of  the 
maker's  insolvency  in  the  payer,  then  it  would 
be  wholly  immaterial  whether  the  notes  were 
taken  at  the  time  of  the  sale  or  afterward." 
The  doctrine  of  implied  warranty  in  sales  ap- 
plies to  the  sale  of  a  note,  so  that  one  who  sells 
an  indorsed  note  gives  an  implied  warranty  that 
the  indorsement  is  genuine.* 

Rights  of  the  Indorsee.  A  transfer  by 
indorsement  vests  in  the  indorsee  a  right  of 
action  against  all  the  parties  whose  names  are 
on  the  bill,  in  case  of  default  of  acceptance  or 
payment ;  and  against  an  innocent  indorsee  for 
value,  no  prior  party  can  set  up  the  defence  of 
fraud,  duress,  or  absence  of  consideration.*  If 
a  bill  be  reindorsed  to  a  previous  indorser,  he 
has,  in  general,  no  remedy  against  the  interme- 
diate parties,  for  they  would  have  their  remedy 
over  against  him,  and  the  result  of  the  actions 
would  be  to  place  the  parties  in  precisely  the 
same  situation  as  before  any  action  at  all.'  But 
where  the  holder  has  previously  indorsed,  and 
the  subsequent  intermediate  indorser  has  no 
right  of  action  or  remedy  on  that  previous  in- 
dorsement against  the  holder,  there  are  cases  in 
which  the  holder  may  sue  the  intermediate  in- 
dorser.B  It  is  competent  for  an  indorser  of  a 
note,  on  again  coming  into  possession  of  the 
note,  to  maintain  an  action  thereon,  without 
producing  extrinsic  proof  of  ownership.""  If 
any  person  who  indorses  a  bill  of  exchange  to 
another,  whether  for  value  or  for  the  purpose 
of  collection,  comes  into  the  possession  thereof 
again,  he  is  regarded,  unless  the  contrary  af)- 

759,  and  see  5  Bing.  485  ;  3  M.  &  P.  130  S.  C.  ;  3  Ves. 
368  ;  I  Esp.  447  ;  I  L.  R.  442  ;  12  Mod.  241  ;  Com.  57 ; 
15  East.  7 ;  10  Ves.  204 ;  5  Taunt.  488 ;  j  Marsh,  157,  S. 
C. :  7  T  R.  64  :  6  B.  &  C.  373  :  i  C.  &  M.  637.  a-5 
Taunt.  489;  I  Marsh.  157,  S.  C.  ;  i  Marsh.  155;  5 
Taunt.  495;  Ry.  &  M.  49;  6  Mass.  321  ;  Id.  182;  t 
Johns.  445  ;  Story  Notes,  p.  123.  b-2  Sch.  &  L.  112. 
c-6  B.  &  C.  373  :  9  D.  &  R.  391,  S.  C. ;  3  T.  R.  759. 
«l-2  Bailey,  385;  11  G:i  142.  e-Ante,  Consideration. 
f-4  T.  R.  470;  2  B.  &  C  483  :  3  D.  &  R.  650.  ar-is  L. 
J.  108  Exch. ;  15  M.  &  W.  208,  S.  C. :  16  M.  &  W.  834; 
18  L.  J.  ;  65  C.  P.  ;  19  L.  J.  ;  Q.  B.  400.  And  to  reply 
to  the  facts  is  no  departure.  Id.  Story  notes,  j  476.  ll- 
9  Porter,  366;  7  Cranch.  159;  3  Wheat.  17a. 


158 


BILLS,  BONDS,  AND  NuTES. 


pear  in  evidence,  as  the  bona  fide  holder  and 
proprietor  of  such  bill,  and  is  entitled  to  re- 
cover, notwithstanding  there  may  be  on  it  one 
or  more  indorsements  in  full  subsequent  to  the 
one  to  him,  without  producing  any  receipt  or 
indorsement  back  from  either  of  such  indorsers, 
whose  names  he  may  strike  from  the  bill  or  not, 
as  he  may  think  proper."' 

Where  a  bill  or  note  is  merely  indorsed  to 
another  and  deposited  with  him  as  a  trustee, 
he  can  only  use  it  in  conformity  with  the  stipu- 
lations on  which  he  became  the  depositary  of 
it.  The  trust  may  be  indorsed  on  the  bill  it- 
self by  a  restrictive  indorsement,  or  a  restrictive 
uirection  appended  to  the  payee's  name,  so 
that  into  whose  hands  soever  the  bill  may 
travel,  it  will  carry  a  trust  on  the  face  of  it.J 
The  following  have  been  held  restrictive  di- 
rections or  indorsements :  "  The  within  must  be 
credited  to  A.  B."''  "  Pay  to  A.  B.,  or  order, 
for  my  use."  "  Pay  to  A.  B.  for  my  account." 
"  Pay  to  A.  B.  only." 

The  omission  of  the  words  "  or  order  "  in  a 
special  indorsement  will  not  restrain  the  nego- 
tiability of  a  bill.' 

Of  Transferree  by  Delivery.    The 

indorsee  of  a  bill  payable  to  order  and  not 
made  payable  to  bearer  by  a  blank  indorse- 
ment, has  no  right  to  the  bill,  either  so  as  to 
retain  it  against  the  real  owner,  or  to  sue  any 
party  upon  it  unless  the  indorser  had  a  right  to 
indorse."  Whereas,  if  a  check,  bill,  or  note 
be  made,  or  have  become,  payable  to  bearer, 
the  title  of  the  holder,  both  as  against  the 
former  holder,  on  the  one  hand,  and  the  maker, 
acceptor,  or  indorser,  on  the  other,  is  not 
affected  by  any  infirmity  in  the  title  of  the 
transferrer,  provided  the  bolder  took  it  bona 
fide.  A  note  payable  to  A.,  or  bearer,  may  be 
negotiated  by  delivery  only,  even  if  it  be  in- 
dorsed by  A."  If  a  man  takes  honestly  an 
instrument  made  or  become  payable  to  bearer, 
he  has  a  good  title  to  it,  with  whatever  degree 
of  negligence  he  may  have  acted,  unless  his 
gross  negligence  induced  a  finding  of  fraud." 
Gross  negligence  may  be  evidence  of  bad 
faith,  but  it  is  not  the  same  thing." 

Transfer  under  peculiar  circumstances. 
An  indorsement  may  be  made  either  before  or 
after  acceptance.  If  any  bond,  note,  or  bill 
of  exchange  is  indorsed  or  delivered  after 
the  day  on  which  it  is  made  payable,  and  the 
indorsee  may  institute  an  action  thereon, 
against  the  maker,  drawer,  or  obligor ;  the  de- 
fendant will  be  allowed  to  set  up  the  same 
defence  that  he  might  have  done  had  the  same 
action  been  instituted  in  the  name  and  for  the 

1-Id.  Per.  Livingston,  J.  See  13  Conn.  412.  J-i  Atk. 
247;  2  Burr.  1227;  I  Bl.  R.  295,  S.  C. ;  Doug.  615; 
Carthew,  5 ;  2  Vent.  307,  S.  C;  7  Taunt.  100  ;  i  Moore, 
543,  S.  C;  8  Taunt.  loo;  8  B.  &  C.  622:  5  Bing.  515; 
3  Y.  &  J.  220,  S.  C;  I  Raym.  160;  15  Wend.  362.  It- 
Doug.  615  ;  2  Burr.  1227 ;  Carth.  5 ;  2  Vent.  307,  S.  C; 
7  Taunt.  100;  I  Moore.  543,  S.  C.  I-Com.  Rep.  411 ; 
I  Stra.  557 ;  2  Burr.  1216  ;  i  Bl.  R.  295,  S.  C.  m-*  T. 
R.  a8.  n-5  Pick.  526.  0-4  Ad.  &  El.  870;  6  N.  & 
M.  372,  S.  C;  10  Ad.  &  El.  874 ;  2  P.  D.  579,  S.  C:  5 
B.  &  Ad.  1098 ;  3  N.  &  M.  188 ;  5  B.  &  Ad.  909  ;  3  N. 
&  M.  «57,  S.  C;  I  C.  M.  &  R.  855;  5  Tyr.  355,  S.  C; 


use  of  the  person  to  whom  the  bond,  note,  or 
bill  was  originally  made  payable. 

After  a  bill  or  note  is  due,  it  comes  disgraced 
to  the  indorsee,  and  it  is  his  duly  to  make  in- 
quiries concerning  it.  If  he  takes  it,  though 
he  give  a  full  consideration  for  it,  he  takes  it 
on  the  credit  of  an  indorser,  and  subject  to  all 
the  equities  with  which  it  may  be  incumbered.' 
An  indorsee  of  an  overdue  bill  or  note  is  liable 
to  such  equities  only  as  attach  on  the  bill  or 
note  itself,  and  not  to  claims  arising  out  of  col- 
lateral matters.i  The  same  rule  applies  ta^ 
checks  transferred  a  long  time  after  they  are 
issued,  for  a  check  is  payable  immediately,  and 
the  holder  keeps  it  at  his  peril,  and  a  person 
taking  it  after  it  is  due  takes  it  also  at  his  peril.' 
A  promissory  negotiable  note,  payable  on  de- 
mand, unless  transferred  within  a  reasonable 
time,  will  be  considered  overdue  and  dishon- 
ored.' The  law,  in  the  absence  of  any  evi- 
dence on  the  subject,  presumes  a  transfer  to 
have  been  made  before  the  bill  was  due.*  In 
the  absence  of  all  proof  as  to  the  time  when  a 
note  was  indorsed,  the  court  will  presume  that 
it  was  indorsed  while  current." 

If  any  such  bond,  note,  or  bill  of  exchange 
is  indorsed  on  or  before  the  day  on  which 
the  same  is  made  payable,  and  the  indorsee 
institutes  an  action  thereon,  the  defendant 
may  give  in  evidence  on  the  trial  any  money 
actually  paid  on  such  bond,  note,  or  bill  of 
exchange,  before  the  same  was  indorsed  or 
assigned  to  the  plaintiff,  on  proving  that  the 
plaintiff  had  notice  of  the  said  payment  before 
such  indorsement  was  made  and  accepted. 

After  the  death  of  the  holder,  his  personal 
representatives  should  transfer. 

PARTIES. 

Agents.  Whatever  a  man  may  do  by  him- 
self— except  by  virtue  of  a  delegated  authority 
— he  may  do  by  his  agent.'  Disqualifications 
for  contracting  on  one's  own  account  are  not 
disqualifications  for  contracting  as  an  agent  for 
another;  for  an  agent  is  a  mere  instrument. 
Therefore,  infants,  and  other  persons  laboring 
under  disabilities,  may  be  agents." 

No  particular  form  of  appointment  is  neces- 
sary to  enable  an  agent  to  draw,  accept,  or  in- 
dorse bills,  so  as  to  charge  his  principal.  He 
may  be  specially  appointed  for  this  purpose,  or 
may  derive  his  power  from  some  general  or 
implied  authority.  The  authority  of  an  agent 
to  transfer  a  note  by  indorsement  may  be  cre- 
ated verbally,  whether  the  principal  be  an 
individual  or  a  corporation,  and  such  authority 
may  be  inferred  from  facts  and  circumstances 

4Ad.&E.2i.  o-Id.  p-i  Camp.  19;  3T.  R.  80:  7ld. 
420;  iTaunt.224;  1  Stark.N.  P.483;  Bayl.  (6Ed.)  161; 
Chitty  (9  Ed.)  218 ;  Rose.  386  ;  10  B.  &  C.  558.  q-i  B. 
&  C.  558;  5  M.  &  R.  296,  S.  C;  I  C.  M.  &  R.  565:  8 
Dowl.  252;  I  Gale,  98,  S.  C;  4  Dowl.  76;  11  L.  J. 
Exch.  168:  9  M.  &  W.  506,  S.  C:  2  Barr.  103;  15  Mo 
399.  r-4  B.  &  C.  330 ;  6  D.  &  R.  445  :  2  C.  &  P.  1 1 . 
9  B.  &  C.  388;  4  M.  &  R.  411;  see  ante.  Check;  4 
Whart.  252.  8-2  Mich.  401.  t-7  C.  &P.  408;  4  Ad. 
&  El.  838;  6  N.  &  M.  294;  2  Jiarr.  &  W.  46,  S.  C;  12 
M.  &  W.  165.  n-17  Vt.  299;  8  N.  H.  334 ;  14  111.  51  ; 
25  Vt.  S53 :  19  Barb.  S.  C.  147.  V-9  Co.  75.  W-Co. 
Litt.  52,  a  ;  14  Ala.  469. 


BILLS,  BONDS,  AND  NOTES. 


m 


Connected  with  the  transaction."  When  a  per- 
son has  authority,  as  agent,  to  draw,  accept,  or 
indorse  a  bill  for  another,  he  should  do  it  in 
such  a  manner  as  to  show  that  it  is  the  act  of 
his  principal :  as  by  signing  it  "  A.  B.,  by  C. 
D.,"  his  agent."  Preceding  his  own  name  with 
words  that  express  the  fact  that  he  signs  for  an- 
other.* Subsequent  recognition  of  an  agent's 
acts  is  equivalent  to  previous  authority;  pro- 
vided the  agent,  when  he  acted,  assumed  to  act 
as  agent.y  An  authority  is  often  implied  from 
circumstances;  as,  if  an  agent  has  formerly 
been  in  the  habit  of  drawing,  accepting,  or  in- 
dorsing for  his  principal,  and  his  principal  has 
recognized  his  acts.* 

Corporations  carrying  on  business  under 
no  restraining  act  may  make  promissory  notes 
and  draw  bills  of  exchange  where  these  are 
the  usual  and  proper  means  to  accomplish 
the  purposes  of  their  organization ;  and  such 
notes  and  bills  are  presumed  legal  and  valid 
where  they  are  not  prohibited  by  law,  and  are 
received  in  good  faith.  But  are  invalid  where 
given  in  violation  of  law,  or  for  purposes  wholly 
foreign  to  those  for  which  the  coiporation  was 
created.* 

Drunkenness  when  total,  producing  a  com- 
plete, though  temporary,  suspension  of  reason,  is 
of  itself  a  defence  to  an  action  on  a  bill  or  note.'' 
The  person  intoxicated  has  no  agreeing  mind." 

Executors.  The  executor  of  a  deceased 
party  to  a  bill  or  note  has,  in  general,  the  same 
rights  and  liabilities  as  his  testator."*  There- 
fore, if  a  bill  be  indorsed  to  a  man  who  is  dead, 
by  a  person  ignorant  of  his  death,  that  will  be 
an  indorsement  to  the  personal  representative 
of  the  deceased.*  On  the  death  of  the  holder 
of  a  bill  or  note  his  executors  or  administrators 
may  indorse  ;'  and  an  indorsement  by  the  exec- 
utors or  administrators  is,  for  all  purposes,  as 
effectual  as  an  indorsement  of  the  deceased.s 
Presentment,''  notice  of  dishonor,  and  payment, 
should  be  made  by  and  to  the  executor,  or  ad- 
ministrator, in  the  same  manner  as  by,  or  to,  the 
deceased.* 

Infants  can  make  a  binding  contract  for 
necessaries  only.  And  an  infant  can  never  bind 
himself  even  for  necessaries  when  he  has  a 
parent  or  guardian  who  supplies  his  wants.J 
What  are  considered  necessaries''  depends  upon 
the  rank  and  circumstances  of  the  infant  in  the 
particular  case.     All    his  other  contracts  are 

T-3J  Me.  225.  ■w-2  Stra.  ss  ;  4  R.  I.  30.  x-Chitty 
Bills,  33.  y-Viners  Abr.  Ratih.  5  B.  &  C.  909 ;  Eng. 
C.  L.  R.  vol.  II :  8  D.  &  R.  64^;  10  B.  &  C.  288  ;  Eng. 
C.  L.  R.  vol.  21 ;  6  Man.  &  G.  236  ;  Eng.  C.  L.  R.  vol. 
46.  «-3Esp.  60;  I3M,&W.  598;  Lloyd  &  Welley's 
Mer.  Cas.  178.  a-5  Blackf.  250;  7  Ohio,  31 ;  i  B.  Mon. 
14;  15  Johns.  44;  9  Paige,  470;  2  Hill,  265;  9  Ohio, 
291;  10  Gill  &  Johns.  299  ;  3  Wend.  94;  tqN.Y.  37; 
18  Id.  240.  b-3  Camp.  33,  454;  13  M.  &  W.  623.  At 
least  by  a  person  who  had  notice.  2  Exch.  287 ;  4 
E.xch.  17,  S.  C.  C-13  M.  &  W.  623;  3  Camp.  33; 
Starltie,  126;  10  Ind.  109  ;  5  Cal.  412  ;  8  Ohio.  214;  2 
Vt.  297  ;  6  Watts,  139 ;  3  Cowen,  445  ;  2  Paige  Ch.  30  ; 
22  Wend.  526.  «l-2  P.  Wms.  196;  i  C.  B.  402.  e-5  B. 
&  Aid.  204;  Eng.  C.  L.  R.  vol.  7.  f-3  Wils.  i ;  2  Stra. 
1260,  S.  C.  e-2  Jac.  &  Walker,  243  ;  13  S.  &  Marsh, 
373  ;  II  Vt.  604  ;  5  Oilman,  474  ;  i  Smith  (Ind.)  170;  7 
S.  &  Marsh,  49?;  6. J.  J.  Marsh,  446.    ti-Malloy,  3, 10. 


considered  voidable  and  void.  A  distinction 
usually  of  importance  :  1st,  because  a  void- 
able contract  may  be  afterward  affirmed,  but  a 
contract  absolutely  void  is  incapable  of  confirma- 
tion ;  and,  2d,  because  a  void  contract  may  be 
treated  by  all  parties  as  a  nullity ;  but  contracts 
voidable  can  only  be  avoided  by  the  contract- 
ing party  himself.  An  infant's  contract  on  a 
bill  or  note  is  voidable  only,  and  his  liability 
may  be  established  by  ratification  after  full  age.' 
The  confirmation  or  ratification  must  be  dis- 
tinct, and  with  a  knowledge  that  he  is  not  lia- 
ble on  the  contract.  A  mere  acknowledgment 
of  a  debt,  or  a  payment  of  a  part  of  it,  will  not 
support  an  action  on  such  a  contract."  When 
an  infant  indorses  negotiable  notes  or  bills,  he 
does  not  pass  any  interest  in  them  as  against 
himself;  his  act  is  voidable,  but  neither  the  ac- 
ceptor nor  subsequent  indorsers  can  allege  his 
infancy  to  evade  their  liability  ;°  nor  can  the 
drawer  of  a  bill  set  up  the  infancy  of  a  payee 
and  indorser  as  a  defence  to  an  action  thereon 
against  himself."  An  infant  may  sue  on  a  bill,P 
but  he  sues  by  his  guardian  or  next  friend,'  and 
payment  should  accordingly  be  made  to  him. 

Parties  contracting  with  an  infant  assume  all 
the  inconveniences  incident  to  the  protection 
which  the  law  allows  him. 

Married  Women  are  in  general  restricted 
by  statute,  and  bargain,  sell,  and  convey  their 
real  and  personal  property,  and  enter  into  con- 
tracts with  reference  to  the  same,  subject  to  such 
restrictions.'' 

NoN  Compotes  Mentis.  It  is  a  general 
rule  of  universal  law  that  the  contracts  of  a 
lunatic,  an  idiot,  or  other  persons  non  compos 
mentis  from  age  or  personal  infirmity,  are  ut- 
terly void."  Sanity  is  to  be  presumed,  and  the 
burden  of  proof  is  on  the  party  denying  it. 
But  after  a  general  derangement  has  been 
shown,  the  burden  is  upon  the  other  party  to 
show  the  sanity  at  the  time  of  doing  the  par- 
ticular act.' 

Partners.  The  law  presumes  that  each 
partner  in  trade  is  intrusted  by  his  co-partners 
with  a  general  authority  in  all  partnership  af- 
fairs. Each  partner,  therefore,  by  making 
drawing,  indorsing,  or  accepting  negotiable  in- 
struments," in  the  name  of  the  firm,  and  in  the 
course  of  the  partnership  transactions,  binds  the 
firm,  whether  he  signs  the  name  of  the  firm,  or 
signs  by  procuration,  or  accepts,  in  his   own 

1-12  Ala.  193.  k-i3  M.  &  Wels.  252.  J-4  Watts,  80; 
16  Mass.  28  ;  2  Paige,  419  ;  10  Mo.  451.  l-i  Exch.  laa; 
I  Met.  559 ;  i7Wend.4i9;  sB.Mon.  72;  3Wend.479; 
4  Chand.  39;  2  N.  H.  51  ;  8  Ala.  725;  2  Bailey,  114;  3 
N.  H.  314;  10  Id.  194;  I  Denio,  io8  ;  7  Ired.  258;  x 
Pick.  202  ;  2  Hill,  120  ;  i  B.  Mon.  289.  111-3  Barr,  428; 
3  Rich.  164  ;  9  Mass.  62  ;   10  Id.  137  ;  14  Id.  457  ;  i  Pick. 


221 ;  4  Id.  448  ;    12  Conn.  550  ;    11  S.  &  R.  305  ;    10  N. 

"      .  ,  '"      _ "      'KS,  535;    19 

Wend.  301 ;    16  Ala.  186.      n-4  Esp.  187;    38  Me.  450. 


H.  194-220;  9  Id.  436;    2  Hill,  120;  2  Haw! 


0-4  Taunt.  458  ;  Chitty  Bills,  20,  200 ;  15  Mass.  272.  p- 
2  Maiile  &  S.  205  ;  4  East.  210;  6  Taunt.  118;  5  B.  & 
C.  501  ;  8  D.  &  C.  163,  S.  C.  q-Myer's  Code,  J^  53- 
57  and  notes.  r-See  Married  Womkn,  Personai- 
Relations.  s-Inst.  Lib.  3,  tit.  20,  j.  8 ;  Dig.  Lib.  50, 
tit.  I,  5,  40,  124.  t-5  Johns.  144;  8  Humph.  145.  u-7 
T.R.  207;  I  Salk.  126;  I  Ld.  Raym.  175,8.0.;  2 
Vern.  277;  2  Esp.  731  ;  7  East.  210;  sSmith,  99,  S.  C. ; 
13  East.  17s. 


i6o 


BILLS,  BONDS.  AND  NOTES. 


name,  a  bill  drawn  on  the  firm.'  Partners  are 
bound  by  a  note  given  by  one  party  in  the 
partnership  name,  although  in  violation  of  pri- 
vate instructions  from  one  partner  to  another.* 
A  partner  has  no  right  to  bind  his  co-partner 
by  a  note,  except  in  a  partnership  transaction.'' 
It  is  binding,  nevertheless,  in  the  hands  of  a 
bona  fide  holder,  without  notice.^  But  an 
action  cannot  be  maintained  against  the  firm 
where  a  partner  has  signed  his  name  only  to 
the  instrument,  though  the  proceeds  were  in 
reality  applied  to  partnership  purposes,'  unless 
the  name  of  the  signing  partner  were  also  the 
name  of  the  firm."  But  a  partner  cannot  bind 
his  co-parlner  by  a  joint  and  several  note.''  The 
firm  is  not  lialile  where  the  partner  varies  the 
style  of  the  firm,  unless  there  be  some  evidences 
of  assent  by  the  firm  to  the  variance,  or  unless 
the  name  used  though  inaccurately  yet  sub- 
stantially describe  the  firm."  Even  if  a  partner 
exceed  his  authority,  and  pledge  the  partnership 
credit  on  a  negotiable  security  for  his  own  pri- 
vate advantage,  his  co-partners  are  liable.  But 
if  a  party  taking  a  bill  or  note  of  the  firm  knew, 
at  the  time,  that  it  was  given  without  the  con- 
sent of  the  other  partners,  he  cannot  charge 
them.*  And  the  taking  of  a  joint  security  for 
a  separate  debt  raises  a  presumption  that  the 
creditor  knew  it  was  given  without  the  concur- 
rence of  the  other  partners.*  If  there  existed 
fraud  and  collusion  between  the  partner  and 
his  creditor,  the  bill  is  void  in  the  hands  of  the 
fraudulent  holder,  not  only  against  the  partner- 
ship but  against  other  parties  to  the  bill.'  But 
securities  which  may  be  unavailing  against  the 
firm  when  in  the  hands  of  the  party  privy  to 
the  transaction,  will,  nevertheless,  bind  them 
when  in  the  hands  of  an  innocent  indorsee  for 
value.* 

A  dormant  partner,  whose  name  does  not 
appear,  is  bound  by  bills  drawn,  accepted,  or 
indorsed  by  his  co-partners  in  the  name  of 
the  firm> 

Though  a  man  really  have  no  interest  in  a 
firm,  yet  if  he  suffer  himself  to  be  held  out  to 
the  world  as  a  member  of  it,  he  thereby  author- 
izes those  to  whom  he  has  been  held  out  to  treat 
him  as  a  contracting  party.'     To  make  a  man 

V-i  Camp.  384 ;  16M.&W.  879.  w-i  A.K.  Marsh,i8i; 
7  Mo.  i;  14  Ohio,  592.  x-i  A.  K.  Marsh,  257.  y-i 
Bailey,  146;  2  Penn.  160:  i  Chip.  438;  5  Pick.  412 ;  3 
Id.  5 :  15  Wend.  364  ;  10  Id.  461  ;  9  Vt.  252  ;  4  S.  &  R. 
397:  3  N.  H.  386;    2  Dev.  &  Bat.  535  ;  i  Stewart,  526; 

5  Watts,  454  ;  4  Johns.  251  ;  5  Cowen,  688  ;  3  Wend. 
1415;  10  Id.  461 ;  3  Rich.  307  ;  22  Penn.  St.  21.  z-2 
Camp.  308 ;  1  Rose,  61  :  15  East.  7.  a-8  B.  &  C.  427  ; 
Eng.  C.  L.  R.  vol.  15;  2  Man.  &  Ry.  459;  S.  C.  i 
Buck.  100;  7  East.  210;  3  Smith,  192,  S.  C.  b-4  Bine. 
a8;  Eng.  C.  L.  R.  vol.  13:  12  Moore,  125;  2  C.  &  P. 
401,  S.  C.  C-i  B.  &  C.  146 ;  Eng.  C.  L.  R.  vol.  8 :  2  D. 

6  K.  281 ;  II  Ad.  &  E.  339;  Ene.  C.  L.  R.  vol.  39  ;  3 
Fer.  &  D.  187,  S.  C.  cl-i  Stark,  202;  2  Esp.  524; 
Pcake,  61  :  7  M.  &  W.  264 ;  9  B.  &  C.  532 ;  12  East. 
317 ;  7  M.  &  G.  637.  e-8  Ves.  540  :  2  Esp.  731  ;  2  Stark. 
347;  2  Gill  &  Johns.  118.  f-13  East.  175.  g-ii  Johns. 
514;  5  Blackf.  210;  7  Ala.  19;  12  B.  Mon.  11;  6  Hill, 
IT5:  2  Ala.  502  ;  3  Hill,  279:  2  Watts  &  Serg.  152;  4 
How.  404;  II  N.  H.  505;  14  Wend.  133;  11  Barb.  S. 
C  312;  16  Penn.  St.  399;  11  Wend.  75;  6  Blackf.  387; 
6  Hill,  114;  3  Ircd.  L.  238;  2  Rich.  587;  i  Penn.  S. 
417;  5  Conn.  574;  7  Wend.  158;  2  Cush.  309 ;  7  S.  & 
Marsh.   192;  13  Id.  112;  31  Me.  454;  17  Ala.  145;  4 


liable  as  a  nominal  partner  he  must  have  been 
held  out  as  such  to  the  plaintiff.J 

After  a  dissolution,  the  ex-partners  have  no 
longer  power  to  bind  each  other  by  bills  oi' 
notes  to  persons  aware  of  the  dissolution."  But 
notwithstanding  a  valid  dissolution  of  an  osten- 
sible partnership  by  an  agreement  between  the 
partners,  still  the  authority  of  ex-partners  to 
bind  each  other  by  bills,  notes,  or  other  con- 
tracts, within  the  scope  of  the  former  partner- 
ship, continues  till  the  dissolution  be  duly 
notified.'  When  dissolution  is  by  death,  notice 
is  not  necessary  to  protect  the  estate  of  the 
deceased.™ 

PRESENTMENT  AND  PAYMENT. 

Acceptance.  Acceptance  is  an  engagement 
by  the  drawee  to  pay  the  bill  when  dUe°  in 
money.  Having  funds  in  his  hands  belonging 
to  the  drawer,  it  is  his  duty,  according  to  mer- 
cantile usage,  to  honor  the  bill  by  accepting  it.» 
If  he  has  been  supplied  with  funds  expressly  to 
meet  the  bill,  or  have  money  on  deposit  under 
such  circumstances  as  to  imply  a  contract  on  his 
part  to  accept  the  draft,  he  owes  it  as  a  duty  to 
the  drawer,  to  accept  the  bill ;  just  as  a  bank  or 
banker  is  bound  to  honor  and  pay  checks  drawn 
by  customers  on  a  cash  account. p  Without  ac- 
ceptance a  banker  is  liable  to  his  customers,  if, 
having  sufficient  funds,  he  neglects  to  pay  his 
checks.  A  bill  can  only  be  accepted  by  the 
draweeji  except  for  honor.'  If  the  drawee  be 
incompetent  to  contract,  as,  for  example,  by 
reason  of  infancy,  etc.,"  the  bill  may  be  treated 
as  dishonored.  Acceptance  by  one  partner 
binds  the  co-partner.*  But  a  bill  drawn  on 
several  persons  not  in  partnership  should  be 
accepted  by  all,  and,  if  not,  may  be  treated  as 
dishonored."  Acceptance  will,  however,  be 
binding  on  such  as  do  make  it.'  There  cannot 
be  two  or  more  separate  acceptors  of  the  same 
bill  not  jointly  responsible.  There  is  no  cus- 
tom or  usage  of  merchants,  according  to  which, 
if  a  bill  be  drawn  upon  one  man,  it  may  be 
accepted  by  another.  A  bill  must  be  accepted 
by  the  drawee,  and  failing  him  by  some  one  for 
the  honor  of  the  drawer.  There  cannot  be  a 
series  of  acceptors."  Acceptance  after  the  time 
of  payment  is  binding.'' 

H\)!,  259:  2  Ala.  502;  15  Wend.  364;  S.  C.  18  Wend, 
4ViU;  2  Wend.  251,  S.  C;  22  Wend.  324;  14  Me.  271; 
16  Id.  416;  2  Carter  (Ind.)  488;  23  Wend.  311.  li-10 
B.  &  C.  288 ;  2  B.  &  Ad.  53 ;  7  East.  210 ;  3  Smith,  199, 
S.  C  l-io  B.  &  C.  20.  J-io  B.  &  C.  141;  Eng.  C,  L. 
R.  vol.  21 ;  I  M.  &  R.  126,  S.  C.  I1-4  B.  &  Ad.  172 : 
I  Nev.  &  M.  104,  S.  C:  2  Johns.  300;  8  Md.  399:  6 
Ihd.  304  ;  4  Ohio  St.  2  ;  33  N.  H.  351.  I-33  Me.  366  : 
6  Barb.  S.  C.  244;  16  B.  Mon.  355;  6  Johns.  144;  8 
Ind.  215;  33  Barb.  458.  in-3  Mer.  619.  n-4  East.  72. 
The  drawee  is  therefore  no  party  to  the  instrument  until 
he  accepts  the  bill,  Chitty  Bills,  281.  o-But  he  is  not 
legally  bound  to  do  so,  any  more  than  a  debtor  is  bound 
to  give  his  creditor  a  promissory  note  for  the  amount 
due.  Story  Bills,  3J  113,117,  238.  p-i  Barn.  &  Adol. 
415;  20  Eng.  C.  L.  412.  q-Unless  he  has  recognired 
the  acceptance  as  his,  5  C.  B.  583.  r-B.  &  Ad.  114;  x 
L.  J.:  92  K.  B.;  13  L.  J.;  Q.  B.  305;  18  L.  J.  274.  %- 
Chitty  (9  Ed.)  283.  t-5  Hill,  232:  2  Id.  635;  Bailey 
Bills,  Ch.  6,  §  I  ;  Byles  Bills,  144  :  5  Day,  511.  a-Mar. 
16;  Holt,  5>Q7-  Marius,  64.  v-B.  N.  P.  270;  Bailey, 
58  ;  C.  P.  M.  T.  1850.  w-2  Camp.  447.  x-2  Green, 
tig;  I  Ld.  Raym.  364:  Id.  174;  '  Salk.  29,  S.  C;  S 
Tyr.  172  ;  I  C.  M.  &  R.  565 ;"  x  Gale,  98,  S.  C. 


BILLS,  BONDS,  AND  NOTES. 


i«i 


The  following  rules  are,  in  general,  observed 
in  regard  to  the  acceptance  of  bills  of  exchange : 

No  person  should  be  charged  as  an  acceptor 
of  a  bill  of  exchange,  unless  his  acceptance  is 
in  writing,  signed  by  himself  or  his  lawful  agent. 

If  such  acceptance  be  written  on  paper  other 
than  the  bill,  it  should  not  bind  the  acceptor, 
except  in  favor  of  a  person  to  whom  such  ac- 
ceptance shall  have  been  shown,  and  who,  in 
faith  thereof,  shall  have  received  the  bill  for  a 
valuable  consideration. 

An  unconditional  promise  in  writing  to  ac- 
cept a  bill  before  a  bill  is  drawn,  is  deemed  an 
actual  acceptance  in  favor  of  every  person  to 
whom  such  written  promise  shall  have  been 
shown,  and  who,  upon  the  faith  thereof,  shall 
have  received  the  bill  for  a  valuable  considera- 
tion. A  letter  written  within  a  reasonable  time 
before  or  after  the  date  of  a  bill,  intelligibly 
describing  it,  and  promising  to  accept  it,  is,  if 
shown  to  one  who  takes  it  on  the  credit  of  the 
letter,  a  mutual  acceptance  binding  on  the 
promisor  .y 

Every  holder  of  a  bill  presenting  the  same 
for  acceptance  may  require  that  the  acceptance 
be  written  on  the  bill,  and  a  refusal  to  comply 
with  such  request  should  be  deemed  a  refusal 
to  accept,  and  that  the  bill  may  be  protested 
for  non-acceptance. 

The  preceding  rules  should  not  be  construed 
to  impair  the  right  of  any  person  to  whom  a 
promise  to  accept  a  bill  may  have  bee»  made, 
and  who,  on  the  faith  of  such  promise,  shall 
have  drawn  or  negotiated  the  bill,  to  recover 
damages  of  the  party  making  such  promise,  on 
his  refusal  to  accept  such  bill. 

The  design  of  these  rules  is  to  discourage 
the  taking  of  such  acceptances  and  engage- 
ments to  accept ;  for  where  anything  less  than 
a  written  acceptance  on  the  bill  is  taken,  the 
instrument  is  left  incumbered  with  conditions 
and  qualifications  greatly  impairing  its  character 
as  a  negotiable  instrument.  The  acceptance 
must  be  in  writing,  and  must  be  signed  by  the 
acceptor  or  his  agent.*  The  usual  and  regular 
mode  of  making  an  acceptance  on  the  bill  is 
writing  the  word  "accepted"  and  subscribing 
the  drawee's  name.  According  to  the  law 
merchant,  any  words  written  by  the  drawee  on 
a  bill,  not  putting  a  direct  negative  upon  its  re- 
quest, as  "accepted,"  "presented,"  "seen," 
the  day  of  the  month,  or  a  direction  to  a  third 
person  to  pay  it,  is  prima  facie  a  complete  ac- 
ceptance.* The  acceptance  under  the  statute 
•must  be  signed,  but  the  signature  of  the  drawee 
written  across  the  face  of  the  bill  is  a  sutficient 
writing  and  signing.'' 

If  any  person  upon  whom  a  bill  of  ex- 
change is  drawn,  and  to  whom  the  same  is 

y-2  Gallison,  233 :  S.  C.  2  Wheaton,  66;  15  Johns. 
613:  I  Pet.  265;  2  Id.  i8i  ;  3  Mass.  i ;  9  Id.  55;  i 
Hall's  L.  J.  486 ;  2  Wend.  545 ;  5  Id.  414 ;  4  Peters, 
III ;  5  Hill,  433  ;  2  Green,  339  ;  2  Story,  213  ;  2  McLean, 
462:  8  Porter,  263:  3  Ala.  581.  z-5  Hill,  413:  S.  C.  7 
Hill,  577.     n-Bayley  Bills,  Ch.  6,  ?  i  ;  Story  Bills,  243 ; 


iAtk.6ii;  B.N.  P.  270;  1M.&R.190;  Anon.  Comb. 
401;  10  Johns.  207;  15  Id.  6.  b-2  Hill.  582.  c-Per 
Ld.  EUenborough,  2  Stark.  289.    d-13  Fairfield,  466. 


delivered  for  acceptance,  destroys  such  bill, 
or  fails  or  refuses,  within  twenty-four  hours 
after  such  delivery,  or  within  such  period  as 
the  holder  may  allow,  to  return  the  bill  ac- 
cepted or  non-accepted  to  the  holder,  is  deemed 
to  have  accepted  the  same.  The  person  on 
whom  a  bill  of  exchange  is  drawn,  when  it  is 
presented  to  him  for  acceptance,  ought  to  de- 
termine whether  he  will  accept  it  or  not ;  and 
if  he  determine  not  to  accept  it,  he  is  bound  to 
return  it,  for  the  party  is  entitled  to  the  imme- 
diate use  of  the  thing,  and  if  the  drawee  deprive 
him  of  the  use  of  the  instrument  by  destroying  it, 
he  is  liable  as  if  he  had  written  his  name  upon  it.* 

A  bill  drawn  upon  one  by  himself  is  con- 
sidered as  an  accepted  bill;*  so,  if  it  is  not  ad- 
dressed to  any  one,*  and  so  of  a  corporation.' 

The  holder  is  entitled  to  require  from  the 
drawer  an  absolute  engagement  to  pay  in 
money  according  to  the  tenor  and  effect  of  the 
bill,  unincumbered  with  any  condition  or  quaL- 
fications.  A  general  acceptance,  without  any 
express  words  to  restrain  it,  will  be  such  an  ab- 
solute acceptance.^  An  acceptance  varying 
from  the  tenor  of  the  bill,  either  in  the  time, 
the  sum,  the  mode,  or  place  of  payment,  is 
conditional. ■•  In  respect  to  the  sum,  acceptance 
for  a  part  of  the  amount  required  to  be  paid,  is 
good  according  to  the  custom  of  merchants 
and  binds  the  acceptor.'  So,  an  acceptance  to 
pay  at  a  different  time  or  place,  or  in  a  different 
manner  than  that  specified  in  the  bill,  binds 
the  acceptor  according  to  the  terms  of  his  en- 
gagement.J  The  conditional  acceptance  be- 
comes absolute  as  soon  as  its  condition  is  per- 
formed.* If  the  drawee  offer  a  qualified 
acceptance,  the  holder  may  either  refuse  or 
accept  the  offer.  If  he  mean  to  refuse  it,  he 
may  note  the  bill,  and  should  give  notice  to  the 
antecedent  parties.  If  he  intend  to  acquiesce 
to  it,  he  must  give  notice  of  the  nature  of  the 
acceptance  to  the  previous  parties,  and  obtain 
their  consent. 

Qualified  acceptances  are  of  two  kinds : 
conditional  and  partial,  or  varying  from  the 
tenor  of  the  bill.  Whether  an  acceptance  be 
conditional  or  not  is  a  question  of  Iaw.»  A 
verbal  condition  is  inadmissible  in  evidence  to 
qualify  the  absolute  written  engagement,  even 
between  the  original  parties.'  A  partial  or 
varying  acceptance  varies  from  the  tenor  of  the 
bill,  as  where  it  engages  to  pay  part  of  the  sum," 
or  to  pay  at  a  different  time  from  that  at  which 
the  bill  is  made  payable  by  the  drawer." 

The  liability  of  the  acceptor,  though  irre- 
vocable when  complete,"  does  not  attach  by 
merely  writing  his  name,  but  on  the  subsequent 
delivery  of  the  bill,  or  upon  showing  to  some 

e-Edw.  Bills,  416.  f-i  Dougl.  (Mich.)  193;  see  13 
Barb.  636.  In  legal  effect,  such  a  bill  is  a  promissory 
note,  I  M.  &  Ry.  120;  15  Barb.  274.  gr-i  T.  R.  i8s. 
h-Bayley  Bills,  Ch.  6,  §  1  :  3  Kent  Comm.  84.  1-Str. 
214;  6  Wend.  642.  j-ii  Mod.  190.  It-Cowp.  571;  4 
Camp.  393:  Str.  1211;  Minor,  173;  7  Greenl.  126:  1 
Miles,  294;  14  Barb.  186.  I-3  Camp.  57;  i  M.  &  W. 
374 ;  2  Gale,  29,  S.  C;  7  S.  &  Marsh,  244.  m-i  Stra. 
214.  ii-Malloy,  283;  II  Mod.  190.  0-4  Esp.  370; 
Bayley  Bills,  204. 


t6» 


BILLS,  BONDS,  AND  NOTES. 


person  interested  in  the  bill,  the  acceptance 
thereof.P  Hence,  if  the  drawee  has  written 
his  name  on  the  bill,  with  the  intention  to  ac- 
cept, he  is  at  liberty  to  cancel  his  acceptance 
at  any  time  before  the  bill  is  delivered,  or  at 
least  before  the  acceptance  is  shown.<i  Cancel- 
lation of  the  acceptance  by  mistake  made  by 
other  parties  does  not  destroy  the  bill.' 

The  acceptor  is  primarily  liable  to  pay  the 
bill ;  he  is  the  principal  debtor  to  the  holder, 
and  the  drawer  and  indorser  are  parties  liable 
on  his  default."  The  acceptor  of  a  bill  stands, 
for  most  purposes,  in  the  same  situation  as  the 
"maker  of  a  note.  The  acceptor's  liability  can 
only  be  discharged  by  payment,  or  other  satis- 
faction, by  release  or  by  waiver.'  The  liability 
of  an  acceptor,  though  complete,  may  be  dis- 
charged by  an  express  renunciation  of  his  claim 
on  the  part  of  the  holder."  Nothing  short  of  an 
express  discharge,^  founded  upon  a  good  con- 
sideration,* will  do.  The  cancellation  of  the 
acceptor's  name  by  the  holder  is  a  waiver  of 
the  acceptance.  Where  a  third  person  cancels, 
it  is  a  question  of  fact  whether  that  cancellation 
were  with  the  assent  of  the  holder.''  The 
liability  of  the  acceptor,  as  such,  will  be  also 
waived  or  extinguished,  by  taking  from  him  a 
co-extensive  security  by  specialty.  But  if  the 
new  security  recognize  the  bill  or  note  as  still 
existing,  it  is  not  extinguished.y  An  intentional 
alteration  of  a  bill  or  note  in  any  material  par- 
ticular, after  it  has  become  an  available  security, 
without  the  consent  of  the  parties  interested, 
cancels  or  destroys  the  instrument.*  Thus, 
altering  the  amount,  or  the  date  by  which  the 
time  of  payment  is  postponed,  or  the  place  of 
payment,  or  the  terms  of  the  acceptance,  avoids 
the  bill  or  note.* 

By  acceptance  the  drawee  admits  the  signa- 
ture and  capacity  of  the  drawer,  and  cannot, 
after  thus  giving  the  bill  currency,  be  admitted 
to  prove  that  the  drawer's  signature  was 
forged.**  An  acceptor  is  bound  to  know  the 
drawer's  handwriting,  and  cannot  resist  pay- 
ment to  a  iona  fide  holder,  though  the  bill  be 
a  forgery.*  It,  moreover,  admits,  and  so  does 
the  maker  of  a  promissory  note,  the  then 
capacity  of  the  payee,  to  whose  order  the  bill 
or  note  is  made  payable,  to  indorse. "^  If  the 
drawee  has  once  admitted  that  the  acceptance 
is  in  his  own  handwriting,  and  thereby  given 
currency  to  the  bill,  he  cannot  afterward  ex- 
onerate himself  by  showing  that  it  was  forged." 

p-S  B.  &  Aid.  474  ;  i  Dowl.  &  Ry.  38.  q-5  B.  &  Aid. 
474 :  I  D.  &  R.  78,  S.  C:  6  East,  109  ;  2  Smith,  337,  S. 
C.;  Marius,  20.  r-15  East.  17;  11  M.  &  W.  778.  s-2 
Burr.  674 ;  Dougl.  249 ;  8  Esp.  47 ;  6  B.  &  C.  442  ;  4 
Bing.  720.  t-See  infra,  n-i  Camp.  35.  v-Dougl. 
235 :  13  East.  430,  n.;  M.  &  W.  14 ;  2  Stark.  531 ;  2  C. 
&  P.  497;  Peake,  187;  Story  Bills,  3  266.  So,  a  right 
to  sue  the  drawer  may  be  waived,  i  Stark,  7;  2  Id.  340; 
Story  Bills,  ?  252  ;  15  L.  J.;  217  Ex.;  14  M.  &  W.  831, 
S.  C;  10  L.  J.;  Exch.  34  ;  3  D.  &  L.  506.  w-2  Stark. 
203  ;  I  Doug.  247 ;  Story  Bills,  ?  266.  x-9  B.  &  C.  365  ; 
4  M.  &  R.  287,  S.  C.  .y-3  B.  &  C.  208  :  5  D.  &  R.  259. 
«-6  Mass.  519:  35  Penn.  St.  80;  15  Mass.  136;  19 
Johns.  391,  and  cases  cited,  a-3  Yeates,  391  ;  3  Cranch. 
57;  4  N.  H.  455 :  19  Johns.  391 ;  i  M.  &  S.  735  :  22 
Eng.  L.  &  Eq.  208 ;  25  Id.  123.  b-3  Burr.  1354  ;  i  Bla. 
R.  390;  I  Camp.  82;  I  Bing.  N.  C.  436;  i  Scutt.  343; 


Presentment  for  acceptance.  If  a  bill 
of  exchange  be  drawn  payable  at  sight,  or  a 
certain  number  of  days  or  months  after  sight, 
or  after  demand,  presentment  is  necessary  in 
order  to  fix  the  time  when  it  shall  become  pay- 
able; and  the  law,  not  deeming  it  wise  or 
equitable  to  prescribe  a  fixed  period  within 
which  such  a  bill  is  tt  -.c  presented  for  accept- 
ance, so  as  to  chsige  ine  drawer  and  indor- 
sers,  declares  briefly  that  it  must  be  presented 
within  a  reasonable  time,  and  leaves  it  to  the 
court  to  oetermine  what  is  a  reasonable  time 
under  the  circumstances  of  each  particular  case.' 
The  law  does  not  fix  a  time  for  the  presentment 
of  bills  for  acceptance  where  they  are  drawn 
payable  on  or  after  sight ;  the  rule  in  such  cases 
is,  where  there  is  no  usage  of  trade,  that  the  bill 
must  be  presented  within  a  reasonable  time, 
which  is  a  mixed  question  of  law  and  fact,  to 
be  determined  by  the  jury  with  the  assistance 
of  the  judge. B  A  bill  payable  on  demand  must 
be  presented  within  a  reasonable  time,  or  the 
drawer  will  be  discharged. "^  Until  such  pre- 
sentment there  is  no  right  of  action  against  any 
party ;  and  unless  it  be  made  within  a  reason- 
able time,  the  holder  loses  his  remedy  against 
the  antecedent  parties.'  When  a  bill  is  dra.wn 
payable  a  specified  length  of  time  after  date,  or 
on  a  day  certain,  the  holder  need  not,  for  the 
purpose  of  charging  the  drawer  and  indorser, 
present  it  for  acceptance  before  it  becomes  due 
and  payable.! 

It  is  in  all  cases  advisable  for  the  holder 
of  an  unaccepted  bill  to  present  it  for  accept- 
ance without  delay ;  for,  in  case  of  acceptance, 
the  holder  obtains  the  additional  security  of 
the  acceptor,  and,  if  acceptance  be  refused,  the 
antecedent  parties  become  liable  immediately. 
If  accepted  the  holder  acquires  thereby  addi- 
tional security  of  the  acceptor.  If  the  drawee 
refuses  to  accept,  recourse  may  be  had  im- 
mediately to  the  drawer  and  indorsers  for 
payment.^  If  the  holder  present  the  bill  for 
acceptance,  though  not  bound  to  do  so,  he  must 
give  notice  of  the  non-acceptance  to  the  drawer 
and  indorser,  without  delay.'  Presentment 
should  be  made  during  the  usual  hours  of  busi- 
ness.*" Business  hours,  except  in  the  case  of 
banks,  range  during  the  whole  day  down  to  the 
hours  of  rest  in  the  evening."  The  holder  may, 
however,  put  the  bill  in  circulation  without  pre- 
senting it.°  Presentment  should  be  either  to 
the  drawee  himself,  or  to  his  authorized  agent,' 

3  Dowl.  382,  S.  C;  I  Stra.  648:  2  Id.  946;  i  M.  &  SeL 
13;  4  Camp.  78,  S.  C.  C-io  Wheat.  339:  i  Binney,  27, 
S.C.  ;  4  Dallas, 234.  d-2  R.  &C.  293  ;  3  D.  &Rv.S34.S. 
C.  ;  8  Q.  B.  473  :  4  Esp.  487  ;  4  Price,  300.  C-4  Esp.  226; 
3  Hill  fS.  C.)  227  :  I  Ala.  104  :  Riley,  248  ;  19  Pick.  99  ;  7 
Blackf.  56.  f-7  Cowen,  705  ;  i  Id.  397  ;  20  Johns.  147  ;  13 
Mass.  131 ;  28  Eng.  L.  &  Eq.  86  k:-2  H.  B1.  565  ;  7 
Taunt.  395  ;  i  M.  &  M.  133  ;  3  C.  &  P.  80  ;  9  Bing.  416 ; 
2  M.  &Sc.  570,  S.C. :  20  Johns.  146;  4  Mason, 336;  S. 
C.  5  Mason,  118  ;  7  Cowen,  705;  12  Pick.  399.  I1-2  Hall, 
4S9 ;  7  Blackf.  367.  i-Byles  Bills,  140.  .j-28  Wend. 
321;  S.  C.  17  Id.  368;  4  How.  (Miss.)  567;  i2Vt.  401; 
8  Mo.  268.  k-3  Johns.  202;  3  East.  481  ;  Dougl.  54. 
1-2  Peters,  170;  i  T.  R.  712  r  4  How.  (Miss.)  567;  la 
Vt.  401 ;  8  Mo.  268,  m-Mar.  112.  n-2  Hill,  635;  7 
Leigh.  179.  0-2H.BI.  565;  9  Bing.  416;  2M.&SC. 
570,  S.  C. ;  7  Taunt.  160;  3  Marsh,  454.    p-5  ^p.  17$. 


BILLS,  BONDS,  AND  NOTES. 


'63 


And  should  be  made  in  such  a  manner  as  to  give 
him  an  opportunity  to  act  deliberately.*!  If  the 
drawee  desire  it,  the  bill  should  be  left  with 
him  twenty-four  hours,  unless  in  the  interim 
he  either  accept  or  declares  his  resolution  not 
to  accept.'  If  more  than  twenty-four  hours  be 
given,  the  holder  ought  to  inform  the  antece- 
dent parties  of  it." 

Non-acceptance.  The  proceedings  neces- 
sary to  be  taken  by  the  holder,  on  a  refusal  of 
a  drawee  to  accept,  are  the  same  in  most  re- 
spects as  are  required  to  be  taken  by  him  in  the 
case  of  non-payment  of  a  bill  of  exchange  or  a 
promissory  note.  The  principles  applicable  to 
the  giving  of  notice  to  the  drawer  and  indor- 
sers,  are,  under  the  law  merchant,  the  same  in 
either  case,  and  it  will  be  considered  together 
in  a  subsequent  section.  But  the  rules  more 
immediately  relating  to  the  conduct  that  should 
be  pursued  by  the  holder,  where  the  bill  is  dis- 
honored by  non-acceptance,  will  now  be  briefly 
considered. 

Generally,  a  failure  to  give  the  drawer  and 
indorsers  notice  of  non-acceptance  discharges 
them ;  the  notice  is  required  so  that  these  par- 
ties may  take  prompt  measures  of  self-protec- 
tion, the  drawer,  by  withdrawing,  or  withhold- 
ing the  further  accumulation  of,  effects  in  the 
hands  of  the  drawee,  and  the  indorsers  by  ob- 
taining or  securing  payment  from  the  parties 
respectively  liable  to  them.'  The  drawer  and 
indorsers  are  liable  to  an  action  by  the  holder 
immediately  after  the  bill  is  refused  acceptance, 
and  before  it  is  payable,  on  giving  due  notice 
of  non-acceptance."  The  mere  fact  that  the 
drawer  has  no  funds  or  effects  in  the  hands  of 
the  drawee,  is  not  alone  sufficient  to  excuse  the 
want  of  notice,  if  it  appears  that  the  drawer 
had  a  reasonable  expectation  that  his  bill  would 
be  accepted  and  paid.^  If  the  drawer  has  no 
funds,  and  knows  that  he  has  none  in  the  hand. 
of  the  drawee,  and  no  right  to  expect  that  his 
bill  will  be  honored,  he  is  not  entitled  to  notice 
of  dishonor.^  Drawing  under  such  circum- 
stances does  not  give  the  drawer  a  right  to  in- 
sist upon  the  rule  requiring  notice.*  When  a 
bill  is  drawn  merely  for  discount,  and  without 
any  expectation  that  it  will  be  accepted  and 
paid  by  the  drawee  (as  where  it  is  drawn  and 
indorsed  for  the  accommodation  of  the  drawer), 
notice  of  non-acceptance  is  not  necessary.' 
Fraud  in  other  parties  to  the  bill  does  not  de- 
prive the  indorser  of  his  right  to  notice  where 
he  is  not  privy  to  the  fraud.'  And  the  mere 
fact  that  the  drawer  has  no  funds  in  the  hands 
of  the  drawee,  though  known  to  the  indorser, 
does  not  deprive  the  latter  of  his  right  to  insist 

q-5Esp.i75;  Chitty  Bills,  279.  r-Bayley,Ch.  7,?i. 
■-a  Smith,  242  t-Chitty  Bills,  326  :  17  Wend.  94.  u-4 
Mason,  336  ;  3  Mass.  557  ;  8  Id.  460  ;  i  Day.  11 ;  i  Yeates, 
204  ;  4  Johns.  144  ;  5  Id.  375':  3  Id.  202  ;  i  Wash.  C.  C; 
I J  Peters,  80;  4  Porter,  348;  3Mason,505:  Anthon,  35. 
▼-4  Cranch,  141  :  12  East.  171  ;  2  Camp.  503  ;  3  Id.  334  ; 
15  East.  216;  16  Id.  43;  4  M.  &  S.  226;  7  Greenl.  126. 
w-7  Mass.  452  ;  7  Harr.  &  Johns.  381 :  2  Nott.  &  M'- 
Cord,  257,  n  ;  3  Johns.  Cas  ;  6  Cowen,  484;  28  Barb. 
390,  392  ;  12  Abbt.  139  ;  I  Wash.  C.  C.  461  ;  33  Penn. 
St.  134.  x-i  T.  R.  405 ;  20  Johns.  146.  y-^  Rand. 
5J3 :    16  M  &  W.  743.    »-4  Taunt.  731.    »-8  B.  &  C- 


on  the  usual  notice.'  The  death  of  the  drawee 
may  render  a  presentment  for  acceptance  fruit- 
less and  unnecessary,  but  does  not  dispense 
with  the  necessity  of  giving  timely  notice  of  the 
dishonor  of  the  bill.*'  Neither  does  the  death 
of  the  drawer  or  indorser  discharge  the  holder 
from  his  duty  to  give  the  usual  notice ;  but  the 
notice  must  be  sent  to  the  representatives  if  the 
holder  know,  or  can  ascertain  who  they  are, 
and  their  address."  If  the  holder  does  not 
know  of  the  drawer's  death,  notice  should  b« 
given  in  the  usual  way."*  And  when  there  are 
joint  indorsers,  not  partners,  it  is  incumbent 
upon  the  holder  to  give  notice  to  the  represent- 
atives of  the  deceased  ;  if  he  fails  to  do  so  he 
loses  his  remedy  against  the  survivor,  for  the 
latter  is  thereby  deprived  of  his  right  of  con- 
tribution from  the  estate  of  his  co-indorser.* 
Bankruptcy,  or  known  insolvency  of  the  drawer 
or  maker,  does  not  excuse  neglect  to  make  pre- 
sentment, or  to  give  notice. '^  Where  the  drawee 
cannot  be  found,  or  has  absconded,  it  is  suffi- 
cient to  use  due  diligence  to  present  the  bill  for 
acceptance  or  for  payment ;  provided  the  holder 
takes  care  to  communicate  the  requisite  notice 
to  the  indorser.8  Where  the  drawer  or  indor- 
ser has  absconded,  or  cannot  be  found,  it  is 
enough  if  the  holder  use  due  diligence  in  giv- 
ing the  required  notice.''  Services  of  notices 
of  protest  on  parties  residing  in  the  town  or  city 
where  such  protest  is  made,  may  be  by  deposit- 
ing such  notice  in  the  post-office  in  a  sealed 
envelope,  addressed  to  such  person,  with  the 
postage  prepaid.*  Sudden  illness,  or  death  of 
the  holder,  or  his  agent,  or  other  accident,  may 
constitute  an  excuse  for  the  want  of  regular 
notice  to  any  of  the  parties,  in  case  it  be 
given  as  soon  as  possible  after  the  impediment 
is  removed. ■*  And  this  is  clearly  in  harmony 
with  the  general  principles  of  the  commercial 
law,  which  in  no  case  requires  the  performance 
of  an  act  that  has  been  rendered  impossible 
through  no  fault  of  the  holder."*  The  breaking 
out  of  a  war,  blocking  up  the  usual  channels 
of  communications;'  the  prevalence  of  a  ma- 
lignant fever,  that  puts  a  stop  to  all  business," 
and,  in  general,  any  such  inevitable  accident  as 
prevents  the  giving  of  notice,  and  is  not  trace- 
able to  the  neglect  of  the  holder,  will  excuse 
delay  so  long  as  the  preventing  cause  continues." 
When  it  is  said  that  the  notice  must  be  sent  as 
early  as  on  the  next  day  after  dishonor,  the  mean- 
ing is,  that  it  must  be  forwarded  on  the  next  busi- 
ness day.  If  the  protest  be  made  on  Saturday, 
notice  is  properly  sent  on  Monday,  by  the  first 
mail  that  closes  after  the  commencement  of  the 
ordinary  hours  of  business."     So,  if  the  protest 

610:  6  M.  &  W.  743;  6Bing.  N.C.  69;  5  M  &W.418. 
b-Chitty  Bills.  330:  Byles  Bills,  40,  41.  c-5  Hill,  236. 
U-17  Johns.  25.  e-5  Hill,  213;  I  Conn.  367:  19  N.  Y. 
477,  481.  f-Bayley  Bills,  7,?  i  ;  16  East.  112  :  5  Taunt. 
30;  II  East.  114:  17  Wend  94.  gf-2  Johns.  274 ;  2 
Caines,  127  ;  13  Johns  207  ;  2  Sneed,425.  555  ;  i  M'Cord, 
339:  4  Taunt.  731.  I1-2  Sand.  171,  3  Comst  272.  1- 
See  Notice,  below.  j-Chitty  Bills,  330.  I1-3  Wend. 
488;  2  Smith,  222:  6  £ast  16,  3  Johns.  Cas.  i :  Anthon 
N.P.35;  1  M'Cord,  339.  1-2  Smith,  222  m-z  Johns 
Cas.  I.  11-3  Wend.  488:  6  East.  16.  o-i  Hill,  263  .  3 
B.  &  P.  59^;  2  B.  &  A.  501,  n;  »oEng.  L.  &  Eq.  999 


I64 


BILLS,  BONDS,  AND  NOTES. 


be  made  on  the  third  day  of  July,  the  notice 
will  be  sufficient  if  sent  on  the  fifth.  For  the 
same  reason,  if  the  third  day  of  grace  be  a 
holiday,  the  demand  of  payment  must  lie  upon 
the  next  preceding  day  of  business,  unless 
there  be  a  provision  of  statute  to  the  con- 
trary.P  Penna.  notes  due  on  Saturday  may 
be  paid  the  following  Monday.  A  foreign 
bill  dishonored  should  be  proteEted,<i  and 
information  of  the  protest  sent  with  the  notice.' 
A  protest  is,  in  form,  a  solemn  declaration, 
written  by  the  notary  under  a  fair  copy  of 
the  bill,  stating  that  payment  or  acceptance 
has  been  demanded  and  refused,  the  reason, 
if  any,  assigned,  and  that  the  bill  is,  therefore, 
protested. 

Ordinarily  the  bill  is  presented  for  accept- 
ance in  the  first  instance  by  the  holder,  or  his 
agent;  and,  if  refused,  is  then  taken  to  a  no- 
tary, who  is  to  present  it  again  to  the  drawee 
for  acceptance ;  and  if  he  then  refuse,  the  offi- 
cer thereupon  makes  a  minute  upon  the  bill, 
consisting  of  his  initials,  the  month,  the  day 
and  year,  and  the  reason,  if  any  be  assigned, 
for  non-acceptance,  together  with  his  charge. 
The  making  of  this  minute  is  usually  called 
noting  the  bill,  and  is  only  a  preliminary  step — 
a  memorandum  for  the  use  of  the  notary  when 
he  comes  afterward  to  draw  up  the  protest;  it 
is  unknown  to  the  law,  and  is,  in  itself,  of  no 
legal  effect.*  If  there  be  no  notary  in  or  near 
the  place  where  the  bill  is  dishonored,  it  may 
be  protested  by  any  substantial  person  of  the 
place,  in  presence  of  two  or  more  witnesses." 
A  notarial  certificate  of  protest  in  a  foreign 
country  or  State  proves  itself,  and  is  sufficient 
evidence  of  the  dishonor  of  a  foreign  bill.* 
The  custom  of  merchants  requires  that  there 
should  be  a  protest  in  case  of  the  non-accept- 
ance of  a  foreign  bill  of  exchange;  and  the 
proper  officer  to  make  this  protest  is  a  notary 
public*  Drawn  up  in  the  usual  form,  the  cer- 
tificate of  the  notary  should  be  authenticated 
by  his  seal  of  office :  so  executed,  it  is  received 
in  all  courts,  without  any  auxiliary  support,  as 
evidence  of  the  protest  in  a  foreign  State.* 

PROTEST    FORMS. 

Protest — Oeneral  Form. 

United  States  of  America,  State  of , 

County,  ss. 
(Here  copy  the  bill  or  note  and  indorsement.) 

Be  it  knowrn: 

That  on  the  day  of  the  date  hereof,  at  the  re- 
quest of ,  the  holder  of  the  original  ,  of 

^»hich  a  true  copy  is  above  written,  I,  the  under- 
signed, notary  pubUc  for  the ,  by  lawful  au- 
thority duly  commissioned  and  sworn,  residing  in 

the ,  during  business  hours,  for  such  purposes, 

did,  ^\.C.{^tating  the  /acts  concerning  presentment ,  etc.) 

Whereupon,  I,  the  said  notary,  at  the  request 
aforesaid,  have  protested,  and  do  hereby  sol- 
emnly protest,  against  all  persons  and  every 
party  concerned  therein,  virhether  as  maker, 
drawer,  drawee,  or  acceptor,  payer,  indorser, 
guarantee,     surety,    or    otherwise    howsoever, 

p-i  Ld.  Raym.  743;  Edw.  Bills,  Parsons  Bills,  q- 
t  Bay.  376;  6  Wheat.  572;  i  Rep.  Const,  c.  100;  i 
Monr.  91 ;  q  N.  H.  558 ;  7  Leigh.  173.  r-2  T.  R.  713  ; 
5  Id.  239;  Ld.  Raym.  993.  s-The  reason  assigned  for 
refusal  should  be  inserted,  when  one  is  given,  t-^  T.  R. 
170;  2  Id.  713;  7  East.  350.  n-5Duer,462;  Bayley 
(Jills,  7,  ^2;  Chitty  Bills,  333;   Story  Bills,  376;  Bylcs 


against  whom  it  is  proper  to  protest,  for  all  eit 
change,  re-exchange,  costs,  damages  and  interest 
accrued,  suffered,  or  to  accrue  or  be  suffered  for 
want  of thereof.  Of  which  demand  and  re- 
fusal I  duly  notified . 

(State  name  0/  party  noticed,  post-ojffice  addressed, 
and  time  notice  sent. ) 

Done  and  protested  at aforesaid,  the  — • 

day  of .  N .  P. ,  Notary  Fuitic. 

Protest— Oeneral  Form. 

\_Copy  0/  bill  (or  note)  and  indorsements,  etc.] 

United  States  of  America  (State,  commonwealth,  of 

territory,  etc.) county,  ss. 

On  the day  of ,  A.  D. ,  at  the  requea: 

of  A.  B. ,  the  holder  of  the  original  bill  of  exchange 
(or  pru'.MisMjry  note},  of  which  the  above  is  a  true 
copy,  I,  N.  P.,  a  notary  public  in  and  for  said 

county  of ,  presented  the  same  to  D.  E. ,  tho 

drawer  ior  maker),  therein  named  (or,  if  payable  at 
a  particular  place,  say  at  ,  in  said  State,  com- 
monwealth, or  territory),  and  demanded  acceptanco 
(or  payment)  thereof,  which  was  refused."  Where- 
upon I,  the  said  notary,  at  the  request  aforesaid, 
did  protest,  and  by  these  presents  do  solemnly  and 
publicly  protest,  as  well  against  the  drawer  (or 
maker)  (and  indorsers)  of  the  said  bill  (or  note)  as 
against  all  others  whom  it  does  or  may  concern, 
for  exchange,  re-exchange,  and  all  costs,  dam- 
ages, and  interest  already  accrued,  and  to  be  here- 
after incurred  for  want  of  acceptance  (or  payment) 
of  the  same: 

And  on  the  same  day  I  served  due  notice  of  the 
protest  aforesaid  upon  the  following  named  per- 
sons by  depositing  such  notice  in  the  post-office 

at ,  in  said  (State,  commonwealth,  or  territory), 

in  a  sealed  envelope,  with  the  postage  prepaid, 
addressed  to  said  persons,  as  follows: 

A  notice  for ,  directed  to . 

A  notice  for ,  directed  to . 

\Seal.\    In  testimony  whereof  I  have  hereunto 
set  my  hand  and  affixed  my  notarial 
seal,  the  day  and  year  aforesaid. 
Protestfees, dollars.        N.  ^.,  Notary  Public. 

In  common  practice  the  notary  not  only  pro- 
tests the  note  or  bill  for  non-acceptance  or  non- 
payment, but  also  sends  or  serves  upon  the 
drawer  and  indorsers  due  notice  thereof.' 

Protest  Notice— General  Form. 

Place ,  Date . 

To  . 

Sir :    The  bill  of  exchange  (or  promissory  note) 

dated ,  drawn  (or  made)  by  D.  M.,on  (or  in 

favor  of)  D.  E.,  for  dollars,  payable  (in- 
dorsed by  S.  S.  and  R.  R.),  has  this  day  by  me  been 
duly  protested  for  non-acceptance  (or  non-pay- 
ment.)                                             H.  'P.,  Notary  Public. 

2^         '  \  Holders. 

Protest  Notice— General  Form. 

To  — -.  Place ,  Date . 

A  bill  of  exchange  (or  promissory  note),  drawn 

(or  made)  by ,  in  favor  of ,  for dollars, 

dated  the  day  of ,  indorsed  by ,  was 

dolivered  to  me  for  protest  by ,  the  holder,  be- 
ing this  day  due,  its  acceptance  (or  payment)  was 
demanded  and  refused.  You  will  be  held  for  its 
payment.                                    H.  P.,  Notary  Public. 

\_Seal.} 

Notice  of  the  dishonor  of  a  bill  need  not 
state  that  the  holder  looks  to  the  party  notified 
for  the  payment.*  Nor  need  it  state  who  the 
holder  is.*  Notice  that  a  bill  has  been  pro- 
tested for  non-payment  is  sufficient  notice  for  a 
demand  and  refusal.''  Where  there  is  no  dis- 
pute as  to  the  facts,  the  sufficiency  of  the  notice 

Bills,  200.  v-8  Wheat.  333  ;  2  Peters,  179  ;  Id.  668  ;  9 
Harr.  &  Johns.  399  ;  4  Id.  54 ;  5  Duer,  462.  w-3  Wend. 
173  ;  ■?  Johns.  311.  x-2  Hill,  227,  and  authorities  cited. 
y-20  Wend.  81  ;  8  Wheat.  326.  «-3  Conn.  517  ;  i  Litt. 
194  ;  2  Hawks,  560  ;   5  Shep.  360.     a-26  Maine,  45.     I>- 

2  Doug.  425 ;  10  N.  H.  526;  9  Mete.  174 ;  i  Pcwg.  896,' 

3  Md.  9j; ;  A  Id.  390;  Id.  409. 


BILLS,  BONDS,  AND  NOTES. 


'65 


is  a  question  of  law  for  the  court.'  Any  form 
of  notice  to  an  indorser  is  sufficient  to  fix  his 
liability,  if  the  instrument  in  question  was  in- 
tended to  be  described  in  such  notice,  and  the 
party  was  not  misled  or  deceived  thereby  as  to 
the  instrument  intended.*  It  is  not  necessary 
that  a  copy  of  the  protest  should  accompany  the 
notice  of  the  dishonor  of  a  foreign  bill,"  but 
information  of  the  protest  should  be  sent.'' 
When  a  bill  or  note  is  delivered  to  a  bank  for 
collection,  there  is  an  implied  contract  on  the 
part  of  the  bank  to  give  notice  in  the  manner 
required  by  the  usage  and  custom  of  the  busi- 
ness.«  The  agent  to  whom  the  bill  is  indorsed 
for  collection  is  the  holder  for  the  purpose  of 
giving  and  receiving  notice,  and  it  is  perfectly 
immaterial  through  how  many  hands  the  notice 
may  have  to  pass,  so  it  be  transmitted  with 
reasonable  diligence  by  each  of  the  successive 
parties.*  Notice  of  non-acceptance  by  a  mere 
stranger  is  insufficient.  W'.ere  a  bill  is  drawn 
by  one  of  several  partners  on  the  firm,  in  rela- 
tion to  partnership  business,"  or  where  the 
drawers  and  acceptors  are  the  same  persons,  no 
notice  of  protest  need  be  given.  For  in  each 
of  these  cases  the  party  to  be  charged  has 
notice  of  the  dishonor  of  the  bill  so  drawn  in 
the  very  act  of  dishonoring  it.'  After  a  bill  of 
exchange  has  been  dishonored  for  non-accept- 
ance, it  is  not  necessary  to  present  the  same  for 
payment.* 

PRESENTMENT  FOR  PAYMENT. 
Although  a  presentment  for  payment  is  not 
necessary  for  the  purpose  of  perfecting  or  com- 
pleting the  liability  of  the  acceptor  of  a  bill  or 
the  maker  of  a  note,  it  is  a  condition  precedent 
to  the  liability  of  the  drawer  and  indorser.  As 
against  the  maker  of  a  promissory  note,  or  the 
acceptor  of  a  bill  of  exchange,  it  is  not  neces- 
sary for  the  holder  to  aver  or  prove  a  demand 
of  payment ;  a  suit  is  a  sufficient  demand,  as 
in  other  cases  of  a  precedent  debt  or  duty.'' 
The  drawee  by  accepting  the  bill,  becomes  the 
principal  debtor,  and  thenceforth  stands  in  the 
same  relation  to  the  holder  as  does  the  maker 
of  a  note.'  The  holder  is  required  to  perform 
two  distinct  acts  in  order  to  charge  these  parties, 
or,  in  other  words,  to  convert  the  conditional 
contract  made  by  them  into  an  absolute  under- 
taking. Hence,  a  waiver  of  non-payment  by 
the  indorser  does  not,  according  to  the  law 
merchant,  dispense  with  the  demand  itself.J 
But  a  waiver  of  protest,  where  the  term  is  evi- 
dently used  in  its  popular  acceptation,  is  a 
waiver  of  both  demand  and  notice.''    In  actions 

y-31  Wend.  lo;  23  Id.  620;  25  Id.  277;  3  Hill,  S.  C. 
77;  6  How.  (Miss.)  473  :  4  Dev.  277;  i  Speers,  244;  5 
Barb.  S.  C.  490.  Z-14  Penn.  St.  483;  14  Conn.  362;  i 
Branch.  301  ;  10  Shepl.  302  ;  i  Comst.  413  ;  17  Howard, 
606 :  18  Id.  187.  a-4  A.  &  E.  870 ;  6  N.  &  M.  372,  S.  C. 
b-2  T.  R.  713;  s  Id.  239:  2  Ld.  Raym.  993  ;  2  Esp.  511 ; 
3  Camp.  334  :  I  M.  &  S.  288,  S.  C;  B.  N.  P.  271.  c-2 
Johns.  372;  S.  C.  3  Cowen,  662.  <l-2  Hill,  451 :  20 
Eng.  L.  &  Eq.  220;  15  M.  &  W.  231.  e-20  Johns. 
176;  I  Camp.  82;  3  Gray,  334.  f-i  Denio,  409;  6 
Seld.  51  :  2  Conn.  654.  gr-2  Hill, 227;  16  E^t.  105; 
8  N.  H.  66.  I1-4  Johns.  183:  17  Id.  248 :  8  Cowen, 
«7i ;  3  Wend.  13 ;  7  Barb.  652;  11  Wheat.  171:  13 
Elast.  459.  I-4  Johns.  183  ;  17  Id.  248.  1-6  Mass. 
p^  .   It  Wend.  62^.      fe-i  Coms^.  18$.      |-s'^urr.  669. 


upon  bills  of  exchange  by  an  indorsee  against 
an  indorser,  the  plaintiff  must  prove  a  demand 
of,  or  due  diligence  to  get  the  money  from  the 
drawee  (or  acceptor) ;  and  in  actions  upon 
promissory  notes,  by  an  indorsee  against  an  in- 
dorser, the  plaintiff  must  prove  a  demand  of, 
or  due  diligence  to  get  the  money  from  the 
maker  of  the  note.'  The  same  rule  applies 
with  equal  force  to  foreign  as  well  as  inland 
bills,""  and  includes  within  itself  an  exception 
in  favor  of  those  cases  in  which  the  holder  is 
unable  to  make  a  demand  with  the  exercise  of 
due  diligence."  The  drawer  of  a  bill  is  only 
responsible  after  a  default  on  the  part  of  the 
acceptor."  When  the  maker  has  absconded  ;P 
when  the  maker  is  a  seaman  on  a  voyage,  hav- 
ing no  domicile  in  the  State  ;i  when  he  has  no 
known  place  of  residence  or  place  of  business 
at  which  the  note  can  be  presented  for  pay- 
ment •,•■  and  when  he  makes  the  note  here  and 
remains  from  the  State,  and  takes  up  a  perma- 
nent residence  elsewhere,  before  it  becomes 
payable,  the  holder  is  not  bound  to  follow  and 
search  him  out,  for  the  purpose  of  making  the 
usual  demand  of  payment."  Neither  the  bank- 
ruptcy, insolvency,  nor  death  of  the  acceptor 
of  a  bill,  or  of  the  maker  of  a  promissory  note, 
is  of  itself  sufficient  to  dispense  with  the  ne- 
cessity of  a  regular  demand  of  payment.*  But 
the  insolvency  of  the  maker  or  acceptor  is  often 
an  important  circumstance,  with  other  evidence, 
tending  to  show  a  waiver  of  demand  and 
notice;"  just  as  the  absence  or  death  of  the 
maker  or  acceptor  may  be  shown  by  way  of 
dispensing  with  the  necessity  of  a  formal  or 
personal  demand.^  Presentment  for  payment 
is  not  necessary  in  order  to  charge  a  man  who 
guarantees  the  payment  of  a  bill  or  note.' 
Where  the  house  of  the  maker  or  acceptor  is 
closed,  it  is  the  duty  of  the  holder  to  make 
diligent  inquiry  for  him.  Want  of  demand  is 
excused  when  the  drawee  cannot  be  found.* 
The  holder  should  inquire  for  the  acceptor  in 
the  neighborhood  in  order  to  excuse  present- 
ment.y  If  the  drawee  be  dead,  presentment 
must  be  made  to  his  personal  representatives  ; 
and  if  he  have  none,  then  at  his  house.*  The 
death  of  a  maker  of  a  note  and  the  insolvency 
of  his  estate,  do  not  dispense  with  the  necessity 
of  demand  and  notice  in  order  to  charge  an  in- 
dorser.* If  the  holder  die,  presentment  should 
be  made  by  his  personal  representatives.  In- 
evitable accident,  superior  force,  or  a  contagious 
disease  that  prevails  so  as  to  interrupt  all  busi- 

m-i  Strange,     n-2  Burr.  669.     0-2  Johns.  Cas.  75.     |>d 

1  Ld.  Raym.  443,  742  ;  4  Mass.  53 :    i  Watts.  &  S.  126: 

2  Sneed,  425,  555.  q-4  Leigh.  114.  r-7  N.  H.  290  ;  3 
Greenl.  82  ;  4  Mass.  53  ;  4  S.  &  R.  480.  s-o  Wheat. 
588;  14  Johns.  114;  4  M'Cord,  503;  2  Watts  &;  S.  401 ; 
6  Met.  200;  3  Ohio,  307:  14  Martin,  511  ;  16  Maine, 
41  ;  3  Denio,  151.  t-3  M'Cord,  394;  i  S.  &  R.  334;  16 
Id.  157  ;  2  Marsh.  255;  i  M'Cord,  339;  3^.195;  i 
Nott  &  M'Cord,  438;  23  Maine,  280;  13  N.  H.  415;  26 
Me.  271  ;  5  N.  H.  378  ;  3  Bibb,  102 ;  6  B.  &  C.  373;  11 
East.  114;  2  H.  Bl.  6og ;  3  C.  &  P.  244.  n-io  Wend. 
504:  5  N.  H.  378  ;  I  Johns.  Cas.  99.  v-i  M'Cord,  339. 
W-5  M.  &  G.  559  ;  13  M.  &  W.  453;  i  Kas.  488.  x-a 
Caines,  121 ;  3  M'Cord,  394  ;  i  Gray,  175.  y-7  How. 
(Miss.)  294.  «-Chitty,  357.  a-i  I>ailey,  482 ;  16  S.  & 
R.  155,. 


i66 


BILLS,  BONDS,  AND  NOTES. 


ness,  will  excuse  a  delay  to  present  for  paymeiu 
so  long  as  the  preventing  cause  continues.'' 

Mode  of.     The  demand  may  be  made 

upon  the  maker  or  acceptor  personally,  but 
must  be  made  at  a  reasonable  time  and  place. 
A  demand  in  the  street  is  not  sufficient,  unless 
the  party  on  whom  it  is  made  declines  wholly 
to  pay,  or  offers  something  which  is  not  a  pay- 
ment, and  does  not  object  to  the  place  on  the 
ground  that  he  is  not  there  ready  to  pay."  The 
presumption  always  is,  that  the  maker  or  accep- 
tor is  prepared  to  pay  at  his  residence  or  place 
of  business.*  And  if  the  notary  meets  him  in 
ithe  street  and  presents  the  bill  for  payment, 
•  and  he  offers  to  pay  at  his  place  of  business,  or 
at  his  residence,  the  notary  is  bound  to  give 
him  an  opportunity  to  do  so.*  So,  where  the 
drawees  of  a  bill  of  exchange  absent  themselves 
from  their  place  of  business  and  make  no  pro- 
vision for  its  payment,  a  presentment  there  to  a 
clerk  or  bookkeeper  is  a  sufficient  presentment 
to  charge  the  drawer  and  indorsers.'  The  bill 
or  note  should  be  actually  presented  for  pay- 
ment. It  should  be  produced ,«  for  the  acceptor 
has  a  right  to  see  the  bill  before  he  determines 
whether  he  will  pay  it  or  not,  and  if  he  pays  it 
he  has  a  right  to  have  it  delivered  to  him  as  a 
voucher  in  his  settlement  with  the  drawer.*" 
And  for  the  same  reason  the  maker  of  a  pro- 
missory note  is  entitled  to  have  it  surrendered 
on  payment.  A  demand  made  by  a  person 
who  has  not  the  bill  or  note  in  his  possession  is 
insufficient.'  So,  a  request  by  letter  through 
the  post-office.J  A  notary  or  agent  for  collec- 
tion cannot  safely  surrender  the  note  or  draft 
on  receiving  a  check  for  the  amount ;  and  if  he 
does  so,  should  ascertain  promptly  whether  the 
check  will  be  honored,  so  that  in  case  it  is  not 
he  may,  nevertheless,  protest  the  note  or  draft 
for  non-payment,  and  give  regular  notice  of  its 
dishonor  to  the  parties  to  be  charged  thereon. 
Receiving  a  check  on  a  bank  in  payment  of  a 
draft  or  note  would  not  extinguish  the  latter  in 
the  absence  of  any  intention  to  give  the  maker 
or  acceptor  a  further  credit,''  but  the  surrender 
of  the  note  or  bill  would  embarrass  the  holder 
in  his  attempt  to  recover  the  instrument,'  and  a 
delay  to  protest  the  same  for  non-payment 
on  the  day  it  became  payable  would  discharge 
the  drawer  and  indorsers.™ 

Time  of.    For  the  purpose  of  charging 

the  drawer  and  indorser,  bills  and  notes  should 
be  presented  and  payment  thereof  demanded 
on  the  very  day  they  become  payable,  and  that 
is  rendered  necessary  by  the  terms  of  the  in- 
strument as  modified  by  the  law  or  custom  of 
merchants.  The  time  can  neither  be  hastened 
nor  delayed  a  single  day."  To  determine  with 
accuracy  the  time  when  a  bill  or  note  becomes 
payable,  it  is  necessary  to  ascertain  the  legal 
principles  upon  which  time  is  computed.     On 

b-i  Johns.  Cas.  i ;  Story  Bills,  %  308,  309  ;  2  Wend. 
488:  22Conn.2i3:  1R.I.401.  c-ii  Penn.  St. 456.  d- 
18  Ala.  (N.  S.)  42.  e-ii  Penn.  St.  456 ;  9  Wheat.  598  ;  2 
Martin  N  S.  511  ;  4ld.  t86;  1S.C.367,  i  Pick.  413.  f- 
18  Ala.  (N.  S.)  42  ;  12  Ind.  223.  jf -4  Miss.  52.  I1-7  Barb. 
143.  i -4  Howard,  262.  j-3  Whart.  116  ;  9  Wheat.  598. 
Il-^  Johns.  296 .-  5  Id.  68 ;  5  Wend.  490 ;  5  Seld.  463  ;  34 


checks,  notes,  and  drafts  payable  on  dei.'&^«, 
ordinarily  no  question  can  arise ;  they  arc  pay- 
able on  demand,  strictly  according  to  the  ternt" 
of  the  instrument.?  But  when  a  bank  check  ii 
post  dated  on  a  Sunday,  or  a  note  or  other  con- 
tract not  entitled  to  days  of  grace  falls  due  on 
Sunday,  that  day  is  excluded  from  the  calcula- 
tion and  considered  as  stricken  from  the  cal- 
endar ;i  and  the  party  bound  must  make  his 
payment  or  perform  his  engagement  on  the 
Saturday  preceding.  The  period  of  a  year  is 
a  determinate  space  of  time,  consisting  of  three 
hundred  and  sixty-five  days ;  the  added  day  of 
bissextile  or  leap  year  and  the  day  immediately 
preceding  being  counted  together  as  one  day. 
The  word  "  month  "  means  a  calendar  month, 
unless  otherwise  expressed.'  In  computing  the 
time  when  bills  and  notes  payable  a  certain 
number  of  days,  months,  or  years  after  date, 
become  due,  the  rule  is  to  exclude  the  day  of 
the  date  from  the  calculation,  and  include  the 
day  of  payment,  assuming  that  no  days  of  grace 
are  allowed ;'  and  if  entitled  to  days  of  grace, 
these  are  to  be  added  in  each  case  to  the  time 
the  note  was  to  run.'  So,  when  a  bill  is  drawn 
payable  ten  days  after  sight,  the  day  on  which 
it  is  accepted  is  excluded  from  the  computation, 
and,  adding  the  usual  days  of  grace,  payment 
thereof  may  be  demanded  on  the  thirteenth  day 
after  the  acceptance."  Where  a  note  is  payable 
a  certain  number  of  days  from  the  day  of  the 
date,  the  day  of  the  date  is  to  be  excluded 
from  the  computation."  And  when  a  bill  is 
drawn  payable  so  many  months  after  date  or 
sight,  the  computation  is  made  by  the  calendar, 
and,  without  counting  the  days  of  grace,  the 
bill  will  become  due  on  the  date  of  the  month 
corresponding  with  the  day  of  the  date  or  ac- 
ceptance ;  that  is,  if  the  bill  be  dated  or  accepted 
on  the  tenth  of  the  month,  it  will  mature  or 
become  due  on  the  tenth.  Thus,  if  dated  or 
accepted  on  the  lOth  of  February,  payable 
two  months  thereafter,  it  will  become  due  on 
the  loth  of  April,  or  on  the  13th,  adding 
days  of  grace.'  But  when  a  bill  is  drawn 
payable  one  month  after  date,  the  computation 
is  not  carried  into  the  third  month.  Thus, 
a  bill  dated  on  the  30th  or  31st  of  January,  pay- 
able one  month  after  date,  expires  on  the  last 
day  of  February,  whether  it  has  twenty-eight  or 
twenty-nine  days  in  it.  So,  if  dated  on  the 
29th,  30th,  or  31st  day  of  August,  and  payable 
six  months  after  date,  it  will  fall  due  on  the  last 
of  February,  and  including  the  days  of  grace, 
on  the  3d  of  March.*  The  computation  of 
bills  or  notes  drawn  payable  one  or  more 
months  from  date,  is  made  according  to  the 
Gregorian  calendar,  that  is  to  say,  from  the 
day  of  the  month  it  bears  date  to  the  corre- 
sponding day  of  the    month  of  its  maturity. 

Barb.  323  ;  i  Kern.  203.  I-2  Hill,  482  ;  7  Barb.  143.  in-3 
Seld.  459:  8  Barb.  496;  11  N.  Y.  203.  0-7 Gill  and  lohns. 
78 :  6  Met  13.  p-35  Wend.  673  :  9  B  &  C.  409  ;  20  Wend. 
205;  2Conn.6g:  10  Ohio,  426;  i  Met.  47  ;  i  G.  Greene, 
552.  «|-2  Conn.  69  ;  20  Wend:  205.  r-Id.  s-Ld. 
Raym.  280;  6  T.  R.  212  :  Chilty  Bills,  370.  t-2  Vt 
129.  II -8  Mass.  153.  v-i7Mass.  94;  2  Vt.  la^.  W-> 
Rob.  (La.)  129. 


BILLS,  BONDS,  AND  NOTES. 


167 


without  any  attention  to  long  or  short  months. 
For  instance,  a  note  drawn  on  the  28th,  29th, 
30th,  or  31st  of  January,  and  due  a  month  from 
date,  will  be  due  on  the  28th  of  February,  if 
the  year  be  not  bissextile,  because  the  month 
of  February  has  no  other  corresponding  day. 
Those  drawn  on  the  28th  or  29th  of  February, 
and  due  one  month  from  date,  will  be  due  on 
the  28th  or  29th  of  March,  because  the  corre- 
sponding days  are  found  in  the  month  of  March. 
^  bill  drawn  on  the  31st  of  March,  and  due 
Oie  month  from  date,  will  be  due  on  the  30th 
Cif  April ;  and,  on  the  other  hand,  one  drawn 
on  the  30th  of  April  will  be  payable  on  the 
30th  of  May,  and  not  on  the  31st.  This  mode 
facilitates  greatly  the  ascertaining  of  the  day 
of  protest,  and  the  computation  of  interest.  It 
is  extremely  simple.^  There  is  another  ele- 
ment to  be  taken  into  account  in  the  compula- 
tion of  time  when  bills  or  notes  become  due, 
known  as  days  of  graced  In  computing  the 
time  when  a  note  or  bill  becomes  due,  the  days 
of  grace  are  added  therein,  just  the  same  as  if 
they  formed  part  of  the  bill  or  note  itself.*  To 
every  practical  purpose,  therefore,  the  days  of 
grace  are  a  part  of  the  instrument  itself.  And 
the  negotiability  of  a  note  is  as  perfect  and  un- 
restricted during  those  days  as  before  their  com- 
mencement,* and  no  action  can  be  brought  upon 
the  instrument  until  the  third  day  has  expired.^ 

All  bills  of  exchange  are  entitled  to  three 
days  of  grace  in  time  of  payment. 

Whenever  the  third  day  of  grace  falls  upon 
Sunday,  the  4th  day  of  July,  the  25th  day  of 
December,  the  1st  day  of  January,  or  upon  any 
day  appointed  by  the  President  of  the  United 
States  or  the  governor  of  this  State  for  a  pub- 
lic fast  or  thanksgiving,  the  next  preceding 
business  day  shall  be  deemed  the  last  day  of 
grace." 

As  a  general  rule,  notes  that  are  not  negoti- 
able are  not  entitled  to  days  of  grace.*  This 
class  of  notes  comprehends  such  as  are  not 
drawn  in  negotiable  terms.*  Such  as  are  pay- 
able in  specific  articles,'  and  such  as  neither 
the  statute  law  nor  any  recognized  or  estab- 
lished custom  has  rendered  negotiable.  If  en- 
titled to  days  of  grace  by  custom,  and  not  by 
virtue  of  statute  law,  the  custom  must  be  proved 
affirmatively. 8 

The  maker  of  a  note  and  the  acceptor  of  a 
bill  is  entitled  to  the  usual  hours  of  business, 
on  the  third  day  of  grace,  in  which  to  make 
payment ;  and  when  a  note  is  not  drawn  pay- 
ai)le  at  a  particular  place,  or  at  a  bank,  the  de- 
mand of  payment  may  be  made  at  any  lime 
before  the  usual  hours  of  rest.  For  the  pur- 
pose of  presenting  a  note  or  bill  for  payment, 
the  proper  hours  of  business  range  through  the 

x-Per  Martin  J.  Id. ;  2  Ld.  Raym.  1079;  2  Johns. 
203  ;  3  Cowen,  252  :  4  Mass.  53  ;  11  Id.  88.  y-i  Ld. 
Rayni.  743  :  Edw.  Bills,  Parsons  Bills.  «-2  Cowen,  712. 
B-8Conn.505.  b-3 Wend.  170;  6W.  &S.  179:  2  Miles, 
353;  II  S.  &  M.  452.  c-i  Ld.  Raym.  743;  Edw.  Bills, 
Parsons  Bills.  <l-io  Conn.  299  ;  20  Wend.  205:  2  Conn. 
69;  3  Hawks.  465.  e-ioConn.  299.  f-ioS.  &  Marsh.  486. 
IC-7  B.  Mon.  575.  I1-2  Hill,  635.  I-2  Wend.  170  ;  2  Bos. 
PmI.  eo2;  4T.  R.  170:8 Efist.  168:9  M.«tW.a23.    •!"" 


whole  day,  down  to  bed-time  in  the  evening.'' 
In  other  contracts  the  party  has  until  the  last 
instant  of  the  day  to  make  payment ;  and  ne- 
gotiable paper  is  no  exception  to  the  gen  ""5I 
rule.*  Parties  to  a  note  or  bill  may,  if  ,ey 
choose,  draw  the  instrument  without  grace; 
and  if  the  intention  appear  on  the  face  of  the 
bill  not  to  allow  any  days  of  grace,  it  will  be- 
come due  and  payable  like  any  other  contract. 
But  a  note  payable  on  a  particular  day,  with- 
out defalcation,  is  entitled  to  the  usual  days  of 
grace  •}  and  when  days  of  grace  are  allowed, 
the  indorser  has  a  right  to  insist  upon  them  to 
the  same  extent  as  the  maker.''  As  the  drawer 
of  a  bill,  for  many  purposes,  stands  in  the  atti- 
tude of  a  first  indorser,  he  also  has  a  right  to 
claim  the  usual  days  of  grace.  In  order  to 
charge  him,  the  presentment  for  payment  must 
be  made  on  the  third  day  of  grace.' 

Whom  by.     Bills  and  notes  should  be 

presented  for  payment  by  the  holder,  or  by  his 
authorized  agent,  and  a  person  to  whom  a  note 
or  bill  is  indorsed  for  collection  is  to  be  re- 
garded as  a  holder  for  the  purpose  of  making  a 
demand  and  giving  notice.  But  an  authority 
to  demand  payment  need  not  be  in  writing,™ 
and  need  not  be  given  in  express  terms.™  If 
the  notary  or  agent  have  the  paper  in  his  pos- 
session, ready  to  be  delivered  up,  his  right  to 
demand  and  receive  payment  will  be  implied." 
A  mere  stranger  cannot  charge  the  parties  by 
giving  them  notice  of  dishonor,"  but  a  party  in 
possession  of  the  paper,  though  it  comes  into 
his  hands  by  accident,  as  by  death  of  an  agent, 
may  and  ought  to  present  it  for  payment,  and 
give  the  usual  notice  of  refusal. p  And  when  a 
negotiable  note  or  bill  comes  into  the  hands  of 
any  person  under  a  blank  indorsement,  prima 
facie  he  is  the  holder  and  entitled  to  demand 
and  recover  the  amount  due  thereon.i  So  when 
the  instrument  is  drawn  payable  to  bearer." 
Where  the  holder  dies  before  the  note  or  bill 
becomes  due,  it  should  be  presented  for  pay- 
ment by  his  legal  representatives.' 

Where  and  to  whom.     The  demand 

of  payment  is  not  a  mere  form ;  it  is  an  act 
necessary  to  be  performed  by  the  holder  in 
order  to  charge  the  drawer  and  indorsei-s;  and 
accordingly,  in  an  action  against  either  of  these 
parties  the  plaintiff  must  allege  a  presentment 
to  the  maker  or  acceptor  for  payment.*  But  it 
is  not  necessary  for  him  to  prove,  in  support  of 
the  averment,  that  the  paper  was  presented  tc 
the  maker  or  acceptor  personally."  Present- 
ment to  his  bookkeeper,  while  he  is  absent,  is 
sufficient.^  It  is  sufficient  if  shown  to  have 
been  presented  at  his  house  or  place  of  busi- 
ness." A  note  drawn  or  bill  accepted  without 
specifying  the  place  of  payment  should  be  pre- 

La.  435.  lt-i6Me.4i.  l-i  Blackf.  81.  ni-18  Johns.  220; 
I  Pick.  401.  m-Id.  ;  17  Mass.  95  ;  7  Id.  486  :  9  Id. 
423.  n-2  Harrison,  487  :  9  Mass.  423  :  7  Id.  486:  17 
Id.  95  ;  I  Pick.  401  :  18  Johns.  220.  0-9  Barn.  &  Cress.,- 
3  Wend.  179.  p-Chitty  Bills,  365.  q-7  Cowen,  174, 
r-14  Pick.  172.  s-Byles  Bills,  159.  t-3  Leigh.  197;  } 
Wend.  460;  2  Show.  180  ;  7  East.  231.  n-5  Esj>.  265 
V-12  Ind.  223.  w-3  D?nio,  145 :  8^111,635;  a  Saw*' 
166:  15N.  Y.  575. 


|6S 


BILLS,  BONDS,  AND  NOTES, 


sented  fof  payment  to  the  maker  or  acceptor  at 
his  residence  or  place  of  business.*  If  made 
payable  at  a  place  named,  it  is  essential  to 
show,  in  an  action  against  a  drawer  or  indorser, 
a  presentment  at  the  place  appointed. '  A  note 
made  payable  at  a  particular  bank  (or  a  par- 
ticular place)'  is  sufficiently  demanded  if  left 
there  for  collection  on  the  day  it  becomes  due.' 
The  instrument  being  made  payable  at  a  speci- 
fied place,  it  is  immaterial  where  the  maker  or 
acceptor  resides ;  and  it  is  sufficient  if  the  pre- 
sentment be  made  at  the  place  so  named  or 
otherwise  agreed  upon  between  the  parties.'' 
But  if  a  note  or  bill  is  drawn  payable  at  a  bank, 
and  be  not  left  or  presented  there  for  payment 
at  its  maturity,  the  drawer  and  indorser  are 
prima  facie  discharged."  The  note  or  bill 
being  in  the  bank  ready  to  be  surrendered  upon 
payment  dispenses  with  the  necessity  of  making 
a  formal  demand.^  If  a  note  be  made  or  a  bill 
be  accepted  by  several  persons  who  are  not 
partners,  a  demand  of  payment  must  be  made 
on  each,  as  in  other  cases,  personally  or  at  his 
dwelling-house  or  place  of  business.*  If  one 
of  them  dies  before  the  day  of  payment  ar- 
rives, the  demand  must  be  made  upon  his 
legal  representatives.'  But  where  a  firm  accepts 
a  bill,  and  one  of  the  partners  dies  before  it  be- 
comes due,  the  presentment  for  payment  should 
be  made  to  the  survivor,  on  whom,  in  the  first 
instance,  the  liability  of  the  firm  devolves.^ 

Non-Payment.  The  contract  of  the  drawer 
of  a  bill  of  exchange  and  indorser,  whether  of 
a  negotiable  note,  bill,  or  check,  is  conditional ; 
and  one  of  the  conditions  upon  which  it  de- 
pends is  due  notice  of  non-acceptance  or  non- 
payment}^ If  the  holder  fail  to  give  the  notice 
of  dishonor  required  by  law,  the  general  rule 
is  that  the  drawer  and  indorsers  are  discharged 
from  their  respective  liabilities.'  If  the  bill  be 
presented  in  the  first  place  by  the  holder,  and 
payment  refused,  it  should  thereupon  be  placed 
in  the  hands  of  a  notary ,J  whose  duty  it  is  to 
present  it  again  to  the  drawee  and  demand 
payment ;  and  in  case  he  again  refuses  to  pay, 
the  notary  makes  a  minute  of  the  refusal,  of  the 
reason  assigned  therefor,  and  of  the  time,  add- 
ing his  initials.  From  this  minute  he  afterward 
draws  up  the  protest,  which  is  a  formal  decla- 
ration of  presentment  and  refusal  to  pay,  in  the 
usual  form,  stating  the  facts  according  to  his 
minute,"  A  protest  on  a  foreign  bill  is  a  part  of 
the  custom,  and  is  said  to  be  incident  to  the 
constitution  of  the  bill.'     It  should  be  made  by 

X-i6  La.  461 ;  14  Johns.  114 ;  i  Comst.  321.  y-5 
Denio,  329  ;  ig  Johns.  391 ;  18  Id.  315  ;  3  Id.  207  ;  8 
Bing.  214;  iM.  &G.  1017;  5  Id.  340;  4  Id.  7;  i  Moore 
&  Scott,  387.  B-I3  Mass.  558.  a-7  Wend.  160  ;  17  Johns. 
848;  15  Me.  67;  I  Stark.  475.  b-io  N.  H.  526;  14  La. 
373  ;  16  Me.  41 ;  11  Wheat.  171  ;  2  Peters,  543  ;  5  How. 
69  ;  12  Mass.  172.  C-i8Pick.  63.  d-5Denio,85  ;  2  Peters, 
543  ;  6  Mass.  524  ;  3  Green).  147  ;  9  Porter,  186.  e-8 
Met,  504.  f-5  Hill,  234;  I  Conn  367.  gr-2  Hill,  635. 
h-i  Comst.  413,  and  cases  cited.  i-2  T.  R.yi^;  5 
Id.  239:  3  Wend.  486;  17  Id.  94;  4  Hill,  761.  J -A  no- 
tary public  is  an  officer  known  to  the  law  of  nations,  and 
recognized  by  the  law  merchant,  and  whose  certificate, 
under  seal  of  office,  is  evidence  of  protest  in  a  foreign 
State  without  any  auxiliary  support,  and  is  so  received  in 
•U  courts,  according  to  the  usage  an^l  ct^stom  of  mer- 


a  notary  public,  or,  if  there  be  no  such  notary  in 
or  near  the  place  where  the  bill  is  payable,  by 
any  inhabitant  in  the  presence  of  two  witnesses." 
Bills  of  exchange  drawn  in  one  country  on  an- 
other, or  in  one  State  on  another,  are  foreign 
bills."  The  States  of  the  Union  are  not  foreign 
to  each  other  in  the  same  sense  as  are  separate 
and  independent  nations,  but  they  are  so  far 
foreign  to  each  other  that  the  convenience  of 
trade  and  commerce  requires  drafts  drawn  in 
one  State  on  another  to  be  considered  as  for- 
eign bills.  So  far  as  the  relations  of  business 
are  concerned,  no  distinction  can  be  reason- 
ably made  between  bills  drawn  in  England 
on  France,  or  in  France  on  Spain,  and  bills 
drawn  in  Ohio  on  New  York,  or  in  Iowa  on 
Louisiana.' 

The  demand  of  payment  from  the  maker  or 
drawee  on  the  last  day  of  grace,  and  notice  of 
non-payment  thereof  to  the  drawer  or  indorser, 
within  a  reasonable  time  thereafter,  is  due  dili- 
gence concerning  the  same,  unless  the  indorse- 
ment shall  express  other  conditions.  And  such 
demand  of  payment  and  protest  must  be  made 
by  the  notary  in  person ;  he  cannot  delegate 
his  official  authority.?  The  protest  should  be 
made  as  of  the  day  on  which  the  bill  or  note 
becomes  payable — that  is,  on  the  third  or  last 
day  of  grace  ;  though  it  need  not  be  drawn  up 
and  completed  in  form  until  afterward.'  It 
should  bear  the  date  or  show  that  the  protest 
was  made  on  that  day.''  With  exceptions  here- 
inafter mentioned,  notice  must  be  given  of  the 
non-payment  of  every  foreign  and  inland  bill, 
promissory  note,  and  check,  in  order  to  charge 
the  drawer  and  indorsers  under  the  law  mer- 
chant. No  precise  formula  of  words  is  neces- 
sary to  be  used  in  giving  the  notice ;  it  is  suffi- 
cient if  the  language  used  is  such  as  in  express 
terms,  or  by  necessary  implication,  conveys  no- 
tice to  the  drawer  or  indorsers  of  the  identity 
of  the  note  or  bill,  and  that  its  payment,  upon 
due  presentment,  has  been  neglected  or  refused 
by  the  maker  or  acceptor.'  And  it  is  immate- 
rial whether  the  notice  be  verbal  or  in  writing.' 
An  immaterial  variance  between  the  description 
contained  in  the  notice  and  the  bill  or  note  re- 
ferred to  will  not  vitiate  it.  To  render  the 
variance  fatal  it  must  be  such  that,  under  the 
circumstances  of  the  case,  the  notice  conveys 
no  sufficient  knowledge  to  the  indorsers  of  the 
identity  of  the  particular  note  or  bill  which 
has  been  dishonored."     Notice  of  the  dishonor 

chants.  15  Wend.  527  ;  7  Porter  (Ala.)  520;  i  Brev. 
428:  2  Bay  (S.  C.)  376;  i  Monr.  91.  U-Chitty  Bills, 
457.  A  protest  is,  in  form,  a  solemn  declaration,  written 
by  the  notary  under  a  fair  copy  of  the  bill,  stating  that 
payment  or  acceptance  has  been  demanded  and  refused,; 
the  reason,  if  any,  assigned,  and  that  the  bill  is  therefore 
protested,  Byles  Bills,  202.  I-2  Ld.  Raym.  993  :  Chitty 
Bills,  455.  m-i  Monr.  91 ;  3  Wend.  173.  11-6  B.  Mon. 
60;  4ld.6oo;  3Hill,53J  4Ga.  loi  O-i  Doug.  (Mich.) 
4SS;  7  Humph.  (Tenn.)  548.  p-5  Duer,  462  ;  Chitty 
Bills,  458  :  3  Hill,  55,  59.  q-3  Wend.  456;  2  Litt.  388, 
207:  4  J.  J.  Marsh,  332  :  26111,635.  r-4T.  R.170. 
si-i  Comst.  413;  4  B.  &  C.  339;  2  Johns.  Cas.  337;  9 
Wend.  279;  9  Peters,  33:  11  Wheat.  431 :  23VVena 
620;  14  Conn.  363;  10  Shep.  302.  t-4  Wend.  566 ;  8 
Mo.  336 ;  8  C.  &  P.  356.  «-i  Comst.  417 ;  5  Scld.  389; 
3  Bosw.  ^5$, 


BILLS,  BONDS,  AND  NOTES. 


169 


of  a  bill  or  note  by  non-payment  "  implies 
that  the  holder  means  to  insist  on  the  liability 
of  the  person  notified,  and  does  not  intend  to 
give  credit  to  the  acceptor  or  maker,  and  is 
universally  understood  to  be  equivalent  to  a 
demand  of  payment."  If  this  is  not  the  lan- 
guag*  of  the  transaction,  why  is  the  notice 
given?'  The  notice  advertises  to  the  indorser 
that  the  holder  looks  to  him  for  payment.*  He 
can  understand  the  notice  in  no  other  way,  for 
it  necessarily  implies  that  the  party  giving  it 
intends  to  insist  upon  his  right  of  recourse.'' 
The  notice  need  not  state  who  is  owner  of  the 
note  or  bill,  or  at  whose  request  it  is  given,y 
nor  the  day  when  the  note  was  protested  for 
non-payment,  or  the  place  where  it  was  payable. 
For  a  protest  is  a  declaration  in  writing,  made 
by  a  public  officer,  under  his  oath  of  office,  that 
the  bill  or  note  to  which  it  relates  was,  on  the 
day  it  became  due,  duly  presented  for  payment, 
and  that  payment  was  refused;  and  a  notice 
of  such  a  protest  is  not  merely  a  notice  that  this 
declaration  was  made,  but  that  the  facts  so  de- 
clared had  really  occurred.*  The  important 
thing  is  for  him  to  know  in  due  time  that  the 
paper  has  been  dishonored,  that  he  may  take 
prompt  measures  for  his  own  security.'  It 
is  not  necessary  that  a  copy  of  the  protest 
should  accompany  notice  of  the  dishonor  of 
a  foreign  bill.''  It  is  sufficient  to  inform  the 
drawer  or  indorser  that  the  bill  has  been 
protested  for  non-payment.*  But  the  protest 
must  be  produced  on  the  trial, <i  for  that  is  the 
indispensable  evidence  that  the  bill  has  been 
dishonored. 

A  notarial  protest  is  evidence  of  a  demand 
and  refusal  to  pay  a  bond,  promissory  note,  or 
bill  of  exchange,  at  the  time  and  in  the  manner 
stated  in  such  protest,  until  the  contrary  is 
shown. 

When  the  residence  of  the  parties  is  known 
to  the  notary,  it  is  his  duty  to  give  or  send  the 
notices  to  such  parties  as  are  intended  to  be 
made  liable.  When  the  residence  of  such  par- 
ties is  in  the  same  city  or  town  in  which  the 
protest  is  made,  and  the  residence  of  such  party 
is  known  to  the  notary,  there  should  be  a  no- 
tice in  person  delivered  by  the  notary,  or  left  at 
the  dwelling  or  business  house  of  the  party 
sought  to  be  charged  on  the  day  of  the  dis- 
honor of  the  paper,  or  before  the  expiration  of 
the  business  hours  of  the  succeeding  day. 
Where  the  residence  of  the  parties  sought  to 
be  made  liable  is  unknown  to  the  notary,  it  is 
his  duty  to  forward  the  notices  to  the  holder 
of  the  paper  by  the  first  mail  after  the  protest, 
or  on  the  day  succeeding  it.* 

Where  the  party  entitled  to  notice  resides  in 
one  place,  transacts  business  in  another,  and 

V-3  Conn.  516.  w-2  Q.  B.  419,  S.  C. ;  11  L.  J. 
<N.  S.)Q.  B.  224;  18  L.J.  (N.  S.)  125.  x-2  Hill. 
593;  2  Peters,  543;  11  M.  &  W.  372;  17  Me.  360.  y- 
26  Me.  45  ;  I  Pick.  401.  The  notice  does  not  usually 
state  the  name  of  the  holder,  5  Sand.  330  ;  18  Barb.  188. 
«-s  Sand.  330,  S.  C. :  5  Seld.  279  :  t8  Barb.  188,  S.  C. : 
2  Kern.  552.  B-23  Me.  392  ;  15M.&W.  231.  b-4A.  & 
E  870;  6  N.  &  M.  372.  c-Id.  15  :  Wend.  527 ;  10 
Mass.  1 :  4  MasQn,  336 ;  i  Poag.  (Mipb,)  45$ ;  a  Id.  435. 


receives  letters  in  each,  and  notice  is  to  be 
given  by  mail  from  a  third  place,  it  may  be 
directed  either  to  his  place  of  residence  or 
business.'  But  the  holder  is  bound  to  adopt 
that  mode  of  service  which  is  the  most  certain 
to  bring  the  notice  home  to  the  indorser.* 
Where  the  residence  of  the  drawer  or  indorser 
is  known,  and  the  notice  may  be  transmitted  by 
mail,  the  service  is  completed  by  inclosing  the 
notice  in  a  letter  or  envelope  and  depositing 
the  same  in  the  post-office,  properly  addressed 
and  prepaid.''  Where  the  law  permits  service 
by  mail,  the  indorser  takes  the  risk  of  miscar- 
riage and  of  all  accidents  which  may  prevent 
the  due  transmission  and  delivery  of  the  notice.' 
If  there  be  no  mail,  and  no  direct  and  regular 
communication,  the  notice  should  be  sent  by 
the  safest  and  most  expeditious  conveyance^ 
In  any  case,  the  holder  is  at  liberty  to  send  the 
notice  by  a  private  conveyance  if  he  chooses  to 
do  so.''  Where  the  service  of  notice  is  made 
by  mail,  the  holder  must  take  care  that  the  let- 
ter is  accurately  directed ;  if  a  delay  occurs 
through  his  neglect  in  this  particular,  it  will 
discharge  the  party  entitled  to  notice.  If  the 
drawer  or  indorser  designate  the  place  where 
the  notice  is  to  be  sent,  by  writing  it  under 
his  name,  the  notice  should  be  sent  to  the 
place  specified.'  When  the  holder  does  not 
know  and  cannot,  on  diligent  inquiry,  ascertain 
the  drawer  or  indorser's  residence  or  place  of 
business,  reasonable  and  due  diligence  is  tan- 
tamount to  actual  notice."  If  a  notary  inquire 
of  persons  who,  from  their  connection  with  the 
transaction,  are  likely  to  know  the  residence 
of  the  indorser,  and  are  not  interested  to  mis- 
lead the  notary,  and  he  acts  on  the  information 
thus  obtained,  it  is  due  diligence  on  his  part." 
The  loss  of  a  bill  is  no  excuse  for  the  absence 
of  protest." 

Notice  of  Service,  by  whom.  No- 
tice from  a  mere  stranger  is  not  sufficient  to 
charge  the  drawer  or  indorser.?  The  notice 
required  by  law  is  something  more  than  a  mere 
knowledge  of  dishonor,  communicated  to  the 
drawer  or  indorser ;  it  is  an  act  to  be  performed 
by  the  holder  or  his  agent,  or  by  some  person 
who  is  a  party  to  the  bill  or  note,  or  who  would 
on  the  same  being  returned  to  him,  and  after 
paying  it,  be  entitled  to  call  for  payment  or  re- 
imbursement.1  It  is  sufficient  when  it  comes 
from  the  holder,  to  charge  all  the  parties.  Be- 
cause he  has  a  right  to  look  to  them  all  for 
payment,  provided  he  gives  to  the  drawer  and 
indorsers  reasonable  notice  of  his  intention  to 
do  so.  And  a  notice  from  the  holder  to  all  the 
parties  inures  to  the  benefit  of  each  party  who 
stands  behind  him  on  the  paper ;  thus,  if  the 

d-io  Mass.  1 :  15  Wend.  527.  e-9  Bush.  380.  f-4 
Wend.  328  ;  3  Seld.  481.  g'-3Keman,  549.  h-i  Peters, 
578;  3  Kernan,  555;  3  Esp.  54;  2  H.  Bl.  509;  6  E^«t. 
8,9;  2  Smith,  195.  l-io  Peters,  572,  and  cases  cited  ; 
5  Johns.  375;  I  Pick.  401  :  8  W.  &  S.  14.  j-6  East.  3, 
10  :  Story  Bills,  ??  286,  287.  k-Holt  N.  P.  C.  476 ;  23 
Me  287.  l-io  Peters,  580  ;  i  Sand.  93  ;  25  Harb.  138. 
m-io  Peters,  572.  n-2  Sand.  178  ;  per  Oakey,  C.J. 
O-Poth,  145.  p-3  Wend.  173:  12  Pick.  406;  i  T.  K 
167.    q-Bayley  Bills,  7,  2  * ;    '  S^nd.  416 ;    15  Md.  150. 


I70 


BILLS,  BONDS,  AND  NOTES. 


holder  gives  due  notice  to  the  first  and  second 
indorser  of  a  promissory  note,  the  second  is 
entitled  to  recover  thereon  against  the  first  in- 
dorser on  showing  that  such  notice  of  dishonor 
was  duly  given.''  If  the  holder  gives  notice  to 
bis  immediate  indorser,  and  he  to  his  indorser, 
and  the  notice  is  in  this  manner  carried  back  to 
the  drawer  of  a  bill,  the  holder  is  entitled  to 
bring  an  action  thereon  against  either  of  the 
parties  that  have  been  duly  notified.*  A  party  to 
whom  a  note  or  bill  is  indorsed  for  collection 
may  give  the  notice  with  the  same  effect  as  if  the 
indorsement  had  been  made  for  value.*  Even 
where  the  paper  is  not  in  form  indorsed  to  the 
bank."  Possession  of  a  bill  or  note  by  a  notary 
is  evidence  of  a  right  to  protest  it;  and  when  a 
notice  signed  by  a  notary  public  is  duly  given 
it  is  presumed  to  be  done  by  the  authority  of  the 
holder.^  An  indorser  who  has  been  discharged 
by  the  laches  of  the  holder  or  subsequent  par- 
ties cannot  afterward  take  up  the  note  or  bill 
and  give  notice  so  as  to  charge  prior  parties, 
because  all  of  them  are  discharged  by  the  same 
want  of  diligence.''  A  notice  given  by  a  party 
in  possession  of  the  bill,  as  banker,  attorney,  or 
agent,  is  sufficient,  though  given  in  his  own 
name.*  Where  the  holder  is  not  satisfied  with 
the  responsibility  of  his  immediate  indorser,  his 
only  safe  course  is  to  give  notice  to  all  the  parties.? 

Notice   of   Service,  upon   whom. 

Generally.  It  is  necessary  to  give  notice  of 
non-payment  to  the  drawer  and  indorsers  of 
notes  and  bills  in  order  to  charge  them.  A 
person  who  indorses  an  absolute  guaranty  on 
the  back  of  a  negotiable  promissory  note  is  not 
entitled  to  notice  of  dishonor,"  and  one  who 
transfers  a  bill  without  indorsement  is  not,  by 
the  law  merchant,  entitled  to  notice ;  as  where 
a  draft  is  delivered  by  a  debtor  to  his  creditor 
on  account  of  the  indebtedness.*  When  a 
note  is  made  payable  to  the  order  of  two  or 
more  persons  who  are  not  partners,  and  in- 
dorsed by  them,  the  notice  of  dishonor  must 
be  given  to  each ;  and  if  one  of  them  die  before 
the  note  falls  due,  the  holder  must  be  careful 
to  charge  the  estate  of  the  deceased  indorser,  or 
else  he  will  not  be  entitled  to  recover  thereon 
against  the  other. ''  In  case  of  a  partnership, 
notice  to  one  is  notice  to  all."  If  the  indorser 
be  dead  at  the  maturity  of  the  note,  and  there 
be  executors  or  administrators  at  that  time 
known  to  the  holder,  notice  must  be  given  to 
them.  If  he  does  not  know  that  the  deceased 
has  left  a  will,  or  whether  any  administrators 
have  yet  been  appointed  or  not,  it  is  sufficient 
to  address  the  notice  to  the  executor  or  admin- 
istrator of  the  deceased,  or  to  the  indorser."* 

r-i8  Johns.  327.     R-2  Camp.  373  ;   2  Taunt.  244.     t-i 
Hill,  263:  2  Id.  451.      U-2I  N.  Y.  485.     v-17  Maine  (5 


Shep.)36o;   18  Johns.  230.     w-4  Barn.  &  Aid.  451. 

3  A.  &  E.  93  ;    3  M.   &  W.   109  ;    6  Shepley,  292.     y- 

Bayley  Bills,  7,  \  2.      z-19  Wend.  202 ;    17  Id.  214,  and 


cases  cited.  For  a  guaranty  is  an  unconditional  under- 
taking that  the  note  orbill  shall  be  paid,  20  Johns.  365  ;  5 
Wend.  307  ;  2  Comst.  225.  The  guarantor  stands  in  the 
light  ofa  surety,  and  may  be  discharged  by  the  negligence 
of  the  holder,  12  Peters.  497.  a-i  Wend.  219  ;  2  B.  &C. 
445-  b-5  Hill,  232  ;  I  Conn.  367.  Notice  to  one  of  several 
^int  drawers  who  itrc  not  partners  is  not  notice  to  the 


Notice  addressed  to  the  legal  representative  of 
the  deceased  indorser  to  the  place  of  his  last 
residence,  is  good;*  the  holder  not  knowing 
the  name  of  the  representative.'  Where  a  note 
or  bill  is  indorsed  by  a  firm,  and  one  of  the 
members  dies  before  it  falls  due,  it  is  sufficient 
to  give  notice  of  dishonor  to  the  surviving  part- 
ner. For  the  survivor  represents  the  firm,  and 
is  legally  answerable  as  such  for  its  debts.* 
Though  a  partnership  has  been  dissolved  by 
mutual  consent,  notice  to  one  of  the  members, 
given  before  the  fact  of  dissolution  has  been 
made  public,  is  notice  to  all.''  For  the  part- 
nership still  subsists  for  the  purpose  of  winding 
up  the  business  and  closing  the  concern,  and 
each  may  be  understood  to  act  as  the  agent  of 
the  rest  until  notice  of  dissolution  has  been  made 
public.  As  a  general  rule,  failure  to  give  the 
drawer  or  indorser  due  notice  of  non-payment 
discharges  him.  The  presumption  of  law  is 
that  he  is  injured  by  the  want  of  notice.'  That 
the  drawer  is  deprived  6f  the  opportunity  which 
he  ought  to  have  had  to  withdraw  immediately 
his  effects  from  the  hands  of  the  drawee,^  and 
that  the  indorser  is  prevented  from  taking 
prompt  measures  to  obtain  and  enforce  payment 
of  the  note  or  bill.''  And  this  presumption  is 
so  strong  and  uniform  as  to  exclude  proof  that 
the  drawer  has  not  been  injured,  in  all  cases 
except  those  in  which  the  evidence  is  offered  to 
bring  the  case  within  one  of  the  recognized 
exceptions  to  the  general  rule.' 

Exceptions,  An  agreement  made  by  the 
drawer  or  indorser,  before  dishonor,  waiving 
notice  of  non-payment,  or  waiving  the  protest 
of  a  bill  or  note,  will  render  him  liable  thereon 
just  the  same  as  if  due  notice  had  been  given." 
And  any  conduct  on  the  part  of  the  drawer  or 
indorser  calculated  to  or  actually  inducing  the 
holder  to  omit  serving  him  with  notice  will 
have  the  same  effect."  Any  words  by  an  in- 
dorser, waiving  demand  and  notice  before  dis- 
honor, will  render  a  formal  demand  and  notice 
unnecessary."  A  stipulation  by  the  indorser  of 
a  note  to  waive  notice  of  dishonor  dispenses 
with  the  necessity  of  giving  him  notice,  but 
does  not  dispense  with  the  demand  itself;  the 
two  acts  are  perfectly  distinct,  and  each  is  a 
condition  precedent  to  the  holder's  right  of  re- 
coveiy.P  But  where  the  indorser  of  a  note  re- 
quests the  holders  not  to  protest  it,  and  waiving 
the  necessity  of  protest  thereof,  this  is  a  waiver 
of  both  demand  and  notice ;  for  the  term  pro- 
test, when  used  among  men  of  business,  in- 
cludes all  those  acts  which  are  by  law  necessary 
to  charge  an  indorser.i     A  waiver  of  demand 

others,  7 Ohio  St.  281.  c-7  0hioSt.  281 ;  4Cowen,i26; 
4  S.  &  M.  479.  d-4  How.  (Miss.)  114;  4  S.  &  Marsh. 
749  ;  2  Humph.  112.  e-3  Humph.  538.  f-See  15  GrHt- 
tan,  501.  {f-9  Humph.  51  ;  4  S.  &  Marsh.  749;  5  Hill, 
232  ;  I  Johns.  Cas.  405  ;  2  Id.  374  ;  i  Wend.  148.  I1-6 
Lewis,  684  ;  6  Cowen,  441  :  Byles  Bills,  37,  39  :  19  Ala. 
(N.S.)7i7.  i-Chitty Bills,  435;  2  B.  &  P.  280.  J-17 
Wend.  94.  U-2  Johns.  Ch.  418.  I-3  Esp.  158  ;  17 
Wend.  94.  m-i  Comst.  186;  20  How.  496.  n-4  Camp. 
285  ;  I  Johns.  Cas.  99  ;  8  Eng.  (13  Ark.)  401  ;  13  Wend. 
504;  13  Barb.  i6-?.  O-32  Barb.  282:  17  Wend.  489;  ao 
I".  557-  p-'i  Wend.  629;  6  Mass.  524.  <|-3  Penio, 
k5  ;  \  Comst-  »96 ;  ^  Wheat.  573, 


BILLS,  BONDS,  AND  NOTES. 


171 


or  notice  made  by  a  drawer  or  indorser  is  not  a 
new  contract — it  is  only  a  waiver  of  one  of  the 
conditions  precedent  to  his  liability,  and  does 
not,  therefore,  require  any  consideration  to 
support  it.'  A  verbal  or  written  communica- 
tion to  the  holder,  dispensing  with  the  necessity 
of  demand  and  notice,  will  be  sufficient.' 
Where  the  indorser  writes  a  waiver  of  demand 
and  notice  over  his  signature  on  the  note,  his 
contract  becomes  absolute ;  he  is  bound  to  pay 
the  note  as  unconditionally  as  if  he  had  signed 
St  as  maker.'  It  puts  him  in  the  same  situ- 
ution  as  if  the  demand  had  been  made  and 
notice  of  dishonor  given  in  due  time."  A 
waiver  of  notice,  made  before  dishonor,  cannot 
be  proved  under  an  allegation  of  due  notice ; 
the  complaint  must  state  facts  constituting  the 
cause  of  action  on  which  the  plaintiff  seeks  to 
recover.^ 

If  the  indorser  has  taken  full  and  ample  se- 
curity against  the  liability  incurred  by  him,  he 
is  not  entitled  to  notice,  because  he  cannot  be 
prejudiced  by  want  of  notice;"  partial  or 
doubtful  security  falls  short  of  this,  and  leaves 
the  reason  of  the  rule  for  requiring  notice  in 
full  force. ^ 

When  a  bill  is  accepted  for  the  accommoda- 
tion of  the  drawer,  notice  is  unnecessary;  for 
it  is  obvious  that  the  drawer  cannot  be  injured 
by  the  want  of  notice  of  non-payment,  or  that 
he  can  suffer  any  legal  damage  in  consequence 
of  not  receiving  notice.?  So,  when  a  note  is 
made  for  the  accommodation  of  an  indorser 
who  is  ultimately  holden  to  pay  it ;  for  it  is 
clear  that  he  can  lose  nothing  from  the  failure 
to  receive  the  usual  notice  of  dishonor.*  But 
an  accommodation  drawer  or  indorser  is  entitled 
to  strict  notice.*  As  to  all  the  other  parties  to 
the  instrument,  his  rights  and  duties  are  the 
same  as  in  the  case  of  business  paper.'' 

A  drawer  is  not  entitled  to  notice  where  he 
has  no  funds  or  effects  in  the  hands  of  the 
drawee,"  but  to  this  exception  there  are  impor- 
tant modifications.  If  the  drawer  has  made  or 
is  making  consignments  to  the  drawee,  and 
draws  before  the  consignment  comes  to  hand  ■,•* 
or  if  the  goods  are  in  transitu,  but  the  bill  of 
lading  is  omitted  to  be  sent  to  the  consignee, 
or  the  goods  are  lost ;®  or,  if  the  drawer  has 
any  funds  or  property  in  the  hands  of  the 
drawee,  or  there  is  a  fluctuating  balance  be- 
tween them  in  the  course  of  their  transactions  ;' 
or  if  there  is  a  running  account  between  the 
drawer  and  drawee,  and  the  latter  has  been  in 
the  habit  of  accepting  the  bills  of  the  drawer 
without  regard  to  the  state  of  their  accounts  ;8 
or,  if  the  drawer  has  a  reasonable  expectation 

r-19  Penn.  St.  396.  s-4  Mass.  245;  6  Id.  409;  9  Id. 
159;  5  Shep.  (17  Me.)  16;  5  Pick.  436;  6  Wheat.  572; 

1  Comst.  186;  20  How.  496.  t-8  Cush.  157.  u-17  Penn. 
St.  303.  v-5  M.  &  W.  418 :  s  B.  &  Aid.  165 ;  13  Barb. 
162,  and  cases  cited,  wr-i  Esp.  302  ;  7  Wend.  165  :  5 
Mass.  170;  15  East.  222;  i  S.  &  R.  334;  34  Me.  227; 
19  Ala.  703;  13  Barb.  163;  3  Kernan,  155;  4  W.  &  S. 
328  ;  3  Md.  265.    x-3  Kernan,  55.    y-Q  B.  &  C.  44.   «- 

2  Peters  Cond.  64;  7  Wend.  168;  40  Me.  74.  a^^  Por- 
ter, 300;  10  Conn.  308;  95  Eng.  C.  L.  494.  b-9  Pick. 
547;  6  A.  &  E.  502;  4  Cush.  188.  c-i  T.  R.  405;  I 
Denio,  367;  2  Ala.  368;  21  Pick.  327.    <l-i2  East.  175. 


that  the  bill  will  be  paid,  he  is  entitled  to 
notice  of  dishonor.''  If  the  drawer  of  a  bill 
has  no  funds  or  assets  in  the  hands  of  the 
drawees,  or  expectation  of  funds,  or  any  ar- 
rangement or  agreement  with  them  to  accept 
the  bill,  he  cannot  ordinarily  suffer  any  injury 
for  the  want  of  notice,  and  he  is  not  entitled 
to  it.' 

The  indorser's  right  to  notice  is  not  at  all 
affected  by  the  drawer's  want  of  funds  or 
effects  in  the  hands  of  the  drawee  ;J  unless  the 
act  of  drawing  be  fraudulent  and  the  indorser 
implicated  in  the  fraud.'' 

Ignorance  of  a  party's  residence  will  excuse 
delay  in  giving  him  notice,  when  the  time  is 
consumed  in  the  use  of  diligence  to  acquire 
the  necessary  information.  It  would  be  very 
hard,  when  the  holder  of  a  bill  does  not  know 
where  the  indorser  is  to  be  found,  if  he  lost  his 
remedy  by  not  communicating  immediate  notice 
of  dishonor  of  the  bill.  The  holder  must  not 
allow  himself  to  remain  in  a  state  of  passive 
and  contented  ignorance ;  but  if  he  uses  reason- 
able diligence  to  discover  the  residence  of  the 
indorser,  notice  given  as  soon  as  this  is  discov- 
ered is  due  notice  of  the  dishonor  of  the  bill, 
within  the  usage  and  custom  of  merchants ;'  for 
exercise  of  reasonable  and  due  diligence  is 
equivalent  to  actual  notice.™  The  holder  or 
indorser  who  acts  upon  credible  information — 
information  on  which  he  has  a  right  to  rely,  in 
giving  notice  of  dishonor,  retains  his  right  of 
recourse  notwithstanding  he  may  have  been 
misled  in  regard  to  the  residence  of  the  party 
to  be  charged.  Delay  in  giving  notice  may 
also  be  excused,  because  the  day  on  which  the 
bolder  should  have  given  notice  is  a  public 
festival,  on  which  he  is  strictly  forbidden  by 
his  religion  to  attend  to  any  secular  affairs." 
"  The  law  merchant  respects  the  religion  of 
different  people.  For  this  reason  we  are  not 
obliged  to  give  notice  of  the  dishonor  of  a  bill 
on  our  Sunday,"  or  a  Jew  on  a  day  during 
which  his  religion  does  not  permit  him  to  attend 
to  any  sort  of  business.® 

Generally,  the  indorser  of  a  note  not  negoti- 
able is  not  entitled  to  the  usual  privilege  of  an 
indorser  of  negotiable  paper;  he  stands  as 
principal  and  not  as  surety  to  his  indorser,  and 
has  no  right  to  insist  upon  a  previous  demand 
of  the  maker  and  notice  of  non-payment. p 

Where  the  drawer  or  indorser  has  been  dis- 
charged by  the  laches  of  the  holder,  and  that 
fact  appears,  there  must  be,  in  order  to  render 
him  liable,  clear  proof  that  the  promise  was 
made  with  a  full  knowledge  of  all  the  facts 

e-16  East.  43 ;  3  Camp.  217.  f-15  East.  216,  221 ;  7  Id. 
359.  g^-i2  East.  175.  h-4  M.  &  S.  226;  2  Camp.  503; 
7  Bing.  217.  i-ii  Humph.  (Tenn.)  74;  28  Barb.  390, 
392;  Story  Bills,  J  311.  j-Peake,  202:  4  Cranch.  153. 
Is -4  Rand.  553.  l-Per  Ld.  Ellknborough,  2  Camp. 
463 ;  S.  C.  12  East.  433 ;  i  B.  &  C.  245  :  29  Eng.  L.  & 
Eq.  604.  in-3  M.  &  W.  i66;  4  Wheat.  438;  12  East. 
433;  2  Hill,  578;  3  Id.  520.  Ante  service  of  notict. 
2  Sand.  178  :  Id.  171,  and  cases  cited  :  3  Comst.  272  ;  4 
How.  345.  11-2  Camp.  602  ;  Chitty  Bills,  454,  o-Story 
Bills,  \  340.  p-8  Wend.  403  ;  Bine.  N.  C.  249:  2  Scott, 
423;  1  Hodges,  324,  S.  C;  11  Ohio,  102;  3  Clark* 
(Iowa)  366. 


ti» 


BILLS,  BONDS,  AND  NOTES. 


and  circumstances.'  A  promise  to  pay  under 
a  misapprehension  of  fact  is  no  waiver  of  the 
consequence  of  laches  ;"■  nor  is  a  promise  made 
in  ignorance  of  a  material  fact  a  waiver;  as 
where  the  drawer  or  indorser  promises  to  pay 
without  knowledge  that  no  notice  has  been 
sent.*  If  it  be  shown  that  the  holder  has  been 
guilty  of  laches,  it  must  also  appear  that  the 
promise  was  made  with  a  full  knowledge  of 
them,  or  it  will  not  bind  the  party  making  it.* 
But  if  no  laches  are  shown,  a  promise  to  pay  is 
presumptive  evidence  of  due  notice." 

Notice  of  Service — When.    Notice 

of  dishonor  cannot  be  given  until  after  a  demand 
and  refusal  of  payment.'  A  premature  notice 
is  a  nullity.  It  is  not  necessary  that  the  party 
giving  the  notice  should  have,  at  the  time,  per- 
sonal knowledge  of  the  dishonor."  A  notice 
given  on  the  day  the  bill  or  note  becomes  due 
is  not  too  soon,  for,  though  payment  may  still 
be  made  within  the  day,  non-payment  on  pre- 
sentment is  a  dishonor.*  And  when  the  third 
day  of  grace  falls  upon  Sunday,  fourth  of  July, 
twenty-tifth  of  December,  first  of  January,  or 
any  day  appointed  by  the  President  of  the 
United  Stales  or  the  governor  of  this  State  for 
a  public  fast  or  thanksgiving,  the  presentment 
for  payment  and  notice  of  non-payment  may 
be  made  on  the  next  preceding  business  day, 
which  is  in  either  case  the  last  day  of  grace.? 

Where  the  parties  reside  in  the  same  place, 
notice  to  the  drawer  or  indorser  on  the  day  of 
the  dishonor  and  after  it,  or  in  the  course  of  the 
next  succeeding  day,  is  reasonable,  and  is  in 
time  ;*  but  the  notice  is  not  in  time  unless  it  be 
given  so  as  to  reach  the  party  residing  in  the 
same  place  on  the  day  succeeding  the  dishonor. 
If  sent  by  post,  it  must  be  deposited  in  time  to 
be  delivered  on  that  day.*  If  by  private  hand, 
it  must  be  served  before  the  expiration  of  the 
day  succeeding  the  dishonor.**  It  is  not  at  all 
material  in  what  manner  the  service  is  made  if 
the  notice  actually  reaches  the  party  in  due 
time."  That  is,  on  the  right  day  and  within 
the  customary  hours  of  business,  having  respect 
to  the  usages  of  the  place.^ 

Where  the  parties  do  not  reside  in  the  same 
place  the  notice  of  dishonor  must  be  put  into 
the  post-office  early  enough  to  go  by  the  mail 
of  the  day  succeeding  the  last  day  of  grace,* 
unless  the  mail  of  that  day  is  closed  at  an  un- 

q-4  Humph.  (Tenn.)  336.  r-i  T.  R.  712 ;  5  Burr, 
267a.  s-8  Johns.  384.  t-5  Johns.  248;  12  Wheat.  183: 
ao  How.  495  ;  23  Wend.  379  :  36  N.  H.  540 ;  9  Cal.  236 ; 
33  Penn.  St.  134;  20  111.  557;  11  Ohio  St.;  10  Cush. 
159.  n-7  East.  231  :  14  Mo.  59.  V-2  Caines,  343;  38 
Penn.  St.  135.  w-4  Ellis  &  Blackburn,  615.  x-3 
Camp.  193;  2  Kernan,  551  ;  5  Sand.  330;  i  Johns.  Cas. 
328;  6  Wheat.  104;  9  Barr,  178.  y-i  Ld.  Raym.  743; 
Edw.  Bills,  Parsons  Bills,  z-23  Pick.  305:  2  Camp. 
»o8;  9  East.  347;  2  B.  &  A.  500.  »-3  C.  &  P.  250;  i 
Md.  285:  9  East.  347:  1  T.  R.  167;  11  Johns.  187.  I»- 
Holt.  C.  N.  P.  676:  2  Taunt.  224  ;  S.  C.  2  Camp.  373 ; 
3  Wend.  276.  c-i  Peters,  578;  7  Blackf.  447;  7  Ham- 
mond, 506;  8  Watts  &  Serg.  14.  «l-9  Wheat.  987 ;  2 
Burr,  660;  2  Hill,  635:  i  Md.  59;  18  Ala.  256.  e-2 
Wheat.  373  ;  9  Peters,  33  ;  2  Hill,  451  :  5  Cowen,  303. 
f-i  Ohio  State,  206;  i  Peters,  605.  618  ;  3  Pick.  180, 
183;  8  Id.  51  ;  9N.  H.559;  7  Gill.  &  Johns.  79  ;  18 
Me.  292  ;  5  Cowen,  303  ;  3  Wend.  276  ;  4  Leigh,  37  ;  a 
Marshall,  610;    5  Li'ttell,  24 ;    3  Conn.  489;   7  Watts  & 


reasonably  early  hour,  or  before  early  and  co»- 
venient  business  hours.*^  If  there  be  two  mails 
leaving  on  the  same  day,  the  first  closing  before 
the  common  hours  of  business,  it  is  sufficient  to 
transmit  the  notice  by  the  second.*  Indeed, 
the  holder  is  not  bound  to  send  ofif  the  notice 
by  a  mail  that  closes  before  the  usual  hours  of 
business  begin,  even  if  there  be  no  second  mail 
leaving  on  that  day."*  The  holder  is  not  bound, 
in  any  case,  to  send  off  the  notice  on  the  day 
of  the  dishonor;'  nor  is  either  of  the  indorsers 
bound  to  transmit  the  notice  to  his  indorser  on 
the  day  he  receives  it.  Each  party  has  a  day 
for  giving  notice.J  The  result  of  the  authorities 
then  is,  that  the  holder  of  a  bill  or  note  is  bound 
to  despatch  the  notice  of  dishonor  by  mail  on 
the  day  after  default  is  made  in  payment  of  it, 
unless  the  mail  closes  at  an  unreasonably  early 
hour ;  that  an  indorser  is  bound  to  use  the  same 
diligence  in  sending  it  forward  on  the  day  after 
he  receives  it;  and  that  neither  of  them  is  obliged 
by  law  to  send  it  forward  on  the  very  day  the 
bill  is  dishonored  or  the  notice  received.  When 
no  mail  leaves  on  the  day  after  notice  is  re- 
ceived, or  the  paper  is  dishonored,  it  is  suffi- 
cient to  put  the  letter  in  the  post-office  in  time 
to  go  by  the  next  mail.''  For  the  purpose  of 
giving  notice,  a  bank  or  banker,  with  whom  a 
bill  is  deposited  for  collection,  is  to  be  consid- 
ered as  a  distinct  holder,  and  has  a  day  to  give 
notice  to  his  customer;  while  the  customer  has 
another  day  in  which  to  give  notice  to  the  an- 
tecedent parties.'  The  rule  is  the  same,  though 
the  paper  be  transmitted  through  several  banks, 
indorsed  from  one  to  the  other  for  collection." 
The  holder  should  give  notice  of  dishonor  to 
all  the  parties  to  whom  he  intends  to  look  for 
payment,"  but  it  is  enough  for  him  to  send  or  give 
due  notice  to  his  indorsers  for  the  purpose  of 
charging  the  party  indorsing  the  bill  over  t© 
him  ;"  and  it  is  the  business  of  each  indorser  to 
take  care  that  the  party  responsible  to  him  is 
duly  notified.?  The  over  diligence  of  one  will  not 
supply  the  want  of  diligence  in  another.'  Rea- 
sonable diligence  in  giving  notice  (when  there  is 
no  dispute  about  the  facts)  is  a  question  of  law.' 

PAYMENT. 

Application  of.  The  debtor  has  the  first 
right  to  direct  the  application  of  any  payment 
he  may  make.»     But  to  make  such  application 

Serg.  264  ;  1  La.  222  ;  2  Rob.  243  ;  1  Ala.  752  ;  18  Conn. 
363  :  4  Bing.  715  ;  i  Bos.  &  P.  750  ;  $  M.  &  Sel.  68  ;  i 
S.  &  Marsh,  261,  664 ;  18  Conn.  373;  24  Me.  458.  K-t 
Hill,  263.  I1-24  Me.  458;  I  S.  &  Marsh.  644.  I-9 
Peters,  33  ;  i  Hill,  263 ;  Conn.  484  ;  7  Gill  &  Johns.  79  ; 
17  Mass.  449;  9  N.  H.  559;  2  Marshall,  610.  j-2 
Maule,  68.  K-i  Moody  &  Malkin,  61 ;  24  Maine,  458. 
I-5  Maule  &  Selw.  68;  2  Taunt.  388  ;  15  East.  290  ;  i 
Hill,  263  ;  21  N.  Y.  485,  487.     m-5  Cowen,  303  ;  2  Hill, 

_      -     _  .  .  -     -    P.  ; 


451 ;  3  B.  &  P.  590  ;  5  Mass.  167. 


n-3C. 
Johns.  230;    2  Hill,  457.     q-8  Foster,  302  ;   4  B.  &  Aid. 


Peters,  33.     0-2  Wheat.  377.   Jp-3  Johns.  Cas.  89  ; 


451  ;  4  Leigh.  37,  50;  5  Humph.  469;  8  Porter,  258;  ao 
Eng.  L.  &  Eq.  220 ;  15  M.  &  W.  231 ;  29  Eng.  L.  &  Eq. 
504.  r-2i  Wend.  64j;  11  Johns.  187  ;  6  Ohio,  66  ;  i 
Peters,  378;  aMarsh.  616;  7S.&R.323;  i7Mass.4S3. 
s-7  Wheat.  13:  20  Pick.  441 ;  5  Watts,  544;  2  Bailey, 
617 ;  4  Gill  &  Johns.  361 ;  8  Watts  &  Serg.  320;  s  Iredell, 
551  ;  7  Blackf.  236;  1  Kelly,  241 ;  i  Branch,  409  ;  Davies, 
146 ;  6  Com.  432.  The  rule  that  the  debtor  may  apply 
payment  as  he  pleases,  applies  only  to  voluntary  pay- 
ments, 10  Pick.  129. 


BILLS,  BONDS,  AND  NOTES. 


m 


be  must  give  directions  before  or  at  the  time 
of  payment."  If  no  appropriation  be  made 
by  him,  it  then  devolves  upon  the  creditor  to 
make  it."  Yet  the  creditor  must  make  such  an 
application  as  the  debtor  could  not  reasonably 
or  justly  object  to,°  and  such  as  would  be  most 
for  his  interest  at  the  time.P  If  there  are  two 
demands  and  the  debtor  pays  a  sum  exactly 
equal  to  one  of  them,  it  will  be  considered  as 
having  been  paid  in  discharge  of  that.i  If 
one  be  due  while  the  other  is  not,  the  payment 
applies  to  the  former.'  The  law  will  make  the 
application  first  to  the  interest  and  then  to  the 
principal.*  To  the  debt  which  is  prior  in  date.* 
To  the  debt  that  is  less  secured."  If  applica- 
tion be  directed  by  neither,  then  the  law  will 
make  the  application  according  to  equity.^  A 
debtor  or  creditor  cannot  appropriate  a  payment 
in  such  a  manner  as  to  affect  the  relative  lia- 
bilities or  rights  of  sureties  without  their  con- 
sent.'' 

Made — How.     Payment  of  negotiable 

notes  and  bills  must  always  be  made  in  money.* 
If  drawn  payable  in  anything  else  they  are 
not  negotiable,  and  are  not  governed  by  the 
rules  applicable  to  negotiable  paper.  For  in- 
stance, a  note  made  by  a  farmer,  payable  in 
farm  produce,  without  specifying  any  time  or 
place  of  payment,  is  payable  on  demand  made 
at  the  farm  of  the  debtor;  and  in  an  action 
against  the  maker,  it  is  necessary  to  show  a  re- 
fusal to  pay  on  such  demand.?  The  same 
principle  applies  to  where  a  merchant  gives  his 
note  payable  in  goods,  or  a  mechanic  gives  his 
due  bill  payable  in  work ;  the  goods  must  be 
demanded  of  the  merchant  at  his  store,  and 
the  work  must  be  required  of  the  mechanic  at 
his  shop."  There  is  no  absolute  safety  short  of 
a  payment  of  money.  If  the  holder  takes  pay- 
ment in  bank  bills,  it  may  turn  out  that  the 
bank  has  failed;  and  if  he  takes  a  check  it 
may  be  dishonored.  The  custom  of  merchants 
requires  that  the  holder  of  a  bill  shall  present 
the  instrument,  at  its  maturity,  to  the  acceptor, 
demand  payment,  and  upon  receipt  of  the 
money  deliver  up  the  bill.'  If  he  departs  from 
this  custom,  and  especially  if  he  takes  a  draft 
on  a  banker,  or  any  other  security,  whereby 
the  time  of  payment  is  extended,  though  only 
till  the  next  morning,  the  drawer  and  in- 
dorsers  will  be  discharged.  But,  if  the  time 
of  payment  is  not  extended,  and  the  holder  re- 
tains possession  of  the  bill,  so  that  he  is  ready 
to  surrender  it  on  payment  to  the  drawer  or  in- 

m-i  Overton,  488 ;  4  Iredell  Eq.  42.  n-2  Harr.  & 
Gill.  159;  4  Cranch.  316;  i  Mo.  315;  5  Day,  166; 
1  Pick.  332  :  10  Id.  129;  I  Scam.  196;  6  Watts  & 
Serg.  9 ;  20  Pick.  339  ;  23  Id.  473  ;  7  How.  681 ;  5 
Denio,  470;  14  N.  fif.  352.  0-19  Vt.  26;  i  Sanf.  S. 
C.  416;   12  S.    &  Marsh.  631 ;  21  Vt.  456;   14N.H.  431 ; 

B-2  N.  H.  193;  2  Harr.  &  Johns.  402;  [4  Pick.  314. 
avies,  146.  q-3  Caines,  14;  15  Wend.  19.  r-i  Bibb. 
334  ;  10  Watts.  255  ;  5  Mason,  11.  s-i  Harr.  &  Johns. 
754 ;  Id.  98 ;  I  Dcv.  341  ;  8  W.  &  S.  17  ;  i  Strobh.  426  ; 
8  S.  &  Marsh.  368 ;  3  Sand.  Ch.  608  ;  11  Paige,  619 ;  2 
Fla.  445.  t-4  Harr.  &  Johns.  351 ;  9  Wheat.  720  ;  10 
Conn.  175  ;  4  Mason,  332;  9  Shep.  138;  9  Watts.  386; 
I  Woodbury  &  Minot,  150;  11  Met.  174;  Davies,  146; 
14  N.  H.  431.  u-4  Ired.  Eq.  42 ;  2  Rich.  Eq.  43;  10 
S.  &  Marsh,  113.  v-Gilpin,  106;  12  S.  &  R.  301;  9 
Wheat.  720;  I  Mason,  323;  i  Harr.  &  Johns.  754;  2 


dorser,  and  the  demand  and  protest  are  made 
and  given  in  due  time,  there  is  no  reason  why 
the  taking  of  a  check  on  the  bank  as  a  means 
of  obtaining  the  money  on  the  bill,  should 
operate  to  discharge  any  of  the  parties  thereto.* 
The  taking  of  a  note,  or  draft,  or  check  is  no 
payment  unless  the  parties  make  it  such  by 
express  and  positive  agreement."  The  note  of 
the  debtor,  receipted  as  cash,  is  not  an  absolute 
payment;  nor  is  the  note  of  a  third  person, 
unless  it  be  expressly  accepted  as  payment.* 
Such  receipt  may  be  explained  or  even  contra- 
dicted." But  the  creditor  receiving  a  draft 
drawn  by  his  debtor  or  a  third  person,  may 
make  it  by  his  own  laches,  or  by  taking  some 
other  security  in  its  stead.'  When  bills  are 
taken  in  payment  of  a  debt,  and  the  creditor 
sues  on  the  original  consideration,  payment  of 
the  bill  will  be  presumed  until  the  contrary  ap- 
pear.K  And  where  a  creditor  takes  from  his 
debtor  a  check  on  a  bank  or  a  negotiable  note, 
he  cannot  recover  on  the  original  consideration 
without  showing  the  check  to  have  been  dis- 
honored or  surrendering  the  note  to  be  can- 
celled.'' A  check  drawn  payable  to  the  order 
of  the  creditor  and  indorsed  by  him,  produced 
by  the  debtor,  is  evidence  of  payment  of  so 
much  money ;'  and  proof  of  delivery  of  the 
check  to  him  in  payment  of  the  debt,  though 
payable  to  bearer  and  the  production  of  it  by 
the  drawer,  will  raise  the  presumption  that  the 
person  to  whom  it  was  delivered  received  the 
money  on  it  .J 

Payment  means  payment  in  due  course  and 
not  by  anticipation;  and  if  a  negotiable  note 
or  bill  of  exchange  be  paid  before  its  maturity, 
and  not  surrendered,  and  afterwards  came  into 
the  hands  of  a  6ona  fide  holder,  it  is  valid 
security  in  his  hands. ^  A  bank  that  pays  a 
check  prematurely  does  not  thereby  appropri- 
ate the  drawer's  funds ;  it  is  a  payment  without 
authority.'  The  acceptor  of  a  bill,  whether 
inland  or  foreign,  and  the  maker  of  a  promis- 
sory note,  should  pay  it  on  demand  at  any  time 
within  business  hours  on  the  day  it  becomes 
payable ;  and  if  it  be  not  paid  on  such  demand, 
the  holder  may  instantly  treat  it  as  dishonored.™ 
But  the  maker  or  acceptor  has,  as  we  have  seen, 
the  whole  of  that  day  in  which  to  make  pay- 
ment; and  though  he  should  in  the  course  of 
the  day  refuse  payment,  and  thus  entitle  the 
holder  to  give  notice  of  dishonor,  still  if  he 
makes  payment  afterward  on  that  same  day,  it 

Vt.  283 ;  12  Id.  256 ;  I  Branch.  409 ;  5  Oilman,  449. 
W-Gilpin,  106;  12  N.  H.  320;  i  McLean,  493;  5  S.  & 
Marsh.  410;  5  Leigh.  329.  x-4  Car.  &  Payne,  508.  y- 
5  Cowen,  516;  2  Bibb.  280;  16  Mass.  453;  i  Hempst. 
67.  z-5  Cowen,  518;  2  Denio,  145.  a-7  Bam.  &  Cress. 
90;  8  Barb.  408.  b-Chitty  Bills;  Story  Bills,  c-3 
Johns.  68;  9  Id.  310;  15  Id.  224;  6  Wend.  490;  5 
Denio,  360;  3Comst.  168;  7  Abb.  259  ;  10  Md.  27.  d.5 
Johns.  68.  e-i  Sand.  9  ;  5  Wend.  85.  f-9  Wend.  122  ;  5 
Hill,  466;  I  Sand.  81;  23  Wend.  345.  gr-sEsp.  52;  3  E. 
D.Smith, 253.  h-i  Johns.  34;  10 Id.  104:  15 Id.  147;  x 
M.  &  R.  365 ;  29  Penn.  St.  448.  Thebankstamp  "paid" 
may  be  explained  by  showing  it  was  made  by  mistake, 
Hill  &  Denio,  363.  I-3  Esp.  196.  J-4  Taunt.  493  ;  4 
Esp.  9.  lt-4  Mass.  372  ;  11  Johns.  128  ;  ia  Gratt.  i ;  3 
Camp.  N.  P.  193 ;  3  T.  R.  80 ;  Chitty  Bills,  260,  395. 
1-6  Duer.  76 ;  13  East.  516;  8  Wend.  478.  III-3  B.  & 
P.  599;    4  T.  R.  170. 


J74 


fiiLLs,  Bonds;,  and  notes. 


will  be  sufficient,  and  will  render  the  notice  of 
the  dishonor  of  no  avail."  The  indorser,  of 
course,  becomes  liable  to  an  action  as  soon  as  the 
credit  given  to  the  maker  or  acceptor  has  expired." 

Who  by.     The  maker  of  a  promissory 

note  and  the  acceptor  of  a  bill  of  exchange, 
being  the  parties  primarily  liable,  are  bound  to 
pay  the  bill  or  note  at  its  matunty ;  hence  the 
payment  of  a  note  by  the  maker,  or  the  pay- 
ment of  a  bill  by  the  acceptor,  when  properly 
made,  discharges  the  drawer  and  indorsers 
thereon,  and  cancels  or  puts  an  end  to  the  secu- 
rity as  an  existing  obligation.?  When  a  bill  is 
paid  by  an  accommodation  acceptor,  the  law 
implies  a  contract  on  the  part  of  the  drawer  to 
refund  to  the  acceptor  the  amount  so  paid,  with 
such  damages  as  he  may  have  sustained  in  the 
transaction.*!  Having  been  paid,  it  remains  in 
the  hands  of  the  acceptor  as  a  voucher  to  be  used 
by  him  in  his  settlement  with  the  drawer,  or  as 
an  item  of  evidence  in  an  action  brought  for 
the  recovery  of  the  money  paid.""  The  same 
principles  apply  to  the  case  of  a  promissory 
note,  made  for  the  accommodation  of  the  payee, 
or  of  some  other  person  to  whom  it  is  delivered 
for  negotiation.*  And  payment  of  the  note  by 
the  surety,  while  it  cancels  the  note,  raises  an 
implied  contract  on  the  part  of  the  principal 
debtor  to  repay  the  same  to  the  surety.'  As 
between  the  makers  of  a  note  and  the  payee  or 
holder,  the  makers  are  all  principals,  though 
one  of  them  signs  as  "  security.""  As  between 
themselves,  the  relation  of  the  parties  may  be 
proved.'  Payment  of  a  note  or  bill  by  an  in- 
dorser is  a  satisfaction  of  it  only  in  respect  to 
subsequent  indorsers.  An  indorser  who  takes 
up  by  paying  dishonored  paper  becomes  the 
holder  as  against  prior  parties,''  and  may  trans- 
fer it  or  put  it  into  circulation  ;  it  is  paid  only 
as  to  subsequent  indorsers;*  for  a  bill  is  not 
discharged  until  paid  by  or  on  behalf  of  the 
acceptor,  nor  a  note  until  paid  by  or  on  behalf 
of  the  maker.y  For  this  reason,  when  an  in- 
dorser takes  up  a  dishonored  note  or  bill,  he  is 
at  liberty  to  put  it  again  in  circulation  ;*  whereas 
payment  by  the  maker  of  a  note  or  the  acceptor 
of  a  bill  discharges  it,  so  that  it  is  no  longer 
negotiable.'  One  who  voluntarily  and  offi- 
ciously pays  the  debt  of  another,  without  request 
or  authority  to  do  so  from  the  debtor,  cannot 
recover  from  him  the  sum  paid."*  After  a  for- 
eign bill  has  been  protested  for  non-payment, 
any  person  may  pay  it  (under  protest)  for  the 
honor  of  the  drawer  or  indoreer,  and  is  entitled 
to  demand  repayment,  not  only  from  the  person 
for  whose  honor  he  made  the  payment,  but 
from  all  other  parties  who  are  liable  to  that 

n-T  Wend.  170;  2Cowen,766;  Byles  Bills,  17s;  6 
W.  &  S.  179.  0-2  Dowl.  P.  C.  81 ;  I  Cromp.  M. 
&  Ros.  370;  3  Tyrw.  487.  p-2  Denio,  205.  «|-3 
Barb.  634.  r-7  Barb.  143 ;  2  Denio,  205  ;  5  Hill, 
160;  ai  Wend.  502.  s-3  Johns.  Cas.  5;  i  Wils.  85; 
%  T.  R.  182  :  3  Camp.  loi  :  2  Wheat.  385.  t-Byles 
Bills,  193  ;  5  Blackf.  37.  u-6  Barb.  199  ;  2  Comst.  406. 
V-io  Barb.  512.  w-29  Conn.  347.  x-14  Gratt.  i.  y- 
Byles  Bills,  174  ;  6  Foster,  422.  1-3  Wend.  75  ;  i  Cow- 
e".  387 ;  3  Comst.  494.  tt-2  Met.  238 ;  2  Eng.  C.  L.  R. 
267.  b-3  Johns.  434  ;  8  Id.  436  ;  14  Id.  87.  C-Bayley 
gilU,  Ck.  8,  g  I ;    13  Johns.  322.      d-4  Miller  (La.)  530- 


person."  With  this  exception  to  the  general 
rule,  there  is  no  reason  why  an  officious  pay- 
ment and  .satisfaction  of  a  bill  or  note  should 
not  be  held  to  cancel  the  security."* 

Who  to.     Payment  should  be  made  to 

the  holder  and  real  proprietor  of  the  bill,  or  to 
some  person  authorized  by  him  to  receive  the 
same  ;«  it  should  be  made  to  the  party  having 
the  title  and  possession  of  the  instrument.'  If 
drawn  payable  to  bearer,  or  indorsed  in  blank 
so  that  the  title  passes  by  mere  delivery,  pos- 
session alone  is  presumptive  evidence  of  title 
and  sufficient  authority  to  demand  and  re- 
ceive payment.8  The  maker  or  acceptor  will  be 
protected  in  paying  a  note  or  bill  to  the  party 
presenting  it  under  such  circumstances  as  would 
give  a  right  of  action  thereon  to  a  purchaser  in 
good  faith  for  value.''  And  he  is  bound  to  pay 
a  dona  fide  holder  who  has  parted  with  value 
for  the  same  before  it  became  due,  notwith- 
standing it  may  have  been  previously  lost  or 
stolen.'  But  having  notice  that  the  bill  or  note 
has  been  lost  by  the  real  proprietor  or  stolen 
from  him,  he  should  not  pay  the  same  to  the 
finder,  or  other  person,  until  the  latter  estab- 
lishes a  clear  title  or  gives  an  adequate  indem- 
nity against  the  claim  of  any  other  person.^ 
With  notice  of  the  loss,  the  maker  or  acceptor 
pays  at  his  peril ;  for  if  it  turns  out  that  the 
party  in  possession  was  not  the  real  owner  of 
the  bill  nor  entitled  to  recover  thereon  as  :i 
bona  fide  holder,  he  will  be  obliged  to  pay  it 
over  again  to  the  real  proprietor.*  In  deter- 
mining the  question  of  title,  where  a  note  or 
bill  is  presented  for  payment,  the  maker  or  ac. 
ceptor  must  ascertain  whether  the  indorsements 
are  properly  made,  so  as  to  vest  the  title  in  the 
person  demanding  payment.'  The  maker  must 
at  all  events  see  that  he  pays  to  the  order  of  the 
payee,  for  if  his  indorsement  is  a  forgery,  or 
spurious,  it  is  a  payment  by  mistake."  If  the 
indorsements  on  the  note  or  bill  be  in  blank,  it 
is  sufficient  to  make  certain  that  the  payee's  in- 
dorsement is  genuine ;  but  if  the  successive  in- 
dorsements be  special,  the  holder  cannot  derive 
title  to  the  paper  through  a  forged  indorsement. 
Thus,  where  the  payee  of  a  note  drawn  payable 
to  him,  or  order,  indorses  it  specially  payable 
to  A.  or  order,  and  he  again  indorses  it  specially 
payable  to  B.  or  order,  the  title  to  the  note  is 
in  B.,  and  no  other  person  has  the  right  to  de- 
mand  payment  of  it  except  as  his  agent."  Pes. 
session  of  a  note  transferable  by  delivery  only, 
or  indorsed  in  blank,  is  prima  facie  proof  of 
title."  The  case  is  different  where  the  payee 
indorses  it  in  blank  :  here,  though  there  are  sub- 
sequent special  indorsements  on  the  note,  the 


e-ii  East.  40;  Dougl.  623.  f-i  Hill,  287;  i  Kern.  404  ; 
I  Duer,  434  ;  17N.Y.  205;  20  Id.  138  :  13  Ind.  516:  »- 
18  Johns.  230.     h-2  Johns.  50 ;    i  Denio,  583 ;    5  Wend. 


600  ;  8  Id.  478.  l-ii  Johns.  128 ;  1  Hall,  562  ;  2  Pick.  545  ; 
4  Watts  &  Serg.  545  ;  Burr,  452,  1516.  J-13  East.  135  ;  » 
Rose, 99:  9  B.  &C.  208.  k-4  Taunt.  799 :  2C.&P.  261; 
4M.&W.  16.  l-i  Hill,  287.  m-i  K.ernan,402;  12N.  Y. 
205;  20  Id.  138.  n-15  Johns.  247  ;  Story  Notes, §  383.- 
2  Camp.  N.  P.  214,  «. ;  6  Esp.  57;  Cnitty  Bills,  231, 
268  ;  3  Cowen,  303  ;  8  Conn.  431  ;  3  Wend.  344.  O.^ 
Mass.  451 ;  11  Id.  288;  16  Pick.  135;  6  Blackf  485  ;  1/ 
Johns.  104 ;  18  Eng.  L.  &  Eq.  5x4. 


BILLS,  BONDS,  AND  NOTES. 


«75 


holder  is  at  liberty  to  deduce  his  title  through 
the  first  indorser  ;P  and  hence  the  maker  is  pro- 
tected in  paying  the  note  to  the  party  in  posses- 
sion, just  the  same  as  if  it  had  been  originally 
made  payable  to  bearer.  If  the  first  indorse- 
ment be  special  and  the  second  in  blank,  the 
subsequent  holder  takes  title  through  both  of 
these  indorsements,'  and  the  maker  should  see 
that  both  of  them  are  genuine  when  he  pays  the 
note.  Where  the  person  receiving  payment  on 
a  foiged  bill  has  no  recourse  to  any  other  party 
thereon,  or  has  the  same  right  of  action,  not- 
withstanding the  want  of  notice,  the  question 
of  laches  does  not  arise.  Thus,  where  the 
drawee  accepts  and  pays  a  bill  payable  to  the 
order  of  a  fictitious  person,  or  to  the  order  of  a 
real  person  who  never  had  any  interest  in  the 
bill,  and  whose  name  has  been  forged  upon  it 
by  the  drawer,  the  bill  being  negotiated  in  that 
condition,  and  none  of  the  parties  but  the  drawer 
having  any  knowledge  of  the  forgery,  the  drawee 
or  acceptor  cannot  recover  back  the  money. 
The  title  to  the  bill  passes  in  the  same  manner 
as  if  it  had  been  drawn  payable  to  a  fictitious 
person,  or  to  bearer;  and  inasmuch  as  the  ac- 
ceptor has  no  recourse  to  the  prior  parties,  he 
has  no  right  to  recover  back  the  money  so  paid.' 
Where  a  bank  pays  a  forged  check,  or  a  check 
that  has  upon  it  the  genuine  signature  of  its 
customer,  but  has  been  fraudulently  altered  to 
a  larger  sum,  it  cannot  debit  the  drawer  with 
the  sum  so  paid  without  authority.'  But  if  a 
bill  or  check  be  drawn  in  so  careless  and  im- 
proper a  manner  as  thereby  to  enable  a  third 
person  to  practise  a  fraud,  the  customer  and 
not  the  bank  must  bear  the  loss.*  A  draft  that 
has  not  been  accepted  and  a  bank  check  should 
not  be  paid  after  notice  from  the  drawer  counter- 
manding the  authority,  nor  after  the  death  of  the 
drawer,  which  is  a  revocation  of  the  authority." 

The  person  transferring  a  negotiable  note  or 
draft,  whether  by  indorsement  or  delivery,  im- 
pliedly guarantees  the  title  to  it,  unless  the 
transfer  be  made  under  such  circumstances  as 
to  show  clearly  that  the  purchaser  took  it  at  his 
own  risk.^  And  hence  the  person  who  obtains 
money  or  goods  on  the  instrument,  or  has  it 
discounted,  is  bound  to  refund  what  he  has  re- 
ceived, in  case  it  proves  to  be  a  forgery."  But 
if  the  transfer  is  made  without  indorsement, 
the  person  transferring  it  is  liable  only  to  his 
immediate  assignee — he  is  not  a  party  to  and  is 
not  liable  on  the  bill.* 

A  party  paying  money  under  a  mistake  of 
law  cannot  recover  it  back  ;  but  if  he  pay  money 
under  a  mistake  of  the  real  facts  (and  has  not 
omitted  to  avail  himself  of  the  means  of  knowl- 
edge in  his  power),  he  may  recover  back  such 
money.y 

p-i  Denio,  608  ;  4  Johns.  27.  q-i  Sand.  199  ;  6  Esp. 
57.*  r-i  Comst.  113  ;  Chitty  Bills,43i ;  16  N.  Y.  336;  90 
Eng.  C.  L.  519.  s-S  Barn.  &  C.  750  ;  2  Camp.  485  ;  i 
Kernan,  404.  t-4  Bing.  228  :  6  C.  &  P.  18.  u-Chitty 
Bills,  429,  430  ;  2  Ves.  Jun.  118;  24  Wend.  240.  v-5  Taunt. 
488  :  5  Id.  495  ;  6  Mass.  321  ;  7  Yerg.  310 ;  2  Johns.  455  ;  5 
Conn.  71;  7T.  R.66:  2B.  &  P.  518.  w-iC.  &P.  197:  15 
Johns.  240.  x-Ld.  Raym.  928:  15  East.  7.  y-6  B.  & 
D.  671;  16  N.  Y.  336;  34  Barb.  323;  3  Moore,  635;  12 

n 


Receipts.     Where  a  part  payment  is 

made  on  a  negotiable  note  or  bill,  the  party 
paying  should  have  a  receipt  indorsed  upon  the 
instrument;  otherwise,  he  may  be  compelled  to 
pay  it  over  again  to  a  dona  fide  holder.*  But 
the  maker  of  a  note  or  due  bill  not  negotiable, 
may  safely  pay  money  on  it  to  the  payee,  where 
he  has  no  notice  or  reason  to  suppose  that  it 
has  been  assigned."  When  paid  in  full  it  should 
be  surrendered  or  cancelled,  so  that  the  maker 
may  not  afterward  be  compelled  to  prove  that 
it  has  been  satisfied. •>  The  acceptor  of  a  bill 
on  being  called  on  for  payment  is  entitled  to 
have  the  bill  surrendered  to  him  as  a  voucher, 
and  the  maker  of  a  negotiable  note  stands  in 
the  same  relation  ;  neither  of  them  can  be  com- 
pelled to  pay,  unless  the  holder  produces  and 
offers  to  deliver  up  the  instrument,  or  tenders 
sufficient  indemnity,  where  it  has  been  lost." 
And  the  indorser  paying  a  note  has  the  right 
to  demand  that  it  be  surrendered  to  him."*  A 
receipt  not  specifying  by  whom  the  payment 
was  made,  indorsed  on  the  back  of  a  bill,  is 
presumptive  evidence  that  the  bill  was  paid  by 
the  acceptor.*  But  the  signature  of  the  person 
signing  the  receipt  must  be  proved,  and  it  must 
appear  to  be  that  of  a  person  entitled  to  receive 
payment.'  A  receipt  indorsed  on  a  note  may 
be  contradicted  or  explained  like  any  other  re- 
ceipt for  money  paid.*  The  maker  or  acceptor 
of  notes  and  drafts  not  negotiable,  cannot  refuse 
to  pay  on  the  ground  that  they  are  not  pro- 
duced and  ready  to  be  surrendered.''  The 
assignee  of  such  paper  takes  it  subject  to  what- 
ever defence  the  maker  or  acceptor  may  have 
to  it,  as  against  the  payee.*  Where  the  creditor 
accepts  the  note  of  a  third  person  as  payment, 
it  is  a  good  accord  and  satisfaction .J 

Release  of  Principal  Debtor.    The 

drawer  of  a  bill,  and  each  of  the  successive 
indorsers,  whether  of  a  note  or  bill,  being 
charged  with  notice  of  nonpayment  upon  a 
due  demand  made,  is  bound  to  pay  the  amount 
and  take  up  the  paper.  He  cannot,  like  a 
surety,  require  of  the  holder  active  diligence 
to  collect  the  money  of  the  party  primarily 
liable  to  pay ;  nor  does  he  generally  enter  into 
the  contract  without  a  full  and  valuable  con- 
sideration.^ By  entering  into  a  contract  with 
the  maker  of  a  note,  or  acceptor  of  a  bill,  ex- 
tending the  time  of  payment,  the  holder  tacitly 
engages  to  give  the  same  credit  to  all  the  parties 
who  may  be  entitled  to  a  remedy  over  against 
the  maker  or  acceptor.'  To  give  his  contract 
legitimate  effect  is  to  arrest  the  remedies  of  all 
the  parties  on  the  bill  or  note,  and  thus  convert 
the  contract  of  each  into  a  different  under- 
taking.    So  when   the  holder  enters  into  an 

East.  434.  as-i  Esp.  463:  2  Hill,  140;  20  N.  Y.  138. 
a-9  Johns.  64;  12  Id.  343.  b-io  Wend.  85;  16  Id. 
659.     c-7  Barn.  &  Cress  90.     cl-8  Barb.  408.     e-Peake's 


Cas.  25.     f^  Camp.  439  ;  ^  Peake,  179  ;     \  Esp.  473  ;    3 
Johns.  104  :    3  Wend.  344  ;    12  Id.  173.     I-15  M!ss._2o4. 


Id.  196;  4  Taunt.  293  :  7  La.  82  :    4  M.  &  G.  804.     g-s 
B.  &  A.  313.     h-io  Adol.  &  Ellis,  616 ;  4  Bine.  273  ;  10 


J-i  Sand.  9 :  see  Accobd  ANr  Satisfaction;  Con- 
tracts. lt-7  Wend.  610;  8  Id.  194;  16  Johns.  153. 
1-Story  Notes,  414 ;  Chitty  Bills,  408,  410. 


in6 


BILLS,  BONDS,  AND  NOTES. 


agreement  with  the  maker  or  acceptor,  founded 
on  a  good  consideration,  giving  him  time  for 
payment,  the  contract  operates  as  a  release  of 
the  drawer  and  indorsers."  But  a  contract  not 
based  upon  a  valid  consideration,  does  not 
have  the  effect  of  a  release;  for  delay  under 
such  a  contract  is,  in  the  eye  of  the  law,  merely 
gratuitous."  A  contract  made  with  the  drawer 
of  a.  bill,  or  with  the  prior  indorser  of  a  note 
or  bill,  will  discharge  all  subsequent  indor- 
«ers,°  but  will  not  operate  as  a  release  of  the 
■naker  or  acceptor.^  As  between  the  first  and  sub- 
sequent indorsers,  the  former  is  regarded  in  the 
light  of  principal ;  he  stands  behind  them  upon 
the  paper,  and  is  bound  to  take  it  up  in  case  of  the 
default  of  the  maker.  The  contracts  of  the  sev- 
eral indorsers  arc  like  so  many  links  in  a  chain, 
and  if  the  holder  consent  to  dissolve  the  first, 
the  chain  is  no  longer  capable  of  binding  either 
of  the  parties.i  So  long  as  the  holder  makes 
no  valid  and  binding  agreement  for  delay,  he 
is  at  liberty  to  use  every  endeavor  to  secure  the 
payment  of  the  bill  or  note ;  he  may  receive 
part  payment •,■■  he  may  take  new  securities;' 
he  may  negotiate  for  delay;*  he  may  receive 
and  transmit  propositions  to  the  indorsers  for 
an  extended  credit;"  and  he  may  voluntarily 
forbear  to  bring  an  action  against  any  or  all  of 
the  parties,  so  long  as  he  can  without  com- 
ing into  contact  with  the  bar  raised  by  the 
statute  of  limitations.  An  agreement  made  by 
the  holder  with  the  principal  debtor,  extending 
the  time  of  payment,  or  even  releasing  him 
from  his  liability,  will  not  discharge  the  drawer 
or  indorser  if  he  assents  to  the  arrangement.^ 
So,  if  the  holder  give  time  to  the  maker  or 
acceptor,  and  the  drawer  or  indorser  afterward 
promises  to  pay,  with  knowledge  of  the  fact, 
he  is  precluded  from  taking  advantage  of  the 
indulgence  so  granted.*  A  release  of  a  debt 
or  liability  given  on  a  good  consideration  ex- 
tinguishes the  indebtedness;''  but  a  release 
without  consideration,  and  not  under  seal,  is 
void.y  A  new  consideration  gives  effect  to  a 
release  not  under  seal.*  Where  one  of  the 
makers  of  a  promissory  note  adds  to  his  signa- 
ture the  word  "  surety,"  the  holder  is  bound  to 
treat  him  as  such,  and  cannot  vary  the  terms 
of  the  contract  by  extending  the  time  of  pay- 
ment, or  otherwise,  so  as  to  increase  the  risk 
of  the  surety  without  discharging  him.  An 
extension  of  credit  to  the  debtor  for  one  day 
discharges  the  surety  as  effectually  as  if  made 
for  one  year.*  Taking  security  from  or  giving 
time  to  one  of  several  joint  makers  of  a  note, 
or  acceptors  of  a  bill,  does  not  discharge  the 
others. '•  Several  sureties  who  successively  sign 
a  note  at  the  request  of  the  principal,  without 
communication  with  each  other,  are  bound,  on 
the  failure  of  the  principal,  to  contribute  equally 

111-7  Wend.  290 ;  17  Id.  501 ;  8  East.  576  ;  4  Bing.  717. 
11-4  Bing.  717  ;  12  Wheat.  554  ;  i  B.  &  P.  652  ;  10  Johns. 
180.   0-2 1  Wend.  108.    p-7  Paige,  Ch.  9.   q-3  Esp.  46 :  2 

B.  &  P.  61.  r-8  East.  576  ;  i  Johns.  Cas.  131  ;  3  M'Cord, 
13;  16  Johns.  41.  s-i  Barn.  &  Cress.  14.  t-2  Car.  & 
P.  468.  11-16  East.  105.  V-17  Johns.  170;  10  Pick. 
528;    Id.  533;    16  Ind.  91.     w-ii  East.  38.     x-4  B.  & 

C.  S°6i  S'S,  «■    y-i  Cowen,  122;    7  Id.  224;    17  Johns. 


to  the  payment  of  the  note.*  The  word  surety 
added  to  the  signature  of  a  maker  is  evidence 
that  he  did  not  give  the  note  for  value  received 
by  him.*  Where  a  bill  of  exchange  is  accepted 
for  the  accommodation  of  the  drawer,  the 
holder  does  not  discharge  him  by  giving  the 
acceptor  further  time  for  payment ;  for  here  the 
drawer  is  ultimately  liable  to  pay  the  amount 
secured  by  the  bill,  and  does  not  stand  in  the 
light  of  a  surety.*  Nor  will  an  agreement 
with  the  drawer,  giving  him  time  for  payment, 
discharge  the  acceptor  for  his  accommodation.' 

So,  in  respect  to  a  promissoiy  note,  if  made 
for  the  accommodation  of  the  payee,  delay 
granted  to  him  will  not  discharge  the  maker.* 

PRACTICE. 

Damages  is  the  rate  or  per  cent,  paid 

to  the  holder  of  a  bill  of  exchange  which  has 
been  dishonored.  It  is  the  subject  of  distinct 
statyte  regulation  in  nearly  every  State  of  the 
Union.     See  General  Statutes. 

Evidence.     Generally,  the   pleadings 

show  what  the  plaintiff  must  prove  to  maintain 
his  action,  and  what  the  defendant  must  prove 
to  establish  his  defence.  When  a  single  fact  is 
put  in  issue,  such  as  the  making  of  the  note,  or 
the  acceptance  of  the  bill  in  suit,  one  party 
holds  the  affirmative  and  the  other  the  negative; 
and  the  entire  evidence  is  directed  to  the  proof 
or  disproof  of  that  fact.  In  all  actions,  allega- 
tions of  the  execution  of  written  instruments 
and  indorsements  thereon,  of  the  existence  of 
a  corporation  or  partnership,  or  of  any  appoint- 
ment or  authority  may  be  taken  as  true,  unless 
the  denial  of  the  same  be  verified  by  the  aflS- 
davit  of  the  party,  his  agent  or  attorney.'' 

In  an  action  by  the  payee  against  the  maker 
of  a  negotiable  note  or  the  acceptor  of  a  bill 
of  exchange,  it  is  generally  enough  to  produce 
the  instrument,  prove  the  signature  of  the  de- 
fendant and  the  amount  due  thereon.  If  the 
action  be  against  several  acceptors  of  a  bill  or 
makers  of  a  note,  the  handwriting  of  each  must 
be  proved,  unless  the  defendants  are  sued  as 
partners,  in  which  case  it  must  be  shown  that 
the  defendants  were  partners,  and  that  the  note 
or  acceptance  was  made  or  given  in  the  name 
of  the  firm  by  one  of  the  firm.*  If  the  action 
be  against  the  makers  of  a  joint  and  several 
promissory  note,  it  is  incumbent  upon  the 
plaintiff  to  prove  that  it  was  made  by  the  parties 
described  in  the  complaint.  A  note  beginning 
"  I  promise  to  pay,"  and  signed  by  two  persons, 
is  a  joint  and  several  note.J  Tlie  acceptance 
being  made  after  sight  of  a  bill,  admits  the 
drawer's  signature.''  The  acceptance  admits 
also  the  ability  of  the  drawer,  and  that  the 
draft  was  properly  drawn ;  so  that,  though 
drawn  by  an  agent,  it  is  not  necessary,  in  an 
action  against  the  acceptor,  to  show  the  agent's 

175.  B-I4  Wend.  116.  »-3  Denio,  512.  b-2  B.  &'AId. 
210:  6  Price,  III.  c-2  Seld.  33.  d-i  Denio,  116;  10 
Barb.  512;  2  Comst.  406;  13  Wend.  400.  e-3  Camp 
281  :  22  111.  330.  f-3  Camp.  362.  lf-3  Barn.  &  Ad.  41. 
h-See  titles  Actions,  Pleading.  I-7  Wend.  172.  J-i 
Camp.  403;  S.  C.  10  East.  264;  Peake  R.  130;  Holt, 
N.  P.  C.  474.  I1-3  Comst.  230,  and  cases  cited;  i 
Strange,  648. 


BILLS,  BONDS.  AND  NOtES. 


t77 


authority;*  and  the  production  of  the  bill  by 
the  payee  is  sufficient  proof  of  his  title  to  it.* 
In  an  action  by  an  indorsee  against  the  acceptor, 
the  plaintiff  must  prove  his  acceptance  and  the 
payee's  indorsement;'  and  if  the  indorsement 
be  special,  it  must  appear  to  have  been  made 
to  the  plaintiff,  or  he  must  show  a  subsequent 
indorsement  to  himself.  Bills  and  notes  made 
payable  to  bearer  circulate  and  are  considered 
as  money ;  and,  as  the  title  passes  by  delivery, 
possession  is  evidence  of  the  holder's  property 
va  them.*  And  there  is  no  legal  difference  be- 
tween a  bill  or  note  payable  to  bearer  and  one 
payable  to  a  particular  person  or  bearer;  in 
either  case  the  holder  is  prima  facie  the  law- 
ful bearer,  to  whom  the  same  is  payable.'  The 
same  presumption  is  raised  in  favor  of  the 
holder  of  a  note  or  bill  drawn  payable  to  order 
after  the  same  has  been  indorsed  in  blank.'' 
On  a  note  for  value  received,  made  payable  to 
one  or  other  of  two  persons,  action  should  be 
brought  in  the  name  of  both,  and  recovery  may 
be  had  on  proof  of  the  execution  of  the  note." 
In  an  action  against  an  indorser  of  a  bill  or 
note,  the  plaintiff  need  not  prove  the  signature 
of  the  maker,  drawer,  or  prior  indorsers ;  nor 
can  the  defendant  impeach  the  genuineness  of 
the  bill  or  note,  for  his  indorsement  admits  the 
ability  and  signature  of  every  antecedent  party."* 
There  is  a  warranty  implied  in  the  transfer  of 
every  negotiable  instrument  that  it  is  not  forged.* 
In  an  action  by  an  indorsee  against  his  imme- 
diate indorser,  the  latter  is  estopped  from  deny- 
ing the  drawing  and  indorsement  of  the  bill  to 
himself.'  The  plaintiff  need  not  prove,  in  an 
action  upon  negotiable  paper,  that  the  same 
was  made,  accepted,  or  indorsed  for  an  adequate 
consideration  ;  the  presumption  being  that  the 
contract  of  the  several  parties  to  the  instrument 
was  entered  into  for  value  received,  and  that 
the  holder  acquired  it  in  the  usual  course  of 
business  for  value.  But  this  presumption  may 
be  overcome.  For  instance,  if  it  be  shown  that 
the  bill  or  note  in  suit  has  been  lost,  or  has 
been  stolen  from  the  owner,  the  plaintiff  must 
show  himself  to  be  a  bona  fide  holder  for 
value.  This  he  may  do  by  showing  that  he 
took  the  paper  fairly,  in  the  usual  course  of 
business,  and  gave  a  valuable  consideration  for 
it.«  So,  if  it  be  shown  that  the  bill  or  note 
was  obtained  by  fraud,  duress,  without  consid- 
eration, on  an  illegal  consideration,  or  for  a  par- 
ticular purpose  and  dishonestly  used  for  another."* 

As  to  what  defence  is  allowed  if  the  instru- 
ment is  negotiated  when  overdue,  see  ante. 
Indorsement.  And  payment  before  due  may 
be  given  in  evidence  against  indorsee. 

In  actions  against  the  drawer  of  bills  and 
checks,  and  against  the  indorser  of  negotiable 
paper,  the  plaintiff  must  prove  as  well  as  allege 
that  the  paper  was  duly  presented  for  acceptance 

W-i  Camp.  N.  P.  C.  82.  x-i  Denio,  367;  18  Johns. 
»3o;  I  Sand.  37.  y-2  Hill,  287;  3  Comst.  230.  85-4  A. 
&  E.  870;  5  Pick.  526.  a-17  Wend.  214;  28  Barb.  44. 
b-Bayley  Bills,  5,  \  i.  c-i  B.  &  A.  417 ;  4  Wend.  575. 
d-Bayley  Bills,  11.  e-is  Johns.  240;  2  Camp.  182;  i 
Salk.  127;  I  Ld.  Raym.  443.  f-88  Eng.  C.  L.  266;  15 
N- Y.  575.    S^-i   Burr.  452;  3  Id.  1226;    Dough.  633. 


or  for  payment  and  dishonored,  and  that  due 
notice  thereof  was  given  to  the  defendant. 
When  an  action  against  the  drawer  or  indorser 
is  brought  upon  a  bill  that  has  been  accepted, 
payable  at  a  particular  bank  or  place,  the 
plaintiff  must  prove  a  presentment  for  payment 
at  the  place  designated  in  the  acceptance,'  and 
within  the  usual  hours  of  business.J  Where  a 
bill  is  drawn  payable  a  certain  number  of  days 
after  sight,  or  after  demand,  the  plaintiff  must 
prove  a  presentment  to  the  drawee  for  accept- 
ance as  a  means  of  fixing  the  time  of  payment ;'' 
but  this  is  not  necessary  where  a  bill  is  drawn 
payable  so  many  days  or  months  after  date.  In 
an  action  against  a  drawer  or  indorser  of  a 
foreign  bill,  the  plaintiff  must  prove,  beside 
the  presentment  and  notice  of  dishonor,  a  pro- 
test for  non-acceptance  or  non-payment.'  The 
protest,  when  made  by  a  notary  in  a  foreign 
State,  and  attested  under  the  seal  of  his  offic,:, 
proves  itself,  and  is  evidence  of  presentmei  r. 
and  refusal.™  It  is  well  settled  that  bills  u\ 
exchange  drawn  in  one  State  of  the  Union  and 
payable  in  another  are  foreign  bills,  within  the 
meaning  of  the  rule  which  makes  the  notarial 
protest  prima  facie  evidence  of  the  present- 
ment and  dishonor  of  such  bills." 

Limitation.     See  General  Statutes. 

Pleading."     Forms   of  pleading  are 

much  changed.  The  parties  are  required  to 
plead  respecting  the  facts  which  constitute  the 
plaintiff's  cause  of  action,  or  the  defendant's 
ground  of  defence  in  the  manner  prescribed  by 
the  law ;  and  the  rules  by  which  the  sufficiency 
of  the  pleadings  is  to  be  determined  are  those 
established  by  the  law.  The  action  must  be 
brought  in  the  name  of  the  lawful  holder  and 
owner  of  the  paper,  and  the  complaint  must 
contain  a  statement  of  all  the  facts  necessary  to 
be  proved  on  the  trial,  in  order  to  entitle  the 
plaintiff  to  recover  thereon  against  the  defend- 
ant.p  An  executor,  administrator,  guardian, 
trustee  of  an  express  trust,  a  person  with  whom, 
or  in  whose  name,  a  contract  is  made  for  the 
benefit  of  another,  or  a  person  expressly  author- 
ized bystatute,  may  bring  an  action  without  join- 
ing with  him  the  person  for  whose  benefit  the 
action  is  prosecuted ;  but  generally  every  action 
must  be  prosecuted  in  the  name  of  the  real 
party  in  interest.  The  phrase,  "  a  trustee  of 
an  express  trust,"  includes  a  person  with  whom 
or  in  whose  name  a  contract  is  made  for  the 
benefit  of  another.  Mercantile  agents  and  fac- 
tors, who,  according  to  the  usage  and  custom 
of  merchants,  do  business  in  their  own  names 
for  other  parties,  are  trustees  in  fact,  and  are 
entitled  to  sue  on  contracts  made  by  them  with 
third  persons.  Hence  a  factor  taking  a  note  pay- 
able to  himself  on  the  sale  of  his  principal'sgoods 
is  prima  facie  entitled  to  recover  thereon.' 

The  complaint  must  show  the  title  of  the 

h-i  Camp.  N.  P.  C.  100;  2  Id.  574;  5  Bing.  460 ;  4 
Taunt  114  ;  13  M.  &  W.  73.  1-8  Bing,  214:  17  Johns. 
248;  2  Sand.  166.  j-2  Sand.  166;  17  Johns.  248.  te- 
Green!.  Ev.  ?  .76.  I-Chitty  Bills,  655  ;  Greenl.  Ev.  \ 
183.  m-2o  Wend.  81  ;  S  C.  22  Wend.  264.  11-2  Peters, 
586.  o-For  forms,  see  title  Pleading.  p-Gould's  PL 
Ch.  4  \  7-9.    q-3  Sand.  706;  £dw.  Baitm.  282. 


!78 


BILLS,  BONDS,  AND  NOTES. 


plaintiflf.  If  the  action  be  brought  in  the  name 
of  an  indorsee  against  the  makers  of  a  promis- 
sory note,  the  complaint  must  show  by  some 
suitable  averment  that  the  note  has  been  in- 
dorsed or  transferred  to  the  plaintiff,  so  that  he 
is  the  holder  and  owner  of  the  note.?  In  an 
action,  counter-claim,  or  set-off,  founded  upon 
an  account,  promissory  note,  bill  of  exchange, 
or  other  instrument,  for  the  unconditional  pay- 
ment of  money  only,  it  is,  in  general,  sufficient 
for  the  party  to  gire  a  copy  of  the  account  or  in- 
strument, with  all  credits,  and  the  indorsements 
thereon,  and  to  state  that  there  is  due  to  him, 
on  such  account  or  instrument,  from  the  adverse 
party,  a  specified  sum,  which  he  claims  with 
interest.  When  others  than  the  makers  of  a 
promissory  note,  or  the  acceptors  of  a  bill  of 
exchange  are  parlies  in  the  action,  it  is 
necessary  to  state,  also,  the  kind  of  liability  of 
the  several  parties,  and  the  facts  as  they  may  be, 
which  fix  their  liability.  In  an  action  brought  by 
the  payee  against  the  maker,  it  is  sufficient  to 
allege  the  making  of  the  note,  give  a  copy  of  it, 
and  claim  the  amount  due  thereon  from  the 
defendant  to  the  plaintiff.'  So  in  an  action  by 
the  payee  against  the  acceptor  of  a  bill  of  ex- 
change, it  is  sufficient  for  the  plaintiff  to  give  a 
copy  of  the  bill  and  of  the  acceptance  in  the 
complaint,  and  allege  that  the  plaintiff,  who  is 
the  payee  of  the  bill,  is  the  holder  and  owner 
of  it ;  that  no  part  of  it  has  been  paid,  but  that 
the  whole  amount  of  it  is  justly  due  to  the 
plaintiff  from  the  defendant.'"  As  against  the 
maker  it  is  sufficient  to  allege  that  the  payee,  to 
whose  order  the  note  was  made  payable,  trans- 
ferred it  by  an  indorsement  in  blank,  and  that 
it  was  afterward  transferred  to  the  plaintiff,  who 
is  the  owner  and  holder  of  the  note.*  As  against 
a  remote  indorser,  it  is  enough  to  allege  the 
making  of  the  note  or  bill  in  a  negotiable  form ; 
that  it  was  regularly  indorsed  to  the  defendant ; 
that  he  transferred  it  by  an  indorsement  in 
blank,  and  that  it  was  subsequently  transferred 
to  the  plaintiff;  and  it  is  not  incumbent  upon 
the  plaintiff  to  prove  on  the  trial,  either  the 
handwriting  of  the  drawer,  or  any  of  the  in- 
dorsements antecedent  to  that  of  the  defendant, 
for  each  indorsement  admits  the  genuineness 
of  the  paper  and  all  prior  indorsements.*  When 
a  note  is  made  payable  to  the  order  of  a  par- 
ticular person,  and  he  transfers  the  same  for 
value,  without  indorsement,  the  purchaser  or 
assignee  may  recover  on  it,  under  the  present 
practice,  in  his  own  name,  and  is  not  compelled 
to  allege  or  prove  a  transfer  by  indorsement." 
Substantially  the  same  rules  of  pleading  apply 
in  an  action  against  the  acceptor  of  a  bill,  as 

p-i  Duer,  6oi.  q-io  How.  Pr.  274.  r-2  Duer,  629. 
The  complaint  must  show  that  the  bill  has  become  due, 
and  should  claim  interest  from  a  day  specified,  besides 
costs,  s-5  Sand.  52.  It  being  averred  that  the  note  or 
bill  payable  to  order  was  indorsed  by  the  payee  in  blank, 
it  is  siiRicient  in  an  action  by  the  indorsee  to  aver  further 
and  generally  that  it  was  afterward  transferred  to  the 
plaintiflT.  12  How.  Pr.  460;  16  Id.  143.  The  plaintiff 
need  not  aver  a  transfer  to  himself  by  indorsement.  11 
Barb.  620:  12  How.  Pr.  166;  22  Id  150.  t-2  Camp 
182;  I  Salk.  127;  I  Ld.  Raym.  443;  15  N.  Y.  575  ;  88 
£iig.  C.  L.  366.      u-ii  Barb.  620:    39  Miss.  (8  Jones) 


in  action  against  the  maker  of  a  promissory 
note ;  for  each  of  them  is  the  party  primarily 
liable  on  the  instrument,  which  is  in  both  cases 
an  instrument  for  the  payment  of  money  only.^ 
There  need  be  no  difference  between  a  com- 
plaint in  favor  of  the  payee  of  a  note  or  bill, 
and  a  complaint  in  favor  of  the  indorsee,  ex- 
cept that  in  the  latter  case  there  should  be  an 
allegation  showing  a  transfer  or  indorsement 
of  the  paper  to  the  plaintiff.  On  a  note  pay- 
able to  a  particular  person  or  bearer,  it  is  suffi- 
cient for  the  plaintiff  to  allege  the  making  and 
delivery  of  the  note  to  the  payee,  and  that  the 
plaintiff  is  now  the  lawful  holder  and  owner 
of  the  note,  stating  as  usual  the  amount  due 
upon  it."  When  an  indorsee  brings  an  action 
against  the  maker  or  acceptor  of  a  note  or 
bill  payable  to  a  particular  person  or  order,  it 
is  obvious  that  the  complaint  should  show  that 
the  payee  indorsed  the  paper  and  that  it  was 
transferred  to  the  plaintiff.*  Against  an  in- 
dorser, it  is  necessary  to  allege  the  making  of 
the  note  or  bill,  describing  it  according  to  its 
legal  effect,  or  giving  a  copy  thereof;  that  the 
defendant  indorsed  the  same  to  the  plaintiff,  or 
to  a  prior  party  through  whom  he  derives  title ; 
that  the  same  was  duly  presented  to  the  maker 
or  acceptor  for  payment  when  the  same  became 
due,  and  was  dishonored ;  and  that  the  defend- 
ant was  duly  notified  of  the  dishonor.  Demand 
and  notice  being  conditions  precedent,  may  be 
alleged  in  the  manner  specified  by  the  code : 
where  the  code  prevails,  otherwise  by  the 
common  law.?  The  plaintiff  must  plead  spe- 
cially the  facts  dispensing  with  the  demand  and 
notice.'  In  all  actions  upon  negotiable  paper 
the  answer  must  traverse  some  matter  of  fact, 
such  as  the  drawing,  or  making,  or  indorsing,'  or 
accepting  or  presenting,  or  notice  of  dishonor  ; 
and  new  matters  of  confession  and  avoidance 
must.be  pleaded  specially.'' 

In  all  actions,  allegations  of  the  execution 
of  written  instruments  and  indorsements  thereon 
will  be  taken  as  true,  unless  the  denial  of  the 
same  be  verified  by  the  affidavit  of  the  party, 
his  agent  or  attorney. 

Bill  for  Foreclosnre.  See  Practice. 

Bill  of  Gross  Adventure.  See  Maritihb 
Law. 

Bill  of  Health.  See  Mbrcantilb  Law. 

Bill  of  Information.    See  Pkacticb. 

Bill  of  Interpleader.  See  Practice. 

Bill  of  Lading:.  See  Bailments;  Mercantils 
Law. 

Bill  for  New  Trial.  .See  Practice. 

Bill  Oblig;atory.  See  Bond. 

Bill  of  Pains  and  Penalties.  See  Crihikai. 
Law. 

Bill  of  Parcels.  See  Bailments:  Common 
Carriers. 

202.  T-io  How.  Pr.  274;  2  Duer,  629  ;  2  Bibb.  Pr.  402. 
W-17  Barb.  530;  3  Kernan,  542.  x-The  indorsement 
here  is  essential  to  convey  the  instrument  as  negotiable 
paper,  y-5  How.  Pr.  107.  On  an  "  instrument  for  the 
payment  of  money  only,"  it  is  enough  to  give  a  copy  of 
it,  and  slate  the  amount  due  to  the  plaintiff  thereon  ; 
but  an  action  against  an  indorser  is  founded  on  the  in- 
stniment  and  certain  extrinsic  (acts  which  are  nece.ssary 
to  be  averred  and  proved,  8  How.  Pr.  61 ;  6  Id.  420;  5 
Id.  107.  SB-3  Cow.  252  ;  7  Port.  175  ;  5  Pick.  436;  5  M 
&  W.  418  ;  4  Sand.  665  ;  Byles  Bills,  337.  a-3  Bos.  103 
S  Abb.  455 ;  6  Id.  304 ;  3  Bos.  162.     b-Byles  Bills,  339. 


BONDS  OR  OBLIGATIONS. 


179 


Bin  of  Part Icnlars.  See  Practice. 

Bill  Payable.  See  Book-Kbeping  ;  Mbrcan- 
Tii,E  Law. 

Bill  of  Peace.  See  Practice. 

Bill  Penal.  See  Contracts. 

Bill  or  Perpetuate 'restimony.  See  Prac- 
tice. 

Bill  Quia  Timet.  See  Practice. 

Bill  Receivable.  See  Book- Keeping;  Mer- 
cantile Law. 

Bill  of  Review.  See  Practice. 

Bill  of  Revivor,  etc.  See  Practice. 

Bill  of  Sale.  See  Contracts. 

Bill  of  Sis'ht.  See  Mercantile  Law. 

Bill  Siutfle.  See  Contracts. 

Bill  .Supplemental.  See  Practice. 

Bill  to  Tal*e  Testimony.  See  Practice. 

Binding'  Out.  See  Appkenticeship. 

Binilinji;  Over.  See  Criminal  Law;  Practice. 

Bipartite.  See  Contracts. 

Birth.  See  Children;  Medical  Law. 

Bissextile.  See  Day;  Time. 

Blackmail.  See  Criminal  Law. 

Blank.  See  Contracts  :  Evidence. 

Blank  Indorsement.  See  B1LI.S  of  Ex- 
change and  Promissory  Notes. 

Blasphemy.  See  Criminal  Law. 

Blind.  See  Affidavits;  Contracts-  Wills; 
Writings. 

Blockade.  See  International  Law. 

Blood.  See  Personal  Relations  ;  Relation- 
ship. 

Boarder.  See  Bailments;  Contracts;  Inn- 
keeper. 

Board  of  Snpervlsors.  See  Office  and  Of- 
ficers. 

Boat.  See  Maritime  Law;  Sale. 

Body  Corporate.  See  Corporations. 

Bona  fides.  See  Contracts. 

Bondag^e.  See  Apprenticeship;  Personal  Re- 
lations. 

BONDS.  See  Assignment;  Bonds,  Notes,  and 
Bills  :  Contracts  ;  and  Conveyances,  ante  ;  and 
title  Suretyship,  post. 

A  BOND  is  an  obligation  in  writing,  and  un- 
der seal."  It  may  be  single — a  simple  obliga- 
tion— as  where  the  obligor  binds  or  obliges 
himself,  his  heirs,  executors,  and  administra- 
tors, to  pay  a  certain  sum  of  money  to  another 
on  a  day  named.  It  may  be,  and  usually  is, 
conditional,  as,  that  if  the  obligor  does  some 
particular  act,  the  obligation  shall  be  void,  or 
else  remain  in  full  force  and  effect. 

A  bond  absolute  for  the  payment  of  money 
differs  from  a  promissory  note  only  in  having  a 
seal.'> 

A  COUNTER  BOND  is  a  bond  to  indemnify." 

A  FORTHCOMING,  REDELIVERY  OR  REPLEVIN 
BOND  is  a  bond  given  for  the  security  of  the 
sheriff,  constable,  or  other  officer,  conditioned 
to  produce  the  property  attached  or  levied  on 
when  required.* 

Joint  bonds  are  the  bonds  of  two  or  more 
obligors.  Actions  to  enforce  them  must  be  joint 
against  them  all. 

Joint  and  several  bonds  are  the  bonds  of 
two  or  more  obligors,  who  bind  themselves 
lointly   and  severally   to   the   obligees.     The 

a-2  wi.  &  R.  502;  II  Ala.  19;  i  Harper,  434;  i 
Llackf.  241  ;  6  Vt.  40;  1  Baldwin  C.  C.  129.  b-2  S.  & 
k.115;  see  Read  PI.  236.  c-2  Leon.  90.  d-2  Wash. 
189;  II  Gratt.  522;  Litt.  Sel.  Cas.  12;  5  J.  J.  Marsh, 
318;  6  Dana,  112;  i  Blackf.  359;  6  Id.  72;  10  Ohio 
St.  488.  e-yCow.  224.  f-12  Johns.  350;  2  Johns.  Cas. 
240;  I  E.  D.  Smith,  350  :  i  Hempst.  C.  C.  271.  |f-2 
Dutch.  I  :  3  Id.  276;  2  Paine  C.  C.  545.  h-5  S.  &  R. 
375  :  7  W.  &  S.  335  ;  3  Hill  N.  Y.  95 ;  3  Wend.  208  ;  10 
Ohio,  433;  10  N.  H.  64  ;  2  Me.  132  ;  7  Pick.  157;  6 
Blackf.  113.    i-13  Mo.  211 ;  see  jo  Pcnn.  St.  350.    j-io 


obligees  can  sue  all  the  obligors  in  such  a  bond 
jointly,  or  any  one  of  them  separately,  for  the 
whole  amount,  but  cannot  bring  a  joint  action 
against  a  part — that  is,  treat  it  as  joint  with 
some  and  several  as  to  others.  Upon  payment 
of  the  whole  by  one  of  such  obligors,  a  right 
to  contribution  arises  in  his  favor  against  the 
other  obligors. 

CONDITION.  The  condition  is  a  vital 
part  of  a  conditional  bond,  and  generally  limits 
and  determines  the  amount  to  be  paid  in  case  of 
a  breach,*  but  interest  and  costs  may  be  added; 

A  condition  annexed  to  a  bond  is  termed  a 
defeasance.  A  condition  defeating  a  convey- 
ance of  land  in  a  certain  event  is  called  a 
mortgage.  Conditions  annexed  to  realty  are  to 
be  distinguished  from  limitations.  A  stranger 
may  take  advantage  of  a  limitation,  but  only 
the  grantor  or  obligor,  or  his  heirs,  can  take 
advantage  of  a  condition.s 

Conditions  must  be  made  at  the  same  time 
as  the  original  contract,  conveyance,  or  obliga- 
tion, but  may  be  by  a  separate  instrument, 
which  is  then  considered  as  constituting  one 
transaction  with  the  original.'* 

Unlawful  conditions  are  void.  Conditions 
in  restraint  of  marriage  generally  are  held  void.' 
Otherwise  of  conditions  restraining  from  mar- 
riage to  a  particular  person,  or  restraining  a 
widow  from  a  second  marriagej*  A  condition 
in  general  restraint  of  alienation  is  void,''  but  a 
condition  restraining  alienation  for  a  limited 
time  may  be  good.' 

Assignment.  The  rule  that  a  condition  can- 
not be  assigned,  and  that  no  one  but  the  heir^ 
can  take  advantage  of  a  breach,  does  not  uni- 
formly obtain  in  modern  times,  and  in  many  of 
the  States  the  commoa  law  rule  is  broken  m 
upon." 

Construction.  Conditions  which  go  to 
defeat  an  estate  or  destroy  an  act  are  strictly 
construed ;  while  those  which  go  to  vest  an  es- 
tate or  enforce  an  act  are  liberally  construed." 
The  condition  of  an  obligation  is  said  to  be  in 
the  language  of  the  obligee,  and  for  that  reason 
is  to  be  construed  liberally  in  favor  of  the 
obligor."  But  whenever  an  obligation  is  im- 
posed by  a  condition,  the  construction  is  to  be 
favorable  to  the  obligee. p 

Form.  Any  words  suitable  to  indicate  the 
intention  of  the  parties  may  be  used  in  the 
creation  of  a  condition,  as  "  On  condition," 
"  Provided  always,"  "  Provided  nevertheless," 
"  For  that,"  etc. 

The  words  of  condition  need  be  in  no  par- 
ticular place  in  the  instrument. 1 

Effect.     The  effect  of  conditions  may  be 

Eng.  L.  &  Eq.  139  ;  2  Sim.  Ch.  (N.  S.)  255  ;  6  Watts, 
213;  10  Id.  348.  k-i  Denio,  449;  14  Miss.  730;  24  Id. 
203;  6  East.  173;  see  21  Pick.  42.  I-Co.  Litt.  223;  a 
S.  &  R.  573 ;  I  Watts,  389  ;  10  Id.  325.  m-13  S.  &  R. 
172;  16  Penn.  St.  150;  5  Pick.  528;  lold.  306;  see  » 
Canes,  345;  20  Barb.  455;  4  Haring.  Del.  140;  19  N. 
Y.  100.  n-Crabbe  Real  Prop.  J  2130;  17  N.  Y.  34;  4 
Gray  140;  35  N.  H.  445;  18  111.  431 ;  15  How.  323.  o- 
Co.  Litt.  42,  a.,  183  a.;  2  Parsons  Contr.  22;  Shepp 
Touchst.  375,  376;  Dyer,  14  i.,  17  a.  ;  i  Johns.  36j.  u- 
I  Suran.  C.  C.  440.    q-i  T.  R.  645 ;  6  Id.  668. 


i8o 


BONDS  OR  OBLIGATIONS. 


to  suspend  the  obligation ;  as,  if  I  bind  myself 
to  convey  an  estate  to  you  on  condition  that 
you  first  pay  me  one  thousand  dollars ;  in  this 
case  no  obligation  exists  until  the  condition  is 
performed ;  or,  2,  to  rescind  the  obligation  :  as, 
if  you  agree  to  buy  my  house  on  condition  that 
it  is  standing  unimpaired  on  the  tenth  of  May ; 
or,  I  convey  to  you  my  farm  on  condition  that 
the  conveyance  shall  be  void  if  I  pay  you  one 
thousand  dollars ;  in  such  cases  the  obligation 
is  rescinded  by  the  nonperformance  of  the  con- 
dition ;  or,  3,  it  may  modify  the  previous  obli- 
gation :  as,  if  I  bind  myself  to  convey  my 
farm  to  you  on  the  payment  of  five  thousand 
dollars  if  you  pay  in  bank  stock,  or  six  thou- 
sand if  you  pay  in  money;  or  in  case  of  gift  or 
bequest  may  qualify  the  gift  or  bequest  as  to 
amount  or  persons. 

The  effect  of  a  condition  precedent  is,  when 
performed,  to  vest  an  estate,  give  rise  to  an 
obligation,  or  enlarge  an  estate  already  vested. 1 
Unless  a  condition  precedent  be  performed  no 
estate  will  vest ;  and  this  even  where  the  per- 
formance is  prevented  by  act  of  God,  or  of  the 
law.'  Not  so  if  prevented  by  the  party  im- 
posing it.» 

If  a  condition  subsequent  was  void  at  its 
creation  or  becomes  impossible,  unlawful,  or 
in  any  way  void,  the  estate  or  obligation  re- 
mains intact  and  absolute.' 

In  case  of  a  condition  broken,  if  the  grantor 
i.s  in  possession  the  estate  revests  at  once." 
But  if  the  grantor  is  out  of  possession  he  must 
enter,^  and  is  then  invested  of  his  previous  es- 
tate." 

Performance  should  be  complete  and  ef- 
fectual.'' An  inconsiderable  casual  failure  to 
perform  is  not  non-performance.'  Any  one 
who  has  an  interest  in  the  estate  may  perform 
the  condition;  but  a  stranger  gets  no  benefit 
from  performing  it.*  Conditions  precedent,  if 
annexed  to  land,  are  to  be  strictly  performed, 
even  when  affecting  marriage.*  Conditions 
precedent  can  generally  be  exactly  performed ; 
equity  will  not  generally  interfere  to  avoid  the 
consequence  of  non-performance.''  But  in 
cases  of  conditions  subsequent,  equity  will  in- 
terfere where  there  was  even  a  partial  perform- 
ance, or  where  there  is  only  a  delay  in  per- 
formance." This  is  the  ground  of  equitable 
jurisdiction  over  mortgages. 

Non-performance  of  a  condition  which  was 
possible  at  the  time  of  its  making,  but  which 
has  since  become  impossible,  is  excused  if  the 
impossibility  is  caused  by  act  of  God,*  or  by 
act  of  law,  if  it  was  lawful  at  its  creation ;"  or 
by  act  of  the  party,  as,  when  the  one  imposing 
the  obligation  accepts  another  thing  in  satis- 

q-i2  Barb.  440.  r-Co.  Litt.  42;  3  Bl.  Comm.  157;  4 
Kent  Comm.  125  ;  4  Jones,  249.  8-13  B.  Men.  163  ;  2  Vt. 
46J.  t-2  Bl.  Comm.  157 ;  15  Ga.  103.  U-5  Mass.  321 ; 
^  S.  &  R.  375;  22  Me.  39.  But  see  2  N.  H.  120.  v-8 
Blackf.  138;  12  Ired.  194;  18  Conn.  535;  8  N.  H.  477; 
34  Me.  322  ;  8  Exch.  67.  w-Co.  Litt.  Butler's  note,  94. 
X-i  Rolle  Abr.  425.  y-6  Dana,  44  ;  17  N.  Y.  34.  se-io 
S.  &  R.  186.  a-i  Mod.  300:  t  Atk.  Ch.  361.  b-3  Ves. 
Ch.  89 ;  I  Atk.  Ch.  361 ;  3  Id.  330 ;  West,  350 ;  2  Brown 
Ch.  431.     c-Crabbe  R.  Prop.  I  2160;  4  Ind.  638;  26 


faction,  or  renders  the  performance  impossible 
by  his  own  default.'  If  performance  on  one 
part  becomes  impossible  by  act  of  God,  the 
whole  will  in  general  be  excused.* 

Where  conditions  are  liberally  construed  a 
strict  performance  is  required ;  where  condi- 
tions are  strictly  construed  a  reasonably  exact 
performance  is  sufficient. 

If  the  place  of  performance  be  agreed  upon, 
neither  party  alone  can  change  it,  but  either 
may  with  the  consent  of  the  other.'' 

Generally,  where  no  lime  of  performance  is 
limited  he  who  has  the  benefit  of  the  contract" 
may  perform  the  condition  when  he  pleases,  at 
any  time  during  his  life,'  and  need  not  do  it 
when  requested.J  But  if  a  prompt  performance 
be  necessary  to  carry  out  the  will  of  a  testator, 
the  beneficiary  cannot  have  a  lifetime  in  which 
to  perform  the  condition.^  In  this  case  no 
previous  demand  is  necessary.'  But  even  then 
a  reasonable  time  is  allowed." 

DATE  AND  DELIVERY.  The  date 
is  not  considered  of  the  substance  of  a  deed; 
and  therefore  a  bond  which  either  has  no  date, 
or  an  impossible  date,  is  still  good,  provided 
the  real  day  of  its  being  dated  or  given,  that  is, 
delivered,  can  be  proved."  It  must  be  deliv- 
ered by  the  party  whose  bond  it  is  to  the 
other."  But  the  delivery  and  acceptance  may 
be  by  altering.? 

FORFEITURE.  Upon  the  forfeiture  of 
a  bond  courts  will  not  permit  a  man  to  take 
more  than  his  principal,  interest,  and  expenses, 
in  case  the  forfeiture  accrued  by  non-payment 
of  money  borrowed,  damages  sustained  upon 
the  non-performance  of  covenants,  and  the 
like. 

In  case  of  a  bond  conditioned  for  the  pay- 
ment of  money,  the  payment  or  tender  of  the 
principal  sum  due  with  interest  and  costs,  even 
though  the  bond  were  forfeited  and  suit  com- 
menced thereon,  is  a  satisfaction  and  discharge."! 

If  a  bond  lie  dormant  for  twenty  years  it 
cannot  afterwards  be  recovered,  for  the  law 
raises  a  presumption  of  its  having  been  paid, 
and  the  defendant  may  plead  so/vi/  ad  diem 
(he  paid  at  the  day)  to  an  action  upon  it.'  In 
some  cases,  under  particular  circumstances, 
even  a  less  time  may  found  a  presumption.* 

The  statute  as  to  the  presumption  of  payment 
after  twenty  years  is  in  the  nature  of  a  statute 
of  limitations.  It  is  available  as  a  bar  to  an 
action  to  recover  on  the  instrument,  but  not 
wliere  the  party  asks  affirmative  relief  based 
upon  the  fact  of  payment.* 

OBLIGATION  OF.  See  Contracts, 
ante. 

FORMAL  REQUISITES.    The  instru- 

Me.  525.  d-io  Pick.  507.  e-4  Monr.  158;  i  Penn.  St. 
495.  f-2i  Pick.  389  ;  I  Paine.  C.  C.  652 ;  6  Pet.  745  ;  i 
Cow.  339.  if-i  "Bos.  &  P.  242 ;  Cro.  Eliz.  280 :  5  Co. 
21;  I  "Ld.  Raym.  279.  h-i  Rolle,  444;  11  Vt.  612  :  3 
Leon.  260.  i-Plowd.  16;  Co.  Litt.  208*.  j-Co.  Litt. 
209  a.  fe-5  S.  &  R.  384.  1-5  S.  &  R.  385.  in-i  Rolle 
Abr.  449.  11-2  Bl.  Comm.  304;  Com.  Dig.  Ftiit  B.  3; 
3  Call.  309.  0-13  Md.  I ;  5  Gray,  440;  11  Ga.  286.  See 
37  N.  H.  306;  Bac.  Abr.  Obligations  C.  l»-io  Ind.  i. 
Q-2  Bl.  Comm.  340.  r-i  Burr.  434  ;  4  Id.  1963.  s-i  T. 
K.  271;  Cowp.  109.     t-i2  N.  y.  409;  14  Id.  477. 


BONDS  OR  OBLIGATIONS. 


i8l 


ment  must  be  in  writing  and  sealed,"  except  in 
States  where  private  seals  are  abolished  by 
statute  or  otherwise ;  where,  however,  seals  are 
required,  a  sealing,  sufficient  where  the  bond  is 
made,  is  held  sufficient  though  it  might  be  an 
insufficient  sealing  if  it  had  been  made  where 
it  is  sued  on7  The  signature  (and  seal)  may 
be  in  any  part  of  the  instrument." 

Where  a  bond  is  required  by  statute,  every 
material  requirement  must  be  observed.  If  it 
contains  anything  illegal,  it  is  so  far  void.  If  it 
contains  anything  superfluous,  it  is  so  far  treated 
as  mere  surplusage.  If  any  material  thing  is 
omitted,  the  statute  is  not  complied  with." 

.See  CoNniTlON,  above. 

PARTIES.  There  must  be  proper  parlies; 
a  man  cannot  be  bound  to  himself,  even  in 
connection  with  others.^ 

No  person  can  take  the  benefit  of  a  bond 
except  the  parties  named  therein.*  Except, 
perhaps,  in  some  cases  of  bonds  given  for  the 
performance  of  their  duties  by  certain  classes 
of  public  officers.* 

If  the  bond  run  to  several  persons  jointly, 
all  must  join  in  suit  for  a  breach,  though  it  be 
conditioned  for  the  performance  of  different 
things  for  the  benefit  of  each.** 

PENALTY.  The  principal  sum  in  a 
bond  is  usually  one-half  of  the  penal  sum 
specified  in  the  condition.  The  recovery 
against  a  surety  in  a  bond  for  the  payment  of 
money  is  not  limited  to  the  penalty,  but  may 
exceed  it  so  far  as  necessary  to  include  interest 
from  the  time  of  the  breach.  So  far  as  interest 
IS  payable  by  the  terms  of  the  contract,  and 
until  default  made  it  is  limited  by  the  penalty; 
but  after  breach  it  is  recoverable,  not  on  the 
ground  of  contract  but  as  damages,  which  the 
law  gives  for  its  violation.* 

BOND  OR  OBLIGATION  FORIW.S. 
Bond  or  Obligation— Short  Form. 

For  Payment  of  Money,  With  or  Without  Penalty. 

Know  aH  men  by  these  presents: 

That  I,  A.  B.,  of ,  in  the  county  of ,  and 

State  of ,  am  bound  unto  C.  D.,  of ,  for  the 

payment  of dollars,  on  the  day  of , 

with  interest  at  per  cent,  per  annum ;  for 

which  I  bmd  myself,  my  heirs,  executors,  and 
admmistrators,  to  the  said  C.  D.,  his  executors, 
administrators,  and  assigns  (in  the  penal  sum  of 
dullars). 

Witness  my  hand  and  seal,  this day  of . 

A.  B.    {Seal.\ 

Bond  or  Obliaration— Short  Form. 

Without  Condition. 

Know  all  men  by  these  presents: 

That  I,  A.  B.,  am  held  and  firmly  bound  unto 

C.  D.  in  the  sum  of dollars  lawful  money  of 

the  United  States  of  America,  to  be  paid  to  the 
said  C.  D.,  or  his  certain  attorney,  A.  A.,  or  as- 
signs; to  which  payment,  well  and  truly  to  be 
made,  I  bind  myself,  my  heirs,  executors,  and 
administrators,  firmly  by  these  presents. 

Sealed    with    my   seal.      Dated  the   day 

of . 

In  testimony  whereof,  I  have  set  my  hand  and 

seal  to  this  instrument,  on  the day  of . 

A.  B.     [5ra/.] 
Executed  and  delivered  in ) 

presence  of  W.  T.,  N.  S.  j 

n-i  B.ildw.  C.  C.  129 :  6  Vt.  40.  fr-2  Caines,  362. 
W-7  Wend.  345.  x-See  o  Pick.  395.  y-<;  Cow.  688. 
See  3  Jones  Eq.  311.     »-Hob.  9;    14  Barb,  jy.     it-4 


Bond  or  Oblifrnfion— CSonernl  Form. 

Know  all  men  by  these  presents: 

That  I,  A.  B.,  of  the  town  of ,  in  the  county 

of ,  and  State  of  ,  am  held  and   firmly 

bound  unto  C.  D. ,  of ,  in  the  sum  of  one  thou- 
sand dollars,  to  be  paid  to  the  said  C.  D.,  his 
executors,  administrators  or  assigns;  for  which 
payment,  well  and  truly  to  be  made,  I  bind  my- 
self, my  heirs,  executors  and  administrators, 
firmly  by  these  presents. 

Sealed  with  my  seal.     Dated  the  day  of 

The  condition  of  the  above  obligation  is  such  : 
That  if  the  above-bounden  A.  B.,  his  heirs,  ex- 
ecutors, or  administrators,  shall  well  and  truly 
pay,  or  cause  to  be  paid,  unto  the  above-named 
C.  D.,his  executors,  administrators  or  assigns, 
the  just  and  full  sum  of  five  hundred  dollars,  in 
five  equal  annual  payments,  from  the  date  here- 
of, with  annual  interest,  then  the  above  obliga- 
tion to  be  void  ;  otherwise  to  remain  in  full  force 
and  virtue.  A.  B.     \Seal.\ 

Sealed  and  delivered  in     ] 
presence  of  W.  T.,  N.  S.  J 


For  Payment  0/  Money. 

Kno>v  all  men  by  these  presents : 

That  I,  A.  B.,  of^the  town  of ,  in  the  county 

of ,  and  State  of ,  merchant,  am  held  and 

firmly  bound  unto  C.  D.,  of  the  said  town,  farmer, 

in  the  sum  of dollars  [here  insert  the  penal  sum, 

which  is  commonly  double  the  amount  0/  the  principal 
sum  intended  to  Oe  secured,  in  order  to  cover  interest, 
costs,  expenses,  aitd  other  contingencies),  good  and 
lawful  money  of  the  United  States,  to  be  paid 
the  said  C.  D.,  his  executors,  administrators,  or 
assigns,  for  which  payment,  well  and  truly  to  be 
made,  I  do  bind  myself,  my  heirs,  executors,  and 
administrators,  firmly  by  these  presents. 

Sealed  with  my  seal,  and  dated  the  day 

of . 

The  condition  of  this  obligation  is  such  . 

That  if  the  above-bounden  A.  B.,  his  heirs,  ex- 
ecutors, and  administrators,  or  any  of  them,  shall 
well  and  truly  pay,  or  cause  to  be  paid,  unto  the 
above-named  C.  D.,  his  executors,  administrators 

or  assigns,  the  just  and  full  sum  of dollars 

(here  insert  the  principal  sum  to  be  secured),  \vith  in- 
terest at  the  rate  of per  cent,  per  annum  (or 

with  legal  interest)  for  the  same,  on  the day  of 

,  which  will  be  in  the  year ,  without  fraud 

or  other  delay,  then  this  obligation  is  to  be  void, 

otherwise  to  remain  in  full  force. 

Executed  in  presence  )  A.  B.     [Seal.^ 

ofW.  T.,N.S.  / 

Conditio  >/— In  i  err  si  Periodica  I. 

With  interest  thereon  from  the  date  hereof  (or 

from  the il;iy  of ,  A    D. ),  at  the  rate  of 

per  cent,  per  annum  ior  with  leg.il  interest  there- 
on), payable  semi-annually  (or  quarterly),  on  the 
day  of and (designating  the  months  in- 
tended), in  each  year,  until  the  whole  of  said 
principal  sum  be  paid,  \vithout  fraud  or  other 
delay. 

Condition — Payment  in  Instalments,  Equal  Annual, 
With  Interest,  etc. 

In annual  payments,  from  the  date  hereof 

(or  commencing  on  the day  of 1,  with  inter- 
est thereon,  at  the  rate  of per  cent,  per  an- 
num ; 

(Or,  with  legal  interest  thereon),  payable  annually^ 
v^ith  such  instalments ; 

(Or,  semi-annually,  or  quarterly  on  the days  of 

[naming  the  months  /or  payment  0/  interest],  ii» 

each  year). 

Condition — Payment  in  Instalments,  Unequal,  With 

Interest,  etc. 
In  manner  following :  that  is  to  say,  the  sum 

of dollars,  on  the  day  of ,  next ;  the 

sum  of dollars,  on  the day  of ;  and 

the  remaining  sum  of dollars,  in  one  year 

from  the  said  last-mentioned  date,  together  with 
the  interest,  at  the  rate  of  per  cent,  per 

Wend.  414;  8  Md.  287:  4  Ohio  St.  418:  7  Cal.  551:  i 
Grant  Cas.  359  ;  3  Ind.  431.  b-a  N.  Y.  38*.  C-8N.  Y. 
35- 


I82 


BONDS  OR  OBLIGATIONS. 


annum  (or  with  legal  interest),  on  the  whole  sum 
remaining  unpaid,  at  the  time  of  each  payment. 

Condition — Payment  in  Instalments,  With  Interest. 

With  interest,  at  the  rate  of per  cent,  per 

annum.     (  Or  with  legal  interest.) 

Said  principal  to  be  paid  in  ec]ual  annual 

instalments,  with  the  interest  on  such  instalment, 
on  the day  of ,  in  each  year. 

Condition — Payment  After  Death  of  Third  Person. 

With  interest  at  the  rate  of percent,  per 

annum,     (c**- with  legal  interest.)    Within  the  space 

of months  next  after  the  decease  of  M.  T., 

jf ,  merchant. 

Itoiid  or  Obligration— General  Form. 

Interest  Clause. 

Know  all  men  by  these  presents  : 

That  I,  A.  B.,  of  the  city  of ,  in  the  State 

of ,  am  held  and  iirmly  bound  unto  C.  D.,  of 

,  in  the  sum  of dollars  {inserting  the  pen- 
alty), to  be  paid  to  the  said  C.  D.,  his  executors, 
administrators,  or  assigns,  for  \vhich  payment, 
well  and  truly  to  be  made,  I  bind  myself,  my 
heirs,  executors,  and  administrators,  iirmly  by 
these  presents. 

Sealed  with  my  seal,  dated  the day  of . 

The  condition  of  the  above  obligation  is  such, 
that  if  the  above-bounden  A.  B.,  his  heirs,  exec- 
utors, and  administrators,  or  any  of  them,  shall 
well  and  truly  pay,  or  cause  to  be  paid,  unto  the 
above-named  C.  £>.,  his  executors,  administra- 
tors, or  assigns,  the  just  and  full  sum  of dol- 
lars, on  the day  of ,  with  interest,  at 

per  cent,  per  annum,  payable  half-yearly  from  the 
date  hereof,  without  fraud  or  other  delay,  then 
the  above  obligation  to  be  void  ;  otherwise,  to  re- 
main in  full  force. 

And  it  is  hereby  expressly  agreed,  that,  should 
any  default  be  made  in  the  payment  of  the  said  in- 
terest, or  of  any  part  thereof,  on  any  day  whereon 
the  same  is  made  payable,  as  above  expressed, 
and  should  the  same  remain  unpaid  and  in  arrear 
for  the  space  of days,  then  and  from  thence- 
forth— that  is  to  say,  after  the  lapse  of  the  said 
days — the  aforesaid  principal  sum  of dol- 
lars, with  all  arrearages  of  interest  thereon,  shall 
at  the  option  of  the  said  C.  D. ,  or  his  executors,  ad- 
ministrators, or  assigns,  become  and  be  due  and 
payable  immediately  thereafter,  although  the 
period  first  above  limited  for  the  payment  there- 
of may  not  then  have  expired,  anything  herein- 
before contained  to  the  contrary  thereof  in  any- 
wise notwithstanding.  A.  B.  \Seal.\ 
Executed  in  presence  of) 
W.  T.,  N.  S.            ) 

Condition — Insn  ranee. 

The  condition  of  this  obligation  is  such,  that 
if  the  above-bounden  A.  B.,  his  heirs,  executors, 
and  administrators,  or  any  of  them,  shall  and  do 
vvrell  and  truly  pay,  or  cause  to  be  paid  unto  the 
above-mentioned  C.  D.,  his  executors,  adminis- 
trators, or  assigns,  the  just  and  full  sum  of 

dollars,  on  the  day  of ,  which  will  be  in 

the  year ,  with  interest  thereon  at per 

cent,  per  annum  (<?>- with  lcg.il  iniercst);  and  shall 
keep  the  buildings  erected,  or  to  be  erected,  on 
the  premises  described  in  a  certain  mortgage,  ex- 
ecuted by  the  said  A.  B.  (.nnd  W.  B.,  his  wife),  and 
bearing  even  date  herewith,  and  being  collateral 
hereto,  insured  in  some  solvent  incorporated  in- 
surance company  of  the  State  of ,  against  loss 

or  damage  by  fire,  to  an  amount  not  less  than 

dollars;    and  shall  assign   the   policy  to   be 

taken  for  such  insurance  to  the  obligee  herein,  ot- 
/his  executors,  administrators,  or  assigns,  as  col- 
lateral security  hereto. 

And  it  is  hereby  expressly  agreed,  that  in  case 
the  insurance  above  mentioned  shall  not  be  ef- 
fected or  continued  in  the  manner  above  pro- 
vided, that  then  the  said  obligee,  his  executors, 
administrators,  or  assigns,  may  effect  or  continue 
such  insurance  in  the  name  of  the  said  obligor, 
or  otherwise,  and  the  premiums  paid  therefore 
shall  be  chargeable  as  part  of  the  principal  sum 
hereby  secured  to  be  paid. 

And  it  is  hereby  further  expressly  agreed,  that, 
in  case  any  instalment  of  principal,  or  any  part 


thereof,  or  any  interest  moneys,  or  «ny  part 
thereof,  hereby  secured  to  be  paid,  shall  remain 

due  and  unpaid  for  the  space  of days  after 

the  same  shall,  by  the  terms  hereof,  become  due 
and  payable  for  any  insurance  premiums  paitl  by  the 
obligee  or  his  representatives,  as  aforesaid,  shall  not  be 

repaid  within days  after  notice  thereof  to  the  said 

A.  B.,  his  executors,  ailministrators,  or  assigns),  that 
then  and  from  thenceforth — that  is  to  say,  after 

the  lapse  of  said  days — the  whole  principal 

sum  hereby  secured  to  be  paid,  together  with  all 
arrearages  of  interest  thereon,  shall,  at  the  option 
of  the  said  C.  D.,his  executors,  administrators, 
or  assigns,  become  due  and  payable  forthwith, 
although  the  period  first  above  limited  for  the 
payment  thereof  may  not  then  have  expired,  any- 
thing herein  contained  to  the  contrary  notwith- 
standing. 
Roiid  or  Obi is'atlon— General  Form. 

Condition  for  the  Payment  of  Money,  ivith  Po7ver  of 
Attorney  to  Confess  yiidgment.  Annexed. 

Know  all  men  by  these  presents: 

That  A.  B.  is  held  and  firmly  bound  unto  C.  D. 

in  the  sum  of dollars,  lawful  money  of  the 

United  States  of  America,  to  be  paid  to  the  said 
C.  D.,  or  his  certain  attorney,  executors,  adminis- 
trators, or  assigns:  to  which  payment  well  and 
truly  to  be  made, heirs,  executors,  and  ad- 
ministrators,   firmly  by  these  presents. 

Sealed  with  his  seal,  dated  the day  of . 

The  condition  of  this  obligation  is  : 

That  if  the  above-bounden  A.  B.,his  heirs,  exec- 
utors, administrators,  orany  of  them,  shall  and  do 
well  and  truly  pay,  or  cause  to  be  paid,  unto  the 
above-named  C.  D.,or  his  attorney, executors,  ad- 
ministrators, or  assigns,  the  just  sum  of dol- 
lars, without  any  fraud  or  further  delay,  then  the 
above  obligation  to  be  void,  or  else  to  be  and  re- 
main in  full  force  and  effect.  A.  B.  \Se(U.\ 
Sealed  and  delivered  in  the  pres-l 

enceof  W.  T.,N.  S.  j 

To  A.  A.,  Esq.,  attorney  of  the court,  at 

,  in  the  county  of ,  in  the  State  of ,  or 

to  any  other  attorney  of  the  said  court,  or  of  any 
other  court,  there  or  elsewhere. 

Whereas,  A.  B.,  in  and  by  a  certain  obligation 
bearing  even   date   herewith,  does  stand  bound 

unto  C.  D.,  in   the   sum   of  dollars,  lawful 

money  of  the  United  States  of  America,  condi- 
tioned for  the  payment  of  (state  what,  as  a  certain 
pioniissory  note,  etc. ;  or  a  certain  debt  contracted  for, 
etc.) 

These  are  to  desire  and  authorize  you,  or  any 
of  you,  to  appear  for  said  A.  B.,  his  heirs,  execu- 
tors, or  administrators,  in  the  said  court  or  else- 
where, in  an  action  of  debt,  there  or  else^vhere 
brought,  or  to  be  brought,  against  me,  or  my 
heirs,  executors,  or  administrators,  at  the  suit  of 
the  said  C.  D.,  his  executors,  administrators,  or 
assigns,  on  the  said  obligation,  as  of  any  term  or 
time  past,  present,  or  any  other  subsequent  term 
or  time  there  or  elsewhere  to  be  held,  and  confess 
judgment  thereupon  against    me,  or  my  heirs, 

executors,  or  administrators,  for  the  sum  of 

dollars,  debt,  besides  costs  of  suit.  In  such  man- 
ner as  to  you  shall  seem  meet :  and  for  ycur,  cr 
any  of  your  so  doing,  this  shall  be  your  sufficient 
warrant. 

And  I  do  hereby  for  myself,  and  for  my  heirs, 
executors,  and  administrators,  remise,  release, 
and  forever  quit-claim  unto  the  said  C.  D.,  or  his 
attorney,  executors,  administrators,  and  assigns, 
all  and  all  mannerof  error  and  errors,  misprisions, 
misentries,  defects  and  imperfections  whatever, 
in  the  entering  of  the  said  judgment,  or  any  pro- 
cess or  proceedings  thereon  or  thereto,  or  anywise 
touching  or  concerning  the  same. 

In  witness  whereof,  I   have  hereunto  set  my 

hand  and  seal,  the day  of . 

A.  B.     iSeal.\ 
Sealed  and  delivered  in  the  pres-) 

enceofW.  T.,N.  S.  J 

Bond  or  Obligation — General  Form. 

Another — IVith  Warrant  of  Attorney,  to  Confess 

yudgttient. 
Kno\v  all  men  by  these  presents : 
That  I.  A.  B.,  of-        —  ^^ 


in  the  county  of—,  an4 


BONDS  OR  OBLIGATIONS. 


m 


State  of ,  am  held  and  firmly  bound  unto  C. 

Dm  of  the  city  of  ,  and  State  of ,  in  the 

sum  of  dollars  (in^rrtins;  Ihe  />fnal  sunt),  good 

and  lawful  money  of  the  United  States,  to  be  paid 
to  the  said  C.  D.,his  executors,  administrators, 
or  assigns;  for  which  payment,  well  and  surely 
to  be  made,  I  do  bind  myself,  my  heirs,  executors, 
and  administrators,  firmly  by  tnese  presents. 
Sealed  with   my  seal ;   dated  this day  of 

The  condition  of  the  above  obligation  is  such  : 
That  if  the  above-bounden  A.  B.,  his  heirs,  ex- 
ecutors, and  administrators,  or  any  of  them,  shall 
well  and  truly  pay,  or  cause  to  be  paid,  unto  the 
above-named  C.  D. ,  his  executors,  administra- 
tors, and  assigns,  the  just  and  full  sum  of 

dollars,  with  legal  interest  for  the  same,  on  or  be- 
fore the day  of ,  then  this  obligation  to  be 

void ;  otherwise,  to  remain  in  full  force. 

A.  B.     [Seal.] 
Executed  in  presence  of) 
W.  T.,  N.  s.  ; 

To  any  attorney  of  the court  of  the  State 

of ,  or  of  any  other  court,  there  or  elsewhere  : 

Whereas,  I,  A.  B.,  of ,  by  a  certain  obliga- 
tion, bearing  even  date  herewith,  do  stand  bound 

unto   C.  D.,  of ,   in   the   sum   of  dollars 

(/cMd/xM/x),  conditioned   for  the  payment  of 

dollars  (/>rinci/>al  sum),  and  interest,  these  pres- 
ents are  to  desire  and  authorize  you,  or  any  of 
you,  on  the  request  of  said  C.  D.,  to  appear  for 
me,  my  executors,  or  administrators,  in  the  said 
court,  or  elsewhere,  in  a  proper  action  there  or 
elsewhere  brought,  or  to  be  brought  against  me, 
my  executors,  or  administrators,  at  the  suit  of 
the  said  C.  D.,his  executors,  administrators,  or 
assigns,  on  the  safd  obligation,  as  of  the  present, 
or  any  antecedent,  or  subsequent  term,  or  in  va- 
cation of  the  said  court,  or  any  other  court,  there 
or  elsewhere  to  be  held,  and  confess  judgment 
thereupon  against  me,  my  Bxecutors,  or  adminis- 
trators, for  the  said  sum  of dollars  {penalty^, 

debt,  besides  costs  of  suit,  by  non  sum  in/onnatus, 
nihil  (licit,  or  otherwise,  as  to  you  shall  seem 
meet ;  and  for  your,  or  any  of  your  so  doing,  this 
shall  be  your  sufficient  warrant. 

And  I  do  hereby,  for  myself,  my  executors  and 
administrators,  remise,  release,  and  forever  quit- 
claim unto  the  said  C.  D.,  his  executors,  adminis- 
trators, and  assigns,  all  and  all  manner  of  error 
and  errors,  defects,  and  imperfections  whatever, 
in  the  entering  of  the  said  judgment,  or  any  pro- 
cess or  proceedings  thereon,  or  thereto,  or  in  any- 
>(vise  touching  or  concerning  the  same. 

In  witness  whereof,  I   have  hereunto  set  my 

hand  and  seal,  the day  of . 

A.  B.     \Seal.] 
Sealed  and  delivered  in  the  pres-l 

ence  of  W.  T.,  N.  S.  / 

Bond  or  Obligation — Annnity. 

Payment  of  an,  for  a  Term  of  Years. 

Know  all  men  by  these  presents: 

That  I,  A.  B.,  of ,  county  of ,  and  State 

of ,  am  \or  we,  A.  B.,  of ,  and  C.  D.,  of , 

are)  held  and  firmly  bound  unto  W.  D.,  widow 

of  D.  D.,  deceased,  of  the  town  of ,  in  the 

county  of ,  and  State  of {or  unto  D.  D.,  of 

,  and  W.  D.,  of,  etc.),  in  the  sum  of dollars, 

good  and  lawful  money  of  the  United  States,  to 
be  paid  to  the  said  W.  D.,  her  executors,  admin- 
istrators, or  assigns  (or  to  the  said  D.  D.  and  W.  D. , 
their  executor';,  adiniiiistiators,  or  assigns),  for  wrhich 
payment,  well  and  truly  to  be  made,  I  do  bind 
myself,  my  heirs,  executors,  and  administrators 
{or  we  do  bind  ourselves,  our  heirs,  executors,  and  ad- 
ministrators, joimly  and  severally),  firmly  by  these 
presents. 

Sealed  with  my  seal  {ar  our  seals);  dated  this 
day  of . 

The  condition  of  the  above  obligation  is  such. 

That  if  the  above-bounden  A.  B. ,  his  {or  A.  B. 
and  C.  D.,  their)  heirs,  executors,  or  administra- 
tors, or  any  of  them,  shall  yearly  and  every  year, 

during  the   term  of years,  to   be  computed 

from  (the day  of last  past  before)  the  day  of 

the  date  of  the  above-written  obligation,  ^vell  and 
truly  pay,  or  cause  to  be  paid,  unto  the  above- 


named  W.  D.,her  executors,  administrators,  or 

assigns,  the  annuity  or  clear  yearly  sum  of 

dollars,  by  even  and  quarterly  (or  half-yearly)  por- 
tions, paid  at  or  upon  the days  of  the  months 

of in  each  year,  the  first  payment  thereof  to 

begin  and  be  made  on  the  day  of next 

ensuing  the  day  of  the  date  of  this  obligation, 
and  also  pay  a  proportionable  part  of  the  said 

annuity,  or  clear  yearly  payment  of ,  for,  or 

in  respect  of  so  many  days  as  shall  have  elapsed 
from  the  last  half  (or  quarter)  yearly  day  of  pay- 
ment next  preceding  the  decease  of  the  said  W. 
D.  up  to  the  day  other  death,  then  this  obliga- 
tion IS  to  be  void  ;  but  if  default  shall  be  made  in 
payment  of  the  said  annuity,  or  any  part  there- 
of, at  any  of  the  times  aforesaid,  then  the  said 
obligation  is  to  remain  in  full  force. 

A.  B.     ISeal.-f 

Executed  in  presence   )  {Or,  A.  B.     \Seal\ 

ofW.  T.,N.  S.  ;  B.  A.    {Seal.\) 

Bond  or  Obligation— Apprentice. 

By  a  Father  for  Service  of. 

Know  all  men  by  these  presents: 

That  I,  A.  B.,  of*^ ,  in county,  and  State 

of ,  am  held  and  firmly  bound  unto  C.  D.,  of 

,  in county,  and  State  of ,  in  the  sum 

of dollars  {inserting penal  sum),  good  and  law- 
ful money  of  the  United  States,  to  be  paid  to  the 
said  C.  D.,  his  executors,  administrators  or  as- 
signs ;  for  which  payment,  well  and  truly  to 
be  made,  I  do  bind  myself,  my  heirs,  executors 
and  administrators,  firmly  by  these  presents. 

Sealed  with  my  seal :   dated  this  day  of 

,  A.  D. . 

■Whereas  S.  B.,  son  of  the  above-bounden  A. 
B. ,  by  indenture  of  apprenticeship,  bearing  even 
date  with  the  above-written  obligation,  has  been 
apprenticed  to  the  above-named  C.  D.,  with  him 
to  dwell  and  abide,  from  the  day  of  the  date 

thereof  unto  the  full  end  and  term  of years 

thence  next  ensuing,  as  by  the  said  indenture 
more  fully  appears  : 

Now  the  condition  of  this  obligation  is  such: 

That  if  the  said  S.  B.  shall  well  and  truly  serve 
and  dwell  with  the  said  C.  D.  after  the  manner 

of  an  apprentice,  during  all  the  said  term  of 

years,  according  to  the  true  intent  and  meaning 
of  the  said  indenture ;  and  if  the  said  S.  B.  shaU 
not,  during  said  time,  detain,  convert,  waste, 
embezzle,  make  away  or  lend,  without  his  mas- 
ter's order  or  privity,  any  goods  and  chattels  of 
the  said  C.  D.,  his  executors  or  administrators, 
but  shall  behave  himself  honestly  and  obediently 
towards  the  said  C.  D.,  his  executors  and  ad- 
ministrators, as  a  good  and  dutiful  apprentice 
ought  to  do,  during  the  said  term  (or  may  provide 
for  the  obligor  reimbursing,  as  in  the  folloiuiiig form, 
last  clause),  then  this  obligation  is  to  be  void ; 
otherwise,  to  remain  in  full  force. 
Executed  in  presence    )  A.  B.     \Seal.\ 

ofW.  T.,N.  S.  / 

Bond  or  Oblisration— Bail  Bond. 

Know  all  men  by  these  presents  ; 

That  we,  A.  B.,  C.  D.,  and  E.  F.,  of ,  are 

held  and  firmly  bound  unto  S.  F.,  sheriff  of  the 
county  of ,  in  the  sum  of  one  thousand  dol- 
lars, to  be  paid  unto  the  said  S.  F.,  his  executors, 
administrators,  or  assigns  ;  for  which  payment, 
well  and  truly  to  be  made,  we  bind  ourselves,  our 
and  each  of  our  heirs,  executors,  and  adminis- 
trators, jointly  and  severally,  firmly  by  these 
presents. 

Sealed  with  our  seals.     Dated  the  day  of 

The  condition  of  this  obligation  is  such  : 
That  if  the  above-bounden  A.   B.,  defendant, 
shall  appear  in  a  certain  action  of  trespass,  com- 
menced against  the  said  A.  B.,  by  P.  F.,  plaintiff, 
in  the  supreme  court  of  judicature  of  the  people 

of  the  State  of  ,  by  putting  in  special  bail 

within  days  after  the  day  of  next 

(returti  day  of  ivrit),  and  by  perfecting  such  bail  if 
required,  according  to  the  rules  and  practice  of 
the  said  court,  then  the  above  obligation  to  b« 
void,  otherwise  to  remain  ia  full  force  and  ytxc 
tue. 
Seal,  ttc. 


184 


BONDS  OR  OBLIGATIONS. 


Bond  or  Abll|rn« Ion— Bill  of  rrodit. 

This  present  wiiting  witnesseth  : 

That  I,  A.  B.,  of ,  merchant,  do  undertake 

with  C.  D.,  of ,  merchant,  his  executors  and 

administrators,  that  if  he  dehver  unto  E.  F.,of 

,  trader,  or  any  of  his  assigns,  to  his  use,  any 

sum  or  sums  of  money,  amounting  to  the  sum 

of or  under,  and  shall  take  in  my  name  a  bill 

under  the  hand  and  seal  of  the  said  E.  F.,  con- 
taining and  showing  the  certainty  thereof;  that 
then  I,  my  executors  or  administrators,  having 
the  same  bill  delivered  to  me  or  them,  shall  im- 
mediately, upon  the  receipt  of  the  same,  pay  or 
cause  to  be  paid  unto  the  said  C.  D.,  his  execu- 
tors, administrators,  or  assigns,  all  such  sums  of 
noney  as  shall  be  contained  in  the  said  bill ;  for 
which  payment,  in  manner  and  form  aforesaid, 
v/ell  and  truly  to  be  made,  I  bind  myself,  my 
executors  and  administrators,  by  these  presents. 

Sealed  with  my  seal,  etc. 

Bond  or  ObliKalton— Bill  Penal. 

Or  Without  Ptnalty,  for  the  Payment  of  Money. 

Know  all  men  by  these  presents: 

That  I,  A.  B.,of ,  do  owe  unto  C.  D.,of , 

the  sum  of ,  to  be  paid  unto  the  said  C.  D., 

his  executors,  administrators,  or  assigns,  on  the 
—^  next  ensuing  the  date  hereof;  for  which  pay- 
ment, well  and  truly  to  be  made,  I  bind  myself, 
my  heirs,  executors,  and  administrators  (in  the 
sum  of ),  firmly  by  these  presents. 

In  witness  vt^hereof,  I   have  hereunto  set  my 

hand  and  seal  this day  of ,  A.  D. . 

Bond  or  Obligation— Bill  .Single. 
For  an  Unlimiteil  Sum 

Knov^  all  men  by  these  presents: 

That  I,  A.  B.  {the  obligor)  am  held  and  firmly 
bound  to  C.  D.  ithe  otligee)  in  all  and  every  such 
sums  and  sum  of  money,  as  already  have  been, 
or  hereafter  shall  or  may  be  paid  or  advanced  ; 
and  all  and  every  such  sums  and  sum  of  money, 
to  pay  which  a  liability  or  engagement  has  been, 
or  shall  or  may  be  entered  into,  cr  incurred  by 
him,  the  said  C.  D.,  by  reason  or  means  of  ac- 
cepting or  paying  the  drafts,  bills  or  promissory 
notes  of  the  said  A.  B.,  or  by  discounting  for 
him  other  bills  of  exchange,  or  promissory  notes, 
or  by  affording  to  him  other  pecuniary  assist- 
ance ;  together  with  lawful  interest  for  the  same, 
from  the  time  or  respective  times  of  advancing 
the  same;  and  also  commission  and  other 
charges  according  to  custom,  to  be  paid  to  the 
said  C.  D.,  or  his  certain  attorney,  executors,  ad- 
ministrators, or  assigns;  For  which  payment 
^vell  and  truly  to  be  made  I  bind  myself,  my  heirs, 
executors,  and  administrators,  and  every  of  them, 
firmly  by  these  presents. 

Sealed  with  my  seal;  Dated,  etc. 
Sealed  and  delivered  in         ) 

presence  of  W.  T.,  N.  S.  J 

Bond  or  Obligal ion— Bottomry  Bond. 

Know  all  men  by  these  presents  : 

That  I,  M.  R.,  master  {or  owner,  or  master  and 
owner)  of  the  ship  or  vessel  called  the  V.,  now 

lying    at  the    port  of ,   am  held  and  firmly 

bound  unto  C.  t).,  of  the  city  of ,  in  the  county 

of ,  and  State  of ,  merchant  {or  unto  E.  F  , 

of ,  and  C.  D  ,  of ),  in  the  sum  of dol- 
lars, good  and  lawful  money  of  the  United  States 
(or  other  currency  in  -.uhii  k  f>ayiiient  is  to  be  made),  to 
be  paid  to  the  said  C.  D.,  his  executors,  adminis- 
trators, or  assigns  ior  to  the  said  E.  F.  and  C.  D., 
their  executors,  administrators,  or  assigns),  for  which 
payment,  well  and  truly  to  be  made,  I  do  bind 
myself,  my  heirs,  executors,  and  administrators, 
and  also  the  said  ship  or  vessel,  her  tackle,  ap- 
parel, and  furniture  (and  freight),  firmly  by  these 
presents. 

Sealed  with  my  seal ;  dated  this  day  of 

Whereas,  the  above-bounden  M.  R.  has  bor- 
rowed, taken  up,  and  received  of  the  said  C.  D., 

the  full  and  just  sum  of dollars,  which  sum 

is  to  run  at  bottomry  on  the  body,  tackle,  ap- 
parel, and  furniture  (and  freight)  of  the  said  ship 
or  vessel  {here  ttate  the  voyage  /or  luhich  the  loan  is 
tiiade,  e.  g..  tJius):  from  the  port  or  road  of  P.,  on 
a  voyage  to  the  port  of  R.,  having  permission  to 


touch,  stay  at,  and  proceed  to  all  potts  and  places 
within  the  limits  of  the  voyage,  at  the  rate  or 

premium  of per  cent,  for  the  voyage  (or  at  the 

1. 110   or   premium  of per  cent,  for  every  calendar 

nionih  the  said  ship  or  vessel  shall  be  out  on  said  voy- 
age, ami  so  in  proportion  for  a  less  lime  than  a  month), 
111  consideration  whereof  the  usual  risks  of  the 
seas,  rivers,  enemies,  fires,  pirates,  etc.,  are  to  be 
on  account  of  the  said  C.  D,  :  And  whereas,  for 
the  further  security  of  the  said  C.  D.,  the  said  M. 
R.  has  agreed  to  and  does  by  these  presents  mort- 
gage and  assign  over  to  the  said  C.  D.,  his  exec- 
utors, administrators,  and  assigns,  the  said  ship 
or  vessel  (and  her  freight),  together  with  all  her 
tackle,  apparel,  and  furniture;  and  it  is  hereby 
declared  that  the  said  ship  or  vessel  and  appur- 
tenances (and  her  freight)  are  thus  assigned  over 
for  the  security  of  the  bottomry  taken  up  by  the 
said  M.  R.,  and  shall  be  delivered  to  no  other  use 
or  purpose  whatever,  until  payment  of  this  bond 
is  hrst  made,  with  the  premium  that  may  become 
due  thereon. 

Now  the  condition  of  the  above  obligation  is 
such,  that  if  the  abeve-bounden  M.  R.,  his  heirs, 
executors,  and  administrators,  or  either  of  them, 
shall  and  do  well  and  truly  pay,  or  cause  to  be 
paid,  unto  the  said  C.  D.,  or  to  his  attorneys  in 

,  legally  authorized  to  receive  the  same,  or  to 

his  executors,  administrators,  or  assigns,  the  full 

and  just  sum  of ,  being  the  principal  of  this 

bond,  together  with  the  premium  which  shall  be- 
come due  thereupon,  at  or  before  the  expiration 

of days  after  the  safe  arrival  of  the  said  ship 

or  vessel  at  her  moorings  in  the  harbor  of  R.,  or, 
in  case  of  the  loss  of  the  said  ship  or  vessel,  such 
an  average  as  by  custom  shall  have  become  due 
on  the  salvage,  then  this  obligation  is  to  be  void  ; 
otherwise,  to  remain  in  full  forde. 

Having  signed  three  bonds  of  the  same  tenor 
and  date,  either  one  thereof  being  accomplished, 
the  other  two  are  to  be  void  and  of  no  effect. 

A.  B.     [Stal.] 

Bond  or  Obligation— Bottomry  Bond 

by  a  Part  Owner. 

Signing  as  Attorney  for  Other  Owner. 

Kno^v  all  men  by  these  presents : 

That  I,  M.  R.  (master,  and)  one-third  owner  of 
the  ship  or  vessel  v.,  now  lying  in  the  port  of 

,  for  myself,  and  O.  R.,  who  owns  the  other 

two-thirds  of  said  ship  or  vessel,  by  me  are  held 

and  firmly  bound  unto  C.  D.,  of  the  city  of ,  in 

the  county  of ,  and  State  of ,  merchant  (cr 

unio  C.  D.,  of ,  and    E.  F.,  of ),  in  the  sum 

of  dollars,  good  and   lawful  money  of  the 

United  States  [or  other  currency  in  ichich  payment 
is  to  be  made),  to  be  paid  to  the  said  C.  D.,  his  ex- 
ecutors, administrators,  or  assigns  {or  to  the  said 
C  D.  and  E.  F.,  their  executors,  administrators,  or 
ahMgns),  for  which  payment,  well  and  truly  to  be 
made,  we  bind  ourselves,  our  heirs,  executors, 
and  administrators,  firmly  by  these  presents. 

Sealed  with  our  seals ;  dated  this  day  of 

And  it  is  hereby  declared  that  the  said  ship  or 
vessel  and  appurtenances  (and  herfieight),  are  thus 
assigned  over  for  the  security  of  the  bottomry 
taken  up  by  the  said  M.  R. ,  and  shall  be  delivered 
to  no  other  use  or  purpose  whatever,  until  pay- 
ment of  this  bond  is  first  made,  with  the  pre- 
mium that  may  become  due  thereon. 

Now,  therefore,  the  condition  of  the  above  ob- 
ligation is  such,  that  if  the  above-bcurden  M.  R. 
and  O.  R.,  their  heirs,  executors,  or  administra- 
tors, or  either  of  them,  shall  well  and  truly  pay, 
or  cause  to  be  paid,  unto  the  said  C.  D.,  or  to  his 

(or  to  C.  D.  and  E.  F.,  or  to  their)  attorneys,  at , 

legally  authorized  to  receive  the  same,  or  to  the 
executors,  administrators,  or  assigns  of  said  C. 

D.  (and  E.  F.),  the  just  and  full  sum  of dollars, 

being  the  principal  of  this  bond,  together  with 
the  premium  >xrhich  shall  become  due  thereon,  at 
or  before  the  expiration  of days  after  the  ar- 
rival of  the  said  ship  or  vessel  at  the  port  of ; 

or,  in  case  of  the  loss  of  the  said  ship,  such  an 
average  as  by  custom  shall  ht^ve  become  due  on 
the  salvage,  then  this  obligation  is  to  be  void  : 
otherwise,  to  remain  in  full  force. 

Having  signed  three  bonds  of  the  s«me  tenor 


BONDS  OR  OBLIGATIONS. 


i8s 


■nd  date,  either  one  thereof  of  which  beinjp;  ac- 
complished, the  other  two  are  to  be  of  no  effect. 

M.  R.     [Sfan 
Executed  in  presence  )  O.  R.     [Sfa/.] 

ofW.  T.,N.  S.  i  /yA   A. 

Bond  or  OblifrRtion— Conveyance  of 
I^anii. 

Know  all  men  by  these  presents : 

That  we,  A.  B.  and  B.  A.,  as  principals,  and  S. 
S.  and  Y.  Y.,  as  sureties,  are  firmly  bound  unto 

C.  D.  in  the  sum  of dollars,  to  the  payment 

of  which  to  the  said  A  B.  and  B.  A.,  or  their  ex- 
ecutors, administrators,  or  assigns,  we  hereby 
jointly  and  severally  bind  ourselves,  our  heirs, 
executors,  and  administrators. 

The  condition  of  this  obligation  is: 

That  whereas  the  said  obligors  have  agreed  to 
»eU  and  convey  unto  the  said  obligee  a  certain 

tract  of  real  estate,  situated ,  and  bounded  as 

follows,  namely : 

The  same  to  be  conveyed  by  a  good  and  suffi- 
cient warranty  (or  other)  deed  of  the  said  obligors, 
conveying  a  good,  clear,  and  sufficient  title  to  the 
same,  free  from  all  incumbrances. 

And  whereas,  for  such  deed  and  conveyance  it 
is  agreed  that  the  said  obligee  shall  pay  the  sum 

of dollars,  of  which dollars  are  to  be  paid 

in  cash  upon  the  delivery  of  said  deed,  and  the 

remainder  by  the  note  of  the  said  obligee, 

bearing  interest  a» per  cent,  per  annum,  pay- 
able semi-annually,  and  secured  by  a  mort- 
gage in  the  usual  form  upon  the  said  premises, 
such  note  to  be  {describe  the  note). 

Now,  therefore,  if  the  said  obligors  shall  upon 
tender  by  the  said  obligee  of  the  aforesaid  cash, 

note,  and  mortgage  at  any  time  within from 

this  date,  deliver  unto  the  said  obligee  a  good 
and  sufficient  deed  as  aforesaid,  then  this  obliga 
tion  shall  be  void,  otherwise  it  shall  be  and 
remain  in  full  force  and  effect. 

In  witness  whereof,  we  hereunto  set  our  hands 

and  seals  this day  of . 

A.  B.,  B.  A.,  Principals. 
S.  S.,  Y.  S.,  Sureties. 
Signed  and  sealed  in  presence ) 
of  W.  T.,  N.  S.  I 

Bond  or  Obligation— Conveyance  of 
I^and. 

Know  all  men  by  these  presents : 

That  A.  B.,  of ,  in  the  county  of ,  and 

State  of ,  held  and  firmly  bound  unto  C.  D., 

of ,  in  the  county  of ,  and  State  of ,  in 

the  penal  sum  of dollars,  for  the  payment  of 

which  sum,  well  and  truly  to  be  made  to  C.  D., 
his  heirs,  executors,  and  administrators,  I  bind 
myself,  my  heirs,  executors,  and  administrators, 
firmly  by  these  presents: 

Sealed  v\^ith  my  seal,  and  dated  this  day 

of . 

The  condition  of  the  above  obligation  is  such  : 

That  whereas  the  said  A.  B.  this  day  has  given 
the  said  C.  D.  promissory  note  of  even  date  here- 
with. 

Now,  if,  on  payment  of  the  said  note  being 
made  on  or  before  the  time  the  same  shall  be- 
come due,  and  all  taxes  on  the  land  hereinafter 
described  having  been  paid  by  the  said  A.  B., 
and  no  right  of  pre-emption  having  been  estab- 
lished or  claimed  on  the  said  land,  or  any  part 
thereof,  the  said  A.  B.,  or  his  legal  representa- 
tives, shall,  whenever  thereunto  afterwards  re- 
quested, execute  and  deliver  to  the  said  C.  D.,  or 
his  legal  representatives,  a  good  and  sufficient 
dzed,  conveying  to  him  or  them  the  (here  follo^vs 
a  description  of  the  land),  free  and  clear  of  all  in- 
cumbrance (except,  etc.),  then  this  obligation  to 
be  null  and  void,  otherwise  of  full  force  and  effect. 

It  is  distinctly  understood  and  agreed  by  and 
between  the  parties  hereto  that  the  time  of  pay- 
ment herein  above  fixed  shall  be  material  and  of 
the  essence  of  this  contract,  and  that  in  case  of 
failure  therein,  the  intervention  of  equity  is  for- 
ever barred.  A.  B.  \Seal.\ 
Signed,  sealed,  and  delivered')       C.  D.    \Seal.\ 

in  presence  of  W.  T. ,  N.  S.  j 

Bond  or  Oblli^ation— Corporation. 

Know  all  men  by  these  presents : 


That  I,  A.  B.,  of ,  am  held  and  firmly  bound 

unto  the Insurance  Company,  in  the  sum  of 

one  thousand  dollars,  to  be  paid  to  the  said 

Insurance  Company,  or  assigns  ;  for  which  pay- 
ment, well  and  truly  to  be  made,  I  bind  tnyseff, 
my  heirs,  executors,  and  administrators,  firmly 
by  these  presents. 

Sealed  with  my  seal.     Dated  the  day  of 

The  condition  of  the  above  obligation  is  such  . 
That  if  the  above-bounden  A.  B.,  his  heirs,  ex- 
ecutors, or  administrators,  shall  well  and  truly 
pay,  or  cause  to  be  paid,  unto  the  above-named 

Insurance  Company,  the  just  and  full  sum  of 

five  hundred  dollars,  in  five  equal  annual  pay 
ments  from  the  date  hereof,  with  annual  interest , 
then  the  above  obligation  to  be  void ;  otherwise 
to  remain  in  full  force  and  virtue. 

A.  B.     \Seal.\ 
Sealed  and  delivered  in  pres-) 
enceof  W.  T.,N.  S.  ] 

Bond  or  Oblig'ation— Corporation  Ne> 
s:oiiable,  etc. 
See  title  Bonds,  Notes,  and  Bills,  ante. 

Bond  or  Obligation— Covenants,  etc. 

See  Performance,  below. 

Bond  or  Oblisration— I>eed  of  liand. 

Know  all  men  by  these  presents : 

That  A.  B.,  of  the  county  of ,  and  State  of 

is  held  and  firmly  bound  to  C.  D. ,  of ,  in 

the  sum  of dollars,  to  be  paid  to  said ,  his 

executors,  administrators,  or  assigns,  to  the  pay- 
ment whereof  he  binds  himself,  his  heirs,  ex- 
ecutors, and  administrators,  firmly  by  these  pres- 
ents. 

Sealed  with  seal,  and  dated  the  day 

of . 

The  condition  of  this  obligation  is. 

That  if ,  the  said  C.  D.,  upon  payment  of 

dollars,  and  interest,  by  said  A.   B.  within 

years   from   this  date,  agreeably  to  his  

note  of  even  date  herevtrith,  shall  convey  to  said 
C.  D.,  and  his  heirs  forever,  a  certain  tract  of 

land,  situated  in  the  county  of ,  and  State  of 

,  to  wit :  (describing  tt),  by  a  warranty  [or  other) 

deed  in  common  form  duly  executed  and  ac- 
knowledged, and  in  the  meantime  shall  permit 
said  C.  D.  to  occupy  and  improve  said  premises 
for  his  own  use,  then  this  obligation  shall  be  void, 
otherwise  to  remain  in  full  force  and  effect. 

In  witness  whereof,  I   have  hereunto  set  my 
hand  and  seal,  the  day  and  year  first  above  writ- 
ten. A.  B.     [Seal] 
For  form  of  Acknowledgment,  see  that  title. 
Bond  or  Oblijpation— Deed  by  Tendor 
to  Purchaser. 

Kno^v  all  men  by  these  presents: 

That  I,  A.  B.,  of ,  in  county,  and  State 

of ,  am  held  and  firmly  bound  unto  C.  D.,  of 

the  town  of ,  in  the  county  of ,  and  State 

of ,  merchant,  in  the  sum  of dollars,  good 

and  lawful  money  of  the  United  States,  to  be 
paid  to  the  said  C.  D.,  his  executors,  administra- 
tors, or  assigns ;  for  which  payment,  well  and 
truly  to  be  made,  I  do  bind  myself,  my  heirs,  ex- 
ecutors, and  administrators,  firmly  by  these  pres- 
ents : 

Sealed  with  my  seal ;   dated  this  day  of 

■Whereas,  the  above-bounden  A.  B.  has  this  day 
agreed  to  sell  to  the  said  C.  D.  the  following  de- 
scribed tract  of  land  in  the  county  of ,  in  the 

State  of ,  to  wit:  (describing  it),  on  conditioa 

that  the  said  C.  D.  shall  pay  the  sum  of dol- 
lars in  manner  following,  to  wit:  (stating time, 
etc.),  and  for  which  the  said  C.  D.  has  given  his 
promissory  note. 

Now  the  condition  of  this  obligation  is  such. 
That  if  said  C.  D.  chall  pay  said  note  at  matur- 
ity, and  shall  in  the  meantime  pay  all  taxes  on 
said  land,  and  the  said  A.  B.  shall  on  the  comple- 
tion of  said  payments  make,  execute  and  deliver, 
or  cause  to  be  made,  executed  and  delivered  (here 
state  the  conveyance  to  be  given,  as),  a  good  and  suf- 
ficient warranty-deed  to  the  said  C.  D.  for  said 
tract  of  land,  then  this  obligation  to  be  void,' 
Otherwise  to  remain  in  full  force. 


>86 


BONDS  OR  OBLIGATIONS. 


And  it  is  expressly  agreed  by  and  between  said 
parties,  that  time  is  of  the  essence  of  this  con- 
tract, and  that  in  the  event  of  the  non-payment 
of  said  sum  of  money,  or  any  part  thereof, 
promptly  at  the  time  herein  limited,  that  then 
the  said  A.  B.  is  absolutely  discharged  at  law  and 
in  equity  from  any  and  all  liability  to  make  and 
execute  such  deed,  and  may  treat  the  said  C.  D. 
•s  a  tenant  holding  over  after  the  termination,  or 
contrary  to  the  terms  of  his  lease  ;  or  if  he  prefer 
to  do  so,  may  enforce  the  payment  of  said  note. 

A.  B.     [Sea/.} 
Executed  in  presence  of) 

w.  T.,  N.  s.        ; 

Bond  or  Obligation— To  Deliver  to 
Klieriir  Ooodsi. 

Ltvied  on  and  Left  in  Defendant' s  Possession,  With 
Surety. 

Know  all  men  by  these  presents : 

That  we,  A.  B. ,  of ,  in county,  and  State 

of ,  and  S.  Y.,  of  the  same  place,  merchant,  are 

held  and  firmly  bound   unto  S.  F.,  the  sheriff  of 

county,   in  the  sum    of   dollars,   good 

and  lawful  money  of  the  United  States,  to  be 
paid  to  the  said  S.  F.,his  executors,  administra- 
tors, or  assigns,  for  which  payment,  well  and 
truly  to  be  made,  we  do  bind  ourselves,  our 
heirs,  executors,  and  administrators,  jointly  and 
severally,  firmly  by  these  presents. 

Sealed  with  our  seals ;  dated  this  day  of 

Whereas  the  above-named  S.  P.,  sheriff  of  the 

said  county  of ,  by  virtue  of  an  execution  {or 

a  writ  o{ Jieri  facias),  issued  out  of  the  court  of 

,  for  the ,  to  him  directed  and  delivered, 

has  seized  and  taken  in  execution  the  following 
goods  (describing  tliem\,  as  the  property  of  the 
above-bounden  A.  B.,  defendant  in  the  said  exe- 
cution (or  writ  o^  fieri  facias). 

Now  the  condition  of  this  obligation  is  such, 
that  if  the  above-bounden  A.  B.  or  S.  Y.,  or  their 
executors,  administrators,  or  assigns,  or  any  of 
them,  shall  well  and  truly  deliver  up,  or  cause  to 
be  delivered  up  to  the  said  sheriff,  all  the  above- 
mentioned  goods,  whenever  required  by  the  said 
sheriff,  in  a  sound  and  in  every  way  as  good  a  sit- 
uation and  condition  as  when  the  above-men- 
tioned goods  were  first  levied  on  by  the  said 
sheriff',  and  that  too  without  fraud  or  other  delay, 
then  this  obligation  is  to  be  void  ;  otherwise,  to 
remain  in  full  force.  A.  B.     \Seal.\ 

Executed  in  presence  of)  S.  Y.     [Seal A 

w.  T.,  N.  s.        ; 

Bond  or  Oblig^ation— To  Execute  a  Con- 
veyance. 

With  Surety. 

Kno^v  all  men  by  these  presents : 

That  we,  A.  B. ,  of ,  in county,  and  State 

of  ,  and   B.  A.,  of ,  are   held   and   firmly 

bound   unto   C.   D.,  of  the   town  of ,  in 

county,  and  State  of ,  in  the  sum  of dol- 
lars, to  be  paid  to  the  said  C.  O.,  his  executors, 
administrators,  or  assigns,  for  which  payment, 
well  and  truly  to  be  made,  we  do  bind  ourselves, 
our  heirs,  executors,  and  administrators,  jointly 
and  severally,  firmly  by  these  presents. 

Sealed  with  our  seals  ;   dated  this  day  of 

The  condition  of  the  above  obligation  is  such. 
That  if  the  above-bounden  A.  B.,on  or  before 

the day  of next,  or,  in  case  of  his  death 

before  that  time,  if  the  heirs  of  the  said  A.  B. 

within months  after  his  decease,  i  •"  such  heirs 

shall  then  be  of  full  age,  or  if  within  age,  then 

vrithin months  after  such  heirs  shall  be  of 

full  age,  do  and  shall  upon  the  reasonable  request, 
and  at  the  proper  cost  and  charges  in  the  law  of 
the  said  C.  D.,  his  heirs  or  assigns,  make,  ex- 
ecute, and  deliver,  or  cause  so  to  be  to  the  said 
C.  O.,  his  heirs  or  assigns,  or  to  such  person  or 
persons  as  he  or  they  shall  nominate  and  appoint, 
and  to  such  uses  as  he  or  they  shall  direct  {nere 
state  the  comieyance  stipulated  for,  as)  all  and  every 
such  deed  or  deeds,  conveyance  or  conveyances 
^whatsoever,  which  shall  be  needful  for  conveying 
and  confirming  unto  the  said  C.  D.,  his  heirs  and 
•Migns,  a  good,  absolute,  and  indefeasible  estate 


of  inheritance  in  fee  simple,  <lear  of  all  incum- 
brances, except  a  mortgage  made  by  A.  B.  fo( 
$i,ooo,  and  due years  from  date. 

A  good  and  sufficient  conveyance  in  fee  simple, 
with  the  usual  covenants. 

( Or,  A  good  and  sufficient  warranty  deed,  in  fee  siirr 
pie,  free  from  ail  incumbrance,  and  with  full  covenants). 
of  the  following  described  premises,  to  wit :  alt 
{here  describing  the  premises),  then  the  above  obli- 
gation to  be  void  ;  otherwise,  to  remain  in  full 
force  and  virtue.  A.  B.     \Seal.\ 

Executed  in  presence  of  I  B.  A.     |.!>;ra/.] 

w.  t.,N.  s.        ; 

Bond  or  Obligation— Execntom. 

Know  all  men  by  these  presents  : 

That  I,  A.  B.,  of ,  am  held  and  firmly  bound 

unto  E.  X.  and  T.  R.,  of,  etc.,  executors  of  the 
last  will  and  testament  of  D.  D.,  deceased,  late 

of ,  in  the  sum  of  one  thousand  dollars,  to  be 

paid  to  the  said  E.  X.  and  T.  R.,  executors,  as 
aforesaid,  the  survivors  or  survivor,  or  his  or  their 
assigns  ;  for  which  payment,  vi'ell  and  truly  to  be 
made,  I  bind  myself,  my  heirs,  executors,  and  ad- 
ministrators, firmly  by  these  presents. 

Sealed  with  my  seal.     Dated  the  day  of 

The  condition  of  the  above  obligation  is  such  : 
That  if  the  above-bounden  A.  B.,  his  heirs,  ex- 
ecutors, or  administrators,  shall  well  and  truly 
pay,  or  cause  to  be  paid,  unto  the  above-named 
E.  X.  and  T.  R.,  executors,  as  aforesaid,  the  sur- 
vivors, or  survivor,  or  his  or  their  assigns,  the 
just  and  full  sum  of  five  hundred  dollars,  in  five 
equal  annual  payments  from  the  date  hereof, 
with  annual  interest,  then  the  above  obligation 
to  be  void;  otherwise  to  remain  in  full  force  and 
virtue.  A.  B.     \^Seal.\ 

Sealed  and  delivered  in  pres-) 
enceofW.  T.,N.  S.  / 

Bond  or  ObIi)sration— liesrateett. 

Know  all  men  by  these  presents: 

That  we,  A.  B.  and  O.  P.,  of,  etc.,  are  held  and 
firmly  bound  unto  E.  X.  and  T.  R.,  of,  etc.,  exec- 
utors of  the  last  will  and  testament  of  D.  D.,  de- 
ceased, late  of  the  town  of ,  in  the  sum  of 

one  thousand  dollars,  to  be  paid  to  the  said  E.  X. 
and  T.  R.,  executors,  as  aforesaid,  the  survivors, 
or  survivor,  or  his  or  their  assigns  ;  for  which  pay- 
ment, well  and  truly  to  be  made,  we  bind  our- 
selves, our  and  each  of  our  heirs,  executors,  and 
administrators,  jointly  and  severally,  firmly  by 
these  presents. 

Sealed  with  our  seals.     Dated  the  day  of 

Whereas,  in  and  by  the  last  will  and  testament 
of  the  said  D.  D.,  deceased,  a  legacy  of  one  hun- 
dred dollars  is  bequeathed  to  the  said  A.  B., 
which  has  been  paid  to  him  by  the  said  E.  X. 
and  T.  R.,  executors  as  aforesaid  : 

Nov^r  the  condition  of  this  obligation  is  such  : 

That  if  any  debts  against  the  deceased,  above 
named,  shall  duly  appear,  and  which  there  shall 
be  no  other  assets  to  pay,  and  if  there  shall  be  no 
other  assets  to  pay  other  legacies,  or  not  suffi- 
cient, that  then  the  said  A.  B.  shall  refund  the 
legacy  so  paid,  or  such  ratable  proportion  there- 
of, with  the  other  legatees  of  the  deceased,  as 
may  be  necessary  for  the  payment  of  such  debts, 
and  the  proportional  parts  of  other  legacies,  if 
there  be  any,  and  the  costs  and  charges  incurred 
by  reason  of  the  payment  to  the  said  A.  B.  ;  and 
that  if  the  probate  of  the  will  of  the  said  deceased 
be  revoked,  or  the  will  declared  void,  then  the 
said  A.  B  shall  refund  the  whole  of  the  legacy, 
with  interest,  to  the  said  £.  X.  and  T.  R.,  their 
executors,  administrators,  or  assigns. 

Sealed,  etc.  A    B.     \Seat.\ 

O.  P.     \Seal.\ 

Bond  or  Oblis:ati«»n— I<eKatee  or 

Ke|»reM<>n  t  a  t  i  ve. 

Before  Suit. 

Know  all  men  by  these  presents  : 

That  we,  A.  B.  and  O.  P.,  of,  etc.,  are  held  and 
firmly  bound  unto  E.  X.  and  T.-  R. ,  of,  etc. .  exec- 
utors of  the  last  will  and  testament  of  D.  D.,  de- 
ceased, late  of  the  town  of ,  in  the  sum  of  on* 

thousand  dollars,  to  be  paid  to  the  said  £  X.  aQ4 


BONDS  OR  OBLIGATIONS. 


ts; 


T.  ft.,  executors,  as  aforesaid,  the  survivors,  or 
survivor,  or  his  or  their  assigns  ;  for  Avhicli  pay- 
ment, well  and  truly  to  be  made,  we  bind  our- 
selves, our  and  each  of  our  heirs,  executors,  and 
administrators,  jointly  and  severally,  firmly  by 
these  presents: 
Sealed  wifh  our  seals.     Dated  the  day  of 

Whereas,  the  said  A.  B.  is  about  to  commence 
a  suit  in  the  supreme  court  of  judicature  of  the 

people  of  the  State  of ,  against  the  said  E.  X. 

and  T.  R.,  as  such  executors,  as  aforesaid,  for  the 
purpose  of  recovering  the  amount  of  a  certain 
legacy  bequeathed  to  him,  in  and  by  the  last  will 
and  testament  of  the  said  D.  D.,  deceased  (t»-, 
lor  the  piiipose  of  recovering  the  dislribiilive  share  of 
the  property  of  ihe  said  D.  D.,  deceased,  due  lo  him, 
the  said  A.  B.,  as  one  of  the  sons  of  the  said  D.  D., 
deceased). 

Now  the  condition  of  this  obligation  is  such  : 

That  if  any  debts  owing  by  the  said  deceased 
shall  hereafter  be  recovered,  or  duly  made  to  ap- 
pear, for  the  payment  of  which  there  shall  be  no 
assets  other  than  the  said  legacy  (or  dislnbiitive 
share),  that  then  the  said  A.  B.  shall  refund  the 
amount  that  may  be  recovered  in  any  action  by 
him  against  the  said  executors,  or  such  ratable 
patt  thereof,  with  the  other  legatees  (or  lepiesem- 
atives)  of  the  deceased,  as  may  be  necessary  for 
the  payment  of  the  said  debts,  and  the  costs  and 
charges  incurred  by  a  recovery  against  the  said 
executors  in  any  suit  therefor. 

(I/the  bond  is  given  by  a  legatee,  the  /allowing  clause 
must  be  added)  : 

And  also,  if  no  sufficient  assets  shall  remain, 
after  the  payment  of  said  legacy,  to  pay  any 
other  legacy  which  may  be  due,  that  then  the 
said  A.  B,  shall  refund  such  ratable  part  or  pro- 
portion thereof,  with  the  other  legatees,  or  repre- 
sentatives, of  the  deceased,  as  may  be  necessary 
for  the  payment  of  such  other  legacy. 

Sealed,  etc. 

Bond  or  <»l>lisntion— Of  Two  Obli^^orn. 

Know  all  men  by  these  presents: 

That  we,  A.  B.  and  B.  A.,  of,  etc.,  are  held  and 
firmly  bound  unto  C.  D.,  of,  etc.,  in  the  sum  of 
one  thousand  dollars,  lawful  money  of  the  United 
States  of  America,  to  be  paid  to  the  said  C.  D., 
his  executors,  administrators  or  assigns ;  for 
which  payment,  v^ell  and  truly  to  be  made,  we 
bind  ourselves,  our  and  each  oi  our  heirs,  execu- 
tors, and  administrators,  jointly  and  severally, 
firmly  by  these  presents. 

Sealed  with  our  seals.     Dated  the day  of 

The  condition  of  the  above  obligation  is  such  : 
That  if  the  above-bounden  A.  B.  and  B.  A.,  or 
either  of  them,  their  or  either  of  their  heirs,  ex- 
ecutors, or  administrators,  shall  well  and  truly 
pay,  or  cause  to  be  paid,  unto  the  above-named 

C.  D.,  etc.  (us  in  preceding  form). 

Sealed  and  delivered  in        |  A.  B.     \Seal.\ 

presence  of  W.T.,  N.  S.j  B.  A.     \Seal.\ 

BoiKl  or  OI»li$rntioii— OI»lis:ors  lo  Obli- 
g;ee»i.  Two  or  Moro,  lo  Two  or  Moro. 

For  J'ayinent  of  Money  at  One  Period. 

Know  all  men  by  these  presents; 

That  we,  A.  B.,  of ,  in  the  county  of , 

B.  A.,  of ,  are  held  and  firmly  bound  to  C.  D., 

of ,  D.  C,  of {and  so  on  i/ more  ol-ligees),  in 

the  sum  of ,  to  be  paid  to  the  said  C.  D.  and 

D.  C,  or  either  of  them  (i/  more  than  tivo,  say,  or 
any  of  them),  or  their  certain  attorney,  executors, 
administrators,  or  assigns,  for  which  payment, 
to  be  well  and  truly  made,  we  bind  ourselves, 
and  each  of  us,  by  himself,  our  and  each  of  our 
heirs,  executors,  and  administrators,  firmly  by 
tnese  presents. 

Sealed  with  our  seals.    Dated  the  day  of 

The  condition  of  this  obligation  is  such  : 
That  if  the  above-bounden  A.  B.  and  B.  A  ,  or 
either  of  them,  their  or  either  of  their  heirs,  ex- 
ecutors, or  administrators,  do  and  shall  well  and 
truly  pay,  or  cause  to  be  paid,  unto  the  above- 
named  C.  D.,  D.  C,  or  either  of  them  (//"/«<? r^ 
IkaH  two,  scty   or  any  of  thein),  their  or  either  of 


their  executors  or  administrators,  the  full  sum  of 
two  hundred  and  fifty  dollars,  with  lawful  ifiter- 
est  for  the  same  on  the day  of ,  next  en- 
suing the  date  of  the  above-written  obligation, 
without  fraud  or  delay,  then  this  obligation  shall 
be  void  ;  otherwise  the  same  shall  remain  in  full 
force. 

Sealed  and  delivered,  etc. 

BuiKl  or  <»ltliKalioii— One  Obllgror  to 
Soveriil  llblJK'eoM. 

Know  all  men  by  these'presents: 

That  I,  A.  B.,  of  the  town  of ,  in  the  countjr 

of ,  and   State   of  ,  am  held   and   firmly 

bound  unto  C.  D.,  of  the  city  of ,  and  State 

of ,  E.  F.,  of  the  same   place,  and  G.  H.,  of 

,  in  the  State  of ,  in  the  sum  of dol- 
lars (inserting  the  penal  sum),  good  and  lawful 
money  of  the  United  States,  to  be  paid  to  the  said 
C.  D.,  E.  F.,  and  G.  H.,  their  executors,  admin- 
istrators, or  assigns,  for  which  payment,  well  and 
truly  to  be  made,  I  do  bind  myself,  and  my  heirs, 
executors,  and  administrators,  firmly  by  these 
presents. 

Sealed  with  my  seal ;   dated   this  day  of 

The  condition  of  the  above  obligation  is  such, 
that  if  the  above-bounden  A.  B.,  his  heirs,  exec- 
utors, and  administrators,  or  any  of  them,  shall 
well  and  truly  pay,  or  cause  to  be  paid,  unto  the 
above-named  C.  D.,  E.F.,  and  G.  H.,  or  their  ex- 
ecutors, administrators,  or  assigns,  the  just  and 
full  sum  of,  etc.  (as  in  other  cases). 

A.  B.     {Seal.\ 
Executed  in  presence  of) 
W.  T..  N.  S.  \ 

RoimI  or  Obligation— For  Performance. 

To  be  Indorsed  on  a  Contract  or  Agreement. 

Know  all  men  by  these  presents  : 

That  we,  A.  B.  and  B.  A.,  of,  etc.,  are  held  and 
firmly  bound  unto  C.  D.,  of,  etc.,  in  the  sum  of 
one  thousand  dollars,  lawful  money  of  the  United 
States  of  America,  to  be  paid  to  the  said  C.  D., 
his  executors,  administrators,  or  assigns ;  for 
which  payment,  well  and  truly  to  be  made,  \we 
bind  ourselves,  our  and  each  of  our  heirs,  execu- 
tors, and  administrators,  jointly  and  severally, 
firmly  by  these  presents. 

Sealed  with  our  seals ;   dated  this day  of 

The  condition  of  this  obligation  is  such,  that  if 
the  above-bounden  A.  B.,  his  executors,  adminis- 
trators, or  assigns,  shall,  in  all  things,  stand  to, 
and  abide  by,  and  well  and  truly  keep  and  per- 
form, the  covenants,  conditions,  and  agreements, 
in  the  within  instrument  contained,  on  his  or 
their  part  to  be  kept  and  performed,  at  the  time, 
and  in  the  manner  and  form  therein  specified, 
then  the  above  obligation  shall  be  void  ;  else  to 
remain  in  full  force  and  virtue. 

Sealed,  etc. 

Boutl  or  Oblig:ation— Respou4leutia 
BoiKl. 

Know  all  men  by  these  presents 

That  I,  M.  R.,  master  (or  owner,  or  master  and 
owner)  of  the  ship  or  vessel  called  the  V.,  no^v 

lying    at  the    port  of ,  am  held  and  firmly 

bound  unto  C.  D  ,  of  the  city  of ,  in  the  county 

of ,  and  State  of ,  merchant  (or  vinto  E.  F., 

of ,  and  C  D,  of ),  in  the  sum  of dol- 
lars, good  and  lawful  money  of  the  United  States 
(or  other  currency  in  -uhii h payment  is  to  be  made),  to 
be  paid  to  the  said  C.  D.,  his  executors,  adminis- 
trators, or  assigns  (or  to  the  said  E.  F.  and  C  l>  . 
their  executors,  administraiors,  or  assigns),  for  which 
payment,  well  and  truly  to  be  made,  I  do  bind 
myself,  my  heirs,  executors,  and  administrators, 
and  also  the  said  ship  or  vessel,  her  tackle,  ap- 
parel, and  furniture  (and  freight),  firmly  by  these 
presents. 

Sealed  with  my  seal;  dated  this  day  of 

Whereas  the  above-bounden  A.  B.  has  (or  A.  B. 
and  15.  A   have)  borrowed,  taken  up,  and  received 

of  the  said  C.  D.,  the  full  and  just  sum  of 

dollars,  which  sum  is  to  run  at  respondentia  on 
the  said  ship  or  vessel  (here  state  the  7/oyage  for 
ivhich  the  Ioj-h  is  made),  at  the  rate  or  premium  of 


t8& 


BONDS  OR  OBLIGATIONS. 


per  cent,  for  the  voyage  (or  at  the  rate  of 

per  cent,  for  every  calendar  month  the  said  ship  or  ves- 
sel shall  be  out  on  the  said  voyage,  and  so  in  proportion 
for  a  less  time  than  a  month);  in  consideration  of 
which  the  usual  risks  of  the  seas,  rivers,  enemies, 
fires,  pirates,  etc.,  are  to  be  on  the  account  of  the 
said  C.  D. ;  and  whereas,  for  the  further  security 
of  the  said  C.  D.,  the  said  A.  B.,  for  and  on  ac- 
count of  the  owners,  their  executors,  administra- 
tors, and  assigns,  has  agreed  to,  and  does  by 
these  presents  mortgage  and  assign  over  to  the 
■aid  C.  D.,  the  several  goods,  wares,  and  mer- 
chandise laden  and  to  be  laden  on  the  said  ship  or 
vessel;  which  said  goods,  wares,  and  merchan- 
dise, with  their  produce,  are  thus  mortgaged  and 
assigned  over,  for  the  security  of  the  respondentia 
taken  up  by  the  said  A.  B. ,  and  shall  be  delivered 
to  no  other  use  or  purpose  whatever,  until  pay- 
ment of  this  bond  is  first  made,  with  the  premium 
that  may  become  due  thereon  : 

Now  the  condition  of  the  above  obligation  is 
Buch  : 

That  if  the  above-bounden  A.  B.,  his  heirs,  ex- 
ecutors, and  administrators,  or  any  of  them,  shall 
well  and  truly  pay,  or  cause  to  be  paid,  unto  the 
•aid  C.  D.,  or  to  his  attorneys  (or  to  C.  D.  and  E. 

F.,  or  to  their  attorneys),  at  ,  legally  authorized 

to  receive  the  same,  or  to  the  executors  and  ad- 
ministrators of  the  said  (E.  F.  and,  C.  D.,  the  just 

and  full  sum  of dollars,  being  the  principal 

of  this  bond,  together  with  the  premium  which 
shall  become  due  thereupon,  at  the  expiration  of 

months  after  the  safe  arrival  of  the  said  ship 

or  vessel  at  her  moorings  in  the  port  of ,  or  in 

case  of  the  loss  of  the  said  ship  or  vessel,  such 
average  as  by  custom  shall  have  become  due  on 
the  salvage,  then  this  obligation  is  to  be  void  ; 
otherwise,  to  remain  in  full  force.  Having  signed 
three  bonds  of  the  same  tenor  and  date,  either 
one  thereof  being  accomplished,  the  other  two 
are  to  be  of  no  effect.  A.  B,    [&a/.J 

Executed  in  presence  of) 

w.  T.,N.  s.        ; 

Bond  or  Obligation— Service. 

In  Consideration  of  the  Payment  o/  a  Debt. 

Know  all  men  by  these  presents : 

That  I,  A.   B.,  of ,  in  consideration  of  the 

sum  of ,  to  me  in  hand  paid  by  C.  D.,  of , 

have  bound  myself,  and  by  these  presents  do  bind 
myself  a  servant  unto  the  said  C.  D.,  to  serve 
him,  the  said  C.  D.,his  executors  and  adminis- 
trators (and  assigns),  for  the  space  of months 

and  days  from  the  day  of  the  date  hereof; 

and  I  do  covenant  so  to  serve  faithfully  during 

the  said  time  ;  and  so  to  serve  at  the  rate  of 

dollars  per  month  for  all  such  moneys  as  the  said 
C.  D.  has  undertaken,  or  shall  undertake,  and  be 
obliged  to  pay  at  my  request,  for  me  and  on  my 
account,  he,  the  said  C.  D.,  finding  and  provid- 
ing for  me  during  the  said  time,  in  board, 
lodging,  and  washing,  as  is  customary  for  ser- 
vants. 

In  witness  whereof,  I  have  hereunto  set  my 

hand  and  seal,  this day  of . 

A.  B.    [&«/.] 

Bond  or  Oblljtrntlon— Several  Per«4ons, 
Bound  Severally  for  Several  Amounts. 

Know  all  men  by  these  presents  : 

That  we,  A.  B.,  of ,  in  the  county  of , 

and  State  of ,  and  B.  A. ,  of ,  and  E.  F.  and 

G.  H.,  of ,  in  said  county,  are  severally  and 

respectively  held  and  firmly  bound   unto  C.  D., 

of  said ,  in  the  respective  sums  following,  viz. , 

the  said  A.  B.,  B.  A.,  and  E.  F.  in  the  sum  of 

dollars  each,  and  the  said  G.  H.  in  the  sum  of 

. dollars,  good  and  lawful  money  of  the  United 

States,  to  be  paid  to  the  said  C.  D., his  executors, 
administrators,  or  assigns  ;  for  which  said  sev- 
eral payments,  well  and  truly  to  be  made,  each 
of  them  doth  hereby  bind  himself,  his  heirs,  ex- 
ecutors, and  administrators,  severally  and  re- 
spectively, but  not  jointly,  nor  one  for  the  other, 
firmly  by  these  presents. 

Seaied  with  our  seals;  dated  this  day  of 

The  condition  of  this  bond  is,  etc.  (as  in  othtr 
mutt).  ^ 


Bond  or  Obi  if^atlon— Several  P«rflM»n« 
Severally,  for  .Several  Snms. 

Know  all  men  by  these  presents: 

That  A.  B.,  of ,  B.  A.,  of ,  A.  A.,  o» , 

B.  B.,  of ,  and  A.  B.  A.,  of ,  are  severally 

and  respectively  held  and  bound  unto  C.  D.,in 
the  respectivt  sums  following,  viz.,  each  of  them, 
the  said  A.  B.,  B.  A.,  A.  A.,  B.  B.,  in  the  sum  of 

apiece,  and  the  said  A.  B.  A.  in  the  sum  of 

,  to  be  paid  to  the  said  C.  D.,  his  heirs,  etc., 

to  which  said  several  payments,  well  and  truly 
to  be  made,  each  of  them  doth  hereby  bind  and 
oblige  himself,  his  heirs,  etc.,  severally  and  te- 
spectively,  but  not  jointly,  nor  one  for  the  other, 
firmly  by  these  presents. 

Sealed,  etc. 

Bond  or  Obligratlon— Unliquidated 
Sum. 

Know  all  men  by  these  presents  : 

That  I,  A.  B.,  of ,  merchant,  am  held  and 

firmly  bound  to  C.  D.,of  said  place,  banker,  in 
all  and  every  such  sutns  and  sum  of  money,  as 
already  have  been,  or  hereafter  shall  or  may  be 
paid  or  advanced  by  him  for  me;  and  all  such 
sums  of  money,  to  pay  which  a  liability  or  en- 
gagement has  been,  or  shall,  or  may  be  entered 
ioto  or  incurred  by  him,  the  said  C.  D.,  by  reason 
or  means  of  accepting  or  paying  the  drafts,  bills, 
or  promissory  notes  of  me,  the  said  A.  B. ,  or  by 
discounting  for  me  other  bills  of  exchange  or 
promissory  notes,  or  by  affording  to  me  other  pe- 
cuniary assistance,  together  with  lawful  interest 
upon  the  same,  from  the  time  or  respective  times 
of  paying  or  advancing  the  same;  and  also  the 
commissions  and  other  charges  according  to  law- 
ful custom,  to  be  paid  to  the  said  C.  D.,  his  exec- 
utors, administrators,  or  assigns  ;  for  which  pay- 
ment, well  and  truly  to  be  made,  I  bind  myself, 
my  heirs,  executors,  and  administrators,  firmly 
by  these  presents. 

Sealed  with  my  seal ;  dated  this  day  of 

.  A.  B.     [Seai] 

Bond  or  Oblig^ation— Warranty  Shall 
be  Kept. 

Know  all  men  by  these  presents: 

That  I,  A.  B.,  of ,  in county,  and  State 

of ,  am  held  and  firmly  bound  unto  C.  D.,  of 

,  in county,  and  State  of ,  in  the  sum 

of  dollars,  good  and  lawful  money  of  the 

United  States,  to  be  paid  to  the  said  C.  D.,  his 
executors,  administrators  or  assigns;  for  which 
payment,  well  and  truly  to  be  made,  I  do  bind 
myself,  my  heirs,  executors  and  administrators, 
firmly  by  these  presents. 

Sealed  with  my  seal ;    dated  this  day  of 

,  A.  D. . 

Whereas  the  said  A.  B. ,  for  the  consideration  of 

dollars,  to  nim  in  hand  paid,  or  secured  to  be 

paid,  did  make,  finish,  and  sell  unto  the  said  C. 
D.,  a  hot-air  engine,  with  retorts,  and  appurte- 
nances (or  other  artide,  as  the  case  may  lie),  which 
he  has  delivered  and  placed  in  the  factory  of  said 

C.  D.,  which  he  has  and  hereby  does,  for  himself, 
his  heirs,  executors,  and  administrators,  warrant 
to  be  good  in  each  and  every  respect,  and  to  re- 
main good  and  sufficient  for  the  space  of  

years. 

Now,  therefore,  the  condition  of  the  above  obli- 
gation is  such : 

That  if  the  said  engine,  retorts,  and  appurte- 
nances, or  any  part  thereof,  shall  within  the  time 
aforesaid  prove  defective  or  insufficient,  in  the 
opinion  of  any  three  competent  and  disinterested 
mechanics  or  engineers,  then  this  obligation  is  to 
be  in  full  force,  otherv^ise  to  be  void. 

•  A.  B.     [Sean 
Executed  in  presence  of  1  C.  D.    [Seal.] 

w.  T.,  N.  s.  ; 

VARIOUS  OONniTIONAI^  CliAUSES. 

Condition — Bill  op  Sale. 

From  an  Owner  of  Part  oj  a  Ship,  that  an   (hvner 
of  Another  Part  (Being  Abroad)  Shall  Execute  a 
Bill  of  Sale  thereof,  the  Other  Owners  of  all  tkt 
Other  Parts  Having  Executed  the  Same. 
Whereas  C.  D.,of,  etc.,  owner  of  one-quarter 

part  of  all  that ship,  called  the  S.,  burthea 


BONDS  OR  OBLIGATIONS. 


1S9 


about  Ave  hundred  tons,  now  lying  at,  etc., 
whereof  A.  B.,  of ,  owner  of  one  other  quar- 
ter part  of  the  said  ship,  the  above-bound  G.  H., 
owner  of  one  other  quarter  part;  I.  K.,  of,  etc., 
owner  of  one-eighth  part  of  the  said  ship,  by  a 
bill  of  sale,  bearing  date,  etc.,  have  bargained 
and  sold  to  the  said  L.  M.  their  several  shares  in 
the  said  ship,  and  the  appurtenances,  as  by  the 
said  bill  of  sale  appears;  and  whereas  O.  P.  and 
Q.  R.,  of,  etc.,  are  owners  of  the  other  eighth 
part  of  the  said  ship,  and  are  made  parties  to  the 
said  bill  of  sale,  but,  they  being  absent,  the  said 
G.  H.  has  undertaken  with  the  said  L.  M.  that 
they  shall  duly  execute  said  bill  of  sale,  or  other- 
Mrise  by  some  other  deed,  sufficiently  convey  the 
said  eighth  part  of  the  said  ship,  with  the  appur- 
tenances, to  the  said  L.  M.,  and  thereupon  the 
■aid  L.  M.  hath  paid  to  the  said  G.  H.  the  sum 

of  ,  being  the  purchase-money  for  the  said 

eighth  part ; 
Now  the  condition  of  this  obligation  is  such  : 
That  if  the  said  O.  P.  and  Q.   R.,  their  exec- 
utors, etc.,  shall  within after  the  date  above 

written  duly  sign,  seal,  and  execute  the  said  bill 
of  sale  to  the  said  L.  M.,  or  otherwise,  by  some 
other  deed,  duly  executed,  sufficiently  convey  the 
said  eighth  part  of  the  said  ship,  with  the  appur- 
tenances, to  the  said  L.  M.,  and  if,  in  the  mean 
time,  the  said  L.  M.,  or  his  assigns,  shall  quietly 
hold  the  said  eighth  part  of  the  said  ship,  with 
the  appurtenances,  belonging  to  the  said  O.  P. 
and  Q.  R.,  without  any  denial  or  interruption  by 
the  said  O.  P.  and  Q.  R.,  or  their  assigns,  or  any 
other  person  or  persons  \vhatsoever,  then  this 
obligation  shall  be  void,  otherwise  to  be  in  full 
force  and  eifect. 

Condition— Bill  op  Sale,  By  Part  Owners  of  a 

Ship,  on  Selling  ihe  Same. 

To  Procure  Bill  0/  Sale  from  the  Other  Part  Owner. 

■Whereas  the  above-bounden  A.  B.  has  {or  A. 

B.  and  B.  A.  have),  by  bill  of  sale  of  even  date 
herewith,  sold  and  assigned  unto  the  said  C.  D., 
his  share  {or  their  several  shares)  in  the  ship  or  ves- 
sel, called  the  S.,  and  the  appurtenances; 

And  whereas  M.  N.,  of ,  is  owner  of  the 

other part  of  the  said  ship  or  vessel,  but,  he 

being  absent,  the  said  A.  B.  has  {or  A.  B.  and  K. 
A  have)  undertaken  with  the  said  C.  D.  that  the 
said  M.  N.  shall  duly  execute  a  like  bill  of  sale, 
or  otherwise   by  some    other  deed,   sufficiently 

convey  the  saitl  part  of  the  said  ship,  with 

the  appurtenances,  to  the  said  C.  D.,  and  there- 
upon the  said  C.  D.  has  paid  to  the  said  A.  B. 
the  sum  of  dollars,,  being  the  purchase- 
money  for  the  said  r*""*!  to  be  conveyed  by 

said  M.  N. 

Now,  therefore,  the  condition  of  the  above 
obligation  is  such  : 

That  if  the  said  M.  N.,  his  executors,  adminis- 
trators, or  assigns,  shall  within months  after 

the  date  above  written,  duly  sign,  seal,  and  exe- 
cute such  bill  of  sale  to  the  said  C.  D.,  or  other- 
wise duly  and  sufficiently  convey  the  said 

part  of  the  said  ship,  with  the  appurtenances,  to 
the  said  C.  D.;  and  if,  in  the  meantime,  the  said 

C.  D.,  his  executors,  administrators,  or  assigns, 

shall  quietly  hold  the  said  part  of  the  said 

ship,  with  the  appurtenances,  belonging  to  the 
said  M.  N.,  without  any  denial  or  interruption 
by  the  said  M.  N.,  or  any  other  person  or  persons 
whatsoever,  then  this  obligation  to  be  void  and 
of  no  effect ;  otherwise,  to  be  and  remain  of  full 
force  and  virtue.  [Signature  atid  seal.\ 

Condition — Conveyance — That  a  Third  Person 
Shall  Convey  on  Coming  op  A<;e. 
Whereas  the  above-bounden  A.  B.  and  one  M. 
N.  are  the  heirs  (or  devisees)  of  one  D.  D.,  de- 
ceased, and  as  such  heretofore  seized  of  certain 
premises  in  the  aforesaid,  described  as  fol- 
lows :  (describing  the  premises) ;  and  whereas  the 
above-named  C.  D.  has  agreed  with  the  said  A. 
B.  and  M.  N.  for  the  purchase  of  the  said  prem- 
ises, for  the  sum  of dollars  ;  but  the  said  M. 

N.,  not  being  yet  of  age,  cannot  now  join  in  con- 
veying the  same  to  the  said  C.  D. ;  and  whereas 
the  saidC.  D.,  at  the  request  of  the  above-bounden 
A.  B.  {and  name  surety,  if  any),  and  on  his  {or  their) 


promise  and  undertaking  that  the  same  M.  N. 
should,  as  soon  as  he  shall  have  attained  the  age 
of  twenty-one  years,  at  the  proper  costs  and 
charges  of  the  said  C.  D.,  convey  to  the  said  C. 
D.,  his  heirs  and  assigns,  his  undivided  interest 
in  and  part  of  the  said  premises,  has  paid  into  the 
hands  of  the  said  A.  B.  the  whole  of  the  said  pur- 
chase-money ;  and  the  said  A.  B.,  by  his  deed  of 
even  date  herewith,  has  conveyed  his  undivided 
interest  in  and  part  of  the  saitl  premises,  to  the 
said  C.  D.,  his  heirs  and  assigns :  Now  the  condi- 
tion of  this  obligation  is  such,  that  if  the  said  M. 
N.  shall  within  a  reasonable  time  after  he  shall 
have  attained  the  said  age  of  twenty-one  years, 
at  the  proper  costs  and  charges  of  the  said  C.  D., 
convey  unto  the  said  C.  D.,  his  heirs  and  assigns, 
by  such  deeds  and  conveyances  as  the  counsel  of 
the  said  C.  D.  shall  advise,  his  undivided  interest 
in  and  part  of  the  said  premises,  and  that  ^vith- 
out  any  consideration  to  be  paid  him  by  the  said 
C.  D.  \ox  so  doing  ;  and  also  if,  and  in  case  the 
said  A.  B.  {and  name  also  surety,  if  any),  his  {or 
their)  heirs,  executors,  or  administrators,  shall  in 
the  meantime,  and  until  the  said  M.  N.  shall  have 
executed  such  conveyances  as  aforesaid,  save, 
defend,  keep  harmless  and  indemnified  the  said 
C.  D.,his  heirs,  executors,  and  administrators, 
and  the  said  premises,  and  the  rents,  issues,  and 
profits  thereof,  of  and  from  all  claims  and  de- 
mands to  be  made  thereto,  by  or  on  the  part  and 
behalf  of  the  said  M.  N.,  then  this  obligation  to 
be  void ;  otherwise  to  remain  of  full  force. 

{Signatures  and  teals.  ] 

Condition — Covenants  for  the  Performance  of. 
The  condition  of  the  above  obligation  is  such, 
that  if  the  above-named  A.  B.,  his  heirs,  execu- 
tors,  and  administrators,  do  and  shall,  well  and 
truly  perform,  fulfil,  and  keep,  all  and  every  the 
covenants  specified  and  contained  in  a  certain  in- 
denture of,  etc.,  bearing  even  date  with  the  above- 
written  obligation,  and  made  between,  etc., 
v^'hich  on  the  part  and  behalf  of  the  said  A.  B., 
his  heirs,  executors,  and  administrators,  is,  are, 
and  ought  to  be,  performed,  fulfilled,  and  kept, 
according  to  the  true  intent  and  meaning  of  the 
same  indenture ;  then  the  above-written  obliga- 
tion shall  be  void  ;  otherwise,  etc. 

Condition — To  Deliver  Lost  Title  Deeds  When 

Fol'ND,  ETC. 

■Whereas,  certain  title  deeds  and  evidences  of 
title  to  premises  heretofore  occupied  by  the  above- 
bounden  A.  B.,  in  the  village  of ,  in  the  State 

of ,  have  been  lost  or  mislaid,  not  having  been 

recorded,  and  the  said  A.  B. ,  upon  conveying  said 
premises  to  C.  D.,  by  deed  of  even  date  with  these 
presents,  agreed  with  him  to  save  harmless,  and 
keep  indemnified  the  said  C.  D.,  his  heirs,  execu- 
tors, administrators,  and  assigns,  against  all  per- 
sons whatsoever,  claiming  any  right  or  title  to  the 
said  premises  or  any  part  thereof,  and  all  costs 
and  charges  attending  the  same,  until  the  said 
title  deeds  and  evidences  of  title  shall  appear  to 
be  found  ;  and  also,  that  in  case  the  said  title 
deeds  and  evidences  to  the  said  premises  should 
at  any  time  hereafter  be  found,  then  the  same 
should  be  delivered  to  the  said  C.  D.,  his  heirs  or 
assigns,  whole  and  uncancelled. 

Now  the  condition  of  this  obligation  is  such, 
that  if  the  said  A.  B.,  his  heirs,  executors,  and 
administrators,  do  and  shall  from  time  to  time, 
and  at  all  times  hereafter  until  the  said  title  deeds 
and  evidences,  forming  a  complete  title  to  the 
said  premises,  shall  be  found,  save  harmless,  and 
keep  indemnified  the  said  C.  D.,his  heirs,  exec- 
utors, administrators,  and  assigns,  of,  from,  and 
against,  all  mortgages  and  other  charges,  and 
incumbrances  affecting  the  said  premises,  and 
against  all  and  every  person  and  persons  what- 
soever, claiming  any  estate,  right  or  title  of,  in 
or  to  the  same,  or  any  part  thereof;  and,  if  such 
title-deeds  and  evidences,  or  any  of  them,  shall 
at  any  time  hereafter  be  found,  if  the  same  shall 
be  delivered  up  to  the  said  C.  D. ,  his  heirs  or  as- 
signs, in  whole  and  uncancelled,  v/ithout  fraud 
or  other  delay,  then  this  obligation  is  to  be  void : 
otherwise,  to  remain  in  full  force. 

[Signatures  and  teais.] 


190 


BONDS  Ok  ODLICJATIONS. 


CoNniTiON — ExEcrrit  an  Assignment. 
The  condition  of  the  above  obligation  is  such : 
That  if  the  above-bounden  A.  B. ,  his  executors, 

administrators,  or  assigns,  on  or  before  the 

day  of next,  shall,  upon  the  reasonable  re- 
quest, and  at  the  proper  cost  and  charges  of  the 
said  C.  D.,  his  heirs  or  assigns,  make,  execute, 
and  deliver,  or  cause  so  to  be,  to  the  said  C.  D., 
his  heirs  or  assigns,  or  to  such  person  or  persons 
as  he  or  they  shall  nominate  and  appoint,  and  to 
such  uses  as  he  or  they  shall  direct,  a  good  and 
sufficient  assignment  of  all  such  estate  and  in- 
terest as  he,  the  said  A.  B.,  now  has  in  the  lands 
and  tenements  of  M.  N.  at ,  then  this  obliga- 
tion to  be  void;  otherwise,  to  remain  in  lull 
force.  A.  B.    [iVu/.J 

Condition — Execute  a  Quit-Claim  Dkeu.» 
The  condition  of  the  above  obligation  is  such  : 
That  if  the  above-bounden  A.  B.  shall  well  and 
truly  make,  execute,  and  deliver  to  the  said  C.  D. 
a  deed  of  release  and  quit-claim  of  said  A.  B.'s 
interest  in  {designating  the  property),  and  shall 
suffer  and  permit  the  said  C.  D.,  his  heirs  and  as- 
signs, to  peaceably  occupy  and  possess  said  in- 
terest, then  this  obligation  is  to  be  void ;  other- 
wise, to  remain  in  full  force. 

A.  B.     {Seal.\ 

Condition— Goods,  Return  op,  or  Their  Value. 
Whereas  the  above-named   C.   D.   and   E.  F. 
have  delivered  to  the  above-bounden  A.  B.  cer- 
tain merchandise,  consisting  of  (silks,  velvets,  and 

other  goods),  to  the  value  of  dollars,  to  be  by 

him  sold  (by  public  sale  forthwith,  for  ready  money;: 
Now  the  condition  of  this  obligation  is  such : 
That  if  the  said  A.  B.,  his  executors  or  admin- 
istrators, shall,  within next  ensuing  the  date 

hereof,  return  unto  the  said  C.  D.  and  E.  P.,  or 
either  of  them,  their  or  either  of  their  executors, 
administrators  or  assigns,  all  such  of  the  said  mer- 
chandise as  shall  then  remain  unsold  (casualties 
happening  by  fire,  only,  excepted),  and  pay,  or  cause 
to  be  paid,  unto  the  said  C.  D.  and  E.  F.,  or  either 
of  them,  their  or  either  of  their  executors  or  ad- 
ministrators or  assigns,  all  such  moneys  as  shall 
have  been  by  him  then  received  for  the  merchan- 
dise so  sold  (or  the  price  of  all  such  merchandise 
which  shall  then  have  been  sold),  then  this  obligation 
to  be  void  ;  otherwise,  to  remain  in  full  force. 
\Signature  and  seal.  ] 

Condition — Illegitimate  Child,  to  Contribute 

to  the  St;PPORT  OP. 

Whereas  the  said  W.  W.  has  made  oath  before 
J.  P.,  a  justice  of  the  peace  in  and  for  the  said 

to%vn  (or  county)  of ,  that  the  above-bounden 

A  B  is  the  father  of  a  male  (or  female)  bastard 
child,  of  which  she  has  lately  been  delivered,  and 
the  said  A.  B.  has  thereupon  agreed  to  assist  the 
■aid  W.W.  in  the  support  and  maintenance  of  the 
said  child  : 

Now,  therefore,  the  condition  of  the  above 
obligation  is  such : 

That  if  the  above-bounden  A.  B.,  his  heirs,  ex- 
ecutors, and  administrators,  or  any  of  them  ior 
«he  above-bounden  A.  B.  and  C.  D.,  or  either  of  them, 
or  their  or  cither  of  their  heirs,  executors,  or  adminis- 
trators), shall  and  do  well  and  truly  pay  to  the 
said  W.  W.,  her  executors,  administrators,  or  as- 
signs, towards  the  support  and  maintenance  of 

the  said  child,  the  sum  of  dollars  and 

cents  per  week,  for  each  and  every  week  from 

the day  of ,  during  the  term  of years, 

if  said  child  shall  live  so  long,  then,  etc.  (as 
above). 

Condition — To  Inobmnipv  on  Paving  a  Lost  Bond. 
Whereas  the  above-named  C  D.,  by  his  bond 
or  obligation  under  seal,  bearing  date  on  or  about 
the  day  of ,  became  bound  to  the  above- 
bounden  A   B.  in  the  penal  sum  of dollars, 

conditioned  for  the  payment  of  the  sum  of 

dollars,  unto  the  said  A.  B. ,  his  executors,  admin- 
istrators or  assigns,  on  the day  of (staling 

it  according  to  tne  condition  of  the  lost  bond),  as  by 
the  said  bond,  when  produced,  will  more  fully 
appear ;  and  whereas  the  said  bond  is  alleged  to 

»-Thit  form  only  binds  the  obligor  for  what  inteic&t 


be  lost,  so  that  the  same  cannot  be  found;  and 

whereas  the  said ,  at  the  request  of  the  said 

C.  D.,  and  on  his  promise  of  indemnity,  has  made 
him  full  satisfaction  of  and  for  the  said  bond  : 

Now  the  condition  of  this  obligation  is  such  : 

That  if  the  above-bounden  A.  B.,  his  heirs,  ex- 
ecutors or  administrators,  or  any  of  them,  shall, 
in  case  the  said  bond  or  obligation  be  found,  or 
come  to  the  hands  or  power  of  the  said  A.  B., 
his  heirs,  executors  or  administrators,  or  any  of 
them,  or  to  the  hands,  custody,  or  power  of  any 
other  person,  deliver  or  cause  the  same  to  be  de- 
livered unto  the  said  C.  D.,  his  executors  or  ad- 
ministrators, in  order  to  be  cancelled,  and  also 
shall  and  at  all  times  indemnify  and  save  hariii- 
less  the  said  C.  D.,his  heirs,  executors,  and  aU« 
ministrators,  from  and  against  any  and  all  suits, 
actibns, damages,  costs,  charges  and  expenses  b/ 
reason  of  said  bond,  or  any  of  the  money  so  paid, 
then  this  obligation  is  to  be  void  ;  otherwise,  to 
remain  in  full  force. 

A.  B.     \Se<il.\ 
E.  F.     \Seal.\ 
Bond  or  Obligation — Indemnity 
To  Indeiuiii/y  Maker  of  Note  or  Acceptor  of  Bill  for 

Accommodation,  front  Loss  Thereby,  ■with  Surety. 

Know  all  men  by  these  presents : 

That  ^ve,  A.  B. ,  of ,  in county,  and  State 

of ,  and   B.  A.,  of ,  are  held  and  firmly 

bound   unto  C.  D.,  of ,  county  of  ,  and 

State  of ,  in  the  sum  of dollars,  good  and 

lawful  money  of  the  United  States,  to  be  paid  to 
the  said  C.  D.,  his  executors,  administrators,  or 
assigns  ;  for  which  payment,  well  and  truly  to  be 
made,  we  do  bind  ourselves, our  heirs,  executors, 
and  administrators,  jointly  and  severally,  hrmly 
by  these  presents. 

aealed  with  our  seals;  dated  this day  of . 

Whereas  the  said  C.  D.  has,  without  consider- 
ation to  him  moving  therefor,  and  solely  for  tt}e 
accommodation  of  the  above-bounden  A.  B., 
made  and  advanced  to  the  said  A.  B.  his  promis- 
sory note  (or  accepted  a  bill  of  exchange  drawn  by 

upon  him)  for  dollars,  bearing  date  the  

day  of ,  and  payable  to (.with  interest), 

days  after  the  date  thereof: 

Now  the  condition  of  this  obligation  is  such. 

That  if  the  said  above-bounden  A.  B  and  B.  A., 
their  executors  or  administrators,  or  any  of 
them,  shall  well  and  truly  pay  the  said  sum  of 

dollars,  for  the  payment  of  which  the  said 

note  (or  bill)  is  so  given,  and  the  interest  thereof, 
on  the  day  of  payment  therein  mentioned,  and  in 
full  discharge  thereof,  and  indemnify  and  save 
harmless  the  said  C.  D.,  his  executors  and  admin- 
istrators, from  and  against  any  and  all  suits, 
actions,  damages,  costs,  charges,  and  expenses, 
by  reason  of  said  note  (t'r  billj,  then  this  obliga- 
tion is  to  be  void ;  otherwise,  to  remain  in  full 
force. 

A.  B.     [5^/1 

B.  A.     [Seal] 
Condition — To  Indemnify  on  Paving  a  Iajst  Not* 

OR    BlLI. 

Whereas  a  promissory  note   for  dollars, 

made  by ,  or  a  bill  of  exchange  drawn  by , 

upon  ,  bearing  date  at  ,  the  day  of 

,  and  payable  months  after  the  date,  to 

the  order   of ,  at  (and  indorsed  by  — ^i, 

and  which  is  now  the  property  of  the  above- 
bounden  A.  B  ,  has  been  lost  or  destroyed),  and 
cannot  now  be  produced  by  him  ;  and  whereas  at 
his  request,  and  upon  his  promise  to  indemnify 
and  save  harmless  the  said  C.  D.  in  the  premises, 
and  to  deliver  up  the  said  note,  when  found,  to 
the  said  C.  O.,  to  be  cancelled,  the  said  C.  D.  has 

this  day  paid  unto  the  said  A.  B.  the  sum  of 

dollars,  the  receipt  whereof  the  said  A.  B.  doth 
hereby  acknowledge,  in  full  satisfaction  and  dis- 
charge of  the  said  note  : 

Now  the  condition  of  the  above  obligation  is 
such  : 

That  if  the  above-bounden  A.  B.  and  E.  F., 
their  heirs,  executors,  or  administrators,  or  any 
of  them,  shall  well  and  truly  indemnify  and  save 

he  may  have,  and  is  not  broken  if  he  be  ousted  by  bettei 
title;  Sawtell  v.  Pike,  20  Me   (2  Ajiplet  )  169. 


BONDS  OR  OULICATIONS. 


t9t 


harmtess  the  said  C.  D.,  his  executors  and  ad- 
ministrators, from  and  against  the  said  note  (or 
billj,  any  and  all  damages,  costs,  charges,  and  ex- 
penses (and  all  actions  or  suns,  whether  groundless 
or  otherwise),  by  reason  of  said  note  (o-  bill),  and 
also  deliver,  or  cause  to  be  delivered  up  the  same, 
when  and  so  soon  as  the  same  shall  be  found,  to 
be  cancelled,  then  this  obligation  is  to  be  void  ; 
otherwise,  to  remain  in  full  lorce. 

A.  B.     [.Sfa/.\ 
E.  F.     \Seai.] 

CONHITION— InUFMNITY. 

Ta  Indemnify  Partners  Having  Indorsed  for  Accent- 

uiodalioH,  Against  Liability  Tliereby. 

Whereas  the  said  C.  D.  &  Co.  have,  with- 
out consideration  to  them  moving  therefor, 
and  solely  for  the  accommodation  of  the  above- 
bounden  A.  B.,  indorsed  a  promissory  note  made 

by (f>-  a  bill  of  exchange  drawn  by upon ), 

for dollars,  bearing  date  the day  of , 

and  payable  to (with  inierest), days  after 

the  date  thereof. 

Now  the  condition  of  the  above  obligation  is 
such: 

That  if  the  above-bounden  A.  B.  and  B.  A., 
their  heirs,  executors,  and  administrators,  or  any 
of  them,  shall  well  and  truly  pay,  or  cause  to  be 
paid,  the  said  sum  of dollars,  for  the  pay- 
ment of  which  the  said  note  (or  bill)  is  so  given, 
and  the  interest  thereof,  according  to  the  tenor 
thereof,  and  in  full  discharge  thereof,  and  indem- 
nify and  save  harmless  the  said  C.  D.  and  E.  F., 
their  executors  and  administrators,  and  each  of 
them,»  from  and  against  any  and  all  liability^by 
reason  of  said  note  {or  bill),  as  well  as  against  any 
and  all  suits,  actions,  damages,  costs,  charges, 
and  expenses  by  reason  thereof,  then  this  obliga- 
tion is  to  be  void  ;  otherwise,  to  remain  in  lull 
force. 

A.  B.     \Seal.\ 

B.  A.     \,Seal  \ 

Condition— To  Indfmnipy  a  Sitrety  in  a  Bond 
FOR  Payment  op  Money. 

^Vhe^eas  the  above-named  C.  D.,  at  the  special 
instance  and  request  of  the  above-bounden  A.  B., 
and  for  his  debt,  together  with  and  as  well  as  he, 
the  said  A.  B.,  is  held  and  firmly  bound  unto  a 

certain  E.  F.,  of ,  in  and  by  an  obligation 

bearing  even  date  herewith,  in  the  penalty  of 

dollars,  lawful  money,  as  aforesaid,  conditionr-d 
for  the  true  payment  of  (here  recite  tlie  condition  o/ 
the  previous  bond): 

Now  the  condition  of  the  above  obligation  is 
such. 

That  if  the  above-bounden  A.  B.,  and  his  heirs, 
executors,  and  administrators,  or  any  of  them, 
shall  well  and  truly  pay,  or  cause  to  be  paid,  unto 
the  said  E.  F.,his  executors,  administrators,  or 

assigns,  the  said  sum  of dollars,  with  interest 

thereon  at  the  rate  of per  cent,  per  annum, 

as  aforesaid,  on  the day  of {or,  if  thehond 

It  made  payable  at  different  tiniei,  say,  at  the  several 
times  limited  in  the  sanl  lecited  condition),  according 
to  the  true  intent  and  meaning  of  said  condition, 
and  in  full  discharge  and  satisfaction  of  said 
obligation,  and  shall  indemnify  and  save  harm- 
less the  said  C.  D.,  his  heirs,  executors,  and  ad- 
ministrators, from  and  against  any  and  all  suits, 
actions,  damages,  costs,  charges,  and  expenses, 
by  reason  of  said  recited  obligation,  then  this 
obligation  is  to  be  void ;  otherwise,  to  remain  in 
full  force. 

A.  B.     [Seal] 
E.  P.     [Seal.\ 

Condition — Indemnity. 

To  Indemnify  Tenant  on  Paying  Rent,  When  Title  is 

in  Dispute 

Whereas  the  above-named  A.  B.  claims  from 

the  said  C.  D.  rent  of  certain  premises  in  (state 

vjhere),  to  wit, dollars,  due  on  the day  of 

,  and  one  £.  F.  also  claims  some  title  to  said 

a-An  agreement  to  indemnify  partners  against  suits 
against  them  extends  to  suits  against  one  of  them,  in 
a  place  where  by  law  ii  is  not  necessary  that  a  suit 
be  against  all  the  partners  of  a    firm   liable      Hill  v. 


premises,  and  to  be  of  right  entitled  to  said  rents, 
or  some  part  thereof; 

Now  the  condition  of  the  above  obligation  is 
such  : 

That  if  the  above-bounden  A.  B.,  his  heirs, 
executors,  and  administrators,  or  any  of  them, 
shall  well  and  truly,  at  all  times,  indemnify 
and  save  harmless  the  said  C.  D.,  his  heirs, 
executors,  and  administrators,  from  and  against 
any  and  all  actions,  suits,  damages,  costs,  and 
expenses  for  or  by  reason  thereof  then  this  obli- 
gation is  to  be  void  ;  otherwise,  to  remain  m  full 
force.  A.  B.     [Seal.\ 

Condition— Life,  to  Keep  a  Person  During. 

The  condition  of  this  obligation  is  such . 

That  whereas  the  above-bound  A.  B.,  for  antl\ 

in  consideration  of  the  sum   of ,  to  him  iii* 

hand  paid  by  the  above-named  C.  D.,  hath  agreed 
and  undertaken  to  keep  and  maintain  the  said 

C.  D.,  during  his  life;  if,  therefore,  the  said  A. 
B.,  his  executors  or  administrators,  shall  from 
time  to  time,  and  at  all  times  hereafter  during 
the  natural  life  of  the  said  C.  D.,  well  and  sufh- 
ctently  maintain  and  keep,  or  cause  to  be  well 
and  sufficiently  maintained  and  kept  the  said  C. 
D.,  in  the  house  of  him,  the  said  A.  B.,  with 
meat,  drink,  clothes,  and  all  other  things  neces- 
sary and  convenient. 

Condition— Maury,  or  to  Pay  a  Sum  op  Money. 
The    condition    of    the    above    obligation    is 
such : 

That  if  the  above-bounden  A.  B.  do,  on  or  be- 
fore the  day  of  ,  espouse  and  marry  D. 

D.,  daughter  of  the  said  C.  D.,  if  the  said  D.  D. 
will  thereunto  assent  and  the  laws  of  this  State 
(or  Commonwealth)  will  permit  the  same  ;  or,  if  it 
shall  happen  that  the  said  A.  B.  shall  not  marry 
her  as  aforesaid,  then  if  the  said  A.  B.  shall  well 
and  truly  pay,  or  cause  to  be  paid,  unto  the  said 

D.  D.,her  executors,  administrators  and  assigns, 

the  sum  of dollars  on  the  day  of 

next  ensuing  the  said  day  of  ,  above 

mentioned  and  limited  for  the  said  marriage, 
then  this  obligation  is  to  be  void  ;  otherwise,  to 
remain  in  full  force.  [Signatures  and  seals.] 

Condition — Pay  Ofp  and  Cancel  a  Mortgage. 
Whereas  the  above-bounden  A.  B.  and  W.  B. 
his  wife  heretofore  agreed  to  convey,  and  have 
this  day  conveyed  to  the  said  C.  D.  certain  lands 
in  (/tere  briejly  designating  the  premises),  by  a  full 
warranty-deed ;  and  whereas  said  premises  are 
subject  to  the  payment  of  a  mortgage,  bearing 

date  the day  of ,  executed  by  the  said 

and his  wife,  to ,  of  the  city  of ,  and 

county  of  ,  for  the  purpose  of  securing  the 

payment  of  the  sum  of dollars,  in years 

from  the  day  of  the  date  thereof,  with  semi- 
annual interest,  as  secured  by  the  condition  of  a 
bond,  of  like  date  therewith,  executed  by  the  said 

to  the  said  ,  which  said  mortgage  is  a 

lien  upon  the  premises  aforesaid,  and  was  re- 
corded in  the  omce  of  the  clerk  of  the  county  of 

,  on  the  day  of ,  at  pages and 

,  of  book of  mortgages,  at o'clock  m.. 

and  upon  which  there  is  now  remaining  due  and 

unpaid  the  said  principal  sum  of dollars,  with 

interest  from  the day  of last  past ;  which 

sum  the  above-bounden  A.  B.  agreed  to  pay,  and 
to  satisfy  and  cancel  of  record  said  mortgage. 

Now,  therefore,  the  condition  of  the  above 
obligation  is  such,  that  if  the  above-bounden  A. 
B.,  his  heirs,  executors,  and  administrators,  or 
either  of  them  (or  the  above-bounden  A.  B.  and  W. 
R  ,  or  either  of  them,  or  their  or  either  of  their  heirs, 
executors,  or  administrators),  shall  well  and  truly 
pay,  or  cause  to  be  paid,  unto  the  said (mortga- 
gee), or  his  executors,  administrators,  or  assigns, 
all  such  sum  and  sums  of  money  as  are  or  may 
hereafter  become  due  on  the  said  bond  and  mort- 
gage, executed  by  the  said  A.  B.  and  his  wife  as 
aforesaid,  and  forever  satisfy  and  discharge  the 

Packard,  5  Wend   375.    b-This  will  render  the  obligors 
liable  upon  the  bond  in  case  the  obligees  become  duly 
charged  as  indorsers  or  acceptors  of  the  accommodation 
;   paper. 


13 


19a 


BONDS  OR  OBLIGATIONS. 


■»me,  saving  the  said  C.  D.,  his  heirs,  executors, 
administrators  and  assigns,  harmless  of  and  from 
all  and  all  manner  of  costs,  charges,  and  ex- 
oenses  in  the  premises,  then  the  above  obligation 
ia  to  be  void,  otherwise,  to  remain  in  full  force. 
[Signaittret  atui  teals.] 

Book.  See  Accounts;  AirrHORiTiKS ;  Copyright; 
EvinKscK;  Mbrcantilk  Law. 

Bo»k-Kee|>iii|C.  See  title  Accounts,  ante. 

Books.  See  Book,  above. 

Booty.  See  MiUTARY  Law. 

Borougrh.  See  Municipal  Corporations. 

Borrower.  See  Animals  ;  Bailments. 

jBottoniry.  See  Maritime  Law. 

iBougrht  Note.  See  Contracts  :  Sales. 

Boundnry.  See  Evidence;  Real  Pkopertv. 

Branch.  See  Descents  ;  Descendants. 

Breach.  See  Contracts  ;  Covenants  ;  Trusts. 

Breaking;.  See  Burglarv  ;  Criminal  Law. 

Breakinfp  Doorts.  See  Arrest;  Criminal 
Law  ;  Practice. 

Breath.  See  Medical  Law. 

Bribe.  See  Criminal  Law. 

Bribery.  See  Criminal  Law. 

Bridg^e.  See  Highway. 

BrieK  See  Practice. 

Brief  of  Title.  See  Practice. 

Brokers.  See  Agency;  Bailments. 

Brothel.  See  Criminal  Law. 

Brother.  See  Personal  Relations. 

Brother-in-Ijaw.  See  Personal  Kelai'icvs. 

Bruise.  See  Medical  Law. 

Building;.  See  Real  Property. 

Bulk.  See  Contracts;   Sales. 

Bullion.  See  Money. 

Buoy.  See  Mercantile  Law. 

Burden  of  Proof.  See  Evidence. 

Burgrlariously.  See  Pleading. 

BnrKlary .  See  Criminal  Law. 

Burial.  See  Death. 

Bushel.  See  Weights  and  Measures. 

Business  Hours.  See  Bills  of  Exchange; 
Bonds  and  Notes;  Hocrs;  Time.  '■ 

By  Estimation.  See  Conveyances. 

By-Laws.  See  Bailments  ;  Common  Carriers, 
ETC.;  Corporations. 

Cabinet.  See  Government  ;  Office  and  Offi- 
cers. 

Cadet.  See  Military  Law. 

Calendar.  See  Criminal  Law ;  Time;  Year. 

Calling;  the  Plaintiff.  See  Practice. 

Canon  I<aw.  See  Law. 

Canvass.  See  Elections  ;  Votes. 

Capias.  See  Practice. 

Capita.  See  Descent  ;  Descendants. 

Capital  Crime.  See  Criminal  Law. 

Capital  Punishment.  See  Criminal  Law. 

Capital  Stock.  See  Corporations. 

Capitation.  See  Taxes. 

Capitulation.  See  Military  Law. 

Captain.  See  Military  Law. 

Caption.  See  Pleading. 

Capture.  See  Military  Law. 

Cards.  See  Criminal  Law. 

Care.  See  Bailments;  Diligence:  Negligence. 

Carg;o.  See  Bailments  ;  Maritime  Law. 

Carnal  Knowledge.  See  Criminal  Law; 
Medical  Law  ;  Rape. 

Carrier.  See  Bailments. 

Carrying:  Away.  See  Criminal  Law. 

Cart.  See  Property,  etc.;  Wagon. 

Carte  Blanche.  See  Signature. 

Cartmen.  See  Bailments  ;  Common  Carriers, 
rrc. 

Case.  See  Practice. 

Case  Stated.  See  Practice. 

Cash.  See  Money. 

Cash  Book.  See  Book-keeping. 

Cashier.  See  Banking. 

Castig;atory.  See  Personal  Relations  ;  Scold; 
Women. 

Castration.  See  Criminal  Law. 

Casualty.  See  Accident. 

Casus  Fcederis.  See  International  Law. 

CasiTS  Omissus.  See  Case;  Practice. 

Catching;  Barg;ain.  See  Bargain  ;  Contracts. 

Cause.  See  Pleading  ;  Practice. 


Cause  of  Action.  See  Practick. 

Caveat.  See  Patents  ;  Practice. 

Caveat  Emptor.  See  Contracts;  Pejuohai, 
Property;  Real  Property;  Sales. 

Cede.  See  International  Law. 

Census.  See  Government  ;  Inhabitamts. 

Cepi.  See  Practice. 

<'epit.  See  Pleading;  Practice. 

Certainty.  See  Contracts  ;  Pleading. 

Certillcate.  See  Practice. 

Certificate  of  Beg;lstry.  See  Maritimb 
Law. 

Certified  Check.  See  Bills  of  Exchange; 
Bonds  and  Notes. 

Certiorari.  See  Practice. 

Cession.  See  Governmental  Law. 

Cestui  que  Trust.  See  Trusts. 

Challeng;e.  See  Criminal  Law. 

Chamber.  See  House  ;  Real  Property. 

Chamber  of  Commerce.  See  MsRCANTiui 
Law. 

Chambers.  See  Practice. 

Champerty.  See  Contracts  ;  Criminal  Law. 

Chancellor.  See  Office  and  Officers. 

Chancery.  See  Courts;  Practice. 

Chapels.  See  Real  Property. 

Character.  See  Evidence. 

Charg;e.  See  Contracts;  Devises;  Libms; 
Pleading;  Practice. 

Charees.  See  Costs;  Practice. 

Charitable  Uses.  See  Gifts. 

Charities.  See  Gifts. 

Charter.  See  Rights. 

Charter  Party.  See  Affreightment;  Con- 
tracts. 

Chase.  See  Animals. 

Chastity.  See  Criminal  Law;  Slander;  Sblv. 
Defence. 

Chattel.  See  Property. 

Cheat.  See  Contracts  ;  Fraud. 

Check.  See  Bills  of  Exchange;  Bonds  ano 
Notes. 

Child.  See  Descent;  Descendants;  Personal 
Relations. 

Chirog;raph.  See  Conveyances. 

Chose.  See  Personal  Property. 

Chose  in  Action.  See  Rights. 

Christianity.  See  Religion. 

Church.  See  Real  Property. 

Circuit.  See  Courts;  Practice. 

Circuity  of  Action.  See  Action;  Practice. 

Circumstances.  See  Evidence. 

Citation.  See  Authorities;  Practice;  Process. 

Citizen.  See  Personal  Relations. 

Civil  Action.  See  Action;  Practice. 

Civil  Commotion.  See  Criminal  Law  ;  Gov- 
ernment; Insurrection. 

Civil  Death.  See  Death;  Personal  Rela- 
tions. 

Civil  I^aw.  See  Law. 

Civil  Obligration.  See  Contracts;  Obliga- 
tion; Practice. 

Civil  Officer.  See  Office  and  Officers. 

Civil  Remedy.  See  Practice. 

Claim.  See  Property;  Rights. 

Claimant.  See  Admiralty  ;  Practice. 

Class.  See  Personal  Relations. 

Clause.  See  Assignments  ;  Bonds  ;  Contracts  ■ 
Conveyances;  Laws;  Wills;  etc. 

Clearance.  See  Maritime  Law. 

Clearing;  House.  See  Commercial  Law. 

Clerical  Error.  See  Writings. 

Close  Copies.  See  Copies  ;  Writings. 

Co- Administrator.  See  Office  and  Offi- 
cers ;  Personal  Relations. 

Co- Assig;nee.  See  Office  and  Officers  ;  Per- 
sonal Relations. 

Co-Executor.  See  Office  and  Officers  ;  Per- 
sonal Relations. 

Coast.  See  Real  Property. 

Code.  See  Law. 

Codicil.  See  Wills. 

Coercion.  See  Acts;  Contracts-  Crimina. 
Law. 

Cog^nlcance.  See  Pleading. 

Coenovit.  See  Pleading. 

Cohabitation.  See  Marriage. 

Coins.  See  Money. 


CONTRACTS. 


m 


Collateral.  See  Assurance-,  Consanguinity; 
Kstoppbl;  Facts;  Tssuk;  Kinsmen;  Limitation; 
Security:  Warranty. 

Collector.   See  Office  and  Officers. 

Collesre.  See  Schools. 

Collision.  See  Maritime  Law. 

CollOfinnin.  See  Pleading. 

Collision.  See  Contracts;  Fraud. 

Colonial  f..aw.  See  Law. 

Colony.  See  Government. 

Color.  See  Personal  Relations:  Pleading. 

Color  of  OlBce.  See  Office  and  Officers. 

Colt.  Sec  Animals  ;  Horse. 

Combination.  See  Criminal  Law. 

Comity.  See  Law. 

Commenceni<^iit.  See  Pleading. 

Commerce.  See  International  Law. 

Commercial  I.iatv.  See  Law. 

Commismary.  See  Military  Law. 

Commisitlon.  See  Agency;  Bailments;  Com- 
mon Law;  Criminal  Law;  Patents. 

Commissions.  See  Agency;  Contracts;  Prac- 
tice; Sales. 

Commitment.  See  Practice. 

Committee.  See  Legislation. 

Common.  See  Real  Property. 

Common  \ssurances.  See  Conveyances. 

Common  Bar.  See  Pleading. 

Common  Bench.  See  Courts. 

Common  Carriers.  See  Bailments. 

Common  Carriers  of  Passengrers.  See 
Bailments. 

Common  Conrts.  See  Pleading. 

(Common  Fishery.  See  Fishery;  Real  Prop- 

BRTY. 

Common  Hlgrhway.  See  Highway  ;  Real 
Property. 

Common  l^aw.  See  Law. 

Common  Xnisance.   See  Criminal  Law. 

Common  Pleas.  See  Courts. 

Common  Recovery.  See  Practice. 

Common  Schools.  See  Schools. 

Common  Scold.  See  Personal  Relations; 
Women. 

Common  Seal.  See  Corporations. 

Common  Sense.  See  Medical  Law. 

Commnnication.  See  Contracts  ;  Evidence. 

Community.  See  Marriage. 

Commntation.  See  Criminal  Law. 

Compact.  See  Contracts. 

Company.  See  Corporations. 

Comparison  of  Hanclwritinir.  See  Evi- 
»BNCB ;  Writings. 

Compensation.  See  Agency;  Bailments; 
Contracts;  Practice. 

Competency.  See  Evidence  ;  Witnesses. 

Compilation.  See  Copyright. 

Complaint.  See  Criminal  Law. 

Composition.  See  Copyright;  Debtor. 

Compound  Interest.  See  Interest;  Money. 

Componnding-.  See  Criminal  Law. 

Compromise.  See  Contracts. 

Comptroller.  See  Office  and  Officers. 

C'Ompnlslon.  See  Acts. 

Concealment.  See  Contracts  ;  Insurance. 

Conclusion.  See  Pleading:  Practice. 

Conclusive.  See  Evidence;  Presumption 

Concubinasre.  See  Marriage. 

Condemn.  See  Criminal  Law;  Sentence 

Condemnation.  See  Maritime  Law. 

Conditions.  See  Common  Law;  Contracts- 
Devises;  Fee;  Marriage. 

Conditional  Sale.  See  Feb;  Limitation- 
Stipulation  ;  Sale. 

Condonation.  See  Marriage. 

Confederacy.  See  Criminal  Law;  Interna- 
tional Law;  Pleading. 

Confederation.  See  Government. 

Confession.  See  Criminal  Law  ;  Evidence. 

Confession  and  Avoidance.  See  Plead- 
ing. 

Confessor.  See  Evidence. 

»-5  East.  TO ;  4  Gill  &  J.  i  ;  12  How.  126.  b-4  Kas. 
379.       A  contract  is  an  agreement  between  two  or  more 

{)arties,  for  the  doing  or  the  not  doing  of  some  particu- 
ar  thing."  4  Wheat.  197  :  2  Leon.  224,  22>;  ■  20  Am 
Jour,  i;  Parson's  Contr.  Vol.  i,  p.  6;  Id  Vol  11  pp 
»9S-»97:  5  East.  16;  4  B.  &  Aid.  59s:  S  Cranch.  14^; 


ConfldentiiCI  CommnnlcAtlona.  Sm  Evi- 
dence. 

Confirmation.  See  Contracts. 

Confiscate.  See  Government. 

Conflict.  See  Law 

Confusion.  See  Goods;  Pbrsonai.  Propbrtt; 
Rights. 

Con^reiration.  See  Church;  Personal  Re- 
lations. 

Conjpress.  See  Government, 

Coniecture.  See  Evidence. 

Conjugral  Rl|;hts.  See  Marriage. 

Conjunction.  See  Pleading. 

Connivance.  See  Contracts  ;  Marriage. 

Conquest.  See  International  Law. 

Consaiig:ufnity.  See  Personal  Relations. 

Consent.   See  Contracts  :  Sales. 

Conservator.  See  Office  and  Officers. 

Consideration.  See  Bailments;  Bills  op 
Exchange;  Bonds  and  Notes  ;  Contracts. 

Consijrnment.  See  Bailments;  Factors. 

Consolidation.  See  Practice. 

Conspiracy.  See  Criminal  Law. 

Constable.  See  Office  and  Officers. 

Constituted  Anthorities.  See  Government 

Constitution.  See  Constitutional  Law 

Constraint.  See  Acts. 

Construction.  See  Bills  of  Exchange  ;  BoNt.s 
AND    Notes;    Contracts;    Insurance;    Practici  : 

Words. 

Constructive.  See  Acts;  Notice. 

Consul.  See  International  Law;  Office  and 
Officers. 

Consultation.  See  Practice. 

Consummate.  See  Marriage 

Contagrlous  Disorders.  See  Health  ;  Mbdi. 
CAL  Law. 

Contempt.  See  Legislation  ;  Practice. 

Contents  Unknown.  See  Bailments;  Bili. 
OF  Lading. 

Context.  See  Construction  ;  Contracts. 

Conting-ent.  See  Damages;  Estate;  Legacy 
Remainder  ;   Use. 

Continuance.  See  Practice. 

Continuando.  See  Pleading. 

ContJnuint^.  Sec  Consideration;  Damages. 

Contra,  etc.  See  Contracts ;  Pleading 

Contraband  of  War.  See  Internationai 
Law, 

CONTRACTS.  See  Agency;  Apprenticeship; 
Assignment;  Bailments;  Bill,s  of  Exchange; 
Bonds  and  Notes  ;  Conveyances  ;  Partnership; 
Sales;  Suretyship;  Warranty;  etc.,  etc. 

An  Agreement  is  a  mutual  contract  in  con- 
sideration between  two  or  more  parties.* 

A  "  contract"  is  "the  agreement  of  two  com. 
petent  parties,  about  a  legal  and  competent 
subject-matter,  upon  a  mutual  legal  considera 
tion,  with  a  mutuality  of  obligation.'"" 

All  contracts  are  divided  into  two  classes: 

I,  Simple  Contracts  are  those  not  of 
specialty  or  record.  They  are  the  lowest 
class  of  express  contracts,  and  answer  most 
nearly  to  our  general  definition  of  a  contract. 
They  are  by  parol  (which  includes  both  oral 
and  written).  The  only  distinction  between 
oral  and  written  contracts  is  their  mode  of 
proof.  And  it  is  inaccurate  to  distinguish 
verbal  from  written  ;  for  contracts  are  equally 
verbal  whether  the  words  are  written  or  spoken. 
— the  meaning  of  verbal  being  expressed  in 
words.' 

a.  Specialties  are  those  which  are  un- 
der seal,  as  bonds,  conveyances,  deeds,  and 
mortgages.     They  are  not  merely  written,  but 

17  Mass.  T22;  6  Conn.  81.  "A  contract  is  an  agree- 
ment, upon  sufficient  consideration,  to  do  or  not  to  do  a 
particular  thing."  2  Bl.  Com.  446.  A  mental  reserva- 
tion is  of  no  effect,  i  Disney,  520.  c-See  3  Burr.  1670; 
7T.R.  3=io,n;  II  Mass.  27,  30;  5^.299,301;  7C0U1. 
57 ;  I  Caincs,  386. 


<r^ 


m 


CONTRACTS. 


tigned,  sealed,  and  deliveredhy  the  party  bound. 
The  solemnities  connected  with  these  acts,  and 
the  formalities  of  witnessing,  gave,  in  early 
times,  a  character  and  importance  to  this  class 
of  contracts,  which  implied  so  much  caution 
and  deliberation  (consideration)  that  it  was  un- 
necessaiy  to  prove  the  consideration,  even  in  a 
court  of  equity.*  Very  Htlle  of  this  real  solem- 
nity (except  witnessing)  now  remains,  and  a 
scroll  is  substituted  for  the  seal,  though  seals 
have  in  some  States  been  abolished  and  wit- 
nessing rendered  unnecessary.  Still  the  dis- 
tinction with  regard  to  specialties  remains  in- 
tact. When  a  contract  by  specialty  is  changed 
by  a  parol  agreement,  the  whole  contract  be- 
comes parol.' 

The  law  makes  no  distinction  in  contracts, 
except  between  contracts  which  are,  and  con- 
tracts which  are  not,  under  seal.* 

Specialties  include  contracts  of  record,**  as 
judgments,  recognizances,  and  the  like.  These 
are  the  highest  class  of  contracts.  They  are 
contracts  entered  into  by  the  intervention  of 
some  public  authority,  and  are  witnessed  by  the 
highest  kind  of  evidence,  viz.,  matter  of  record.' 

"Agreement "  is  seldom  applied  to  special- 
ties; "contract"  is  generally  confined  to  sim- 
ple contracts ;  and  "  promise  "  refers  to  the 
engagement  of  a  party  without  reference  to  the 
Vcasons  or  considerations  for  it,  or  the  duties 
of  other  parties.^ 

An  agreement  ceases  to  be  such  by  being  put 
in  writing  under  seal,  but  not  when  put  in  writing 
for  a  memorandum,''  or  as  a  simple  contract. 

Conditional  contracts  are  those  which  are  to 
have  full  effect  only  in  case  of  the  happening 
of  certain  events  or  the  existence  of  a  given 
state  of  things. 

Executed  contracts  are  where  nothing  further 
femains  to  be  done  by  either  party;  as,  the 
sale  and  delivery  of  goods  for  a  price  paid. 

Executory  contracts  where  something  further 
\s  to  be  done  in  order  to  perform  the  contract ; 
*s,  the  purchase  of  a  horse  to  be  delivered  on 
payment  of  the  price. 

Executory  agreements  are  such  as  rest  on 
articles,  memorandums,  parol,  promises  or  un- 
dertakings, and  the  like,  to  be  performed  in  the 
future,  or  which  are  entered  into  preparatory  to 
more  solemn  and  formal  alienations  of  property.' 

An  executed  agreement  always  conveys  a 
chose  in  possession,  while  an  executory  agree- 
ment conveys  a  chose  in  action  only. 

Express  contracts  are  where  the  terms  of  the 
contract  are  openly  uttered  or  put  in  writing  at 
the  time  of  making. 

Implied  contracts  are  those  .which  the  law 
presumes  the  parties  to  have  made,  although  the 
terms  were  not  openly  expressed. 

e-PIowd.  305  ;  7  T.  R.  477  ;  4  B.  &  Ad.  652  :  3  Bingh. 
Ill  :  1  Foubl.  Eq.  342,  n.  f-2  Watts.  451  ;  9  Pick.  298  ; 
13  Wend.  71.  af-Parsons'  Contr.  6  h-i  Parsons" 
Contr.  7.  I-4  BlTComm.  465.  j-3  Burr.  1670-1 :  7  T 
R.  350,  n  ;  5  Mass.  299-301  :  7  Conn.  57  ;  1  Caines.  386. 
k-Dane  Abr.  f  II.  I-Powell  Contr.  m-6  Scott,  761. 
11-2  Bl.  Comm.  444  :  2  T.  R.  105 ;  7  Scott,  69  :  i  Nev 
&  P.  633.  o-Tayler  Law  Gloss.  p-See  Parsons' 
Contr.  Vol.  i,  p.  8.      Q-2  Kas.  135 ;    10  Ohio,  412-414. 


Thus,  every  one  who  undertakes  any  office, 
employment,  or  duty,  impliedly  contracts  with 
his  employers  to  do  it  with  integrity,  diligence, 
and  skill ;  and  he  impliedly  contracts  to  do 
whatever  is  fairly  within  the  scope  of  his  em- 
ployment." 

Implied  promises,  or  promises  in  law,  only 
exist  where  there  is  no  express  stipulation  be- 
tween the  parties  touching  the  same  matter;" 
for  a  thing  which  is  expressed  invalidates  that 
which  otherwise  might  have  been  implied  by 
intendment  of  law."* 

Oral  contracts  are  "  simple  contracts." 
Verbal  contracts  are  "  simple  contracts." 
Written  contracts  are  "  simple  contracts  "  or 
"  specialties." 

The  essentials  of  a  legal  contract  are  :>' 

1.  CoNSiDERATio.N,  for  this  IS  in  legal  con- 
templation the  cause  of  the  contract. 

2.  Subject-Matter,  the  ol>ject,  or  what  the 
parties  to  it  propose  as  its  effects. 

3.  Parties,  for  there  can  be  no  contract 
without  parties. 

4.  Assent  of  the  parties,  without  which 
there  is  no  contract. 

The  legal  obligation  of  a  contract  consists  in 
the  right  of  either  party  to  have  it  enforced 
against  the  other,  or  to  recover  compensation 
for  its  breach  by  due  process  of  law.i 

There  is  no  contract  which  the  law  will  re- 
cognize and  enforce,  unless  the  parties  to  it  have 
agreed  to  the  same  thing,  in  the  same  sense.' 
Thus  where  the  defendants  wrote  to  the  plain- 
tiffs, offermg  them  a  certain  quantity  of  "good  " 
barley  at  a  certain  price,  the  plaintiffs  replied, 
"  Of  which  offer  we  accept,  expecting  you  will 
give  us 'y7«<? '  barley  and  full  weight."  The 
court  held  that  there  was  not  a  sufficient  accept- 
ance to  sustain  an  action  for  non-delivery  of  the 
barley."  So,  if  a  person  sends  an  order  to  a  mer- 
chant to  send  him  a  particular  quantity  of  goods 
on  certain  terms  of  credit,  and  the  merchant 
sends  a  less  quantity  of  goods,  at  a  shorter 
credit,  and  the  goods  sent  are  lost  by  the  way, 
the  merchant  must  bear  the  loss,  for  there  is  no 
agreement,  express  or  implied,  between  the  par- 
ties.* At  a  sale  by  auction,  every  bid  by  any 
one  present  is  an  offer  by  him,  and  it  becomes 
a  contract  as  soon  as  the  hammer  falls,  or  the 
bid  is  otherwise  accepted,  but  until  it  is  accepted 
it  may  be  withdrawn  by  the  bidder;"  but  a  buyer 
is  discharged  from  a  purchase  made  under 
"  catching  conditions."'^ 

There  is  an  apparent  exception  to  this  rule, 
when,  for  example,  A.  declares  that  he  was  ntt 
understood  by  B.,  or  did  not  understand  B.  in 
a  certain  transaction,  and  that  therefore  there  is 
no  bargain  between  them ;  and  B.  replies  by 
showing  that  the  language  used  on  both  sides 

r-i  Sumner,  218 :  2  Woodb.  &  M.  359  ;  7  Johns.  410 :  4 
Wheat  225  ;  9  Port.  (Ala.)  605 :  3  Cal.  147  :  5  M.  &  W. 
535  :  16  E.  L.  &  E.  473  fS.  C.) :  11  C.  B.  954;  21  N.  Y. 
'■  i;>  Smith)  40 ;  3  Met.  (Ky.)  80 ;  3  T.  R.  148 ;  23  Penn. 
St  398.  s-5  M.  &  W.  535.  t-3  Johns.  534.  n-3  T.  B. 
ij8;  2J  Penn.  St.  308;  6  A.  &  E.  829  ;  16  Me.  17;  9 
Pick.  441  ;  2  Fairf.  414:  7  Cush.  485;  2  East.  116.  v-2 
Jur.  1078  :  4  Bing.  N.  C.  463 ;  3  A.  &  E.  355 ;  2  Jur 
29  :  4  Camp.  140. 


CONTRACTS. 


195 


was  explicit  and  unequivocal,  and  constituted  a 
distinct  contract.     Here  B.  would  prevail. 

The  reason  is,  that  the  law  presumes  that 
every  person  means  that  which  he  distinctly  says. 

The  first  point  is,  to  ascertain  what  the  par- 
ties themselves  meant  and  understood.  But  it 
must  be  their  intention  as  expressed  in  the  con- 
tract. Thus,  if  a  contract  spoke  of  "  horses," 
it  would  not  be  possible  for  the  court  to  read 
this  word  "  oxen,"  although  it  might  be  made 
certain  by  extrinsic  evidence  that  it  was  so  in- 
tended.^ 

If  the  parties,  or  either  of  them,  show  that  a 
bargain  was  honestly  but  mistakingly  made, 
which  was  materially  different  from  that  in- 
tended to  be  made,  it  would  be  a  good  ground 
for  declaring  that  there  was  no  contract.* 

Fraud  destroys  all  obligations  and  contracts 
into  which  it  enters,  and  the  law  relieves  the 
party  defrauded.  If  both  parties  act  fraud- 
ulently, neither  can  take  advantage  of  the  fraud 
of  the  other.  If  one  acts  fraudulently,  he  can- 
not set  his  own  fraud  aside  for  his  own  benefit. 

ABANDONMENT  of  a  contract  is  only 
lawful  when  it  will  in  no  wise  prejudice  the 
rights  of  the  other  party,  and  this  though  there 
be  no  consideration,  provided  the  act  or  work 
has  been  undertaken;  for  though  not  required 
to  do  an  act  gratuitously,  if  a  person  undertakes 
it  he  is  answerable  if  he  does  not  fulfil  his  en- 
gagement. See  Bailments,  Gratis,  above ; 
Nudum  Pactum,  below. 

ABATEMENT  may  always  be  made; 
that  is,  a  less  may  be  taken  for  a  greater  sum 
due,  and  will  be  a  satisfaction  of  such  larger 
sum,  provided  it  carries  with  it  an  additional 
benefit.  Thus  a  reduction  may  be  made  by  a 
creditor  for  the  prompt  payment  of  a  debt  due 
him  from  another.y  So  with  any  other  advan- 
tage or  inducement. 

ACCESSORY  CONTRACTS  are  made 
to  assure  the  performance  of  a  prior  contract, 
either  by  the  same  parties  or  by  others.  Of 
these  are  mortgages,  pledges,  suretyship,  etc. 

If  the  accessory  contract  is  a  contract  by 
which  one  is  to  answer  for  the  debt,  default,  or 
miscarriage  of  another,  it  must,  under  the  stat- 
ute of  frauds,  be  in  writing,  and  disclose  the 
consideration,  either  explicitly  or  by  the  use  of 
terms  from  which  it  may  be  implied.'  Such 
a  contract  is  not  assignable,  so  as  to  enable  the 
assignee  to  sue  on  it  in  his  own  name.*  An 
accessory  contract  of  this  kind  is  discharged  not 
only  by  the  fulfilment  or  release  of  the  principal 
contract,  but  also  in  any  material  change  in  the 

W-ii  Bl.  596-614:  16  C.  B  420;  30  Eng.  L.  &  Eq. 
479;  C.  B.  1853  ;  Eng.  L.  &  Eq.  496;  47  Me.  530.  x 
Adam's  Eq.  160,  et  set/.  ;  26  Beav.  285  ;  28  Id.  240.  y- 
Weskett  Ins.  7.  se-5  M.  &  W.  128  ;  7  Id.  510;  5  B.  & 
Ad.  1109  ;  I  Bingh.  (N.  C.)  761  ;  15  Penn.  St.  27 ;  20 
Barb.  298  ;  13  N.  Y.  232;  4  Jones  (N.  C.)  287.  a-21 
Pirk.  140;  5  Wend.  307.  b-2  Nev.  &  P.  126;  9  Wheat. 
680;  I  Eng.  L.  &  Eq.  I  :  3  Wash.  66,  70;  12  N.  H. 
320  ;  13  Id.  240.  c-2  Ves.  Sr.  Ch.  540;  2  White  &  T. 
L.  Cas.  707 ;  5  Ired.  Eq.  91  ;  7  Hill  N.  Y.  250  ;  3  Denio, 
512;  2  Wheat.  253;  28Vt.  20Q.  d-13  N.  H.  240;  2 
McLean,  6699;  5  Ohio,  510:  8  Me.  121.  e-5  Bingh.  (N. 
C.)  156  :  3  B.  &  C  605  ;  5  B.  &  P.  4x9  ;  9  Ala.  (N.  S.) 
42 :  2  Rich,  f N.  C.)  590 :  10  Clark  &  F.  Ho.  Cas.  936. 
X-%  T»Mnt.  ?<j8;  14  Barb.  123 ;    $  Cal,  24;    27  Peijn.  St- 


terms  of  such  contract  by  the  parties  thereto, 
for  the  surety  is  bound  only  by  the  precise 
terms  of  the  agreement  he  has  guaranteed.* 
Thus,  a  surety  will  be  discharged  if  the  right 
of  the  creditor  to  enforce  the  debt  be  suspended 
for  any  definite  period,  however  short;  and  a 
suspension  for  a  day  will  have  the  same  effect 
as  if  it  were  for  a  month  or  a  year.'  But  the 
surety  may  assent  to  the  change  and  waive  his 
right  to  be  discharged  because  of  it.*  If  the 
parties  to  the  principal  contract  have  becH 
guilty  of  any  misrepresentation,  or  even  con- 
cealment, of  any  material  fact,  which,  had  it 
been  disclosed,  would  have  deterred  the  surety 
from  entering  into  the  accessory  contract,  the 
security  so  given  is  voidable  at  law  on  the 
ground  of  fraud.*  So,  the  surety  will  be  dis- 
charged should  any  condition,  express  or  im- 
plied, that  has  been  imposed  upon  the  creditor 
by  the  accessory  contract  be  annulled  by  him.^ 
An  accessory  contract,  to  guarantee  an  original 
contract  which  is  void,  is  void  also.8 

It  is  a  general  rule  that  payment  or  release 
of  the  debt  due,  or  the  performance  of  a  thing 
required  to  be  performed  by  the  first  or  princi- 
pal contract,  is  a  full  discharge  of  such  acces- 
sory obligation.*'  And  that  an  assignment  of  the 
principal  contract  will  carry  the  accessory  con- 
tract with  it.' 

Accident.     See  title  Accident,  above. 

ACCORD  is  an  agreement  to  receive  some 
act  or  thing  in  satisfaction  of  a  claim  or  injury .J 
A  satisfaction  agreed  upon  between  the  party 
injuring  and  the  party  injured,  which  when  per- 
formed, is  a  bar  to  all  actions  upon  this  account. 
Accord  is  generally  used  in  the  phrase  "  Accord 
and  satisfaction."'' 

An  accord  must  be  legal.  An  agreement  to 
drop  a  criminal  prosecution  as  a  satisfaction  for 
an  assault  and  imprisonment  is  void.' 

Satisfaction  should  proceed  from  the  defend- 
ant." Accord  and  satisfaction  by  a  co-partner 
is  a  bar  to  an  action  against  the  others ;°  and 
acceptance  of  satisfaction  from  one  joint  wrong- 
doer discharges  the  rest ;°  accord  and  satisfac- 
tion to  one  of  several  co-plaintiffs  will  be  so  to 
all.P 

It  must  be  advantageous  to  the  creditor ,•<  and 
he  must  receive  an  actual  benefit  therefrom 
which  he  would  not  otherwise  have  had."" 
Restoring  to  the  plaintiff  his  chattels,  or  his 
land,  of  which  the  defendant  has  wrongfully 
dispossessed  him,  will  not  be  any  consideration 
to  support  a  promise  by  the  plaintiff  not  to  sue 

317;  6  Hill,  N.  Y.  540;  9  Wheat.  680;  17  Wend.  179, 
422.  e-7  Humph.  261  ;  see  27  Ala.  (N.  S.)  291.  h- 
Poth.  Ob.  I  C.  I  S.  I  Act,  2  n.  14 ;  182,  186 ;  see  8  Mass. 
551;  15  Id.  233J  17  Id.  419;  4  Pick.  11;  8  Id.  422  ;  5 
Met.  Mass.  310;  7  Barb.  22  ;  2  Barb.  Ch.  119 ;  i  Hill  & 
D.  65  ;  6  Penn.  St.  228  ;  24  N.  H.  484 ;  3  Ired.  337.     I- 

7  Penn.  St.  280  ;  17  S.  &  R.  400  ;  5  Cow.  202  ;  5  Cal. 
515;  4  Iowa,  434;  24  N.  H.  484.  j-9  Co.  79:  3  Bl. 
Comm.  15.  k-2  Greenl.  Ev.  g  28  ;  Bac.  Abr.  Accord : 
5  Md.  170.  I-5  East.  294  ;  see  2  Wils.  341 ;  Cro.  Eliz. 
541.  m-Cro.  Eliz.  541 ;  i  Str.  24.  11-9  Co.  79  B.  :  2 
East.317.     0-3 Taunt.  117;  1  Chit.  PI.  Co.  Litt.  232,  A.: 

8  T.  R.  168  ;  12  East.  317;  9  Co.  79,  B. ;  5  Id.  117,  A. 
7  Vt.  320 ;  2  Ohio,  90.  p-s  Co.  117.  B.  «-s  East.  294  ; 
see  2  Wils.  241  ;  Cro.  Eliz.  541.  r-?  W'^Us,  424;  i 
Ala.  476;  3  J.  J.  M»rsh,  497. 


196 


CONTRACTS. 


kim  for  those  injuries."  The  payment  of  a  part 
of  the  whole  debt  is  not  a  good  satisfaction, 
even  if  accepted ;'  otherwise,  however,  if  the 
amount  of  the  claim  is  disputed"  or  contingent;^ 
and  if  the  negotiable  note  of  the  debtor,"  or  of 
a  third  person*  for  part,  be  given  and  received, 
it  is  sufficient;  or  if  a  part  be  given  at  a  differ- 
ent place,y  or  at  an  earlier  time,  it  will  be  suffi- 
cient ;*  and,  in  general,  payment  of  a  part  suffices 
if  any  additional  benefit  be  received.*  And  the 
receipt  of  specific  property,  if  agreed  to,  is  suf- 
ficient, whatever  its  value ;''  but  both  delivery 
and  acceptance  must  be  proved." 

The  satisfaction  must  be  a  reasonable  and 
complete  satisfaction  of  the  thing  demanded, 
and  operate  as  an  extinguishment  of  the  original 
cause  of  action.  Therefore,  acceptance  of  a 
less  cannot  l)e  a  satisfaction,  in  law,  of  a  greater 
sum,  unless  there  be  a  release  or  some  consid- 
eration for  the  residue.* 

An  accord  that  the  defendant  shall  employ 
workmen  in  two  or  three  days  is  bad."  An  ac- 
cord to  pay  a  less  sum  on  the  same  or  a  subse- 
quent day  is  bad.'  The  performance  of  an 
uncertain  accord  will  not  aid  the  defect.* 

An  accord  without  satisfaction  is  no  bar  to  an 
action.  The  execution  of  the  accord  must  be 
complete  and  perfect,"*  except  where  the  new 
promise  itself  is  a  satisfaction  for  the  debt  or 
broken  contract.' 

Generally,  if  the  new  promise  be  founded 
upon  a  new  consideration,  and  is  clearly  bind- 
ing upon  the  original  promisor,  this  is  a  satisfac- 
tion of  the  former  claim,J  and  otherwise  it  is  no 
satisfaction.''  But  even  a  promise,  which  would 
not  itself  be  a  satisfaction,  may,  if  it  be  fully 
performed  at  the  right  time,  and  in  the  right 
way  (and  not  merely  tendered),  become  then  a 
satisfaction.'  If  a  new  promise  is  executory, 
and  not  binding,  it  is  no  satisfaction  until  it  be 
executed,  and,  although  it  is  to  be  performed 
on  a  future  day  certain,  the  promisee  may  have 
his  original  action  before  the  new  promise  be- 
comes due ;"  but  if  it  be  a  binding  promise  for 
a  new  consideration,  performable  at  a  future 
day  certain,  then  the  original  right  of  action  is 
suspended  until  that  day  comes;    but  if  the 

ft-Bac.  Abr.  Ace.  A. ;  Perkins,  J  749  :  Dyer,  75  ;  5 
East.  230;  II  Id.  390;  I  Str.  426 ;  3  Hawks,  580;  2 
Litt.  49  ;  5  Day,  3613  ;  i  Root,  426  ;  i  Wend.  164  ;  3  Id. 
66  ;  14  Id.  116.  t-2  Greenl.  Ev.  ^  28  ;  2  Parsons  Contr. 
199;  4. Mod.  88;  3  Bingh.  (N.  C.)  454:  10  M.  &  W. 
367 ;  12  Price,  183  ;  t  Zabr.  301  ;  5  Gill.  189  ;  20  Conn. 
559  ;  I  Met.  (Mass.)  276;  27  Me.  362,  370  ;  39  Id.  203; 
«Strobh.2o3:  15  B.  Mon.  566.  M-Cro.  Eliz.  429  ;  3  M. 
&W.  651;  5B.  &Ald.  117:  lAd.  &E.  106;  21  Vt. 
aaj  :  23  Id.  561  :  4  GiU,  406  ;  4  Denio,  166:  2  Duer, 
J02  :  12  Met.  (Mass.)  551.  v-14  B.  Mon.  451.  w-is 
M.  &  W.  23.  x-2  Met.  (Mass.)  283;  20  Johns.  76:  i 
Wend.  164;  14  Id.  116:  13  Ala.  353;  11  East.  390;  4  B. 
&  C.  506.  y-3  Hawks,  580  :  29  Miss.  139.  ai-i8  Pick. 
414.      a-30  Vt.  424;    26  Conn.  392;     27  Barb.  485;    4 


Jones,  518:  4  Iowa,  219.  b-19  Pick.  273;  5  Day,  360. 
C-i  Wash.  C.  C.  328 :  3  Blackf.  354 ;  i  Dev.  &  B.  565  ; 
8  Penn.  St.  io6:_i6  Id.  450;    4  Eng.  L.  &  Eq.  185.     d- 


5  EjLst.  231 ;  I  Taunt.  526  :  i  Str.  426.  e-4  Mod.  88. 
f-S  East.  230.  g-3  Lev.  189;  Yel.  184.  h-T.  Raym. 
TOj:  2  Kebl<;,  690,  332,  851,  534;  9  Rep.  70  B.  ;  Cro. 
tll2.  40:  T.  Raym.  4=0;  2  Iowa,  553;  3  Johns.  Cas. 
•43  :  5  Johns.  386;  8  Ohio,  ^(93  ;    7  BlackfT  582  ;  2  Pike, 

VI ;  23  Wend.  342-14  B.  Mon.  457;   i  Gray,  245.     1-23 
t.  426.   J-Com.  Dig.  Accord  B.  4 ;  a  B.  fit  Ad.  328 ;  3 


promise  is  not  then  daly  performed,  this  right 
revives,  and  the  promisee  has  his  election,  to 
sue  on  the  original  cause  of  action,  or  on  the 
new  promise,  unless  by  the  terms  or  the  legal 
effect  of  the  new  contract  the  new  promise  is 
of  itself  a  satisfaction  and  an  extinction  of  the 
old  one."  Thus,  where  one  takes  a  negotiable 
promissory  note,  on  time,  for  money  which  is 
due  or  to  become  due,  this  note  is  conclusive 
evidence  of  an  agreement  for  delay  or  credit, 
and  no  action  can  be  maintained  on  the  original 
cause  of  action  until  the  maturity  of  the  note  ;• 
if  then  the  note  is  not  paid,  an  action  may  be 
brought  upon  the  note,  or  on  the  original  cause 
of  action,  unless  the  facts  show  that  the  prom- 
isee took  the  note  in  payment,  or  the  law  im- 
plies it.P 

An  agreement  to  cancel  and  release  mutual 
claims,  or  to  discontinue  mutual  suits,  is  a 
mutual  accord  and  satisfaction ;  and  either  party 
may  rely  on  it  as  a  bar  against  the  further  pro;;- 
ecution  of  the  suit  or  claim  by  the  other.' 

If  there  be  a  new  agreement,  resting  on  suf- 
ficient consideration,  and  otherwise  valid,  to 
suspend  a  previous  claim  or  cause  of  action, 
until  the  doing  of  a  certain  thing,  or  the  hap- 
pening of  a  specified  event,  the  action  cannot 
be  maintained  on  that  claim  in  the  meantime. 

To  show  that  the  accord  and  satisfaction  were 
simultaneous,  and  consisting  of  the  delivery  of 
a  certain  thing,  it  must  be  proved,  not  only  that 
the  thing  was  delivered,  but  that  it  was  received 
in  satisfaction.*"  But  if  property  of  the  debtor 
came  lawfully  into  the  possession  of  the  credi- 
tor, and  they  then  agreed  that  it  may  be  retained 
by  him,  and  shall  be  in  satisfaction  of  the  debt, 
this  is  a  good  accord  and  satisfaction.* 

The  accord  and  satisfaction  must  be  advan- 
tageous to  the  creditor,*  he  must  receive  from  it 
a  distinct  benefit,  which  otherwise  he  would  not 
have  had." 

If  the  promise  be  executed  literally,  or  in 
form,  but  is  rendered  inoperative  or  worthless 
to  the  creditor,  by  the  debtor's  act  or  omission. 
It  has  no  effect  as  an  accord  and  satisfaction.^ 

If  an  accord  and  satisfaction  be  made  by  a 
third  party,  and  is  accepted  as  satisfaction,  it  is 

Id.  701 ;  lExch.  907:  3  Bing.  (N.  C.)  621 ;  9  B.  &  C 
850 ;  2  Pike,  209.  K-19  Wend.  516.  I-Com.  Dig.  Ac- 
cord B.  4.  in-Id.  11-23  Vt.  561 ;  8  Id.  141 :  2  B.  & 
Ad.  328:  iM.  &W.  323;  lExch.  601;  5  M.  &  W 
289  ;  7  Q.  B.  71  :  5  C.  B.  622  ;  29  Eng.  L.  &  Eq.  266;  3 
Bing.  (N.  C.)  920;  5  T.  R.  141:  5  Tyr.  1079 :  2Cromp. 
M.  &  R.  704  ;  5  T.  R.  513  ;  13  M.  &  W.  63.  0-2  Cromp. 
&  J.  405;  5  Beav.  415;  2  Cromp.  M.  &  R.  187.  p-8 
Pick.  522  ;  10  Id.  525  ;  6  Mass.  143;  12  Pick.  268  ;  2 
Met.  168;  9  Id.  328;  22  Pick.  18:  5  Cush.  158;  2 
Greenl.  121  ;  8  Id.  298  ;  18  Me.  249;  34  Id.  324  :  Id.  4S5. 
Id.  560;  23  Id.  302  ;  37  Id.  419:  3  Fairf.  418  ;  31  Vt. 
516:  Id.  450.  q-i  Denio,  257;  12  Johns.  456;  10 
Exch.  569;  20  Eng.  L.  &  Eq.  429.  r-i  Wash.  C.  C 
328;  3  Blackf.  354:  16  Q.  B.  439;  4  Eng.  L.  &  Eq 
185  :  I  Dev.  &  Bat.  565  ;  9  M.  &  W.  600 ;  8  Penn  St. 
106  ;  16  Id.  450  ;  38  Id.  147.  s-C.  B.  142.  t-20  Conn 
559;  iN.  J.  qqi;  4  Mod.  88;  3  Bing.  (N.  C.)  4.S4 :  ' 
Met.  276;  10  M.  &  W.  367;  12  Price,  183:  27  Me.  362; 
Id.  370;  2  Strobh.  203;  5  B.  &  Aid.  117:  i  A.  &  E. 
106  ;  3  M.  &  W.  651  ;  Cro.  Eliz.  429  :  21  Vt.  223  ;  4 
Gill.  406;  4  Denio.  166:  12  Met.  551:  18  Pick  414  ;  J 
Hawks,  580.  U-Preceding  note;  2  Watts,  424  ;  J.  j  . 
Marsh.  497;  i  Stew.  476.  v-3  C  B.  157  ;  Peakct  Cm 
13 ;  3J  Cal,  47- 


CONTRACTS. 


197 


sufficiant  if  the  actual  debtor  look  upon  it  as 
such.* 

An  accord  and  satisfaction  made  before  breach 
of  contract  is  not  a  bar  to  an  action  for  a  sub- 
sequent breach.* 

ACQUITTANCES  differ  from  releases  in 
this,  that  the  latter  must  be  under  seal.'  An 
acquittance  being  a  receipt  in  full,  a  discharge 
or  release  from  a  debt — a  writing  which  is  evi- 
dence of  the  discharge — bars  all  further  de- 
mand, discharges  the  party  from  the  engage- 
ment to  pay,  and  is  evidence  of  payment.  See 
Receipts,  below. 

ACTS  OR  OMISSIONS.  In  all  cases 
whatever,  a  promisor  will  be  discharged  from 
all  liability  when  the  non-performance  of  his 
obligation  is  caused  by  the  acts  or  the  fault  of 
the  other  contractini;  party.* 

AFFIRMANCE  is  the  confirmation  of  a 
voidable  act  by  the  party  who  is  to  be  bound 
thereby.'  It  is  express  when  the  party  declares 
his  determination  to  fulfil  the  contract,''  and  im- 
plied from  the  acts  of  the  party  without  any  ex- 
press declaration.*  A  mere  acknowledgment  that 
the  debt  existed,  or  that  the  contract  was  made, 
is  not  an  affirmance.*  There  must  be  a  direct 
«nd  unequivocal  affirmance  and  substantially 
^though  not  in  form)  a  promise  to  pay  the  debt, 
Vc  fulfil  the  contract,*  in  order  to  bind  the  party. 

Affreightment.     See  Maritime  Law. 

ALTERATION  (a  change  in  the  lan- 
guage) of  a  contract  operates  as  a  discharge 
of  it.  If  the  alteration  be  by  a  stranger,  it 
avoids  an  instrument,  if  it  be  material  and  the 
original  words  cannot  be  certainly  restored,  on 
the  ground  that  it  is  no  longer  the  instrument 
of  the  parties.'  If  the  alteration  be  made  by  a 
party,  it  so  far  avoids  the  instrument  that  he 
fannot  set  it  up,  even  if  the  alteration  be  in 
words  not  material.*  But  if  the  alteration  does 
not  vary  the  meaning  of  the  instrument,  or  does 
not  affect  its  operation,  and  this  can  be  cer- 
tainly shown,  it  will  not  render  the  instrument 
void.*  Whether  the  alteration  is  material,  is 
not  a  question  of  fact  for  a  jury,  but  of  law  for 
the  court,'  and  the  burden  of  proof  of  the  fact 
of  alteration  rests  on  the  party  alleging  it  ;J  the 
alteration  being  shown,  the  party  claiming  un- 
der the  instrument  is  bound  to  explain  the 
alteration.^  See  Erasure,  Interlineation, 
below. 

Apprenticeship.     See  that  title. 

W-3  Wend.  66:  i  Stew  184.  x-8  Exch.  668;  2  Eng. 
L.  &  Eq  476;  I  EI  &  Bl  295  ;  16  Eng.  L  &  Eq.  236, 
I  Lutw.  358  ;  Cro.  Jac  99  ;  Id.  254;  i  Harris  &  J.  673  ; 
1  Taunt.  428;  13  Hawks,  580.  y-5  Poth.  Ob.  781.  «- 
5  Mass.  67:  Com  Dig.  Conditions:  L.  (6)  4  Wend. 
377;  4  Cowen,  36:  3  Hill,  570;  2  Jones  L.  142;  Id.  46. 
a- As  distinguished  from  ratification  and  confirmation, 
see  I  Parsons  Contra.  243.  b-Dudl.  203.  c-is  Mass. 
220:  see  10  N.  H.  194;  11  S.&R.305:  i  Parsons 
Contr.  243:  Sharsw.  Bl.  Comm.  466,  n.  10.  d-io  N.  H. 
561:  2  Esp  628;  I  Bailey,  28  :  9  Conn.  330:  Dudl.  203. 
e-3  Wend.  479:  4  Day,  57:  12  Conn.  550;  8N.  H.374; 
a  Hill.  N.  Y  120;  19  Wend.  301  ;  i  Parsons  Contr.  243 ; 
Bing.  Inf  69  f-Pigott's  Case,  11  Rep.  27;  Cro.  Eliz. 
626.  ti  M.  &  W.  778:  13  Id  343;  4T.  R.  32o;2H. 
Bl  141  :  3  Ellis  &  B.  683 ;  I's  Eng  L.  &  Eq  123 :  5 
Ellis  &  B  82  ;  32  Eng.  L.  &  Eq  162  .  15  East  29  ;  5  C 
6. 181 ;  (>  East.  309 :    *  M.  &  W.  809 :  i  Jones,  loy ;  10 


ALTERNATIVE.  In  contracts  a  party 
frequently  has  the  choice  of  which  of  several 
things,  of  different  times,  modes,  qualities, 
quantities,  etc.,  and  other  options  in  perform- 
ance. As  to  the  effect  of  alternative  stipula- 
tions see  Payment,  Performance,  Tender, 
Time,  etc.,  below. 

AMBIGUITY,  duplicity,  indistinctness, 
and  uncertainty  of  meaning  in  the  expression 
and  terms  in  a  written  instrument  should  always 
be  avoided ;  and  it  may  be  stated  as  a  general 
rule  that  simplicity  and  clearness  are  the  best 
evidences  of  the  honesty,  fairness,  and  skill  of 
the  contracting  parties. 

Latent  ambiguities  are  those  which  arise 
from  some  collateral  circumstance  or  extrinsic 
matter  in  cases  where  the  instrument  itself  is 
sufficiently  certain  and  intelligible,  and  as  such 
they  may  be  explained  by  extrinsic  evidence.' 
Patent  ambiguities  are  those  which  appear  on 
the  face  of  the  instrument :  that  which  occurs 
when  the  expression  of  a  writing  is  so  defective 
that  a  court,  being  obliged  to  put  a  constrxiction 
upon  it,  placing  itself  in  the  situation  of  the 
parties,  cannot  ascertain  therefrom  the  parties' 
intention."  Also  such  expressions  as  would 
be  found  of  uncertain  meaning  by  persons  of 
competent  skill  and  information.  Patent  am- 
biguities cannot  be  explained  by  extrinsic  evi- 
dence, but  renders  the  instrument  inoperative 
as  far  as  they  extend." 

Anticipatory  Agreement.  See  Damages, 
below. 

APPORTIONMENT.  A  contract  is  ap 
portionable  when  the  amount  of  consideration 
to  be  paid  by  the  one  party  depends  upon  the 
extent  of  performance  by  the  other. 

When  parties  enter  into  a  contract  by  which 
the  amount  to  be  performed  by  the  one,  and  the 
consideration  to  be  paid  by  the  other,  are  made 
certain  and  fixed,  such  contract  cannot  be  ap- 
portioned. Thus,  if  A.  and  B.  agree  together 
that  A.  shall  enter  into  the  service  of  B.  and 
continue  for  one  year,  and  that  B.  shall  pay  him 
therefor  the  sum  of  one  hundred  dollars ;  and 
A.  enters  the  service  accordingly,  and  continues 
half  the  year,  and  then  leaves,  he  will  not  be 
entitled  to  recover  anything  on  the  contract? 
But  if  one  party  is  prevented  from  fully  per 
forming  his  part  of  the  contract  by  the  fault  of 
the  other  party,  the  party  thus  in  fault  cannot 
be  allowed  to  take  advantage  of  his  own  wrong 

Conn.  192 ;  6  Cowen,  746  ;  8  Id.  71 ;  8  Mo  235  :  6  Ala. 
707:  2  Barb.  Ch.  119  ;  3  Barb.  404  ;  15  Johns.  293;  it 
Cush.  6r  ;  39  Penn.  St.  388.  g-Pigott's  Case,  11  Rep. 
27;  8  Cowen,  71  ;  2Halst.  175:  2C.  B.  181;  13  Ohio 
St.  364:  8  N.  H.  139;  2  Id.  543;  10  Cowen,  192;  11 
Iowa,  465.  h-9  M.  &  W.  469  :  5  Mass.  540  ;  6  Id.  519 ; 
15  Pick  239;  2oVt.  217;  3  Ohio  St  445,  13  Id  364: 
II  Iowa,  465;  10  Conn.  192;  8  N.  H.  139;  2  Id.  543:  a 
Halst  175  ;  8  Cowen,  71  :  Pigott's  Case,  11  Rep.  27. 
1-4  How.  (Miss.)  231  :  2  N.  H.  543 ;  i  Id.  ^5  :  13  Pick. 
165  ;  2  Fairf.  115;  35  Penn.  St.  80.  j-Davisz/.«.  Jenny, 
I  Met.  221.  k-6Cush.  314;  9  Penn.  St.  186;  11  N.  H. 
395  ;  13  Id.  385  ;  2  La.  290:  3  Harr.  Del.  404;  8  Miss. 
414  ;  17  Id.  375  ;  7  Barb.  564  :  6  C.  &  P.  273 ;  7  Ad.  & 
E.  444  ;  8  Id.  215  :  2  Man.  &  G.  890,  909.  l-i  Greenl. 
Ev.  3301.  111-4  Mass.  205  :  4Cranch,i67;  i  Greenl. 
Ev.^  292-300.  n -4  Mass.  305  ;  7Craacli,  167;  Jarman 
Wais,  367.    o-i  Swaaat.  357. 


198 


CONTRACTS. 


and  screen  himself  from  the  payment  of  what 
has  been  done  under  the  contract.'  So,  too,  if 
one  party,  without  the  fault  of  the  other,  fails 
to  perform  his  side  of  the  contract  in  such  a 
manner  as  to  enable  him  to  sue  upon  it ;  still,  if 
the  other  party  has  derived  a  benefit  from  the 
part  performed,  it  would  be  unjust  to  allow  him 
to  retain  that  without  paying  anything.'' 

ARRANGEMENTS  hetween  creditors 
and  debtors  not  tainted  by  fraud,  agreed  to  by 
a'l  parties,  and  carried  out  in  good  *"'"  .will 
be  binding.  It  must  have  been  a^^ented  to  by 
all  parties.  Settlements  of  this  kind,  where  it 
is  sought  to  avoid  litigation  and  loss,  are  favored 
by  the  law,  and  result  more  satisfactorily  than 
the  usual  forms  of  assignment. 

The  prevention  of  litigation  is  not  only  a  suf- 
ficient but  a  highly-favored  consideration,'  and 
no  investigation  into  the  character  or  value  of 
the  different  claims  submitted  will  be  entered 
into  for  the  purpose  of  setting  aside  a  com- 
promise, it  being  sufficient  if  the  parties  enter- 
ing into  the  compromise  thought  at  the  time 
that  there  was  a  question  between  them." 

Arrangements  between  partners  themselves 
cannot  limit  or  prevent  their  ordinary  responsi- 
bilities to  third  persons,  unless  the  latter  assent 
to  such  arrangements.*  But  where  the  creditor 
has  express  notice  of  a  private  arrangement  be- 
tween the  partners,  by  which  either  the  power 
of  one  to  bind  the  firm,  or  his  liability  on  part- 
nership contracts,  is  qualified  or  defeated,  such 
creditor  will  be  bound  by  the  arrangement." 
The  act  or  contract  of  one  partner,  even  in  a 
transaction  purely  of  a  partnership  nature,  does 
not  bind  the  firm,  if  the  creditor  has  express 
notice  from  the  other  partners  that  they  will  not 
consider  themselves  responsible,^  for  the  author- 
ity of  one  partner  to  bind  the  firm  is  only  im- 
plied ;  and  no  one  can  become  the  creditor  of 
another  against  his  express  and  declared  will.'* 

ARTIFICES,  cheats,  finesse,  frauds,  strat- 
agems, and  tricks,  though  in  their  very  nature 
false,  must  also  be  fraudulent  in  order  to  ren- 
der the  party  guilty  of  them  responsible  to  the 
other  for  damages.  See  Concealment,  Fraud, 
Misrepresentation. 

ASSENT.  There  is  no  contract  unless  the 
parties  thereto  assent ;  and  they  must  assent  to 
the  same  thing,  in  the  same  sense."     "  There 

p-8  Bing.  14 ;  15  Q.  B.  576 ;  10  Barr,  »3i :  0  Met.  577  ; 
2  Blackf.  167  ;  i  Gillman,  92;  4  Id.  319;  5  Id.  298;  21 
Vt.  17:  I  Denio,  3x7.  o-q  B.  &  C.  386;  10  Id.  441  ;  5 
Id.  378;  18  Pick.  555;  7  Pick.  i8i  ;  8  Id.  178;  14  Mas.s. 
282;  19  Pick.  528;  13  Met.  42;  I  Gray,  282 ;  7  Greenl. 
76  ;  13  Johns.  04  ;  21  Vt.  301 ;  4  Taunt.  745  ;  2  Cromp. 
&  M.  214  ;  I  \loody  &  R.  218 ;  3  Taunt.  52  ;  9  B.  &  C. 
92;  2  S.  &  Marsh,  585.  r-i  Ves.  Sen.  444;  i  Ch,^nc. 
158^  I  Atk.  3;  17  Pick.  470:  4  Id.  507;  Co.  29;  E.  L. 
&  E.  429,  S.  C. ;  10  Exch.  569  ;  Com.  Dig.  A.  i,  B.  r  : 
2  Strob.  Eq.  258:  2  Mich.  145;  i  Watts,  216;  Add.  -(>; 
2  Penn.  St.  531  ;  6  Munf.  406;  i  Bibb,  168 ;  2  H.  4- '.  ; 
4  Hawks.  17*  :  6  VVatts,  311 ;  14  Conn.  12  ;  i  W.  &  S. 
456;  4  Met.  270.  8-21  E.  L.  &  E.  199;  6  Monr.  91  :  2 
Rand.  (Va.)442:  5  Watts,  259  ;  21  Cal.  122.  I-C<H- 
yer  Partn.  g  386 :  28.  &  Aid.  679:  3  Kent  Com m.  41  ; 
i  Mass.  C.  C.  187, 188 :  5  Pet.  129  ;  3  B.  &  C.  427.  »i- 
CoUyer  Partn.  J  387:  .'2  N.  H.  275;  4  Ired.  129:  38  N. 
H.  287  :  6  Pick.  372  ;  4  Johns.  251 ;  5  Conn.  597,  598  ;  i 
Camp.  404  ;  5  Brown  Pari.  Cas.  489  ;  i  Lindley  Partn. 
ifioet  seq.  267-269.     ir-i  Salk,  aoa;    jo  past.  26^;    1 


must  be  a  request  on  the  one  side  and  an  a.s^enf 
on  the  other  ;y  nor  is  this  any  more  a  contrail 
if  it  be  in  writing  than  if  spoken  only.*  The 
assent  must  comprehend  the  whole  of  the  prop- 
osition ;  it  must  be  exactly  equal  in  its  extent 
and  provisions,  and  must  not  qualify  them  by 
any  new  matter.  Thus,  an  off"er  to  sell  a  cer 
tain  thing  on  certain  terms,  may  be  met  by  the 
answer,  "  I  will  take  that  thing  on  those  terms; " 
and,  if  the  proposition  be  in  the  form  of  a 
question,  as  "  I  will  sell  you  so  and  so;  will 
you  buy  ?  "  the  whole  of  this  meaning  may  b* 
conveyed  by  the  word  "yes,"  or  any  other 
.simple  affirmative  answer.  And  thus  a  legal 
contract  is  completed.  But  where  the  answer^ 
either  in  words  or  effect,  departs  from  the  prop 
osition,  or  varies  the  terms  of  the  offer,  or 
substitutes  for  the  contract  tendered  one  more 
satisfactory  to  the  respondent,  in  these  casei. 
there  is  no  assent,  and  no  contract. 

In  general,  some  time  must  elapse  between 
an  offer  and  its  acceptance.  But  the  proposer 
may  himself  determine  ho\f  long  the  offer  shall 
continue.  He  may  say^  I  will  give  you  an 
hour,  or,  until  this  time  to-morrow,  or  next 
week,  to  make  up  your  mind.»  Then  the  party 
to  whom  the  proposition  is  made  knows  how  long 
the  offer  is  to  continue.  He  may  avail  himself 
of  the  hour,  the  day,  or  the  week  given,  for  in- 
quiry or  consideration,  or  making  the  necessary 
arrangements ;  and  if,  within  the  prescribed 
time,  he  expresses  his  assent  (supposing  the 
proposition  not  in  the  meantime  withdrawn), 
he  completes  the  contract  as  effectually  as  if  he 
had  answered  in  the  same  way  at  the  first 
moment  after  the  offer  was  made.'  If  an  off"erer 
gives  a  day  for  acceptance,  without  considera- 
tion for  the  delay,  he  may  at  any  time,  within 
that  day,  before  acceptance,  recall  his  offer.  So 
he  may  if  he  gives  no  time.  If  he  makes  an 
offer,  and  instantly  recalls  it  before  acceptance, 
although  the  other  party  was  prepared  to  accept 
it  the  next  instant,  the  offer  is  effectually  with- 
drawn. But  acceptance  before  withdrawal 
binds  the  parties,  if  made  while  the  offer  con- 
tinues; and  the  offer  does  continue  in  all  cases, 
either  a  reasonable  time  (and  that  only),  or  the 
time  fixed  by  the  party  himself.  So,  also, 
where  the  proposition  and  reply  are  both  made 
by  letter.**     Thus,  if  A,,  in  Boston,  on  the  first 

Stark.  164 ;  i  Younge  &  J.  227.  w-Chitty  Contr.  (Ed. 
i860)  284;  CoUyer  Partn.  J  387.  x-i  Sumn.  218;  j 
Johns.  534 ;  2  Woodb.  &  M.  359 ;  7  Johns.  470 .  4  Wheat. 


2^'S  ;  9  Port.  (Ala.)  605 ;  3  Cal.  147;  5  M.  &  W.  535 ;  ic 
E.  L.  &  E.  473,  S.  C;  II  C.  B.  954;  24  N  Y.  (it 
Smith)  40;    3  Met.  (Ky.)  80;  3  T.  R.  148  ;  23  Penn.  St. 


308.  As  sales  at  auction  are  clearly  within  the  Statute 
of  Frauds,  7  East.  568:  2  B.  &  C.  945;  6  Leigh.  16. 
the  assent  would  not  be  binding  unless  in  writing,  if  the 
case  come  within  the  terms  of  that  statute,  y-5  Bing. 
N.  C.  75.  K-12  Johns.  190;  3  Id.  534;  7  Id.  470;  Noy. 
II  Roi.  Abr.  6  (M.)  pi.  i;  4  Watts.  48;  7  Cash  ^oo  : 
31  E  L.  &  E.  475;  16  E.  L.  &  E.  470,  S.  C;  8  Eich. 
185 :  28  E.  L.  &  E.  470,  S.  C;  10  Exch.  610.  a-Wnght 
vs.  Bigg;  21  E.  L.  &  E.  591.  b-i  B.  &  Aid.  681,  3 
Meriw.  441 ;  6  Hare,  i ;  i  H.  L.  Cas.  381  ;  7  M.  &  W. 
515:   I   Foster  (N.  H.)  41;  4  Paige,  17;   12  Conn.  436: 


6  Wend.   103;  14  Barb.   341,  S.  C:    i   Kem.  441 
Barb.  42 ;  4  Geo.  i ;    4  Wheat.  228 ;  7   Dana.   281  ;  • 
Port.  (Ala.)  60s;  5  Pena.  St.  339;  y  How.  590;  8  C 


CONTRACTS. 


199 


day  in  January,  writes  to  B.,  in  Baltimore, 
making  an  offer,  and  this  letter  reaches  Balti- 
more on  the  third,  and  B.  forthwith  answers 
the  letter,  accepting  the  offer,  putting  the  letter 
into  the  mail  that  day ;  and  on  the  second  of 
January  A.  writes,  withdrawing  the  offer,  and 
his  letter  of  withdrawal  reaches  B.  on  the  fourth, 
there  is,  nevertheless,  a  contract  made  between 
the  parties.  If  the  offer  was  to  sell  goods,  B., 
on  tendering  the  price,  may  claim  the  goods ; 
if  the  offer  was  to  insure  B.'s  ship,  B.  may 
tender  the  premium  and  demand  the  policy, 
and  hold  A.  as  an  insurer  of  his  ship.  And  so 
of  any  other  offer  or  proposition." 

Assignment.   See  that  title. 

ATTESTATION  is  the  witnessing  of  an 
instrument  in  writing  at  the  request  of  the 
party  making  the  same,  and  subscribing  it  as  a 
witness"*  in  order  to  prove  the  instrument  if 
necessary,  and  for  the  purpose  of  identification.* 
In  some  cases  instruments  in  writing,  as  assign- 
ments, conveyances,  etc.,  require  attestation  by 
one  or  two  witnesses. 

Auctions.  See  Agency  ;  -  Auctioneers  ; 
Sales. 

Authority.   See  Agency  ;  Authority. 

Award.   See  Agency  ;  Arbitrators. 

Bailments.   See  that  title. 

BARGAIN  CATCHING.  A  merely  hard 
bargain  is  not  a  ground  for  relief  m  law.  But 
see  Concealment;  Consideration;  Fraud; 
Inadequacy;  JVIisrepresentation;  below. 

BARTER  is  a  contract  by  which  parties 
exchange  goods  for  goods.  It  differs  from  a 
sale;  a  barter  being  always  goods  for  goods, 
while  a  sale  is  of  goods  for  money,  or  for 
money  and  goods.  In  a  sale  there  is  a  fixed 
price,  in  a  barter  there  is  not. 

Bill  of  Exchange,  etc.    See  that  title. 

Bill  of  Lading.  See  Bailments  ;  Car- 
riers; Notice. 

Bill  of  Sale.  See  Sales. 

Binding  Out.  See  Apprenticeship. 

BIPARTITE  is  of  two  parts.  It  is  a  term 
used  m  Conveyancing,  which  see. 

BLANKS.  When  a  blank  (a  space  left  in 
a  writing  which  is  to  be  filled  up  with  one  or 
more  words  to  complete  the  sense)  is  left  in  a 
written  agreement  which  need  not  have  been 
reduced  to  writing,  and  would  have  been  equally 
binding  whether  written  or  not,  it  is  presumed 
in  an  action  for  the  non-performance  of  the 
conlraci  that  parol  evidence  may  be  admitted 
to  explain  the  blank.  A  blank  may  be  filled 
by  consent  of  parties,  and  the  mstrnment  will 
remain  valid,'  though  not  where  the  blank  is  in 
a  part  material  to  the  operation  of  the  instru- 
ment as  an  instrument  of  the  character  which  it 
purports  to  be,^  at  least  without  a  new  execution. •> 

C-Hutcheson  vs.  Blakeman,  3  Met.  (Ky.)  80.  d-3  P. 
Wms.  234  :  2  Ves.  Ch.  454 ;  i  Ves.  &  B.  Ch.  Sr.  362  ;  i 
A.  K.  Marsh.  146:  17  Pick.  373.  e-3  Campb.  232.  f- 
Cro.  Eliz.  626:  I  Ventr.  185;  11  M.  &  W.  468;  i   Me. 


34;  5  Mass.  538;  19  Johns.  396.  ^-6  M.  &  W.  200:  2 
Dev.  (N.  C.)  379:  I  Yerg.  "69;  2  Nott  &  M'C.  125;  i 
Ohio,  365  .  6  Gill.  &  J.  250  ;  2  Brock.  C.  C.  64.    h-Par- 


»ons'  Contr.  220.     i-8  Johns.  446;  12  Id.  320:  2  Johns. 
^*^- ?5-    .1-2  Miles,  229.     k-5  Moore,  342 ;  I  Leon.  63 ; 


BONA  FIDE.  The  law  rcqm.<.  ^11  per- 
sons in  their  transactions  to  act  m  goo  J  faith; 
and  a  contract  where  the  parties  have  not  acted 
bona  fide  (in  good  faith,  honesty,  purity  of  in 
tention,  as  distingui.shed  from  mala  fide,  or  bad 
faith)  is  void  at  the  pleasure  of  the  innocent 
party.'  If  a  contract  be  made  with  good  faith, 
subsequent  fraudulent  acts  will  not  vitiate  it, 
although  such  acts  may  raise  a  presumption  of 
antecedent  fraud,  and  thus  become  a  means  of 
proving  the  want  of  good  faith  in  making  the 
contract.J 

BREACH  of  contract,  or  the  violation  of 
an  obligation,  engagement,  or  duty,  may  be  of 
any  of  the  terms,  or  of  the  entire  contract.  A 
continuing  breach  is  either  where  the  condition 
of  things  constituting  the  breach  continues 
during  a  period  of  time,  or  where  the  acts  con- 
stituting the  breach  are  at  brief  intervals  re- 
peated.''    See  Pleading. 

Carriage.   See  Bailments;  Carriers. 

Catching.   See  Bargain,  above. 

CERTAINTY,  accuracy,  and  distinctness 
of  statement  should  be  observed  in  every  con- 
tract. If  a  contract  be  so  vague  in  its  terms 
that  Its  meaning  cannot  be  certainly  collected, 
and  the  statute  of  frauds  precludes  the  admissi- 
bility of  parol  evidence  to  clear  up  the  diffi- 
culty,' or  parol  evidence  cannot  supply  the  de- 
fect, the  contract  will  be  of  no  effect."  But  it 
is  a  maxim  of  law  that  "  that  is  certain  which 
may  be  made  certain.""  For  example,  if  a 
man  sells  the  oil  in  his  store  at  a  certain  price 
per  gallon,  although  there  is  uncertainty  as  to 
the  quantity  of  the  oil,  yet  inasmuch  as  it  can 
be  ascertained,  the  maxim  applies,  and  the  sale 
is  good." 

CHAMPERTY  AND  MAINTEN- 
ANCE. Champerty  is  a  bargain  with  the 
plaintiff  or  defendant  in  a  suit  for  a  portion  of 
the  land  or  other  matter  sued  for,  or  claimed, 
in  case  of  a  successful  termination  in  favor  of 
the  party  for  whom  the  champertor  undertakes 
to  carry  on  the  suit  at  his  own  expense.  A 
common  instance  of  champerty  is  where  an 
attorney  agiees  with  his  client  to  collect  or  en- 
force by  suit  a  particular  claim  or  claims  in 
general,  receiving  a  certain  proportion  thereof,' 
or  a  percentage  thereon.' 

Maintenance  is  the  intermeddling  of  a 
stranger  in  a  suit  for  the  purpose  of  stirring  up 
strife,  and  continuing  the  litigation.  There 
are;  however,  many  acts  in  the  nature  of  main- 
tenance which  are  justifiable  from  the  circum- 
stances under  which  they  are  done.  i.  Because 
the  party  has  an  interest  in  the  matter  or  thinj; 
in  variance. ■■  2.  Because  the  party  is  of  kindred 
or  affinity,  as  father,  son,  husband,  wife,  heir 


I  Salk. 
C^3. 
Litt.  43, 
£(!.•)  41 
Ala!  (N 
Cr.  304. 
6  Bing. 
W.  675 
I  Ohio, 
S.)2o6; 


141:  Holt.  178:    2  Ld.  Raym.  1125.     I-5  B.  & 

m-i  Russ.  &  M.  116;  I  Ch.  Pr.  123.    n-Co 

O-Story  Eq.  §?  240-256;  Mitf.  Eq.  PI.  (Jerem. 

;  Cooper  Eq.    Pi.   5;  Wigram   Disc.   77.     Ji-a 

■  S.)  755  ;  17  Id.  305  ;  I  Ohio,  132  ;  4  Dowl.  Pi. 

q-4  T.  R.  340 ;  4  Q.  B.  883  ;   5   B.  &  C.  188 ; 

299;  4  Dowl.  18;  2  Mylne  &  K.  590;  11  M.  & 

;  13  Met.  362  ;  3  Johns.  Ch   5c8  ;  3  Cowen.  647; 

[32  ;  13  Id.  167  ;  15  Id.  156,  715.  r-17  Ala.  (N. 

9  Met.  Mass.  ^;  3  3isb.  Cr.  \..  119, 


flOO 


CONTRACTS. 


apparent,  etc."  3.  Because  the  relation  of  land- 
lord, tenant,  master,  servant,  etc.,  subsists  be- 
tween the  party  to  the  suit  and  the  person 
assisting  him.  4.  Because  the  money  is  given 
in  charity.*  5.  Because  the  person  assisting 
the  party  to  the  suit  is  an  attorney  or  counsellor, 
and  the  assistance  strictly  professional — for  a 
lawyer  is  no  more  justified  in  giving  his  client 
money  than  another  man."  Contracts  growing 
out  of  maintenance  are  void.'' 

Champerty  differs  from  maintenance  chiefly 
in  this,  that  in  champerty  the  compensation  to 
be  given  is  a  part  of  the  matter  in  suit,  or  some 
profit  growing  out  of  it,*  while  in  simple  main- 
tenance the  question  of  compensation  does  not 
enter  into  the  account.* 

Cham])erty  is  treated  as  the  worse  offence ; 
for  by  this  a  stranger  supplies  money  to  carry 
on  a  suit  on  condition  of  sharing  in  the  land  or 
other  property  gained  by  it.  Contracts  of  this 
TDrt  are  set  aside  both  in  law  and  equity .7 

Change.    See  Deviation,  below. 

Charter  Parties.   See  Forms,  below. 

Check.  See  Bills  of  Exchange,  Bonds 
IND  Promissory  Notes,  above. 

Choice.   See  Election,  below. 

CLAUSES  are  parts  of  an  instrument  of 
writing.  In  the  forms  hereafter  given  they 
are  so  framed  that  they  m.ay  be  readily  shifted 
from  one  form  to  another  without  change. 
Being  separate  paragraphs,  each  containing  a 
single,  certain,  and  material  part  of  the  agree- 
ment, they  will  assist  greatly  the  precision  and 
clearness  of  the  instrument,  and  render  it  less 
liable  to  confusion,  doubt,  and  misconstruction. 

COERCION.  Direct  or  positive  coercion 
takes  place  when  a  man  is  by  physical  force 
compelled  to  do  an  act  contrary  to  his  will. 
Implied  coercion  exists  where  a  person  is  legally 
under  subjection  to  another,  and  is  induced  in 
consequence  of  such  subjection  to  do  an  act 
contrary  to  his  will. 

As  will  is  necessary  to  the  commission  of  a 
crime,  or  the  making  of  a  contract,  a  person 
coerced  into  either  has  no  will  on  the  subject, 
and  is  not  responsible.*  The  command  of  a 
superior  to  an  inferior,*  of  a  parent  to  a  child,** 
of  a  master  to  his  servant,  or  a  principal  to  his 
agent,"  may  amount  to  coercion. 

COLLUSION  and  fraud  of  every  kind 
vitiate  and  render  void  all  acts  which  are  in- 
fected with  them,*  and  any  agreement  between 

S-Bac.  Abr.  MaintenaHce ;  see  11  M.  &  W.  675;  9 
Met.  Mass.  489:  13  Id.  262;  i  Me.  292;  6  Id.  361  ;  11 
Id.  III.  t-i  Bail.  (S.  C.)  401.  u-Russ.  Cr.  179;  Bac. 
Abr.  Maintenance ;  Broke.  Abr.  Maint.  v-ii  Mass. 
549 ;  5  Humph.  379 :  20  Ala.  N.  S.  521  ;  5  B.  Mon.  413 : 
5  Johns.  Ch.  44 :  4  Q.  B.  883.  w-16  Ala.  488  ;  24  Ala. 
(N.  S.)  473;  9  Met.  Mass.  489:  i  Jones  Eq.  100;  5 
Johns.  Ch.  44;  4  Litt.  117.  x-Bishop  Cr.  L.  §  iii.  y-7 
Bine.  360 ;  i  Pick.  41S  :  0  Met.  480  :  q  Ala.  755  :  2  Sanf. 


12, 


;  4  Id.  172.  «-i  East.  PI.  Cr.  225;  5  Blackf.  73;  2 
all.  86;  5  Q.  B.  279  ;  i  Dav.  &  M.  367.  The  law  upon 
the  responsibility  of  married  women  for  crime  is  fully 
stated  in  i  Bennett  &  H.  Lead.  Cr.  Cas.  76-87.  a-i 
Wash.  C.  C.  209,  220;  12  Met.  (Mass.)  56;  1  Bl.itch.  C. 
C.  549;  13  How.  115.  b-Broom.  Max.  (2d  Ed.)  ii.  C- 
n  Mo.  246;  14  Id.  137,  340;  3  Cush.  279;  II  Met. 
iMM*.)  06 ;  ;  Miss.  304  ;  14  Ala.  363 ;  22  Vt.  33 ;  2  Denio, 


two  or  more  persons  to  defraud  another  of  his 
rights  by  the  forms  of  law,  or  to  obtain  any 
object  forbidden  by  law,  falls  within  this  rule. 

COMMISSION  is  the  compensation  al- 
lowed agents,  factors,  executors,  guardians, 
receivers,  trustees,  etc.,  and  such  persons  as 
manage  the  affairs  of  others,  in  recompense  for 
their  services.  The  right  to  such  allowance 
may  either  be  the  subject  of  a  special  contract, 
may  rest  in  an  implied  contract  to  pay  as  much 
as  the  services  are  worth,  or  may  depend  upon 
statutory  provisions.*  The  right  does  not  geiv 
erally  accrue  till  the  completion  of  the  services, 
and  does  not  then  exist  unless  proper  care,  skil 
and  perfect  fidelity  have  been  employed,*  and 
the  services  are  such  as  have  not  been  illegal  or 
against  public  policy.''  The  amount  of  such  com- 
missions is  generally  a  percentage  on  the  sums 
paid  out  or  received.  When  there  is  a  usage  of 
trade  at  the  particular  place  or  in  the  particular 
business  in  which  the  agent  is  engaged,  the 
amount  of  commission  allowed  to  auctioneers, 
brokers,  and  factors  is  regulated  by  such  usage." 
In  case  a  factor  guarantees  the  payment  of  the 
debt  he  is  entitled  to  a  larger  compensation 
(called  a  del  credere  commission)  than  is  ordin 
arily  given  for  the  transaction  of  similar  busi- 
ness, where  no  such  guaranty  is  made.i  The 
amount  which  executors,  etc.,  receive  is,  in 
general,  fixed  by  statute,  subject  to  modification 
in  special  cases  by  the  proper  tribunal.'' 

COMPROMISES  (agreements  made  be- 
tween two  or  more  parties,  as  a  settlement  of 
matters  in  dispute  between  them)  and  settle- 
ments are  sustained  by  the  law;'  they  are  also 
highly  favored."*  The  amount  in  controversy 
must,  however,  be  uncertain."  There  can  be 
no  ci>nipromise  of  a  criminal  offence.* 

COMPULSION.  Acts  done  under  com- 
pulsion are  not,  in  general,  binding  upon  a 
party ;  but  when  a  man  is  compelled  by  lawful 
authority  to  do  that  which  he  ought  to  do,  that 
compulsion  does  not  affect  the  validity  of  the 
act ;  as,  for  example,  when  a  court  of  compe- 
tent jurisdiction  compels  a  party  to  execute  a 
deed,  under  the  pain  of  attachment  for  con- 
tempt, the  grantor  cannot  object  to  it  on  the 
ground  of  compulsion.  But  if  the  court  con  - 
pelled  a  party  to  do  an  act  forbidden  by  law, 
or  had  not  jurisdiction  over  the  parties,  or  tlie 
subject-matter,  the  act  done  by  such  compul- 
sion would  be  void. 

341 ;  14  Johns.  119.  d-See  Shelf.  Marr.  &  D.  415,  45c; 
3  H.igg.  Eccl.  130,  133;  2  Greenl.  Ev.  \  51;  Bosc. 
Abordagf.  e-7  C.  &  P.  584  ;  9  Id.  559  :  8  Smith.  44f ; 
Sued.  Vend.  Auctioneer,  f-i  C.  &  P.  384;  4  Id.  280; 
7  Bingh.  99;  see  10  B.  &  C.  438.  g'-3  Camp.  451  ;'l 
Stark.  113;  9  Bingh.  287:  12  Pick.  328.  Il-i  Campb. 
M?;  4  Esp  179;  5  Taunt.  521;  3  B.  &  C.  639:  11 
Wheat.  258.  1-3  Chitty  Comm.  L.  221 ;  i  Parsons 
Contr.  84,  85  ;  Story  Ag.  326.  j-Paley  Ag.  88,  et  seg.; 
see  title  Agency.  K-12  Barb.  671  ;  Edw.  Receivers, 
1^6,  302,  643.  1-2  Strobh.  Eq.  258;  2  Mich.  145;  1 
'atts.  216;  2  Penn.  St.  531.     ni-6  Munf.  406;  i  Bibb. 


't 


168  ;  2  Id.  448 ;  4  Hawks.  178  ;  6  Watts,  321 ;  14  Conn 
12  ;  4  Met.  (Mass.)  270  ;  see  also  21  Eng.  L.  &  Eq.  199  ■ 
6  Monr.  91  ;  2  Rand.  442  ;  5  Watts,  259.  n-2  B.  &  Ad 
889;  I  Ad.  &  E.  106,  and  see  5  Pet.  114:  21  Penn.  St 
237 ;  20  Mo.  102  :  13  Pick.  284 ;  6  Bing.  (N.  C.)  62  ;  3 
M.  &  W.  648;  I  Bour.  Intt.  798.    o-i  Chitty.  Pr.  17. 


CONTRACTS. 


aoi 


CONCEALMENT  is  the  improper  con- 
cealment of  any  fact  or  circumstance  by  one 
of  the  parties  to  a  contract  from  the  other, 
which  in  justice  ought  to  be  known.  Conceal- 
ment when  fraudulent  avoids  the  contract,  or 
renders  the  party  using  it  liable  to  the  damage 
arising  in  consequence  thereof.P  But  it  must 
have  been  such  facts  as  the  party  is  bound  to 
communicate.'  A  concealment  of  extrinsic 
facts  is  not,  in  general,  fraudulent,  although 
peculiarly  within  the  knowledge  of  the  party 
possessing  them.'  And  the  rule  against  the 
concealment  of  latent  defects  is  stricter  in  the 
case  of  personal  than  of  real  property.*  Where 
there  is  confidence  reposed  concealment  be- 
comes more  fraudulent.' 

CONDITIONS,  limitations,  qualifications, 
•r  restrictions  which  modify  or  destroy  the 
original  act  or  contract  with  which  it  is  con- 
nected, and  clauses  having  for  their  object  the 
suspension,  recission,  or  modification  of  the 
original  agreement,  should  always  be  included 
and  appear  in  the  contract,  for  when  the  parties 
at  last  reduce  their  agreement  to  writing,  it  is 
looked  upon  as  the  final  consummation  of  their 
negotiations,  and  the  exact  expression  of  their 
purpose,  and  that  which  is  not  incorporated  in 
their  written  contract  will  be  considered  as  in- 
tentionally rejected." 

Conditions  are  affirmative  where  they  are 
positive ;  collateral  where  they  require  the  do- 
ing of  a  collateral  act  ;^  compulsory  where  they 
expressly  command  a  thing  to  be  done ;  con- 
sistent when  they  agree  with  the  other  parts  of 
the  contract ;  copulative  when  composed  of  dis- 
tinct parts  or  separate  conditions,  all  of  which 
must  be  performed — they  are  generally  condi- 
tions precedent,  but  may  be  conditions  subse- 
quent;* covert  when  implied;  disjunctive  when 
they  require  the  doing  of  several  things — if 
a  condition  become  impossible  in  the  cop- 
ulative it  may  be  taken  in  the  disjunctive ;'' 
express  when  created  by  express  words  -J  im- 
plied when  the  law  supposes  the  parties  to  have 
had  them  in  mind  at  the  time  the  transaction 
was  entered  into,  though  no  condition  was  ex- 
pressed ;*  impossible  wherein  they  cannot  be 
performed  by  natural  means;  lawful  when  al- 
lowed by  law ;  positive  when  the  event  or  act 
contemplated  is  required  to  happen ;  possible 
when  they  may  be  performed ;  precedent  when 
they  must  be  performed  before  the  act  or  obli- 
gation takes  effect — they  are  to  be  distinguished 
from  subsequent  conditions ;'  repugnant  when 
inconsistent  with,  and  contrary  to,  the  original 

p-7  Met.  (Mass.)  252  ;  16  Me.  30;  2  111.  344  ;  3  Bar- 
new.  &  C.  605 ;  10  Clark  &  F.  Ho.  L.  934.  q-3  Eng. 
L.  &  Eq.  17  ;  3  Conn.  413  ;  5  Ala.  (N.  S.)  596 :  1  Yeates, 
307;  5  Penn.  St.  467;  8N.  H.  463  ;  i  Dev.  351 :  18  Johns. 
403 ;  6  Humph.  36.  r-2  Wheat.  195  ;  i  Baldw.  C.  C. 
331;  14  Barb.  71 ;  a  Ala.  (N.  S.)  181  ;  but  sec  i  Miss. 
72;  I  Swanst.  54  :  4  M'Cord,  169.  s-6  Woodb.  &  M. 
C.  C.  358:  3  Campb.  50* ;  3  T.  R.  759.  t-9  B.  &C. 
577  ;  4  Met.  (Mass.)  381 ;  see  generally  2  Kent  Comm. 
482.  u-2  W.  Bl.  1249  ;  15  C.  B.  667 :  29  Eng.  L.  &  Eq. 
226 ;  II  Barb.  147  :  i  Blatch.  C.  C.  467  :  ^  Wilson,  275 ; 
13  Vt.  231  ;    Id.  681 ;    iB.  &C.634;    sCaines,  155;    i 

Johns.  414:  4  Taunt.  786.     v-Shepp.  Touchst.  117.     w- 
'owdl  Dev.  C.  '5-    »-Vinr-  Abr.  Cdnd.  (S.  b.)  (V.  b. 


act ;  restrictive  when  they  impose  a  restraint  ;*• 
single  when  they  require  the  doing  only  of  a 
single  thing;  subsequent  when  their  effect  is 
not  produced  until  after  the  commencement  or 
completion  of  the  obligation — the  condition  in 
a  mortgage  defeating  the  conveyance  is  a  com- 
mon example;  unlawful  when  forbidden  by 
law  ;  void  when  of  no  validity  or  effect;  void- 
able when  they  require  the  confirmation  or  rat- 
ification of  one  or  more  of  the  parties. 

Conditions  must  he  made  simultaneouslj 
with  the  original  contract  or  conveyance 
though,  in  the  absence  of  a  statute  to  the  con^^ 
trary,  they  may  be  by  a  separate  instrument  of 
writing.  They  are  then  considered  as  consti- 
tuting one  transaction  with  the  original.*  Un- 
lawful conditions  are  void.  Any  words  suitable 
to  indicate  the  intention  of  the  parties  may  be 
used  in  the  creation  of  a  condition.  "  On  con- 
dition "  is  the  common  form  of  commencement. 
The  words  of  condition  need  be  in  no  particular 
place  in  the  instrument."* 

Conditions  which  defeat  or  destroy  are  strictly 
construed,  while  those  which  limit,  extend  or 
vest  are  liberally  construed.*  The  condition 
of  an  obligation  is  said  to  be  the  language  of 
the  obligee,  and  for  that  reason  is  construed 
liberally  in  favor  of  the  obligor.'  But  when- 
ever an  obligation  is  imposed  by  a  condition 
the  construction  is  to  be  favorable  to  the 
obligee. K 

Where  conditions  are  liberally  construed  a 
strict  performance  is  required,  and  a  less  exact 
or  strict  performance  is  allowed  wherethere  is 
a  strict  construction  of  the  condition.  Perform- 
ance should  be  complete  and  elTectual.''  An 
inconsiderable  casual  failure  to  perform  is  not 
non-performance.*  Any  one  who  has  an  inter- 
est in  the  matter  may  perform  the  condition,  but 
a  stranger  will  derive  no  benefit  from  perform- 
ing it.J  Conditions  precedent  can  generally  be 
exactly  performed;  and  equity  will  not  gen- 
erally interfere  to  avoid  the  consequences  of 
non-performance.*  But  in  cases  of  conditions 
subsequent  equity  will  interfere  where  there  is 
even  a  partial  performance,  or  where  there  is 
only  a  delay  of  performance.'  Generally,  where 
no  time  of  performance  is  limited,  he  who  has 
the  benefit  of  the  contract  may  perform  the  con- 
dition when  he  pleases,  at  any  time  during  his 
life,"  and  need  not  do  it  when  requested."  But 
if  a  prompt  performance  be  necessary  to  carry 
out  the  will  of  a  testator,  the  beneficiary  will 
not  have  a  lifetime  in  which  to  perform  the  con- 
dition."    In  this  case  no  previous  demand  is 

2.)  y-Co.  Litt.  328.  «-Shepp.  Touchst.  117.  «-AU 
conditions  must  be  precedent  or  subsequent.  b-Shepp. 
Touchst.  118.  c-5  S.  &  R.  375  ;  7  Watts  &  S.  335  ;  3 
Hill, 95;  3Wend.  208;  10  Ohio,  433  ;  loN.  H.64;  2 
Me.  132;  7  Pick.  157;  6  Blackf.  113.  d-i  T.  R.  645;  6 
Id.  668.  e-Crabbe  R.  Prop,  g  2130;  17  N.  Y.  34  ;  4 
Gray,  140;  35  N.  H.  445  :  18  III.  431 ;  15  How.  323.  I' 
Co.  Litt.  42,  a.,  183,  a.;  2  Parsons  Contr.  22  ;  Snepp. 
Touchst.  37s;  6  Dyer,  14  b.,  17  a.;  i  Johns.  267.  g-i 
Sumn.  C.  C.  440.  n-i  Rolle  Abr.  425.  1-6  Dana,  44, 
17  N.  Y.  34.  j-io  S.  &  R.  186.  It-3  Ves.  Ch.  89 ;  I 
Atk.  Ch.  ^61 :  3  Id.  330;  West,  350;  2  Brown  Ch.  431. 
1-Crabb,  R.  Rop.  §  2160;  4  Ind.  428:  26  Me.  525.  nt- 
Plovrd.  16  Co.  Litt.  >o8,  b.    11-5  S.  &  R  384. 


aoa 


CONTRACTS. 


necessary.*  BtA  even  then  a  reasonable  time 
is  allowed.' 

If  a  place  be  agreed  upon,  neither  party  alone 
can  change  it,  but  either  may  with  the  consent 
of  the  other.i 

Non-performance  of  a  condition  which  was 
possible  at  the  time  of  its  making,  but  which  has 
since  become  impossible,  is  excused  if  the  im- 
possibility is  caused  by  act  of  God,'  or  by 
act  of  law,  if  it  was  lawful  at  its  creation  ;"  or 
by  act  of  the  party,  as  when  the  one  imposing 
the  obligation  accepts  another  thing  in  satisfac- 
tion, or  renders  the  performance  impossible  by 
his  own  default.'  If  the  performance  of  one 
part  becomes  impossible  by  act  of  God,  the 
whole  will,  in  general,  be  excused." 

Confidence.     See  Trust,  etc.,  below. 

CONFIRMATION  is  a  contract  making 
firm  and  unavoidable  that  which  was  before 
voidable.  When  a  party,  acting  for  himself  or 
by  a  previously  authorized  agent,  has  attempted 
to  enter  into  a  contract,  but  has  done  so  in  an 
informal  or  invalid  manner,  he  may  confirm  the 
act  and  thus  render  it  valid.  It  will  then  take 
effect  as  between  the  parties  from  the  making 
of  the  original  contract.*  To  make  a  valid 
confirmation  the  party  must  be  apprized  of  his 
rights,  and  where  there  has  been  a  fraud  in  the 
transaction  he  must  be  aware  of  it,  and  intend 
to  confirm  his  contract.*  A  confirmation  may 
make  a  defeasible  or  voidable  contract  good, 
but  cannot  strengthen  or  make  valid  a  void  con- 
tract.*   See  Infants,  Personal  Relations. 

Consent.  See  Assent,  above;  Sales, below. 

CONSIDERATION  is  the  material  cause 
which  moves  a  contracting  party  to  enter  into 
a  contract.'  The  price,  motive,  or  matter  of  in- 
ducement to  the  contract,  a  compensation  or 
equivalent — whether  it  be  that  which  is  paid  or 
otherwise — or  the  inconvenience  suffered  by  the 
party  from  whom  it  proceeds. 

Consideration  is  concurrent  where  it  arises 
at  the  same — or  when  the  promises  are  simulta- 
neous; continuing  when  it  is  executed  only  in 
part ;  equitable  when  a  moral  consideration ; 
executed  when  received  oefore  the  obligor 
made  the  promise ;  executory  when  the  under- 
taking is  for  future  performance;  good  when 
of  blood  (kinship),  natural  affection,  natural 
duty,  generosity,  prudence,  and  the  like  ;*  gra- 

0-5S.&R.  385.  p-i  Rolle  Abr.  449.  q-i  Rolle, 
444;  iiVt.  612;  3  Leon,  260;  see  Performance,  be- 
low. r-10  Pick.  507.  8-4  Monr.  158  ;  i  Penn.  St.  495. 
t-2i  Pick.  389  ;  I  Paine  C.  C.  65a ;  6  Pet.  745  ;  i  Cow. 
339.  n-i  B.  &  P.  242  ;  Cro.  Elir.  280;  5  Co.  21  ;  i  Ld. 
Raym.  279.  v-See  Bout.  Inst.  n.  n.,  2067-2069.  w- 
See  I  B.  &  B.  Ch.  Jr.  353  ;  a  Sch.  &  L.  486 ;  la  Ves. 
Ch.  373;  I  Id-  215;  I  Atk.  Ch.  301  ;  8  Watts,  aSo.  x- 
Co.  Litt.  295.  y-2  BI.  Com.  443.  z-a  Johns.  52  ;  7  Id. 
:6  ;  10  Id.  293;  2  Bail.  588 ;  i  M'Cordf,  504  ;  2  Leigh. 
.',37:  20  Vt.  595  ;  iQ  Penn.  St.  248  ;  i  C.  &  P.  401.  a- 
2  .Mich.  381.  b-Chiity  Contr.  7:  Doct.  &  S.  179;  i  S. 
\.  P.  39,  40;  a  Pet.  182:  5  Cranch.  142,  150:  i  Litt. 
183:  3  Johns.  100;  14  H.  466:  8  N.  Y.  207:  6  Mass. 
58:  2  Bibb.  30:  2  J.  J.  Marsh,  222;  a  N.  H.97:  Wright, 
660:  5  W.  &  S.  427:  13  S.  &  R.  29:  12  Ga.  52;  24 
.Miss.  9;  4  111.  33;  s  Hurnph.  ip  :  4  Blackf.  388;  3  C. 
B.  321  ;  4  East.  55.  e-See  on  the  subject  of  considera- 
tion, articles  by  "  E.  L.  P.,"  Am.  L.  Reg.  for  March, 
May,  and  July,  1854,  where  cases  on  the  whole  topic 
«r?  C9lle?t?d.     <|-J  q.   B.  851  ;  5  A.  &  E.  548;  Smith 


tuitous  when  not  founded  on  such  a  depriva- 
tion or  injury  to  the  promisee  as  to  maiie  tiie 
consideration  valid  in  law  ;■  impossible  when 
it  cannot  be  performed  ;  moral  when  sufficient 
to  support  an  executed  contract,  and  valuable 
when  it  confers  some  benefit  upon  the  party  br 
whom  the  promise  is  made,  or  upon  a  thir^ 
party  at  his  instance  or  request ;  or  some  detri- 
ment sustained  at  the  instance  of  the  partj 
promising  by  the  party  in  whose  favor  the 
promise  is  made.'' 

Consideration  is  the  very  life  and  essence  of 
a  contract ;  and  a  contract  or  promise  for  which 
there  is  no  consideration  cannot  be  enforced  al 
law."  The  consideration  is  the  cause  of  thv 
contract,*  and  a  consideration  must  be  provided, 
where  the  contract  is  in  writing,  but  not  under 
seal,  as  much  as  if  the  contract  were  oral  only.* 
The  exception  to  this  rule  in  case  of  mercan- 
tile negotiable  paper  is  considered  elsewhere. 
Where  the  consideration  is  expressed  in  a 
written  contract,  no  other  can  be  proved'  unless 
there  are  words  to  indicate  other  considera- 
tions.8  Where  the  consideration  is  not  ex- 
pressed, it  may  be  proved. ''  And  where  the 
contract  declares  it  was  made  for  a  valuable 
consideration,  this  is  prima  facie  evidence  of 
such  consideration.' 

Adequacy.  If  the  consideration  is  valuable, 
it  need  not  be  adequate ;  that  is,  the  court  wil? 
not  inquire  into  the  exact  proportion  between 
the  value  of  the  consideration  and  that  of  the 
thing  to  be  done  for  it.i  But  it  must  have  some 
real  value ;  and  if  this  be  very  small,  this  cir- 
cumstance may,  even  by  itself,  and  still  more 
when  connected  by  other  indications,  imply  or 
sustain  a  charge  of  fraud.''  Mere  folly  or  want 
of  judgmeni:  will  not  defeat  a  contract.'  The 
courts  refuse  to  disturb  contracts  on  questions 
of  mere  adequacy.  When  adequacy  of  con- 
sideration becomes  material,  whether  it  exists 
is  a  question  for  the  court." 

Affection.  Natural  affection — the  afiection 
which  a  husband,  father,  brother,  a  wife, 
mother,  sister,  or  other  near  relative  naturally 
feels  towards  those  who  are  so  nearly  allied 
to  him — sometimes  supplies  the  place  of  a 
valuable  consideration  in  contracts.  Natural 
affection  is  a  good  consideration  in  a  convey- 
ance of  land. 

Cont.  p.  88,  n.;  1  La.  An.  192.  e-7  Conn.  57;  13  Id. 
170;  16  Me.  458;  4  Munt.  95;  i  Stew.  (Ala.)  51;  4 
Johns.   235;  9  Cowen,  778;  Cooke,  499;  6  Yerg.  418; 

6  Hals.  174.  The  consideration,  however,  need  not  b« 
expressed  in  the  writing.     It  may  be  proved  otherwise, 

7  Conn.  291 ;  4  Pick.  71  ;  26  Me.  397;  i  La.  An.  192  ; 
Comst.  335;  21  Vt.  292.  The  admission  of  a  considera- 
tion in  the  writing  is,  of  course, /r/;«a_/arsf  evidence 
of  its  existence,  16  Me.  394.  f-i  Johns.  129 ;  Gilpin, 
329;  5  Greenl.  232;  3  Johns.  506;  8  B.  Mon.  596;  6 
Md.  210.  if-7  Johns.  341.  h-4  Pick.  71 ;  7  Conn.  agt. 
i-i6  Me.  394  :  4  Mo.  33;  see  ao  Barb.  298.  j-ii  A.  & 
E.  983  ;  6  Id.  438-456  :  I  Met.  84 ;  23  Vt.  532 ;  2  Foster, 
(N.  H.)  246:  16  East.  372;  a  Cr.  &  M.  623;  9  Ves. 
246;  Ambl.  18;  2  Sch.  &  L.  395.  n.  (a.) ;  8  Ves.  133;  3 
Anst.  732  ;  20  Penn.  St.  303;  22  Id.  245.  k-is  E.  L.  & 
E.  loi,  S.  C;  15  Beav.  103  ;  Id.  435.  S.  C;  a  De  G.  M. 
&  G.  55;  7  Gill,  269  ;  o  Ga.  60;  19  Ala.  765;  8  Price, 
620:  I  Swanst.  ^29;  6  Md.  735.  I-i  Lev.  iii,  S.  C.;  1 
Keb.  569:  see  Chitty  Cont.  32;  a  Ld.  Raym.  2161^;  } 
H?fKj.  aS^.     m-3  Binj.  327. 


CONTRACTS. 


aOj 


Assignment  ov"  a  Debt  or  right  is  a  good 
consideration  for  a  promise  by  the  assignee.' 
So  the  assignment  of  a  debt  or  chose  in  action 
with  the  consent  of  the  debtor  is  a  good  con- 
sideration for  the  debtor's  promise  to  pay  the 
assignee.  It  is  merely  a  promise  to  pay  a  debt 
due,  and  the  consideration  is  the  discharge  of  the 
debtor's  liability  to  the  assignor.™  But  if  either 
transaction  amounts  to  maintenance,  which  is 
illegal,  the  consideration  fails,  and  the  promise 
is  void. 

Bills  of  Exchange,  Bonds  and  Promis- 
sory Notes  carry  with  them  prima  facie  evi- 
dence of  consideration."     See  this  title  above. 

Contrary  to  Morals,  etc.  Contracts 
which  are  incentive  to  crime,  or  of  which 
the  consideration  is  an  engagement  or  obliga- 
tion improperly  prejudicial  to  the  feelings  of  a 
third  party,  offensive  to  decency  ,or  morality, 
or  which  have  a  tendency  to  mischievous  or 
pevnicious  consequences,  are  void,  being  against 
sound  morals." 

Deposit.   See  title  Bailments,  Deposit. 

Equitable.   See  Moral,  below. 

Executed  considerations  are  those  which 
are  wholly  past.  An  executed  consideration 
will  not  generally  be  sufficient  to  support  a 
contract.  It  is  something  done  before  the 
obligor  makes  his  promise,  and  therefore  can- 
not be  a  foundation  for  that  promise  unless 
it  has  been  executed  at  the  request  (express  or 
implied)  of  the  promisor;  such  a  request  plainly 
implies  a  fair  and  reasonable  compensation.P 

Expressing.  The  consideration  in  simple 
contracts  if  not  expressed  must  be  proved, 
and  this  may  be  done  by  extrinsic  evidence."! 
If  expressed,  such  expression  is  prima  facie 
evidence  of  the  consideration.  Contracts,  un- 
der seal,  as  bonds  and  deeds,  judgments,  and 
negotiable  instruments,  imply  by  their  very 
nature  a  consideration,  and  in  the  absence  of 
an  expression  of  consideration  none  need  be 
proved. 

Failure  of  — .  A  want  or  failure  in  the 
whole  or  in  part,  of  the  consideration  of  a 
written  contract,  may  be  shown  as  a  defence, 
total  or  partial,  as  the  case  may  be,  in  an  action 
on  such  contract,  brought  by  one  who  is  not  an 
innocent  holder  in  good  faith. 

I-i  Sid.  212;  2  W.  Bl.  820;  4  B.  &  C.  sas,  S.  C. ;  7 
Dow.  &  R.  14  :  13  Q.  B.  549  ;  23  Vt.  532-;  7  Texag,  48  : 
a  Foster  (N.  H.)  185.  ni-i  Sid.  212;  2  W.  Bl.  820;  4 
B.  &  C.  525 ;  7  Dowl.  &  R.  14 ;  13  Q.  B.  548 ;  23  Vt. 
532;  7  Texas,  47;  22  N.   H.  185;  10  J.  B.  Moore,  34; 

2  Bingh.  437;  I  Cromp.  M.  &  R.  430;  Tyrwh.  116;  4 
T.  R.  690;  4  Taunt.  326;  22  Me.  484;  7  N.  H.  549. 
n-4  Bl.  Comm.  445.  0-2  Wils.  447;  Cowp.  729:  4 
Campb.  152;  I  B.  &  Aid.  683:  16  East.  150.  p-i  Par- 
sons Contr.  391  ;  3  Bingh.  (N.  C.)  10;  6  M.  &  G.  153; 
t  Id.  538 ;  2  B.  &  C.  833  :  6  Id.  439 ;  8  T.  R.  308 ;  2 
111.  113;  14  Johns.  378;  12  Pick.  393 ;  2  Met.  Mass.  180; 

3  Id.  155 :  4  Mass.  574 :  12  Id.  328  ;  9  N.  H.  195  ;  21  Id. 
544;  7  Me.  76,  118 ;  20  Id.  275  :  24  Id.  349,  374 ;  27  Id. 
106;  I  Caines,  184;  7  Johns.  87;  7  Cow.  358;  2  Conn. 
404.  «-2  Ala.  51  ;  16  Id.  72:  21  Wend.  628:  9  Cow. 
778;  3N.  Y.  335;  7  Conn.  57,  291 ;  13  Id.  170;  76  Me. 
394,  458  :  4  Munf.  95  ;  Cooke,  499  ;  4  Pick.  71 ;  26  Me. 
■\QT,  I  La.  An.  192;  21  Vt.  292  ;  4  Mo.  33.  r-13  Mass. 
216 ;  3  Burr.  1012 ;  10  Mass.  34  ;  i  Rep.  Const.  Ct.  467  : 
2  \'ott  &  M'C.  65  :   2  Robt.  258  ;  I  Overt.  438  ;  3  Call. 

7':  26  Me.  217:  2  Day,  437;  2  Danio.  139.  The 
liuiure  of  consideration  must  be  total,  5  Humph.  496;  4 


When  the  consideration  appears  to  be  valu 
able  and  sufficient,  but  turns  out  to  be  wholly 
false  or  a  mere  nullity,  or  where  it  may  have 
been  actually  good,  but  before  any  part  of  the 
contract  has  been  performed  by  either  party, 
and  before  any  benefit  has  been  derived  from 
it  to  the  party  paying  or  depositing  money  for 
such  consideration,  and  the  consideration  wholly 
fails,  the  promise  resting  on  such  a  considera- 
tion is  no  longer  obligatory,  and  the  party  pay- 
ing or  depositing  money  upon  it  can  recover  it 
back,"^  but  where  the  consideration  fails  only  in 
part,  the  principles  analogous  to  those  which 
govern  an  inquiry  into  the  adequacy  of  a  con- 
sideration would  be  applied  to  it.  .  If  there 
were  a  substantial  consideration  left,  although 
much  diminished,  it  would  still  suffice  to  sus- 
tain the  contract.  But  if  the  diminution  of 
failure  were  such  as  in  effect  and  reality  to  take 
away  all  the  value  of  the  consideration,  it 
would  be  regarded  as  one  that  had  wholly 
failed. 

But  where  a  person,  with  full  knowledge  of 
all  the  circumstances,  pays  money  voluntarily, 
and  without  compulsion  or  duress  of  person  or 
goods,  he  shall  not  afterward  recover  back  the 
money  so  paid." 

Forbearance.  An  agreement  to  forbear 
for  a  time  proceedings  to  enforce  a  well- 
founded  claim  is  a  valid  consideration  for  a 
promise.'  But  this  consideration  fails  if  it  be 
shown  that  the  claim  is  unsustainable  at  law  or 
in  equity,"  but  mere  proof  that  it  is  doubtful 
will  not  invalidate  the  consideration."  Nor  is 
it  necessary  that  the  forbearance  should  extend 
to  an  entire  discharge ;  any  delay,  which  is  real 
and  not  merely  colorable,  is  enough.^  Nor  is 
it  material  whether  the  proceedings  to  be  fore- 
borne  have  been  commenced  or  not,'  Nor 
need  the  agreement  to  a  delay  be  for  a  time 
certain ;  for  it  may  be  for  a  reasonable  time 
only,  and  yet  be  sufficient  consideration  for  a 
promise;'  but  the  actual  time  of  forbearance 
should  be  proved,  and  if  this  be  judged  by  the 
court  to  be  reasonable,  the  action  will  be  sus- 
tained ;*  but  where  the  stay  of  action  is  wholly 
uncertain,  or  such  as  can  be  of  no  benefit  to  the 
debtor  or  detriment  to  the  creditor,  it  is  not 
enough.* 

Conn.  428.  The  measure  of  damages  in  such  case  is  the 
sum  paid,  no  allowance  is  to  be  made  for  plaintiff's  loss 
and  disappointment,  i  Nott  &  M'Cord,  210;  5  Allen, 
306.  s-5  Cush.  117;  12  Pick.  7;  4  Met.  181;  6  Esp. 
26  n.;  5  Bing.  37;  i  Taunt.  359.  t-RoI.  Abr.  24  pi. 
33;  Com.  Dig.  iJ.  I  ;  3  Chitty  Com.  L.  66-67;  j  Bing. 
N.  C.444;  8  Id.  5:  7  A.  &  E.  19;  4  Greetil.  387:  4 
Johns.  237;  21  Penn.  St.  237;  2  Binn.  sd.;  i  Cush. 
168  ;  9  Barr,  147;  3  W.  &  S.  420;  20  Wend.  201  ;  Wright, 
434  ;  5  Humph.  19;  6  Leigh.  85  ;  i  Dougl.  (Mich.)  18S; 
20  Ala.  309;  13  111.  140.  11-2  Hall,  266;  4  Dev.  &  B. 
212;  4  East.  455;  I  B.  &  Ad.  604;  20  Ala.  309;  15  N. 
H.  119  :  2  C.  B.  548  ;  2  Leon.  105  :  Willes,  481 ;  i  Vent. 
159  ;  2  Wm.  Saund.  134  ;  Palm.  394  ;  Velv.  26  ;  March. 
202;  iStra.  94;  Latch.  141;  Popk.  177;  12  Barb.  685. 
V-5  B.  &  Aid.  117;  6  Munf  406  ;  11  Vt.  483  ;  4  Hawks. 
178.  W-6  Conn.  8i.;  here  the  delay  was  one  year ;  x 
Bulst.  41.;  here  the  delay  w.is  a  /ortnight  or  there- 
abouts ;  see  ante,  note  /.  x-Wade  vs.  Simeon,  2  C.  B. 
548;  2  Binn.  596.  y-4  Wash.  C.  C.  148;  i  Penn.  St 
38-  :  5  Rawie,  do,  79  ;  23  Vt.  235  ;  see  ante,  note  T.  Wt 
4  Greenl.  378:  H.-^rd.  S-  W-4  East.  455:  4  M.  4:  W 
795  ;  3  Penn.  St.  282  ;  9  Vt.  233. 


•04 


CONTRACTS. 


Good.  A  contract  upon  a  good  consider- 
ation is  considered  merely  voluntary,  but  is  good 
against  the  promisor  or  grantor  when  once  ex- 
ecuted,* but  void  against  creditors  and  subse- 
quent bona  fide  purchasers  for  value."  The 
term  is  sometimes  used  in  the  sense  of  a  con- 
sideration valid  in  point  of  law,  and  it  then 
includes  a  valuable  as  well  as  a  meritorious 
consideration.*  Generally,  however,  "  good  " 
is  opposed  to  "  valuable,"  which  see. 

Hire.     See  title  Bailments. 

Illegal  considerations  can  be  no  founda- 
tion or  cause  for  a  contract.  Violations  of 
morality,  decency,  and  policy,  as  contracts  to 
commit,  conceal,  or  compound  crime,  are  in 
contravention  of  law.  So,  also,  with  a  con- 
tract for  future  illicit  intercourse,  or  in  fraud 
of  a  third  party,  or  the  like.  In  general,  if  any 
part  of  the  entire  consideration  for  a  promise, 
or  any  part  of  an  entire  promise,  be  illegal,  the 
whole  contract  is  void  ;•  because  public  policy 
will  not  permit  a  party  to  enforce  a  promise 
which  he  has  obtained  by  an  illegal  act  or  an 
illegal  promise,  although  he  may  have  con- 
nected with  this  act  or  promise  another  which 
is  legal.  But  if  one  gives  a  good  and  valid  con- 
sideration, and  thereupon  one  promises  to  do 
two  things,  one  legal  and  the  other  illegal,  he 
shall  be  held  to  that  which  is  legal,'  unless  the 
two  are  so  mingled  and  bound  together  that 
they  cannot  be  separated,  in  which  case  the 
whole  promise  is  void.  Where  the  considera- 
tion is  altogether  illegal,  it  is  insufficient  to  sus- 
tain a  promise,  and  the  agreement  is  wholly  void. 
See  next  paragraph. 

Immoral.  Contracts  for  an  immoral  con- 
sideration are  generally  void.  An  agreement 
in  consideration  of  future  illicit  cohabitation 
be:tween  the  parties,*  an  agreement  for  the 
value  of  immoral  and  libellous  pictures,*  or  for 
piinting  a  libel,*  or  for  an  immoral  wager.i  can- 
not, therefore,  be  enforced  ;  for  whatever  arises 
from  an  immoral  or  illegal  consideration  is  void. 
It  is  a  general  rule  that  whenever  an  agreement 
appears  to  be  illegal,  immoral,  or  against  public 
policy,  a  court  of  justice  leaves  the  parties 
where  it  finds  them.  When  the  agreement  has 
been  executed  the  court  will  not  rescind  it ;  when 
executory  the  court  will  not  aid  its  execution.* 

Impossible  considerations  are  wholly  bad 
and  insufficient,  and  a  contract  founded  thereon 
is  void.  But  this  impossibility  must  be  a  natural 
or    physical    impossibility.*      A    consideration 

b-Fonbl.  Eq.  B.  i,  C.  5,  g  2 :  Chitty  Cr.  28.  c-Cowp. 
705;  Q  East.  55;  7  T.  R.  475  ;  10  B.  &  C.  606.  d-3 
Cramch.  140;  i  Aik.  6oi ;  24  N.  H.  302  :  2  Madd.  Ch. 
340:  3  Co.  81 ;  Ambl.  598  ;  i  Ed.  Ch.  167  ;  Newland 
Contr.  386:  Atherby  Marr.  Sett.  Tgr.  e-2  Wils.  347; 
«  E.  L.  &  E.  113;  6  Dana,  91  ;  3  Bibb.  500;  9  Vt.  23; 
II  Wheat.  258;  II  Vt.  592:  26  Vt.  184:  22  Me.  483;  5 
Barr.  452;  4  Pick.  314;  2  Gray,  258;  14  Sm.  &  M.  18; 
a  Cart.  (Ind.)  392;  7  Foster  (N.  H.)  230;  27  Miss.  13; 
10  E.  L.  &  E.  424,  S.  C. ;  17  Q.  B.  785 ;  19  Barb.  291. 
f-Lcy.  79  ;  8  East.  236  ;  Hob.  14  ;  3  Comst.  37 ;  6  E.  F. 
Moore,  152;  18  Penn.  St.  50.  jr-3  Burr.  1568 ;  i  Esp. 
13;  1  B.  &  P.  340,  341.  h.4  fip.  97.  1-2  Stark.  107. 
J-Inst.  3,  20,  24.  k-4  Ohio,  419  :  4  Johns.  41a  ;  11  Id. 
j88;  12  Id.  306;  19  Id.  341  ;  3  Cow.  213;  2  Wils.  341. 
1-Platt  Cor.  569  ;  3  Chitty  C.  L.  loi  ;  3  B.  &  P.  296,  n.; 
«  T.  R.  718  ;  7  Ad.  &  E.  798 ;  i  Pet.  91,  331 ;  5  Taunt. 


which  one  cannot  perform  without  a  breach  of 
the  law  is  bad,  and  so  is  one  which  cannot  be 
performed  at  all."  The  reason  is  obvious; 
from  such  consideration  no  possible  benefit  or 
advantage  could  be  derived  by  the  one  party, 
nor  detriment  to  the  other.  But  a  prqmise  is 
not  void  merely  because  it  is  difficult  or  even 
improbable.  And  it  seems  that  if  the  impossi- 
bility applies  to  the  promisor,  personally,  there 
being  neither  natural  impossibility  in  the  thing, 
nor  illegality  nor  immorality,  then  he  is  bound 
by  his  undertaking,  and  it  is  a  good  considera- 
tion for  the  promise  of  another,"  because  if  a 
party  binds  himself  to  such  an  undertaking,  he 
may  either  procure  the  thing  to  be  done  by 
those  who  can  do  it,  or  else  pay  damages  for 
not  doing  it. 

Kinds.  Considerations  are  good  or  valu' 
able.  A  good  consideration  is  such  as  that  of 
blood,  or  of  natural  love  and  affection,  where 
a  man  grants  an  estate  to  a  near  relation,  being 
founded  on  motives  of  generosity,  prudence, 
and  natural  duty.*  A  valuable  consideration  is 
usually  in  some  way  pecuniary  or  convertible 
into  money."  An  equitable  consideration  is 
valid  between  parties,  although  it  be  not  valu- 
able ;  but  only  a  valuable  consideration  is  valid 
as  against  a  third  party  as  a  subsequent  pur- 
chaser,!"  whose  debt  existed  when  the  contract 
was  made ;  an  attaching  creditor,  or  the  like. 
A  mere  moral  consideration  is  nothing.'^ 
Labor.  See  Work,  etc.,  below. 
Litigation.  The  prevention  of  litigation 
is  not  only  a  sufficient  but  a  higlily-favored 
consideration,'  and  no  investigation  into  the 
character  or  value  of  the  different  claims  sub- 
mitted will  be  entered  into  for  the  purpose  of 
setting  aside  a  compromise,  it  being  sufficient 
if  the  parties  entering  into  the  compromise 
thought  at  the  time  that  there  was  a  question 
between  them.* 
Loan.  See  title  Bailments. 
Mandate.  See  title  Bailments. 
Marriage  is  a  valuable  consideration, 
though  it  be  not  convertible  into  money,  nor  of 
pecuniary  value.' 

Moral  Obligations  are  often  said  to  be 
a  sufficient  consideration.  It  is  a  rule,  how- 
ever, that  such  moral  obligation  must  have 
once  been  valuable  and  enforcible  by  law,  but 
has  ceased  to  be  so  by  the  statute  of  limitations, 
or  by  the  intervention  of  bankruptcy.  The 
claim,  in  such  case,  remains  equally  as  strong  on 

249 ;  2  M.  &  S.  89  ;  8  Bingh.  68.  m-s  Vin.  Abr.  110, 
III ;  C.  a.  D.  a.;  i  Rol.  Abr.  419;  Co.  Litt.  206,  a.;  23 
Am.  Jur.  20-22;  3  T.  R.  17;  a  B.  &  C.  474.  n-Co. 
Litt.  206,  a.  n.;  i  Piatt  onCov.  569  ;  Chitty  Com.  Law, 
loi :  3  B.  &  P.  296,  n.;  6  T.  R.  718  ;  7  A.  &  E.  798 ;  i 
Pet.  C.  C.  91;  Id.  221.  02  Bl.  Com.  297,  3  J.J. 
Marsh,  473-  p-io  B.  &  C.  606;  Chitty  on  Cont.  28. 
q-^  M.  &  W.  501  ;  II  A.  &  E.  438.  r-r  Ves.  Sen.  444 ; 
I  Chanc.  158:  I  Atk.  3;  17  Pick.  470;  4^.507;  Co. 
29 ;  K.  L.  &  E.  429,  S.  C.  ;  10  Exch.  569  ;  Com.  Dig. 
A.  I,  B.  i;  2  Strob.  Eq.  258;  3  Mich.  145;  i  Watu, 
216;  Add.  56;  2  Penn.  St.  531 :  6Munf.  406:  i  Bibb, 
168  ;  2  Id.  448 ;  4  Hawks.  78  ;  6  Watts,  321 ;  14  Conn. 
12  ;  I  W.  &  S.  456 :  4  Met.  Mass.  270.  ■-21  Eng.  L.  & 
E.  199;  6  Monr.  91 ;  2  Rand.  (Va.)  442;  5  Watts,  sjo; 
21  Cal.  122.  t-3  Cow  537;  i  Johns.  Ch.  261 .  Addis. 
976:  II  Leigh.  136;  7Pet.  34S;  6  Dans,  89;  *aMe.3y4. 


CONTRACTS. 


aos 


the  conscience  of  the  debtor.  The  rule  amounts 
only  to  a  permission  to  waive  certain  positive 
rules  of  lawr  as  to  remedy."  If  the  moral  duty 
were  once  a  legal  one  which  could  have  been 
made  available  in  defence,  it  is  equally  within 
the  rule.^ 

Promises.  Mutual  promises  made  at  the 
same  time  are  concurrent  considerations,  and 
will  support  each  other  if  both  be  legal  and 
binding."  And  it  is  so  previous  to  perform- 
ance and  without  performance.  As,  if  one 
promises  to  become  a  partner,  and  another 
promises  to  receive  him  into  the  firm,  both  of 
these  promises  are  binding,  each  being  suffi- 
cient consideration  for  the  other.*  If  one 
promise  to  teach  a  certain  trade,  this  is  a  con- 
sideration for  a  promise  to  remain  with  the 
party  a  certain  length  of  time  to  learn,  and 
serve  him  during  that  time  ;  but  without  such 
promise  to  teach,  the  promise  to  remain  and 
serve,  though  it  be  made  in  expectation  of  in- 
struction, is  void.y  The  reason  of  this  is,  that 
a  promise  is  not  a  good  consideration  for  a 
promise  unless  there  is  an  absolute  mutuality 
of  obligation,  so  that  each  party  has  the  right 
at  once  to  hold  the  other  to  a  positive  agree- 
ment.* A  promise  to  accept  and  pay  for  goods 
is  a  good  consideration  for  a  promise  to  deliver 
them,'  for  the  buyer  may  tender  the  price  and 
demand  the  goods ;  and  the  seller  may  tender 
the  goods  and  demand  the  price.*  The  excep- 
tion to  this  rule  is  in  case  of  contracts  between 
infants  and  persons  of  full  age;  the  promise 
of  an  infant  is  a  consideration  for  the  promise 
of  an  adult,  though  the  infant  may  avoid  his 
contract,  while  the  adult  cannot." 
Services.  See  Work,  etc.,  below. 
Strangers'  Rights.  A  third  party  may 
maintain  an  action  on  a  promise  made  to  another 
for  his  benefit,*  for  such  promise  is  to  be  deemed 
made  to  the  third  party,  if  adopted  by  him, 
though  he  was  not  cognizant  of  it  when  made." 
Subscriptions  for  shares  in  a  chartered 
company  rest  upon  a  sufficient  considera- 
tion, for  the  company  is  obliged  to  give  the 
lubscriber  his  shares,  and  he  must  pay  for 
tiem.'  Concerning  voluntary  subscriptions  for 
diaritable  purposes,  there  is  much  confusion 

tl-2  Bl.  Comm.  443;  Cowp.  290;  3  B.  &  P.  249,  n.; 
3  East.  506 ;  3  Taunt.  312 ;  5  Id.  36;  Yelv.  41,  b.  n. ;  8 
Mass.  127;  3  Pick.  207;  19101.429:  6  Cush.  238  ;  20 
Ohio,  332;  5  Id.  58;  24  Wend.  97;  24  Me.  561;  2  Bail. 
420;  iVjohns.  259;  79  Id.  147;  14^.178-378;  1  Cow. 
249;  7  Conn.  57;  1  Vt.  420;  5  Id.  173;  3  Penn.  172;  5 
Penn.  33;  12S.  &R.  177;  17  Id.  126;  14  Ark.  267;  i 
Wis.  131 ;  21  N.  H.  129  ;  4  Md.  476.  v-5  Barb.  556 ;  2 
Sandf.  311 .  25  Wend.  389;  10  6.  Mon.  382:  8  Tex. 
397.  w-Hob.  88  ;  I  Sid.  180;  4  Leon.  3;  Cro.  E.  543; 
0  B.  &  C.  840;  3  B.  &  Ad  703;  I  Caines,  45:  8  Rich. 
L.  416 ;  5  Texas,  512  ;  37  Maine,  442 ;  19  Barb.  428 ;  25 
Penn.  St.  481  :  «  Hall,  405;  i  Murphy,  287.  x-2  M.  & 
Scott.  89,  S.  C;  oBing.  68.  y-2  Mo.  &  P.  86,  S.  C; 
5  Bing.  34 ;  9  A.  &  E.  603,  S.  C.;  i  Per.  &  D.  463 ;  3 
Dow.  &  R.  676 ;  5  B.  &  Add.  1019.  *-4  Kas.  379 ;  2  Id. 
13s;  13  111.  140;  12  Barb.  502;  Hob.  88;  Peake,  227:  6 
B.  &  C.  255 ;  5  M.  &  W.  241 ;  25  E.  L.  &  E.  478,  S.  C; 
9  Exch.  507;  12  How.  126;  3  E.  L.  &  E.  420,  S.  C;  16 
Q.  B.  239 ;  28  E.  L.  &  E.  579,  S  C;  10  Exch.  283 ;  5 
Man.  &  G.  131 ;  8  Pick.  392 ;  7  How.  (Miss.)  508.  a-2 
Hall,  405.  b-2  Hall,  405;  17  Me.  372;  19^.74.  c-9 
Met.  Mass.  519 ;  7  Watts,  412 ;  s  Cow.  475 ;  7  Id.  22  ;  i 
D.  Chip.  453 ;  I  A.  K.  Manh,  76 ;  a  Bail.  497;  3  M.  & 


of  authorities.'  Subscriptions  to  a  conunoa 
object  are  not  usually  mutual  nor  really  concur- 
rent, and  can  be  held  and  enforced  only  on  the 
grounds  of  public  policy.''  A  subscription  to  be 
binding  ought  to  be  a  promise  to  some  particu- 
lar person  or  committee.  There  should  be  an 
agreement  on  the  part  of  such  person  or  com- 
mittee to  do  something  on  their  part,  as  to  pro- 
vide material  to  erect,  extend,  or  repair  a 
building,  or  the  like.'  If  advances  were  fairly 
authorized  and  have  been  made  on  the  strength 
of  the  subscriptions,  it  is  sufficient  to  make  them 
obligatory.!  Where  several  promise  to  con- 
tribute to  a  common  object,  desired  by  all,  the 
promise  of  each  may  be  a  good  consideration 
for  the  promise  of  others.''  In  general,  the 
subscriptions  on  certain  conditions  in  favor  of 
the  party  subscribing  are  binding  when  the  act* 
stipulated  are  performed.' 

Time.  Considerations  may  be  of  the  pa«t, 
of  the  present,  or  of  the  future.  When  tlie 
consideration  and  the  promise  founded  upon  it 
are  simultaneous,  then  the  consideration  is  of 
the  present  time ;  the  whole  agreement  is  com- 
pleted at  once.  When  a  consideration  is  to  do 
a  thing  hereafter,  it  is  of  the  future,  and  is  said 
to  be  executory ;  when  the  promise  to  do  this  is 
accepted,  the  latter  promise  rests  on  a  sufficient 
foundation,  and  is  obligatory."  When  a  consid- 
eration is  wholly  past,  it  is  said  to  be  executed. 

Generally,  a  past  or  executed  consideration 
is  not  sufficient  to  sustain  a  promise  founded 
upon  it,  unless  there  was  a  request  for  the  con- 
sideration previous  to  its  being  made.  Without 
such  previous  request  a  subsequent  promise  has 
no  force.  But  this  previous  request  need  not 
always  be  express,  or  proved,  because  it  is  often 
implied.  As  where  one  accepts  or  retains  the 
beneficial  result  of  such  voluntary  service.  And 
where  one  is  compelled  to  do  for  another  what 
that  other  should  do,  and  was  compellable  to 
do ;  here,  also,  the  law  implies,  not  only  a  pre- 
vious request  that  the  thing  should  be  done, 
but  also  a  promise  to  compensate  for  the  doing 
of  it ;°  as  where  one  is  surety  for  another,  and 
pays  the  debt  which  the  other  owes.  And 
where  one  does  voluntarily  that  which  he  is  not 

S.  205;  2Str.  937;  see  tit.  Infants,  d-22  Am.  Jur. 
16-50;  2  Watts,  104;  17  Mass.  400:  1  Hall,  347;  11 
Mass.  i';2,  n.  (a.);  15  Me.  285;  17  Mass.  575;  10  Id. 
287 ;  4  l)enio,  97 ;  9  Penn.  St.  229 ;  2  Met.  381 ;  i  Vent. 
318;  7  Cush.  317;  3  Pick.  83:  2  A.  K.  Marsh,  496;  7 
Com.  347;  I  Caines,  45;  16  Barb.  561.  e-20  N.  V.  (• 
Smith)  268;  42  Penn.  St.  49.  f- Parsons  Contr.  377;  16 
Mass.  94;  8  Id.  138:  21N.  H.247;  34  Me.  360;  15 
Barb.  249  ;    5  Ala.  (N.  S.)  787;    22  Me.  84;    0  Vt.  289. 

fr  6  Met.  Mass.  310.  h-See  4  N.  H.  533;  6  Id.  164;  7 
d.  435  :  5  Pick.  506  ;  2  Vt.  48 ;  9  Id.  289  ;  5  Ohio,  58. 
l-ii  Mass.  114  ;  2  Pick.  579 ;  24  Vt.  189  ;  9  Barb.  202  ; 
10  Id.  309  ;  9  Gratt.  633  ;  42  Am.  Jur.  28i-i?83 ;  4  Me. 
382;  2  Denio,  403;  i  N.  Y.  581 ;  2  Cart.  Ind.  555  ;  n 
Pick.  541.  j-i2Mass  190;  14  Id.  172;  i  Met.  Mass. 
570 :  5  Pick.  228  ;  19  Id.  73 ;    4  III.  19 ;    2  Humph.  335 ; 

2  Vt.  48;  5  Ohio,  58  ;  9  Barb.  202.  k-6  N.  H.  164;  4 
Id- 533:  5  Pick.  506:  9Vt.  289:  4  Id.  48;  5  Hamm. 
58;  II  Mass.  114;  2  Pick.  579:  24  Vt.  189;  6Md.  113; 
20  Penn.  St.  260;  9  Barb.  202;  10  Id.  309;  9  Gratt.  633: 

3  Seld.  349 ;  2  Denio,  403,  S.  C;  i  Comst.  581 ;  2  Cait. 
(Ind.)  555;  37  Penn.  St.  210.  I-I2  Pick.  541.  m-j 
Md.  67;  17  Me.  303;  24  Wend.  285;  17  Pick.  407;  1 
Speers,  368.  n-2  B.  &  Ad.  833 ;  6  B.  &  C.  439;  IT 
R.  308 ;  3  Bing.  N.  C.  10;  6  M,  &  W.  153. 


lo6 


CONTRACTS. 


compellable  to  do,  for  another  who  is  compel- 
lable to  do  it ;  as  if  one  who  is  not  surely,  nor 
bound  in  any  way,  pays  a  debt  due  from  another, 
he  has  not  the  same  claim  and  right  as  if  he 
had  been  compellable  to  pay  this  debt ;  for 
now  the  law,  if  there  be  a  subsequent  promise 
to  repay  the  money,  will  indeed  imply  a  previ- 
ous request;"  the  reason  is,  that  the  debtor 
«^hall  not  be  obliged  to  accept  another  parly  as 
his  creditor  without  his  consent,  for  he  may  have 
partial  defences,  or  other  reasons  for  arranging 
the  debt  with  him  to  whom  it  is  due,  and  not 
with  another ;  but  if  the  debtor  choose  to  promise 
iiini  repayment  he  is  held  to  such  promise  and  the 
consideration,  though  executed,  is  sufficient. 

Trust  and  Confidence.  If  one  intrusts 
money,  goods,  or  property  of  any  kind,  to 
any  person,  on  the  faith  of  that  person's  prom- 
ise to  act  in  a  certain  way  in  reference  to 
such  money,  goods,  or  property,  such  person 
having  accepted  the  trust  will  be  held  to  his 
promise,  because  the  trust  is  itself  a  sufficient 
consideration  for  a  promise  to  discharge  and 
execute  the  trust  faithfully. p  For  if  a  person 
makes  a  mere  gratuitous  promise,  and  then  en- 
ters upon  the  performance  of  it,  he  is  held  to  a 
full  execution  of  all  he  has  undertaken.*! 

Valitable  considerations  are  the  only  ones 
which  are  good  against  subsequent  purchas- 
ers and  attaching  creditors,  and  these  are 
always  sufficient  if  rendered  at  the  request,  ex- 
])rass  or  implied,  of  the  promisor.'"  A  valuable 
consideration  is  usually  in  some  way  pecuniary 
or  convertible  into  money;  and  a  very  slight 
consideration,  provided  it  be  valuable  and  free 
from  fraud,  will  support  a  contract."  The 
'jivilians  divided  it  into  four  classes,  viz. :  i. 
■•  I  give  that  you  may  give."  2.  "  I  do  that 
vou  may  do."  3.  "  I  do  that  you  may  give." 
4.  "  I  give  that  you  do."  See  Good  ;  Kinds  ; 
and  the  various  paragraphs  on  the  subject  of 
consideration,  above  and  below. 

Void  in  Part.  If  one  or  more  of  sev- 
eral considerations,  which  are  recited  as  the 
ground  of  a  promise,  be  only  frivolous  and  in- 
sufficient, but  not  illegal,  and  the  others  are 
good  and  sufficient,  then  the  consideration  may 
be  severed,  and  those  which  are  void  disre- 
garded, while  those  which  are  valid  will  sustain 
the  promise.*  But  where  the  consideration  is 
entire  and  incapable  of  severance,  it  must  be 
wholly  good  or  wholly  bad.  If  the  promise  be 
entire,  and  not  in  writing,  and  a  part  of  it  relate 
to  a  matter  which,  by  ihe  statute  o(  frauds,  should 
l>e  promised   in  writing,  such  part  being  void 

O-i  B.  &  Aid.  104  ;  t  Cr.  &  M.  819  ;  14  Johns.  373  ; 
?2  Pick.  393;  3  Met.  155.  |>-Dial.  2  c.  24;  2  Ld. 
Raym.  919  :  2  A.  &  £.  256  ;  10  Moore,  182  ;  2  Bin^. 
464  :  McClel.  &  Y.  205 ;  6  Dow  &  R.  443,  S.  C;  4  B. 
Sc  C.  345;  a  M.  &  W.  143  ;  Cro.  J.  668  ;  13  Ired.  39  ;  i 
Pet.  &  D.  3;  Smith  L.  Cas.  I  p.  99,  ed.  1841.  q-See 
title  Bailments.  r-Dyer,  172,  n.;  i  Rolle  Abr.  it; 
PI.  2,3:  1  Ld.  Raym.  312 ;  i  Wras.  Saund.  264,  n.  1.; 
-,  Biiigh.  (N.  C.)  7<o :  6  Ad.  &  E.  718  ;  3  C.  &  P.  36  ;  6 
,M.  &W.  485:  2  Stark.  201;  2Str.  933;  3  Q.  B.  234 ; 
Cro.  Elir.  442  ;  F.  Moore,  643 ;  5  Johns.  273  ;  2  Id.  442  ; 
I  M'Cord,  22.  s-2  How.  426;  I  Met.  Mass.  84;  12 
•Mass.  365:  12  Vt.  259;  23  Id.  532;  29  Ala.  (N.  S.)  188; 
JO  Penn.  St.  803  ;  22  N.  H.  246 ;  11  Ad.  &  E.  983 ;  6  Id. 
438r  45^ :  16  East.  372  ;  9  Ves.  Ch.  346 ;  a  Crompt.  &  M. 


avoids  the  whole  contract ;"  but  if  it  be  such  in 
ils  nature  that  it  may  be  divided,  and  the  part 
not  required  to  be  in  writing  by  the  statute  may 
be  enforced  without  injustice  to  the  promisor, 
that  portion  of  the  agreement  will  be  binding.' 
Work,  Services,  and  Labor.  Work 
and  service  are  a  very  common  considera- 
tion for  a  promise,  and  always  sufficient,  if 
rendered  at  the  request  of  the  party  promising.'' 
This  request  may  often  be  implied ;  it  is  so^ 
generally,  from  the  fact  that  the  party  making, 
the  promise  accepts  and  holds  the  benefit  result- 
ing from  the  work  or  service.*  And  it  is  an 
equally  sufficient  consideration  for  a  promise  if 
the  work  or  service  be  rendered  to  a  third  party 
at  the  request  of  the  promisor.^ 

'If  the  work  and  service  rendered  are  merely 
gratuitous,  and  performed  for  the  defendant 
without  his  request  or  privity,  however  merito- 
rious or  beneficial  they  may  be,  they  afford  no 
cause  of  action.*  So,  if  a  workman  employed 
and  directed  to  do  a  particular  thing  chose  to 
do  some  other  thing,  without  the  direction  or 
assent  of  his  employer,  the  implied  promise  of 
the  employer  to  pay  for  his  labor  will  not  ex- 
tend to  the  new  work  ;*  but  if  the  work  is  ac- 
cepted by  the  employer,  it  would  be  a  sufficient 
consideration  for  a  promise  to  pay  for  it,  and 
such  acceptance  might  imply  such  promise. 

CONSTRUCTION  is  determination  of 
the  meaning  and  application  as  to  the  matter  in 
question  of  the  provisions  of  a  written  instru- 
ment— drawing  conclusions  respecting  subjects 
that  lie  beyond  the  direct  expressions  of  the 
term.''  A  strict  (or  literal)  construction  is  one 
which  limits  the  application  of  the  provisions 
of  the  instrument  or  agreement  to  cases  clearly 
described  by  the  words  used.  A  liberal  (or 
equitable)  is  one  by  which  the  letter  is  enlarged 
or  restrained  so  as  to  more  effectually  accomplish 
the  end  in  view. 

A  leading  principle  of  construction  is  to  carry 
out  the  intention  of  the  authors  of  or  parties  to 
the  instrument  or  agreement,  so  far  as  can  be 
done  without  infringing  upon  any  law  of  superior 
binding  force.  In  regard  to  cases  where  this  in- 
tention is  clearly  expressed,  there  is  little  room  for 
variety  of  construction ;  it  is  mainly  in  cases 
where  the  intention  is  indistinctly  disclosed, 
though  fairly  presumed  to  exist  in  the  minds  of  the 
parties,  that  any  liberty  of  construction  exists. 

What  a  contract  means  is  a  question  of  law. 
It  is  the  court  therefore  that  determines  the 
construction   of    the   contract."     If    there    are 

623;  Ambl.  18;  2  Sch.  &  L.  395,  n.  a.-  3  Anstr.  732. 
t-14  Pick.  198;  2C.  M.  &R.  48;  5  King.  N.  C.  341? 
II  A.  &  E.  1027;  I  Sid.  38  ;  1  Rol.  Abr.  ^o ;  pi.  2;  Cro. 
E.  149;  Id.  848:  Cro.  T.  i:?7:  2  Bing.  N.  C.  646.  u-7 
A.  &  E.  49,  S.  C;  iUcv.St.  P.  224;  7  'I'-  H.  203;  > 
Vent.  223  ;  lo  B.  &  C.  664  ;  2  Tvr.  93  ;  2  B.  &  C.  357; 
16  E.  L.  &  E.  466,  S.  C;  7  Exch'.  870  ;  6  Cush.  503  :  ji 
Gratt.  636;  2  Met.  (Ky.l  163.  V-6  Cush.  508;  11  Id. 
I  ;  2  Tyr.  93.     w-Dyer,  272,  n.;   1  Rol.  Abr.  11  pi.  2,  3; 

I  Ld.  Raym.  312.  x-i  Wm.  Saund.  264,  n.  i  ;  3  Bing. 
N.  C.  710;  20  Barb.  387.     y-Dyer.  272,  n.;  1  Rol.  A^r. 

II  pi.  2-3;  1  Ld.  Raym.  312.  at-Dyer,  272,  a.;  i  Rol. 
Abr.  II  p.  I  ;  3  Q.  B.  234 ;  Cro.  E.  442 :  Moore,  643;  3 
Ired.  Eq.  307;  5  Johns.  273  ;  Bartholomew  Z'j.  Jackson, 
20  Johns.  28.  a-i  M'Cord,  22  ;  2  Johns.  442.  b-Liebr* 
Leg.  81  Pol.  Herm.  ao.    c-8  M.  &  W.  806-833. 


CONTRACTS. 


iOJ 


Peculiar  expressions  used  in  it,  which  have,  in 
particular  places  or  trades,  a  known  meaning 
attached  to  them,  it  is  for  the  jury  to  say  what 
the  meaning  of  these  expressions  was,  but  for 
the  court  to  decide  what  the  meaning  of  the 
contract  was.* 

W;)rds,  if  of  common  use,  are  to  be  taken  in 
their  natural,  plain,  obvious,  and  ordinary  signi- 
fications ;  but  if  technical  words  are  used  they 
are  to  be  taken  in  a  technical  sense,  unless  the 
contrary  intention  clearly  appear  in  either  case 
from  the  context. 

All  instruments  and  agreements  are  to  be 
so  construed  as  to  give  effect  to  the  whole,  or 
as  large  a  portion  thereof  as  possible. 

Ambiguity.  See  above. 

CusTO.M  OR  Usage.  An  established  cus- 
tom may  add  to  a  contract  stipulations  not  con- 
tained in  it,  on  the  ground  that  parties  may 
be  supposed  to  have  had  these  stipulations  in 
their  minds  as  a  part  of  their  agreement,  when 
they  put  upon  paper  or  express  in  words  the 
other  part  of  it.*  So,  custom  may  control  and 
vary  the  meaning  of  words.'  For  this  purpose 
the  custom  must  be  established  and  not  casual, 
uniform  and  not  varying,  general  and  not  per- 
sonal, and  known  to  the  parties.'  Nor  is  it 
necessaiy  that  the  word  sought  to  be  interpreted 
by  the  custom  should  be,  of  itself,  ambiguous.'' 
Custom  is  the  thing  to  be  proved,  and  usage  is 
the  evidence  of  the  custom.'  Whether  a  cus- 
tom exists  is  a  question  of  fact.  The  custom 
must  be  established  by  the  evidence  of  witnesses 
who  speak  directly  from  the  fact  of  the  existence 
of  the  custom.^  Generally,  the  knowledge  of 
a  custom  must  be  brought  home  to  the  party 
who  is  to  be  affected  by  it.  But  if  it  be  shown 
that  the  custom  is  ancient,  very  general  and 
well  known,  it  will  often  be  a  presumption  of 
law  that  the  party  had  knowledge  of  it.''  No 
custom  can  be  proved,  or  permitted  to  influence 
the  construction  of  a  contract,  or  vary  the  rights 
of  parties,  if  the  custom  itself  be  illegal ;' 
neither  will  courts  sanction  a  custom  by  per- 
mitting its  operation  upon  the  rights  of  oarties, 
which  is  of  itself  wholly  unreasonable.™  So  a 
usage  among  plasterers  to  charge  half  the  size 

d-5  M.  &  W.  535  ;  I  N.  J.  659  ;  Id.  24  ;  9  Ired.  319  ; 
16  Vt.  525 ;  20  Pick.  150;  s  C.  B.  515;  3  M.  &  W.  402  ; 
C.  B.  1855 :  30  Eng.  L.  &  E<r  508  ;  6  Penn.  St.  45  ;  16 
Id.  43;  5  Whart.  308;  3  M.  &  W.  404;  6  Id.  io8;  13 
N.  H.  536-562;  2  East.  P.  C.  1120;  I  Leach's  Crown 
cases,  i6j;  i  Gray,  496.  e-i  M.  &  W.  475  ;  3  Greenl. 
276;  2  Exch.  iii;  2  Camp.  530;  5  Q.  B.  303;  2  Hill 
(S.  C.)  354  :  2  Bing.  (N.  C.)  359  :  3  Cush.  384  ;  13  Met. 
517;  3  Gratt.  262  ;   1  M.  &  W.  476  ;  4  East.  154  :   Doug. 

101  :  J  Pet.  137.  f-3  Camp.  16;  Ryan  &  Moody,  75; 
7  Bing.  445.  g-i  Caines,  43;  Doug.  510;  2  N.  J.  165  ; 
I  Cush.  177 ;  2  C.  &  P.  525 ;  2  C.  B.  412  ;  i  StroD.  203 : 
7  Man.  &  G.  729 ;  3  M'Cord,  121  ;  3  Watts,  178 ;  i  C.  & 
P.  59 ;  Wright,  193  ;  Ware,  322 ;  7  East.  224  ;  i  Gallis. 
443:  2  Wash.  C.  C.  254:   13  Penn.  St.  23;  8  How.  83- 

102  ;  10  B.  &  C.  763-770;  3  Id.  793;  I  B.  &  Ad.  60s  ;  9 
Pick.  98 :  5  A.  &  E.  302  ;■  1  Blatch.  C.  C.  526 ;  9  Met. 
354-365  ;  I  C.  &  P.  59  :  23  How.  49.  h-i  Duer  on  Jus. 
254 ;  Doug.  510 ;  i  Camp.  508,  n. ;  2  N.  J.  165  ;  3  Camp. 
200.  l-io  B.  &  C.  4''o.  J-7  Man.  &  G.  729  :  22  Wend. 
■J22 ;  2  Barr.  1228;  D  lUg.  527-530;  7  C.  &  P.  597;  2 
Wash.  C.  C.  7  :  i  Story,  603-607  ;  Duer  on  Jus.  183  ;  i 
Seld.  I^5 ;  13  Penn.  St.  33  :  9  Gili  &  Johns.  31.  k-5  A. 
&.  E.  30«  ;  1  B.  &  Ad.  605  :  9  Pick.  198  ;  4  M.  &  W.  211. 
I-i    Duer  on  Jus.  272  ;  27  Miss.  260.     m-io  Met.  375. 

u 


of  the  windows  at  the  price  agreed  on  for  work 
and  materials  is  unreasonable  and  void."  No 
custom,  however  universal,  or  old,  or  known, 
unless  it  has  actually  passed  into  law,  has  any 
force  over  parties  against  their  will ;"  and  no 
usage  can  be  incorporated  into  a  contract, 
which  is  inconsistent  with  the  terms  of  the 
contract. P  Where  the  terms  of  the  contract 
are  plain,  usage,  even  under  that  very  contract, 
cannot  be  permitted  to  affect  materially  the 
construction  to  be  placed  upon  it.i  See  Cus- 
tom, below. 

Extrinsic  Evidence.  It  is  very  common 
for  parties  to  offer  evidence  external  to  the  con- 
tract, in  aid  of  the  interpretation  of  its  language. 
But  "  writing  cannot  be  cut  down  or  taken 
away  by  the  evidence  of  witnesses  ;  "*■  such  evi- 
dence cannot  be  admitted  to  "  contradict  or 
vary"  the  terms  of  a  valid  written  contract.* 
For  when  parties  at  last  reduce  their  agreement 
to  writing,  it  is  looked  upon  as  the  final  con- 
summation of  their  negotiation,  and  the  exact 
expression  of  their  purpose ;  and  that  which  i« 
not  now  incorporated  into  their  written  contract 
may  be  considered  as  intentionally  rejected.' 
As  \.o  parties  or  the  subject-matter  of  a  contract, 
extrinsic  evidence  may  and  must  be  received 
and  used  to  make  them  certain,  if  necessary 
for  that  purpose.  Thus,  upon  a  bequest  to  my 
cousin,  T.  S.,  if  I  have  two  cousins  of  that 
name,  evidence  may  be  adduced  to  show  which 
of  the  two  the  testator  intended,"  and  whether 
parcel  or  not  of  the  thing  demised  is  always  a 
subject  of  parol  evidence."  A  devise  simply  to 
John  Smith  would  necessarily  create  some  un- 
certainty.' Where  the  language  of  an  instru- 
ment has  a  settled  legal  meaning,  its  construc- 
tion is  not  open  to  evidence.  Thus,  a  promise 
to  pay  money,  no  time  being  expressed,  means 
a  promise  to  pay  it  on  demand ;  and  evidence 
that  a  payment  at  a  future  day  was  intended,  is 
not  admissible."  But  a  promise  to  do  some- 
thing other  than  pay  money,  no  time  being  ex- 
pressed, means  a  promise  to  do  it  within  a 
reasonable  time.' 

The  date  of  an  instrument,*  or  if  there  be  no 
date,  the  time  when  it  was  to  take  effect,  which 

n-3  Yeates,  318;  1  Const.  R.  308;  23  Vt.  159;  6  Pick. 
131;  II  Met.  186:  I  Const.  R.  303;  3  Greenl.  276:  19 
Conn.  136;  2  Hill,  S.  C.  354;  II  Exch.  405;  30  Eng.  L. 
&  Eq.  604;  1  Duer  on  Jus.  269;  5  Bing.  N.  C.  127;  i 
Camp.  505,  n.  (a.)  o-Crabbe,  534,  see  next  note,  p-2 
Sumn.  567  :  2  Cromp.  &  J.  244 ;  4  Ellis  &  B.  500 ;  20 
Eng.  L.  &Eq.  iii  ;  6  Md.  37:  5  Hill,  437;  15  M.  &  W. 
737;  6  Taunt.  446:  2  Barr,  237;  i  Wash.  C.  C.  39;  1 
R.  I.  147;  26  Vt.  i2-(;  23  How.  520;  I  Cromp.  &  M. 
808:  2  B.  &  Aid.  746;  I  M.  &  W.  466;  N.  P.  197:  2 
Exch.  in;  3B.  &AId.  728;  iiH.  Mon.  64;  i  Smith's 
L.  Cas.  308,  b.  q-26  Beav.  316.  r-Tait  on  Ev.  326 :  i 
Gray,  134;  2  Kernan,  561.  8-18  C.  B.  213;  36  Eng.  L. 
&  Eq.  332.  t-2  W.  Bl.  1240  ;  15  C.  B.  667  ;  29  Eng.  L 
&  Eq.  226;  II  Barb.  147;  i  Blatch.  C.  C.  467:  3  Wilson, 
275  ;  23  Vt.  231  ;  Id.  681 ;  2  B.  &  C.  634 ;  2  Caines,  155  ;  i 
Johns.  414  :  4  Taunt.  7S6.  u-i  W.  Bl.  50;  4  Dow.  93.  v- 
i  T.  R.  701  ;  2  Stark.  508 ;  i  B.  &  A.  247  ;  1  Merriw.  653  ; 
4  Wend.  659  ;  3  Ves.  148 ;   14  Penn.  St    171  ;  6  Sim.  54  ; 

11  Johns.  211.    W-13  M.  &  W.  307  ;  3  Mylne  &  K.  353; 

12  A.  &  E.  442 ;  13  Pick.  26t :  13  Pet  89-97 ;  M.  &  S 
301;  Harp.  Eq  56.  x-8  Met.  97:  16  Pick.  227;  13 
Met.  520;  8  Johns  189;  2  Keman,  462.  y-8  Met.  97; 
16  Pick.  231 ;  3  Stewart,  201  ;  Moody  &  M.  300.  x-4 
Sanf.  79  :  13  111.  33;  4  East  477:  4  CusK,  8a. 


2o8 


CONTRACTS. 


may  be  other  than  the  day  of  delivery,'  or  the 
amount  of  the  consideration  paid,*"  may  be 
varied  by  testimony.  And  an  instrument  may 
be  shown  to  be  void  and  without  legal  existence 
or  efficacy,  as  for  want  of  consideration,"  or  for 
fraud,**  or  duress,  or  any  incapacity  of  the  par- 
ties,* or  any  illegality  in  the  agreement.'  In 
the  same  way  extrinsic  evidence  may  show  a 
total  discharge  of  the  obligations  of  the  con- 
tract ;  or  a  new  agreement  substituted  for  the 
former,  which  it  sets  aside  ;*  or  that  the  time 
when,**  or  the  place  where,'  certain  things  were 
to  be  done  had  been  changed  by  the  parties ; 
or  that  a  new  contract,  which  was  additional 
and  supplementary  to  the  original  contract,  had 
been  made;J  or  that  damages  had  been  waived ;'' 
or  that  a  new  consideration,  in  addition  to  the 
one  mentioned,  had  been  given,  if  it  be  not  ad- 
verse to  that  mentioned  in  the  deed.'  And  if 
no  consideration  be  named,  one  may  be  proved." 

A  receipt  for  money  is  peculiarly  open  to 
evidence.  It  is  only  prima  facie  evidence 
either  that  the  sum  stated  has  been  paid,  or 
that  any  sum  whatever  was  paid."  If  a  con- 
tract refer  to  principles  of  science  or  art,  or  use 
the  technical  phraseology  of  some  profession  or 
occupation,  or  common  words  in  a  technical 
sense,  or  the  words  of  a  foreign  language,  their 
exact  meaning  may  be  shown  by  the  testimony 
of  "  experts,"  that  is,  persons  possessing  the 
peculiar  knowledge  and  skill  requisite  for  the 
interpretation  of  the  contract.* 

The  law  will  not  make,  nor  permit  to  be 
made  for  parties,  a  contract  other  than  they 
would  have  made  for  themselves.  If  the  con- 
tract which  the  parties  have  made  is  incurably 
uncertain,  the  law  cannot  enforce  it;  it  will 
only  declare  such  supposed  contract  no  contract 
at  all,  and  leave  the  parties  to  the  mutual  rights 
and  obligations  which  may  then  exist  between 
them.  But  the  law  will  not  pronounce  a  con- 
tract incurably  uncertain,  and  therefore  null, 
until  it  has  cast  upon  it  all  the  light  that  can 
be  gathered,  either  from  a  collation  of  all  the 
words  used,  or  from  all  cotemporaneous  facts 
which  extrinsic  testimony  establishes. p 

»-i7  C.  B.  625.  b-i  Young  &  C.  Cas.  in  Ch.  136;  3 
T.  R.  474  ;  8  Conn.  304;  i  Greenl.  Ev.  g  26  n.  (1).  C-i 
Cowen,  249;  I  Cromp.  M.  &  R.  703;  10  Mass.  427;  5 
Pick.  391 ;  14  Id.  198.  d-i  Cowen,  240;  12  Jolins.  337. 
e-5  Piclc.  431  ;  40  Penn.  St.  474.     f-2  Wilson,  347.     g- 

9  Pick.  298 ;  5  B.  &  Ad.  58 ;  2  Kern.  184.  h-i  Johns. 
Cas.  22  ;  7  Cowen,  48  ;  i  Bailey,  537  ;  1  M.  &  S.  21.  1- 
4  N.  H.  40.  J-i  Stark.  267;  22  How.  28.  k-3  Johns. 
528  I-i  Young  &  C.  Cas.  in  Ch.  138;  Bedell's  Case, 
7  Rep.  133,  n.:  Sanf.  Ch.  163, 173  ;  Dyer,  146,3.;  Willcs, 
667.     in-2  CoUyer,  76.     11-13  Penn.  St.  46:  12  Id.  235  ; 

10  Humph.  88;  2  N.  J.  50  ;  2  T.  R.  366;  6  Foster,  12. 
0-1  Sim.  24 ;  Wigram  on  Wills,  App.  No.  i,  4  Yes.  769  ; 
9  Clark  &  F.  511 ;  17  Penn.  St.  514;  9  Clark  &  F.  568; 

1  Anst.  39-44.  p-12  A.  &  E.  431  ;  2  Dall.  70;  i  Yes. 
Sen  231  ;  10  Yes.  601  ;  13  Pick.  523 ;  15  Conn.  274-296 ; 
3  McN.  &  G.  692  ;   12  Eng.  L.  &  E<j.  52 ;   11  Juris.  113 ; 

2  Yes.  162.  q-i  Nev.  &  P.  326,327;  4  Taunt.  844:  i 
T.  R.  674 ;  19  Me.  394-398  ;  8  Mass.  1(52-214 ;  25  Me. 
401  ;  37  Id.  137.  r-Co.  Litt.  42-83;  10  Rep.  67.  b.;  3 
Cowen,  284;  4  How.  (Miss.)  428;  9  Paige,  188  ;  9  Clark 
&  F.  397;  4  De  G.  M.  &  G.  591  ;  31  Eng.  L.  &  Eq. 
142;  18  Beav.  478;  31  Eng.  L.  &  Eiq.  504.  8-4  E^st. 
135 ;  2  Whart.  491  ;  4  A.  &  E.  322  ;  2  Cromp.  M.  &  R. 
617;  I  Taunt.  417;  10  B.  &  C.  66:  4  Q.  B.  419;  i  Exch. 
519;  3  Sanf.   aoa  ;  3  Hill,  220;    36  Me.   28;  Id.    los ; 


General  Rules.  The  subject-matter  of 
the  contract  is  to  be  fully  considered.'  The 
construction  which  would  make  the  contract 
legal  is  preferred  to  one  that  would  have 
the  opposite  effect.''  The  presumption  is — of 
greater  or  less  strength,  according  to  the  lan- 
guage used,  or  the  circumstances  of  the  case — 
in  favor  of  the  comprehensive  over  the  re- 
stricted, the  general  over  the  particular,  and 
the  common  over  the  unusual  sense.*  The 
whole  contract  should  be  considered  in  deter- 
mining the  meaning  of  any  or  all  its  parts.'  The 
contract  should  be  supported  rather  than  de- 
feated." Ail  instruments  should  be  construed 
against  him  who  gives  or  undertakes,  or  enters 
into  an  obligation.^  A  lease  to  one  to  hold  for 
seven,  fourteen,  or  twenty-one  years  gave  to 
the  lessee,  and  him  alone,  the  option  at  which 
of  the  periods  named  in  the  lease  should  de- 
termine." No  precise  form  of  words  is  neces- 
sary even  in  a  specialty.'^  On  the  contrary,  it 
is  so  far  immaterial  in  what  part  of  an  instru- 
ment any  clause  is  written,  that  it  will  be  read 
as  of  any  place  and  with  any  context,  and,  if 
necessary,  transposed  in  order  to  give  effect  to 
the  certain  meaning  and  purpose  of  the  parties.^ 
Where  clauses  are  repugnant  and  incompatible, 
the  earlier  prevails,  if  the  inconsistency  be  not 
so  great  as  to  avoid  the  instrument  for  uncer- 
tainty.* The  law  frequently  supplies  by  its 
implications  the  wants  of  express  agreements 
between  the  parties ;  but  it  never  overcomes  by 
its  implications  the  express  provisions  of  par- 
ties.' If  these  are  illegal,  the  law  avoids  them. 
If  they  are  legal,  it  yields  to  them.  Preference 
should  be  given  to  the  written  part  of  the 
instruments  which  are  in  part  printed  and  in 
part  written  ;•*  but  if  the  whole  contract  can  be 
construed  together  so  that  the  written  words 
and  those  printed  make  an  intelligible  contract, 
this  construction  should  be  adopted." 

Intention.  The  first  point  is,  to  ascertain 
what  the  parties  themselves  meant  and  under- 
stood. But  courts  cannot  adopt  a  construc- 
tion of  any  legal  instrument  that  shall  do 
violence  to  the  rules  of  language,  or  to  the 

Younge,  354  ;  1  Yes.  &  B.  422  ;  i  Russ.  &  M.  336.  t. 
Winch.  93  ;  6  M.  &  S.  9  ;  3  Story,  122  ;  26  Me.  531 ;  so 
Id.  346;  10  Pick.  288;  II  Vt.  583;  8  Met.  96;  1  Sneed^ 
141;  15  East.  541;  5  T.  R.  522;  I  Show.  150-155;  4 
M.  &  S.  426;  2  Yes.  210;  5  B.  &  Aid.  606;  3  Id.  175 ; 
9  Mass.  235;  18  Pick.  325;  i  Cow.  122:  1  Edw.  Ch. 
134;  Cow.  9;  I  How.  160-184:  2  Id.  426-449:  2  B.  & 
I*.  13  ;  3  B.  &  P.  565 ;  3  J.  B.  Moore,  703  ;  Dyer,  240, 
a.;  2  Johns.  Cas.  205;  19  Johns.  97:  15  E^t.  530;  10 
J.  B.  Moore,  55 ;  i  Barb.  311 ;  32  Yt.  98  ;  8  Q.  B.  452. 
U-3  Atk.  13s;  9  Q.  B.  1033;  Cowp.  714;  I  H.  &  N. 
255.  V-5  Rep.  7  b ;  Plowd.  289  ;  Davies,  407 ;  19  Yt 
102;  6  M.  &  W.  612.  _  W;3  B.  &  P- 399;  9  East.  15: 
[I   Pet.  420-589;    16 


H.  305 ;  29  Me.  i6g  : 

C-P1( 


Plawd.   154-161:     1   H.   Bl.   25; 
Johns.  172;  5  Met.  15-27:  10  N. 

34  Id.  25  ;  36  Id.  309:  22  Vt.  08.  x-Plowd.  140;  6  I)e 
G  M.  &  G.  453 :  31  Eng.  L.  &  Eq.  392-.^?7-  y-S  T.  R. 
526;  Co.  Litt.  217,  b.;  I  Jarman  on  Wills,  437,  ^/  stq. 
«-Shep.  Touch.  88;  Hardw.  94;  Owen,  84;  2  Taunt. 
109;  15  Sim.  118;  2  C.  B.  830:  Cro.  Eliz.  886;  13  M. 
&  W.  534;  1  Freem.  247:  3  Wend.  09;  23  Am.  Jur. 
277-278 ;  2  Mod.  285 ;  i  Lev.  77 ;  SitT  105 ;  1  Hawks, 
20;  7  J.  J.  Marsh,  192  ;  5Tyrw.  1013.  a-Co.  Litt.  sio; 
Goodall's  ca.se,  5  Rep.  97.  b-4  Elast.  130-136:  3  Sanf. 
318.  e-14  M.  &  W.  794-799  :  N.  P.  46  ;  17  N.  Y.  294 ; 
34  Me.  487  ;  4  La.  289 ;  8  Martin,  51-55 ;  11  La.  An.  139. 


CONTRACTS. 


209 


rules  of  law.*  Words  must  not  be  forced 
away  from  their  proper  signification  to  one  en- 
tirely different,  although  it  might  be  obvious 
that  the  words  used,  either  through  ignorance 
or  inadvertence,  expressed  a  very  different 
meaning  from  that  intended.  Thus,  if  a  con- 
tract spoke  of  "  horses,"  it  would  not  be 
possible  for  the  court  to  read  this  word  "  oxen," 
although  it  might  be  made  certain  by  extrinsic 
evidence  that  it  was  so  intended.  This  is  a 
rule  which  should  be  constantly  borne  in  mind 
•jn  putting  a  construction  upon  any  legal  instru- 
Jnent.*  So  if  parties  used  in  a  contract  techni- 
cal words,  these  words  could  not  be  wrested 
from  their  customary  and  established  meaning, 
on  the  ground  that  the  parties  used  them  in  a 
sense  which  had  never  before  been  given  to 
them.'  So,  too,  if  a  manufacturer  agrees  to 
make  and  finish  certain  goods  "  as  soon  as 
possible,"  this  means  within  a  reasonable  time, 
due  regard  being  had  to  the  manufacturer's 
means,  his  engagements,  and  the  nature  of  the 
articles.' 

Presumptions  of  Law.  It  is  a  presump- 
tion of  law  that  parties  to  a  simple  contract  in- 
tended not  only  to  bind  themselves,  but  their 
personal  representatives ;  and  such  parties  may 
sue  on  a  contract  although  not  named  therein.*' 
It  is  also  a  legal  presumption,  that  every  grant 
carries  with  it  whatever  is  essential  to  the  use 
and  enjoyment  of  the  grant.'  Where  anything 
is  to  be  done,  as  goods  to  be  delivered,  or  the 
like,  and  no  time  is  specified  in  the  contract,  it 
is  then  a  presumption  of  the  law  that  the  par- 
ties intended  and  agreed  that  the  thing  should 
be  done  in  a  reasonable  time.J 

Contra  bona  Mores.  See  Considera- 
tion, above. 

Conveyances.  See  that  title. 

CO-OBLIGOR  is  one  who  is  bound  to- 
gether wiih  one  or  more  others  to  fulfil  an 
agreement,  contract,  or  obligation.  See  Par- 
ties. 

Covenants.    See  title  Conveyances. 

CUSTOM  is  such  a  usage  as,  by  common 
consent  and  uniform  practice,  has  become  the 
law  of  the  place,  or  of  the  subject-matter  to 
which  it  relates.  General  customs  are  such  as 
constitute  a  part  of  the  common  law,  and  extend 
to  the  whole  country.  Particular  customs  are 
those  which  are  confined  to  a  particular  locality. 
In  general,  when  a  contract  is  made  in  rela- 
tion to  another,  about  which  there  is  an  estab- 
lished custom,  such  custom  is  to  be  understood 
as  forming  a  part  of  the  contract,  and  may 
always  be  referred  to  for  the  purpose  of  show- 
ing the  intention  of  the  party  in  all  those  par- 
ticulars which  are  not  expressed  in  the  contract.* 

d-Parkhurst  vs.  Smith,  Willes,  332.     e-i  H.  Bl.  569- 
-        -     ~    Eq        - 


614:  16  C.  B.  420;  30  Eiig._L.  &  Eq.  496;  47  Me.  530. 

„  '  "o-     h-'   M.  & 

,  423;  3  Bulst.  30;  I  Cromp.  &  J.  403.     l-ii  Li- 


f-3  M.  &  W.  535.  g-i  C.  B.  (N.  S.)  110.  h-i  M.  & 
W.  418,  423;  3  Bulst.  30;  I  Cromp.  &  J.  403.  l-ii  Li- 
f»rd's  case,  u  Rep.  52  ;  Co.  Litt.  56,  a.;  i  wms.  Saund. 
323,  n.  (6) ;  13  M.  &  W.  706 ;  5  Bing.  N.  C.  i  ;  6  M.  & 
W.  174:  Brown's  Leg.  Max.  362,  2d  Ed.  J-3  Sumner, 
S30;  3  M.  &  W.  445;  3  Camp.  429;  15  Me.  140;  Id. 
350;  20  Me.  67;  16  Id.  164.  h-i  Hall,  602;  2  Pet.  138; 
5  Binn.  285 ;  9  Wend.  349 ;  i  M.  &  W.  476.     I-13  Pick. 


But  if  the  meaning  of  the  contract  is  certain 
and  beyond  doubt,  no  evidence  of  usage  will 
be  admitted  to  vary  or  contradict  it,' 

In  order  to  establish  a  custom,  it  will  be 
necessary  to  show  its  existence  for  so  long  a 
time  that  "  the  memory  of  man  runneth  not  to 
the  contrary,"  and  that  the  usage  has  continued 
without  any  interruption  of  the  right ;  for,  if  it 
has  ceased  for  a  time  for  such  a  cause,  the 
revival  gives  it  a  new  beginning,  which  will  be 
what  the  law  calls  within  memory.  It  will  be 
no  objection,  however,  that  the  exercise  of  the 
right  has  been  merely  suspended."  It  must 
also  have  been  peaceably  acquiesced  in  and  not 
subject  to  dispute;  for,  as  customs  owe  theii 
origin  to  common  consent,  their  being  imme< 
morially  disputed,  either  at  law  or  otherwise, 
shows  that  such  consent  was  wanting."  In  ad~ 
dition  to  this,  customs  must  be  reasonable  and 
certain. 

Evidence  of  usage  is  never  admissible  to 
oppose  or  alter  a  general  priiuij.le,  or  rule  of 
law,  so  as,  upon  a  given  state  of  facts,  to  make 
the  legal  rights  and  liabilities  of  parties  other 
than  they  are  by  law.*  With  respect  to  a  usage 
of  trade,  however,  it  is  sufficient  if  it  appears 
to  be  known,  certain,  uniform,  reasonable,  and 
not  contrary  to  law.P  But  if  not  directly 
known  to  the  parties  to  the  transaction  it  will 
still  be  binding  upon  them  if  it  appear  to  be 
so  general  and  well  established  that  knowledge 
of  it  may  be  presumed.i  See  Construction, 
above. 

DAMAGES. 

Liquidated  damages  are  those  whose  amount 
has  been  determined  by  anticipatory  agreement 
between  the  parties. 

Where  there  is  an  agreement  between  the 
parties  for  the  doing  or  not  doing  particular 
acts,  the  parties  may,  if  they  please,  estimate 
beforehand  the  damages  to  result  from  a  breach 
of  the  agreement,  and  prescribe  in  the  agree- 
ment itself  the  sum  to  be  paid  by  either  by  way 
of  damages  for  such  breach.'' 

The  sum  named  in  an  agreement  as  damaget 
to  be  paid  in  case  of  a  breach  will,  in  general, 
be  considered  as  liquidated  damages,  or  as  a 
penalty,  according  to  the  intent  of  the  parties. 
The  mere  use  of  the  words  "penalty"  or 
"liquidated  damages"  will  not  be  decisive  of 
the  question  if,  on  the  whole,  the  instrument 
discloses  a  different  intent." 

Such  astipulation  in  agreement  will  be  consid. 
ered  as  a  penalty  merely,  and  not  as  liquidated 
damages,  in  the  following  cases  :  Where  the 
parties  in  the  agreement  have  expressly  declared 
it,  or  described  it,  as  a  "  penalty,"  and  no  other 

176 :  I  Cr.  &  M.  808.  As  to  the  effect  of  usage  in  respect 
to  agricultural  leases,  see  Taylor,  Landl.  &  Ten.  ?  541. 
Ili-i  Bl.  Comm.  76;  2  Id.  31;  14  Mass.  488:  3  Q.  B. 
581 ;  6  Id.  383.  11-2  Wend.  501 :  3  Watts,  178.  0-2  T. 
R.  327;  19  Wend.  252:  6  Met.  (Mass.)  393;  6  Pick. 
131 :  6  Bin.  416.  p-3  Wash.  C.  C.  150  ;  7  Pet.  i ;  5  Binn. 
287;  8  Pick.  360.  q-i  Caines,  43  ;  4  Stark.  452.  r-i  H. 
Bl.  232 ;  2  B.  &  P.  335,  350;  2  Brown  Pari.  Cas.  431 ;  4 
Burr.  2225  ;  2  T.  R.  32.  S-Story  Eq.  Jur.  1318 ;  6  B. 
&  C.  224;  6  Bingh.  141 ;  6  Ired.  186'  15  Me.  «73;  a 
Ala.  (N.  S.)4a5;  8  Mo.  467. 


itO 


CONTRACTS. 


intent  is  deducible  from  the  instrument ;''  where 
it  is  doubtful  on  the  language  of  the  instrument 
whether  the  stipulation  was  intended  as  a  pen- 
alty or  as  liquidated  damages-/  where  the 
agreement  was  evidently  made  for  the  attain- 
ment of  another  object  or  purpose,  to  which 
the  stipulation  is  wholly  collateral ;"  where  t-he 
agreement  imposes  several  distinct  duties  or 
obligations  of  different  degrees  of  importance, 
and  yet  the  same  sum  is  named  as  damages  for 
a  breach  of  either  indifferently;'  where  the 
agreement  is  not  under  seal,  and  the  damages 
are  capable  of  being  certainly  known  and  esti- 
mated ;"  where  the  instrument  provides  that  n 
larger  sum  shall  be  paid,  upon  default  to  pay  a 
lesser  sum  in  the  manner  prescribed.' 

The  stipulation  will  be  sustained  as  liquidated 
damages  in  the  following  cases :  Where  the 
agreement  is  of  such  a  nature  that  the  damages 
are  uncertain,  and  are  not  capable  of  being  as- 
certained by  any  satisfactory  and  known  rule  ;" 
where,  from  the  tenor  of  the  agreement,  or  from 
the  nature  of  the  case,  it  appears  that  the  par- 
ties have  ascertained  the  amount  of  damages  by 
fair  calculation  and  adjustment.* 

DATE  includes  the  time  (/.  e.,  day,  month, 
and  year)  and  place  when  and  where  an  instru- 
ment of  writing  was  made.  And  when  the 
place  is  mentioned  in  the  date,  the  law  pre- 
sumes, in  the  absence  of  evidence  to  the  con- 
trary, that  it  was  executed  at  the  place  of  the 
date.'  Written  instruments  generally  take  ef- 
fect from  the  day  of  their  date,  but  the  actual 
date  of  their  execution  may  be  shown,  though 
different  from  that  which  the  instrument  bears. 
The  date  is  not  of  the  essence  of  the  contract, 
but  is  essential  to  the  identity  of  the  writing  by 
which  it  is  to  be  proved  ;*  and  if  a  written  date 
is  an  impossible  one  the  time  of  delivery  must 
be  shown.* 

DEATH.  Contracts  are,  in  general,  not 
affected  by  the  death  of  either  parly.  The  ex- 
ecutors or  administrators  of  the  decedent  are 
required  to  fulfil  all  his  engagements,  and  miv 
enforce  all  those  in  his  favor.  But  to  this  rule 
there  are  the  following  exceptions:  The  con- 
tract of  marriage ;  the  contract  of  partnership  ; 
those  contracts  which  are  altogether  personal, 
as,  where  the  deceased  had  agreed  to  accompany 
the  other  party  to  the  contract  on  a  journey,  or 
to  serve  another,  or  to  instruct  an  apprentice. •* 
In  all  those  cases  where  one  is  acting  for  an- 

q-2  B.  &  P.  340,  350,  360:  I  H.  Bl.  227;  1  Campb. 
•fi:  7  Wheat.  14;  iMcMull.  106:  2  Ala.  (N.  S.)  425:  5 
Met.  (Mass.)  61 ;  i  Pick.  451  ;  4  Id.  179  ;  3  Johns.  Cas. 
997;  17  Barb.  260;  24  Vt.  97.  r-3  C.  &  P.  240;  6 
Humph.  186;  5  Sandf.  192;  24Vt.  97:  16 111.  475.  s-ii 
Mass.  488 :  15  Id.  488 ;  i  Brown  Ch.  418.  t-6  Bingh.  141  : 
sBlngh.  (N.  C.)  300;  780011,364;  sSandf.  192;  butsee 
7johns.72:  15  Id.  200;  9  N.  Y.  551.  n-2Bam.&Ald. 
704.  6  Barn.  &C.  216:  i  M.  &  M.  41  ;  4Dall.  J5o;5 
Cow.  144.  v-5  Sandf  192,640 :  16III.400:  i4Ark.  329. 
W-2  T.  R  32  ;  I  Ale.  &  N.  Ir.  389  ;  2  Burr  2225  :  10 
Ves.  Ch  429  :  3  M.  &  W.  535  ;  3  C.  &  P.  240  ;  8  Mass. 
«23;  7  Cow.  307  :  4  Wend.  468;  5  Sandf.  192  ;  12  B.irb. 
»37f366:  18  Id.  336;  14  Ark.  315;  2  Ohio  St.  519.  x-3 
Story  Eq.  Jiir.  J  1318  ;  2  Greenl.  Ev.  259  ;  i  Bingh.  302  ; 
7  Conn.  291  ;  11  N.  H.  234;  6  Bl.ickt'.  206;  13  Wend. 
507  ;  17  Id.  447  ;  22  Id.  201  ;  26  Id.  630 ;  10  Mass.  459  ; 
7  Met.  (Mass. )  583 ;  a  AU.  (N.  S.)  425 ;  14  Me.  250.    y- 


other,  and  by  his  authority,  such  as  agencies 
and  powers  of  attorney,  where  the  agency  or 
power  is  not  coupled  with  an  interest,  the  death 
of  the  party  makes  an  immediate  revocation. 
Whenever  any  express  or  implied  authority  is 
being  exercised  by  another,  the  death  of  the 
party  giving  it  is  a  revocation.* 

Persons  who  have  been  once  shown  to  hav< 
been  in  life  are  presumed  thus  to  continue  until 
the  contrary  is  shown ;  so  that  it  lies  on  the 
party  asserting  the  death  to  make  proof  of  it."* 
But  proof  of  a  long-continued  absence,  unheaid 
from  and  unexplained,  will  lay  a  foundation  for 
presumption  of  death.  The  general  rule  is,  that 
the  presumption  of  the  duration  of  life  ceases 
at  the  expiration  of  seven  years  from  the  time 
when  he  was  last  known  to  be  living.*  Such 
continued  absence  for  seven  years  from  the  par- 
ticular State  of  his  residence,  without  showing 
an  absence  from  the  United  States,  is  sufficient.' 

DEBTS  may  be  evidenced  by  the  various 
forms  of  contracts,  as  conditional  conveyances, 
judgments,  mortgages,  simple  agreements,  etc., 
etc.  The  distinguishing  and  necessary  feature 
is  that  a  fixed  and  specific  quantity  is  owing, 
and  no  future  valuation  is  required  to  settle  it.« 

DEFAULT  is  the  non-performance  of  a 
duty,  whether  arising  under  a  contract  or  other- 
wise.'' By  the  statute  of  frauds  "  no  action 
shall  be  brought  to  charge  the  defendant  upon 
any  special  promise  to  answer  for  the  debt,  de- 
fault, or  miscarriage  of  another  person,  unless 
the  agreement,"  etc., -'shall  be  in  writing,"  etc. 
See  title  Fraud,  and  Fraud,  below. 

DELIBERATION  (the  understanding  by 
which  the  party  examines  whether  a  thing  pro- 
posed ought  to  be  done  or  not,  or  whether  it 
ought  to  be  done  in  one  manner  or  another) 
relates  to  the  end  proposed ;  to  the  means  of 
accomplishing  that  end ;  or  to  both.  It  is  a  pre- 
sumption of  law  that  all  acts  committed  are  done 
with  due  deliberation — that  the  party  intended 
to  do  precisely  what  he  has  done.  But  he  may 
show  the  contrary.  In  contracts,  for  example, 
he  may  show  that  he  has  been  taken  by  surprise. 

DELIVERY  is  frequently  symbolical,  as 
by  delivery  of  a  key  to  a  room  containing  goods,* 
marking  timber  on  a  wharf,  or  goods  in  a  ware- 
house, or  by  separating  and  weighing  or  meas- 
uring them.J  or  otherwise  constructively  deliv- 
ering, as  by  the  delivery  of  a  part  for  the  whole.'' 

Plowd.  7,  b.  «-2  Greenl.  Ev.  §2  '2,  13,  489,  n.;  8  Mass. 
IS9  :  4  Cush.  403  ;  I  Johns.  Cas.  91  :  3  Wend.  233  ;  31 
Me.  243  ;  17  Eng.  L.  &  Eq.  548 ;  2  Greenl.  Cruise  Dig. 
6:8,  n.  »-Shepp.  Touchst.  72;  Cruise  Dig.  618,  n. 
b-Poth.  Ob.  c.  7  ;  Art.  3,  ??  2,  3  ;  Bac.  Abr.  Executor 
P.;  I  Burn.  Eccl.  L.  82;  Ham.  Part.  157;  i  Rawle,6i; 
2  B.  &  Ad.  303.  e-30  Vt.  II.  d-2  E.-ist.  312  ;  2  Rolle, 
461.  e-i  Phillips  Ev.  Cowen  &  H.  Ed.  197.  2  Cow.  & 
H.  notes,  489  ;  i  Greenl.  Ev  §  41  :  5  Johns.  Ch.  263  ;  5 
B.  &  Aid.  86.  f-io  Pick.  515 ;  i  Rawie,  373  ;  i  A.  K. 
Marsh,  278;  i  Penning.  167;  2  Bay,  476.  gr-3  Bl 
Comm,  154  :  2  Hill  N.  Y.  220.  I1-2  B.  &  Aid.  516.  1- 
2  Aik.  79  ;  5  Johns  335  ;  i  Yeates,  529 ;  2  Ves.  Sr.  445  : 
1  East.  192  ;  see  also  7  East.  5=;8 ;  3  B.  &  Aid.  i  ;  36. 
&  P.  233  ;  3  B.  &  C.  45.  j-2  Vt.  265.  k-23  Vt.  265  :  9 
Barb  511;  19  Id  416:  11  Cush.  282.  39Me.  496:2  H. 
Bl.  504  :  3  B.  &  P.  69  :  see  6  East.  661.  As  to  what  con- 
stitutes delivery  see  4  Mass  661  ;  8  Id.  287;  10  Id.  308; 
14  Johns.  167:  15  Id.  349. 


CONTRACTS. 


bellrery  is  not  necessary  to  complete  a  sale  of 
personal  property,  as  between  the  seller  and 
buyer;'  but  as  against  third  parties  possession 
retained  by  the  seller  raises  a  presumption  of 
fraud,  which  presumption  is  by  some  autiiorities 
regarded  as  conclusive ;™  by  others  merely  as 
strong  evidence  of  fraud  to  be  left  to  the  jury." 
The  rules  requiring  actual  full  delivery  are  sub- 
ject to  modification  in  case  of  bulky  articles." 
A  condition  requiring  delivery  may  be  annexed 
as  a  part  of  any  contract  of  transfer.P  In  the 
absence  of  contract  the  amount  of  transporta- 
tion to  be  performed  by  the  seller  to  constitute 
delivery  is  determined  by  general  usage.  See 
Performance;  Sales,  below. 

DEMAND.  In  causes  of  action  arising 
upon  contract  it  is  frequently  necessary  to  secure 
to  the  party  all  his  rights  and  to  enable  him  to 
bring  an  action,  that  he  should  make  a  demand 
upon  the  party  bound  to  perform  the  contract 
or  discharge  the  obligation.  Thus,  where  prop- 
erty is  sold  to  be  paid  for  on  delivery,  a  demand 
must  be  made  and  proved  on  trial  before  bring- 
ing an  action  for  non-delivery ,<i  but  not  if  the 
seller  has  incapacitated  himself  from  delivering 
them.'  And  this  rule  and  exception  apply  to 
contracts  for  money.* 

DEPENDENT  contracts  are  those  by 
which  it  is  not  the  duty  of  the  contractor  to  per- 
form until  some  obligation  contained  in  the  same 
agreement  has  been  performed  by  the  other  party.' 

Deposit.     See  Bailments. 

DESCRIPTION  is  that  which  is  said  or 
written  to  designate  a  person  or  thing,  or 
demonstrate  condition,  mode,  object,  subject- 
matter,  or  whatever  forms  a  part  of,  or  is  essen- 
tial to,  the  contract.  Several  descriptions  may 
be  employed  to  denote  the  same  person  or 
object ;  and  the  rule  of  law  in  such  cases  is, 
that  if  one  of  the  descriptions  be  erroneous  it 
may  be  rejected,  if,  after  it  is  expunged,  enough 
will  remain  to  identify  the  person  or  thing  in- 
tended. That  is,  if  there  be  an  adequate  de- 
scription with  convenient  certainty  of  what  was 
contemplated,  a  subsequent  erroneous  addition 
will  not  vitiate  it.  On  the  other  hand,  if  the 
matter  stand  in  doubt  upon  the  words,  whether 
they  import  a  false  reference  or  description,  or 
whether  they  are  words  of  restraint  that  limit 
the  generality  of  the  former  words — the  law 
will  never  intend  error  or  falsehood. 

DEVIATION.  When  a  contract  is  to 
build  a  house  according  to  the  original  plan, 
and  a  deviation  takes  place,  the  contract  must 
lie  traced  as  far  as  possible,  and  the  additions, 

1-Story  S.iles.  m-i  Cranch,  309:  2  Munf.  341 ;  4 
M'Cord,2g4:  i  Overton,  91  ;  14B.  Mon.  533;  18  Penn. 
St.  113;  4  Harring.  458 ;  2  111.296;  i  Halst.  155;  5 
(J  inn.  iq6 ;  12  Vt.  653  ;  23  Id  82  ;  4  Fla.  219  ;  9  Johns. 
•J  ',7:  I  Campb.  332  ;  2  T.  R.  587.  11-Cowp.  432;  2  B. 
h  P.  59  :  3  B.  &  C.  368  :  4  Id.  652  ;  5  Rand.  211 ;  i  Bail. 
=  68  :  3  Verg.  475  :  7  Id.  440  ;  3  J.  J.  Marsh,  643  ;  4  N. 
Y.  303,  580 ;  2  Met.  Mass.  99  :  18  Me.  127:5  La.  An.  i  ; 
I  Texas,  415.  0-5  S.  &  R.  19  :  12  Mass.  400;  16  Me. 
49.  |»-i9  Me.  147.  q-5  T.  R.  409  ;  3  M.  &  W.  2S4  : 
3  Price  Ex.  58:  1  Tayl.  CS .  C.)  149.  r-io  East. 
^'^q:  5  B.  &  Aid.  712:  2  Eibb.  280:  i  Vt.  25:  4 
Kfass  474;  6  Id.  61:  16  Id.  453;  3  Wend.  556;  9 
Johns.  361 ;  sMe.  308;  5  Munf.  i.    s-2  Dowl.  &  R.  55;   , 


if  any  have  been  made,  must  be  paid  for  ac- 
cording to  the  usual  rate  of  charging." 

DISAFFIRMANCE,  or  a  declaration  of 
disagreement  to  conform  to  the  terms  of  a  void- 
able contract  already  entered  into,  may  be  made 
by  an  infant  declaring  that  he  will  not  abide  by  his 
contract  with  another,  and  in  many  other  cases. 
Disaffirmance  is  express  or  implied — express 
when  the  declaration  is  made  in  express  terms 
that  the  party  will  not  abide  by  the  contract ; 
implied  when  a  party  does  an  act  which  plainly 
manifests  his  determination  not  to  abide  by  it, 
as  when  an  infant  made  a  deed  of  his  land,  and 
on  coming  of  age  he  made  a  deed  of  the  same- 
land  to  another.' 

Discount.     See  Interest;  Money. 

DISSENT.  The  law  presumes  every  per- 
son to  whom  a  conveyance  has  been  made  has 
given  his  assent  to  it,  because  it  is  supposed  to 
be  for  his  benefit.  To  rebut  this  presumption  his 
dissent  must  be  expressed."  See  Assent,  above. 

Dissolution.    See  Partnership. 

Divisibility.  See  Apportionment,  above ; 
Entirety,  below. 

EARNEST  is  the  payment  of  a  part  of  the 
price  of  goods  sold,  or  the  delivery  of  a  part  of 
such  goods,  for  the  purpose  of  binding  the  con- 
tract. The  effect  of  earnest  is  to  bind  the  goods 
sold ;  and  upon  being  paid  for  without  default 
the  buyer  is  entitled  to  them.  But,  notwith- 
standing the  earnest,  the  money  must  be  paid 
on  taking  away  the  goods,  because  no  other 
time  for  payment  is  appointed.  Earnest  only 
binds  the  bargain,  and  gives  the  buyer  a  right 
to  demand,  but  a  demand  without  the  payment 
of  the  money  is  void.  After  earnest  given  the 
vendor  cannot  sell  the  goods  to  another  without 
a  default  by  the  purchaser;  and  therefore  if  the 
latter  does  not  come  and  pay,  and  take  the 
goods,  the  vendor  ought  to  go  and  request 
him,  and  then  if  he  does  not  come,  pay  for  the 
goods  and  take  them  away  in  convenient  time, 
the  agreement  is  dissolved,  and  he  is  at  liberty 
to  sell  them  to  any  other  person.* 

ENTIRETY.  If  the  part  of  the  contract 
to  be  performed  by  one  party  consists  of  several 
distinct  and  separate  items,  and  the  price  to  be 
paid  by  the  other  is  apportioned  to  each  item 
to  be  performed,  or  is  left  to  be  implied  by  law ; 
such  a  contract  is  generally  severable.?  The 
same  rule  holds  where  the  price  to  be  paid  is 
clearly  and  distinctly  apportioned  to  the  differ- 
ent parts  of  what  is  to  be  performed,  although 
the  latter  is   in   its  nature  single  and  entire." 

1  Chitty  Pr.  57,  n.  «.,  438,  n.  a.  t-Hammond  Partn 
17,  29,  30,  109.  u-3  B.  ^  Aid.  47;  see  i  Ves.  Ch.  60; 
10  Id.  306:  13  Id.  73,  81  ;"  14  Id.  413;  6  Johns.  Ch.  38; 
3  Cranch,  270  ;  5  Id.  262  ;  9  Pick.  298  ;  Chitty  Contr. 
168.  v-2  Dev.  &  B.  320  ;  10  Pet.  58  ;  13  Mass.  371,  375. 
■w-4  Mas.  C.  C.  206  :  II  Wheat.  78  ;  i  Binn.  502  ;  2  Id. 
174  ;  6  Id.  338;  12  Mass.  456  ;  17  Id.  552  ;  3  Johns.  Ch. 
26t  ;    4  Id.  136,  529.     x-i  Salk.  113  ;    2  Bl.  Comm.  447; 

2  Kent  Comm.  389;  Ayliffe  Pand.  450;  3  Camp.  426. 
y-3  B.  &  P.  162:  3  Bing.  285;  ii  Wheat.  237-251  ;  2  B. 
&  Aid.  882  ;  14  Wend.  257 ;  4  Barb.  36,  47 ;  19  Id.  313  ; 
8  Foster,  290  ;  25  Penn.  St.  203.  z-5  B.  &  Aid.  942  ;  4 
A.  &E.  448:  2M.  &W.  602;  10  Johns.  203:  i  Kern 
35 ;  5  Ellis  &  B.  772  :  34  E.  L.  &  E.  178  ;  6  Ellis  &  B 
355 ;  34  Me.  107 ;  i  Parspps  M»r.  L.  45,  n.  t. 


Jia 


CONTRACTS. 


But  the  mere  fact  that  the  subject  of  the  con- 
tract is  sold  by  weight  or  measure,  and  the 
value  is  ascertained  by  the  price  affixed  to  each 
pound,  or  yard,  or  bushel,  of  the  quantity  con- 
tracted for,  will  not  be  sufficient  to  render  the 
contract  severable.'  And  if  the  consideration 
to  be  paid  is  single  and  entire,  the  contract  is 
entire,  although  the  subject  of  the  contract  may 
consist  of  several  distinct  and  wholly  inde- 
pendent items.*' 

EQUALITY.  The  law  presumes  that  con- 
tractmg  parties  act  upon  a  perfect  equality. 
When,  therefore,  one  party  uses  any  fraud  or 
'deceit  to  destroy  this  equality,  the  party  ag- 
grieved may  avoid  the  contract.  In  case  of  a 
conveyance  or  grant  to  two  or  more  persons 
jointly  without  designating  what  each  takes, 
they  are  presumed  to  take  in  equal  proportions." 

EQUIVALENT.  Sometimes  a  condition 
must  be  literally  accomplished  in  the  particular 
form  specified;  and  some  maybe  fulfilled  by 
an  equivalent.  When  such  appears  to  be  the 
intention  of  the  parties,  as,  if  A.  promises  to 
pay  B.  one  hundred  dollars,  and  thereupon  A. 
dies,  A.'s  executors  may  fulfil  A.'s  engagement ; 
for  it  is  equivalent  to  B.  whether  the  money  be 
paid  by  A.  or  his  executors.* 

EQUIVOCAL.  It  is  a  general  rule  in  the 
construction  of  contracts  that  when  an  expres- 
sion may  be  taken  in  two  senses,  that  sense  shall 
be  preferred  which  gives  it  effect.  See  Con- 
struction; above. 

ERASURE  or  obliteration  in  an  instrument 
of  writing  renders  it  void  or  not  under  the  same 
circumstances  as  interlineation."  See  Altera- 
tion, above ;  Interlineation,  below. 

EXCEPTIONS  are  such  clauses  as  ex- 
clude something  from  the  effisct  or  operation  of 
the  contract  which  will  otherwise  be  included. 
They  differ  from  reservations,  exceptions  being 
always  a  part  of  the  things  granted,  while  the  lat- 
ter is  of  things  not  yet  existing  but  which  are 
newly  created  or  reserved.    See  Conveyances. 

FORMALITY.  No  precise  form  of  words 
is  necessary  even  in  a  specialty.*  On  the  contrary, 
it  is  so  far  immaterial  in  what  part  of  an  instru- 
ment any  clause  is  written,  that  it  will  be  read 
as  of  any  place  and  with  any  context,  and,  if 
necessary,  transposed  in  order  to  give  effect  to 
the  certain  meaning  and  purpose  of  the  parties.' 

FRAUD  avoids  every  contract,  and  annuls 
every  transaction  into  which  it  enters.  The 
fraud  mus*  be  material  to  the  contract  or  tran- 
saction which  is  to  be  avoided  because  of  it; 
for  if  it  relate  to  another  matter,  or  to  this  only 

a-5  Met.  452;  12  Id.  286:  21  N.  Y.  (7  Smith)  397. 
*-22  Pick.  452  ;  3  Watts.  &  Serg.  109 ;  14  C.  B.  195 ;  25 
TE.  L.  &  E.  257;  2  Jones  (N.  C.)  403;  Id.  454.  C-4 
Day,  395.  «I-RolIe  Abr.  451 ;  i  Bouv.  Inst,  n,  760.  e- 
See  5  Pet.  560;  11  Co.  88  ;  4  Cruise  Dig.  368  ;  13  Vin. 
Abr.  41:  Fitz.  207;  5  Bingh.   183;  3  C.  &  P.   55; 


Wend.  555;  II  Conn.  531  ;  5  Mort.  100;  2  La.  291  ;  3 
Id.  56;  4  Id.  270.  f-s  Dow.  159;  I  B.-irb.  471  :  5  Id. 
01.  lC-4  Scott  N.  R.;  3  Man.  &  G.  446  ;  15  Ohio,  500. 
h-4  M.  &  W.  IIS ;  5  C.  B.  107 :  26  Eng.  L.  &  Eq.  261 ; 
15  C  B.  597:  29  Eng.  L.  &  Eq.  290;  25  Penn.  St.  413. 
1-2  Mass.  112  :  25  Me.  243  ;  11  Vt.  615  ;  i  Dev.  69.  J-i 
Hill,  311 ;  14  Wend.  31 ;  i  Woodb.  &  M.  334;  4  Paige. 
537.  K-i  Greenl.  376:  2  Mason,  236;  9  Gill  &  Johns, 
•so;  SI  Penn.  St.  367:  20  Mo.  546;  ai  Barb.  585;  30 


in  a  trivial  and  unimportant  way,  it  affords  no 
ground  for  the  action  of  the  court.'  It  must, 
therefore,  relate  distinctly  and  directly  to  this 
contract;  and  it  must  affect  its  very  essence 
and  substance.8  The  fraud  must  work  an 
actual  injury  ;''  for  if  no  damage  be  caused  by 
the  fraud,  no  action  lies.'  If  a  purchaser 
makes  false  representations  of  his  ability  to  pay, 
his  property,  or  credit,  the  sale  is  void,  and  no 
title  pa-sses  between  the  parties  to  the  contract.i 
It  must  appear  that  the  injured  party  not  only 
did  in  fact  rely  upon  the  fraudulent  statement,* 
but  had  a  right  to  rely  upon  it  in  the  full  belief 
of  its  truth  ;  for  otherwise  it  was  his  own  fault 
or  folly,  and  he  cannot  ask  the  law  to  relieve 
him  from  the  consequences.'  Concealment  is 
not  in  law  so  great  an  offence  as  misrepresenta- 
tion. Concealment,  to  be  actionable,  must  of 
course  be  of  such  facts  as  the  party  is  bound  to 
communicate."  A  false  representation,  in  order 
to  have  the  full  effect  of  fraud,  must  relate  to  a 
substantial  matter  of  fact,  and  not  merely  to  a 
matter  which  rests  in  opinion,  or  estimate,  or 
judgment."  Where  a  party  rescinds  a  contract 
on  the  ground  of  fraud,  he  must  do  so  at  once 
on  discovering  the  fraud."  If  both  parties  act 
fraudulently,  neither  can  take  advantage  of  the 
fraud  of  the  other,  for  the  law  will  not  inter- 
fere between  them ;  and  this  is  so,  if  both  par- 
ties are  acting  fraudulently,  although  the  begin- 
ning, and  the  greater  fraud,  may  be  on  one 
side  or  the  other.P  And  if  one  acts  fraudu- 
lently, he  cannot  set  his  own  fraud  aside  for 
his  own  benefit ;  for  no  man  can  be  per- 
mitted to  found  any  rights  upon  his  own 
wrong.'  Therefore  if  one  gives  a  fraudulent 
bill  of  sale  of  property  for  the  purpose  of  de- 
frauding his  creditors,  ^e  cannot  set  that  bill 
aside  and  annul  that  sale,  although  those  who 
are  injured  by  it  may.' 

Material  misrepresentations  which  go  to  the 
substance  of  a  contract,  avoid  it,  whether 
they  are  caused  by  mistake,  and  occur  wholly 
without  fault,  or  are  designed  and  fraud- 
ulent." 

GAMING  when  considered  in  itself,  with- 
out regard  to  the  end  proposed  by  the  parties 
interested,  is  not  contrary  to  natural  equity; 
the  contract  is  considered  a  reciprocal  gift  which 
the  parties  make  under  certain  conditions. 
Some  games  depend  upon  skill  alone,  as 
billiards;  others  upon  chance,  as  a  lottery;  and 
others  of  both  skill  and  chance,  as  backgam- 
mon. In  general,  at  common  law,  all  games 
are  lawful  unless  some  fraud  has  been  practised. 

Id.  253.  l-ii  Wend.  374;  4Ga.  05.  in-3  Eng.  L.  &  Eq. 
17;  3  Conn.  413  ;  5  Ala.  596;  iYeates,307:  5  Penn.  St. 
467;  8  N.  H.  463;  10  Cljirk  &  F.  934;  i  Dev.  351  :  18 
Johns.  4o_  ;  6  Humph.  36.  11-5  Blackf.  18;  3  Bulstr. 
94;  18  Me.  418;  7  Scott,  341;  I  Simons,  89  ;  6  Scott, 
540;  3  B.  &  C.  623.  0-5  M.  &  W.  83;  24  Wend.  74; 
oB.  &C.59:  4  Mass.  502;  4  Paige,  537;  4Denio,554; 
Baldw.  331  ;  8  Barb.  10 ;  10  Ala.  478.  p-i  McLean, 
490  ;  I  Ohio  St.  262  ;  20  Wend.  24  ;  i  Fairf.  71  ;  27  Miss. 
13.  q-9  B.  &C.  532 ;  5  Mass.  116;  10  Me.  281 ;  2  Har. 
ring.  (Del.)  128.  r-9  Q.  B.  166;  18  Me.  231.  11-3  Mo. 
477;  4  How.  (Miss.)  435;  4  Scant.  569;  Coxe.  48;  i 
Woodb.  &  M.  90 ;  2  Id.  246 ;  3  Story,  700 ;  4  B.  Mon.  601. 
t-See  Construction  ;  general  rttles :  and  notes  x,  y, 
z,  above. 


CONTRACTS. 


213 


or  such  games  are  contrary  to  public  policy. 
Each  of  the  parties  to  the  contract  must  have 
a  right  to  the  thing  played  for.  He  must  have 
given  his  free  and  full  consent,  and  not  have 
been  entrapped  by  fraud.  There  must  be 
equality  in  the  play,  and  the  play  must  be  con- 
ducted fairly.  But  even  when  all  these  rules 
have  been  observed,  the  courts  will  not  counte- 
nance gaming  by  giving  too  easy  a  remedy  for 
the  recovery  of  money  won  at  play.*  When 
fraud  has  been  practised,  as  in  other  cases,  the 
contract  is  void.  In  many  of  the  States  gaming 
is  prohibited  under  penalty,  and  no  recovery 
of  money  lost  or  won  at  gaming  can  be  had. 

Good-will,  Goods  and  Chattels,  Wares 
AND  Merchandise.     See  Sales. 

HAZARDOUS  contracts  are  those  in 
which  the  performance  of  one  of  its  objects 
depends  upon  an  uncertain  event."  See  Insur- 
ance, Maritime  Law. 

Hypothecation.  See  Bailments,  Con- 
veyances, Pledge. 

ILLEGALITY  of  a  contract  is  in  general 
a  perfect  defence.  This  seems  too  obvious  to 
need  illustration.  The  objection  that  a  contract 
is  immoral  or  illegal  as  between  plaintiff  and 
defendant,  sounds  at  all  times  very  ill  in  the 
mouth  of  the  defendant.  It  is  not  for  his  sake, 
however,  that  the  objection  is  ever  allowed,  but 
it  is  founded  on  general  principles  of  policy, 
which  the  defendant  has  the  advantage  of,  con- 
trary to  the  real  justice,  as  between  him  and  the 
plaintiff,  by  accident.  The  principle  of  public 
policy  is  this  :  No  action  can  be  founded  upon 
or  arise  out  of  fraud. ^  No  court  will  lend  its 
aid  to  a  man  who  founds  his  cause  of  action 
upon  an  immoral  or  an  illegal  act.  If,  from  the 
plaintiff's  own  stating,  or  otherwise,  the  cause 
of  action  appears  to  arise  from  an  illegal  or  an 
immoral  consideration,  or  the  transgression  of  a 
positive  law  of  the  country,  then  the  court  says 
he  has  no  right  to  be  assisted.  It  is  upon  that 
ground  the  court  goes,  not  for  the  sake  of  the 
defendant,  but  because  they  will  not  lend  their 
aid  to  such  a  plaintiff.  So  if  the  plaintiff  and 
defendant  were  to  change  sides,  and  the  de- 
fendant was  to  bring  his  action  against  the 
plaintiff,  the  latter  would  then  have  the  advan- 
tage of  it ;  for  where  both  are  equally  in  fault" 
the  condition  of  the  defendant  is  better  than 
that  of  the  plaintiff.* 

Immorality.     See  Consideration,  above. 

Incapacity,  Incompetency.  See  Par- 
ties, below. 

Indivisibility.  See  Apportionment,  En- 
tirety, above. 

Infants.     See  Parties,  below. 

Intention.     See  Construction,  above. 

INTERPRETATION  is  the  discovery 
and  representation  of  the  true  meaning  of  any 
signs  used  to  convey  ideas.y  The  "  true  mean- 
ing "  of  any  signs  is  that  meaning  which  those 

t-Bac.  Abr.  n-See  i  Bouv.  Inst.  n.  707;  i  J.  J. 
Marsh,  596:  3  Id.  84.  v-2  Kent  Comm.  466:  i  Story 
Contr.  g  592;  22  N.  Y.  272.  w-Per  Mansfield,  Hof- 
man  vs.  Johnson,  Cowper,  343 ;  4  Comst.  449.  x- 
Broom  Max.  (3  Lend.  £a.)  664 ;  Bac.  Max.  Reg.  19.  y. 


who  used  them  were  desirous  of  expressing.  A 
person  adopting  or  sanctioning  them  "  uses " 
them  as  well  as  their  immediate  author.  Both 
parties  to  an  agreement  equally  make  use  of 
the  signs  declaratory  of  that  agreement,  though 
one  only  is  the  originator,  and  the  other  may 
be  entirely  passive.  The  most  common  signs 
used  to  convey  ideas  are  words.  When  there 
is  a  contradiction  in  signs  intended  to  agree, 
resort  must  be  had  to  construction  ;  that  is,  the 
drawing  of  conclusions  from  the  given  signs, 
respecting  ideas  which  they  do  not  express. 
Construction  is  usually  but  erroneously  con- 
founded with  interpretation.  Close  intei-preta- 
tion  is  adopted  if  just  reasons,  connected  with 
the  formation  and  character  of  the  text,  in- 
duce us  to  take  the  words  in  their  narrowest 
meaning.  This  species  of  interpretation  has 
generally  been  called  literal,  but  the  term  is 
inadmissible.'  Extensive  interpretation  (or 
liberal)  adopts  a  more  comprehensive  significa- 
tion of  the  word.  Extravagant  interpretation 
is  that  which  substitutes  a  meaning  evidently 
beyond  the  true  one ;  it  is,  therefore,  not 
genuine  interpretation.  Free  or  unrestricted 
interpretation  proceeds  simply  on  the  general 
principles  of  interpretation  in  good  faith,  not 
bound  by  any  specific  or  superior  principle. 
Limited  or  restricted  interpretation  is  when  we 
are  influenced  by  other  principles  than  are 
strictly  hermeneutic  ones."  Predestined  inter- 
pretation takes  place  if  the  interpreter,  laboring 
under  a  strong  bias  of  mind,  makes  the  text 
subservient  to  his  preconceived  views  or  desires. 
This  includes  artful  interpretation,  by  which  the 
interpreter  seeks  to  give  a  meaning  to  the  text 
other  than  the  one  he  knows  to  have  been  in- 
tended. 

There  can  be  no  sound  interpretation  without 
good  faith  and  common  sense.  The  object  of 
all  interpretation  and  construction  is  to  ascer- 
tain the  intention  of  the  authors,  even  so  far  as 
to  control  the  literal  signification  of  the  words  ; 
for  words  are  to  be  so  understood  that  the 
subject-matter  may  be  preserved  rather  than 
destroyed.''  Words  are,  therefore,  to  be  tikcn 
as  those  who  used  ihem  intended,  which  mu.st 
be  presumed  to  be  their  popular  and  ordinary 
signification,  unless  there  is  some  good  reason 
for  supposing  otherwise,  as  where  technical 
terms  are  used.  When  there  is  no  ambiguity 
in  the  words,  then  no  exposition  contrary  to  the 
words  is  to  be  made."  WUen  words  have  two 
senses,  of  which  one  only  is  agreeable  to  the 
law,  that  one  must  prevail.*  When  they  are  in- 
consistent with  the  evident  intention  they  will 
be  rejected.*  When  words  are  inadvertently 
omitted,  and  the  meaning  is  obvious,  they  will 
be  supplied  by  inference  from  the  context.  Im- 
possible things  cannot  be  required.  The  sub- 
ject-matter and  nature  of  the  context,  or  its 
objects,  causes,  effects,  consequences,  or  prece- 

Lieber,  Leg.  &  Pol.  Hermeneiitics.  «-Lieber  Herm. 
66.  »-Ernesti  Inst.  Interpretis.  b-Bac.  Max.  Reg.  3, 
Plowd.  156;  2  Bl.  Comm.  380:  2  Kent  Comm.  555.  C- 
Co.  Litt.  147;  Broom  Max.  (3d  Lend.  Eld.)  850.  d- 
Cowp.  714.     e-2  Atk.  Ch.  32. 


ai4 


CONTRACTS. 


dents,  or  the  situation  of  the  parties,  must  often 
be  consulted  in  order  to  arrive  at  their  inten- 
tion, as  where  words  have,  when  literally  con- 
strued, either  no  meaning  at  all  or  a  very  absurd 
one.  The  whole  of  an  instrument  must  he 
viewed  together,  and  not  each  part  taken  sepa- 
rately ;  and  effect  must  be  given  to  every  part, 
if  possible.  Assistance  must  be  sought  from 
the  more  near  before  proceeding  to  the  remote. 
When  one  part  is  totally  repugnant  to  the  rest 
jl  will  be  stricken  out ;  but  if  it  is  only  explan- 
atory it  will  operate  as  a  limitation.  Reference 
to  the  lex  loci  on  the  usage  of  a  particular  place 
or  trade  is  frequently  necessary  in  order  to  ex- 
plain the  meaning. 

Words  spoken  cannot  vary  the  terms  of  a 
written  agreement;  they  may  overthrow  it. 
Words  spoken  at  the  time  of  the  making  of  a 
written  agreement  are  merged  in  the  writing.*' 
There  are  exceptions  to  this  rule,  as  in  a  case  of 
fraud.'  Where  there  is  a  latent  ambiguity 
which  arises  only  in  the  application  and  does 
not  appear  upon  the  face  of  the  instrument,  it 
may  be  supplied  by  other  proof  ;J  for  an  ambi- 
guity which  arises  out  of  a  fact  may  be  removed 
by  proof  of  the  fact.^  The  rule  that  an  agree- 
ment is  to  be  construed  most  strongly  against 
the  party  benefited  can  only  be  applied  in 
doubtful  cases.  The  more  the  text  partakes 
of  a  solemn  compact,  the  stricter  should  be  its 
construction.  Penal  statutes  must  be  strictly 
interpreted;  remedial  ones  liberally ;'  and  gen- 
erally, in  regard  to  statutes,  the  construction 
given  them  in  the  country  where  they  were  en- 
acted will  be  adopted  elsewhere.  The  general 
expressions  used  in  a  contract  are  controlled  by 
the  special  provisions  therein.  In  agreements 
relating  to  real  property,  the  lex  rei  sitce  pre- 
vails ;  in  personal  contracts,  the  lex  loci  con- 
tractus, except  where  they  are  to  be  performed 
in  another  country,  and  then  the  law  of  the 
latter  place  governs."  When  there  are  two 
repugnant  clauses  in  a  deed  which  cannot  stand 
together,  the  first  prevails ;  with  a  will  the  re- 
verse is  the  case.  In  all  instruments  the  written 
part  controls  the  printed.  Dates  and  amounts 
written  at  length  are  preferred  before  figures. 

In  addition  to  the  above  rules,  there  are 
many  presumptions  of  law  relating  to  agree- 
ments, such  as,  that  the  parties  to  a  simple 
contract  intend  to  bind  their  personal  repre- 
sentatives ;  that  where  several  parties  contract 
without  words  of  severalty,  they  are  presumed 
to  bind  themselves  jointly;  that  every  grant 
carries  with  it  whatever  is  necessary  to  its  en- 
joyment ;  when  no  time  is  mentioned  a  reason- 

h-5  Co.  26 :  2  B.  &  C.  634  ;  4  Taunt.  779.  l-i  S.  & 
R.  464;  10  Id.  292.  j-r  Dali.  426  :  4  Id.  340;  3S.&R. 
609.  k-Bac.  Max.  fteg.  23 :  8  Bingh.  247  :  see  i  Pow- 
ell Dev.  477;  2  Kent  Comm.  557;  Broom  Max.  (3d 
Lond.  Ed.)  541  :  13  Pet.  97:  8  Johns.  90;  3  Halst.  71. 
l-i  Bl.  Comm.  88  ;  6  W.  &  S.  276 ;  3  Taunt.  377.  in-2 
Mass.  88:  i  Pet.  317;  Story  Confl.  L.  ?  242  ;  4  Cow. 
410,  w.;  2  Kent  Comm.  39,  457,  «o/«,-  3  Conn.  253, 
472:  4  Id.  517;  I  Wash.  C.  C.  253;  see  12  Mass,  4.  n- 
See  COHSTRUCTION,  above.  0-3"See  Binn.  337  ;  4  S.  _& 
R.  279;  7  Id.  372;  5  Id.  100:  10  Mass.  384 ;  3  Cranch. 
t8o;  3  Rand.  586.  |»-2  Watts,  347.  q-i  Penn  388. 
r->    Dallas,  65,  348;    Addis.   Contr.   385.     tt-Hamm. 


able  time  is  meant;  and  other  presumptions 
arising  out  of  the  nature  of  the  case." 

It  is  the  duty  of  the  court  to  interpret  all 
written  instruments,"  written  evidence,P  and 
foreign  laws.i  See  Alteration;  Construc- 
tion ;  Erasure,  above. 

JOINT  CONTRACTS  are  those  in  which 
the  contractors  are  jointly  bound  10  perform  the 
promise  or  obligation  therein  contained,  or  en- 
titled to  receive  the  benefit  of  such  promise  or 
obligation.  It  is  a  general  rule  that  a  joint 
contract  survives,  whatever  may  be  the  benefi- 
cial interests  of  the  parties  under  it.  When  a 
partner,  covenanter,  or  other  person  entitled, 
having  a  joint  interest  in  a  contract  not  running 
with  land,  dies,  the  right  to  sue  survives  in  the 
other  partner,  etc'  And  when  the  promise  or 
obligation  is  to  perform  something  jointly  by 
the  promissors  or  obligors,  and  one  dies,  the 
action  must  be  brought  against  the  survivor.* 
When  all  the  parties  interested  in  a  joint  con- 
tract die,  the  action  must  be  brought  by  the 
executors  or  administrators  of  the  last  surviving 
obligee  against  the  executors  or  administrators 
of  the  last  surviving  obligor.' 

JUDGMENT.  The  whole  purpose  of  the 
law  being  to  settle  questions  and  terminate  dis- 
putes, it  will  not  permit  a  question  which  has 
been  settled  to  be  tried  again.  But  the  party 
insisting  on  the  former  recovery  as  a  bar  to  an 
action,  must  show  that  the  record  of  the  former 
suit  includes  the  matter  alleged  to  have  been 
determined."  Consequently,  where  the  decla- 
ration in  the  first  suit  slates  a  particular  matter 
as  the  ground  of  action,  and  issues  taken  by 
the  defendant,  parol  proof  is  inadmissible  to 
show  that  a  different  subject  was  litigated  upon 
the  trial.^  A  judgment  on  the  same  matter  in 
issue  is  a  conclusive  bar." 

Law  of.  See  Construction,  Interpreta- 
tion, above. 

LEGISLATION.  All  those  whose  inter- 
ests are  to  be  affected  by  legislation  may,  both 
morally  and  legally,  for  the  protection  or  ad- 
vancement of  their  interests,  use  all  means  of 
persuasion  which  do  not  come  too  near  bribery 
or  corruption ;  but  the  promise  of  any  personal 
advantage  to  a  legislator  is  open  to  objection, 
and  therefore  void.*  And  a  contract  tending 
to  corrupt  appointment  to  office,  even  by  a 
private  corporation,  is,  for  a  similar  reason, 
void.y 

LETTERS.  Where  a  proposition  is  made 
by  letter,  the  mailing  a  letter  containing  an 
acceptance  of  the  proposition  completes  the 
contract.* 

Partn.  156;  Barb.  Partn.  t-Addis.  Contr.  285.  n-3 
Comst.  173.  v-3  Gray,  83  ;  2  Kernan,  84;  Id.  343.  w 
20  Howell  s  St.  Tr's  538  ;  2  Gallison,  229  ;  4  Watts,  191 ; 
Peters  C.  C.  202 ;  3  Cowen,  120 ;  4  Id.  559 ;  3  East.  346 ; 
I  G.  Greene,  421  ;  3  Denio,  238  ;  4  Comst.  71.  X-s  Watti 
&  S.  315;  6  Dana.  366:  4  M.  &  W.  361  :  7  Watts,  152; 
3  Esp.  253;  18  Pick.  472;  I  Aikens,  264:  5  Halst.  87; 

10  Barb.  489;  16  How.  341.  y-Davidson  vs.  Seymour, 
I  Bosw.  88.  z-i  B.&  Aid.  681 ;  6  Hare,  i  :  1  Ho.  Lds. 
Cas.  381;  7  M.  &  W.  515;  21  N.  H.4i  ;  4  Paige  Ch.  17; 

11  N.  Y.  441  ;  4  Ga.  1  ;  12  Conn.  431  ;  7  Dana,  281  ;  f 
Port.  Al.T.  605  ;  5  Penn.  St.  339 ;  9  How.  390 ;  4  WheaT 
328  :  see  i  Pick.  281 ;  Parsons  Mar.  L.  32,  n. 


CONTRACTS. 


215 


Maintenance.  See  Champerty,  above. 

Mandate.  See  Bailments. 

MARITIME  CONTRACTS  include, 
among  others,  bills  ot  lading,  charter  parties, 
contracts  of  affreightment,  marine  hypotheca- 
tions, contracts  for  maritime  service,  in  build- 
ing, repairing,  supplying,  and  navigating  ships 
or  vessels,  contr.icis  and  quasi  contracts  for 
averages,  contributions,  and  jettisons.'  The 
term  "  maritime  contract "  in  its  ordinary  and 
proper  signification  does  not  strictly  apply  to 
contracts  relating  to  the  navigation  of  our  great 
inland  lakes  and  rivers ;  and  yet  contracts  in 
respect  to  their  navigation  from  State  to  State 
are  within  the  admiralty  jurisdiction  of  the 
United  States  to  the  same  extent  as  though  they 
were  arms  of  the  sea  and  subject  to  tidal  influ- 
ences.** Such  contracts  are,  therefore,  denomi- 
nated maritime  contracts. 

MEMORANDUM  is  an  informal  written 
instrument  recording  some  agreement  or  fact, 
and  is  usually  commenced  thus,  "  Memoran- 
dum, that  it  is  agreed,"  etc.,  or,  "  Be  it  remem- 
bered that,"  etc.  It  is  also  a  noting  of  the 
chief  points  of  the  agreement  or  contract.  It 
should,  to  have  any  effect,  be  signed  by  both 
parties,  or  by  a  disinterested  person  who  has  a 
competent  knowledge  of  its  character  and  the 
circumstances  to  which  it  refers.  If  the  par- 
ties sign  it,  it  binds  them.  If  a  witness  sign 
it,  it  is  merely  corroborative  evidence  of  the 
matters  noted. 

MISNOMER.  The  use  of  a  wrong  name 
or  a  mistake  in  a  name  in  contracts  will  not, 
in  general,  avoid  the  contract  if  the  party  can 
be  ascertained." 

MIS-READING  OR  MIS-RECITAL 
of  an  agreement,  contract,  or  other  written 
instrument  to  an  illiterate  or  blind  man  who  is 
a  party  to  it  amounts  to  a  fraud,  because  the 
contract  never  had  the  assent  of  both  parties."* 

MISREPRESENTATION  must  be  both 
false  and  fraudulent  in  order  to  make  a  party 
making  it  responsible  to  the  other  for  damages.* 
Misrepresentation  as  to  a  material  part  of  the 
consideration  will  avoid  an  executory  contract.' 
A  misrepresentation,  to  constitute  fraud,  must 
be  contrary  to  fact;  the  party  making  it  must 

»-See  2  Gall.  C.  C.  398,  et  seq. ;  20  How.  U.  S.  393  ; 
7  Id.  729 ;  19  Id.  171.  b-i2  How.  U.  S.  443,  468.  c-ii 
Co.  20 ;  Ld.  Raym.  384 ;  Hob.  125  ;  see  i  Roper  Leg. 
131  ;  19  Ves.  Ch.  381.  d-5  Co.  19;  6  East.  300;  Dane 
Abr.  c.  86,  A.  3,^7:  2  Johns.  404  ;  12  Id.  469  ;  3 Cow.  537. 
e-3  Conn.  413;  10  Mass.  197:  i  Const.  328,  475;  Met. 
Yelv.  21  a.  n  i ;  PeakeCas.  115  ;  3  Campb.  154  :  Marsh. 
Inst.  b.  I  c.  10  s.  I ;  and  see  5  M.  &  S.  380 ;  12  East.  638  : 

kBos.  &  P.  370.  f-i  Phillips  Ins.  ^^  630,  675.  jf-2 
ent  Comm.  471  :  i  Story  Eq.  Jur.  ^  142  ;  4  Price,  135  ; 
3  Conn.  597;  22  Me.  511 ;  7  Gmtt.  64,  239:  6  Ga.  458: 
5  Johns.  Ch.  182;  6  Paige  Ch.  197  ;  i  Story  C.  C.  172 


;  Woodb.   &  M.   342.     h-5  Q.'B.  8o4:yid._  197;' 10 
i;i4ld' 

•  10 :  It  la.  3; 
(Mass.)  I ;  27  Me.  309  ;  7  Vt.  67,  79  ;  6  N.  H.  99.     1- 


M.  &  W.  147;   II  Id.  401  ;   14  Id.  651 ;  7  Cranch.  69  :  13 
How.  211 ;  8  Johns.  25  :  7  Wend.  10  ;  11  Id.  375  ;  i  Met. 


Pick.  96:  I  Mot.  (Mass.)  193;  3  Id.  469  :  6  Id.  245;  27 
Me.  309;  16  Wend.  646,  16  Ala.  785;  i  Bibb.  244;  4  B. 
Mon.  601 ;  3  Cranch.  281.  j-Rawle  Cas.  (3d  Ed.)  622  ; 
14  N.  H.  3JI ;  I  Woodb.  &  M.  C.  C.  90,  342 ;  2  Id.  298 ; 
2  Strobh.  Lq.  14;  2  Bibb.  474  ;  8  B.  Mon.  23:  4  How. 
(Miss.)  485:  3  Cranch.  282  :  3  Yerg.  178;  19  Ga.  448  : 
5  Blackf.  18:  see  13  Me.  262;  12  Pet.  26;  23  Wend. 
•60;    7  Barb.  65.     U-Story  Exj.  Jur.  g  no.    1-Jcrcmy 


know  it  to  be  so,«  excluding  cases  of  mere  mis- 
take,'' and  including  cases  where  he  falsely  as- 
serts a  personal  knowledge,'  and  one  which 
gave  rise  to  the  contracting  of  the  other  party; 

MISTAKE  is  some  unintentional  act,  omis- 
sion, or  error  arising  from  ignorance,  surprise, 
imposition,  or  misplaced  confidence.''  That 
result  of  ignorance  of  law  or  fact  which  has 
misled  a  person  to  commit  that  which,  if  he  had 
not  been  in  error,  he  would  not  have  done.' 

As  a  general  rule,  mistakes  of  law  do  not 
furnish  an  excuse  for  wrongful  acts,  or  a  ground 
of  relief  from  the  consequences  of  acts  done  in 
consequence  of  such  a  mistake.""  An  act  done 
or  a  contract  made  under  a  mistake  or  ignor- 
ance of  a  material  fact  is  voidable  and  reliev- 
able."  The  rule  applies  to  cases  where  there 
has  been  a  studied  suppression  of  facts  by  one 
side,  and  to  cases  of  mutual  ignorance  or  mis- 
take." But  the  fact  must  be  material  to  the 
contract,  i.  e.,  essential  to  its  character,  and  an 
efficient  cause  of  its  concoction.P  A  mistake 
sometimes  prevents  a  forfeiture  in  cases  of  viola- 
tion of  revenue  laws."> 

An  award  may  be  set  aside  for  a  mistake  of 
law  or  fact  by  the  arbitrators  apparent  on  the 
face  of  the  papers.' 

The  word  which  the  parties  intended  to  use 
in  an  instrument  may  be  substituted  for  one 
which  was  actually  used  by  a  clerical  error.* 

MODIFICATIONS  or  changes  in  the 
contract  may  be  provided  for  at  the  time  of 
making  the  contract  by  a  condition  which  shall 
have  that  effect;  for  example,  if  I  sell  you  a 
thousand  bushels  of  grain  upon  condition  that 
my  crop  shall  produce  so  much,  and  it  only 
produces  eight  hundred  bushels,  the  contract  is 
modified;  it  is  for  eight  hundred  bushels,  or 
whatsoever  is  produced,  and  no  more.  A  con- 
tract may  be  modified  by  the  consent  of  both 
parties  after  it  has  been  made.' 

Mutuality.  See  Obligation  of,  below. 

NAKED  CONTRACTS  are  those  made 
without  consideration ;  for  this  reason  they  are 
void.  A  naked  contract  is  a  mere  agreement 
without  the  requisites  necessary  to  confer  upon 
it  a  legal  obligation  to  perform."     The  term 

Ex.  Jur.  B.  2  Pt.  2,  p.  358.  in-6  Clark  &  F.  Ho.  L 
964-971 ;  9  M.  &  W.  54  ;  5  Hare  Ch.  91  ;  8  Wheat  214  ; 
I  Pet.  15;  9  How.  55:  7  Paige  Ch.  99,  137;  2  Johns. 
Ch.  60:  Story  Eq.  Jur.  ^j>  125-138;  see  2  M'Cord  Ch. 
455:  6  Harr.  &  J.  500 ;  25  Vt.  603;  De  Gex  M.  &  G. 
76  ;  21  Ala.  (N.  S.)  252  ;  13  Ark.  129  ;  6  (Jhio,  1O9 :  n 
Id.  480;  21  Ga.  118:  Beasl.  Ch.  165  n-Story  Exj  Jur. 
§  140.  0-3  Burr.  21  ;  26  Beav.  Rolls.  454  :  12  Sim.  Ch. 
465  ;  9  Ves.  Ch.  275  ;  3  Chanc  Cas.  56  ;  2  Barb.  475  ;  i 
Hill,  287;  II  Pet.  71  ;  8  B.  Mon.  580;  4  Mas.  C  C. 
414  ;  5  R.  I.  130.  p-i  Ves.  Ch.  126,  210;  De  Gex  &  S. 
83;  6  Binn.  82;  11  Gratt.  468:  2  Barb.  37;  2  Sandf. 
Ch.  298;  13  Penn.  St.  371.  q-Paine  C.  C.  129;  Gilp. 
Dist.  Ct.  235;  4  Call,  158,  and  some  other  cases;  i 
Bishop  Cr.  L.  §  697;  4  Cranch,  347:  11  Wheat,  i  ;  u 
Id.  I  :  I  Mass.  347.  r-2  P..  &  P.  371  :  1  Dall.  487;  i 
Sneed.  321  ;  see  6  Met.  (Mass.)  136;  17  How.  344;  6 
Pick.  148;  2  Gall.  C.  C.  61:  4  N.  H.  357:  3  Vt,  308:  6 
Id.  529  ;  13  III.  461  ;  2  '  .  &  -Aid.  691  ;  3  Id.  237  :  i  Bingh. 
104;  I  Dowl.  &  R.  366:  I  Taunt.  152;  6  Id.  254;  3  C. 
B.  705;  2  Exch.  344:  3  East.  18.  M-Adams  Eq.  169, 
etseq.:  13  Gray,  373:  6  Ired.  Eq.  462;  17  Ala.  (N.  S.) 
562.  t-See  I  Bouv.  Inst.  n.  733.  n-3  McLean.  C.  C. 
330;  2  Denio,  403;  6  Ired  480;  I  Strobh.  329;  i  Gc 
294 ;  I  Dougl.  188. 


si6 


CONTRACTS. 


and  the  rule  which  decides  upon  the  nullity  of 
its  effects  are  borrowed  from  the  civil  law/ 

Negotiable  Contracts.  See  Bills  of 
Exchange,  Bonds  and  Notes. 

NOTICE.  When  contracts  express  that 
they  are  to  be  done  "  on  notice,"  either  a  gen- 
eral or  some  specified  notice,  such  notice  is  in- 
dispensable.* Generally,  where  anything  is  to 
be  done  by  one  party  on  the  performance  of 
some  act  by  the  other,  this  other  must  give 
notice  of  such  act.* 

OBLIGATION  OF.  The  legal  obliga- 
tion of  a  contract  consists  in  the  right  of  either 
party  to  have  it  enforced  against  the  other,  or 
to  recover  compensation  for  its  breach  by  due 
process  of  law.' 

Obligations  are  absolute  when  they  give  no 
alternative  to  the  obligor,  but  requires  fulfilment 
according  to  the  engagement.  Accessory  obli- 
gations are  dependent  on  the  original  or  princi- 
pal obligation — as,  if  I  sell  you  a  house  and 
grounds,  the  principal  obligation  on  my  part 
is  to  make  you  a  title  for  it ;  the  accessory  obli- 
gation is  to  deliver  you  all  the  title  papers 
which  I  have  relating  to  it,  and  take  care  of  the 
estate  till  it  is  delivered  to  you  and  the  like. 
Alternative  obligations  are  those  where  a  per- 
son engages  to  do  or  to  give  several  things  in 
such  a  manner  that  a  payment  or  performance 
of  one  will  acquit  him  of  all — as  if  A.  agrees 
to  give  B.,  upon  sufficient  consideration,  a 
horse  or  one  hundred  dollars,  it  is  an  alterna- 
tive obligation.*  It  is  necessary  that  two  or 
more  things  should  be  promised  disjunctively; 
where  they  are  promised  conjunctively  there 
are  as  many  obligations  as  there  are  things 
enumerated ;  but  where  they  are  in  the  alterna- 
tive, though  they  are  all  due,  there  is  but  one 
obligation,  which  may  be  discharged  by  the 
payment  or  performance  of  any  of  them.  The 
choice  of  performing  one  of  the  obligations 
belongs  to  the  obligor,  unless  it  is  expressly 
•^  agreed  that  it  shall  belong  to  the  creditor.*  If 
one  of  the  acts  is  prevented  by  the  obligee,  or 
the  act  of  God,  the  obligor  is  discharged  from 
both.*"  Civil  obligations  are  those  having  a 
binding  operation  in  law,  and  which  gives  the 
obligee  the  right  of  enforcing  it  in  a  court  of 
justice.  They  are  such  engagements  as  are 
binding  on  the  obligor."  They  are  divided  into 
express,  implied,  pure,  conditional,  absolute,  al- 
ternative, determinate,  indeterminate,  divisible, 
indivisible, single,  penal,  joint,  and  several ;  they 
are,  also,  purely  personal,  purely  real,  or  mixed. 
Conditional  obligations  are  those  whose  execu- 
tion is  suspended  by  a  condition  which  has  not 
been  accomplished,  and  subject  to  which  it  has 
been  contracted.  Determinate  obligations  are 
those  having  for  their  object  a  certain  thing; 
as,  a  delivery  of  the  horse,  H.;  this  obligation 
^an  only  be  discharged  by  delivering  the  identi- 
cal horse.     Divisible  obligations  are  those  that, 

T-DiR.  19,  55  ;  see  Fonbl  Eq.  335  :  2  Kent.  Comm. 
364  :  6  Toubl.  10,  n.  13  w-a  Wms..  Saund.  62,  a.  n.  (4) ; 
a  Bulstr  144;  23  Pick.  400  ;  i  Met.  189.  X-6M.&W. 
M*:  8  Dowl,  P.  C.  377;  4  Jur.  509;  7  M.  &  W.  126: 
Via.  Arb.  "  Condition"  (A.  d.)  pL  15  S.  C.  n^m.  Cro. 


though  being  a  unit,  are  susceptible  of  being 
lawfully  divided  with  or  without  the  consent 
of  the  parties.  See  Apportionment,  above. 
Express  obligations  are  those  by  which  the 
obligor  binds  himself  in  express  terms  to  per- 
form his  obligation.  Imperfect  obligations  are 
those  which  are  not  binding  on  us  as  between 
individual  and  individual,  but  for  whose  per- 
formance we  are  accountable  to  the  Almighty 
only,  such  as  charity  or  gratitude;  in  this 
sen.se  an  obligation  is  a  mere  duly.*  Implied 
obligations  are  those  which  arise  by  implication 
of  law;  as,  if  one  send  you  daily  a  loaf  of 
bread,  a  newspaper,  or  periodical,  or  the  like, 
as  to  a  regular  customer  or  subscriber,  without 
any  express  authority,  and  you  make  use  of  it 
in  your  family,  the  law  raises  an  obligation  on 
your  part  to  pay  the  baker  or  publisher  the  value 
of  the  bread,  newspapers,  or  periodicals,  etc. 
Indeterminate  obligations  are  those  where  the 
obligor  binds  himself  to  deliver  one  of  a  cer- 
tain species,  as  a  horse,  and  the  delivery  of  any 
horse  will  discharge  the  obligation.  Indivisi- 
ble obligations  are  those  not  susceptible  of  di- 
vision ;  as,  if  I  promise  to  pay  you  a  hundred 
dollars,  you  cannot  assign  one-half  of  this  to 
another  so  as  to  give  him  a  right  of  action 
against  me  for  his  share.  Joint  obligations  are 
those  by  which  two  or  more  obligors  promise 
the  obligee  to  perform  an  obligation.  When 
the  obligation  is  only  joint,  and  the  obligors  do 
not  promise  separately  to  fulfil  their  engage- 
ment, they  must  be  all  sued,  if  living,  to  com- 
pel the  performance,  or,  if  they  be  dead,  the 
survivors  must  all  be  sued.  Natural  or  moral 
obligations  are  those  which  cannot  be  enforced 
by  action,  but  which  is  binding  on  the  party 
who  makes  it  in  conscience  and  natural  justice. 
Penal  obligations  are  those  embraced  in  a  penal 
clause,  which  is  to  be  enforced  if  the  principal 
obligation  is  not  performed.  See  Damages, 
above.  Perfect  obligations  are  those  which 
give  a  right  to  another  to  require  us  to  give 
another  something  or  to  do  something;  they 
are  either  natural,  moral,  or  civil.  Personal 
obligations  are  those  by  which  the  obligor 
binds  himself  to  perform  an  act  without  directly 
binding  his  property  for  its  performance ; 
it  also  denotes  an  obligation  in  which  the 
obligor  binds  himself  only,  not  including  his 
heirs  or  representatives.  Primitive  or  principal 
obligations  are  those  which  are  contracted  with 
a  design  that  they  should  be  the  first  fulfilled. 
Principal  obligations  are  those  which  are  the 
most  important  objects  of  the  engagement  of 
the  contracting  parties.  Pure  or  simple  obli- 
gations are  those  which  are  not  suspended  by 
any  condition;  either  because  contracted  with- 
out condition,  or  because  contracted  with  one 
which  has  been  fulfilled.  Real  obligations  are 
those  by  which  real  estate  and  not  the  person  is 

Jac.  432  ;  2  C.  &  P.  610;  1  Bulstr.  12.  y-2  Kas.  135. 
«-Poth.  Ob.  Pt.  2,  Ch.  3,  Art.  6,  No.  245  a-Dougl 
14:  I  Ld.  Raym.  279;  4  Mort.  (Jv'.  S.)  167.  b-See  2 
Evans  Poth.  Ob.  52-54:  Viner.  Abr.  Condition  (S.  C). 
c-4  Wheat.  197;  12  Id.  318,  337.  d-Poth,  Obi.  Art 
Prel.  B.  I. 


CONTRACTS. 


117 


liable  to  the  obligee  for  the  performance.  As, 
when  a  person  buys  an  estate  subject  to  a  mort- 
gage, he  is  not  liable  for  the  debt,  but  the  estate 
is.  Secondary  obligations  are  those  which  are 
contracted  to  be  performed  in  case  the  primitive 
cannot  be.  As,  if  I  sell  you  my  house,  I  (pri- 
marily) bind  myself  to  give  you  a  title;  if  I 
cannot,  my  secondary  obligation  is  to  pay  you 
damages  for  my  non-performance  of  the  pri- 
mary obligation.  Several  obligations  are  those 
by  which  one  or  more  individuals  bind  them- 
selves separately  to  perform  an  engagement.  In 
this  case  each  obligor  may  be  sued  separately  ; 
and  if  one  or  more  of  them  be  dead,  their  re- 
spective legal  representatives  may  be  sued. 
Single  obligations  are  those  without  penalty,  as 
where  I  promise  simply  to  pay  you  one  hundred 
do]l\rs. 

Impairing  the  Obligation  of  Contracts. 
The  constitution  of  the  United  States  pro- 
vides that  "  no  State  shall-  pass "  "  any  law 
impairing  the  obligation  of  contracts."'  In 
general,  only  contracts  are  embraced  in  this 
provision  respecting  property  or  some  object 
of  value,  and  confer  rights  which  can  be 
asserted  in  a  court  of  justice.  The  law  of 
place  acts  upon  a  contract,  and  governs  its 
construction,  validity,  and  obligation,  but  con- 
stitutes no  part  of  it.  The  law  explains  the 
stipulations  of  the  parties,  but  never  supercedes 
or  varies  them.  This  is  very  different  from 
supposing  that  every  law  applicable  to  the  sub- 
ject-matter, as  statutes  of  limitation  and  insol- 
vency, enters  into  and  becomes  a  part  of  the 
contract;  this  can  neither  be  drawn  from  the 
terms  of  the  contract,  nor  presumed  to  be  con- 
templated by  the  parties  to  the  contract.  There 
is  a  broad  distinction  taken  as  to  the  obligation 
of  a  contract  and  the  remedy  upon  it.  The 
abolition  of  all  remedies  by  a  law  operating  at 
the  present  time  is,  of  course,  an  impairing  of 
the  obligation  of  the  contract.  But  a  legisla- 
ture may  vary  the  nature  and  extent  of  reme- 
dies, as  well  as  the  times  and  modes  in  which 
these  remedies  may  be  pursued,  and  for  suits 
not  brought  within  such  times  as  may  be  pre- 
scribed. A  reasonable  time  within  which  rights 
are  to  be  enforced  must  be  given  by  laws  which 
bar  certain  suits.'  The  meaning  of  the  obliga- 
tion is  important  with  regard  to  the  distinction 
taken  between  the  laws  existing  at  the  time  the 
contract  is  entered  into  and  those  which  are 
enacted  afterwards.  The  former  are  consid- 
ered to  have  been  in  contemplation  of  the  par- 
ties, and  so  far  a  part  of  their  contract ;  the 
latter  are  said  to  impair,  provided  they  affect 
the  contract  at  all.     See  Laws. 

OFFERS  or  propositions  to  do  a  thing 
should  contain  a  right,  if  accepted,  of  com|5el- 
ling  the  fulfillment  of  the  contract ;  and  this 

••Const.  U.  S.  Art.  i,  2  10,  clause  i  ;  see  title  Laws, 
siibdiv.  Impairing  Obligation  op  Contracts,  f-3 
Pet.  290:  I  How.  311 :  2  Id.  608;  2  Gall.  C.  C.  141 :  8 
Mass.  430  ;  I  Blacicf.  36 :  2  Me.  293  :  14  Id  344 ;  7  Ga. 
163  ;  21  Miss.  395  ;  i  Hill  fS.  C.)  328  :  7  B.  Mon.  162  ; 
o  Barb.  489.  jif-io  Ves.  Ch.  438;  2  C.  &  P.  553.  h-4 
Wheat.  225;  3  Johns.  534;  7  Id.  470;  6  Wend.  103.  1- 
6  Wend.  103.     j-i  Chitty  Contr.  i ;    7  T.  R.  350,  351, 


right  when  not  expressed  is  always  implied. 
Persons  may  change  their  will  at  any  time  if  it 
be  not  to  the  injury  of  another;  they  may, 
therefore,  revoke  or  recall  their  offers  at  any 
time  before  they  have  been  accepted,  and  in 
order  to  deprive  them  of  this  right  the  offer 
must  have  been  accepted  on  the  terms  in  which 
it  was  made.*  Any  qualification  of,  or  depar- 
ture from,  these  terms,  invalidates  the  offer, 
unless  the  same  be  agreed  to  by  the  party  who 
made  it.**  When  the  offer  has  been  made,  the 
party  is  presumed  to  be  willing  to  enter  into 
the  contract  for  the  time  limited ;  and,  if  it  be 
not  fixed  by  the  offer,  then  until  it  be  expressly 
revoked  or  rendered  nugatory  by  a  contrary 
presumption.'     See  Acceptance. 

PAROL  CONTRACTS  are  those  which 
are  made  verbally  or  in  writing  not  under  seal 
— for  those  which  are  under  seal  are  such  as 
deeds  or  specialties,  and  embrace  bonds,  judg- 
ments, recognizances,  undertakings,  etc.,  etcJ 

A  contract  which  is  made  under  seal,  and 
afterwards  modified  verbally,  becomes  thereby 
wholly  a  parol  contract.*  In  States  where  seals 
are  abolished  the  principle  of  distinction  in 
contracts  is  still  the  same,  though  no  seal  be 
required. 

PARTIES  may  act  independently  and  sev- 
erally, or  jointly  and  severally. 

They  may  act  as  representatives  of  others,  as 
agents,  factors,  and  brokers,  servants,  attorneys, 
trustees,  executors  and  administrators,  and  guar- 
dians. 

They  may  act  in  a  collective  capacity,  as 
corporations,  joint-stock  companies,  and  part- 
nenships. 

They  may  be  new  parties,  by  novation,  as- 
signment, and  by  indorsement. 

They  may  be  parties  disabled  in  whole  or  in 
part,  as  infants,  married  women,  bankrupts  or 
insolvents,  non  compos  mentis,  drunkards,  etc. 

In  general,  all  persons  may  be  parties  to  con- 
tracts ;  but  no  person  can  contract  with  himself 
in  a  different  capacity  (as  A.,  being  a  member 
of  the  firm  of  A.  &  Co.,  he  cannot  contract  with 
the  firm  of  A.  &  Co.,  because  he  cannot  contract 
with  himself )  as  there  must  be  an  agreement 
of  minds.'  And  no  want,  immaturity,  or  inca- 
pacity of  mind,  in  the  consideration  of  the  law, 
disables  a  person  from  becoming  a  party.  Such 
disability  may  be  entire  or  partial,  and  must  be 
proved." 

In  case  of  death  of  a  sole  party  the  debt  or 
contract  survives  against  his  heirs,  executors, 
and  administrators. 

In  case  of  the  death  of  one  or  more  of  the 
joint  obligors  or  promisors  the  joint  debt  or 
contract  survives  against  his  heirs,  executors, 
or  administrators  of  the  deceased  obligor  or 
promisor,  as  well  as  against  the  survivors. 

n.:  3  Johns.  Cas.  60  :  i  Chitty  PI  88.  K-2  Watts.  451 : 
9  Pick  298  :  3  Wend.  71.  I-i  Vern.  Ch.  465;  2  Atk. 
Ch.  59:  9  Ves.  Ch.'?34:  12  Id.  372;  13  Id.  156:  » 
Brown  Ch.  400:  I  Pet.  CC.  373:  3  Binn  54  :  7  Watts, 
387  ;  II  S.  &  R.  210  ;  9  Paige  Ch.  238,  650  ;  3  Sandf  61  : 
2  Johns.  Ch.  2t;2 :  4  How.  503.  111-2  Stark.  326;  i 
Esp-  353  I  T.R.  648:  II  Ad.  &  E.  634  :  7  L.  J.  Exch. 
•33- 


stS 


CONTRACTS. 


When  all  the  obligors  or  promisors  die,  the 
debt  or  contract  survives  against  the  heirs,  ex- 
ecutors, and  administrators  of  all  the  deceased 
joint  obligors  and  promisors. 

Partnership.     See  that  title. 

PAYMENT  to  an  agent  in  the  ordinary 
course  of  business  binds  the  principal,  unless 
the  latter  has  notified  the  debtor  beforehand 
that  he  requires  the  payment  to  be  made  to 
himself."  Payment  to  an  attorney  is  as  effectual 
as  if  made  to  the  principal  himself,"  but  not  so 
»o  an  agent  of  the  attorney  appointed  by  the 
attorney  to  see  the  debtor  ;P  and  where  one  con- 
tracts to  do  work  and  sues  for  the  price,  the 
defendant  may  prove  that  the  plaintiff  had  a 
partner  in  the  undertaking,  and  that  he  has  paid 
that  partner."!  It  is  a  general  rule  that  payment 
to  one  partner  is  good,  and  binds  the  firm.''  So 
payment  to  one  of  two  joint  creditors  is  good, 
though  they  are  not  partners  in  business.*  Pay- 
ment to  the  creditor's  wife  will  not  be  a  good 
payment,'  unless  she  was  his  agent,  either  ex- 
pressly or  by  course  of  business."  One  may  be 
justified  in  making  payments  to  a  party  who  is 
sitting  in  the  creditor's  counting-room,  and  ap- 

Earently  intrusted  with  the  transaction  of  the 
usiness,  and  authorized  to  receive  the  money, 
although  lie  be  not  so  in  fact.'  In  general,  it 
is  only  a  money  payment  that  binds  the  princi- 
pal* so  that  he  is  not  affected  by  any  claim 
which  the  debtor  may  have  against  the  agent.* 
And  an  agent  authorized  to  receive  payment  in 
money  cannot  bind  his  principal  by  receiving 
goods,'  or  a  bill  or  note.* 

Payment  in  Bank  Bili5.  A  payment  in 
good  bank  bills,  not  objected  to  at  the  time,  is 
a  good  payment ;  and  so  is  a  tender  of  such 
bills ;'  but  the  creditor  may  object  and  demand 
specie."  A  tender  of  copper  cents  cannot  be 
made  under  the  constitution  of  the  United 
States."  If  the  bills  are  forged  the  payee  may 
treat  them  as  a  nullity,  for  such  bills  are  not 
what  they  purport  to  be.*  But  such  forged 
notes  (or  coin)  must  be  returned  by  the  receiver 
in  a  reasonable  time,  or  he  must  bear  the  loss.* 
Where  the  bills  of  a  bank  that  has  failed  are 
paid  and  received  in  ignorance  of  such  failure, 
the  loss  falls  on  the  party  paying,'  but  they  must 
be  returned  in  a  reasonable  time.* 

n-ii  East.  36;  6M.  &S.  i66;  Cowp.  251  ;  2  C.  & 
p.  49  :  I  Cowp.  444 ;  2  Id.  24  ;  3  C.  &  P.  352  ;  5  Scott. 
to;  2  Camp.  343.  O-i  W.  Bl.  8;  2  Doug.  623  ;  i  Wash. 
(Va.)io;  I  Call,  147;  4 Conn.  517;  8  Pet.  18  ;  1  Greenl. 
257;    1  Pick.  347;    8  Dowl.  656  ;    8  Johns.  361 ;    10  Id. 


I«2o ;  10  Vt.  471 ;  3  Stew.  23  ;  5  Stew.  &  P.  34  ;  36  Me. 
'406.  p-2  Doug.  623  ;  I  Ala.  249  ;  5  Eng.  (Ark.)  18  ;  ; 
Greenl.  373;    15  Me.  144.      «|-8  Wend.  542.      r-6  Ves 


198;  2  Blackf.  371;  Breese,  107;  6  M.  &  S.  156;  i 
Wash.  (Va.)  77;  4C.  &P.  108:  7N.  H.  568.  s-4  J. 
J.  Marsh,  367.     t-2  Scott  N.  R.  372.     ii-Addison,  316; 

2  Freem.  178  ;  22  Me.  335.  v-Moody  &  M.  200-238;  5 
Taunt.  307;  2  Cromp.  &  M.  304.  w-ii  Mod.  71.  x- 
10  B.  C.  760.  y-2  C.  &  P.  508.  a!-5  M.  &  W.  645 ;  2 
Ld.  Raym.  928 ;  Holt  N.  P.  278.  a-9  Pick.  ii2  ;  7 
Johns.  476 ;  8  Ohio,  69  ;  2  Fairf.  475 ;  2  Cromp.  &  J. 
t6,  n.;  Id.  15  ;  3  T.  R.  551 ;  5  Yerger,  199  ;  4  Esp.  267  ; 

3  Humph.  162;  6  Ala.  226.  b-3  Halst.  172  :  4  N.  H. 
296  :  4  Dev.  &  Bat.  435.  c-2  Nott&  M'Cord,  519.  d- 
10  Wheat.  333;  2  Johns.  455;  6  Hill,  340;  2  Hawks. 
326 :  3  Id.  568  ;  7  liigh.  617  ;  2  Harris  &  Johns.  368  ;  3 
Scam.  392;  5  Conn.  71 ;  6  Mass.  182 ;  11  Id.  137;  3 
Barr.  330;  4  Gill.  &  J.  463.    e-7  Leigh.  6x7:  11  111.  xar: 


Payment  by  Check.  Payment  is  often 
made  by  the  debtor's  check  upon  a  bank.  The 
holder  is  not  bound  by  receiving  it,  but  may 
treat  it  as  a  nullity  if  he  derives  no  benefit  from 
it,  provided  he  has  been  guilty  of  no  negligence 
which  has  caused  an  injury  to  the  drawer  ;■•  nor 
is  it  necessary  to  preserve  the  payee's  rights 
that  it  should  be  presented  on  the  day  it  was 
received.'  And  if  drawn  on  a  bank  in  which 
the  drawer  has  no  funds  it  need  not  be  pre- 
sented at  all  in  order  to  maintain  an  action 
upon  it.i 

Payment  by  Delegation.  Payment  may 
be  made  by  an  arrangement  whereby  a  credit  is 
given  or  funds  supplied  by  a  third  party  to  the 
creditor,  at  the  instance  of  the  debtor. 

Payment  by  Letter.  In  general  the 
debtor  is  discharged,  although  the  money  does 
not  reach  the  creditor,  if  he  was  directed  or  ex- 
pressly authorized  by  the  creditor  so  to  send  it, 
or  if  he  can  distinctly  derive  such  authority 
from  its  being  the  usual  course  of  business;  but 
not  otherwise.'' 

Part  Payment.  Payment  of  a  part  of  a 
debt,  or  of  liquidated  damages,  is  no  satisfac- 
tion of  the  whole  debt,  even  where  the  creditor 
agrees  to  receive  a  part  for  the  whole,  and  gives 
a  receipt  for  the  whole  demand ;'  unless  it  were 
a  payment  of  a  debt  by  a  fair  and  well-under- 
stood compromise,  carried  faithfully  into  effect." 
And  if  a  part  be  paid  before  all  is  due,"  or  iu 
any  way  more  beneficial  to  the  creditor  than 
that  prescribed  by  the  contract ;"  here  there  is 
a  new  consideration  for  the  release  of  the  whole 
debt.  And  if  a  stranger  pay  from  his  own 
money  or  give  his  own  note  for  a  part  of  a 
debt  due  from  another,  in  consideration  of  a 
discharge  of  the  whole,  such  discharge  is  good.' 
If  a  creditor  by  his  own  act  and  choice  compel 
a  payment  of  a  part  of  his  claim  by  process  of 
law,  this  will  generally  operate  as  an  extinguish- 
ment of  his  whole  claim,  under  the  rule  that 
he  shall  not  divide  an  entire  cause  of  action  as 
to  give  himself  two  suits  upon  it.i  He  may 
often  bring  his  action  for  a  part,  but  a  recovery 
in  that  action  bars  a  suit  for  the  remainder. 
As,  if  one  has  a  demand  for  three  articles  un- 

■>,  Pick.  394.  f-ii  Vt.  576  ;  Id.  516;  p  N.  H.  365;  21 
Me.  88;  II  Wend,  i  ;  13  Id.  loi  ;  i8  Barb.  545  :  18  Q. 
B.  722;  14  Eng.  L.  &  Eq.  64.  g"'7  Mass.  33.  li-i 
Hall,  56 ;  4  A.  &  E.  954  ;  2  Camp.  515  ;  8  T.  R.  451  ;  6 


Id.  139;  2  B.  &  P.  518.  1-6  Wend.  443  :  2  Taunt.  306; 
2  Camp.  537;  13  Wend.  549.  J-i  Hall,  78.  k-Peake, 
67  ;  II  M.  &  W.  233  ;  3  Mass.  249  ;  Ryan  &  Moody, 
149;  J  Exch.  477.  I-Pinnell's  Case,  5  Rep.  117;  Stra. 
426;  2  B.  &  C.  477;  5  East.  230;  3  N.  H.  518;  II  Vt. 
60;  26  Me.  88;  10  A.  &  E.  121  ;  4  Gill.  &  Johns.  305  ; 
5  Johns.  386:  9  Id.  333;  II  How.  Pr.  R.  100:  27  Mc. 
362;  5  Cranch,  11  ;  3  N.  H.  518;  14  Vt.  44  ;  i  Pike 
(Arlc."!  II  :  I  Camp.  558,  n,  ;  3  Id.  331  ;  18  Q.  B.  757: 
16  Eng.  L.  &  Eq.  90 ;  10  Exch.  607 ;  28  Eng.  L.  &  Eq. 
498 ;  12  C.  B.  261  ;  14  Eng.  L.  &  Eg.  243  ;  3  Dowl.  St. 
L.  P.  C.  631 ;  15  C.  B.  823  :  2p  Eng.  L.  &  Eq.  241.  m- 
I  Rawle,  391.  n-PinnelT's  Case,  5  Rep.  117;  2  Met. 
283:  3  Hawks,  580.  0-15  M  &  W.  236:  I  Stra.  42;  2 
B.  &  C.  477  :  Dyer,  75,  a.;  2  Met.  285-^5  ;  2  Ijtt.  49  ;  3 
Barb.  Ch.  621 ;  5  t)ay,  359  ;  5  Johns.  386 ;  13  Mass. 
424.  p-2  Met.  283;  20  Johns.  76;  14  Wend.  116;  i  Id. 
164;  13  Ala.  353;  4  B.  &  C.  506  :  II  East.  390.  q-it 
S.  &  R.  78  :  15  Johns.  229  ;  Id.  432  ;  16  Id.  121 ;  Id.  136; 
8  How.  Pr.  R.  514  ;  2  Seld.  179  ;"  6  Cush.  sSs ;  i  Wend 
1  487:  IS  Johns.  433;  16  Id.  136. 


CONTRACTS. 


219 


iet  on«  Contract,  and  sues  for  one,  he  cannot 
afterwards  bring  his  action  for  the  other  two. 

Penalty.     See  Damages,  above. 

PERFORMANCE.  To  make  this  de- 
fence effectual  the  performance  must  have  been 
Dy  him  who  was  bound  to  do  it;  and  whatso- 
ever is  necessary  to  be  done  for  the  full  dis- 
charge of  this  duty,  although  only  incidental  to 
it,  must  be  done  by  him.  Nor  will  a  mere  readi- 
ness to  do  discharge  him  from  his  liability,  un- 
less he  makes  that  manifest  by  tender  or  an 
equivalent  act."" 

Impossibility  of  Performance.  If  the 
performance  of  a  contract  becomes  impossible 
by  the  act  of  God,  that  is,  by  a  cause  which 
could  not  possibly  be  attributed  to  the  prom- 
isor, and  this  impossibility  was  not  among  the 
contingencies  which  a  prudent  man  should  have 
foreseen  and  provided  for,  this  would  seem  a 
sufficient  defence."  But  mere  hardship  or  dif- 
ficulty of  performance  by  the  promisor  will  not 
suffice.* 

Kind  of  Performance.  The  performance 
must  be  such  as  is  required  by  the  true  spirit 
and  meaning  of  the  contract,  and  the  intention 
of  the  parties  as  expressed  therein.  A  mere 
literally  accurate  performance  may  wholly  fail 
to  satisfy  the  true  purpose  of  the  contract.  But 
if  the  contract  expresses  and  defines  the  exact 
method,  and  that  method  is  accurately  followed, 
this  is  a  sufficient  performance."  If  the  con- 
tract be  in  the  alternative,  as  to  do  a  thing  on 
one  day  or  another,  or  in  one  way  or  another, 
the  right  of  election  is  with  the  promisor,  if 
there  be  nothing  in  the  contract  to  control  the 
presumption.^  A.  contracted  to  deliver  "  from 
one  to  three  thousand  bushels  of  potatoes," 
Ae/d  he  might  deliver  any  quantity  he  chose 
within  the  limits  of  the  contract.*  If  the  con- 
tract is  to  do  one  of  two  things  by  a  given  day 
the  debtor  has  until  that  day  to  make  his  elec- 
tion ;  but  if  he  suffer  that  day  to  pass  without 
performing  either,  his  contract  is  broken  and 
his  right  of  election  gone."  Where  A.  agreed 
to  deliver  to  B.,  by  the  first  of  May,  from  700 
to  1,000  barrels  of  meal,  for  which  B.  agreed 
to  pay  on  delivery  at  the  rate  of  six  dollars  per 
barrel,  and  A.  delivered  700  barrels,  and  also 
before  the  day  tendered  to  B.  300  barrels  more, 
to  make  up  the  1,000  barrels,  which  B.  refused, 
it  was  held  that  B.  was  bound  to  receive  and 
pay  for  the  whole  1,000  barrels;  the  delivery 
of  any  quantity  between  700  and  1,000  barrels 
being  at  the  option  of  A.  only,  and  for  his 
benefit.^ 

r-8  Exch.  689  ;  20  Eng.  L.  &  Eq.  498 ;  2  M.  &  W. 
213  ;  Shep.  Touch.  378 ;  2  Brod.  &  Bing.  163 ;  2  M.  &  S. 
120 ;  2  J.  B.  Moore,  274 ;  1  Cromp.  &  M.  178.  s-W.  Jones, 
279  ;  S.  C.  ftom  Palmer,  543  ;  i  Gray,  282  ;  i  Kernan, 
15:  2  Id.  99.  t-6T.  R.  650;  Id.  750  ;  10  East.  530; 
Pet.  C.  C.  86  :  Addison,  342  :  2  Kernan,  99  ;  4  Ellis  & 
B.  99  ;  Id.  963;  30  Eng.  L.  &  Eq.  336;  Rev.  in  7  Ellis 
&  B.  763.  n-i6  Me.  164;  II  Vt.  554;  15  Pick.  546. 
V-ii  Johns.  59;  Doug.  16.  W-4  Greenl  497  ;  7  Johns. 
465.  x-i  Bailey,  136.  y-3  Johns.  Cas.  81.  z-i8  Pick. 
555  ;  9  B.  &  C.  386 ;  I  Camp.  53  ;  Id.  55  n.;  6  J.  B. 
Moore,  114  ;  12  S.  &  R.  275  ;  15  Vt.  515  ;  3  Bing.  235  ; 
5  B.  &C.  378;  5  B.  &  P.  61.  a-6  T.  R.  320:  II  Vt. 
557;  ao  Me.  453;  II  Met.  440;  4  Comst.  412;  8  Vt.  54: 


Part  Performance.  A  partial  performancf 
may  be  a  defence,  pro  tanto,  or  it  may  sustain 
an  action  pro  tanto ;  but  this  can  be  only  in 
cases  where  the  duty  to  be  done  consists  of 
parts  which  are  distinct  and  severable  in  iheii 
own  nature  (thus,  in  an  entire  contract  for  sale, 
or  manufacture,  of  a  large  quantity  of  an  arti. 
cle  or  articles,  at  an  agreed  price  for  each,  the 
current  of  authoi:ities  holds  that  a  delivery  and 
acceptance  of  part,  gives  a  right  to  recover  for 
that  part,  deducting  whatever  damages  the 
other  party  sustained  by  the  non-fulfilment  of 
the  contract;')  and  are  not  bound  together  by 
expressions  giving  entirety  to  the  contract.  It 
is  not  enough  that  the  duty  to  be  done  is  in  it- 
self severable,  if  the  contract  contemplates  it 
only  as  a  whole." 

Time  of  Performance.  If  the  contract 
specifies  no  time,  the  law  implies  it  shall  be 
performed  in  a  reasonable  time,^  and  will  not 
permit  this  implication  to  be  rebutted  by  ex- 
trinsic testimony  going  to  fix  a  definite  time, 
because  this  varies  the  contract.*  What  is  a 
reasonable  time  is  a  questicm  of  law.*  If  the 
contract  refers  to  "  the  day  of  date,"  or  "  the 
date,"  and  expresses  any  date,  this  day  and  not 
that  of  the  actual  making  is  taken,  but  if  there 
is  in  the  contract  no  date,  or  an  impossible  date, 
then  the  day  of  the  actual  making  will  be 
understood  to  be  meant  by  the  day  of  the  date.* 
The  rule  which  makes  notes  which  become  due 
on  Sunday  without  grace,  payable  on  the  Mon- 
day following,  applies  to  all  contracts.'  No 
one  is  bound  to  do  any  work  in  performance 
of  his  contract  on  Sunday,?  unless  the  work  by 
its  very  nature,  or  by  express  agreement,  is  to 
be  done  on  that  day,  and  can  be  then  done 
without  a  breach  of  the  law. 

PRESENCE  of  parties  in  many  contracts 
and  judicial  proceedings  is  necessary  in  order 
to  render  them  valid.  A  party  to  a  deed  exe- 
cuted by  himself  must  personally  acknowledge 
it,  when  such  acknowledgment  is  required  by 
law  to  give  it  its  full  force  and  effect;  and  his 
actual  presence  in  person  is  indispensable,  un- 
less another  person  represents  him  as  his  at- 
torney, having  authority  from  him  for  that  pur- 
pose. A  lunatic,  a  man  asleep,''  or  insensible,' 
or  if  the  act  were  done  secretly  so  that  he  knew 
nothing  of  it,J  would  not  be  considered  present. 

Presentment.  See  Bills  of  Exchange; 
Bonds  and  Promissory  Notes. 

Price.   See  title  Sales. 

Principal.  See  title  Agency  ;  and  Obli- 
gation, above. 

6  Id.  35;  Id.  383;  12  Id.  617;  13  Id.  268;  2  Pick.  267; 

19  Id.  528  :  8  B.  &  C  324 ;  4  Ellis  &  B.  71  ;  26  Eng.  L. 
&  Eq.  144.  b-8  Scott,  544;  16  Pick.  227;  2  Penii.  63; 
3  Bibb.  105  ;  3  Sumner,  530  ;  20  Me.  67.  C-16  Pick.  vt27  ; 
3  Sumner,  530  ;  2  Kernan,  184 ;  3  M.  &  W.  445.  «l-Cro. 
Jac.  204  ;  I  Pick.  43  ;  5  Id.  54 ;  2  T.  R.  436;  5  M.  &  S. 
479  ;  2  Greenl.  24  ;  i  Hawks.  41  ;  14  Me.  57  ;  16  Id.  164  ; 
24  Id.  131  ;  3  Sumner,  530;  15  Me.  350.  e-4  B.  &  C 
908:  Co.  Litt.  46,  d.;  2  L.  Ray.  f-io  Gray,  306.  g-i8 
Conn.  18  ;  2  Id.  69  ;  6  Johns.  326,  and  note  («)  in  ad  Ed.: 

20  Wend.  205:  10  Ohio,  426;  7  Blackf.  479 ;  Contra  i. 
Gill  &  J.  268;  10  A.  &  E.  57.  h-Dig.  4.  2.  I.  7.  I-! 
Dougl.  241  ;  4  Brown  Part.  Cas.  71 ;  3  Russ.  C^-  441 
j-i  P.  Wms.  Ch.  740. 


MO 


CONTRACTS. 


PROPOSALS  or  formal  offers  to  perform 
some  undertaking,  stating  the  time  and  manner 
of  performance,  and  price  demanded,  or  one 
or  more  of  these  particulars,  either  directly  or 
by  implied  or  direct  reference  to  some  an- 
nouncement requesting  such  an  offer,''  are  not 
to  be  considered  as  subject  to  different  rules 
from  any  other  offer.'  Until  it  has  been  ac- 
cepted, a  proposal  may  be  .withdrawn  by  the 
party  who  makes  it.  To  be  binding,  the  ac- 
ceptance must  be  in  the  same  terms  without 
any  variation  whatever." 

PUNCTUATION  is  not  regarded  in  the 
construction  or  interpretation  of  a  written 
instrument,  or  in  written  law. 

Ratification.  See  title  Agency  ;  and  Af- 
firmance; Confirmation,  above. 

READING.  When  a  person  signs  or  exe- 
cutes an  instrument  of  writing  it  is  presumed 
that  it  has  been  read  to  him ;  but  this  presump- 
tion may  be  rebutted.  See  Blind;  Illiter- 
ate; Presence;  above. 

Reference.    See  Agency;  Arbitrators. 

RESCISSION.  Whatever  party  has  the 
right  to  rescind  must  do  it  within  the  time 
specified,  if  there  be  such  a  time,  or  otherwise 
within  a  reasonable  time."  What  is  a  reason- 
able time  is  a  question  of  law  for  the  court 
only.*  Generally,  as  a  contract  can  be  made 
only  by  the  consent  of  all  the  contracting  par- 
ties, it  can  be  rescinded  only  by  the  consent  of 
all.P  But  this  consent  need  not  be  expressed 
as  an  agreement. i  Generally,  where  one  fails 
to  perform  his  part  of  the  contract,  or  disables 
himself  from  performing  it,''  the  other  p:irty 
may  treat  the  contract  as  rescinded.'  No  con- 
tract can  be  rescinded  by  one  of  the  parties, 
unless  both  can  be  restored  to  the  condition  in 
which  they  were  before  the  contract  was  made.' 
If,  therefore,  one  of  the  parties  has  derived  an 
advantage  from  a  partial  performance,  he  can- 
not hold  this  and  consider  the  contract  as  re- 
scinded because  of  the  non-performance  cf  the 
residue,"  but  must  do  all  that  the  contract  obliges 
riim  to  do,  and  seek  his  remedy  in  damages. 

RELEASES  may  either  give  up,  discharge, 
or  abandon  a  right  of  action,  or  convey  a  man's 
interest  or  right  to  another  who  has  possession 
of  it  or  some  estate  in  the  same.^ 

A  release  is  a  good  defence,  whether  it  be 
made  by  the  creditor  himself,  or  result  from  the 
operation  of  law.''  No  special  form  of  words 
is  necessary,  if  it  declare  with  entire  distinct- 
ness the  purpose  of  the  creditor  to  discharge 
the  debt  and  debtor.  It  may  expressly  extend 
to  only  a  part  of  a  claim  or  debt,*  or  to  the 

k-See  35  Ala.  (N.  S.)  33.  1-Pierce  Am.  Rly.  L.  364. 
m-i  La.  190  ;  4  Id.  80.  n-2  Camp.  530  ;  i  Starkie,  107  ; 
1  J.  B.  Moore,  106.  0-14  Me.  57 ;  22  Pick.  546 ;  6  Scott. 
187.  p-4  Man.  &  G.  898.  q-The  rescission  by  one 
party  may  be  as  strongly  expressed  by  acts  as  by  words, 
I  Pick.  57;  4  Id.  114;  5  Greenl.  277;  7  Bing.  266:  i  T. 
R.  133.  r-2  C.  B.  905  ;  2  Penn.  454  ;  Id.  445  ;  8  Foster, 
561 ;  9  La.  An.  31 :  4  Wend.  2S5.  b-6  Taunt.  154  t-5 
East.  249  :  2  Young  &  J.  278 :  4  Man.  &  G.  903  ;  2  Exch. 
783;  14  Me.  364;  I  Met.  547:  4  Blackf.  515;  2  Watts, 
433;  loOhio,  T42  :  27  Miss.  498  :  3  Vt.  442  ;  4  N.  H.  298  ; 
iTd.  17;  22  Pick.  283:  32  Vt.  I.  M-iM.  &W.  231.  V- 
*5h.  Touch.  320;  Litt.  444;  Bac.  Abr.;  Vin.  Abr.;  Roll. 
Abr.;  Nelson  Abr.     w-12  M.  &  W.  441 ;  Co.  Litt.  291, 


party  released,  with  express  reservation  of 
rights  against  other  parties;  in  which  case  it 
will  be  construed  only  as  a  covenant  not  to 
sue.y  But  if  a  plaintiff  is  met  by  a  general 
release  under  his  seal  to  the  defendant,  he  can- 
not set  up  an  exception  by  parol ;'  and  where  a 
release  is  general  it  cannot  be  limited  or  quali- 
fied by  extrinsic  evidence,  although  a  receipt 
may  be.»  A  release  may  be  by  operation  of 
law,  as,  if  parties  intermarry.'' 

REQUEST.  In  some  cases  the  necessity 
of  a  request  is  implied  from  the  nature  of  the 
transaction  ;  as  where  a  horse  is  sold  to  A.,  to 
be  paid  for  on  delivery,  A.  must  show  a  re- 
quest," or  impossibility  on  the  part  of  the  ven- 
dor to  comply  if  requested,"*  previous  to  bring- 
ing an  action ;  so,  on  a  promise  to  marry.^  If 
the  contract,  in  terms,  provides  for  a  request, 
it  must  be  made.'  It  should  be  in  writing  and 
state  distinctly  what  is  required  to  be  done.' 

RESTRAINT  OF  TRADE.  An  agree- 
ment by  one  who  exercises  a  certain  trade, 
business,  or  occupation,  to  abandon  the  same, 
and  thereafter  exercise  it  no  more,  whether 
under  seal  or  not,  or  whether  with  or  without 
consideration,  is  void.  The  unreasonableness 
of  "  contracts  in  restraint  of  trade,"  and  busi- 
ness, are:  I.  Such  contracts  injure  the  parties 
making  them,  by  diminishing  their  means  for 
obtaining  livelihoods  and  a  competency  for 
their  families.  They  tempt  improvident  per- 
sons, for  the  sake  of  present  gain,  to  deprive 
themselves  of  the  power  to  make  future  acqui- 
sitions. 2.  They  tend  to  deprive  the  public  of 
the  services  of  men  in  the  employments  and 
capacities  in  which  they  may  be  most  useful  to 
the  community  as  well  as  to  themselves.  3. 
They  discourage  industry  and  enterprise,  and 
diminish  the  products  of  ingenuity  and  skill. 
4.  They  prevent  competition  and  enhance 
prices.  5.  They  expose  the  public  to  all  the 
evils  of  monopoly.  Against  evils  like  these, 
wise  laws  protect  individuals  and  the  public, 
by  declaring  all  such  contracts  void."*  But 
contracts  which  are  limited  as  to  time,  or  place, 
or  persons,  for  a  good  consideration,  are  valid, 
and  may  be  enforced.'  These  rules  extend  to 
all  branches  of  trade  and  all  kinds  of  busi- 
ness.J 

SAID  means  "  before-mentioned."  In  con- 
tracts and  pleadings  it  is  usual  and  proper, 
when  it  is  desired  to  speak  of  a  person  or  thing 
before-mentioned,  to  designate  them  by  the 
term  "  said,"  or  "  aforesaid,"  or  by  some  similar 
term  ;  otherwise  the  latter  description  may  be 
ill  for  want  of  certainty.^ 

a.  x-2  Roll  Abr.  413,  tit. ;  Release  (H.)  pi.  1.  y-C. 
B.  1858;  21  Law  Rep.  376.  «-8  A.  &  E.  854.  »-i  B. 
&  C.  704;  I  McLean.  194.  b-i  Ld.  Raym.  sis;  2  P. 
Wms.  242  ;  Hob.  216;  5  T.  R.  384.  c-s  T.  R.  409:  i 
East.  209.  d-io  E^st.  3S9  ;  5  B.  &  Aid.  712.  e-2  Dowl. 
&  R.  55.  f-i  Johns.  Cas.  327.  a:-i  Chitty  Pr.  497.  Il" 
IQ  Pick.  51;  7  Cowen.  307:  21  Wend  157;  Id.  166;  I 
Hoff.  Ch.  479:  7  Blackf.  ^44:  II  Ohio  St.  349.  |4 
Mass.  223 ;  9  Id.  522  :  4  Ribb.  486 ;  i  Pick.  413 ;  3  Id. 
188  :  7  Cow.  397 :  6  Pick  206 :  19  Id.  51 :  Id.  S23-  The 
whole  subject  examined  by  Branson  y.  in  21  Wend.  i';7; 
Id.  166:  I  Hoff.  Ch.  470:  7  Blackf.  344:  11  Ohio  St. 
^49.  J-19  Pick.  51.  k-2  Lev.  ao? ;  Com.  Dig.  PL 
GoulcT  PI.  C.  3,  \  63. 


CONTRACTS. 


iu 


SET-OFF.  Set-off  is  a  mode  of  defence 
by  which  the  defendant  acknowledges  the  jus- 
tice of  the  plaintiff's  demand,  but  sets  up  a 
demand  of  his  own  against  the  plaintiff,  to 
counterbalance  it  in  whole  or  in  part.™ 

SETTLEMENTS  are  agreements  by 
which  two  or  more  persons  who  have  dealings 
together  so  far  arrange  their  accounts  as  to 
ascertain  a  balance  due  from  one  to  the  other. 
They  are  also  payments  in  full. 

SHIPPING  ARTICLES  are  agreements 
in  writing  or  print  between  the  master  and  sea- 
men or  mariners  on  board  of  his  vessel  (except 
•such  as  shall  be  apprenticed  or  servant  to  him- 
self or  owners),  declaring  the  voyage  or  voy- 
ages, term  or  terms  of  time  for  which  such  sea- 
men or  mariners  shall  be  shipped.  It  is  also 
required  that  at  the  foot  of  every  such  contract 
there  shall  be  a  memorandum,  in  writing,  of 
the  day  and  the  hour  on  which  each  seaman  or 
mariner,  who  shall  so  ship  and  subscribe,  shall 
render  himself  on  board  to  begin  the  voyage 
agreed  upon.  For  want  of  shipping  articles 
the  seaman  is  entitled  to  the  highest  wages 
which  have  been  given  at  the  port  or  place 
where  such  seaman  or  mariner  shall  have  been 
shipped  for  a  similar  voyage,  within  three 
months  next  before  the  time  of  such  shipping, 
on  his  performing  the  service,  or  during  the 
time  he  shall  continue  to  do  duty  on  board  such 
vessel  without  being  bound  by  the  regulations, 
or  subject  to  the  penalties  or  forfeitures  con- 
tained in  said  act  of  Congress;  and  the  mas- 
ter is  further  liable  to  a  penalty." 

Shipping  articles  ought  not  to  contain  any 
clause  which  derogates  from  the  general  rights 
and  privileges  of  seamen ;  and  if  they  do,  the 
clause  will  be  declared  void."  A  seaman  who 
signs  shipping  articles  is  bound  to  perform  the 
voyage,  and  he  has  no  right  to  elect  to  pay 
damages  for  non-performance  of  the  conlract.P 

SIGNATURE  is  the  act  of  putting  one's 
name  at  the  end  of  an  instrument  to  attest  its 
validity.  It  is  the  name  thus  written.  It  is  not 
necessary  that  a  party  should  write  his  name  him- 
self to  constitute  a  signature ;  his  mark  is  suffi- 
cient, though  he  is  able  to  write.^  A  signature 
may  be  made  by  another  parly  at  the  request, 
and  in  the  presence  of  the  contracting  party. 
A  signature  may  be  made  by  a  party,  another 
person  guiding  his  hand  with  his  consent.'' 

SILENCE  cannot  be  considered  as  a  con- 
sent to  a  contract,  except  in  cases  where  the 
silent  person  is  bound  in  good  faith  to  explain 
himself;  in  which  case  silence  gives  consent." 
But  no  assent  will  be  inferred  from  a  man's 
silence  unless  he  knows  his  rights,  and  knows 
what  he  is  doing,  nor  unless  his  silence  is 
voluntary. 

m-Barbour  on  Set-off,  p.  17 ;  see  Practick  ;  Set- 
off AND  Counter  Claim.  n-Act  Congress,  July  20, 
790.  0-2  Sumn.  C.  C.  443;  I  Mas.  C.  C.  541.  p-2  Va. 
Cas.  276.  q-8  A.  &  E.  94  :  3  Nev.  &  P.  228 ;  3  Curt. 
C.  C.  752  :  5  Johns.  144.  r-4  Wash.  C.  C.  262,  269.  s- 
6  TouU.  I.  3,  t.  3,  n.  32  note;  14  S.  &  R.  393:  2  Belt. 
Supp.  Ves.  Ch.  442  ;  i  Dane  Abr.  C.  i,  Art.  4,  §  3 ;  8 
T.  R.  483:  6  Penn.  St.  336;  1  Greenl.  Ev.  3  201  :  2 
Bouv.  Inst.  n.  1313  t-i  Chitty  Contr.  i ;  i  Chitty  PI 
W.      u-aS.  &R.  s<»:    Willes,  189;    i  P.  Wras.   Ch 


SIMPLE  CONTRACTS  are  those  the 
evidence  of  which  is  merely  oral  or  in  writing 
not  under  seal  nor  of  record.*  See  introduction 
to  the  subject  "  Contracts,"  above. 

SPECIALTIES  are  writings  sealed  and 
(delivered  containing  .some  agreement."  See  in- 
troduction to  the  subject  "  Contracts,"  above. 

SPECIFICATIONS  are  the  particulars 
and  details  of  the  cpntracl  at  large. 

SPELLING  though  bad  will  not  avoid  a 
contract  when  it  appears  with  certainty  what  is 
meant.  For  example,  where  a  man  agreed  to 
pay  threty  pounds  he  was  held  to  pay  thirty 
pounds ;  and  seutene  was  holden  to  be  seven- 
teen^ and  undirtood  to  be  under  stood 7 

STAKEHOLDERS  must  deliver  the  thing 
holden  by  them  to  the  person  entitled  to  it,  on 
demand.  It  is  frequently  questionable  who  is 
entitled  to  it.  In  case  of  an  unlawful  wager, 
although  he  may  be  justified  for  delivering  the 
thing  to  the  winner,  by  the  express  or  implied 
consent  of  the  loser,*  yet  if  before  the  event  has 
happened  he  has  been  required  by  either  party 
to  give  up  the  thing  deposited  with  him  by  such 
party,  he  is  bound  so  to  deliver  it  \^  or  if,  after 
the  event  has  happened,  the  losing  party  gives 
notice  to  the  stakeholder  not  to  pay  the  winner, 
a  payment  made  to  him  afterwards  will  be  made 
to  him  in  his  own  wrong,  and  the  party  who 
deposited  the  money  or  thing  may  recover  it 
from  the  stakeholder." 

Stranger.    See  Consideration,  above. 

Stratagem.  See  Concealment;  Fraud; 
Misrepresentation,  above. 

STATUTE.  All  contracts  made  in  viola- 
tion of  a  valid  statute  are  absolutely  void  and 
of  no  effect. 

SUB-CONTRACTS  are  those  made  bj 
persons  who  have  contracted  for  the  perform- 
ance of  labor  or  services  with  a  third  party  for 
the  whole  or  part  performance  of  that  labor  or 
service.'    See  Agency ;  "Sub-Agents"  above. 

SUIT.  It  is  a  good  cause  of  abatement  of 
an  action  upon  contract  that  another  is  then 
pending  for  the  same  cause  and  between  the 
same  parties.**  But  the  prior  action  must  be 
between  the  same  parties;"  and  the  plaintiff 
must  sue  in  the  same  capacity."*  For  no  man 
can  use  the  machinery  of  the  law  merely  to  vex 
and  distress  another. 

SUNDAY.  Labor  of  whatever  kind,  other 
than  the  household  otfices  of  daily  necessity,  or 
other  works  of  charity  and  necessity,  on  the 
first  day  of  the  week,  commonly  called  Sun- 
day," is,  in  general,  under  penalty,  prohibited^ 
but  all  persons  do  not  come  under  prohibi- 
tion.' 

If  a  contract  is  commenced  on  Sunday,  but 
not  completed  until  a  subsequent  day,  or  if 

130.  v-Cro.  Jac.  607;  ID  Co.  133,  a.;  2  RoIIe  Abr.  147. 
W-i  Chitty  Cr.  L.  x-8  Johns.  147.  y-3  Taunt.  377  ;  4 
Id.  492-  a-i6S.&R.  147;  7T.  R.  536;  81d.  575;4 
Taunt.  474;  2  Marsh,  542.  a-9  M.  &  W.  710;  3  Gray, 
362  ;  17  Wend.  550;  22  Id.  395  ;  1  E.  D.  Smith,  716;  a 
Id.  558.  b-4  Blaclcf.  56:  4  Dana,  62 ;  7  S.  &  Marsh, 
333.  c-2  Dev.  244;  15  M.  &  W.  494;  I  Camp.  60;  » 
Sumn.  586  ;  2  Bailey,  362  ;  Id.  412;  17  Vt.  138.  d-J 
Penn.  St.  434.     e-4   Ohio  St.   566;    3  Id.  400,391.     t- 


I    1.1 


222 


CONTRACTS. 


it  merely  grew  out  of  a  transaction  which  took 
place  on  Sunday,  it  is  not  for  this  reason  void.» 
Thus,  if  a  note  is  signed  on  Sunday,  its  validity 
is  not  impaired  if  it  be  not  delivered  on  that 
day.^  But,  a  contract  made  in  violation  of  the 
express  provisions  of  the  Lord's  day  Acts,  is 
void,  like  any  other  illegal  and  prohibited  con- 
tract.' 

Suretyship.     See  title  Payment. 

Surprise.     See  Deliberation,  above. 

TENDER.  If  the  tender  be  of  money,  it 
can  be  a  defence  only  when  made  before  the 
action  was  brouorht.J  A  tender  may  be  made 
to  a  quantum  meruit^  A  tender  does  not  bar 
the  debt  as  a  payment  would,  for  in  general  he 
is  bound  to  pay  the  sum  which  he  tenders 
whenever  he  is  required  to  do  so.'  But  it  puts 
a  stop  to  accruing  damages  or  interest  for  delay 
in  payment,  and  gives  the  defendant  costs.™  It 
need  not  be  made  by  the  defendant  personally ; 
if  made  by  a  third  person,  at  his  request,  it  is 
sufficient ;"  and  if  made  by  a  stranger  without 
his  knowledge  or  request,  a  subsequent  assent 
of  the  debtor  will  operate  as  a  ratification  of  the 
agency  and  make  the  tender  good."  Any  per- 
son may  make  a  valid  tender  for  an  idiot. p  If 
an  agent,  furnished  with  money  to  make  a  ten- 
der, at  his  own  risk  tenders  more,  it  is  good.i 
So,  a  tender  need  not  be  made  to  a  creditor 
personally ;  but  it  must  be  made  to  an  agent 
actually  authorized  to  receive  the  money.'  If 
the  money  be  due  to  several  jointly,  it  may  be 
tendered  to  either,  but  must  be  pleaded  as  made 
to  all.»  The  whole  sum  due  must  be  tendered,' 
as  the  creditor  is  not  bound  to  receive  a  part 
of  his  debt.  If  the  tender  be  for  the  whole 
debt,  it  is  valid."  If  the  obligation  be  in  the 
alternative,  one  thing  or  another,  as  the  cred- 
itor may  choose,  the  tender  should  be  of  both, 
that  he  may  make  his  choice.^  To  make  a  ten- 
der of  money  valid  the  money  must  be  actually 
produced  and  proffered,"  unless  the  creditor 
expressly  or  impliedly  waives  this  production.* 
The  debtor  is  not  bound  to  count  out  the  money, 
if  he  has  it  and  offers  it.'  No  condition  must 
be  annexed  to  the  tender,*  which  the  creditor 
can  have  any  good  reason  whatever  for  object- 

IC-3  Foster,  229  ;  igVt.  358;  24  Id.  187:  11  Ala.  88s: 
3  B.  &  C.  282  ;  4  Bing.  84  ;  2  Ohio  St.  387.  h-35  Me. 
143  ;  18  Vt.  379  ;  2  Penn.  St.  448  ;  9  N.  H.  500  ;  7  Gray, 
543.  1-6  Vt.  219;  12  Met.  24;  4  Cush.  322.  J-Bac. 
Abr.  Tender  (D 1  5  Pick.  :o6  ;  8  East.  168  ;  3  Pick.  414  ; 
5  Id.  187.  k-Str.i.  576 :  B.  R.  10  W.  3  :  2  Salk.  622. 
1-3  Taunt.  95 :  6  Pick.  340;  2  B  &  P.  550;  5  Bine.  31  ; 
5  Pick.  291  :  4  B.  &  Ad.  132  ;  2  B.  377 ;  5  M.  &  W.  94  ; 
»  Id.  9  ;  I  Man  &  G.  873 ;  12  M.  &  W.  743  ;  5  Jur.  317. 
m-s  C.  B.  36s  :    3  Bing.  290 :    9  Cowen,  641  ;    3  Johns 


Cas.  243  ;  17  Mass.  389  :   12  JoHns.  274  ;  10  S.  &  R._i4  ; 

2  Cush.  475 ;    5   Pick.  106.      n-Cro.  Eliz.  48 

Abr.  421,  K.  pi.  2  ;    2  Fairf.  t88.     0-2   C.   &   P.  78 ; 


2  Cush.  475;    5  Pick.jo6./   n-Cro.  Eliz.  48  :_  I    Rol. 

"pi.  2  ; 
Fairf.  188  ;  2  M.  &  S.  86.     p-Co,  Litt.  206,  b  :  i  Ftawle, 


408.  q-2M.&S.86.  r-i  M.&W.  313;  iCamp.  477; 
;  Fairf.  475  ;  i  Gray,  600;  5  Taunt.  307 ;  i  Car.  &  K. 
36:  4B.  &C.  28:  6Dowl.  &  R.  132:  3C.  &P.  453: 
Moody  &  M.  200.  fi-3T.  R.  683;  16S.&R.  371.  t- 
5C.  B.  365;  2  Conn.  659.  n-2Stra.  916;  5  Rep.  115; 
4B.  &Ad.  546:  3T.  R.  683;  Peake,  88:  5  D.  &  R. 
289  :  5  M.  &  W.  306  ;  3  Camp.  70  :  6  Taunt.  336;  i  C. 
&  P-  365  ;  5  D.  &  R-  289;  3  Bing.  304  ;  22  Vt.  440.  V- 
Fordley's  Case,  1  Leon,  68.  w-Noy,  74  ;  Com.  Dig. 
^.  (2  W.)  28  ;  10  East.  loi ;  4  Esp.  68  ;  7  J.  B.  Moore, 
^ ;  3  C.  tc  P.  342 ;    I  Scott.  70 ;    5  Esp.  48  ;    8  Greene, 


ing  to ;  as,  for  instance,  that  he  should  give  a 
receipt  in  full  of  all  demands.*  The  tender 
should  be  in  money  made  lawful  by  the  State 
in  which  it  is  offered.'*  Generally,  a  tender  is 
valid,  and  effectual  if  made  at  any  lime  after 
the  debt  is  due  ;  and  a  demand  made  after  the 
tender  if  for  more  than  the  sum  tendered,  will 
not  avoid  the  tender."  Certainly  not,  if  the 
demand  is  for  more  than  the  real  debt,  although 
the  excess  was  for  another  debt  truly  due.*  , 
Tender  of  Chattels.  The  thing  ten^r 
dered  may  not  be  money,  but  some  specific  ari 
tide.  If  one  is  bound  to  deliver  chattels  at  a 
particular  time  and  place,  it  may  not  be  enough 
if  he  has  them  there;  they  may  be  mingled 
with  others  of  a  like  kind  which  he  is  not  to 
deliver.  Or  they  may  need  some  act  of  sepa- 
ration, or  identification,  or  completion,  before 
they  could  become  the  property  of  the  other 
party.'  Generally,  if  no  time  or  place  be  sp)e- 
cified,  the  articles  are  to  be  delivered  where 
they  are  at  the  time  of  the  contract,'  unless  col- 
lateral circumstances  designate  a  different  place.* 
If  the  time  be  fixed,''  but  not  the  place,  then  it  will 
be  presumed  that  the  deliverer  was  to  bring  the 
articles  to  the  receiver  at  that  time,  and  for  thai 
purpose  he  must  go  with  the  chattels  to  the  resi- 
dence of  the  receiver,'  unless  something  in  their 
very  nature  or  use,  or  some  other  circumstances 
of  equivalent  force,  distinctly  implies  that  they 
are  to  be  left  at  some  other  place.i  It  may 
happen,  from  the  cumbrousness  of  the  chattels 
or  other  circumstances,  that  it  is  reasonable  and 
just  for  the  deliverer  to  ascertain  from  the  re- 
ceiver, long  enough  beforehand,  where  they 
shall  be  delivered  ;  and  then  he  would  be  held 
to  this  as  a  legal  obligation."  So,  too,  in  such  a 
case,  the  receiver  would  have  a  right  to  desig- 
nate to  the  deliverer,  a  reasonable  time  before- 
hand, a  place  of  delivery  reasonably  convenient 
to  both  parties,  and  the  deliverer  would  be 
bound  by  such  direction.'  If  no  place  be  indi- 
cated, and  the  deliverer  is  not  in  fault  in  this, 
he  may  deliver  the  chattels  to  the  receiver,  in 
person,  at  any  place  which  is  reasonably  conve- 
nient.™ And  if  the  receiver  refuses  or  neglectu 
to  appoint  any  place,  or  purposely  avoids  re- 

107;  5  N.  H.  440:  7  Id.  535:  IS  Wend.  637;  6  Md.  37. 
x-2  M.  &  S.  86  :  6  Pick.  356 ;  2  C.  &  P.  77.  y-8  Ohio. 
169,  172  ;  Walker  CMiss.)  369  :  6  Pick.  356.  *-B.:vans 
vs.  Rees,  5  M.  &  W.  306.  B-Glasscott  vs.  Day,  5  Esp. 
48;  12  Mass.  450;  3  Pick.  48;  20  Wend.  47;  8  C.  & 
P.  259;  2  Id.  50;  Id.  51,  n.;  30  Conn.  344.  b-Wade's 
Case,  5  Rep.  114;  13  Mass.  235;  4  N.  H.  296.  c-»2 
Vt.  440.  <l-5  C.  B.  378;  II  M.  &  W.  356.  e-7GreenU 
91  :  2  Fairf.  398;  24  Me.  316:  32  Id.  31  ;  5  Johns.  119; 
X  D.  Chip.  399  ;  Walker,  401  ;  4  Cowen,  452  ;  7  Conn. 
110:  4  Mass.  474  ;  4  N.  H.  40:  14  Id.  459 ;  13  Vt.  258? 
14  Id.  457;  3  Wash.  C.  C.  140.  f-7  Barb.  472  ;  3  Wattt 
&  S.  20"; ;  I  Stew.  524  :  6  Ala.  326 ;  Id.  24  :  Hardin.  80, 
n.;  I  Wash.  (Va.^  326:  5  Cowen,  518:  20  Wend.  196;  2 
Denio,  145.  u-Bronson  vs.  Gleason,  7  Barb.  472.  h- 
If  the  time  fall  on  Sunday,  tender  on  Monday  is  good, 
10  Ohio,  426  :  3  Cush.  137  ;  18  Conn.  18 :  2  Id.  69  :  20 
Wend.  205  :  5  Yerg.  410  ;  i  Greenl  120  :  3  Wash.  C.  C. 
140;  19  Vt.  587  :  2  Scott.  N.  R.  485.  1-3  Watts  &  S. 
295;  2  Penn.  63;  1  Greenl.  120.  J-ii  Vt.  612:  1  Leon, 
69  :  8  Vt.  340  :  10  Id.  274;  3  Day,  327;  i  Kern.  80;  2 
Seld.  585.  k-Co.  Litt.  210,  b.';  3  Watts  &  Serg.  295; 
20  Me.  325  ;  5  Greenl.  192  ;  16  Me.  49  ;  3  Dev.  78  ;  2 
Penn.  63.  I-20  Me.  325;  i  GreenL  120.  m-Howard 
vs.  Miner,  20  Me.  325. 


CONTRACTS. 


*23 


.•living  notice  of  a  place,  the  deliverer  may 
appoint  any  place,  with  a  reasonable  regard  to 
the  convenience  of  the  other  party,  and  there 
deliver  the  articles." 

If  the  promise  be  to  pay  money  at  a  certain 
time,  or  deliver  certain  chattels,  it  is  a  promise 
in  the  alternative ;  and  the  alternative  belongs 
to  the  promisor ;°  he  may  do  either  the  one  or 
the  other,  at  his  election ;  nor  need  he  make  his 
election  until  the  time  when  the  promise  is  to 
be  performed ;  but  after  that  day  has  passed 
without  election  on  his  part,  the  promisee  has 
an  absolute  right  to  the  money,  and  may  bring 
his  action  for  it.P  A  contract  to  deliver  a  cer- 
tain quantity  of  merchandise  at  a  certain  time 
means,  of  course,  to  deliver  the  whole  then."! 

If  by  the  terms  of  the  contract  certain  spe- 
cific articles  are  to  be  delivered  at  a  certain 
time  and  place  in  payment  of  an  existing  debt, 
this  contract  is  fully  discharged  and  the  debt  is 
paid,  by  a  complete  and  legal  tender  of  the  ar- 
ticles at  the  time  and  place,  although  the  prom- 
isee was  not  there  to  receive  them ;  and  no 
action  can  thereafter  be  maintained  on  the  con- 
tract.""  But  the  property  in  the  goods  has  passed 
to  the  creditor,  and  he  may  retain  them  as  his 
own.* 

If  there  be  a  contract  to  deliver  wares  or 
goods  which  are  merchandise,  and  belong  to  a 
certain  trade,  this  means  wares  or  goods  of  the 
kind,  fashion,  and  quality  in  common  use  in 
that  trade,  and  not  such  as  are  antiquated  and 
unsalable.' 

TERM  is  that  space  of  time  allowed  for  the 
performance  of  a  contract,  as  if  a  builder  en- 
gage to  construct  a  house  for  you,  you  must 
allow  a  reasonable  time  for  fulfilling  his  engage- 
ment." 

Transportation.  See  Delivery;  Per- 
formance, above. 

Tripartite  consists  of  three  parts.  See 
Conveyancing. 

UNCONSCIONABLE  bargains  are  those 
contracts  which  no  man  in  his  senses  not  under 
delusion  would  make,  on  the  one  hand,  and 
which,  on  the  other,  no  fair  and  honest  man 
Would  accept.^ 

Uncertainty.     See  Certainty,  above. 

Unintelligible  Contracts  have  no  effect 
nrhatever.  See  Construction  ;  Interpreta- 
tion, above. 

UNLAWFUL  CONTRACTS  are  of 
two  kinds :  those  which  are  void  and  those 
which  are  not.     When  the  law  expressly  pro- 

'    n-Co.  Litt.  210;  25  Wend.  405;    2  Hill,  351 ;  20  Me. 

325.  0-7  Ala.  775  ;  4  Y«-rger,  177  ;  5  Humph.  423  ;  14 
iVt.  457.  p-3  Day,  327  ;  2  Penn.  63,  301 ;  2  Greene, 
1205;  3  Scam.  389 ;  i7Vt.  105;  i  Greenl.  120.  q-2  Penn. 

63;    9  B.   &  C.   386;  15  Vt.   515;    18   Pick.  555.     r-2 

Blackf.  87 ;  8   Johns.  474 ;  24  Vt.  536 :  4  Barr,  66g ;  2 

Greene,  254 :  i   Stew.  272:  5  Watts,  262;  9  Yerg.  414; 

Peck.  212;  10  Yerger,  245;  2  Penn.   63;   7  Conn,  no; 

Brayton,  223;  5  Johns.  119  ;  4  Cow.  552;  i  Root,  443, 

55.     S-See  preceding  note,  i  N.  H.  295  ;  Co.  Litt.  207  ; 

9  Co.  79  :  I  Root,  55,  443  :  8  Johns.  474 ;  3  Johns.  Cas. 

?43.     t-Dennet  I'J.  Short ;  7  Greenl.  150.    u-iWis.  314. 

^-4  Bouv.    Inst.   n.    3838.     w-3  Binn.  533.     x-12  S.  & 

R.  237;  Chitty  Contr.  230;    23  Am.  Jur.  1-23;  i  Mod. 

35;  8  East.  236,237;  3  Taunt.  244;  Hob.  14.     v-Bac. 

Abr.  Inf.  (i.  3.);  Com.  Dig.  Enf.;  Fonbl.  Eq.  B.  i,C. 

16 


hibits  the  transaction  in  respect  of  which  the 
agreement  is  entered  into,  and  declares  it  to  be 
void,  it  is  absolutely  so."  But  when  it  is  merely 
prohibited  without  being  made  void,  although 
unlawful  it  is  not  void.*  See  Conditions; 
Consideration  ;  Construction,  above. 

Usury.     See  Interest  ;  Payment. 

Vis  Major.     See  title  Accident. 

VOID  CONTRACTS  are  those  which 
have  no  force  or  effect  whatever. 

Wagers  upon  the  result  of  an  election  have 
always  been  considered  as  void,  as  being  con-" 
trary  to  sound  policy,  and  tending  to  impair  the 
purity  of  elections.*  All  wagers  are  considered 
illegal,  and  contrary  to  good  policy.'  Wagers 
as  to  the  mode  of  playing,  or  the  result  of  any 
illegal  game,  as  boxing,  wrestling,  cockfighting, 
etc.,  are  void  at  common  law.*"  See  Stake- 
holder, above. 

VOIDABLE  CONTRACTS  are  those 
which  have  some  force  or  effect,  but  which,  in 
consequence  of  some  inherent  quality,  may  be 
legally  annulled  or  avoided ;  for  example,  a 
contract  made  by  an  infant  with  an  adult  may 
be  avoided  or  confirmed  by  the  infant  on  his 
coming  of  age.  Voidable  contracts  are,  gener- 
ally, of  binding  force  until  avoided  by  the  party 
having  the  right  to  annul  them.y 

WAIVER.  If  after  knowledge  of  a  sup- 
posed fraud,  surprise,  or  mistake,  a  party  per- 
forms a  contract  in  part,  he  will  be  considered  as 
having  waived  all  objection."  One  may  renounce 
or  waive  that  which  is  in  his  favor,  provided  it 
be  of  no  detriment  to,  or  prejudice  another's 
rights. 

Warranty.  See  Insurance;  Sales. 

WORDS  are  to  be  understood  in  a  proper 
or  figurative  sense,  and  they  are  used  both 
ways  in  law.  Every  one  is  required  to  use 
words  in  the  sense  they  are  generally  under- 
stood ;  for  as  speech  has  been  given  to  man  to 
be  a  sign  of  his  thoughts  for  the  purpose  of 
communicating  them  to  others,  he  is  bound,  in 
treating  with  them,  to  use  such  words  or  signs 
in  the  sense  sanctioned  by  usage — that  is  in  the 
sense  in  which  they  themselves  understand 
them — or  else  he  deceives  them.* 

Work  and  Labor.   See  Bailments. 

CONTRACT  FORMS. 

Articles  of  agreement  consist  of  a  written  memor- 
andum of  the  terms  of  an  agreement.  They  may  relate 
either  to  real  or  personal  estate,  or  both  ;  and  if  in 
proper  form  will  create  an  estate  or  trust,  such  that  a 
specific  performance  may  be  enforced. 

2,  2  4,  n.  ^;  3  Burr.  1794  ;  i  Nels.  Ch.  55  ;  i  Atk.  Ch. 
354;  Str.  937  :  Perkins,  §  12.  z-iT.  R.  56;  16  S.  &  R. 
147;  2  Browne  (Pa.)  182  ;  4  Johns.  426;  8  Id.  454;  11 
Id.  23 ;  12  Id.  I  ;  9  Cowen,  169  ;  i  R.  &  I.  i ;  12  Johns. 
376;  5  Wend.  250;  7  Watts,  295 ;  Id.  343;  4  Harris  & 
McH.  284;  I  Bailey,  486;  i  Greene,  3-3;  i  La.  An. 
176;  i8Vt.  9:  9  Dana,  31 ;  2  Gratt,  257 ;  10  Ala.  316; 
15  Conn.  28  ;  2  Humph.  131  ;  i  Harring.  (Del.)  517;  3 
Id.  420;  8  Mo.  8;  24  Ohio  St.  328.  B-2  Vt.  144;  2 
Mass.  i;  3  Pick.  446;  12  Met.  399;  6  N.  H.  104;  i 
Strobh.  82;  6  Whart.  176;  15  Me.  233:  3  Cal.  328.  b- 
2  H.  Bl.  43;  1  C.  &  P.  613  ;  3  Camp.  140;  i  Bing.  i  ;  i 
Hall,  300;  I  Nott  &  M'Cord,  180;  4  M'Cord,  211  ;  3 
Denio,  107,  340 ;  13  Penn.  St.  601  :  i  Cowp.  729  ;  4 
Camp.  152;  1  Rawle,  42;  i  B.  &  Aid.  683.  c-i  Brown 
Pari.  Cas.  289.  d-Heccen.  Prael.  Puffend.  Lib.  i,  j 
197 ;  Wolff  Inst.  Jur.  Nat.  \  798. 


*H 


CONTRACTS. 


The  instrument  should  contain : 
X.  The  date,  which  should  be  truly  stated. 
3.  The  names  of  the  parties,  stated  clearly  and 
explicitly,  with  their  additions,  for  the  purposes  of  dis- 
tinction, as  well  as  a  designation  as  parties  of  the  first, 
■acond,  etc.,  part. 

3.  The  subject-matter  of  the  contract,  including 
the  time,  place,  and  more  important  details  of  the  man- 
ner of  performance. 

4.  The  covenants  to  be  performed  by  each  party. 

5.  Should  be  signed  by  the  parties,  or  their  agents. 
When  signed  by  an  ageut,  the  proper  form  is,  A.  B., 
by  his  agent  (or  attorney)  C.  D.  (or  as  in  the  form 
below).* 

To  render  an  agreement  complete,  six  things  must 
'oncur.  There  must  be  :  i.  A  person  to  contract.  2. 
A  person  able  to  be  contracted  with.  3.  A  thing  to  be 
contracted  for.  4.  A  lawful  consideration.  5.  Clear 
Slid  explicit  words  to  express  the  agreement;  and,  6. 
The  assent  of  the  contracting  parties. 

Contract — Introductions. 

We  agree : 
That,  etc. ;  or. 

We  hereby  agree : 
That,  etc. ;  or. 

It  is  hereby  agreed : 
That,  etc. ;  or. 


This  agreement  witnesseth : 
That,  etc. ;  or. 


Know  all  men  by  these  presents: 
That,  etc. ;  or. 

This  agreement,  made  this day  of ,  be- 
tween A.  B.  and  C.  D.,  witnesseth:  or, 

A.  B.,  of county,  farmer,  and  C.  D.,  of 

county,  trader,  have  this  day  of ,  agreed 

together  as  follows :  or, 


This  agreement  (or  contract)  for  building,  etc. 

(or  merchaiiHise,  or  work,  etc.)  entered  into  this 

day  of ,  bv  and  bet'ween  A.  B.,  of ,  of  the 

first  part,  ind  C.  D.,  of ,  of  the  second  part, 

^vitnesseth :  or. 


Articles  of  agreement  made  and  concluded  (or 

had,  made,  concluded,  and  agreed  upon)  this day  of 

,  between  A.  B. ,  of  the  city  of ,  merchant, 

andC.  D.,of  thecity  of ,  manufacturer;  or. 


Know  all  men  by  these  presents  :  That  this 
agreement  (or  these  articles  of  agreement,  or  thi#  con- 
tract, or  indenture)  had,  made,  entered  into,  con- 
cluded, and  agreed  upon,  this  day  of  , 

A.  D. ,  witnesseth  :  or, 


To  all  to  whom  these  presents  may  come  greet- 
ing (or  To  all  whom  it  may  concern) :  Know  ye  that 
this  agreement,  etc.,  between  the ,  a  corpora- 
tion, existing  under  the  laws  of  the  State  of , 

of  the  first  part,  and  C.  D.,  E.  F.  and  G.  H.,  a 
company,  doing  business  under  the  firm-name 
and  style  of  The  C.  D.  Manufacturing  Com- 
pany of ,  of  the  second  part,  witnesseth  : 

Contract— Conclusions. 

Signed  (and  sealed).'  or. 


Signed,  sealed  and  ackno^vledged.(  or. 
Witness  our  hands  (and  seals),  or. 


Given  under  our  hands  (and  seals),  or. 


In  witness  ^vhereof,  wre  hereunto  set  our  hands, 
etc. ;  or, 

c-Plowd.  i6t  ;  Co.  Litt.  35,  b.  f-In  many  of  the  States 
private  seals  are  abolished.  ip-Mod.  ll-Bac.  Abr.  Leases, 
1,10;  5  Pet.  319,  359  ;  9M.  &W.  79.  1-5  Wheat.  326, 
337  :  II  Mass.  197 ;  6  Cush.  54 ;  7  Id.  217  ;  2  East.  154  ; 
3  Blackf.  55  ;  6  B.  Mon,  612 ;  12  Ired.  L.  95  ;  i  Busb.  L. 
422  ;  8  Texas,  98  ;  12  Id.  75  :  21  Conn.  627  ;  33  Me. 
io6  :  3  Fla.  262  ;  9  Barb.  528  ;  4  Comst.  208  ;  32  E.  L. 
&  E.  127 ;  I  Duer,  89.    J-ia  Q.  B.  310 ;  8  M.  &  W.  34 ; 


In  witness  whereof,  the  parties  to  these  pet^ 
ents  have  hereunto  set  their  hands,  etc. ;  or. 

In  witness  whereof,  we  have  hereunto  set  our 

hands  (and  affixed  our  seals)  (at )  this  day 

of .  or. 


In  witness  whereof,  we  have  hereunto  set  our 
hands  (or  subscribed  our  names)  the  day  and  year 
first  {,or  last)  above  written,  or, 


In  witness  whereof,  A.  B.,  the  party  of  the  first 
part,  and  C.  D.,  the  party  of  the  second  part,  in 
their  own  proper  persons,  have  hereunto  respect- 
ively and  severally  set  their  hands  and  seals,  this 

— —  day  of (or  the  day  and  year  first,  or  last) 

above  written. 

Contract — Testatum   or   Witness 
Clauses. 

Test;  fir. 

Attest;  or, 
In  Tvitness ;  or, 
Witnesses ;  or. 
In  presence  of;  or. 


Executed  (and  delivered)  in  presence  of;  or. 

Signed  and  interchanged  in  presence  of;  or. 

Signed,  sealed,  and  delivered  in  presence  of;  or, 

Signed,  sealed,  and  acknowledged  in  presence 
of: 

See  title  Wills,  post. 
Contract — Oeneral  Form. 

Sjr  Agent  or  Attorney  in  Fact. 

If  A.  signs  "A.,  for  B.,"  this  is  the  signature  of  A., 
and  he  is  the  contracting  party,  although  he  makes  the 
contract  at  the  instance  and  for  the  benefit  of  B.  But 
if  he  signs  "  B.,  by  A.,"  then  it  is  the  contract  of  B., 
made  by  him  through  his  instrument  A.  In  the  first 
case,  A.  is  principal ;  in  the  second,  B.  is  the  principal 
and  A.  his  agent.  The  name  of  the  principal  must 
appear  as  such  in  the  signature  of  a  deed  ;''  and  in 
agreements,  the  words  must  be  sufficient  to  bear  that 
construction  of  the  signature.'  Parol  evidence  may 
always  be  admitted  to  charge  an  unnamed  principal,  but 
not  to  discharge  an  actual  signer.j 

This  agreement,  made  this  of ,  A.  D. 

,  by  and  between  A.  B.,  of county,  in  the 

State  of ,  of  the  first  part,  by  C.  D.,  his  attorney 

in  fact,  and  E.  F.,  of county,  in  the  State  of 

,  of  the  second  part,  by  G.  //.,  his  attorney  in 

/act,  witnesseth, 

That  said  party  of  the  first  part,  etc.  (here  fot- 
loiu  as  in  other  agreements,  beiow). 

In  witness  whereof,  the  parties  have  hereunto 
set  their  hands,  the  day  and  year  first  above 
written. 

A.  B., 
By  E.  F. ,  his  attorney  in  fact. 

C.  D., 
By  G.  H.,  his  attorney  in  /act. 
Contract — Oeneral  Form. 
With  provisions  fixing  damages  in  case  0/  breach. 

Ascertained,  Fixed,  or  Liquidated  Damages  ar« 
damages  whose  amount  has  been  determined  by  antici^ 
patory  agreement  between  the  parties  to  an  agreement. 

A  stipulation  for  liquidated  damages  will  be  sustained 
as  liquidated  damages  in  the  following  cases  : 

First,  Where  the  agreement  is  of  such  a  nature  that 
the  damages  are  uncertain,  and  are  not  capable  of  being 
ascertained  by  any  known  rule.* 

II  A.  &  E.  594:  9  M.  &  W.  79;  II  Mass.  97,  27;  16 
Pick.  350:  9N.  H.  263;  7  Wend.  68:  10  Id.  87;  fl 
Whart.  79  ;  10  B.  Mon.  347  :  Paine  C.  C.  252  ;  8  Met. 
348;  1  C.il.  48:  :  10  B.  &  C.  671  ;  2  Cranch.  419:  - 
Cush.  371  :  5  Sanf  101.  k-2  T.  R.  32 ;  i  Ale.  &N.  Ir. 
389  :  2  Burr.  2225  ;  10  Ves.  Ch.  429  ;  3  M.  &  W.  535  ;  ^ 
C.  &  P.  240;  8  Mass.  223  ;  7  Cow.  307 ;  4  Wend.  468: 
5  Sandf  192:  12  Barb.  137,  366;  18  Id.  336;  14  Ark. 
315 ;  a  Ohio  St.  519. 


CONTRACTS. 


225 


Stcond,  Where,  from  the  tenor  of  the  agreement,  or 
the  nature  of  the  case,  it  appears  that  the  parties  have 
ascertained  the  amount  of  damages  by  fair  calculation 
and  adjustment.' 

This  agreement,  made  this  day  of ,  A. 

D.  ,  by  and  between  A.  B.,  of  the  town  of 

,  in  the  county  of (merchant),  and  C.  D., 

of  the  town  of ,  in  the  county  of ,  (manu- 
facturer), witnesseth  : 

That  said  party  of  the  second  part  shall  {here 
insert  the  subject-matter  or  object  0/ the  agreement). 

That  said  party  of  the  first  part  shall  pay  unto 
said  party  of  the  second  part,  for  the  same,  the 

■um  of dollars,  as  follows:   dollars,  on 

the day  of ,  A.  D. ,  and  dollars, 

on  the day  of ,  A.  D.  ,  with  the  inter- 
tat  on  the  amount  due,  payable  at  the  time  of  each 
payrpent. 

And  for  the  performance  of  this  agreement,  the 
said  parties  bind  themselves,  each  to  the  other,  in 

the  sum  of dollars,  as  liquidated  damages,  to 

be  paid  by  the  failing  party. 

In  witness  whereof,  the  said  parties  have  here- 
unto set  their  hands,  the  day  and  year  first  above 
written.  {Signed)  A.  B. 

[IVitnesses.]  CD. 

Contract — Ceneral  Form. 
Pf^ith  Liquidated  Damages,  etc. 

This  agreement,  made  this day  of ,  A. 

D. ,  by  and  between  A.  B.  (of  etc.)  of  the  first 

part,  and  C.  D.  (of  etc.)  of  the  second  part,  wit- 
nesseth : 

That  said  party  of  the  first  part,  for  the  consid- 
eration hereinafter  mentioned,  covenants  and 
agrees  with  said  party  of  the  second  part,  to  {here 
state  the  agreement). 

In  consideration  of  which,  said  party  of  the 
second  part  covenants  and  agrees  with  said  party 
of  the  first  part  to  {here  state  agreement). 

And  for  the  true  and  faithful  performance  of 
each  and  all  the  covenants  and  agreements  above 
mentioned,  said  parties  bind  themselves,  each  to 

the  other,  in  the  sum  of dollars,  as  liquidated 

damages,  to  be  paid  by  the  failing  party. 

In  witness  whereof,  the  parties  to  these  pres- 
ents have  hereunto  set  their  hands,  the  day  and 
year  first  above  written. 

A.  B. 
CD. 
Contract — Arbitration. 
See  title  Arbitrators,  ante. 

We,  the  undersigned,  A.  B.,  of ,  and  C  D., 

of ,  agree: 

To  submit  a  controversy  now  existing  between 
us,  in  relation  to  an  exchange  of  horses,  made 

between  us  at  ,  on  the  day  of ,  to 

A.  R.^  B.  I.,  and  T.  R.,  of ,  or  any  two  of 

them. 

That  the  award  to  be  made  by  said  arbitrators, 
or  any  t^vo  of  them,  shall,  in  all  things,  by  us  and 
each  of  us,  be  well  and  faithfully  kept  and  ob- 
served. 

That  said  award  shall  be  in  writing,  signed  by 
each  of  said  arbitrators,  or  any  two  of  them,  and 
ready  to  be  delivered  to  said  parties  in  difference, 

or  either  of  them ,  on  the day  of . 

Witness  our  hands  (and  seals)  this  day  of 

.  {Signed)  A.  B. 

[mtnesses.^  C.  D. 

Contract— Assig^nment. 

Of  Lease. 

See  title  Assignment,  ante. 

See  Contract — Sale  and  Assignment,  post. 

This  agreement  witnesseth  : 

That  C  D.,  of ,  for  a  consideration  of 

dollars,  shall,  on  or  before  the day  of ,  at 

(his  own  expense,  or  the  expense  of  E.  F.),  assign, 

(^convey,  grant,  and  transfer)  unto   E.  F.,  of ,  all 

his  (demand  estate),  interest,  right,  and  title  in  and 
to  the  following  described  premises,  to  wit : 
'  copying  the  description  from  his  lease)  (demised  and) 
leased  unt»  him  by  A.  B. ,  for  a  term  of years. 

To  have  and  to  hold  the  same  unto  the  said  E. 
F.,  his  heirs  and  assigns,  during  the  residue  of 
said  term  of  years,  by  virtue  of  the  said  lease, 

I-a  Story  Eq.  Jur.  §  1318  ;  2  Greenl.  Ev.  259  ;  i  Bing. 
ten;    7  Conn.  291;    n  N.  H.334;    6  Blaclcf.  206 ;    13 


subject  to  the  rents,  covenants,  and  agreements 
therein  specified. 

In  witness  whereof,  etc. 

{Signatures.) 
Contract — Auctioneer's. 
Auctioneer' s  Agreettmnt. 

This  agreement,  made  this  day  of ,  be- 
tween A.  B.,  purchaser,  and  E.  F.,  auctioneer, 
witnesseth  : 

That  A.  B.  has  this  day  become  the  purchaser 
at  public  auction  of  the  following  described  prop- 
erty, situated  in  ,  to  wit  {describing  the  prem- 
ises ) . 

That  said  A.  B.  has  this  day  paid  unto  said  E. 
F. dollars  of  the  purchase  money  therefor. 

That  said  A.  B.   agrees  to  pay  the  remaining: 

sum  of dollars,  purchase  money  therefor  (on 

the day  of ,  or  upon  the  execution  of  a  good 

and  sufficient  warranty  deed,  etc.) 

That  said  E.  F. ,  in  consideration  thereof,  hereby 
covenants  and  agrees  that  the  vendor,  C  D., 
shall  execute  and  deliver  said  A.  B.  a  good  and 
sufficient  warranty  deed  (with  full  covenants),  for 
the  premises  above  described,  upon  the  payment 
of  said  remaining  sum  of dollars. 

In  witness  whereof,  said  parties  have  hereuntn 
set  their  hands,  etc.  A.  B. 

llVitness.]  E.  F. 

Contract — Auctioneer's. 

Another  Form. 

Whereas  A.  B.  has  this ^  day  of ,  become 

purchaser  at  public  sale  oi  {describe  the  land  )  and 

paid  unto  me dollars  of  the  purchase  moni'.y 

therefor,  I  therefore  hereby  agree  that  the  ven- 
dor, C.  D.,  shall,  in  all  respects,  fulfil  the  conci- 
tions  (hereunto  annexed)  of  this  sale,  upon  payment 
of  — —  dollars,  the  residue  of  said  purchate 
money.  {Signed)  A.  B. 

\^lVitness.]  E.  F. 

Contract — Auctioneer's. 

By  Purchaser  at  Auction. 

Whereas  I  have,  this day  of ,  become 

purchaser  at  auction  sale  of  {describe  the  land)  and 

paid    unto    E.    F.   dollars   of   the   purchase 

money  therefor,  I  therefore  hereby  agree  to  pa/ 

the  sum  of dollars  to  the  vendor,  C.  D.,  co 

{or  before)  the day  of ,  upon  the  perform- 
ance of  the  conditions  (hereunto  annexed)  of  said 
sale.                                                 {Signed)  A.  B. 

[^Witnesses. "[ 

Contract— Barter  or  Trade. 

Salt  for  Cheese. 

This  agreement,  etc. 

That  said  A.  B.  shall  sell  and  deliver  to  said  C 

D. ,  at  his  store,  in ,  on  the day  of ,  one 

hundred  barrels  of  fine  salt,  in  good,  substantial 
barrels,  suitable  for  packing  beef  and  pork,  and 
for  use  of  the  dairy  and  kitchen. 

In  consideration  whereof,  said  C  D.  shall  sell 
and  deliver  to  said  A.  B.,  at  the  storehouse  of  E. 

F.,  in ,  on  the  day  of ,  one  thousand 

pounds  of  good,  merchantable  cheese,  and  four 
hundred  pounds  of  sweet  table  butter;  both  well 
packed,  in  tierces  or  firkins,  and  made  in  dairies 
where  at  least  fifteen  cows  are  kept. 

In  witness  whereof,  etc. 

Contract— Bond. 

Bond  for  Performance. 
See  Bonds,  Undertakings,  post. 

Contract— A  jpprenticeship. 

Indenture  of  Apprenticeship . 

This  agreement,   made  this  day  of , 

A.  D. ,  witnesseth  : 

That  A.  A.,  of  the  county  of ,  and  State  of 

,  now  aged years,  of  (his  or  her)  own  free 

will,  does  hereby  bind  (himself  or  herself)  to  serve 

M.  M.,  of  the  county  of ,  and  State  of ,  as 

apprentice  {or  clerk)  in  the  trade  of  a  blacksmith 
{or  other  trade,  profession,  or  employment),  and  to 
learn  said  trade  {or  profession,  etc.),  until  (he  or  she 
is  of  the  age  of  eighteen  or  sixteen  years,  which  will 
be  on  the) day  of ,  A.  D. . 

That  during  said  term  said  apprentice  shall 
serve  said  master  faithfully,  honestly,  and  Indus- 

Wend.  507  ;  17  Id.  447 ;  22  Id.  201 ;  26  Id.  630 ;  10  Mass. 
459;  7  Met.  (Mass.)  583;  2  Ala.  (N.  S.)425;  14  Me. 35a 


226 


CONTRACTS, 


triou«ly,  his  secrets  keep,  and  lawful  commands 
*verywhere  obey ;  at  all  times  protect  and  pre- 
serve the  goods  and  property  of  the  said  master, 
and  not  suffer  or  allow  any  to  be  injured  or 
wasted. 

That  said  apprentice  shall  not  buy,  sell,  or  traffic 
in  his  own  goods,  or  the  goods  of  others,  nor  be  ab- 
sent from  the  said  master's  service  day  or  night 
without  leave  :  but  in  all  things  behave  as  a  faith- 
ful apprentice  ought  to  do,  during  said  term. 

That  said  master  shall  clothe  and  provide  for 
the  said  apprentice  in  sickness,  and  in  health,  and 
supply  (him  or  her)  with  sufficient  and  suitable 
food,  raiment,  and  lodging;  and  shall  use  and 
employ  the  utmost  of  his  endeavors  to  teach  or 
cause  said  apprentice  to  be  taught  and  instructed 
in  the  trade  of  {here  state  the  trade,  etc.,  as  above). 

That  said  master  shall  cause  said  apprentice  to 
be  taught  to  read  and  write,  and  the  ground  rules 
of  arithmetic,  the  compound  rules,  and  the  rule 
of  three. 

That  said  master  shall  at  the  expiration  of  said 

apprentice's  time  of  service  give  (him  or  her) 

suits  of  clothes,  of  the  value  of  forty  dollars,  and 
dollars  in  current  money  of  the  United  States. 

il/  money  is  paid  with  the  apprentice ,  insert  here) 

and  the  said  M.  M.  acknowledges  receipt  of 

dollars  with  said  A.  A.,  from  (his  father  or  tnother, 
F.  A.),  as  a  compensation  for  his  instruction,  as 
above  mentioned. 

(  Or  if  wages  are  to  be  paid  for  the  service  of  the 
apprentice,  insert)  and  said  M.  M.  further  agrees 
to  pay  said  A.  A.  the  following  sums  of  money, 
to  wit :  for  the  first  year  of  his  service dol- 
lars ;  for  the  second  year  of  his  service dollars  ; 

for  every  subsequent  year  until  the  expiration  of 
his  term  of  service dollars  ;  which  said  pay- 
ments are  to  be  made  on  the day  of in 

each  year. 

And  for  the  true  performance  of  all  and  singular 
the  covenants  and  agreements  aforesaid,  the  said 
parties  bind  themselves  each  unto  the  other. 

In  witness  whereof,  the  parties  aforesaid  have 
hereunto  set  their  hands  the  day  and  year  first 
above  written. 

{Sigftature  of  Apprentice.) 

{Signature  of  Master. )  

(Signature  of  Parent  or  Guardian.) 

Form  of  Affidavit  of  Master  to  be  In- 
dorsed on  the  Indenture. 

State  of , county,  ss. 

I  do  solemnly  swear  that  I  will  faithfully  per- 
ibrm  the  duties  required  by  the  within  indenture 

and  enjoined  on  me  by  law.  M.  M . 

Subscribed  and  sworn  to  before  me  this 

day  of ,  A.  D. . 

C.  C,  Clerk  of  the Court, 

or  ].  P.,  justice  of  the  Peace. 

Contract— Building:. 

Long  Form. 

This  agreement,  made  this day  of ,  A. 

D.  ,  by  and  between  A.  B.  (builder  or  con- 
tractor), of ,  of  the  first  part,  and  C.  D.  (manu- 
facturer or  farmer,  etc.),  of ,  of  the  second  part, 

v^itnesseth : 

That  said  party  of  the  first  part,  for  the  consid- 
eration hereinafter  mentioned,  covenants  and 
agrees  to  make,  erect,  build,  and  finish,  in  a  good, 
substantial,  and  workmanlike  manner,  and  in 
conformity  with  the  plans,  drafts,  specifications, 
and  explanations  thereof,  which  is  hereunto  an- 
nexed and  made  a  part  hereof,  a  (</«v///«^ /wK.f<^, 
business  house,  or  other  building,  naming  it),  on  {here 

describe  the  location),  in county.  State  of , 

on  or  before  the day  of ,  A.  D. . 

That  said  building  shall  be  made,  erected,  built, 
and  finished  out  of  good  and  substantial  ma- 
terials, to  be  furnished  as  follows,  to  wit : 

By  said  party  of  the  first  part  {here  give  kind, 
quality ,  and  quantity ,  etc.) 

By  said  party  of  the  second  part  {same  as  abo7'e). 

That  as  soon  as  the  roof  thereof  is  put  on  and 

covered,  said  party  of  the  first  part  shall  effect 

full  insurance  on  said  building,  in  the  sum  of 

dollars,  the  policy  to  be  in  the  name  and  for  the 
benefit  of  said  party  of  the  second  part,  his  heirs, 
executors,  administrators,  or  assigns,  payable,  in 
case  of  loss,  to  whom  it  may  concern. 


That  each  party  to  this  agreement  shall  pay 
one-half  the  cost  of  said  insurance. 

In  consideration  of  which,  said  party  of  the 
second  part  does  hereby  covenant,  promise,  and 
agree,  to  pay,  or  cause  to  be  paid,  unto  said  party 
of  the  first  part,  or  his  legal  representatives,  the 

sum  of dollars,  in  the  manner  following,  to 

wit :  {Here  state  the  times,  amounts,  and  fnanner  of 
payment,  etc.) 

And  it  is  further  agreed  by  and  between  the 
parties  to  this  agreement  as  follows  : 

Alterations.  That  no  charge  of  any  kind  shall  be 
made  by  said  party  of  the  first  part  against  said  party 
of  the  sec<jnd  part  beyond  or  in  excess  of  the  sum  of 

dollars  for  the  full  performance  of  this  agreement, 

unless  said  party  of  the  second  part  shall  alter  the  afore, 
said  plans,  drafts,  specifications,  and  explanations,  in 
which  case  the  value  of  such  alterations  shall  be  added 
to  the  amount  to  be  paid  under  this  contract,  or  deducted 
therefrom,  as  the  case  may  require;  it  being  expressly 
understood  that  said  party  of  the  second  part  may,  froim 
time  to  time,  make  any  alterations  of,  to,  and  in  the 
said  plans,  drafts,  specifications,  and  explanations,  upon 
the  terms  aforesaid. 

Arbitration.  That  the  parties  of  the  first  part,  and 
of  the  second  part,  severally,  respectively,  and  mutually, 
agree  to  submit  each,  all,  and  every  demand  between 
them  hereinafter  arising,  if  any,  concerning  the  manner 
of  performing  or  completing  the  work,  or  the  time  or 
amount  of  any  payment  to  be  made  under  this  agree- 
ment, or  the  quantity  or  quality  of  labor  or  materials, 
or  both,  to  be  done,  furnished,  or  provided  under  this 
agreement,  or  any  other  cause  or  matter  touching  the 
work,  materials,  or  the  damages  contemplated,  set  forth, 
or  referred  to,  in  or  by  this  agreement,  to  the  determin- 
ation of  A.  R.,  B.  I.,  and  T.  R.,  the  award  of  whom, 
or  any  two  of  whom,  being  made  in  writing,  and  deliv- 
ered to  said  parties  to  this  agreement,  or  either  of  them, 

within days  of  the  time  hereinbefore  fixed  for  the 

final  completion  of  this  agreement,  shall  be  final. 

Damage  sustained  by  persons  or  property.  That 
said  party  of  the  first  part  shall  be  solely  responsible  for 
any  injury  or  damage  sustained  by  any  and  all  person 
and  persons,  on  property,  during  or  subsequent  to  the 
progress  and  completion  of  the  works  hereby  agreed 
upon,  from  or  by  any  act  or  default  of  said  party  of  the 
first  part,  and  shall  be  responsible  over  the  party  of  the 
second  part  for  all  costs  and  damages  which  said  party 
of  the  second  part  may  legally  incur  by  reason  of  such 
injury  or  damage  ;  and  that  said  party  of  the  first  part 
shall  give  all  usual  requisite  and  s'litable  notices  to  all 
parties  whose  estates  or  premises  may  or  shall  be  in  any 
way  interested  in  or  affected  by  the  performance  of  said 
"works. 

Extra  >vork.  That  no  extra  work  of  any  kind  shall 
be  performed,  or  extra  materials  furnished  by  said  party 
of  the  first  part,  unless  first  authorized  by  the  said 
party  of  the  second  part,  in  writing;  and 

That  said  party  of  the  first  part,  or  his  representatives, 
shall  not  be  delayed  in  the  constant  progress  of  the 
work  under  this  agreement,  or  any  of  the  extra  work 
under  the  same  or  connected  therewith,  by  said  party 
of  the  second  part :  and  for  each  and  every  day  said 

party  of  the  first  part  shall  be  so  delayed, additional 

days  shall  be  allowed  to  complete  the  work  aforesaid, 
from  and  after  the  day  hereinbefore  appointed  for  itf 
entire  completion,  unless  upon  the  contingency  provided 
for  below  in  the article  of  this  agreement. 

That  for  each  and  every  day's  delay  in  the  perform- 
ance and  completion  of  this  agreement,  or  for  any  extra 
work  under  it,  after  the  time  hereinbefore  fixed  for  the 
final  completion  of  this  agreement,  there  shall  be  al- 
lowed, and  paid  by  said  party  of  the  second  part  to  said 
party  of  the  first  part,  or  his  legal  representatives,  dam- 
ages for  such  delay,  if  the  same  shall  arise  from  any  act 
or  default  on  the  part  of  said  party  of  the  second  part. 

Foreman.  That  said  party  of  the  first  part  shall 
engage  and  provide  at  his  own  expease  during  the  pro- 
gress of  the  work,  under,  and  until  the  complete  fulfil- 
ment of  this  agreement,  a  thoroughly  competent  "  fore- 
man," whose  duty  it  is  to  attend  to  the  general  super- 
vision of  all  matters  hereby  undertaken  by  said  party  of 
the  first  part,  and  also  the  correct  and  exact  marking, 
preparing,  laying  out  and  locating  all  patterns,  moulds, 
models,  and  measurements  in,  to,  for,  and  upon  the 
work  hereby  agreed  upon,  from,  and  in  conformity  with 
said  plans,  drafts,  specifications,  and  explanadons. 

Forfeiture  of  contract.    That  if  at  any  time  during 


CONTRACTS. 


j»7 


tfia  progress  of  said  work  said  party  of  the  second  part 
shall  find  that  said  work  is  not  carried  forward  with 
sufficient  rapidity  and  thoroughness,  or  that  the  materials 
furnished,  forenian,  sub-contractors,  or  workmen  em- 
ployed by  said  party  of  the  first  part,  are  unskilled,  in- 
competent, and  insufficient  for  the  completion  of  said 
work  within  the  time  and  manner  stipulated  in  the  plans, 
drafts,  specifications,  and  explanations  aforesaid,  he 
shall  give  notice  of  such  insufficiency  and  defects  in 
progress,  materials,  foreman,  sub-contractors,  or  work- 
men, to  said  party  of  the  first  part ;  and  if  within 

days  thereafter  such  insufficiency  and  defects  are  not 
remedied,  then  said  party  of  the  second  part  may  enter 
upon  the  work,  and  suspend  or  discharge  said  party  of 
the  first  part,  and  all  employed  under  him,  and  carry  on 
and  complete  the  work  by  "  day's  work,"  or  otherwise, 
as  said  party  may  elect,  providing  and  substituting 
proper  and  sufficient  materials  and  workmen  ;  and  the 
expense  thereof  shall  be  chargeable  to  said  party  of  the 
first  part,  and  be  deducted  from  any  sum  which  may  be 
due  to  him  on  a  final  settlement :  all  questions  arising 
out  of  this  eighth  article  of  this  agreement  shall  be  sub- 
ject to  the  final  decision  of  the  arbitrators  hereinafter 
mentioned. 

Liens.  That  in  case  any  hen  or  liens  for  labor  or 
materials  shall  exist  upon  the  property  or  estate  of  said 
party  of  the  second  part,  at  the  time  or  times  when  by 
the  terms  and  provisions  of  this  agreement  a  payment  is 
to  be  made  by  said  party  of  the  second  part  to  said 
party  of  the  first  part,  such  payment,  or  such  pait 
thereof  as  shall  be  equal  to  not  less  than  double  the 
amount  for  which  said  lien  or  liens  shall  or  can  exist, 
shall  not  be  payable  at  the  said  stipulated  time  or  times, 
notwithstanding  anything  to  the  contrary  in  this  agree- 
ment contained  ;  and  that  said  party  of  the  second  part 
shall,  and  may  be  well  assured  that  no  such  liens  do,  or 
can  attach  or  exist,  before  he  shall  be  liable  to  make 
either  of  said  payments. 

Work,  whether  described  or  not,  etc.  That  all 
the  works  described  or  referred  to  in  the  annexed  spe- 
cifications and  explanations  are  to  be  executed  by  said 
party  of  the  first  part,  whether  or  not  said  works  are 
illustrated  by  the  aforesaid  plans  or  drafts :  and  that 
said  party  of  the  first  part  is  to  execute  all  works  shown 
by  said  plans  and  drafts,  whether  or  not  said  works  are 
described  or  referred  to  in  said  specifications  or  expla- 
nations. 

In  witness  whereof,  the  said  parties  have  here- 
unto set  their  hands  and  seals  the  day  and  year 
first  above  written.  A.  B. 

(Hazinesses.)  C.  D. 

Specification  of  materials  and  labor,  etc. 

(We  here  enumerate  a  majority  of  the  subjects  of  con- 
ti'act  which  may  be  agreed  upon,  and  recommend  that 
<hey  be  each  passed  upon  separately,  and  that  a  separate 
memorandum  be  made  of  each  item  included  in  the 
agreement.) 

Alcoves. 

Banking,  about  main  and  other  buildings  and  fences, 
•tc. 

Basement. 

Bath  Room. 

Bay  V^indo^ws. 

Bells. 

Blinds.     Inside  and  outside. 

Boarding.     Rough. 

Bolts.     Chain  and  plain. 

Bracing,  Bridging. 

Bronzes. 

Burglar  Alarms. 

Cellars. 

Chimneys. 

Closets. 

Cupboards. 

Deadening. 

Doors.     Inside  and  outside. 

Drains. 

Drainage. 

Dumb  Waiters, 

Fences. 

Fountains. 

Finish.    Inside,  outside. 

Fire  Alarms. 

Flagging. 

Floors. 

Framing.    Kind  of  materiald  axti  work. 

Furring. 


Gutters  and  Conducttra. 

Grading. 

Halls. 

Hardware. 

Housing. 

Labor. 

Lightning-rods. 

Locks. 

Mantels. 

Materials.  Quantity,  quality,  damage  to  and  by, 
from  shrinkage  or  other  cause.  Care  aiuTprotection  of, 
from  weather,  by  housing,  priming,  etc 

Out-houses. 

Painting. 

Partitions. 

Pavements. 

Pipes. 

Plumbing. 

Porches. 

Position  of  main  and  other  buildinga. 

Priming. 

Rooms. 

Sewers. 

Screens. 

Shingling,  Slating,  Tinning. 

Sinks. 

Sheathing. 

Speaking  Tubes. 

Stairs. 

Stories.  First,  second,  third,  walls,  cress-walls, 
sub-division  walls,  chimneys,  materials  for,  etc. 

Structure  of  main  and  other  buildings. 

Tiling. 

Urinals. 

Venetian  Blinds. 

Ventilation. 

W^alks. 

Washstands. 

^Veather. 

Windows. 

Items  omitted. 

(Signed)       A.  B. 

{IViinesses.)  C.  D. 

Contract— Bnlldlng^. 

Long  Form. 

This  agreement  witnesseth,  etc. 

That  A.  D.  shall  for  the  considerations  herein- 
after mentioned,  on  or  before  the day  of 

next,  erect  and  finish  for  C.  D.,  in  a  good,  sub- 
stantial, and  workmanlike  manner,  the  masons' 

part  of stores,  on  the  lots  and  ,  in 

street,  in ,  agreeably  to  the  several  draw- 
ings, plans,  and  specifications  made  by  A.  T., 
architect,  and  signed  by  the  parties  hereto. 

That  said  work  shall  be  done  under  the  direc- 
tion and  to  the  satisfaction  of  said  architect,  or 
such  other  architect  in  good  standing,  as  said  C. 
D.  shall  select  for  that  purpose,  to  be  testified  by 
a  certificate  or  writing,  under  the  hand  of  said 
architect. 

That  said  A.  B.  shall  find  and  provide  such 
good,  proper,  and  sufficient  materials  of  all  kinds 
whatsoever,  as  shall  be  requisite  for  completing 
and  finishing  all  the  stone-masons',  bricklayers  , 
brown-stone,  blue-stone,  and  granite  cutters', 
excavators',  and  other  works  of  the  said  build- 
ings, mentioned  in  said  specifications. 

That  said  C.  D.  shall,  in  consideration  of  the 
covenants  and  agreements  of  said  A.  B.  being 
strictly  performed  and  kept,  well  and  truly  pay, 

or  cause  to  be  paid  to  said  A.  B.  the  sum  of 

dollars,  at  the  times  and  in  the  manner  following: 
(here  give  the  amounts,  conditions ,  and  times  o/ pay- 
ment).  When  all  said  works  are  completely  fin- 
ished, according  to  said   drawings,  plans,  and 

specifications,  the  remaining  sum  of dollars. 

Provided,  however,  that  in  each  of  said  cases  a  cer- 
tificate be  obtained  and  signed  by  said  architect. 

It  is  further  agreed  : 

Additions,  alterations,  etc.  Should  the  owner  at 
any  time  during  the  progress  of  said  building  request 
any  addition  to,  alteration  of,  deviation  from,  or  omis- 
sions concerning  said  agreement,  the  same  .shall  be  made 
and  shall  in  no  way  affect  or  make  void  said  agreenient, 
but  shall  be  added  to  or  deducted  from  the  amount  of 
said  contract  by  a  fair  and  reasonable  valuation ,  Should 
any  dispute  arise  concerning  the  true  value  of  the  extra 
WQrk  OF  w^rks  o^iitted,  the  sapje  sh^U  be  v^^lued  bjr  tv9 


m8 


CONTRACTS. 


•ompetent  persons,  one  selected  by  said  owner  and  one 
\j  said  contractor,  the  two  having  power  to  choose  an 
«mpire,  whose  decision  shall  be  binding,  conclusive,  and 
final. 

Damages,  loss,  etc.  Said  owner  shall  not  in  any 
■lanner  be  accountable  or  answerable  for  any  damage 
or  loss  that  shall  happen  said  works  or  any  part  thereof, 
or  to  any  of  the  inateri.ils  or  things  employed  in  the  pro- 
Cress  or  completion  of  said  work  (loss  or  damage  by  fire 
[or  other  unavoidable  accident]  excepted). 

Liens  for  labor  or  tnaterials.  Should  any  claim 
or  claims  be  made  by  any  person  or  persons  for  work 
done,  or  materials  furnished  for  said  building,  upon  the 
employment,  or  alleged  employment  or  purchase  by  said 
vontractor,  and  a  notice  of  such  claim  be  filed,  to  create 
a  lien  upon  said  building  and  premises,  under  any  law 
of  the  State,  now  or  hereafter  in  force,  said  owner  shall 
be  at  liberty  to  retain  in  his  hands,  out  of  any  moneys 
which  would  otherwise  be  payable  to  said  contractor, 
the  amount  of  such  claim  or  claims,  and  the  reasonable 
amount  of  costs  and  expenses  likely  to  occur  by  reason 
thereof.  Until  such  claim  be  lawfully  cancelled  or  dis- 
charged (of  record). 

And  said  contractor  shall  cause  all  liens  to  be  fully 
and  absolutely  settled,  cancelled,  and  discharged,  with- 
out loss,  expense,  or  damage  to  said  owner,  and  without 
any  delay  in  the  progress  of  said  work  aforesaid ;  and 
so  deliver  over  to  said  owner  the  same,  free  from  all 
claims  and  demands  whatsoever. 

Materials,  labor,  etc.  Said  contractor,  at  his  own 
costs  and  charges,  shall  provide  all  customary  and  ne- 
cessary materials  and  labor,  scaffolding,  implements, 
moulds,  models,  transportation,  drayage,  cartage,  and 
all  accessories  of  every  description  for  the  due  perform- 
ance of  the  several  erections  in  said  drawings,  plans, 
and  specifications  set  forth. 

Should  said  contractor,  at  any  time  during  the  pro- 
gress of  said  work,  refuse  or  neglect  to  supply  a  suffi- 
ciency of  materials  or  workmen,  then,  upon  three  days' 
notice  being  given,  said  owner  shall  have  power  to  pro- 
vide materials  and  workmen,  and  finish  said  work,  and 
the  e-xpcnse  thereof  shall  be  deducted  from  the  amount 
of  said  agreement. 

The  specifications,  plans,  and  drawings  are  in- 
tended to  co-operate,  so  that  the  work  exhibited  in  the 
plans  or  drawings,  and  not  mentioned  in  the  specifica- 
tions, or  vice  versa,  are  to  be  executed  the  same  as  if 
it  were  mentioned  in  the  specifications  and  set  forth  in 
the  plans  and  drawings,  to  the  true  meaning  and  inten- 
tion of  said  drawings  and  specifications. 

Said  specifications,  plans  and  drawings  shall  be  strictly 
adhered  to  by  said  contractor,  subject  only  to  the  ex- 
ceptions in  this  agreement  above  mentioned. 

Should  any  dispute  arise  respecting  the  true  construc- 
tion of  said  specifications,  plans,  or  drawings,  the  same 
shall  be  decided  by  said  A.  T.,  or  such  other  architect 
in  good  standing  as  said  owner  shall  appoint  to  oversee 
said  buildings,  and  his  decision  shall  be  conclusive  and 
final. 

In  witness,  etc 

Contract-^Bnildinip. 

Short  Form — With  Liquidated  Damages,  etc. 

This  agreement,  made  this  day  of ,  A. 

D. ,  by  and  between  A.  B.  (of ,  farmer),  of 

the  first  part,  and  C.  D.  (of ,  builder),  of  the 

second  part,  witnesseth  : 

The  said  party  of  the  second  part  agrees  to  and 
w^ith  said  party  of  the  first  part,  to  make,  erect, 
build,  and  nnish,  in  a  good,  substantial,  and  work- 
manlike manner,  on  lot ,  in  street ,  in 

county,  ,   one   (brick,  stone,   or  frame)   house, 

Kgreeable,  and  according  to  the  plan,  draft,  and 
explanation  hereto  annexed,  of  good  and  substan- 
tial materials  yor  of  such  materials  as  said  party  of 
the  first  part  may  furnish  therefor),  on  or  before  the 

day  of ,  A.  D. . 

That  the  said  party  of  the  first  part  agrees  to  pay 
unto  the  said  party  of  the  second  part  for  the  same 

the  sum  of dollars,  as  follows  :  dollars, 

when,  etc.  f giving  time  or  progress  oj  work), 

dollars,  ^vhen,  etc. 

{1/  the  o7vner  is  to  furnish  materials,  add :)  And 
also  that  he  will  furnish  the  necessary  materials 
for  said  work  in  suc'.i  reasonable  quantities,  and 
at  such  reasonable  times  as  said  party  of  the  sec- 
ond part  shall  require. 

And  for  the  performance  of  the  above  cove- 
Bitnts,  th«  «aid  parties  ^ind  theipselves,  ea9h  \f) 


the  other,  in  the  sum  of (*ollars,  as  liquidate4 

damages,  to  be  paid  by  the  failing  party. 

In  witness  whereof,  the  said  parties  have  here> 
unto  set  their  hands,  the  day  and  year  first  above 
written.  A.  B. 

yiVitnesses.]  C.  D. 

€ontractr— Building;. 

Short  Form — According  to  Plan  Annexed. 

This  agreement,  etc.,  witnesseth  : 

That  A.  B.,  for  the  consideration  hereinafter 

mentioned,  shall,  within  the  space  of ,  next 

after  the  date  hereof,  in  a  good  and  workmanlike 
manner,  and  according  to  the  best  of  his  art  and 

skill  at ,  well  and  substantially  build,  finish, 

erect,  and  set  up  one  dwelling  house,  according 
to  the  drawings,  plans,  and  specifications  here- 
unto annexed. 

That  the  dimensions  of  said  dwelling  shall  be 
as  follows  :  (giving  them). 

That  said  dwelling  shall  be  composed  of  mate- 
rial as  follows  :  {describing it  viinutely  and  at  length). 

That  all  said  materials  shall  be  furnished  by 
said ;  or. 

That  A.  B.  shall,  at  his  own  costs  and  expenss, 
provide  the  following  materials  for  the  construc- 
tion of  said  building  :   gme  items). 

That  C.  D.  shall,  at  his  own  costs  and  expense, 
provide  the  following  materials  for  the  construc- 
tion of  said  building  :  (give  items i. 

That  all  further  and  other  materials  customary 
and  necessary  in  the  construction  and  completion 
thereof  shall  be  furnished  by  and  at  the  costs  and 
expense  of . 

That  C.  D.,  in  consideration  of  the  premises) 

shall  pay  said  A.  B.  the  sum  of dollars,  ai 

follows  : 

First  payment.     When,  etc. 

Second  payment.     When,  etc. 

Etc.,  etc. 

Final  payment  of  the  remaining  sum  of  ■~—  dol 
lars,  in  full  for  all  said  work,  when  said  building  is  co»fi 
plete  for  occupancy. 

In  witness,  etc. 

<'oiitract— Bnfldingr* 

Short  Form — According  to  Plans  Annexed. 

Articles  of  agreement  made  and  concluded  tlit 

day  of ,  between  A.  B.,  of ,  and  C.  D., 

of ,  as  follows,  viz.: 

The  said  A.  B. ,  for  the  considerations  herein- 
after mentioned,  covenants,  promises  and  agrees 
that  he  will,  within  the  space  of  six  months  from 
the  date  hereof,  in  a  good  and  workmanlike  man- 
ner, and  according  to  his  best  art  and  skill,  well 
and  substantially  erecfand  build,  set  up,  and  fin- 
ish one  dwelling  (or  store)  house,  on. lot  number 

,  on  street,  in  the  town  of ,  and  in 

such  place  thereon  as  said  C.  D.  shall  direct,  and 
according  to  the  plans  and  specifications  here- 
unto annexed. 

The  dimensions  of  said  house  to  be  as  follows, 
viz.:  {describing  them). 

The  said  house  to  be  composed  of  such  stone, 
brick,  and  other  materials,  as  said  C.  D.  shall 
furnish. 

In  consideration  whereof,  said  C.  D.  covenants, 
promises,  and  agrees,  well  and  truly  to  pay,  or 
cause  to  be  paid  to  said  A.  B.,the  sum  of  one 
thousand  dollars,  in  the  manner  following,  viz.: 

Two  hundred  dollars,  part  thereof,  when  the 
foundations  and  cellar  of  said  building  are  com- 
pleted. 

Two  hundred  dollars,  part  thereof,  when  the 
roof  of  said  building  is  completed. 

Two  hundred  dollars,  part  thereof,  when  said 
building  is  enclosed. 

The  remaining  four  hundred  dollars  when  said 
building  is  fully  completed  and  keys  thereof  de- 
livered to  said  C.  D. 

And  for  the  true  performance  of  all  and  every 
covenant,  promise,  and  agreement  aforesaid,  said 
parties  each  binds  himself  unto  the  other  in  the 
penal  sum  of dollars,  firmly  by  these  presents. 

In  \vitness  whereof,  etc. 

rontraot— BnildinfT. 

For  Bricklaying  and  Plastering. 
This  agreement,  etc.,  witnesseth  : 

Th»t  A-  9- 1  for  the  wnsjderfitjpos  bercinuftei 


CONTRACTS. 


229 


mentioned,  shall,  in  a  good,  sufficient,  and  work- 
manlike manner,  at  nis  own  cost  and  charge, 
with  materials  to  be  furnished  by  C.  D.,do  and 
perform  all  the  work  and  workmanship  belong- 
ing to  the  bricklayer  and  plasterer,  in  and  about 
the  erecting  and  building  of  a  good  and  substan- 
tial dwelling  (or  store)  house,  on  lot  No. ,  on 

• street,  in ,  etc. 

That  said  A.  B.  will  build  the  same  in  such 
manner,  and  with  such  thickness  of  walls, 
height  or  stories,  and  such  or  so  many  lights, 
chimneys,  and  conveniences,  and  in  such  man- 
ner, and  will  execute  and  perforroi  such  ornamen- 
tal work  about  said  building  as  said  C.  D.  shall 
direct. 

That  said  A.  B.  will  use  his  utmost  care  and 
diligence  in  using  and  working  up  said  C.  D.'s 
materials  for  said  building  to  the  b«-st  and  most 
advantage. 

That  said  A.  B.  will  pay  and  discharge  all  his 
workmen  to  be  employed  in  and  about  said  build- 
ing in  full  and  at  the  end  of  each  week  during  the 
time  he  is  employed  upon  said  building. 

That  said  A.  B.  shall  completely  finish  all  said 
work  belonging  to  the  bricklayer  and  plasterer,  in 
said  building,  on  or  before  the day  of next. 

That  no  lien  or  liens  for  work,  labor,  or  ma- 
terials shall  attach  or  exist  at  the  completion  of 
said  building  against  the  same. 

That  in  consideration  therefor  said  C.  D.  shall 

gay  or  cause  to  be  paid  for  all  such  work  as  shall 
y  said  A.  B.  be  done  or  performed  in  and  about 
said  building,  the  following  rates: 

for  every  thousand  brick,  by  actual  count 

\jor  measured  by  custom  of  bricklayers),  laid. 

per  yard  for  every  yard,  by  actual  measure- 
ment of  plastered  surface  (or  measured  by  custom 
of  plasterers),  ornamental  ^vork  excepted. 

dollars  in  full  for  all  ornamental  work  to 

nc  done  and  performed  as  aforesaid. 

That  nothing  is  to  be  measured  or  paid  for  that 
AS  not  covered  with  plaster. 

That  no  extra  charge  is  to  be  made  or  allov^red 
t'cr  arches,  closets,  corners,  fire-places,  jambs, 
j(iints,  recesses,  or  any  other  kind  of  work  what- 
ei'er,  usually  or  at  any  time  rated  as  extra,  but 
tlie  whole  is  to  be  measured  actually,  singly,  and 
Ml  ithout  repetition,  or  regard  to  or  for  any  custom 
a:  usage  among  bricklayers  and  plasterers,  or 
otherwise. 

That  said  C.  D.  shall  pay  all  said  money  in  the 
manner  following,  viz.  \state  the  ainounts  and  dates 
0/ payment,  etc.) 

In  witness,  etc. 

Contract— Baildingr. 

Materials  /urnished  by  Builder,  etc. 

This  agreement,  etc.,  witnesseth: 

That  said  A.  B.,  for  the  considerations  herein- 
after mentioned,  shall  within  months  from 

the  date  hereof,  erect,  build,  and  con^pletely  cover 
and  finish  a  dwelling-house  and  buildings  for  said 

C.  D.,  upon  lot  No. ,  in street,  in  the  city 

of  ,  according  to  the  plan  and  elevation  set 

forth  in  the  schedule  hereunder  written  (or  here- 
unto annexed). 

That  said  A.  B.  shall  do,  perform,  and  execute, 
all  and  singular,  the  works  also  mentioned  in  said 
schedule,  and  according  to  the  plan  and  elevation 
therein  contained  or  mentioned. 

That  said  A.  B.  shall  provide  such  good,  proper, 
and  sufficient  materials  of  all  kinds  whatsoever, 
as  shall  be  suitable  for  erecting  the  said  dwelling- 
house  and  buildings  and  completely  finishing 
said  works. 

That  said  dwelling-house  and  buildings  shall 
be  cotnpleted  in  a  good,  substantial,  and  work- 
manlike manner  (to  the  satisfaction  and  approval  of 
S.  A.  [surveyor  or  architect),  for  this  purpose  to  be 
testified  by  a  writing  or  certificate  under  the 
hand  of  said  S.  A. 

That  if  said  A.  B.  shall  be  guilty  of  any  delay 
^whatsoever  in  building  and  finishing  said  dwell- 
ing-house, buildings,  or  \vorks,  then  it  shall  be 
lawful  for  the  said  C.  D.  to  give  notice  in  writing, 

at  the  dwelling-house  of  said  A.  B. ,  and  after 

days  from  so  giving  said  notice  to  purchase 
proper  and  sufficient  materials,  and  employ  a 
tumcient  niimber  of  workmen  to  complete  said 


dwelling-house,  buildings,  and  works,  and  to  de- 
duct and  retain  the  cost  of  said  materials  and 
sums  of  money  paid  said  workmen,  out  of  the 
money  that  would  be  due  said  A.  B.  upon  ths 
performance  of  this  agreement,  and  that  in  such 
events  said  A.  B.  shall  not  do  any  act  or  thing  to 
prevent,  hinder,  or  molest  said  C.  D.,  or  any  per- 
son employed  by  him,  from  using  said  materialr 
and  completing  and  finishing  said  dwelling- 
house,  buildings,  and  works  in  the  manner  afore- 
said. 

That  said  C.  D. ,  in  consideration  of  the  premises, 
and  subject  to  the  conditions  and  stipulations  in 
this  agreement  contained,  shall  pay  or  cause  said 
A.  B.  to  be  paid  the  sum  of dollars,  as  fol- 
lows, viz.  (giving  terms,  time  and  amounts  0/  ea<^ 
payment). 

Arbitration.  See  preceding  forms. 

Extra  work,  etc. 

That  in  case  said  C.  D.  shall  direct  more  work  to  b« 
done  in  and  about  said  dwelling-house,  buildings,  and 
works  than  is  contained  in  the  schedule  hereunder 
written  (or  hereunto  annexed),  then  and  in  such  case  he 
shall  pay  said  A.  B.  so  much  money  as  such  extra  work 
and  the  materials  used  therein  shall  cost  and  amount  to 
(not  exceeding dollars). 

Omitted  work,  etc. 

That  in  case  said  C.  D.  shall  direct  less  work  to  be 
done  in  and  about  said  dwelling-house,  buildings,  or 
works,  or  to  diminish  or  omit  any  work  thereon,  then 
and  in  such  case  he  shall  deduct,  and  said  A.  B.  shall 

allow,  out  of  said  sum  of dollars,  so  much  money 

as  the  work  so  diminished  or  omitted  shall  amount  to, 
upon  a  reasonable  and  true  valuation  (not  exceeding 
dollars). 

Workmen's  wages  to  be  paid  by  owner. 

That  said  C.  D.  sh;iil,  .  very  week  during  the  progress 
of  said  buildings  and  works,  pay  and  supply  said  A.  B. 
with  such  sums  of  money  as  shall  be  sufficient  for  pay- 
ing and  discharging  the  workmen  and  laborers  for  their 
labor  and  wages,  as  the  same  shall  become  due  and  pay- 
able, not  exceeding  the  sum  of dollars  (in  any  one 

week  or  month),  and  that  said  payments  shall  be  ascer- 
tained by  said  S.  T.  by  a  certificate  under  his  hand. 

That  said  A.  B.  shall  receive  (weekly  or  monthly) 
the  sum  of dollars. 

That  the  remainder  of  said  sum  of dollars 

shall  be  paid  said  A.  B.  upon  the  completion  of 
said  buildings  and  works  ready  for  use  and  occu- 
pancy, the  same  to  be  ascertained  as  aforesaid. 

In  witness,  etc. 

Contract — Building,  etc. 
Rebuilding — Mills. 

This  agreement,  etc.,  witnesseth  : 

That  said  party  of  the  first  part,  for  the  consid- 
eration hereinafter  mentioned,  will,  on  or  before 
the  day  of next,  completely  and  thor- 
oughly rebuild  or  cause  to  be  rebuilt  the  mills  of 

said  party  of  the  second  part,  situate  on  the 

outlet  of  the  lake,  in  the  town  of ,  with 

such  materials  and  workmen  as  said  party  of  the 
second  part  shall  find  and  provide  for  the  same. 

That  said  party  of  the  first  part  shall  not  absent 
himself  nor  depart  from  the  work  and  rebuilding 
aforesaid,  without  leave  of  said  party  of  the 
second  part. 

That  if  said  party  of  the  first  part  shall  absent 
himself  without  leave,  he  shall  pay  said  party  of 

the  second  part dollars  for  every  day  of  such 

absence,  to  be  deducted  from  the  wages  becoming 
due  to  said  party  of  the  first  part,  as  hereinafter 
provided. 

That  said  party  of  the  second  part,  in  consido 
eration  of  the  premises,  shall  pay  said  party  of 
the  first  part,  for  all  such  time  as  he  shall  be  emr 
ployed  in  such  work  and  rebuilding  weekly,  each, 
week,  the  sum  of dollars,  and  so,  in  propor- 
tion, for  a  less  time  than  a  wreck  ;  and  in  addition 

thereto  the  sum  of dollars  on  the  completion 

of  said  work  and  rebuilding. 

In  witness  ^whereof,  etc. 

Contract — Bnlldln^,  ete. 
Taking  Down  and  Rebuilding. 

This  agreement,  etc.,  witnesseth  : 

That  said  A.  B.,  for  the  consideration  herein^ 
after  mentioned,  shall  forthwith  take  do'^vn  the 
dwelling-  (or  store-)  house  of  $aid  C  D.,  situate4 
at ,  etc, 


a3<- 


CONTRACTS. 


That  in  the  place  and  stead  thereof  he  will 
make,  erect,  build,  and  iinish  one  new  dwelline- 
(or  store-)  house  (or  tenement),  forty  feet  in  width, 
fiftv  feet  in  length,  a  cellar  of  corresponding  size, 

and feet  deep,  and  two  and  one-half  stories 

high,  with  four  rooms  on  the  first  two,  and  two 
rooms  on  the  attic  floors. 

That  said  A.  B.  shall  find  and  provide  at  his 
own  costs  and  charges,  all  manner  of  brick,  iron, 
lath,  lead,  lime,  nails,  sand,  shingles  (slate),  stone, 
tin,  tiles,  and  all  and  every  other  material  and 
manufactured  article  customary  or  necessary  to 
the  proper  construction  of  the  same. 

That  said  A.  B.  shall  cleanse  and  carry  away 
and  dispose  of  all  rubbish  whatsoever  which 
Shall  arise  in  the  execution  or  by  virtue  of  this 
agreement. 

That  said  A.  B.  shall,  on  or  before  the day 

of ,  well  and  substantially,  and  in  a  work- 
manlike manner  in  all  things  complete  the  said 
building  ready  for  immediate  occupancy. 

That  said  C.  D.  shall,  in  consideration  thereof, 

p«y  unto  said  A.  B.  the  sum  of dollars,  as 

follows  {stating  terms,  time,  and  amount  of  pay- 
ment). 

In  ^vitness  whereof,  etc. 

Contract— Bnlldlng'.  etc. 

Taking  Doivn  and  Rebuilding. 

This  agreement,  etc.,  witnesseth  : 

That  A.  B.,  for  the  consideration  hereinafter 
mentioned,  shall  forthwith  take  down  and  re- 
move the  dwelling-house  of  C.  D.,  situated  on 

lot  No.  ,  in   street,  in   ;  and   in  the 

stead  thereof  shall,  on  or  before  the  day  of 

next,  make,  erect,  build,  and  finish  one  new 

tenement  or  dwelling-house,  of  the  following  di- 
mensions, viz.  :   width  of  front ,  length  or 

depth  backwards ,  height ,  of stories, 

each high  ;  all  divided  into  rooms  as  follows, 

.    The  dimensions  of  the  cellars  shall  be  as 

follows,  viz., ,  etc.,  etc. 

That  said  A.  B.  shall  furnish  at  his  own  cost 
and  expense,  all  stone,  brick,  lumber,  sand,  lime, 
iron,  hardware,  nails,  oils,  paints,  glass,  putty, 
and  all  and  everything  necessary  in  the  complete 
erection  and  finish  of  said  building,  fit  and  ready 
for  occupancy. 

That  said  C.  D.,  in  consideration  of  said  build- 
ing being  so  made,  erected,  built,  and  finished, 
shall  pay  or  cause  to  be  paid  unto  said  A.  B.  the 
sum  of  two  thousand  dollars,  at  three  several 
payments,  to  wit : 

Five  hundred  dollars  thereof  at  the  beginning 
of  said  work. 

Five  hundred  dollars  when  the  roof  of  said 
building  is  framed  and  covered. 

The  one  thousand  dollars  remaining,  when  the 
whole  building  is  completed  as  aforesaid. 

In  witness  whereof,  etc. 
Contracts— Bulldlngr  and  Construction. 
Engines  and  Machinery  for  Steamship,  etc. 

This  agreement,  etc.,  witnesseth  : 

That  said  A.  B.  shall,  for  the  consideration 
hereinafter  mentioned,  build,  construct,  and  fin- 
ish, and  set  in  position,  and  secure  complete  and 
perfect  in  all  its  parts,  together  with  all  appurte- 
nances, ready  for  sea  and  service,  furnishing  all 
materials  therefor,  according  to  the  specifications 
hereunto  annexed,  and  in  a  good,  substantial,  and 
workmanlike  manner,  the  following  engines  and 
machinery  for  said  C.  D.,  to  the  satisfaction  and 
under  the  direction  of  the  superintendent  of  such 
construction,  in  said  specification  named. 

That  said  engines  and  machinery  shall  consist 
of  two  side-lever  low-pressure  steam  marine  en- 
gines and  four  boilers,  of  the  capacity,  dimen- 
sions, material,  and  workmanship  mentioned  in 
the  specification  hereunto  annexed  ;  and  with  all 
tools,  fixtures,  and  appurtenances  therein  men- 
tioned, or  referred  to,  or  properly  appertaining  or 
belonging  thereto. 

That  in  every  particular  which  is  not  specifically 
named  and  provided  for  in  said  specification,  and 
•aid  engine  and  boilers,  tools,  fixtures,  and  ap- 
purtenances shall  be  built,  constructed,  and  fully 
connpleted,  of  such  materials,  and  in  such  man- 
ner in  every  respect  as  said  superintendent  shall 
approve  and  direct. 


That  said  engines,  boilbrs,  tools,  fixtures,  an* 
appurtenances  shall  be  set  in  position,  secured 
fixed,  and  fully  completed  in  readiness  for  sea 

and  service,  on  board  of  the  steamship ,  now 

building  for  said  C.  D.  at  ,  and  in  every  re- 
spect ready  for  use  on  or  before  the  day 

of . 

That  said  C.  D.  shall,  in  consideration  thereof, 
pay  unto  said  A.  B.  the  sum  of dollars,  as  fol- 
lows:     dollars  upon  the  execution  of  these 

presents, dollars  upon,  etc. 

Etc. 

And  the  residue  of  said  sum  of dollars  so 

soon  as  said  engines,  boilers,  tools,  fixtures,  and 
appurtenances  are  proved  by  a  satisfactory  trial 
to  be  built,  constructed,  completed,  fixed,  set  in 
position,  and  secured  in  all  respects  according  to 
the  provisions  of  this  agreement. 

In  witness,  etc. 

Centract^Buildlng:  and   Construction. 

Locomotive. 

Agreement  between  A.  B.  and  CD.,  composing 

the  firm  of  A.  B.  &  Co.,  of ,  and  P.  T.  and  T. 

R.,  president  and  secretary  of  the Company, 

witnesseth : 

That  said  A.  B.  &Co.  shall  build  for  said  com- 
pany one  locomotive  engine  and  tender,  as  here- 
inafter described  (or  of  the  same  model,  make,  kind, 

and  description  as  the  now  in  use  at  by  the 

Company ;  or  of  the  same  model,  make,  descrip- 
tion, and  finish  as  that  described  on  pages and 

inclusive,  in  a  certain  book,  the  title  of  which  is  as  fol- 
lows :  ),  and  deliver  the  same  at ,  on  or  be- 
fore the day  of next. 

That  said  P.  T.  and  T.  R.  shall,  in  consideration 
thereof,  pay  unto  said  A.  B.  &  Co.  (by  the  draft  of 

P.  T.,  accepted  by  T.  R.,  and  payable from  date, 

with  interest),  the  sum  of dollars. 

Description. 

Said  engine  shall  be  constructed  from  the  most 
approved  and  best  quality  of  materials,  and  in  th« 
most  perfect  system  and  manner,  and  (of  the  sam* 
model,  make,  description,  and  finish,  etc.,  as  above). 

The  power  and  efficiency  of  said  engine  to  be 

warranted   at  ,   and   sufficient  to   carry  one 

hundred  tons,  of  two  thousand  pounds  to  the 
ton,  of  empty  cars  on  an  ascending  grade  not  ex- 
ceeding forty  feet  to  the  mile,  with  a  curve  not 
less  than  six  hundred  feet  radius,  at  a  speed  not 
exceeding miles  per  hour. 

In  witness  whereof,  said  parties  have  hereunto 

set  their  hands  (and  seals)  this day  of . 

A.  B.  &  Co.      {Seal.\ 

Co., 

By  V .  T .,  President ,    rr-     /t 
AnAT.K., Treasurer.    l-^«'-J 

Contract— Building:   and  Construction. 

Paving  Streets,  etc. 

This  agreement,  made  this day  of ,  be- 
tween A.  B.,  party  of  the  first  part,  and  the  city 
of ,  party  of  the  second  part: 

That  the  said  party  of  the  first  part,  for  and  in 
consideration  of^  the  sum  of  one  dollar  to  him  in 

hand  well  and  truly  paid  by  said  city  of ,  the 

receipt  of  which  is  hereby  acknowledged,  and 
of  other  good  and  sufficient  considerations,  here- 
by covenants  and  agrees  to  and  with  said  party  of 

the  second  part,  to  pave street  from street 

to street  with pavement,  in  accordance 

with  resolution  of  councils  (an  ordinance  entitled, 
etc.)  approved  [or  pa.ssed) . 

That  said  party  of  the  first  part  further  cove- 
nants and  agrees  that  he  will  execute  and  finish 
said  paving  in  accordance  with  all  the  ordinances 
{or  resolutions)  of  said  city  relating  to  paving,  and 
that  he  will  fully  and  faithfully  comply  with  all 
their  provisions. 

That  said  party  of  the  first  part  also  hereby 
agrees  that  he  will  keep  the  said  street  in  good 
order  and  repair  for  at  least  three  years  after  the 
same  shall  have  been  paved  and  thrown  open  for 

public  use,  and  that  the  said  city  of shall  be 

at  no  expense  for  said  paving,  excepting  the  fol- 
lowing intersections  of  cross  streets,  etc.  {describ- 
ingthem  fully). 

That  said  party  of  the  first  part  shall  not  trans- 
fer his  right  or  authority  to  other  parties  to  pave 
•aid  Street,  without  ^rs^  having  obtained  ^e  c^o- 


CONTRACTS. 


23» 


sent,  in  writing,  of  the  chief  commissioner  of 
highways  (or  other  proper  officer,  naming-  Aim) ;  nor 
shall  said  paving  be  commenced  without  a  writ- 
ten order  from  the  said  chief,  etc.,  and  shall  be 

completed  on  or  before  the day  of ,  and 

if  the  work  is  not  completed  within  the  time 
specified,  said  chief,  etc.,  is  hereby  authorized  to 
annul  this  contract  upon  three  days'  notice. 

That  said  party  of  the  first  part  shall  properly 
enclose  the  said  work,  and  to  place  signal  lights 
thereon  at  night. 

That  said  party  of  the  first  part  shall  be  respon- 
sible for  and  pay  all  loss  or  damages  which  may 
arise  by  reason  of  the  prosecution  of  the  said 
work,  and  in  case  of  the  happening  of  such  loss  or 
damages,  the  amount  thereof  shall  be  retained  by 
the  party  o."  the  second  part  out  of  any  payment 
or  payments  due  or  to  grow  due  hereunder. 

That  said  party  of  the  second  part,  for  and  in 
consideration  of  the  covenants  hereinbefore  men- 
tioned to  be  done,  shall  pay  the  said  party  of  the 
first  part  for  the  work  done  under  and  in  pursu- 
ance of  this  contract,  in  assessment  bills,  made 
out  and  signed  by  the  proper  officers,  at  the  rate 

or  sum  of dollars  and cents  for  each  and 

every  square  yard  of  said  pavement  laid  in  pur- 
suance hereof,  except  for  the  intersections  of  cross 
streets,  etc.,  aforesaid,  which  shall  be  paid  for  by 
warrants  on  the  city  treasurer,  drawn  by  said 

chief,  etc.,  at  the  rate   of  dollars  and 

cents  for  each  and  every  square  yard  of  said  in- 
tersection paved  in  pursuance  hereof,  the  total 
cost  of  said  intersections  not  to  exceed  in  any 
event  the  sum  above  specified. 

That  it  is,  however,  expressly  stipulated  and 
provided  by  said  party  of  the  second  part,  that 
said  assessment  bills  and  said  warrants  shall  be 
accepted  as  so  much  cash,  and  that  in  the  event 
of  a  failure  to  collect  said  assessment  bills,  no 
recourse  shall  be  had  against  said  party  of  the 
second  part  for  the  whole  or  any  part  of  the 
amount  for  which  they  have  been  issued. 

That  the  said  party  of  the  first  part  may  use 
the  name  of  the  city,  and  employ  all  her  legal 
remedies,  by  lien  or  otherwise,  in  the  collection 
of  said  assessment  bills  at  the  cost  of  said  par- 
ties of  the  first  part. 

This  agreement  shall  not  be  construed  to  allow 

Caving  to  be  done  after  the  first  day  of  Decem- 
er,  or  before  the  first  day  of  April,  in  any  year. 
In  witness  whereof,  the  said  party  of  the  first 
part  has   hereunto   annexed  his  hand  f and  seal), 

and  said  chief,  etc.,  of  the  said  city  of ,  has 

hereunto  set  his  hand  and  seal,  the  day  and  year 
first  above  written. 

The  words  from  "And"  to  "hereunder"  in ,  the 

margin  being  firstadded  and  made  a  part  of  the  contract. 
Sealed  and  delivered  in  the  presence  of 

A.  B.  [Seal.] 

The  City  of , 

By  C.  D.,  CAie/,  etc.    {Seal.'X 
.  iSeal.\ 

Guaranty  of  Performance. 

For  a  good  and  valuable  consideration  by  us 
received,  we,  the  undersigned,  do  hereby  guar- 
antee a  faithful  compliance  with  the  terms  of  the 
above  agreement,  upon  the  part  of  the  said  A.  B. 
S.  R.       {Seal.'X 
T.  Y.       \Seal.\ 
Sealed  and  delivered  in  the  presence  of 

W.  T.,N.  S. 

Contract— Building:  and   Construction. 

Ship  or  Yacht. 

This  agreement,  etc.,  witnesseth  : 

That  said  A.  B.,  for  the  consideration  herein- 
after mentioned  and  with  materials  to  be  fur- 
nished by  said  C.  D.,  at  his  yard,  in ,  shall,  in 

a  good,  substantial,  and  workmanlike  manner, 
build  the  hull  of  a  new  ship,  of  dimensions  as 
follows  :  (giving  them). 

That  said  A.  B.  shall  launch  said  ship  on  or  be- 
fore the day  of next. 

That  said  C.  D.,  in  consideration  therefor,  shall 

pay  said  A.  B.  after  the  rate  of dollars  per  ton 

for  every  ton  of  said  ship's  burthen  or  tonnage 
(carpenter's  or  other)  measure. 

"That  9«id  8"m  shall  ^>e  payable  (as  follows, ^»w^ 


terms,  etc.)  within days  after  launching  saiA 

ship. 

In  witness,  etc. 
Contract— Building  and   Constraction. 

Ship  or  Vessel. 

This  agreement,  etc.,  witnesseth: 

That  said  A.  B.  shall,  at  his  present  place  of 

building,  on  or  before  the day  of next,  in 

a  good,  substantial,  and  workmanlike  manner, 
build  for  said  C.  D.  the  hull  of  a  ship  or  vessel  of 
the   dimensions   hereinafter   mentioned,  for  the 

sum  of dollars,  and  such  other  and  further 

sum  and  sums  of  money  to  be  ascertained  and 
paid  at  such  times  and  in  the  manner  hereinafter 
specified. 

Calking,  finishing,  etc. 

The  hull  and  deck  of  said  vessel  shall  be  thoroughly 
calked  with  well  teased  oakum  and  filled  up  and  finished 
in  a  substantial  and  workmanlike  manner  with  all  things 
of  the  best  quality,  and  necessary  and  usually  made  and 
provided  by  shipbuilders  for  ships  of  such  burthen  and 
construction  as  said  vessel  shall  be. 

Description,  dimensions,  materials,  work,  etc. 

The  keel  of  the  hull  shall  be  in  length,  within  the 
posts,  eighty  feet ;  the  rake  afore  to  be  ten  feet,  and  the 
rake  abaft  in  suitable  proportions  ;  the  harpings  to  lie  at 
fourteen  feet  forwards  and  fifteen  feet  aft ;  the  hull  at  the 
dead  flat  to  be  in  breadth  twenty-eight  feet,  the  birth 
thereof  to  be  nineteen  feet  from  the  top  of  the  ceiling  to 
the  top  of  the  covering  board  ;  the  square  of  the  floor  to 
be  fifteen  inches  on  the  keel  and  eleven  inches  at  the  sir- 
monk  ;  the  timbers  to  be  eight  inches  square  at  the  binds 
and  four  inches  at  the  top  timber  heads  ;  the  transom  to 
be  eighteen  feet  long;  the  post  four  feet  broad;  the 
plank  from  the  keel  to  the  binds  to  be  three  inches  thick, 
except  five  strokes  on  each  side,  viz.:  three  on  the  bilge 
and  two  under  the  binds,  which  are  to  be  four-inch 
plank  :  the  hull  to  have  three  binds,  each  ten  inches 
deep  and  seven  inches  thick ;  one  stroke  immediately 
above  the  binds  to  be  four-inch  plank  ;  all  the  rest  to 
the  channel  binds  to  be  two  and  a-half-inch  plank ;  to 
have  twelve  hold  beams,  thirteen  inches  square,  with 
eight  hooks  forward,  all  whole  transoms  aft,  and  one 
hook  to  be  ceiled  with  three-inch  plank  from  the  keel  to 
the  underside  of  the  hold  beams,  excepting  three  strokes 
on  the  bilge  on  each  side,  four-inch  plank  ;  all  the  ceil- 
ing from  the  hold  beams  to  the  upper  deck  beams  to  be 
two  and  one-half-inch  plank,  excepting  one  long  plank 
under  the  main  deck  beam,  which  is  to  be  four  inchei 
thick  ;  to  be  ceiled  fore  and  aft  with  two  and  one-half- 
inch  plank,  and  above  the  binds  forward  with  two-inch 
plank  ;  to  have  one  four-inch  plank  to  be  bolted  to  the 
fore  beam  and  transom,  knees  to  be  bolted  through  the 
side  into  the  beams  :  the  main  deck  to  be  laid  with  Nor- 
way deals  three  inches  thick,  two  abaft  the  mainmast, 
and  from  thence  to  be  two  and  one-balf-inch  plank  :  to 
have  sufficient  number  of  main  deck  beams  ;  to  have 
two  feet  ten  inches  waste,  and  two  drifts  fore  and  aft 
two  feet  deep  ;  the  quarter  deck  and  forecastle  deck  to 
be  laid  with  Norway  deals  two  inches  thick  ;  the  floors 
to  be  sixteen  feet  long,  with  fourteen  inches  rise,  the 
binds  to  have  two  feet  and  a  half  hang ;  the  covering 
boards  in  the  midships  to  be  two  and  a-half-inch  plank. 

All  timbers  and  planks  to  be  made  use  of  in  building 
the  hull  of  said  vessel,  except  the  Norway  deal  planks 
with  which  the  decks  are  laid  as  aforesaid,  are  to  be  oak 
of  English  growth,  well  seasoned  and  dried,  and  in 
every  respect  fit  and  suitable  for  the  purposes  to  which 
the  same  shall  be  applied. 

The  trenules  shail  be  purchased  at  ,  and  of  the 

best  quality. 

Said  vessel  shall  have  a  windlass,  capstan,  cathreads, 
rudder,  and  tiller,  all  of  good,  sound  oak,  as  aforesaid, 
of  a  size  and  construction  fit  for  such  ves.sel. 

Said  vessel  shall  have  fourteen  gun  ports. 

Etc.,  etc. 

That  said  C.  D.  shall,  in  consideration  thereof, 
pay  unto   said  A.  B.,  on  the  execution  of  these 

presents,  the  sum  of dollars,  and  the  further 

sum  of dollars  upon   laying  the  bankings  of 

said  vessel,  and dollars  upon  laying  the  deck 

of  said  vessel,  and dollars,  the  rest  and  resi- 
due of  all  sum  and  sums  due  said  A.  B.  by  reason 
of  the  premises,  upon  launching  and  mooring 
said  vessel  in  safety  in port  [or  harbor). 

That  the  hull  of  said  vessel,  from  time  to  time, 
during  the  building  thereof,  and  until  the  same 
shall  be  safely  moored  ao4  49livered  >>9  afp;^^ai^ 


SB32 


CONTRACTS. 


shall  stand  charged  with  and  be  a  security  unto 

■aid  C.  D.  for  the  sum  of dollars,  paid  on  the 

execution  of  these  presents  ;  and  for  such  further 
and  other  sums  of  money  paid  to  said  A.  B.,  in 
pursuance  of  this  agreement. 

That  said  hull  shall  not  be  or  become  liable  or 
subject  to  the  contracts,  debts,  or  engagements, 
or  otherwise  affected  by  any  act  of  said  A.  B.,  or 
his  legal  representatives,  to  the  prejudice  of  said 
C.  D. 

That  said  A.  B.  shall,  after  said  vessel  is  moored 
and  delivered  in  safety  in  said  port  {or  harbor  ,  by 
some  proper  instrument  in  writing,  assign  the 
same,  free  from  all  incumbrances,  to  said  C.  D 
at  his  request  and  costs  and  charges 

In  witness,  etc. 
(Contract— Biillflin^  an<l   Construction. 
To  hold  shares  in  a  Yacht  or  Ship. 
This  agreement,  etc.,  witnesseth  : 
That  A.  B.,  E.  F.,  G.  H.,  and  I.  K.  shall  each 
hold  the  several  parts  of  a  new  ship  by  them 
respectively    subscribed    hereunder,    of    a    new 

yacht  {or  ship,  to  be  called  ),  of  the   burthen 

of tons  burthen,  or  thereabout,  for  the  build- 
ing of  which  A.  B.  has  contracted  with  C.  D., 

•f . 

That  each  of  said  first-named  parties  so  holding 
aaid  parts  shall  pay  his  respective  full  propor- 
tioned part  of  the  money  to  be  paid  for  the  build- 
ing of  said  vessel,  at  the  time  and  times  the 
same  shall  become  due  by  the  contract  respecting 
the  same. 

That  said  E.  F.  shall,  when  said  vessel  is  com- 
pleted and  delivered,  be  master  thereof. 

That  the  charge  of  outset  and  fitting  said  vessel 
for  service  shall  be  paid  by  said  first-named  par- 
ties, in  such  proportion  as  the  majority  of  the 
owners  thereof  shall  agree. 
In  witness,  etc. 
Contract— Building  or  Construction. 

Steamship. 
This  agreement,  etc.,  witnesseth  : 
That  said  A.  B.  shall  build,  construct,  and  com- 
plete a  steamship,  of  the  dimensions  and  ma- 
terials mentioned  in  the  specifications  hereunto 
annexed,  and  in  all  particulars  conform  to  said 
specifications  and  directions  by  the  superintend- 
ent of  such  building  herein  named,  for  the  sum 
of dollars,  to  be  paid  as  hereinafter  men- 
tioned. 

That  said  A.  B.  shall  furnish  all  the  materials 
for  said  steamship  according  to  said  specifica- 
tions, saving  and  excepting  only  such  as  by  the 
express  terms  of  said  specifications  are  to  be 
fnrnished  by  said  C.  D. 

That  S.  T.  shall  be  superintendent  of  the  build- 
ing and  construction  of  said  steamship. 

That  the  whole  of  said  vessel  shall  be  built, 
constructed,  and  finished  of  materials  of  the  best 
quality,  and  in  the  best,  most  durable,  and  work- 
manlike manner. 

That  said  steamship  shall  be  built,  constructed, 

and   completed   of  such   materials,  and   in   such 

proportions  of  each,  and  in  such  manner,  in  all 

respects  as  said  superintendent  shall  direct. 

That  said  steamship  shall  be  launched  on  or 

before  the  day  of next,  and  thereupon 

placed  at  the  disposal  and  under  the  direction  of 

said  superintendent,  at  ,  for  the  purpose  of 

receiving  her  engines  and  machinery,  and  shall 
thereafter  be  fully  completed  as  soon  as  said 
superintendent  shall  direct  (not  exceeding,  how- 
ever,   therefrom). 

That  in  consideration  thereof  said  C.  D.  shall 
pay  to  said  A.  B.  the  sum  of dollars,  in  in- 
stalments, as  the  material  is  delivered  and  work 
progresses,  as  follows : 

The  first  payment  of dollars  when  the  keel 

is  laid.     All  other  payments  at  the  end  of  every 

thereafter  in  the  same   proportion    to   the 

whole  amount  to  be  paid,  which  the  work  done 
and  materials  delivered  shall  bear  to  the  whole 
work  and  materials  required  for  the  full  perform- 
ance of  this  agreement. 

In  witness,  etc. 
Contract— Bnlldlnir  and  Constrnction. 
Railroad. 
Articles  of  agreement,  made  and   concluded 


this  day  of ,  A.  D. ,  by  and  between 

the  P.  R.R.  Co.,  of  the  first  part,  and  A.  B.  &Co., 
of  the  second  part,  witnesseth  : 

That  for  and  in  consideration  of  the  covenants 
and  payments  hereinafter  mentioned  to  be  made 
and  performed,  by  the  said  party  of  the  second 
part,  the  said  party  of  the  first  part  doth  hereby 
covenant  and  agree  to  complete  in  the  most  sub- 
stantial and  workmanlike  manner,  to  the  satis- 
faction and  acceptance  of  the  engineer  of  said 
company : 

All  bridges,  etc.,  etc. 

All  buildings,  etc.,  etc. 

All  grading,  masonry,  etc.,  etc. 

Etc.,  etc. 

The  said  work  to  be  finished  as  described  ;tl 
the  following  specifications,  and  agreeably  to  the 
directions  received  from  the  said  engineer  or  his 
assistants,  on  or  before  the day  of . 

Specifications  for  Grading. 

1.  Under  this  head  will  be  included  all  excavationK 
and  embankments  required  for  the  formation  of  the 
road-bed;  cutting  all  ditches  or  drains  about  orcontigu- 
ous  to  the  road ;  the  foundations  of  culverts  and  bridges, 
or  walls  :  the  excavations  and  embankments  necessary 
for  reconstructing  turnpike  or  common  roads,  in  cases 
where  they  are  destroyed  or  interfered  with  in  the  forma- 
tion of  the  railroad  :  and  all  other  excavations  or  em- 
bankments connected  with,  or  incident  to,  the  construc- 
tion of  said  railroad. 

2.  All  cuttings  shall  be  measured  in  the  excavations, 
and  estimated  by  the  cubic  yard,  under  the  following 
heads,  viz.,  earth,  loose  rock,  solid  rock,  embankment. 

Earth  will  include  clay,  sand,  loam,  gravel,  and  all 
other  earthy  matter,  or  earth  containing  loose  stone,  or 
boulders  intermixed,  which  do  not  exceed  in  size  three 
cubic  feet. 

Loose  rock  shall  include  all  stone  and  detached  rock 
lying  in  separate  and  contiguous  masses  containing  not 
over  one  cubic  yard  ;  also,  all  slate  or  other  rock  that 
can  be  quarried  without  blasting,  although  blasting  may 
be  occasionally  resorted  to. 

Solid  rock  includes  all  rock  occurring  in  masses  ex- 
ceeding one  cubic  yard  which  cannot  be  removed  with- 
out blasting. 

3.  Earth,  gravel,  and  other  material  taken  from  exca- 
vation (except  when  otherwise  directed  by  the  engineer) 
shall  be  deposited  in  the  adjacent  embankment,  the  cost 

of  removing  which,  when  the  haul  is  not  more  than 

feet,  will  be  included  in  the  price  paid  for  excavation  ; 
all  material  necessarily  procured  from  without  the  road, 
and  deposited  in  the  embankments  will  be  paid  for  as 
embankment  only,  but  all  material  necessarily  procured 
from  within  the  line  of  the  railroad,  and  hauled  more 

than feet,  will  be  paid  for  as  excavation  and  also  aj. 

embankment.  Tn  procuring  materials  for  embankment 
from  without  the  line  of  road,  the  place  will  be  desig- 
nated by  the  engineer  in  charge  of  the  work,  and  in  ex- 
c.tv.Tting  and  removing  it  care  tnust  be  taken  to  injure 
or  disfigure  the  land  as  little  as  possible. 

4.  The  embankment  shall  be  formed  in  layers  of  such 
depth,  and  the  materials  disposed  and  distributed  in 
such  manner,  as  the  engineer  may  direct,  with  the  re- 
quired allowance  for  settling.  Material  necessarily 
wasted  from  the  cuttings  shall  be  used  in  widening  the 
embankments,  or  be  deposited  in  the  vicinity  of  the 
road,  according  to  the  directions  of  the  engineer. 

5.  The  ground  to  be  occupied  by  the  excavations  and 
embankments,  together  with  a  space  of  twelve  feet  be- 
yond the  slope  stakes  on  each  side,  or  ten  feet  beyond 
the  berm  ditch  where  one  is  required,  shall  be  cleared 
of  all  trees,  brush,  and  other  perishable  matter.  Where 
the  filling  does  not  exceed  two  and  a  half  feet,  the  trees, 
stumps,  and  saplings  must  be  grubbed :  but  under  all 
other  portions  of  the  embankment  it  will  be  sufficient 
that  they  be  cut  close  to  the  earth  :  no  separate  allow- 
ance will  be  made  for  grubbing  and  clearing;  but  its 
cost  will  be  included  in  the  price  for  excavation. 

6.  Contractors,  when  desired  by  the  engineer  in 
charge  of  the  work,  shall  deposit  on  the  side  of  the  road, 
or  at  such  convenient  points  as  may  be  designated,  any 
stone  or  rock  that  they  may  excavate  :  and  if,  in  so  do- 
ing, they  should  deposit  material  required  for  embank- 
ment, the  additional  cost,  if  any,  of  procuring  other  ma- 
terials from  without  the  road,  will  be  allowed.  AR 
stone  or  rock  excavated  and  deposited  as  above,  together 
with  all  timber  removed  from  the  line  of  the  road,  will 
be  considered  the  property  of  the  said  company,  mA 


CONTRACTS. 


*33 


the  contractors  upon  the  respective  sections  will  be  re- 
sponsible for  its  safe-keeping  until  removed  by  said 
company,  or  until  the  work  herein  contracted  for  is 
finished. 

7.  The  line  of  road,  or  the  gradients,  may  be  changed 
if  the  engineer  shall  consider  such  change  necessary  or 
expedient ;  and  for  any  considerable  alterations  the  in- 
jury or  advantage  to  the  contractor  will  be  estimated 
and  such  allowance  or  deduction  made  in  the  prices  as 
the  engineer  may  deem  just  and  equitable  ;  but  no  claim 
for  an  increase  in  prices  of  excavation  or  embankment 
on  the  part  of  the  contractor  will  be  allowed  or  consid- 
ered unless  made  in  writing  before  the  work,  on  that 
part  of  the  section  where  the  alteration  has  been  made, 
shall  have  been  commenced.  The  engineer  may  also, 
on  the  conditions  last  recited,  increase  or  diminish  the 
length  of  any  section  for  the  purpose  of  more  nearly 
equalizing  or  balancing  the  excavations  and  embank- 
ments. 

8.  Whenever  the  route  of  the  railroad  is  traversed  by 
public  or  private  roads,  commodious  passing  places 
must  be  kept  open  and  in  safe  condition  for  use ;  and  in 
passing  through  farms  the  contractor  must  also  keep  up 
tuch  temporary  fences  as  may  be  necessary  for  the  pres- 
ervation of  the  crops. 

9.  No  charge  shall  be  made  by  the  contractor  for  hin- 
drances or  delay  from  any  cause  in  the  progress  of  any 
portion  of  the  work  in  this  contract,  but  it  may  entitle 
hira  to  an  extension  of  time  allowed  for  completing  this 
work,  sufficient  to  compensate  for  the  detention,  to  be 
determined  by  the  engineer,  provided  he  shall  give  the 
engineer  in  charge  immediate  notice  in  writing  of  the 
cause  of  the  detention. 

Nor  shall  any  claims  be  allowed  for  extra  work  unless 
the  saac  shall  be  done  in  pursuance  of  an  order  from 
the  engineer  in  charge,  and  the  claim  made  at  the  first 
settlement  after  the  work  was  executed,  unless  the 
engineer,  at  his  discretion,  should  direct  the  claim,  or 
such  part  as  he  may  deem  just  and  equitable,  to  be 
allowed. 

10.  The  quantities  exhibited  to  the  contractor  at  the 
time  of  soliciting  proposals  for  the  work  herein  con- 
tracted for  are  necessarily  only  approximate;  they  fur- 
nish only  general  information,  and  will  in  no  way  govern 
or  affect  the  final  estimate,  which  will  be  made  out  on 
the  completion  of  the  work  from  actual  measurements 
and  established  facts  not  determinable  at  time  of  letting 
the  work. 

Form  vf  Bids.     See  below. 

Specifications  for  Masonry. 

1.  All  masonry  will  be  estimated  and  paid  for  by  the 
cubic  yard  of  twenty-seven  cubic  feet,  and  will  be  in- 
cluded under  the  following  heads,  viz..  Brick  iimrk, 
bridge  masonry,  rectangular  culvert  masonry,  arched 
cuhiert  masonry,  vertical  and  slope  ivall  masonry, 
and  rip-rap. 

2.  Brick  work.  Where  bricks  are  used  in  arches, 
piers,  or  abutments  of  bridges,  they  shall  be  made  of 
the  best  clay,  well-tempered,  moulded  and  burnt ;  they 
shall  be  thoroughly  wet,  and  laid  in  thin  mortar  made 
of  the  best  hydraulic  cement  mixed  with  such  portion 
of  sand  as  the  engineer  in  charge  may  direct.  Laying 
of  bricks  dry  and  subsequent  grouting  will  not  be  per- 
mitted, excepting  in  the  courses  which  form  the  keys 
of  arches.  The  joints  to  be  of  such  thickness,  and  the 
bond  to  be  of  old  English,  Flemish,  or  such  other  char- 
acter as  the  tngineer  may  prescribe,  either  for  the  walls 
or  arches.  No  bats,  cracked,  broken,  or  salmon  brick 
to  be  used  in  the  work. 

Brick  Drains,  where  required,  shall  be  of  such  form 
as  the  engineer  in  charge  may  designate ;  if  barrel  or 
circular,  the  lower  half  shall  invariably  be  laid  dry  upon 
bed  duly  dressed  to  radius  of  exterior  of  drain;  the 
upper  half  to  be  laid  in  hydraulic  cement,  or  lime-mor- 
tar, ac  the  engineer  may  direct. 

Form  of  Bids.     See  below. 

3.  Bridge  masonry.  When  rock  foundation  cannot 
be  had  for  abutments  and  piers  the  masonry  shall  be 
started  upon  hewn  timber  sunk  to  such  a  depth  as  to 
protect  it  from  decay  and  to  prevent  the  possibility  of 
tinderwashing.  The  timber  platforms  will  be  composed 
of  one  or  more  courses,  according  to  the  depth  of  the 
water,  the  height  of  the  masonry,  or  other  circumstances 
of  which  the  engineer  shall  judge  and  determine.  The 
masonry  will  be  of  two  qualities,  either  to  be  adopted  at 
ih-;  discretion  of  the  engineer. 

First  quality  bridge  masonry  will  be  rock  range 
work.    The  stone  to  be  accurately  sc^uared,  jointed  and 


bedded,  and  laid  in  coui'ses  of  not  less  than  twelve  nor  ex- 
ceeding twenty  inches  in  thickness,  regularly  decreasing 
from  bottom  to  top  of  pier  or  abutment.  The  stretchers 
shall  in  no  case  have  less  than  sixteen  inches  bed  for  a 
twelve-inch  course,  and  for  all  courses  above  sixteen 
inches  they  shall  have  at  least  as  much  bed  as  face ;  they 
will  generally  be  at  least  four  feet  in  length.  The  headers 
shall  beof  similar  size  with  the  stretchers,  and  shall  hold 
the  size  in  the  heart  of  the  wall  that  they  show  on  the 
face,  and  be  so  arranged  as  to  occupy  one-fifth  of  the  face 
of  the  wall,  and  they  shall  be  similarly  disposed  in  the 
back.  When  the  thickness  of  the  wall  will  admit  of 
their  interlocking  they  shall  be  disposed  in  that  manner. 
When  the  wall  is  too  thick  to  admit  of  that  arrangement, 
stones  not  less  than  four  feet  in  length  shall  be  placed 
transversely  in  the  heart  of  the  wall  to  connect  the  two 
opposite  sides  of  it.  The  stone  for  the  heart  of  the  wall 
shall  be  of  the  same  thickness  as  those  in  the  face  and 
back,  and  must  be  well  fitted  to  their  places;  any  re- 
maining interstices  shall  be  filled  with  sound  stone 
chips.  The  face  stone  to  be  set  in  hydraulic  cement 
mortar,  the  interior  stones  to  be  laid  dry,  and  every 
course  to  be  thoroughly  grouted.  The  proportion  of 
sand,  cement,  and  lime,  in  the  mortar  and  grout,  to  be 
as  directed  by  the  engineer.  The  upper  surfece  of  each 
course  shall  be  level  throughout  with  the  upper  bed  of 
the  face  stone  thereof  The  stones,  forming  the  points 
of  piers,  which  act  as  ice-breakers,  shall  be  neatly 
dressed  on  their  faces  ;  the  other  face  stones  may  be  left 
with  the  face  as  they  come  from  the  quarry,  unless  the 
projections  should  exceed  two  inches,  in  which  case 
they  shall  be  roughly  scabbled  down  to  that  point.  The 
abutments  and  piers,  or  such  portions  of  them  as  the 
engineer  may  direct,  shall  be  covered  with  a  course  of 

coping,  not  less  than  inches  thick,  well  dressed, 

and  fastened  together  with  clamps  of  iron. 

Second  quality  of  bridge  masonry  shall  be  rubble 
work,  laid  in  irregular  courses,  and  shall  consist  of  stone 
containing,  generally,  six  cubic  feet  each,  so  disposed 
as  to  make  a  firm  and  compact  work  ;  and  no  stone  in 
the  work  shall  contain  less  than  two  cubic  feet,  except 
for  filling  up  the  interstices  between  the  large  blocks  in 
the  heart  of  the  wall ;  at  least  one-fifth  of  the  face  shall 
be  composed  of  headers,  extending  full  size  four  feet  into 
the  wall,  and  from  the  back  the  same  proportions  and  of 
the  same  dimensions,  so  arranged  that  a  header  in  the 
back  shall  be  between  two  headers  in  the  face.  The 
comer-stones  shall  be  neatly  hammer-dressed  so  as  to 
have  horizontal  beds  and  vertical  joints. 

4.  Culvert  masonry — Arched.  The  foundations 
of  arched  culverts,  when  the  bottom  of  the  pit  is  com- 
mon earth,  gravel,  etc.,  will  generally  consist  of  a  pave- 
ment formed  of  stone  set  edgewise,  not  less  than  twelve 
inches  in  depth,  secured  in  the  same  manner  as  described 
below  for  rectangular  culverts.  When  the  founda- 
tion upon  which  a  culvert  is  to  be  built  is  soft  and  com- 
pressible, and  where  it  will  at  all  times  be  covered  with 
water,  timber  well  hewn,  and  from  eight  to  twelve  inches 
in  thickness,  according  to  the  span  of  the  culvert,  shall 
be  laid  side  by  side  crosswise  upon  longitudinal  sills ; 
and  where  a  strong  current  will  be  forced  through  during 
floods,  three  courses  of  sheet  piling  are  to  be  placed 
across  the  foundation,  one  course  at  each  end,  and  one 
in  the  middle;  to  be  sunk  from  three  to  six  feet  below 
the  top  of  the  timber  according  as  the  earth  is  more  or 
less  compact.  The  abutments  are  to  be  built  of  range 
work  or  in  broken  courses,  the  face  stones  bedded  and 
jointed.  The  stretchers  in  the  face  are  to  have  beds  of 
at  least  fifteen  (15)  inches,  and  in  no  case  less  bed  than 
rise,  and  they  are  to  be  not  less  than  two  feet  long, 
measured  in  the  face  of  the  wall.  The  headers  shall 
extend  through  the  wall  in  cases  where  it  does  not  ex- 
ceed three  and  a  half  feet  thick,  and  they  shall  not  have 
less  than  eighteen  (18)  inches  length  of  face.  There 
shall  be  not  less  than  one  header  to  cverj'  seven  feet  of 
face,  measured  from  centre  to  centre  of  headers,  and  so 
arranged  that  a  header  in  a  superior  course  shall  be 
placed  between  two  headers  in  the  course  below;  the 
backing  stones  shall  be  of  large  size,  and  have  parallel 
beds,  laid  so  as  to  break  joints  with  one  another,  and 
when  the  thickness  of  the  wall  exceeds  three  and  a  half 
feet,  headers  of  the  same  dimensions  as  those  in  the 
face  shall  be  placed  in  the  back  of  the  wall,  in  the  pro- 
portion of  one  for  every  two  headers  in  the  face.  The 
arch  stone  shall  have  accurately  cut  beds  and  joints  and 
shall  be  laid  in  courses  throughout.  The  ring  stones 
shall  be  neatly  cut  and  composed  of  alternate  long  and 
short  bond  stones  of  not  less  than  three  feet,  and  cigntccn 


•34 


CONTRACTS. 


inches,  respectively.  The  parapet  and  wing  walls  shall 
be  built  similar  to  the  abutments  and  covered  with  a 
well-dressed  coping,  not  less  than  ten  inches  thick  and 
three  feet  wide.  .The  outside  stones  to  be  laid  in  cement 
mortar,  and  the  whole  wall  thoroughly  grouted.  The 
spandrel  backing  to  be  good  rubble  work,  built  as  di- 
rected by  the  engineer. 

Culvert  masonry — Rectangular.  All  rectangular 
culverts  will  be  built  dry,  with  a  water  way  of  not  less 
than  two  and  a  half  by  three  feet ;  the  abutments  will 
rest  on  a  pavement  of  stone,  set  edgewise,  of  at  least 
ten  inches  in  depth,  confined  and  secured  at  the  ends  by 
deep  curb.stones,  which  must  be  protected  from  under- 
mining by  broken  stone  placed  in  such  quantity  and  po- 
sition as  the  engineer  may  direct.  The  abutment  walls 
shall  not  be  /ess  than  two  feet  thick,  and  built  of  good- 
sized  and  well-shaped  stone,  properly  laid  and  bound  to- 
§  ether  by  stones  occasionally  extending  entirely  through 
lie  walls.  The  upper  course  to  have  at  least  one-half 
of  the  stones  headers ;  and  the  stretchers  in  no  case  to 
be  less  than  twelve  inches  wide;  no  stone  in  this  course 
to  be  less  than  six  inches  thick.  The  covering  to  be  of 
sound,  strong  ston-;,  at  least  twelve  inches  thick,  and  to 
lap  its  whole  width  not  /ess  than  ten  inches  on  each 
abutment.  The  thickness  of  the  covering  stone  and  di- 
mensions of  the  whole  walls  to  be  increased  at  the  dis- 
cretion of  the  engineer. 

5.  Rip-rap.  Where  the  excavation  of  the  road-bed 
does  not  furnish  sufficient  stone  for  the  protection  of 
walls  and  embankments,  the  same  shall  be  procured  at 
such  places,  and  disposed  in  such  manner  as  the  engineer 
may  direct,  and  shall  be  esti  mated  and  paid  for  as  rip-rap. 

6.  Slope  wall  and  vertical  masonry.  The  vertical 
walls  shall  be  good,  dry  rubble  work,  and  of  such  di- 
mensions and  built  with  such  batter  as  the  engineer  may 
direct.  Slope  walls  shall  be  built  of  such  thickness  and 
slope  as  may  be  required  by  the  engineer,  no  stones, 
however,  to  be  used  in  their  construction  which  do  not 
reach  through  the  walls,  or  that  are  less  than  six  inches 
in  thickness  and  twelve  inches  in  length ;  the  beds  of 
the  stones  to  be  placed  at  right  nagles  to  the  face  of  the 
bank  ;  the  joints  must  be  close  and  free  from  spalls. 

7.  In  all  masonry  the  stone  or  brick  must  be  of  a 
quality,  size,  and  shape  to  be  approved  of  by  the  engi^ 
neer.  Such  portions  of  the  masonry  as  the  engineer 
may  require  to  be  laid  in  lime  mortar,  or  hydraulic  ce- 
ment, shall  be  so  laid ;  the  furnishing  or  paying 

for  the  lime  and  cement  used.  If,  in  the  progress  of  the 
masonry,  an  increase  in  the  number  of  headers  specified 
should  be  required  by  the  engineer,  such  additional 
number  shall  be  laid  in  the  work  as  he  shall  designate. 

The  price  per  cubic  yard  paid  for  all  masonry, 
whether  of  brick  or  stone,  shall  in  every  case  include 
the  furnishing  of  all  materials,  together  with  {or  less)  the 
cost  of  scaffolding,  centring,  etc.,  and  all  expenses  at- 
tending the  delivery  of  these  materials,  and  all  risks 
from  floods  or  otherwise. 

And  the  said  party  of  the  second  part  does 
promise  and  agree  to  pay  to  the  said  party  of  the 
first  part,  for  all  the  work  to  be  performed  tinder 
this  contract,  as  follows,  to  wit : 

Earth  excavation,  per  cubic  yard,  20  cents. 

Rock  excavation,       "  "       60    " 

Bridge  masonry,         "  "  $5.00. 

Etc.,  etc. 

On  or  about  the  last  day  of  each  month  during 
the  progress  of  this  work,  an  estimate  shall  be 
made  of  the  relative  value  of  the  work  done,  to 
be  judged  of  by  the  engineer,  and  90  per  cent,  of 
the  amount  of  said  estimate  shall  be  paid  to  the 
party  of  the  first  part,  on  or  about  the  15th  day 
pf  the  following  month.  And  when  all  the  work 
embraced  in  thiscontract  is  completed,  agreeably 
to  the  specifications  and  in  accordance  with  the 
directions  and  to  the  satisfaction  and  acceptance 
of  the  engineer,  there  shall  be  a  final  estimate 
made  of  the  qua/ity,  character,  and  iia/ue  of  said 
work,  according  to  the  terms  of  this  agreement, 
ivhen  the  balance  appearing  due  to  the  said  party 
of  the  first  part  shall  be  paid  to  him  within  thirty 
days  thereafter,  upon  his  giving  a  release,  under 
seal,  to  the  party  of  the  second  part,  from  all 
claims  or  demands  whatsoever  growing  in  any 
manner  out  of  this  agreement,  and  upon  his  pro- 
curing and  delivering  to  the  parties  of  the  second 
part  full  releases  in  proper  form  and  duly  exe- 
cuted, from  mechanics  and  material  men,  of  all 
|}«DS,claiii)s  and  demand"  f9r  materials  furnist)c4 


and  provided,  and  work  and  labor  done  and  pel* 
formed  upon  or  about  the  work  herein  contracted 
for  under  this  contract. 

It  is  further  covenanted  and  agreed  between 
the  said  parties,  that  the  said  party  of  the  first 
part  shall  not  sub-let  or  transfer  this  contract, 
nor  any  part  thereof,  to  any  person  (excepting  for 
the  delivery  of  materials),  without  the  written  con- 
sent of  the  engineer,  but  will  at  all  times  give  per- 
sonal attention  and  superintendence  to  the  work. 

It  is  further  agreed  and  understood  that  the 
work  embraced  in  this  contract  shall  be  com- 
menced within  five  days  from  this  date,  and  pros 
ecuted  with  such  force  as  the  engineer  shall  deen. 
adequate  to  its  completion  within  the  time  speci 
fied  ;  and  if  at  any  time  the  said  party  of  the  firsi 
part  shall  refuse  or  neglect  to  prosecute  the  work 
with  a  force  sufficient,  in  the  opinion  of  the  said 
engineer,  for  its  completion  within  the  time 
specified  in  this  agreement,  then,  and  in  that  case 
the  said  engineer  in  charge,  or  such  other  agent 
as  the  engineer  shall  designate,  may  proceed  t« 
employ  such  a  number  of  workmen,  laborers, 
and  overseers  as  may,  in  the  opinion  of  the  said 
engineer,  be  necessary  to  insure  the  completion 
of  the  work  within  the  time  hereinbefore  limited, 
at  such  wages  as  he  may  find  it  necessary  or  ex- 
pedient to  give,  pay  all  persons  so  employed,  and 
charge  over  the  amount  so  paid  to  the  party  of 
the  first  part  as  for  so  tnuch  money  paid  to  him 
on  this  contract ;  or  for  the  failure  to  prosecute 
the  work  with  an  adequate  force,  for  non-com- 
pliance with  his  directions  in  regard  to  the  man- 
ner of  constructing  it,  or  for  any  other  omission 
or  neglect  of  the  requirements  of  this  agreement 
and  specifications  on  the  part  of  the  party  of  the 
first  part,  the  said  engineer  may,  at  his  discre- 
tion, declare  this  contract  or  any  portion  or  sec- 
tion embraced  in  it  forfeited  ;  which  declaration 
and  forfeiture  shall  exonerate  the  said  company 
from  any  and  all  obligations  and  liabilities  arising 
under  this  contract  the  same  as  if  this  agreement 
had  never  been  made  ;  and  the  reserved  percent- 
age of  ten  per  cent,  upon  any  work  done  by  the 
party  of  the  first  part  may  be  retained  forever  by 
the  said  company. 

And  the  said  party  of  the  first  part  has  further 
covenanted  ancl  agreed  to  take,  use,  provide,  and 
make  all  proper,  necessary,  and  sufllicient  precau- 
tions, safeguards,  and  protections,  against  the 
occurrence  or  happening  of  any  accidents,  inju- 
ries, damages,  or  hurt  to  any  person  or  property 
during  the  progress  of  the  construction  of  th-; 
work  herein  contracted  for,  and  to  be  responsible 
for,  and  to  indemnify  and  save  harmless  the  said 
parties  of  the  second  part,  and  the  said  engineer, 
from  the  payment  of  all  sums  of  money  by  rea- 
son of  all  or  any  such  accidents,  injuries,  dam- 
ages, or  hurt,  that  may  happen  or  occur  upon  or 
about  said  work,  and  from  all  fines,  penalties  and 
loss  incurred,  for  or  by  reason  of  the  violation  of 
any  city  or  municipal  ordinance  or  regulation,  or 
law  of  the  State,  while  the  said  work  is  in  pro- 
gress of  construction. 

In  witness  whereof,  the  parties  herein  named 
have  hereunto  set  their  hands  and  seals,  the  day 
and  year  herein  first  above  named. 

[  VVitness.  \ 

Contract — Building  and  Constrnctioiic 

Rai/road  Sub-Division. 

This  agreement,  etc.  ^See  t/ie  preceding  form). 

Spbcifications  for  a  Perfect  Sub-Division. 

Road  Bed  and  Ballast. 

I.  The  ballast  must  be  broken  evenly  and  not  large 
than  a  cube  that  will  pass  through  a  two  and  one-hall 
inch  ring.  There  must  be  a  uniform  depth  of  at  leas' 
twelve  inches  of  clean  broken  stone  under  the  ties.  Th< 
ballast  must  be  filled  up  evenly  between,  but  not  above 
the  top  of  the  ties,  and  also  between  the  main  tracks 
and  sidings  where  there  are  any.  In  filling  up  between 
the  tracks,  coarse,  large  stones  must  be  placed  in  the 
bottom  in  order  to  provide  for  drainage,  but  care  should 
be  taken  to  keep  the  coarse  stone  away  from  the  ends 
of  the  ties.  At  the  outer  ends  of  the  ties  the  ballast 
must  be  sloped  off  evenly  to  the  sub-grade. 

3.  The  road  crossing  planks  must  be  securely  spiked  ; 
the  planking  should  be  three-quarters  of  an  inch  below 
the  top  of  the  rail,  and  two  apd  on?-hfilf  inches  frpm  th? 


CONTRACTS. 


^35 


eatige  line.     The  ends  and  inside  edges  of  plank  should 
be  beveled  off. 

Ditches. 

3.  The  cross  section  of  ditches  at  the  highest  point 
must  be  of  the  width  and  depth  as  shown  on  the  stand- 
ard drawing,  and  graded  parallel  with  the  track  so  as  to 
pass  water  freely  during  heavy  rains  and  thoroughly 
drain  the  road  bed. 

4.  The  lines  must  be  made  parallel  with  the  rails  and 
well  and  neatly  defined. 

5.  The  necessary  cross  drains  must  be  put  in  at  proper 
intervals. 

6.  Earth  taken  from  ditches  or  elsewhere  must  be 
dumped  over  the  bank.s  and  not  left  at  or  near  the  ends 
of  the  ties,  but  distributed  over  the  slope.  Earth  taken 
out  of  the  ditches  in  cuts  must  not  be  thrown  on  the  slope. 
'  7.  The  channels  or  streams  for  a  considerable  distance 
above  the  road  should  be  examined,  and  brush,  drift, 
and  other  obstructions  removed.  Ditches,  culverts,  and 
box  drains  should  be  cleared  of  all  obstructions  and  the 
outlets  and  inlets  of  the  same  kept  open  to  allow  a  free 
flow  of  water  at  all  times. 

Policing. 

8.  The  telegraph  poles  must  be  kept  in  proper  posi- 
tion, and  trees  near  the  telegraph  line  must  be  kept 
trimmed  to  prevent  the  branches  touching  the  wires 
during  high  winds. 

9.  AH  old  material,  such  as  old  ties,  old  rails,  chairs, 
car  material,  etc.,  must  be  gathered  up  at  least  once  a 
week  and  neatly  piled  at  proper  points. 

10.  Briers  and  undergrowth  on  the  right  of  way  must 
be  kept  cut  close  to  the  ground. 

11.  Station  platforms  and  the  grounds  about  stations 
must  be  kept  clean  and  in  good  order. 

Superstructure. 

12.  The  track  must  be  'n  good  surface ;  on  straight 
Jines  the  rails  must  be  on  the  same  level,  and  on  curves 
the  proper  elevation,  as  set  down  in  the  table,  must  be 
given  to  the  outer  rail,  and  carried  uniformly  around  the 
curve.  This  elevation  should  be  commenced  from  100 
to  150  feet  back  of  the  point  of  curvature,  depending  on 
the  sharpness  of  the  curve,  and  increased  uniformly  to 
the  latter  point  where  the  full  elevation  is  attained.  The 
same  method  should  be  adopted  in  leaving  the  curve. 

13.  The  track  must  be  in  good  line. 

14.  The  splices  must  be  properly  put  on  with  the  full 
number  of  bolts,  nuts,  stop  washers  and  stop  chairs. 
The  nuts  must  be  screwed  up  tight. 

15.  The  joints  of  the  rails  must  be  exactly  midway 
between  the  joint  ties,  and  the  joint  on  one  line  of  rail 
must  be  opposite  the  centre  of  the  rail  on  the  other  line 
of  the  same  track.  In  winter  a  distance  of  five-six- 
teenths of  an  inch,  and  in  summer  one-sixteenth  of  an 
inch,  must  be  left  between  the  ends  of  the  rails  to  allow 
for  expansion. 

16.  The  rails  must  be  spiked  both  on  the  inside  and 
outside  on  each  tie,  on  straight  lines  as  well  a.s  on  curves. 

17.  The  cross  ties  must  be  properly  and  evenly  spaced, 
16  ties  to  a  30  ft.  rail,  with  10  inch'.:s  between  the  edge 
of  bearing  surfaces  at  joints,  with  intermediate  ties 
evenly  spaced  a  distance  of  not  over  two  feet  from  cen- 
tre to  centre,  and  the  ends  on  the  outside,  on  double 
track,  and  on  the  right  hand  side  going  north  or  west  on 
tingle  track,  must  be  lined  up  parallel  with  the  rails. 

18.  The  ties  must  not,  under  any  circumstances,  be 
notched,  but  should  they  be  twisted,  must  be  made  true 
with  the  adze,  and  the  rails  must  have  an  even  bearing 
over  the  surface  of  the  ties. 

10.  The  switches  and  frogs  must  be  kept  well  lined  up 
and  in  good  order.  Switches  must  work  easily  and 
safety  blocks  must  be  attached  to  every  switch  head. 

20.  The  switch  signals  must  be  kept  bright  and  in 
^od  order. 

In  witness,  etc. 
■Contract — Building'  and   Constrnction. 
Railroad  Ticket  Office. 
Spbcifications  for  Building  Ticket  Office. 

The  specifications  are  intended  to  embrace  the 
entire  structure  complete  and  ready  for  occu- 
pancy, the  v^'hole  to  be  comprised  within  any  con- 
tract or  contracts  that  may  be  made  for  the  same. 

The  entire  work  is  to  be  constructed  and  fin- 
ished in  every  part  in  a  good,  substantial,  and 
ivorkmanlike  manner,  according  to  the  accom- 
panying drawings  and  these  specifications,  to  the 
full  extent  and  meaning  of  the  same,  and  to  the 
entire  satisfaction,  approval,  and  acceptance  of 
the  engineer  and  architect,  and  under  the  super- 


vision and  direction  of  such  agent  or  agents  as 
may  be  appointed. 

The  following  is  a  list  of  the  drawings  which 
accompany  these  specifications,  and  which  form 
part  thereof. 

No.  I.  Ground  plan. 

No.  3.  Front  elevation. 

No.  3.  Cross  section. 

No.  4.  Plan  and  details  of  roof. 
General  Conditions. 

All  the  work  to  be  done  in  the  best  and  most 
v^orkmanlike  manner,  of  approved  materials,  ac- 
cording to  these  specifications,  and  the  plans  and 
drawings  hereinbefore  referred  to  ;  and  every- 
thing necessary  to  the  proper  and  complete  exe- 
cution of  the  said  plans  and  drawings,  whether 
the  same  may  have  been  herein  particularly  spe- 
cified or  not,  or  indicated  on  the  plans  referred  to , 
to  be  done  and  furnished  in  a  manner  correspond- 
ing with  the  rest  of  the  work,  as  well,  as  truly,  as 
faithfully  as  though  the  same  were  herein  paiticu- 
larly  described  and  specifically  provided  for. 

Every  part  of  the  building  is  to  be  executed 
under  the  direction  and  subject  to  the  approval 
of  the  engineer  in  charge,  who  shall  act  as  the 
agent  and  representative  of  the  engineer  and 
architect,  and  in  all  matters  or  questions  relating 
either  to  the  work  or  the  contract  for  the  same, 
the  decision  of  the  engineer  and  architect  shall 
be  final  and  conclusive  and  without  appeal. 
Drainage. 

Terra  cotta  drainage  of  sufficient  size  to  be  provided 
from  roof  conductors  and  from  water  closets,  running 
into  the  main  sewers  nearest  thereto. 
Foundations. 

The  foimdations  are  to  be  set  on  vertical  columns  of 
stone  set  in  tlie  ground,  not  less  than  two  feet  deep,  and 
on  a  stone  two  (2)  feet  square,  and  from  seven  (7)  to  ten 
(10)  inches  in  thickness  {or  posts  planted  in  the  ground 
not  less  than  four  (4)  feet  deep.  Each  post  to  be  set  on  a 
piece  of  plank  at  the  bottom,  two  (2)  feet  long,  three 
(3)  inches  thick,  and  twelve  (12)  inches  wide.  The 
earth  to  be  well  rammed  around  the  posts.)  Upon  the 
tops  of  these  columns  (or  posts)  are  to  set  the  main 
sills,  upon  which  rest  the  main  framing  and  floor  joists 
of  the  building.  The  posts  are  to  be  not  less  than  ten 
by  ten  (10x10)  inches  section,  placed  not  more  than  ten 
(10)  feet  apart,  and  the  sills  are  to  be  ten  by  ten  (10x10) 
inches  section.  This  timber  may  be  hemlock. 
Gas  Pipe  and  Fitting. 

Gas  pipe  of  sufficient  size  to  supply  fifty  (50)  burners 
to  be  furnished  and  laid  throughout  the  building  in  con- 
formity to  the  rules  and  regulations  of  the  Gas 

Company,  and  fitted  up  with  outlets  at  the  option  of  the 
engineer  in  charge. 

All  pipes  to  be  laid  so  as  to  be  easily  got  at  for  re- 
pairs, and  to  have  such  descents  as  will  prevent  the 
accumulation  of  water  arising  from  condensation. 

It  is  understood  that  the  gas  fixtures  are  not  to  be  fur- 
nished by  the  party  contracting  for  gas  pipe  and  fitting 
Hardware. 

Entrance  doors  are  to  have  eight  (8)  inch  rabbeted 
bronze  store  door  locks. 

All  doors  in  partitions  to  have  five  by  three  and  a 
half  (5x3^)  inch  mortise  locks. 

Union  Butt  Company's  cast  butts,  with  loose  wrought 
pins,  will  be  required  for  all  swinging  doors. 

Water  clo.set  doors  to  have  rim  latch,  porcelain  knobs, 
and  three  (3)  inch,  half  (}4)  inch  round  bolt  on  inside, 
and  coat  hook  on  inside. 

The  furniture  of  locks  to  be  bronze  {or  cast  iron). 

Windows  to  be  provided  with  strong  spring  bronze 
sash  fasteners  and  lifts.  All  swinging  or  ventilating 
sash  to  be  provided  with  a  satisfactory  apparatus  for 
opening  and  closing,  to  be  operated  from  the  floor  of  the 
building.  All  swinging  on  centre  to  have  extra  heavy 
cast  transom  plates. 

All  general  hardware,  nails,  screws,  hinges,  etc.,  neces- 
sary to  complete  the  work  to  be  furnished  as  may  be  re- 
quired during  the  progressofthebuilding,and  tobeof  the 
best  American  manufacture. 

Iron  Work. 

All  the  clamps,  ties,  tension  bars,  truss  rods,  bolts, 
stirrups,  bars,  and  other  iron  work,  required  in  the  vari- 
ous parts  of  the  building,  to  be  furnished  of  the  first 
quality  wrought  iron,  and  made  in  the  best  manner, 
subject  to  the  approval  and  directions  of  the  engineer 
in   charge,  it  being  understood  by  the  parfies   to   the 


ai« 


CONTRACTS. 


contract,  that  such  bolts,  bars,  etc.,  are  to  be  introduced 
at  the  discretion  of  the  said  engineer,  wherever  he  may 
deem  it  necessary  to  assure  strength  to  the  building. 

The  wrought  iron  in  the  tension  members  of  roof 
trusses  over  general  ticket  office  must  be  tough  and 
fibrous,  and  capable  of  resisting  an  ultimate  tensile  stress 
of  fifty-five  thousand  (55,000)  pounds  to  the  square  inch. 

All  the  castings  required  in  the  execution  of  the  work 
to  be  made  of  good  tough  iron,  true  and  sound,  free  from 
flaws,  cracks,  bubbles,  or  defects  of  any  kind. 
Lumber  and  Carpenter  Work. 

All  the  lumber  throughout  the  building,  except  when 
particularly  specified  to  the  contrary,  to  be  first  quality 
white  pine,  free  from  shakes  and  flaws  and  unsound 
knots,  and  in  every  way  suitable  for  the  various  purposes 
intended. 

Doors.  Outside  doors  to  be  in  two  (2)  thicknesses  of 
one  and  one-half  (ij4 1  inch  clear  white  pine,  the  outside 
thickness  to  be  framed  and  chamfered,  and  the  interior 
thickness  to  be  diagonal  boards,  tongued,  grooved,  and 
beaded,  n.H  exceeding  three  (3)  inches  in  width,  the 
whole  to  be  well  pinned  and  screwed  together,  all  single 
doors  to  be  one  and  a  half  (iJ4)  inches  thick,  panelled 
and  moulded  on  both  sides. 

The  water  closets  to  have  short  slat  doors,  hung 
twelve  (n)  inches  above  the  floors. 

Finish.  The  casing  for  windows  and  doors,  cornices, 
porch,  lantern,  dormer  windows,  and  all  general  finish 
to  be  of  first  quality  white  pine,  in  strict  accordance  to 
the  elevations,  sections,  and  details. 

Floors.  Floors  are  tobeof  one  and  a  quarter  (i^)  inch 
southern  yellow  pine,  not  over  three  (3)  inches  wide, 
tongued  and  grooved,  dressed  on  the  upper  surface,  and 
secret  nailed  to  the  joist.  The  joist  to  be  of  three  (3)  by 
six  (6)  inch  hemlock,  laid  eighteen  (18)  inches  to  cen- 
tres, except  on  second  floor,  where  they  are  to  be  three 
by  twelve  (3x12)  inches  section,  laid  sixteen  (16)  inches 
to  centres. 

Main  Walls  and  Partitions.  The  main  framing  of 
all  outside  walls  is  to  be  white  pine  dressed.  The  cor- 
ner posts  are  to  be  eight  by  eight  (8x8)  inches,  and  the 
intermediate  posts  four  by  eight  (4x8)  inches  section, 
and  filled  in  with  three  by  four  (3x4)  inch  rough  hemlock 
scantling.     To  be  well  braced  and  bridged. 

Roof.  All  roof  timbers  to  be  of  white  pine  of  the  sizes, 
and  framed  as  shown  in  the  drawings,  to  be  dressed  and 
chamfered.  The  roof  sheathing  to  be  of  one  (i)  inch 
firstquality  spruce  sheathing  boards,  planed  on  the  upper 
side  to  a  surface,  and  not  exceeding  eight  ('8)  inches  in 
width.  The  posts  of  porch  to  be  cased  and  finished  as 
shown  on  elevations. 

Sash.  Ail  sash  to  be  one  and  a  half  (ij^)  inches  thick  : 
those  in  windows  to  be  double  hung  on  approved  axle 
pulleys  :  the  lantern  sash  to  be  hung  in  centre  on  tran- 
som plates,  and  opened  and  closed  with  sections  of  rods 
with  arms  connecting  with  sash  and  operated  by  cords 
from  the  floor  with  wheel  on  end  of  shafts.  The  venti- 
lator to  be  opened  and  closed  by  cord  and  pulley  ar- 
ranged as  shown  on  the  section. 

iVainscoting.  All  the  walls  and  partitions  on  the 
inside  and  outside  of  building  to  be  wainscoted  to  the 
height  of  the  window  sills  with  one  (i)  inch  white  pine, 
tongued,  grooved  and  beaded,  and  laid  vertically  inside 
and  diagonally  outside  with  base  and  cap  as  per  draw- 
ings. 

IVinikrws.  AH  windows,  except  lanterns,  to  have  box 
frames,  fitted  with  the  necessary  pulley,  styles,  etc. 

All  the  carpenter  tuork  throughout  the  building  to 
be  executed  according  to  these  specifications  and  the 
dr.iwings  hereinbefore  referred  to,  and  such  additional 
drawings  as  may  hereafter  be  made  in  exemplification 
•f  the  same,  and  all  carpentry  not  herein  mentioned, 
and  which  may  be  necessary  for  the  complete  and 
proper  execution  of  the  work,  to  be  faithfully  done  and 
furnished. 

Painting  and  Glazing. 

The  entire  interior  and  exterior,  wood  and  .ron  work, 
«f  the  building,  except  interior  surface  of  roof  sheathing, 
to  be  painted  in  three  (3)  coats  pure  white  lead,  in  best 
linseed  oil,  in  such  tints  as  may  be  directed  by  the  engi- 
neer and  architect. 

The  plastered  surface  of  the  main  ticket  oflice  and  the 
exterior  of  the  building  to  be  painted  and  stencilled  as 
way  be  directed.  The  interior  surface  of  roof  sheathing 
to  be  calsomined  in  two  coats. 

Tke  windows  and  transom  lights  throuehout  to  be 
l^zed  with  best  American  glass,  well  bedded,  bradded, 
tnd  left  clear  and  perfect   an  the  completion  of  the 


work.     Lanterns  to  be  glazed  with  dark  daret-colorcd 

glass. 

Plastering. 
The  interior  of  all  rooms  and  the  exterior  to  be  well 
plastered  Jn   two  (2)  coats  sand  finish  ;    ceilings  to  be 
finished  in  the  side  rooms  in  hard  white  coat. 

The  materials  to  be  of  the  best  quality,  and  the  work 
executed  in  a  good  and  workmanlike  manner. 

Whatever  jobbing  and  repairing  that  maybe  necessary 
to  render  the  buildi  ng  perfect  before  its  final  acceptance  by 
the  engineer  and  architect,  is  to  be  well  and  truly  done, 
without  extra  charge. 

Plumbing. 
Urinals.  Large  size  corner  Bedfordshire  porcelain 
urinal  to  be  placed  as  shown.  To  have  a  three-quarter 
(Ji)  inch  brass  supply,  and  a  five-eighths  (f^)  inch  stop- 
cock, with  a  cap  on  top,  and  a  one  and  a  half  (i}4)  inch 
waste  pipe  and  trap. 

Washstands.  Two  washstands  to  be  placed  as  shown, 
to  have  one  and  one-eighth  {\y%)  inch  marble  counter- 
sunk top,  twelve  (12)  inch  back,  and  fourteen  (14)  inch 
porcelain  bowl,  with  plated  cocks,  plugs,  and  chains, 
and  the  necessary  waste  pipe  and  trap. 

Everything  in  connection  with  the  plumbing  which 
may  be  necessary  to  a  creditable  and  proper  completion 
of  the  building  to  be  provided  as  may  be  directed  by  the 
engineer  in  charge,  and  all  the  work  to  be  done  in  the 
best  and  most  substantial  manner. 

Water  Closets.  Water  closets  to  have  Travis  regular 
valve  containers,  with  (our  (4)  inch  cast  iron  trap  to 
each,  connecting  by  a  six  (6)  inch  iron  soil  pipe  with  the 
drainage. 

Roofing. 
The  roof  to  be  covered  with  first  quality  tin  (sheet 
iron,  or  other  material),  painted  with  two  coats  slate 
color  metallic  («»'  fire-proof)  paint. 

All  gutters  to  be  formed  in  the  most  approved  man- 
ner, of  first  quality  I  C  roofing  tin  well  painted  with 
two  coats  metallic  paint,  and  securely  connected  to  down 
spouts  running  into  the  drainage. 

The  down  spouts  used  to  be  four  (4)  inches  square, 
and  in  sufficient  number  to  insure  proper  drainage. 
Spouts  to  be  protected  by  wooden  boxes,  extending  four 
(4)  feet  above  the  ground. 

The  upper  floor  on  porch  to  be  covered  with  tin,  and 
painted  as  above. 

Sundry  Details. 
Additional  Drawings.  Additional  detail  and  work- 
ing drawings  will  be  furnished  in  exemplification  of  the 
foregoing,  from  time  to  time,  as  they  may  be  required  ; 
and  it  is  to  be  distinctly  understood  that  all  such  addi- 
tional drawings  shall  be  of  equal  force  with  those  which 
are  herein  specifically  cited  :  and  the  said  additional 
drawings  are  to  be  considered  as  virtually  embraced 
within  and  forming  part  of  these  specifications. 

Alterations.  It  is  also  understood  that  the  engineet 
and  architect  of  the  building  shall  have  the  right  to 
make  any  alterations,  additions,  or  omissions  of  work 
or  materials  herein  specified  or  shown,  or  in  the  draw- 
ings, during  the  progress  of  the  building,  that  he  may 
find  to  be  necessary,  and  the  same  shall  be  acceded  to  by 
the  contractor  or  contractors,  and  carried  into  effect 
without  in  any  way  violating  or  vitiating  the  contract. 
And  the  value  of  all  such  alterations,  additions,  or 
omissions  shall  be  agreed  upon,  in  writing,  between  the 
said  engineer  and  architect  and  the  contractor,  before 
going  into  execution,  or  no  allowance  will  be  made  for 
them  by  either  party. 

Care  0/  Finished  Work.  Particular  care  must  be 
taken  by  the  contractor  of  all  the  finished  work  as  the 
building  progresses,  which  work  must  be  covered  up  and 
thoroughly  protected  from  injury  or  defacement  during 
the  erection  and  completion  of  the  building. 

Removal  0/  Rubbish,  etc.  All  refuse  material  and 
rubbish  that  may  accumulate  during  the  progress  of  the 
work  to  be  removed,  from  time  to  time,  as  may  be 
directed  by  the  engineer  in  charge,  and  on  the  comple- 
tion of  the  work  all  the  grounds  must  be  thoroughly 
cleaned  up,  and  the  surplus  material  and  rubbish  carted 
away. 

Risks,  Blame,  etc.  The  contractor  is  to  assume  all 
risks,  and  bear  any  loss  occasioned  by  neglect  or  acci- 
dent during  the  progress  of  the  work,  until  the  same 
shall  have  been  completed  and  accepted  by  the  engineer 
and  architect.  He  is  also  to  assume  all  blame  or  loss  by 
reason  of  neglect  of  city  or  district  ordinances,  or  from 
any  other  cause.  The  engineer  in  charge  of  the  wor^ 
shall  have  full  power  at  any  time  during  the  progress  of 


CONTRACTS. 


«J7 


rtie  tame,  to  reject  any  materials  he  may  deem  unsuit- 
able for  the  purposes  for  which  they  are  intended,  or 
which  are  not  in  strict  conformity  with  the  spirit  of 
these  specifications.  He  shall  also  have  the  power  to 
cause  any  inferior  or  unsafe  work  to  be  taken  down  and 
altered  at  the  cost  of  the  contractor. 
Form  of  Bids. 

In  making  bids,  parties  will  state  the  total  sura  for  the 
building  complete. 

They  will  also  state  the  earliest  time  they  can  com- 
mence and  complete  the  building. 

Contract— Buildings  and   Construction. 

Snver. 
'    Articles  of  agreement  made  and  concluded  this 

^^  day  of ,  A.  D. ,  by  and  between  the 

City  of on  the  first  part,  and  C.  D.,  of  the 

second  part,  witnesseth : 

That  for  and  in  consideration  of  the  payments 
hereinafter  mentioned,  to  be  made  by  the  said 
party  of  the  first  part,  the  said  party  of  the  second 
part  .shall  furnish  all  material  and  labor,  and 
complete  to  the  satisfaction  and  acceptance  of 
the  chief  engineer   and   surveyor  of  the  city  of 

,  all  of  the  excavation,  brick-work,  filling  in, 

repaving,  and  such  other  work  as  may  be  requi- 
site to  construct  a  sewer,  upon  the  line  of  {line  of 
the  sewer  to  be  constructed),  and  complete  the  same 

on  or  before  the  day  of ,  in  accordance 

with  the  following 

Specifications. 

Said  sewer  shall  be  circular  in  form,  and  built  of 

brick,  with  a  inch   arch   and   counter  arch,   and 

have  a  clear  inside  diameter  of feet  and inches. 

Excavations.  The  ground  to  be  excavated  in  open 
trenches  to  the  necessary  width  and  depth,  and  of  such 
lengths,  at  one  time,  as  shall  be  directed  by  the  sur- 
veyor. Such  portions  of  the  excavations  not  required 
for  filling  after  completion  of  the  brick  work,  to  be 
hauled  off  and  deposited  in  such  localities  as  shall  not 
interfere  with  future  regulations  of  the  city.  The  bottom 
to  be  hollowed  out  to  the  exact  form  and  size  of  the 
lower  section  of  sewer  to  be  laid  in  it. 

Adjacent  property.  Said  contractor  shall,  at  his  own 
expense,  shore  up,  sling,  protect,  alter,  divert,  restore, 
and  make  good,  as  may  be  necessary,  all  water  pipes, 
gas  pipes,  sewers,  drains,  buildings,  fences,  or  other 
properties,  which  may  be  disturbed  or  injured  during 
the  progress  of  the  work. 

Bad  ground,  running  sand,  water,  etc.  Said  con- 
tractor shall,  at  his  own  expense,  pump  out,  or  other- 
wise remove  any  water  which  may  exist  in  the  trenches, 
and  shall  form  drains  or  other  works  necessary  for  keep- 
ing the  excavations  clear  of  water  during  the  progress 
of  the  work.  In  case  of  running  sand,  or  other  bad  or 
treacherous  ground,  the  work  shall  be  proceeded  with 
night  and  day  without  interruption,  and  the  coiinter 
shall  be  laid  in  a  timber  cradle,  if  so  directed  by  said 
surveyor. 

The  material  excavated  to  be  disposed  of  so  as  to  be 
as  little  inconvenience  as  possible  to  the  public  traffic, 
or  adjoining  tenants,  and,  unless  sanctioned  by  said  sur- 
veyor, must  not  be  thrown  or  deposited  to  obstruct  the 
sidewalks,  or  the  footway  crossings  at  street  intersec- 
tions ;  and  there  must  be  at  all  times  a  space  at  least 
two  feet  in  width,  open  for  public  use,  and  a  safe  bridge- 
way  over  the  sewer  trench,  at  least  three  feet  wide,  at 
all  street  crossings,  and  the  gutters  shall  also  be  kept 
free  from  surface  drainage. 

The  sides  of  the  excavation  shall  be  supported  with 
suitable  timber  whenever  necessary,  the  contractor  to 
be  held  responsible  for  all  damage  which  may  happen  to 
'individuals  or  to  the  neighboring  properties,  from  neglect 
of  this  precaution.  In  all  cases  in  which  the  surveyor 
shall  so  direct,  timber  shoring  shall  be  left  and  buried 
ia  the  trench,  without  extra  charge. 

Material  and  construction.  That  said  sewer  shall 
be  built  of  good,  sound,  hard-burnt  bricks,  uniform  in 
length  and  size,  with  arch  laid  in  mortar  composed  of 
clean,  sharp  gravel  or  sand  and  fresh-burnt  lime,  mi,xed 
in  such  proportions  as  shall  be  approved  by  the  sur- 
veyor. The  brick  work  must  be  well  bonded,  the  joints 
to  be  struck  flush  with  face  of  work,  and,  unless  other- 
wise directed,  the  invert  will  be  laid  in  good  mortar  or 
hydraulic  cement,  and  the  arch  plastered  on  the  outside 
with  good  mortar  at  least  one-half  inch  in  thickness. 
All  centring  to  be  furnished  by  the  contractor. 

All  jttnctions  and  connections  with  drains  or  »nuer* 


to  be  made  with  a  curve  in  th»  direction  of  the  current 
of  the  sewer,  with  the  largest  admissible  radius ;  to  be 
given  by  the  surveyor. 

All  sewers  or  drains  met  with  or  cut  through  shall 
be  connected  as  directed,  or  if  so  desired,  they  shall  be 
perfectly  restored  to  the  same  condition  as  before  the 
commencement  of  the  work. 

The  ground  shall  be  carefully  jilled  in  and  the  work 
backed  up  in  a  proper  manner  as  it  proceeds,  and  shall 
be  properly  puddled,  after  the  completion  of  such  lengths 
of  the  sewer  as  may  be  directed. 

Inlets  and  man-hole  shafts  (the  latter  with  nine-inch 
walls  laid  in  cement)  shall  be  constructed  in  such  posi- 
tions, and  of  such  forms  and  dimensions  as  may  be  di- 
rected by  the  chief  engineer  and  surveyor. 

Signal  lights.  That  said  party  of  the  second  pari 
shall  properly  enclose  the  said  work,  and  place  signal 
lights  thereon  at  night. 

Surfaces  disturbed,  etc.  AU  paving,  or  other  sur- 
face material  which  may  have  been  disturbed,  shall  be 
replaced  to  the  satisfaction  and  approval  of  the  chief 
commissioner  of  highways  (or  other  proper  officer, 
naming  him). 

Tunneling.  Any  tunneling  necessary,  to  be  taken 
out  of  sufficient  size  to  admit  of  requisite  timbering, 
outside  the  sewer,  leaving  room  for  proper  keying  to  in- 
sure stability :  but  in  no  case  will  tunneling  be  allowed, 
unless  with  the  express  sanction  of  the  chief  cngine:r 
and  surveyor. 

General  Provisions,  etc. 

That  said  contractor  shall  be  responsible  for  and  psiy 
all  loss  or  damage,  which  may  arise  by  reason  of  the 
prosecution  of  the  said  work ;  and  in  case  of  the  hap- 
pening of  such  loss  or  damage,  the  amount  thereof  shall 
be  retained  by  the  party  of  the  first  part  out  of  any  pay- 
ment or  payments  due  or  to  grow  due  hereunder. 

That  said  contractor  shall  pay  the  charges  of  the  sur- 
veyor and  regulator  of  the  district  for  furnishing  the 

lines  and  levels,  as  directed  in  section  of  an  opji- 

nance  entitled  {reciting  the  title  of  the  ordinance). 
Compensation. 

That  said  party  of  the  second  part  will  perform  the 
work  embraced  in  this  contract,  in  conformity  with 
existing  ordinances,  and  to  the  satisfaction  and  accejit- 
ance  of  the  chief  engineer  and  surveyor;  and  also  that 

the  city  of  ,  through    the   chief  commissioner  of 

highways  {or  other  proper  officer,  naming  him),  w  ill 
pay  in  manner  hereinafter  specified,  the  following  suns,, 
and  at  the  following  rates : 

For  eacit  and  every  linear  foot  of  sewer  constructed, 
inclusive  of  removing  and  replacing  the  paving-stones. 

excavating  the  material  and  refilling, dollars  and 

cents. 

For  each  and  every  linear  foot  of  sewer,  two  and  a 
half  feet  diameter,  for  inlet  connection,  chargeable  under 
this  agreement, dollars  and cents. 

For  each  and  every  man-hole,  constructed  with  nine- 
inch  wall,  cast-iron  curb  and  grating,  and  wrought-iron 
hinged  cover, dollars  and cents. 

For  each  and  every  brick  and  stone  inlet,  with  circu- 
lar connection  two  and  a  half  feet  in  diameter,  not  ex- 
ceeding fifteen  feet  in  length, dollars  and cents. 

For  each  and  every  cast-iron  inlet,  and  connection 

not  exceeding  fifteen  feet  in  length,  dollars  and 

cents. 

That  the  prices  above  specified  shall  be  in  full  com- 
pensation for  all  materials  and  labor  required  to  put  the 
same  into  the  work  herein  contracted  for,  and  complet* 
the  whole  in  all  respects,  as  provided  in  this  specifica- 
tion and  contract. 

Payments. 

That  the  payments  therefor  shall  be  made  by  the 
chief  commissioner  of  highways,  upon  estimates 
signed  by  the  chief  engineer  and  surveyor,  in  assess- 
ment bills  prepared  as  specified  in  section  II  of  an 
ordinance  {setting  out  the  title  of  the  same),  ^nAyia.x- 
rants  upon  the  city  treasurer,  to  an  amount  as  author- 
ized by  an  ordinance,  etc.,  in  payment  for  the  street 
intersections,  man-holes,  and  legal  deductions.  All  of 
which  payments  shall  be  received  as  so  much  cash,  and 

be  collected  without  recourse  to  said  city  of ,  but 

for  the  purpose  of  the  better  enabling  them  to  collect 
the  .same,  the  name  of  the  said  city  may  be  used,  and  all 
her  legal  remedies,  whether  by  bill  or  otherwise  em- 
ployed. 

That  the  work  herein  contracted  for  and  notcc  in 
specifications  hall  be  kept  in  good  order  by  the  party 
•^  tb*  second  part,  for  a  term  of  three  years  after  the 


i38 


CONTRACTS. 


lUte  or  final  estimate  therefor,  as  provided  in  an  ordi- 
nance {or  resolution)  approved  (or  passed), ,  and 

that  in  case  of  failure  to  comply  with  the  requirements 
of  this  contract,  by  completing  the  work  according  to 
ipeciAcation  within  the  time  herein  specified,  there  may 
l)e  deducted  from  the  final  estimate,  for  the  use  of  said 

,;lty  of ,  the  sura  o(  five  dollars,  as  stipulated  dam- 

;ig;s,  for  each  and  every  day  the  date  of  completion  and 
.loccptance  m»y  exceed  the  time  fixed  in  this  contract. 

That  in  case  the  specifications,  which  are  a  part  of 
lhi>  contract,  or  the  directions  of  the  chief  engineer  and 
Mirveyor,  have  not  been  complied  witli,  the  said  chief 
engineer  and  surveyor  is  hereby  authorized  to  withhold 
the  final  estimate  until  the  work  is  prop-rly  and  satis- 
factorily completed ;  or  he  shall  make  such  deduction 
therefrom  as,  in  his  judgment,  will  compensate  for,  or 
repair  any  neglect  on  the  part  of  the  contractor. 

That  no  payment  will  be  made,  except  upon  a  certifi- 
cate from  the  chief  engineer  and  surveyor. 

In  witness,  etc. 

C.  D. 

The  City  of , 

By ( Official  signature  and  title. ) 

Executed  in  presence  of  ) 
W.  T.,N.  S.  i" 

Contract — Biiililin^   nnd   Construction. 
Turnpike  Road. 

This  agreement,  etc.,  witnesseth  : 

That  A.  B.  has  agreed  with  C.  D.,  for  the  sum 

of dollars,  to  construct  and  finish  a  turnpike 

road, in  width,  in   a   good,  substantial,  and 

^workmanlike  manner,  as  surveyed  and  laid  out, 

from to ,  on  or  before  the day  of , 

next  ensuing. 

Ascent,  cuts,  fills,  grade,  etc. 

That  in  constructing  said  road  over  any  hills  that  may 
b«  in  said  survey  or  route,  said  A.  B.  will  cut  the  same 
down  and  fill  the  valleys  between  the  same,  removing 
all  obstructions  in  such  a  manner  that  the  ascent  of  any 
such  hill  shall  not  in  any  place  be  greater  than  four  de- 
grees from  the  base  thereof. 

That  the  sides  of  all  cuttings  which  shall  be  made 
through  any  such  hills  shall  be  at  an  angle  of  twenty- 
two  and  one-half  degrees,  descending  towards  and  end- 
ing at  the  bounds  of  said  road. 

Bridges,  culverts,  ditches,  sluices,  etc. 

That  said  A.  B.  will  at  every  brook,  creek,  gnlley,  ra- 
vine, and  every  other  place  where  the  same  shall  be 
necessary,  erect  and  make  gcod  and  sufficient  bridges, 
culverts  and  sluices  of  suitable,  solid,  and  substantial 
stone  work  for  the  passage  of  all  water  under  the  same. 

That  all  ditches  shall  be  made  in  the  most  efficient 
and  suitable  manner,  with  sufficient  outlet,  and  that 
whenever  said  road  is  over  hills  that  said  A.  B.  will,  at 
the  distance  of  every  ten  or  twelve  rods,  raise  mounds 
in  the  road  of  sufiicient  height  to  turn  off  the  water 
that  may  fall  upon  it  to  the  sides  thereof,  so  that  said 
road  may  not  be  washed  or  gullied  thereby. 

Construction,  etc. 

That  in  constructing  said  road  said  A.  B.  shall 
proceed  as  follows  :  First  {state  -what) ;  second  (state 
■what),  etc.,  etc.  That  he  will  crown  it  uniformly  in  the 
middle,  so  that  the  same  shall  be  raised  nine  inches 
from  the  level  thereof.  That  in  soft  or  spongy  ground 
he  will  raise  it  still  more,  as  the  situation  of  the  road 
and  circumstances  may  require.  That  in  finishing  s:iid 
road  where  the  land  is  loamy  he  will,  aftergradintj,  laying 
and  rolling,  etc.,  deposit  and  spread  atleast  six  inches  of 
gravel  upon  the  surface  of  the  same,  finishing  the  same 
in  a  compact  and  uniformly  firm  surface,  ready  for  use. 

That  in  constructing  said  road  over  low  lands  they 
will  raise  and  construct  the  same  (as  hi^h  as  the  highest 

water  mark  of  the  year last  past,  or)  so  high  that 

water  shall  not  overflow  it  at  any  season  of  the  year, 
but  that  said  road  shall  at  v\\  times  remain  dry,  so  that 
it  may  be  travelled  with  caie  and  safety. 

That  said  road  shall,  upon  completion  thereof,  be  free 
from  all  obstructions,  stones,  etc.,  and  its  surface  uni- 
form, and  travel  thereon  safe  and  without  annoyance 
from  irregular  or  obstructed  surfaces  thereof. 

Materials.  That  said  A.  B.  shall  take  and  apply 
all  materials  which  they  may  find  suitable  for  building 
said  road,  at  all  places  within  four  rods  width  of  said 
road  .as  now  surveyed  and  laid  out.  That  all  waste  and 
waste  materials  as  shall  remain  after  the  completion  of 
said  road  may  be  scattered  upon  the  Hnd  contiguous 
thereto,  not  exceeding,  however,  four  rods  width. 

That  said  A.  B.  shall  commence  the  construction  of 


said  road  during  the  present  month,  and  shall  complete 
and  finish  the  same  on  or  before  the  month  of . 

That  it  shall  be  so  completed  and  finished  two  rods 
(or  feet)  within  such  good,  substantial,  and  work- 
manlike manner,  uniformity,  that  horses,  cattle,  car- 
riages, carts,  drays,  teams,  and  vehicles  of  every  de- 
scription, with  customary  loads,  may,  throughout  its 
entire  extent,  and  upon  all  and  every  part  thereof,  pass 
and  travel  with  ease  and  safety. 

That  said  A.  B.  shall  receive  said  sum  of 

dollars  in  payments  as  follows:  (giving  terms, 
titnes  and  amounts). 

In  witness,  etc. 

Contract — Construction   and   Interprtt* 
tation. 

Of  Previous  Contract.  % 

This  agreement,  etc.,  witnesseth  ; 

That  a  difference  has  heretofore  arisen  betweeA 
the  parties  to  these  presents,  in  relation  to  their 
respective  rights  and  obligations  under  a  certain 

contract  bearing  date  the day  of ,  between 

them. 

That  said  parties  thereto  have  now  come  to  a 
mutual  understanding  and  agreement  respecting 
all  the  matters  in  difference  aforesaid,  and  for 
the  government  of  themselves  under  the  same 
henceforward,  hereinafter  in  these  presents  set 
forth  the  same  as  declaratory  of  their  respective 
rights  and  obligations,  to  wit : 

I.  That  the  first  paragraph  of  said  agreement 
is  intended  to  set  forth  the  date  of  making  and 
parties  to  said  agreement  only. 

3.  That  the  second  paragraph  of  said  agree- 
ment is  intended  to,  etc. ,  etc.  (running  thus  through 
the  entire  agreement). 

In  witness  whereof,  etc. 

Contract — Cliarter  Party. 

General  Charter. 

This  charter  party,  made  and  concluded  upon 

in  the  city  of ,  the day  of ,  in  the  year 

of  our  Lord  one  thousand  eight  hundred  and , 

between  M.  R.,  of  the of ,  of  the  burthen 

of  tons,  or  thereabouts,  register  measure- 
ment, now  lying  in  the  harbor  of ,  of  the  first 

part,  and  S.  R.,  of  the  second  part,  witnesseth  : 

That  the  party  of  the  first  part  agrees  on  the 
freighting  and  chartering  of  the  whole  of  the  said 
vessel  (with  the  exception  of  the  deck,  cabin,  and  ne- 
cessary room  for  the  crew  and  stonige  of  provisions, 
sails,  and  cables),  or  sufiicient  room  for  the  cargo 
hereinafter  mentioned,  unto  said  party  of  the  sec- 
ond part,  for  a  voyage  from  P unto ,  on  the 

terms  following  :  The  said  vessel  shall  be  tight, 
staunch,  strong,  and  in  every  way  fitted  for  such 
voyage,  and  receive  onboard  during  the  aforesaid 
voyage  the  merchandise  hereinafter  mentioned, 
and  no  goods  or  merchandise  shall  be  laden  on 
board  otherwise  than  from  the  said  party  of  the 
second  part,  or  agent.  The  said  party  of  the  sec- 
ond part  doth  engage   to  provide  and  furnish  to 

the  said  vessel .     And  to  pay  to  the  said  party 

of  the  first  part,  or  agent,  for  the  use  of  said  ves- 
sel during  the  voyage  aforesaid  ($- — ), .     It 

is  agreed  that  the  lay  days  for  loading  and  dis- 
charging the  vessel  shall  be  as  follows,  commenc- 
ing from  the  time  the  captain  reports  himself 

ready  to  receive  or  discharge  cargo :  .    And 

that  for  each  and  every  day's  detention  by  default 

of  said  party  of  the  second  part,  or  agent, 

dollars  per  day,  day  by  day,  shall  be  paid  by  said 
party  of  the  second  part,  or  agent,  to  said  party 
of  the  first  part,  or  agent.  The  cargo  or  cargoea 
to  be  received  and  delivered  alongside  withiq 
reach  of  vessel's  tackles. 

A  commission  of per  cent,  upon  the  gross 

amount  of  this  charter,  payable  by  the  vessel,  is 
due  to ,  upon  the  signing  thereof. 

To  the  true  and  faithful  performance  of  all  and 
every  of  the  foregoing  agreement,  we,  the  said 
parties,  do  hereby  bind  ourselves,  our  heirs,  ex- 
ecutors, administrators,  and  assigns,  each  to  the 
other,  in  the  penal  sum  of . 

In  witness  whereof,  we  hereunto  set  our  hands, 
the  day  and  year  first  above  ^vritten. 

M.R. 
Signed  in  the  presence  of  )  8.  R. 

W.  T..N.  S.  f 


CONTRACTS. 


239 


CsRTtFicATE  OF  Copy 
We  hereby  certify  this  to  be  a  correct  copy  of 
the  original  charter  party  in  our  possession. 
Contract— CkiHrter  JParty. 

Cui'u,  or  Forto  Rico,  etc.  Charter. 

This  charter  party,  made  and  concluded  upon 

in  the  city  of ,  this day  of ,  in  the  year 

of  our  Lord ,  between  M.  R. ,  of  the  good , 

of ,  of  the  burthen  of tons,  or  thereabouts, 

register  measurement,  now  lying  in  the  harbor 

of ,  of  the  first  part,  and  S.  &  R.,  merchants, 

. ,  of  the  second  part,  witnesseth  : 

That  the  said  party  of  the  first  part  agrees  on 
the  freighting  and  chartering  of  the  whole  of  the 
■aid  vessel  (with  the  exc«;ption  of  the  deck,  cabin, 

,  and  necessary  room  for  the  crew  and  stowage  of 

provisions,  sails  and  cables),  unto  the  said  party  of 

%he  second  part,  for  a  voyage  from to  one  or 

more  ports  in  the  island  of ,  and  back  to  the 

breakwater  for  orders  to or ,  on  the 

following  terms :  The  said  vessel  shall  be  tight, 
staunch,  strong,  and  in  every  way  fitted  for  such 
a  voyage,  and  receive  on  board  during  the  voy- 
age the  merchandiae  hereinafter  mentioned.  The 
said  party  of  the  second  part  doth  engage  to  pro- 
vide and  furnish  to  the  said  vessel  for  the  out- 
ward voyage  a  full  cargo  of  lawful  merchandise, 

or  ballast,  ,  for  the  homeward  voyage  a  full 

cargo  of  sugar,  and  of  molasses  in  hogsheads, 
with  ten  tierces  or  twenty  barrels,  either  of  which 
at  charterer's  option,  to  each  100  hogsheads  for 

under  deck,  and hogsheads  molasses  on  deck, 

vessel  agreeing  to  carry  out  on  deck  one  thousand 
hoops  or  fifteen  hundred  feetlumber  to  every  two 

hogsheads  molasses, ,  and  to  pay  to  the  said 

party  of  the  first  part,  his  or  their  agent,  for  the 
use  of  the  said  vessel  during  the  voyage  afore- 
said, as  follows:  Fnr  outward  cargo.,  nothing  in 
consideration  of  charterer  paying  all  foreign  port 
charges,  including  lighterage,  pilotage,  consul 
fees  for  deposit  of  ship's  papers,  and  furnishing 

cargo  or  ballast  to  change  ports .     For  home- 

•ward  cargo,   cents  per  100  lbs.    net    custom 

house  weight  delivered  for  sugar  under  deck,  and 

or per  no  gallons  gross  custom  house  gauge 

of  casks  of  molasses  delivered   under  deck, , 

and  for  the  deck  load per  no  gallons  gross 

custom  house  gauge  of  casks  of  molasses  deliv- 
ered,    freight  payable  in  ,  without  dis- 
count, or  commission  on  proper  delivery  of  home- 
wrard  cargo. 

It  is  agreed,  that running  lay  days  shall  be 

allowed  for  loading  and  discharging  the  vessel  in 

,  commencing   from   the   time   the   vessel   is 

ready  to  receive  and    discharge  cargo,  and   the 

captain  reports  himself  to  be  so  prepared, 

hours  shall  be  allowed  the  party  of  second  part 

to  hand  the  captain  orders  at ,  commencing 

from  the  time  the  captain  goes  on  shore  to  com- 
municate his  arrival.  And  for  each  and  every 
day's  detention,  by  default  of  the  said  party  of 

the  second   part,  or  their  agent, dollars  per 

day,  day  by  day,  shall  be  paid  by  the  party  of  sec- 
ond part,  or  their  agent,  to  the  party  of  the  first 
part,  or  hi3  or  their  agent. 

The  car^o  or  cargoes  to  be  received  and  deliv- 
ered according  to  the  customs  and  usages  of  the 
respective  ports,  alongside  within  reach  of  ves- 
sel's tackles.  Lumber  to  be  rafted  to  the  water's 
edge  by  captain,  if  required. 

"Time  used  in  changing  ports  in to  count  in 

lay  days. 

Vessel  to  haul  to  wharf  designated  by  charter- 
ers to  load  and  discharge  in  the  United  States, 
and  to  employ  their  stevedore  at  customary  rates. 

Charterers  agree  to  advance  captain  in  foreign 
ports  not  exceeding  dollars,  if  actually  re- 
quired by  him  for  ship's  disbursements,  on  ac- 
count of  this  charter,  free  of  commission  or 
insurance. 

Captain  to  sign  bills  of  lading  as  required  by 
charterers  or  their  agents,  without  prejudice  to 
this  charter  party. 

To  the  true  and  faithful  performance  of  this 
charter,  we,  the  said  parties,  do  hereby  bind  our 
heirs,  executors,  administrators,  and  assigns, 
each  to  the  other,  in  the  penal  sum  of  estimated 
amount  of  charter. 


In  witness  wrhereof,  we  hereunto  set  our  hands 
the  day  and  year  first  above  written. 

M.  R.,  Master. 

S.  &K.,  Merchants. 
Signed  in  the  presence  of  1 

w.  T.,N.  s.         ; 

Certificate  of  Copy. 

We  hereby  certify  the  foregoing  to  be  a  true 
and  correct  copy  of  the  original  stamped  charter 
of ,  now  on  file  at  our  onice. 

Place ,  Date .  S.  &.  R. 

Contract— ('barter  Party. 

The  direct  Port  Forvt  0/  Charter,  as  approved  by  the 
Philadelphia  Maritime  Exchange. 

This  charter  party,  made  and  concluded  upon 

in  the  city  of ,  the day  of ,  in  the  year 

of  our   Lord,  ,  between  M.   R.,  master  and 

agent  for  the  owners  of  the ,  of ,  built , 

at  ,  of  tons,   or    thereabouts,    register 

measurement,  now  lying  in  the  harbor  ol  , 

,  and  guaranteed  to  class ,  at ,  of  the 

first  part,  and  S.  R.,  of  the  second  part,  wit- 
nesseth : 

That  the  said  party  of  the  first  part  agrees  on 
the  freighting  and  chartering  of  the  whole  of  the 
said  vessel  (with  the  exception  of  the  deck,  cabin,  and 
necessary  room  for  the  crew,  and  storage  of  provisions, 
sails,  and  cables),  for  the  cargo  hereinafter  men- 
tioned, unto  said  party  of  the  second  part,  for  a 

voyage   from  ,  to   discharge  at  a   safe   port 

(where  vessel  can  lie  afloat),  say  to ,  on  the  terms 

following : 

The  said  vessel  shall  be  tight,  staunch,  strong,  and 
in  every  way  fitted  for  such  a  voyage,  and  receive  on 
board  the  merchandise  hereinafter  mentioned.  The 
said  party  of  the  second  part  doth  engage  to  provide 
and  furnish  to  the  said  vessel  a  full  and  complete  cargo 
of  wheat  and  (or)  Indian  corn,  say  as  much  as  she  can 
reasonably  stow  and  carry  on  the  draft  of  water  allowed 
by  the  surveyors  appointed  by  the Board  ol'  Ma- 
rine Underwriters,  under  whose  inspection  the  vessel  is 
to  load  ;  and,  furthermore,  it  is  hereby  agreed  that  the 
vessel  shall  prepare  for  bulk  and  (or)  bag  grain,  at  her 
expense,  according  to  the  rules  and  regulations  of  the 

Board  of  Marine  Underwriters,  and  shall  furnish 

from  them  to  charterers  a  certificate  of  proper  lading 
before  clearing  at  the  customhouse;  and  it  is  further- 
more agreed  that  the  party  of  the  second  pan  shall  pay 
to  the  said  party  of  the  first  part,  or  his  agent,  for  the 

use  of  the  said  vessel  during  the  voyage  aforesaid, 

(     )  shillings  and  (     )  pence   British  sterling,  per 

quarter  of  480  pounds  delivered . 

Freight,  payable  on  right  delivery  of  cargo,  if  dis- 
charged in  the  united  kingdom,  in  cash  in  British 
sterling,  if  discharged  on  the  continent,  as  above,  by 
good  and  approved  bankers'  sight  bills  on  London,  with- 
out discount  or  allowance  ;  and  it  is  further  agreed  that 
the  freight  as  per  bills  of  lading,  shall  be  taken  without 
deduction  in  payment  of  this  charter,  any  deficiency  to 
be  paid  here  by  the  charterers,  in  cash,  less  insurance, 
and  any  surplus  over  and  above  estimated  charter  to  be 
settled  here  before  vessel  clears  at  the  custom  house  by 
captain's  draft  in  charterer's  favor  upon  consignee, 
payable  ton  days  after  arrival  of  vessel  at  port  ot  dis- 
charge. The  master  to  call  at  broker's  office  as  re- 
quested to  sign  bills  of  lading  as  presented,  without 
prejudice  to  this  charter  party. 

It  is  further  agreed  that (         )  running  lay  days, 

to  commence  when  the  vessel  is  all  ready  and  prepared 
to  load  bulk  grain,  and  written  notice  thereol'given  to 
charterers,  shall  be  allowed  for  loading  the  vessel  at 
,  and  discharging  (days  expended  at to  be  in- 
dorsed on  bills  of  lading).     And    f  the  vessel  be  longer 

detained,  charterers  to  pay  demurrage  at  the  rate  of 

(  )  pounds  British  sterling  or  its  equivalent  per  day, 
payable  day  by  day,  to  the  party  of  the  first  part,  or 
authorized  agent;  Provided ,  such  detention  shall  hap- 
pen by  default  of  the  said  party  of  the  second  part  or 
their  agent.  Vessel  to  employ  charterer's  stevedore  at 
the  usual  customary  rates  for  such  labor,  and  to  load  at 
such  elevator,  elevators,  wharf,  or  wharves  as  may  be 
designated  by  the  charterers,  who  are  to  pay  the  ordi- 
nary expense  of  towage  after  the  first  move.  Cargo  to 
be  received  and  delivered  alongside  within  reach  of 
vessel's  tackles.  Lighterage,  if  any,  at  expense  and 
risk  of  cargo.  The  charterer's  responsibility  under  this 
charter  to  cease  upon  shipment  of  the  cargo,  but  the 
,  vessel  to  have  a  lien  thereon  for  all  freight,  dead  freight, 


16 


240 


CONTRACTS. 


demurrage,  or  average.  Vessel  is  likewise  to  discharge 
in  such  dock  or  at  such  wharf,  as  may  be  specified  by 
consignees,  on  arrival,  provided  no  extra  detention  or 
expense  is  thereby  incurred  by  the  vessel.  A  commission 
of  five  per  cent,  on  the  amount  of  this  charter  is  due 
and  payable  by  vessel  and  owners  upon  signing  hereof, 

vessel  lost  or  not  lost,  to ,  whose  agents  at  port  of 

destination  are  to  attend  to  ship's  business  on  customary 
terms. 

Funds,  for  ordinary  expenses  of  vessel,  if  desired  by 
master,  to  be  advanced  by  charterers  at  port  of  loading, 
subject  to  commission  and  insurance  only. 

To  the  true  atid  faithful  performance  of  all  and 
every  of  the  foregoing  agreements,  we,  the  said 
parties,  do  hereby  bind  ourselves,  our  heirs,  exec- 
utors, administrators,  and  assigns,  each  to  the 
•ther,  in  the  penal  sum  of  estimated  amount  of 
freight. 

In  witness  whereof,  we  have  hereunto  set  our 
hands  the  day  and  year  first  above  written. 

M.  R. 
Signed  in  the  presence  of  t  S.  R. 

W.  T.,N.  S.  f 

Contract— Charter  Party. 

Mediterranean  Out  and  Home  Charter. 

This  charter  party,  made  and  concluded  upon 

in  the  city  of ,  this  day  of ,  A.  D. , 

between  M.  R.,  of  the  good  and  coppered  , 

called  the  ,  of ,  of  the  register  measure- 
ment of tons,  or  thereabouts,  and  guaranteed 

to  carry tons  dead  weight  of  2,240  lbs.,  classed 

,  Lloyds,  now  lying  in  the  harbor  of ,  of 

the  hrst  part,  and  S.  R.,  of  the  second  part,  wit- 
nesseth: 

That  the  said  party  of  the  first  part  agree  on 
the  freighting  and  chartering  of  the  whole  of  the 
said  vessel,  including  poop  (with  tho  exception  of 
the  cabin  and  necessary  room  for  the  crew  and  stowage 
of  provisions,  sails,  and  cables),  unto  the  said  party 
of  the  second  part,  for  a  voyage  from  New  York, 
Philadelphia,  or  Baltimore,  at  charterer's  option, 

to for  discharging  outward  cargo .     And 

thence  for  return  cargo  back,  from  another  port 
as  above,  to  either  New  York,  Philadelphia,  Bos- 
ton, Baltimore,  or  a  port  in  the  united  kingdom, 
at  charterer's  option.  All  ports  east  0/  the  west 
coast  of  Italy  are  excluded.  Ports  of  loading  and 
discharging  to  be  named  on  signing  bills  of  lading 
for  the  respective  cargoes.  If  home  cargo  is  fruit 
and  {or)  other  merchandise  from  Sicily,  charterer 
has  the  privilege  of  using  a  second  port  there, 
but  the  time  used  for  changing  ports  to  count  as 
lay  days.  Vessel  to  call  at  Gibraltar  for  orders, 
if  required,  for  outward  cargo  only,  allowing  48 

hours  for  waiting  for  orders  there ;  on  the 

terms  following : 

The  said  vessel  shall  be  tight,  staunch,  strong, 
and  every  way  fitted  for  such  a  voyage,  and  re- 
ceive on  board  during  the  voyage  aforesaid  the 
merchandise  hereinafter  mentioned,  and  no  goods 
or  merchandise  shall  be  laden  on  board  otherwise 
than  from  the  said  party  of  the  second  part,  or 
agent. 

The  said  party  of  the  second  part  doth  engage 
to  provide  and  furnish  to  the  said  vessel  a  full 
and  complete  cargo  of  such  lawful  merchandise, 
as  the  charterers  may  require,  for  the  voyage  out 
and,  home,  including  petroleum  and  [or)  its  pro- 
ducts, and  marble  in  blocks,  the  latter,  if  any 

shipped,  not  to  be  more  than  about  tons  of 

twenty-five  cubic  Genoese  palms  each,  customary 
mercantile  Carrara  measurement.  If  any  piece 
of  marble  exceeds  five  tons,  all  extra  expense  for 
loading  and  discharging  same  to  be  paid  by  the 
party  of  the  second  part. 

And  to  pay  to  the  said  party  of  the  first  part,  or 
•gent,  for  the  use  of  the  said  vessel  during  the 

voyage  aforesaid,  the  sum  of in  full  for  the 

round  voyage,  both  out  and  home,  of  which , 

or  its  equivalent,  is  payable  upon  correct  delivery 
of  the  outward  cargo  at  port  of  discharge  in  the 
Mediterranean,  and  balance  of  amount  of  this 
charter,  or  its  equivalent,  to  be  paid  upon  correct 
delivery  of  the  homeward  cargo  at  the  port  of 
discharge. 

Vessel  to  consign  to  charterer's  friends  at  port 
of  loading  and  discharge,  paying  one  commission 
of  two  per  cent,  only  on  amount  of  this  charter, 


payable  at  port  of  loading  or  discharge,  at  char- 
terer's option. 

Captain  to  sign  bills  of  lading  as  presented, 
without  prejudice  to  this  charter  party,  and  differ- 
ence, if  any,  between  the  amount  of  bills  of 
lading  for  the  outward  freight  and  the  amount 
due  vessel  on  the  same  is  to  be  settled  here  in 
cash  ;  if  in  captain's  favor,  before  vessel  sails ;  or 
if  in  charterer's  favor,  by  captain's  draft,  due 
ten  days  after  arrival  of  vessel  at  port  of  dis- 
charge ;  the  rate  of  exchange  and  gold  for  out- 
ward freight  to  be  taken  at  rates  ruling  at  New 
York  on  the  day  of  vessel's  clearing  at  the  custom 
house. 

After  leaving  Gibraltar  on  homeward  passage 
vessel  to  proceed  to  the  northward  of  the  West- 
ern Islands,  and  keep  north  of  that  latitude  dur- 
ing homeward  passage,  unless  absolutely  forced 
south  by  stress  of  weather,  in  which  case  vessel's 
logbook  shall  furnish  evidence  of  that  fact. 
Charterers  have  the  privilege  of  constructing  ven- 
tilators over  vessel's  hatchway,  at  their  own 
expense,  and  the  master  to  keep  the  same  open 
and  hatches  off  in  all  weather  that  will  not  en- 
danger vessel's  safety ;  and  the  vessel  is  to  be 
cleaned  as  customary  previous  to  loading  sucfi 
homeward  cargo.  In  case  of  head  winds  on  ar- 
rival at  Gibraltar  with  homeward  cargo  vessel  to 
tow  through  the  straits,  charterer  paying  haKf 
towage. 

The  master  to  employ  charterer's  stevedore  in 
loading  the  vessel,  at  the  usual  rates.  Vessel  to 
haul  once  for  loading  and  discharging  to  custom- 
ary loading  and  discharging  berth,  as  ordered  by 
charterer  or  agent ;  and  for  any  subsequent  haul- 
ing charterer  to  pay  the  towage. 

If  outward  cargo  is  petroleum,  vessel  to  load 
under  inspection  as  to  stowage  of  the  authorized 
inspectors  appointed  by  the  charterer,  free  of 
charge  to  the  vessel  for  such  inspection. 

For  loading  at  port  in  the  United  States  and 

foreign  ports  it  is  agreed  running  lay  days 

shall  be  allowed,  commencing  from  the  time  the 
vessel  is  ready,  and  written  notice  thereof  to  be 
given  by  the  master  twenty-four  hours  before  the 
time  to  count,  and  customary  despatch  for  dis- 
charging vessel  and  homeward  cargo.  Demur- 
rage over  and  above  the  said  laying  days  at 

per  day,  provided  the  detention  shall  happen  by 
default  of  charterer  or  agent.  Charterer  has  the 
privilege  of  re-chartering  the  vessel,  and  captain 
to  sign  any  such  re-charter,  if  required,  without 
prejudice  to  this  charter  party. 

The  cargo  is  to  be  received  and  delivered  as 
customary  at  the  respective  ports  of  loading  and 
discharging,  within  reach  of  vessel's  tackles. 

Dangers  of  the  seas  and  navigation  of  every 
nature  and  kind  always  mutually  excepted. 

Penalty  for  non-performance  of  this  agreement 
amount  of  charter. 

A  commission  of per  cent,  upon  the  gross 

amount  of  this  charter  is  due  and  payable  by  the 
vessel  to ,  upon  signing  hereof. 

In  witness,  we  hereunto  set  our  hands,  the  day 
and  year  first  above  Nvritten. 

M.  R. 
Signed  in  the  presence  of )  S.  R. 

w.  T.,N.  s.         ; 

Contract— Charter  Part.r. 

Charter  for  Orders,  as  approved  by  the  Philadelphia 
Maritime  Exchange. 

This  charter  party,  made  and  concluded  upon 

in  the  city  of  P ,  the day  of ,  in  the  year 

of  our  Lord,  ,  between  M.  R.,  master  and 

agent  for  the  owners  of  the ,  of ,  built , 

at ,  of tons,  or  thereabouts,  register  meas- 
urement, now  lying  in  the  harbor  of ,  and 

guaranteed  to  class ,  at ,  of  the  first  part, 

and  S.  R.,  of  the  second  part,  witnesseth  : 

That  the  said  party  of  the  first  part  agrees  on 
the  freighting  and  chartering  of  the  whole  of  the 
said  vessel  (with  the  exception  of  the  deck,  cabin,  and 
necessary  room  for  the  crew,  and  storage  of  provisions, 
sails,  and  cablesi,  for  the  cargo  hereinafter  men- 
tioned, unto  said  party  of  the  second  part,  for  a 
voyage  from  Philadelphia  to  Queenstown,  Fal- 
rnouth,  or  Plymouth  for  orders  (which  are  to  be 
given  witkin  forty-eight  (48)  hours  after  arrival  of  vessel 


CONTRACTS. 


*4t 


at  port  of  call  or  lay  davs  to  count),  to  discharge  at  a 
safe  port  (where  vessel  can  lie  afloat),  in  the  united 
kingdom,  or  on  the  continent,  between  Havre 
and  Hamburg  (both  included),  or  to  a  direct  port 
writhin  the  above  limits,  if  named  before  vessel 
sails  from  Philadelphia,  on  the  terms  follow- 
ing: 

The  said  vessel  shall  be  tight,  staunch,  strong,  and 
in  every  way  fitted  for  such  a  voyage,  and  receive  on 
board  the  merchandise  hereinafter  mentioned.  The 
said  party  of  the  second  part  doth  engage  to  provide 
and  furnish  to  the  said  vessel  a  full  and  complete  cargo 
of  wheat  and  (or)  Indian  corn,  say  as  much  as  she  can 
reasonably  stow  and  carry  on  the  draft  of  water  allowed 
by  the  surveyors  appointed  by  the  P Board  of  Ma- 
rine Underwriters,  under  whose  inspection  the  vessel  is 
to  load  ;  and,  furthermore,  it  is  hereby  agreed  that  the 
vessel  shall  prepare  for  bulk  and  {or)  bag  grain,  at  her 
expense,  according  to  the  rules  and  regulations  of  the 

P Board  of  Marine  Underwriters,  and  shall  furnish 

from  them  to  charterers  a  certificate  of  prope»  lading 
before  clearing  at  the  custom  house ;  and  it  is  further- 
more agreed  that  the  party  of  the  second  part  shall  pay 
to  the  said  party  of  the  first  part,  or  his  agent,  for  the 
use  of  the  said  vessel  during  the  voyage  aforesaid,  if 
ordered  from  Queenstown,  Falmouth,  or  Plymouth,  to 

discharge  at  a  port  in  the  united  kingdom. (        ) 

shillings    and  {         )   pence  British  sterling,   per 

quarter  of  480  pounds  delivered  :  if  ordered  from  Queens- 
town,  Falmouth,  or  Plymouth,  to  discharge  at  a  port 
on  the  continent  as  above,  ten  per  cent,  additional  to  be 
paid  per  quarter  of  480  pounds  delivered  ;  if  ordered  to 
a  direct  port  before  vessel  sails  from  P ,  or  if  dis- 
charged at  port  of  call,  or  at  Cork,  should  vessel  have 

called  at  Queenstown,  a  deduction  of (        )  pence 

British  sterling  per  quarter  of  480  pounds,  to  be  made 
from  the  rate  the  vessel  would  have  received  if  ordered 
to  that  port  via  Queenstown,  Falmouth,  or  Plymouth. 

Freight,  payable  on  right  delivery  of  cargo,  if  dis- 
charged in  the  united  kingdom,  in  cash  in  British  ster- 
ling, if  discharged  on  the  continent,  as  above,  by  good 
and  approved  bankers'  sight  bills  on  London,  without 
discount  or  allowance  ;  and  it  is  further  agreed  that  the 
freight  as  per  bills  of  lading  shall  be  taken  without  de- 
duction in  payment  of  this  charter,  any  deficiency  to  be 
paid  here  by  the  charterers,  in  cash,  less  insurance,  and 
any  surplus  over  and  above  estimated  charter  to  be 
setded  here  before  vessel  clears  at  the  custom  house  by 
captain's  draft  in  charterer's  favor  upon  consignee,  pay- 
able ten  days  after  arrival  of  vessel  at  port  of  discharge. 
The  master  to  call  at  brokers'  office  as  requested  to  sign 
bills  of  lading  as  presented,  without  prejudice  to  this 
charter  party. 

It  is  further  agreed  that (        )  running  lay  days, 

to  commence  when  the  vessel  is  all  ready  and  prepared 
to  load  bulk  grain,  and  written  notice  thereof  given  to 
charterers,  shall  be  allowed  for  loading  the  vessel  at 
P ,  waiting  orders  at  port  of  call  (after  expi- 
ration of  48  hours  as  above),  and  discharging  (days  ex- 
pended at   P ,  to  be  indorsed  on  bills  of  lading). 

And  if  the  vessel  be  longer  detained,  charterers  to  pay 

demurrage  at  the  rate  of  (        )  pounds   British 

sterling  or  its  equivalent  per  day,  payable  day  by  day, 
to  the  party  of  the  first  part,  or  authorized  agent ;  Pro- 
vided, such  detention  shall  happen  by  default  of  the 
said  party  of  the  second  part  or  their  agent.  Vessel  to 
employ  charterer's  stevedore  at  the  usual  customary 
rates  for  such  labor,  and  to  load  at  such  elevator,  eleva- 
tors, wharf  or  wharves  as  may  be  designated  by  the 
charterers,  who  are  to  pay  the  ordinary  expense  of 
towage  after  the  first  move.  Cargo  to  be  received  and 
delivered  alongside  within  reach  of  vessel's  tackles. 
Lighterage,  if  any,  at  expense  and  risk  of  cargo.  The 
charterer's  responsibilty  under  this  charter  to  cease 
upon  shipment  of  the  cargo,  but  the  vessel  to  have  a 
lien  thereon  for  all  freight,  dead  freight,  demurrage  or 
average.  Vessel  is  likewise  to  discharge  in  such  dock 
or  at  such  wharf,  as  may  be  specified  by  consignees,  on 
arrival,  provided  no  extra  detention  or  expense  is  there- 
by incurred  by  the  vessel.  A  commission  of  five  per 
cent,  on  the  amount  of  this  charter  is  due  and  payable 
by  vessel  and  owners  upon  signing  hereof,  vessel  lost  or 

not  lost,  to ,  whose  agents  at  port  of  destination  are 

to  attend  to  ship's  business  on  customary  terms. 

Funds,  for  ordinary  expenses  of  vessel,  if  desired  by 
master,  to  be  advanced  by  charterers  at  port  of  loading, 
subject  to  commission  and  insurance  only. 

"Ts  the  true  and  faithful  performance  of  all  and 


every  of  the  foregoing  agreements,  we,  the  said 
parties,  do  hereby  bind  ourselves,  our  heirs,  ex- 
ecutors, administrators,  and  assigns,  each  to  the 
other,  in  the  penal  sum  of  estimated  amount  of 
freight. 

In  witness  whereof,  we  have  hereunto  set  our 
hands,  the  day  and  year  first  above  ^written. 

M.  R. 
Signed  in  the  presence  of  )  8.  R. 

W.  T.,N.  S.  ; 

Contract— Charter  Party. 

Petroleum  Charter,  as  approved  by  the  Philadelphia 

Maritime  Exchange. 

This  charter  party,  made  and  concluded  upoa 

in  the  city  of  P ,the day  of ,in  the  year 

of  our  Lord  ,  between  M.  R.,  master  and 

agent  for  the  owners  of  the of ,  built , 

at ,  of tons,  or  thereabouts,  register  meas- 
urement, now  lying  in  the  harbor  of ,  and 

guaranteed  to  class at of  the  first  part, 

and  S.  R.,  of  the  second  part,  witnesseth : 

That  the  said  party  of  the  first  part  agrees  on 
the  freighting  and  chartering  of  the  whole  of  the 
said  vessel  (with  the  exception  of  the  deck,  cabin,  and 
necessary  room  for  the  crew,  and  storage  of  provisions, 
sails,  and  cables),  for  the  cargo  hereinafter  men- 
tioned, unto  said  party  of  the  second  part,  for  a 

voyage  from  ,  to  discharge  at  a  safe  port, 

where  a  vessel  can  lie  afloat,  say  to ,  on  the 

terms  following : 

The  said  vessel  shall  be  tight,  staunch,  strong,  and  in 
every  way  fitted  for  such  a  voyage,  and  receive  on 
board  the  merchandise  hereinafter  mentioned.  The 
said  party  of  the  second  part  doth  engage  to  provide 
and  furnish  to  the  said  vessel,  a  full  and  complete  cargo 

of  petroleum,  in   customary  barrels,  .     And   it   is 

furthermore  agreed  that  the  party  of  the  second  part 
shall  pay  to  the  said  party  of  the  first  part,  or  his  agent, 
for  the  use  of  said  vessel  during  the  voyage  aforesaid, 

(         )  shillings  and (         )  pence  for  each  and 

every  forty  (40)  gallons,  gross  American  gauge  of  bar- 
rels, with  five  per  cent,  prim.ige  thereon,  per  barrel  de- 
livered, whether  full,  part  full,  or  empty,  etc. 

Freight,  payable  on  right  delivery  of  cargo,  if  dis- 
charged in  the  United  Kingdom,  in  cash  in  British 
sterling:  if  discharged  on  the  continent,  by  good  and 
approved  bankers'  sight  bills  on  London,  without  dis- 
count or  allowance ;  and  it  is  further  agreed  that  the 
freight,  as  per  bills  of  lading,  shall  be  taken  without  de- 
duction in  payment  of  this  charter,  any  deficiency  to  be 
paid  here  by  the  charterers,  in  cash,  less  insurance,  and 
any  surplus  over  and  above  estimated  charter  to  be  set- 
tled here  before  vessel  clears  at  the  custom  house  by 
captain's  draft  in  charterer's  favor  upon  consignee,  pay- 
able ten  days  after  arrival  of  vessel  at  port  of  discharge. 
The  master  to  call  at  broker's  office,  as  requested,  to 
sign  bills  of  lading  as  presented,  without  prejudice  to 
this  charter  party. 

It  is  further  agreed  that (    )  running  lay  days,  to 

commence  when  the  vessel  is  all  ready  and  prepared  to 
receive  cargo  at  wharf  designated  by  charterers,  and 
written  notice  given  them  of  same,  shall  be  allowed  for 

loading  the  vessel  at   P ,  and  customary  despatch 

to  be  allowed  for  discharging  cargo  at  port  of  dis- 
charge. And  if  the  vessel  be  longer  detained,  charterers 
to  pay  demurrage  at  the  rate  of (  )  pounds  Brit- 
ish sterling,  or  its  equivalent,  per  day,  payable  day  by 
day,  to  the  party  of  the  first  part,  or  authorized  agent. 
Provided,  such  detention  shall  happen  by  default  of  the 
said  party  of  the  second  part,  or  their  agent.  Vessel  to 
load  under  inspection,  as  to  stowage,  of  the  authorized 
inspectors  appointed  by  charterers  free  of  charge  to  the 
vessel  for  said  inspection,  to  employ  charterers'  steve- 
dore at  the  usual  customary  rates  for  such  labor,  and 

to   load    at    such   wharf  or  wharves    on  the  or 

rivers,    where    she    can    lie    afloat,  as    may  be 

designated  by  the  charterers,  and  if  required  to  move 
mote  than  once  charterers  to  pay  the  ordinary  expense 
of  towage.  Cargo  is  to  be  received  and  delivered  along- 
side within  reach  of  vessel's  tackles.  Lighterage,  if  any, 
at  expense  and  risk  of  cargo.  The  charterers'  responsi- 
bility under  this  charter  to  cease  upon  shipment  of  the 
cargo,  but  the  vessel  to  have  a  lien  thereon  for  all  freight, 
dead  freight,  demurrage  or  average.  Vessel  is  likewise  to 
discharge  in  such  dock,  or  at  such  wharf  as  may  be 
specified  by  consignees,  on  arrival  provided  no  extra 
detention  or  expense  is  thereby  incurred  by  the  vessel. 
A  commission  of  five  per  cent,  on  the  amount  of  this 


242 


CONTRACTS. 


charter  is  due  and  payable  by  vessel  and  owners  upon 

tigning  hereof,  vessel  lost  or  not  lost,  to ,  whose 

agents  at  port  of  destination  are  to  attend  to  ship's  busi- 
ness on  customary  terms. 

Funds,  for  ordinary  expenses  of  vessel,  if  desired  by 
master,  to.be  advanced  by  charterers  at  port  of  loading, 
(ubiect  to  commission  and  insurance  only. 

To  the  true  and  faithful  performance  of  all  and 
every  of  the  foregoing  agreements,  we,  the  said 
parties,  do  hereby  bind  ourselves,  our  heirs,  ex- 
ecutors, administrators,  and  assigns,  each  to  the 
other,  in  the  penal  sum  of  estimated  amount  of 
freight. 

In  witness  v*rhereof,  we  have  hereunto  set  our 
hands  the  day  and  year  first  above  written. 

M.  R. 
Signed  in  the  presence  of  )  S.  R. 

w.  T.,N.  s.         ; 

Stowage  Certificate  for  Petroleum  Laden 
Vessels. 

Issued  by  the  Board  of  Surveyors  and  Inspectors  ap- 
pointed by  the  Philadelphia  Board  of  Marine  Under- 
writers, and  approved  by  the  Board  of  New  York 
Underwriters,  Verein  Bremer  See-  Versicherungs- 
Gtss;llschaften,  and  the  Philadelphia  agents  of  the 
London  Lloyds'  Liverpool,  and  Finland  Underwriters. 
Surveyor's  Office. 

This  may  certify,  that  we  have  surveyed  for 
Messrs. -.  the  stowage  of  the  cargo,  consist- 
ing of  — -,  of  the tons  register,  bound  from 

to .    This  vessel  was  well  and  sufficiently 

ballasted,  and  there  wras  ample  dunnage,  boards, 
and  planks,  of  the  proper  descriptions,  used  in 
the  stowage  of  the  cargo.     The  vessel  now  draws 

feet  ^^ — inches  of  water,  is  not  overloaded, 

and,  in  our  opinion,  is  in  a  seaworthy  condi- 
tion. 

Approved  by  the  Board  of  Marine  Surveyors. 

C.  C.,  Clerk.  S.  R.,  Surveyor. 

Petroleum  Bill  of  Lading. 

Shipped  in  good  order  and  condition,  by , 

on  board  the ,  called  the  ,  whereof  M.  R. 

is  master  for  this  present  voyage,  and  now  lying 

in  the  port  of ,  and   bound  for ,  which  are 

marked  and  numbered  as  per  margin,  and  are  to 
be  delivered  in  like  good  order  and  condition  at 

the  aforesaid  port  of , gallons  (the  dangers 

of  the   seas,    fire,  and   collision   only  excepted),  unto 

,  or  to assigns,  he  or  they  paying  freight 

upon   the  said  merchandise,  at  the  rate  of 

shillings pence  per  forty  gallons,  gross  gauge 

of  barrels  delivered,  with  five  per  cent,  primage 
and  average  accustomed,  and  all  other  conditions 
as  per  charter  party  dated . 

In  witness  whereof,  the  master  or  purser  of  the 
said  vessel  hath  affirmed  to  two  bills  of  lading, 
all  of  this  tenor  and  date,  one  of  which  being  ac- 
complished, the  rest  to  stand  void. 

Dated  in ,  this day  of ,  A.  D.  . 

Gauge  and  contents  unknown  ;  not  accountable 
for  leakage  or  breakage. 

Freight  payable  on  barrels  or  cases  delivered 
full,  part  full,  or  empty. 

If  cases  be  shipped,  vessel  not  to  be  accountable 
foi  rust. 

Contract— Charter  Party. 
For  Timber  to  Gulf  Ports. 

Place ,  Date . 

It  is  this  day  mutually  agreed  between  M.  R., 
master  of  the  good  ship  or  vessel  called  the  V., 

of  the  measurement  of tons,  or  thereabouts, 

now ,  and  S.  &  R.,  merchants  : 

That  the  said  ship  being  tight,  staunch,  and 
strong,  and  every  way  fitted  for  the  voyage,  shall, 
vrith  all  convenient  speed,  sail   and   proceed  to 

,  and  there  load,  from  the  factors  of  the  said 

merchants  or  agents  at  such  safe  anchorage  as 
they  may  direct,  a  full  and  complete  cargo  of 
square  pitch  pine  timbers,  or  and  deals,  at  mer- 
chants' option.  Merchants  to  supply  suitable 
timber  or  and  planks  for  beam  filling  and  broken 
stowage,  at  their  option.  Deck  load,  if  required 
by  the  captain,  to  be  supplied  at  full  freight.  No 
timber  or  deals  to  be  cut  without  the  written 
permission  of  the  shippers,  and  the  stevedore  to 
be  approved  of  by  them.  The  cargo  to  be  deliv- 
ered alongside  at  merchants'  risk  and  expense, 


and  to  be  received  by  the  master  and  secured  with 
the  ship's  dogs  and  chains  when  so  delivered, 
and  to  be  then  at  ship's  risk.  Should  the  master 
order  more  timber  alongside  than  the  ship  can 
carry,  the  expense  of  towing  it  back  to  the  booms 
to  be  paid  by  the  ship.  'The  ship  to  discharge 
each  lighter  having  lumber  for  cargo  or  broken 
stowage,  without  unreasonable  detention,  and  to 
give  charterer's  agents  written  notice  three  clear 
days  before  broken  stowage  is  required,  not  ex- 
ceeding what  she  can  reasonably  stow  and  carry, 
over  and  above  her  tackle,  apparel,  provisions  and 
furniture  ;  and  being  so  loaded,  shall  therewith 
proceed  io  (state  where),  or  so  near  thereunto  as 
she  may  safely  get,  and  deliver  the  same  on  being 
paid  freight  as  follows : 

For  timber  per  load  of  50  cubic  feet 

calliper  measure  as  cus- 
tomary at  port  of  dis- 
charge. 

For  deals  per  St.  Petersburg  stand- 

ard hundred.  165  cubic 
feet. 

All  timber  or  and  deals  used  for  stowage  and 
beam  filling  to  pay  two-thirds  freight. 

(The  act  of  God,  public  enemies,  fire,  and  all  and 
every  other  danger  and  accidents  of  the  seas,  rivers, 
and  navigation  of  whatever  nature  and  kind  soever, 
during  the  said  voyage,  always  excepted.) 

Freight  to  be  paid  as  follows :  One-third  in 
cash  on  unloading  and  right  delivery  of  cargo, 
and  the  remainder  by  good  and  approved  bill, 
payable  in  London  at  four  months'  date  follow- 
ing, or  in  cash,  less  two  per  cent.,  at  merchants' 
option. 

Cash  for  ships,  ordinary  disbursements,  at  port 
of  loading  to  be  advanced  by  charterer's  agents 
at  current  rate  of  exchange,  subject  to  cost  of  in- 
surance and  the  customary  two  and  a  half  per 
cent,  commission,  and  to  be  deducted  from  first 
payment  of  freight. 

For  any  money  advanced  to  the  master,  he 
shall  give  a  receipt  on  the  bill  of  lading,  and  the 
charterers  shall  in  no  way  be  responsible  for  the 
appropriation  of  such  advances. 

working  days  are  to  be  allowed  the  mer- 
chants (if  the  ship  be  not  sooner  despatched),  for  fur- 
nishing cargo,  and  said  cargo  to  be  unloaded  as 
customary  at  port  of  discharge,  and  ten  days  on 
demurrage  over  and  above  the  said  lay  days,  at 
pounds  per  day. 

Vessels  to  be  addressed  to ,  or  their  agents, 

at  port  of  loading,  paying  them  two  and  a  half 
per  cent,  commission  on  gross  freight  for  doing 
the  ship's  business. 

This  charter  being  concluded  by ,  on  behalf 

of  another  party,  it  is  agreed  that  their  liability 
shall  cease  as  soon  as  the  cargo  :s  shipped,  and 
the  names  of  their  principals  given  up. 

Penalty  for  non-performance  of  this  agreement, 
estimated  amount  of  freight. 

It  is  understood  that  the  vessel  insures  at  the 
regular  rates  on  cargo,  or  is  chargeable  with  the 
difference.  Captain  is  not  permitted  to  take  any 
timber  or  deals  on  board  beside  the  cargo,  except 
on  written  permission  of  the  shippers. 

A  commission  of  five  per  cent,  is  due by 

ship  on  signing  this  charter. 

M.  R.,  Master. 

{IViiness.)  S.  &  K.,  Merchants. 

Contract— roi>yrig:ht  Matter. 

General  Form. 
See  title  Assignments,  ante. 

This  agreement,  made  this day  of ,  be- 
tween A.  B.  (of ,  author)  and  C.  D.  (of ,  pub- 
lisher), witnesseth  : 

That  said  A.  B.  shall,  on  or  before  the day 

of ,  complete  («)- compile^  and  furnish  to  said 

C.  D.  the  copy  for  a  work  to  be  entitled . 

That  said  A.  B.  shall  copyright  said  work  in  his 
own  name. 

That  said  C.  D.  shall,  on  or  before  the day 

of  ,  publish  said  work,  and  have  the  same 

ready  for  sale. 

That  said  C.  D.  shall  sell  said  work,  paying  said 
A.  B.  the  sum  of per  cent,  per  copy  for  all 


CONTRACTS. 


H3 


copies  thereof  sold,  as  follows :  {stating- the  terms 
and  limes  of  payment). 

That  this  agreement  shall  continue  during  the 
ternn  allowed  by  law  for  the  existence  of  a  copy- 
right, and  the  renewal  thereof. 

In  witness,  etc. 

Various  Siipulations,  Etc. 
Advancements  and  reimbursement. 

That  said  C  D.  shall,  in  the  meamime,  advance  said 
A.  B.  the  following  sums  (giving  amounts  and  pay- 
ments), and  no  more. 

Or,  That  said  C.  D.  shall,  from  to  time,  during  the 
completion  of  said  manuscript,  advance  said  A.  B.  such 
sums  of  money,  the  aggregate  of  which  shall  not  ex- 
ceed   dollars,  as  follows  : 

That  said  C.  D.  shall  reimburse  himself  from  the  first 
proceeds  of  the  sale  of  said  work,  and  failing  with   rea- 
sonable diligence  so  to  do  within from  the  publica- 
tion thereof,  shall,  etc.  {as  tlie  parties  agree). 
Accounting. 

That  said  C.  D.  shall,  at  the  date  of  each  payment, 
«t  the  same  time  give  unto  said  A.  B.  a  statement  of  the 
amount  of  sales  during  the  time  between  the  same  and 
the  last  payment. 

That  said  C.  D.  shall,  on  the day  of ,  in  each 

year,  render  unto  said  A.  B.  his  full  account    of   all 

sales  of  said for  the  year  last  past,  and  at  all  other 

times  when  by  said  A.  B.,  in  writing,  demanded. 
Advertisements. 

That pages  of  said  work  shall,  if  necessary,  be 

devoted  to  the  advertisement  of  the  interests  of  {state 
what)  only,  at  the  rate  of dollars  per  page. 

That  said  advertisements  shall  be  canvassed  for  and 
solicited  by . 

That  said  A.  B.  shall  receive per  cent.,  and  said 

C.  D. per  cent,  of  the  proceeds  of  said  advertise- 
ments. 

That dollars  .shall  be  annually  spent  by  said  C. 

D.  in  advertising  said  work. 

Arbitration,  etc. 

That  all  and  every  controversy,  demand,  dispute,  and 
difference  which  shall  hereafter  arise,  affecting  or  con- 
cerning the  construction,  or  any  portion  or  stipulation 
in  this  agreement  contained,  the  quantity  or  quality  of 
the  subject-matter  therein  contained,  the  time  or  man- 
ner of  any  payment  or  payments,  or  the  performance  or 
non-performance  of  any  stipulations  therein  contained  : 
then  and  in  such  case  the  same  shall  be  submitted  and 
referred  to  (two  credible  persons,  one  to  be  chosen  by 
each  of  said  parties,  they  being  authorized  to  select  a 
third)  any  person  said  parties  may  agree  upon,  whose 
award  {or  the  award  of  a  majority  of  which)  shall  be 
binding  and  final. 

Assignment. 

That  said  A.  B.  will,  after  a  sale  of copies  of  said 

work,  assign,  transfer,  and  set  over  all  his  title  and  in- 
terest in  and  rights  under  this  agreement  and  said  work 
as  required  by  law  to  said  C.  D.,  for  the  further  consid- 
eration of dollars,  payable  as  follows  {stating  terms 

and  times  of  payment )  .•  or 

That  said  C.  D.  will,  after  a  sale  of copies  of  said 

work,  assign,  transfer,  and  set  over  to  said  A.  B.  all  his 
title  and  interest  in,  and  rights  under  this  agreement  and 
said  work,  together  with  all  the  electrotype  and  stereo- 
type plates,  cuts,  and  illustrations,  and  all  and  every 
matter  and  material  necessary  thereto  or  connected 
therewith,  for  the  sum  of dollars,  payable  as  fol- 
lows (stating  time  and  manner,  etc.) 

Copyright. 
That  said  A.  B.  shall  copyright  said  work  in  his  own 
name  as  author  and  proprietor,  and  at  his  own  expense. 
That  said  C    D.  siiall  copyright  said  work  in  his  own 
name  as  publisher  and  proprietor,  and  at  his  own  ex- 
pense. 

Cuts  and  Illustrations. 

That  said  A.  B.  shall  provide subjects,  together 

with  their  appropriate  illustrations  for  said  work. 

That  said  C.  D.  shall  procure  at  the  hands  of  compe- 
tent and  efficient  engravers  the  execution  of  said  illus- 
trations in  a  purely  artistic  and  workmanlike  manner, 

subject  to  the  approval  of and . 

Material  and  Finish. 
That  said  work  shall  be  printed  on  (state  the  grade, 

'lind,  and  tint  o/ paper),  weighing  pounds  to  the 

'earn. 

That  the  same  shall  be  bound  in  the  following  styles 
giving  kinds,  color,  etc.,  etc.,  of  Sinding). 


That  said  binding  sHall  be  ornamented  and  finished  as 

follows  : ,  etc. 

Numbering. 

That  all  books  published  shall  be  regularly  numbered 
by  a  numbering  machine  as  soon  as  bound  and  before 
delivery  for  sale  or  stock. 

Payments. 

That   the  payment  of  said  shall   be  as   follows 

{stating  the  terms  of  each  payment,  the  amount  of  each 
payment,  and  the  time  of  each  payments. 
Plates. 

That  said  work  shall  be  executed  in  electrotype  or 
stereotype)  plates,  cast,  formed,  made,  modelled,  and 

molded  after  the  manner  known  as  the system,  and 

in  the  best  and  most  substantial  manner. 

That  said  plates  shall  be  included  in  the  terms  of  thd 
assignment  in  this  agreement  provided  for. 

That  said  plates,  if  taken  and  sold  under  execution  at 
any  time  hereafter,  shall  not  carry  with  them  any  right 
now  or  hereafter  to  be  vested  in  said  C.  D.  by  virtue  of 
this  agreement  or  otherwise. 

Presentation  Copies. 

That  said  A.  B.  shall  receive  for  presentation 

copies  of  said  work  free  of  all  costs  and  charges  for  the 
same. 

That  said  C.  D.  shall  receive  for  presentation  

copies  of  said  work  free  of  all  costs  and  charges  for 
copyright  fee  of  the  same. 

Publication. 

That  the  copy  for  said  work  shall  be  ready  for  publi- 
cation on  or  belbre  the day  of . 

That  said  work  shall  be  published  on  or  before  the 
day  of . 

That  the  right  to  publish  and  vend  said  work  shall 
rest  solely  and  only  in  said  C.  D.,  and  shall  not  be  trans- 
ferable by  any  act  soever,  whether  of  said  C.  D.  or  by 
operation  of  law,  and  he  shall  be  wholly  and  utterly  in- 
capable to  transfer  the  same,  by  any  act  whatever ;  and 
should  said  C.  D.  at  any  time  become  incapable  of  exer- 
cising said  right  the  same  shall  thereupon  lapse  to  and 
vest  solely  in  said  A.  B.  and  his  legal  representatives  ;  or. 

That  the  right  to  publish  and  vend  said  work  shall 
vest  in  the  said  C.  D.  and  his  legal  representatives  dur- 
ing the  full  term  of  the  copyright  thereof,  and  its  renewal, 
if  made. 

Royalty — Amount  and  Payments. 

That  said  A.  B.  shall,  in  the  manner  and   times  afo.e- 

said,  receive  a  royalty  of per  cent,  (on  the  re«ii! 

selling  price)  of  every  copy  of  said  work  published  and 
sold. 

That  said  royalties  shall  be  payable  on  the  fir*f.  day 
of  each  month  (<??•  payable  on  the  first  days  of  Jai  viary, 
April,  July,  and  November)  of  each  year. 

That  said  A.  B.  shall  receive  a  sum  equal  to  the  pro- 
portion of  pages  should  the  same  be  less  than  the  num- 
ber herein  agreed  upon,  but  no  greater  amount  than  that 
already  agreed  upon  shall  be  paid  if  the  number  of  pagei 
exceed  that  herein  agreed  upon. 

Another  Form. 

That  said  A.  B.  shall  receive  the  following  royalties  : 

per  cent.  io{  the  retail  selling  price)  of  the  first 

thousand  sold. 

per  cent,  (of  the  retail  selling  price)  of  the 

thousand  sold. 

per  cent,  (of  the  retail  selling  price)  of  all  copies 

thereafter  sold. 

That  said  royalties  shall  be  payable,  etc.,  as  above. 
Sales. 

That  said  C.  D.  {or  A.  B.)  herel>y  guarantee*  a  sale 

of  at  least thousand  copies  of  said  work  during  the 

first  year. 

That  the  succeeding  years  the  sales  thereof  shall  nst 
be  less  than thousand  copies  per  year. 

That  failing  the  above  sales  said  C.  D.  shall  forfeit  all 
rights  by,  in,  and  under  this  agreement. 

That  the  amount  of  sales  shall  be  in  aU  cases  verified 
by  affidavit  in  the  accountings  herein  stipulated  to  be 
made,  and  failing  this,  shall  at  all  events  once  iu  each 
year  be  so  made. 

Shape  and  Size. 

That  said  work,  exclusive  of  contents  and  index, shaU 
contain  (or  not  exceed  ) pages. 

That  said  work  shall  be  in  shape  and  size  the  same  as 
that  of  a  book  entitled ,  published  by ,  of 

That  said  work  shall  be  in  proportion  as  foUows; 
length ,  breadth , 


844 


CONTRACTS. 


Territory  Reserved. 

TTiat  the  following  territory  shall  be  reserved  to  the 
author's  own  disposition  and  use  (describitig  it). 
Time  of  Author. 

That  in  the  meantime  he  shall  devote hours  of 

the  part  of  the  day  to  the  work  aforesaid  ex- 
clusively, and  in  nowise  allow  any  matter  to  interfere 
with  this  portion  of  his  agreement. 

Title,  Title-page,  and  Description. 

That  the  title  of  said  work  shaU  be  in  the  words  and 
figures  as  follows,  viz.: 

That  the  same  may  be  altered,  abandoned,  modified, 
or  substituted  at  any  time  before  publication  upon  the 
mutual  consent  of  said  parties  ;  or 

That   no   change   or   modification   of  any   character 
whatever  shall  be  made  in  the  above-named  title-page. 
Type. 

That  said  work  shall  be  set  in  such  type  only  as  said 
parties  shall  mutually  agree  upon  ;  or 

That  said  work  shall  be  set  in  such  type  only  as  said 
A.  B.  (or  C.  D. )  shall  agree  upon ;  or 

That  said  work  shall  be  set  in  the  type  and  style  as 
follows  {giving  the  same  minutely). 
^Varranty,  etc. 

That  said  A.  B.  warrants  said  copy  free  from  all  and 
every  liability  from  piracy,  or  otherwise,  or  in  any  way 
subject  to  any  penalty,  liability,  or  forfeiture  under  the 
laws  relating  to  copyrights. 

That  said  A.  B.  shall  be  liable  to  the  extent  of  all 
penalties,  liabilities,  and  forfeitures  incurred  through  his 
•arelessness  in  this  behalf,  or  anywise  in  the  premises, 
or  throughout  said  entire  work. 

Contract— Copyright  Matter. 

General  Form. 
See  title  Assignment,  ante. 

This  agreement,  made  this day  of ,  A. 

D. ,  between  A.  B.,  of ,  and  C.  D.,  of , 

witnesseth : 

That  A.  B.,  for  the  consideration  hereinafter 
mentioned,  shall  prepare  a  (naming  the  subject),  to 

comprise  volumes  (or  parts,  etc.),  which  he 

shall  complete  for  press  as  rapidly  as  practicable 
|or  on  or  before  the day  of ). 

That  the  copyright  of  said  work  shall  be  se- 
cured by  and   in   the   name  of (as  author  and 

proprietor,  or  proprietor). 

That  said  C.  D.  shall  publish,  republish,  and 
vend  said . 

That  said  C.  D.  shall  give  said  A.  B.  for  presen- 
tation    of  said  work. 

That  said  C.  D.  shall  pay  said  A.  B.  for  said 
^vork  as  follows: . 

In  witness  whereof,  said  parties  have  hereunto 

■et  their  hands  this day  of ,  A.  D. . 

A.  B. 
C.  D. 
C/Ontract — Copyrifcht  Matter. 
General  form. 
See  title  Assignment,  ante. 

This  agreement,  etc.,  witnesseth  : 

That  A.  B.  shall,  on  or  before  the day  of 

. ,  furnish  C.  D.  copy  for  a  work  entitled  (giving- 

the  title  of  the  luork). 

That  A.  B.  shall  copyright  the  same  in  his  own 
name. 

That  C.  D.  shall,  on  or  before  the  day  of 

— — ,  publish  the  same  (in  the  style  to  be  agreed 
upon),  and  thereafter  sell  the  sarrie  by  subscrip- 
tion, {laying  A.  B. per  cent,  of  the  subscrip- 
tion price  therefor  as  the  same  is  sold  by  him. 

That  the  title-page  of  said  work  may  at  any 
time  before  publication  be  changed  as  assent  of 
parties  and  circumstances  require. 

That  after  the  expiration  of (or  after  the  sale 

of copies  of  said  work)  C.  D.  shall  sell  at  least 

copies   each   succeeding   year,  or  make   up 

such  deficiency  at  the  expiration  thereof,  or  in 
lieu  thereof  turn  over  all  plates  and  release  all 
title  and  interest  in  and  rights  under  this  agree- 
ment to  said  A.  B.  (Signed)    A.  B. 

In  witness,  etc.  C.  D. 

Contract— €opyri)B:ht  Matter. 

Publication  upon  yoint  Account. 
This  agreement,  etc.,  witnesseth  : 
That  said  A.  B.  is  proprietor  of  the  following 
W*rk8,  vis.  (describing  thtm). 


That  said  C.  D.  shall  become  publisher  of  aaid 
works. 

That  the  cost  of  manufacturing  said  works 
shall  be  made  up  by  said  A.  B.  by  charging  the 
printing   plates,  book  and   plate    paper    at    first 

cost,  the  press  work  at cents  per  token,  and 

the  collecting  and  delivery  at  the  usual  cost. 

That  said  works  shall  be  delivered  to  C.  D.  itl 
sheets  to  be  folded  and  bound  at  cost  price,  and 
at  his  own  cost  and  expense  for  materials  and 
labor. 

That  said  books  shall  be  put  up  in  the  same 
style  and  quality,  and  uniform  with  the  volumes 

of ,  formerly  published  by  said  A.  B. ,  a  copy 

of  which  is  herewith  submitted. 

That  the  expense  of  circulars  and  advertising 
said  series  of  works  shall  be  divided  between 
said  parties  and  limited  to  such  an  amount  as 
may  hereafter  be  agreed  to.  An  accurate  account 
of  ■which  expense  shall  be  kept  and  rendered  on 
the days  of in  each  year. 

That  all  copies  of  each  new  volume,  not  ex- 
ceeding   ,  given  or  presented  for  editorial  pur- 
poses, shall  be  charged  at  cost  as  an  item  of  ad- 
vertising, and  the  amount  thereof  equally  borne 
by  said  parties.  An  accurate  account  of  which, 
and  to  whom  given  or  presented,  shall  be  kept 
and  rendered  at  the  time  of  accounting  aforesaid. 

That  the  profits  of  each  volume  shall  be  equally 
divided  between  said  parties. 

That  said  profit  shall  consist  of  the  difference 
between  the  actual  cost  of  manufacturing  each 
volume  and  the  v«/holesale  price  of  the  same, 
which  shall  be per  copy. 

That  said  C.  D.  shall  sell  said  works  at  said 

wholesale  price,  saving  only  small  lots  of in 

number  when  the  actual  profits  thereon  shall  be 
equally  divided.  An  accurate  account  of  all 
which,  and  to  whom  sold  shall  be  kept,  shall  be 
truly  kept  and  rendered  at  the  time  of  accounting 
aforesaid. 

That  this  agreement  shall  be  in  full  force  and 
binding  for  a  term  of  five  years  from  this  date, 
and  thereafter  until  one  of  said  parties  shall  give 
to  the  other  six  months  notice,  in  writing,  signi- 
fying his  wish  to  annul  the  same. 

That  in  case  no  satisfactory  arrangement  can 
be  made  for  the  settlement  of  each  party's  inter- 
est an  arbitrator  shall  be  chosen  by  each  party, 
and  by  said  two  chosen  another  shall  be  selected, 
the  decision  of  whom  or  any  two  of  them,  in 
writing,  shall  be  final,  binding,  and  conclusive. 

In  witness,  etc. 

Contract — Employment. 

Attorney  and  Clerk. 
See  title  Appkenticeship,  ante. 

Articles  of  agreement  made  and  entered  into 

this  day  of ,  A.  D. ,  by  and  between 

A.  B.,  of ,  attorney,  and  C.  D.,  of ,  farmer 

(and  I.  D.,  his  son),  witnesseth  : 

That  I.  D.  shall  faithfully  serve  said  A.   B.  as 

his  clerk  for  the  space  of years,  from  the 

day  of . 

"That  he  shall  safely  keep  and  not  embezzle, 
misspend,  purloin,  or  secrete  any  of  the  chattels, 
credits,  effects,  estate,  goods,  moneys,  or  writings 
received  by  him  or  committed  to  his  care,  or 
knowingly  permit  or  suffer  the  same  to  be  done. 

That  he  shall  not  disclose  or  make  known  any 
secrets  of  his  master  or  his  master's  clients,  or 
any  matter  relating  to  his  master's  business  or 
to  his  prejudice. 

That  he  shall  not  absent  himself  from  his  mas. 
ter's  service  during  said  term  without  his  con- 
sent, and  that  he  shall  in  all  things  be  faithful 
and  true  to  his  said  master. 

That  said  C.  D.  shall  pay  said  A.  B.  the  sum  of 
five  hundred  dollars  upon  the  (signing  of  this  agree. 
ment) day  of (or,  as  follows). 

That  said  C.  D.  shall  clothe  and  bear  all  ex- 
penses incident  to  ill-health  of  said  I.  D. 

That  said  A.  B.,  in  consideration  thereof,  shall 
during  said  term  instruct  said  I.  D.  in  the  profes- 
sion of  law  and  practice  of  an  attorney  in  the 

court,  etc.,  and  in  the  meantiriie  provide  him 

with  good  and  sufficient  food  and  lodging,  and 

allow  him a  year  for  washing  his  linens  (and 

his  income  as  notary). 


CONTRACTS. 


245 


It  is  further  covenanted  and  agreed  that  in  case 
«aid  A.  B.  or  I.  D.  dies  within  the  first  year  of 
said  term,  then  said  A.  B.,  or  his  legal  reprssen- 
tatives,  shall  repay  to  said  C.  D.  the  sum  of  four 
hundred  dollars.  And  if  either  should  die  during 
the  second  year,  then  said  A.  B.,  or  his  legal  rep- 
resentatives, shall  repay  said  C.  D.  the  sum  of 
three  hundred  dollars,  etc 

In  witness  whereof,  said  parties  have  hereunto 
set  their  hands  (and  seals)  the  day  and  year  hrst 
above  written. 

(SigTud)  A.  B. 

[  IViiness.}  C.  D. 

I.  D. 
Con  tract— Employ  ment. 
Book-Keeper-  ana  Merchant. 

This  agreement,  etc.,  witnesseth  : 

That  said  A.  B.  will,  during  a  term  of years 

•..'rom  date  hereof,  dwell  with,  faithfully,  per- 
fectly, and  truly  keep  the  books  and  accounts  of, 
and  diligently  serve  said  C.  D. 

That  said  A.  B.  will  perform  the  reasonable  di- 
rections of  said  C.  D.,and  from  time  to  time, 
during  said  term,  upon  request,  make  and  deliver 
him  a  complete  and  perfect  account,  in  writing, 
of  all  money  received  and  paid  out,  and  of  ell 
goods  and  commodities  which  he  shall  at  any 
time  during  said  term  receive  or  deliver  on  ac- 
count of  said  C.  D. 

That  said  A.  B.  will  pay  said  C.  D.  all  such 
sums  of  money  received  and  due  from  the  footing 
of  every  account. 

That  said  A.  B.  will  not  disclose  any  of  the  se- 
crets of  his  employment  or  business,  nor  matter 
concerning  the  business  of,  or  to  the  prejudice  of 
said  C.  D.,  nor  of  his  correspondence  to  any  per- 
son whomsoever. 

That  said  A.  B.  will  not  destroy,  embezzle,  or 
w^aste  any  of  the  goods,  moneys,  or  effects  of  said 
C.  D.  or  of  any  other  person  intrusted  to  his  care. 

That  said  A.  B.  will  not  correspond  with  any 
person  corresponding  with  his  said  employer, 
nor  use  any  traffic  or  dealing  for  himself  or  any 
other  person,  or  carry  on  or  be  interested  in  any 
other  business  or  trade  whatsoever,  without  the 
consent  of  the  said  C.  D.,  in  writing. 

That  said  A.  B.  will  not  deliver  upon  credit  any 
of  the  goods,  merchandise,  or  moneys  of  said  C. 
D.,  or  any  of  his  correspondents,  to  any  person 
or  persons  whomsoever,  without  the  express  con- 
sent of  said  C.  D. 

That  said  C.  D.,  in  consideration  of  said  ser- 
vices, shall  pay  said  A.  B.  the  yearly  sum  of 

dollars,  in  equal  payments,  on  the  days  follow- 
ing, viz.: 

That  said  C.  D.  shall,  in  further  consideration 
of  said  services,  during  said  time,  provide  said  A. 
B.  with  sufficient  and  suitable  board,  lodging,  and 
washing. 

In  %vitness  ^whereof,  etc. 

Contract— Employment. 

To  Cultivate  Land  on  Shares. 

This  agreement,  etc.,  witnesseth  : 

That  said  A.  B.  will,  on  or  before  the day 

of ,  break,  properly  fix,  and  sow  with ,  all 

that  twenty  acres  of  field  belonging  to,  and  lying 
immediately  north  of  the  dwelling-house  and 
garden  of  said  C.  D.,  in  the  town  of . 

That  one-half  of  the  seed  wheat  shall  be  found 
by  said  C.  D. 

That  when  said  crop  shall  be  in  fit  condition, 
he  will  cut,  harvest,  and  safely  house  it  in  the 
barn  of  said  C.  D. 

That  he  will  properly  thresh  and  clean  the  same. 

That  the  straw  shall  be  equally  divided  between 
the  parties. 

That  he  will  deliver  one-half  of  said  wheat,  be- 
ing the  produce  thereof,  to  said  C.  D.,at  the  gran- 
ary near  his  dwelling-house,  on  or  before  the 

day  of . 

That  said  A.  B.  shall  perform  all  the  work  and 
labor  necessary  in  the  premises,  or  cause  the 
same  to  be  done. 

In  'Witness,  etc. 

Contract — Employment. 

Clerk  or  Workman. 
This  agreement,  etc.,  witnesseth ; 


That  said  A.  B.  shall  enter  the  servica  of  C.  D. 

as  clerk  (4)r  journeyman). 

That  said  A.  B.  shall  faithfully,  honestly,  and 
diligently  perform  the  duties  of  a  clerk  (to-  jour- 
neyman; in  the  store  {o>- shop;  of  said  C.  D.,  and 
well  and  truly  obey  all  the  reasonable  commands 

and  wishes  of  said  C.  D.,  during  the  space  of 

from  this  date. 

That  he  will  guard  the  interests  and  keep  the 
secrets  of  his  employer,  absenting  himsen  only 
upon  said  employer's  consent. 

That  said  C.  D,,  in  consideration  of  said  ser- 
vices, will  feed,  clothe,  and  care  for  said  A.  B., 
and  pay  him  a  yearly  sum  of  five  hundred  dollars, 
in  equal  quarterly  payments,  on  the  first  days  c  f 
January,  etc. 

In  witness  whereof,  etc. 

Contract— Employment. 

Engraving  Set  0/  Cuts,  etc. 

This  agreement,  etc.,  witnesseth  : 

That  said  A.  B.,  for  the  consideration  hereinaf- 
ter mentioned,  shall,  on  or  before  the day  of 

• next,  at  his  own  cost  and  expense,  provide 

good  and  suitable  material,  and  engrave  thereon 
(itiile  what,  item  by  item). 

That  said   A.   B.  shall   finish  and  deliver  said 

cuts,   in  the   order  designated,  within  days 

next  after  every  notice  given  for  the  delivery  of 
tlie  same. 

That  said  C.  D.,  in  consideration  thereof,  shall 

pay  said  A.  B.,  upon  the  delivery  of  every 

cuts,  the  sum  of dollars. 

In  witness,  etc. 

Contract — Employment. 

Engraving  Steel  Plates. 

This  agreement,  etc.,  witnesseth  : 

That  said  A.  B.,  for  the  consideration  hereafter 

specified,  shall  provide good  and  perfect  steel 

plates,  and  will  engrave  thereon  (state  what),  ac- 
cording to  the  plans,  specifications,  and  drawings 
hereunto  annexed. 

That  he  will  complete  and  finish  the  same  in  a 
workmanlike  manner,  and  deliver  them  to  said 
C.  D.,  on  or  before  the day  of . 

That  in  consideration  thereiGr,  said  C.  D.  shall 
pay  to  said  A.  B.,  upon  the  delivery  of  said  en- 
graved plates,  and  all  of  them,  the  sum  of  

dollars,  in  full  payment  and  satisfaction  therefor. 

In  witness  whereof,  etc. 

Contract — Employment. 

Freighting  Ship  pr  Vessel. 

This  agreement,  made  this day  of ,  be- 
tween A.  B.  &  Co.,  factors  and  commission  mer- 
chants, of  the  city  of ,  of  the  first  part,  and 

C.  D.,  owner  and  master  of  the  sloop  (or  canal 
bo.at)  Empire,  of  the  second  part,  witnesseth  : 

That  said  party  of  the  first  part  shall  load  and 
freight  said  sloop 'or  canal  boat)  during  the  ensuing 

season  of  navigation,  to  commence  on  the  

day  of next. 

That  said  sloop  (orcs.m\  boat)  shall  be  in  readi- 
ness to  receive  her  first  lading,  at  the  dock  of  said 

party  of  the  first  part,  at  slip  No. ,  in  the  city 

of ,  aforesaid,  on   the   last   named   date,  and 

thereafter  on  her  upward  trips  from to , 

and  on  her  return  trips  from to . 

That  said  party  of  the  first  part  will  pay  said 
party  of  the  second  part,  for  carrying  the  same, 
on  the  delivery  of  each  and  every  cargo  in  safe 
and  sound  condition,  the  following  rates  of  com. 
pensation : 

For  down  freight. 

Coal, dollars  per  ton. 

Dry  goods, dollars  per  hundred. 

Grain, dollars  per  hundred. 

Household  furniture, dollars  per  hundred. 

Salt, dollars  per  barrel. 

For  up  freight. 

Butter, dollars  per  firkin. 

Grain, "  "    hundred. 

Flour,  "  "    barrel. 

Hay,     "  "    bale. 

Wood  and  willow  ware,  dollars  per  hun- 
dred. 

That  said  party  of  the  first  part  shall  deliver 
all  lading  and  freight  to  the  party  of  the  second 
part,  at  his  sloop  {or  ca>^l  boat). 


34« 


CONTRACTS. 


That  said  party  of  the  first  part  shall  not  at  any 
time  require'  said  party  of  the  second  part  to 
carry  or  convey  on  his  sloop  yor  canal  boat)  any 
timber  or  lumber  fstaves  and  headings  excepted), 
carts,  cars,  or  vehicles  of  any  description,  nor 
any  horses,  mules,  cattle,  swine,  sheep,  or  ani- 
mals of  any  description  whatever. 

That  said  party  of  the  second  part,  in  consider- 
ation of  the  premises,  shall  safely  carry  all  such 
lading  and  freight  as  he  shall  receive  from  said 
party  of  the  first  part,  and  deliver  them  in  as 
good  and  sound  condition  as  received,  according 
to  the  respective  bills  of  lading  furnished  him  by 
said  party  of  the  first  part. 

■  That  said  party  of  the  second  part  shall  pay  all 
C03ts  and  charges  of  transportation,  including 
toll,  towage,  wharfage,  etc. 

That  said  party  of  the  second  part  shall  dis- 
charge all  lading  and  freight  on  the  dock  at  his 
,0^vn  cost  and  charge. 

That  said  party  of  the  second   part  shall  ply 

regularly  between  and  ,  with  his  said 

sloop  {or  canal  boat)  during  the  entire  season  of 
navigation  above  mentioned,  and  will  not  occupy 

more  than days  in  making  either  an  upward 

or  downward  trip,  unless  hindered  or  delayed 
by  unavoidable  accident. 

In  witness  whereof,  the  parties  have  hereunto 
affixed  their  names  the  day  and  year  first  above 
written.  A.  B.  &  Co. 

Executed  in  presence  of  )  C.  D. 

W.  T.,N.  S.  I 

Contract— Employment. 

Freighting  Vessel,  etc. 

This  agreement,  etc.,  witnesseth  : 

That  said  A.  B.,  for  the  consideration  hereinaf- 
ter mentioned,  shall,  with  all  expedition,  forth- 
with make  ready  his  vessel,  v.,  and  provide  ths 
same  in  all  respects  for  a  voyage  to  P.,  and  shall 
receive  on  board  the  same,  for  said  C.  13.,  the  fol- 
lowing goods:  (niuning tliem). 

That  said  A.  B.  shall,  within    days   from 

date  hereof,  sail  from  this  port  outwards  (the 
weather  serviiis;),  and  directly  to  P. 

That  within days  after  said  vessel's  arrival 

at  v.,  said  A.  B.  shall  unlade  and  deliver  said 
goods  unto  the  factors  of  said  C.  D. 

That  the  dan-^ers  of  sea,  public  enemies,  and 
restraint  of  foreie;n  powers,  only  are  excepted. 

That  said  C.  D.,  in  consideration  thereof,  shall 
pay  unto  said  A.  B.,  for  freight  of  said  goods,  at 
the  rate  of dollars,  upon  delivery  and  dis- 
charge of  the  si  Tie  at  V.,  as  aforesaid,  together 
^with  the  accustomed  average  primage,  and  two- 
thirds  of  all  port  charges  to  grow  due  during  said 
voyage,  the  other  third  part  to  be  paid  by  said 
A.  B. 

In  witness,  etc. 

Contract — Employment. 

Furnace  Manager. 

This  agreement,  etc.,  witnesseth  : 

That  said  A.  B.,  for  the  consideration  herein- 
after mentioned,  covenants  and  agrees  well,  truly, 
and  faithfully  to  serve  said  C.  D.,  and  his  legal 
representatives,  at  his  furnace  in ,  as  his  book- 
keeper, manager,  and  overseer,  in  which  occupa- 
tion he  is  skilled,  from  the  day  of unto 

the day  of . 

That  during  said  term  said  C.  D.  will,  at  all 
times,  be  ready  to  render  just  and  true  accounts 
•fall  work,  matters,  and  things  which  have  been 
Itr  shall  be  done  or  performed  at  the  furnace 
aforesaid. 

That  during  said  term  said  C.  D.  will  not  wil- 
•filUy  neglect  or  depart  from  said  service  or  em- 
ployment, nor  do,  suffer,  or  consent  to  any  act  or 
thing  to  the  prejudice  of  said  A.  B.,hi8  interests, 
or  said  furnace,  whatever. 

That  he  will  order  and  direct  all  workmen,  ser- 
vants, and  persons  employed  in  and  about  said 
furnace,  in  their  duty,  service,  and  work,  to  the 
utmost  of  his  ability,  knowledge,  and  skill,  and 
for  the  greatest  advantage  and  profit  of  said 
A.  B. 

That  in  consideration  thereof,  the  said  A.  B. 
will  pay  said  C.  D.,  for  his  service  during  the  term 
aforesaid,  the  sum  of dollars,  as  follows,  etc. 


That  said  A.  B.  will  find  and  provide  said  C 
D.  with  sufficient  meat,  drink,  washing,  ant 
lodging,  during  said  term. 

That  said  A.  B.  will,  at  his  ov«rn  cost  and  charge 
supply  said  C.  D.  with  all  things  necessary  foi 
carrying  on  the  work  of  said  furnace. 

In  witness,  etc. 

Contract — Entployment. 

Milluiright,  Carpenter,  etc. 

This  agreement,  etc.,  witnesseth  : 

That  said  A.  B.  shall,  for  a  term  of yeari 

from  date  hereof,  work  as  journeyman,  and  well 
and  truly  serve  the  said  C.  D.,  in  the  business  of 
carpenter,  joiner,  and  millwright,  and  in  all  such 
other  capacities  and  work  as  he,  the  said  A.  B., 
shall  be  in  anywise  capable  of  doing  or  perform- 
ing, during  the  time  aforesaid,  and  that  to  his 
best  ability,  judgment,  and  knowledge  therein. 

That  during  the  continuance  of  said  term  said 
A.  B.  shall  yearly  work  and  perform  the  trade 
and  business  aforesaid  for  said  C.  D.,  as  follows  : 
From  the  22d  of  March  unto  the  22d  of  Septem- 
ber, from  the  hour  of  six  in  the  morning  until  the 
hour  of  six  in  the  evening;  and  from  the  22d  of 
September  unto  the  22d  of  March,  from  daylight 
unto  sundown.  Christmas,  New  Year's,  fourth 
of  July,  days  of  national  fast  and  thanksgiving 
and  public  service,  Sundays,  and  the  usual  hours 
for  breakfast,  dinner,  and  supper  excepted. 

That  said  A.  B.  will  in  nowise,  during  the  term 
aforesaid,  absent  himself  from  the  service  of  saici 
C.  D.,  nor  do,  perform,  or  work  any  of  said  trade 
or  business  for  the  use,  interest,  or  benefit  of  any 
other  person  or  persons  other  than  said  C.  D. 

That  said  C.  D.  shall  pay  said  A.  B.  therefor  the 

sum  of dollars  per  month,  payable  (monthly 

on  the  first  day  of  each  month,  or  weekly,  at  tlic  eiiO 
of  each  week). 

That  said  C.  D.  shall  provide  said  A.  B.  wit'r. 

suitable  food   and  lodging  {or  in  lieu  thereof, 

dollars  per  week  for  the  same). 

In  witness,  etc. 

Contract — Employment. 

Ship  Owner  and  Surgeon. 

This  agreement,  etc.,  witnesseth  : 

That  said  A.  B.,  for  the  consideration  hereinaf- 
ter  mentioned,  shall,  during   the  voyage  of  the 

s'nip  S.  from to  and  return,  and  during 

her  continuance  at  all  ports  and  places  until  the 
termination  of  said  voyage,  administer  and  apply 
unto  said  C.  D.,  the  master  of  said  ship,  and  all 
the  crew,  company,  and  passengers  of  said  vessel 
who  shall  be,  or  shall  be  taken  on  board  thereof 
during  said  time,  all  such  medicines,  physic,  and 
surgery  as  shall  be  proper  and  necessary,  acccru- 
ing  to  the  best  of  bis  skill  and  knowledge. 

That  said  C.  D. ,  in  consideration  thereof,  shall 
fully  provide  the  ship's  medicine  chest  with  all 
necessary  drugs,  medicines,  and  instruments  of 
surgery,  at  his  own  cost  and  expense. 

That  said  C.  D.  will  furnish  said  A.  B.  with  all 
necessary  provisions,  lodging  in  the  cabin  of  said 
ship,  and  all  other  accommodations  for  his  pas- 
sage in  said  vessel  during  said  voyage,  at  his  own 
cost  and  expense. 

That  said  C.  D.  will  pay  said  A.  B. dollar' 

per  month  during  said  voyage,  for  said  services. 

In  witness,  etc. 

Contract— norse-Racing;. 

Horse  Race. 

This  agreement,  etc.,  witnesseth  : 

That   A.  B.  shall,  on   the  day  of next. 

with  a  black  gelding  belonging  to  E.  F. ,  and  com- 
monly known  as  B.  G.,  whether  sick  or  well,  run 

the  five-mile  race  course  at ,  against  the  gray 

gelding  belonging  to  G.  H.,  and  commonly  knowt 
as  G.  G. 

That  C.  D.  shall,  on  the  day  of— — ,  afore- 
said, with  said  gray  gelding,  whether  sick  or 
v^^ell,  run  said  five-mile  race  course  against  said 
black  gelding. 

That  said  horses  shall  each  be  (ridden  cr)  driven 
in  '.saddle,  harness,  etc.,  as  the  case  may  be). 

That  if  said  black  gelding  comts  first  to  the 
end  of  said  course,  according  to  the  judgment 
of  t^vo  disinterested  persons,  selected  one  by  e"'''' 
of  said  parties  running,  for  that  purpose,  thar 


CONTRACTS. 


247 


said  C.  D.  shall  pay  said  A.  B.  Bve  hundred  dol- 
lars. 

That  if  said  gray  gelding  comes  first  to  the  end 
of  said  course,  according  to  such  judgment  afore- 
said, then  said  A.  B.  shall  pay  unto  said  C.  D.  the 
sum  of  four  hundred  dollars. 

That  said  stakes  shall  be  deposited  in  the  hands 

of  I.  K.  (of ),  to  be  paid  to  the  winning  party 

according  to  this  agreement. 

That  if  any  failure  shall  be  made  in  either  of 
said  horses  running  as  aforesaid,  the  party  under- 
taking  for  said   horse   shall  forfeit  and  pay  the 

sum  of dollars  '.or  lose  his  wager,  and  the  whole 

of  baid  wager  shall  be  paid  to  the  other  of  them,  as  if 
iuch  horse  had  actually  run  and  lost). 

In  witness,  etc. 

Con  1  ract — llorse-racing^. 
Rules  and  Subscriptions. 

We,  whose  names  are  hereunto  subscribed,  ir> 
order  to   encourage   a   friendly   meeting  of   the 

gentlemen   of  the   county   of  ,  and   also   the 

breed  of  good  horses,  have  severally  agreed,  and 

by  these  presents  do  this day  of ,  to  and 

with  each  other  as  follows  : 

That  on  or  before  the  day  of next  a 

{state  the  article  to  be  run  for)  shall  be  provided 
according  to  subscriptions  hereunder  written  by 
A.  B.  as  stakeholder  or  steward,  etc.,  or  his  chosen 
representatives  in  this  behalf,  to  be  run  for  on  the 

course   at  by  any  horse,  mare,  or  gelding 

whatsoever  that  shall  be  entered  for  that  purpose 
(except  such  horse,  mare,  or  gelding  as  have  won  above 

the  value  of  said at  any  one  time),  and  that  every 

such   horse,  mare,  or  gelding  shall,  etc.   (run  in 

harness,  wagon,  carry pounds  weight,  etc.,  stating 

conditions,  if  any). 

Acceptance  and  entries  for  race.  That  no  person 
shall  run  any  horse,  mare,  or  gelding  for  said  (here  de- 
scribe the  stake  to  be  run  for)  that  has  not  actually  and 
bona  fide  been  his  own  for  two  months  next  before  the 
time  of  running. 

That  no  horse,  etc.,  shall  nin  for  said  {stake')  whose 
size,  color,  or  mark  and  name  (if  any),  together  with 
the  name  of  the  owner,  shall  not  be  entered  with  the 
stakeholder  (steward!,  or  his  representative,  in  a  book 
or  paper  which  shall  be  kept  for  that  purpose,  and  such 
entry  to  be  made  at  the  request  of  the  owner  or  his 

agent  for  that  purpose,  on  the  day  of next, 

between  the  hours  of  eight  o'clock  in  the  forenoon  and 

six  o'clock  in  the  afternoon,  at in  said  county,  at 

which  time  and  place  every  horse,  etc.,  shall  he  shown, 
or  will  otherwise  be  excluded  from  all  benefit  of  said 
{stake). 

That  for  the  entry  of  every  horse,  etc.,  shall  be  paid 
to  the  stakeholder  (steward),  or  his  representative  in 

this  behalf,  the  sum  of dollars  if  a  subscriber,  and 

the  sum  of dollars  if  not  a  subscriber  (such  moneys 

to  be  wholly  used  and  contributed  towards  said  {stake), 

and  also   the   additional   sum  of to  the  clerk  for 

making  said  entries. 

Construction  of  this  agreement.  That  if  any 
difference  shall  happen  to  arise  about  the  true  meaning 
of  this  agreement,  or  any  part  thereof,  the  same  shall  be 
determined  by  the  majority  of  thfe  subscribers  then 
present,  whose  determination,  in  writing  or  otherwise, 
shall  be  conclusive  and  final. 

Costs  and  expenses.  That  the  stakeholder  (or 
steward)  or  his  represent.itive  aforesaid,  shall  before 

said day  of ,  put  the  course  and  posts  in  good 

and  sufficient  repair,  and  upon  proper  vouchers  or  re- 
ceipts for  the  same  may  deduct  the  charge  thereof  out 
of  such  moneys  as  he  shall  receive  towards  providing 
the  said  (stake),  together  with  the  charge  of  giving 
notice  thereof  in  the  newspapers,  and  all  other  charges 
relating  to  the  same. 

Distancing.  That  if  any  horse,  mare,  or  gelding 
shall  be  distanced  at  any  one  of  the  said  three  heats, 
such  horse,  etc.,  shall  not  be  allowed  to  run  again,  nor 
the  owner  thereof  have  any  benefit  of  said  (stake).  If 
any  horse,  etc.,  shall  happen  to  distance  all  the  rest, 
then  the  owner  of  said  horse,  etc.,  shall  have  said 
[stake)  without  any  more  riding,  if  any  horse,  etc., 
who  shall  win  two  heats,  and  shall  not  be  distanced  the 
third  heat,  the  owner  of  such  horse,  etc.,  shall  have  the 
said  (stake). 

Heats.  That  said  (article  to  be  run  for)  shall  be 
won  by  running  the  best  of  three  heats  on  said  course 
(«ach  heat  being  three  miles  or  thereabouts,  as  said 


course  is  now  laid  out),  and  that  half  an  hour  shall  be 
allowed  to  refresh  said  horses  between  each  heat. 

That  if  three  several  horses,  mares,  or  geldings  shall 
in  running  for  said  (stake)  each  win  a  heat,  such  three 
horses,  etc.,  only  shall  be  allowed  to  run  the  fourth  heat, 
and  such  horse,  etc.,  winning  the  fourth  heat  shall  be 
deemed  the  winning  horse,  and  the  owner  thereof  shall 
win  the  (stake). 

That  the  owner  of  any  horse,  mare,  or  eelding  that 
shall  run  for  said  fourth  heat  may  choose  a  judge,  trier, 
or  umpire  (such  judge,  trier,  or  umpire  not  betting  on 
either  side)  to  judge  which  horse,  etc.,  comes  first  to  the 
distance  and  ending  posts  :  providing  he  gives  the  name 
of  such  judge,  etc.,  to  the  stakeholder  (or  steward)  or 
his  representative  before  the  first  time  of  starting. 

Livery  and  keep  of  horses.  That  every  such 
horse,  mare,  or  gelding  shall   be  kept  in  the  city  (or 

town)  of aforesaid,  at  the  stables  of  such  persons 

only  as  shall  contribute  towards  said  (stake),  from  the 
day  of  entry  to  the  day  of  running. 

Riders  weighing.  That  every  person  that  shall 
ride  for  said  (stake)  shall  at  his  alighting  at  everj-  heat 
be  obliged  to  weigh  himself;  and  if  thereupon  he  lacks 
(or  exceeds)  weight,  or  refuses  to  weigh,  such  person, 
or  the  owner  of  such  horse,  etc.,  shall  lose  the  benefit 
of  said  (stake). 

Spurts.  That  if  any  horse,  mare,  or  gelding  that 
shall  run  for  said  (stake)  shall  run  on  the  wrong  side  of 
any  post,  etc.,  such  horse,  etc.,  shall  immediately  re- 
turn to  the  same  post,  and  run  as  he  should  have  done, 
or  shall  lose  the  benefit  of  said  (stake). 

Start.  That  all  horses,  mares,  and  geldings  shall  be 
obliged  to  start  between  the  hours  of  two  and  four 
o'clock  in  the  afternoon  ;  that  the  owner  of  such  horse, 
etc.,  that  is  not  ready  to  start  by  that  time  shall  lose  his 
benefit  and  share  in  said  (stake),  and  the  rest  of  the 
horses,  etc.,  may  start  without  him. 

That  notice  of  starting  every  time  shall  be  given  by 
drum,  horn,  trumpet,  whistle,  or  otherwise,  by  the  ap- 
pointment of  the  stakeholder  (steward)  or  his  repre- 
sentative. 


Subscribers' names.  I  $ 


Subscribers'  names.  I  $ 


Contract— Insurance. 

To  effect  or  procure  Insurance. 
See  title  Assignment,  post. 

This  agreement,  etc. ,  witnesseth : 

That  (stating  the  causes  that  make  insurance  neces- 
sary). 

That  said  A.  B.  will,  because  of  said  premises, 
insure  or  cause  the  same  to  be  insured  (in  such 
companies  as  said  C   D.  shall  designate). 

That  in  default  of  said  insurance,  on  or  after 

the  day  of ,  said  C.  D.  may  effect  the 

same  at  the  costs  and  expense  of  said  A.  B.  (and 
all  costs  and  charges  proper  and  necessary  in  effecting 
the  same,  together  with  interest  thereon  at  the  rate  of 

per  cent,  per  annum,  shall   be  a  lien   upon  and 

charge  against  said ,  to  be  included  in  and  become 

a  part  of  any  judgment  effected  against  the  same  by 
rpason  of  the  premises). 

In  witness,  etc. 

Contract— Insurance. 
Renewal  of  Policy. 

Insurance  Company  op . 

No. . 

In  consideration  of  the  sum  of dollars,  re- 
ceived of  A.  B.  as  premium  on  policy.  No. . 

for dollars,  the  same  is  continued  in  force  for 

the  term  of ,  from  the day  of ,  A.  D. 

,  at  noon,  until  the day  of ,  A.  D. , 

at  noon.  Ins.  Co., 

Dated .  By  C.  D. ,  Agent 

Con  tract— l.aw-Snlts. 
To  bear  Expenses  equally. 

This  agreeinent.  etc.,  witnesseth: 

That  A.  B.,  C.  D.,  and  E.  F.  are  about  to  com- 
mence an  action  for,  etc.  instating  the  grounds  ofUie 
contemplated  action),  against  G.  H.,  etc.  ;  or 

That  an  action  for  (stating  what)  has  been 
brought  against  A.  B.,  C.  D.,  and  E.  F.  by  G.  H., 
etc. 

That  each  and  every  one  of  said  (plaintiffs  or  de- 
fendants) shall  pay  his  equal  and  respective  tharv 
of  the  costs  and  charges  thereof;  »r 


M 


CONTRACTS. 


That  each  and  every  one  of  said  plaintifTs  '(or 
derendants)  shall  pay  his  full  and  proportionate 
■nare  oi  all  costs  and  charges  thereof,  such  share 
to  be  governed  by  the  proportion  of  his  respec- 
tive share  or  interest  in  the  amount  of  the  judg- 
ment recovered  by  or  rendered  against  said  par- 
Vies. 

to  witness,  etc. 

Contract— liRw  Suit. 

To  Bear  Expenses  Equally. 

This  agreement,  etc.,  witnesseth  . 

That  A.  B.  and  C  D  have  set  up  a  claim  to  a 
certain  tract  of  land,  founded  upon  the  entry  and 
survey  of  S.  R. 

That  the  bounds  and  limits  of  said  land,  by  vir- 
tue thereof,  appear  to  extend  to,  and  are  in  and 
upon  some  ot  the  respective  lands  of  E.  F.,  G. 
H..  and  I.  K.,  which  lie  adjacent  and  next  said 
survey. 

That  said  E  F.,  G.  H  ,  and  I.  K,  have  an  older 
and  better  title  thereto. 

Or,  That  the  lands  of  said  E.  F.,  G.  H  ,  and  I. 
K.  are  not  within  the  bounds  or  limits  of  said 
survey. 

That  by  reason  of  the  premises  an  action  or 
suit  is  likely  to  arise  and  be  instituted. 

That  if  any  action  or  suit  shall  be  commenced 
against  any  or  either  of  said  E.  F. ,  G.  H.  and  I .  K. , 
or  any  or  either  of  them,  at  any  time  or  times  here- 
after, then  each  and  every  one  of  them  shall  bear 
and  pay  their  respective  shares  and  parts  of  all 
costs  and  damages,  arising  by  reason  thereof. 

In  witness,  etc. 

Contracts  lieasln^. 
To  Aisign  Lease . 

This  agreement,  etc.,  witnesseth  : 

That  one  A.  B.,by  his  conveyance,  dated  the 

day  of ,  leased   unto  said  C.  D.  his , 

situated  in ,  and  described  as  follows,  to  wit. 

(describing  Ike  premises),  with  power  to  sub-let  or 
assign  said  premises  or  lease. 

That  said  C.  D.  shall,  on  or  before  the day 

of ,  at  the  costs  and  charges  of  said  E   F.,  by 

an  instrument  in  writing  (or  by  indorsement  upon 
said  lease),  assign,  transfer,  and  set  over  all  his 
btle  and  interest  in  and  rights  under  said  lease, 
to  said  E  F..  during  the  residue  of  the  term  of 
said  lease,  subject,  however,  to  the  rents,  cove- 
nants, and  agreements  therein  contained. 

That  said  E.F.,in  consideration  therefor,  shall, 
ttc.  (state  u/hat) 

In  witness,  etc. 

Contract— liCasingr. 

Of  Dwelling. 

See  Landlord  and  Tenant,  Lease,  post. 

This  agreement,  etc.,  witnesseth  : 

That  A.  B.  shall  let  unto  C  D.,  and  C.  D.  shall 
hire  of  A.  B. ,  a  certain  house  and  lot  of  ground,  sit- 
uated describe  /r^w/«fj'i,  for  oneyear  from  the  first 
day  of  April  next,  and  for  such  longer  time  after 
the  expiration  of  said  one  year  as  said  parties  shall 
agree,  and  until  the  end  of  three  months  after 
notice  shall  be  given  by  either  party  for  leaving 

said  premises,  for  the  yearly  rent  of dollars, 

payable  (monthly,  on  the  first  day  of  each  month,  or 
quarterly,  on  the  first  days  of  July.  October,  January, 
and  April). 

In  witness,  etc. 

Contract— liCasinisr. 

Of  Divellineand  Store. 

See  Landlord  and  Tenant,  Lease,  post 

This  agreement,  etc.,  \vitnesseth  : 

That  said  A.  B.  shall,  by  an  instrument  in  writ- 
ing, executed  on  or  before  the  day  cf 

next,  lease  to  said  C.  D.  the  store,  dwelling-house 

and  lot  numbered ,  on street,  in  the  town 

of ,  for  a  term  of years  from  thf  date  of  said 

lease,  at  the  yearly  rent  of dollars,  payable 

(monthly,  in  advance,  or  quarterly,  on  the  first  days 
of  January,  etc.,  of  each  year),  clear  of  all  taxes  and 
assessments. 

That  said  lease  shall  contain  covenants  on  the 
part  of  said  C.  D.,  or  his  representatives,  to  pay 
rent  (except  in  case  said  premises  are  destroyed  by  fire 
--reiit  is  to  cease  until  they  are  rebuilt),  and  all  taxes 
»nu  assessments,  to  keep  said  premises  in  good 
repair  (damages  by  fire  excepted),  not  to  carry  on  any 


offensive  business  upon  the  same,  and  to  peace- 
ably deliver  up  possession  of  said  premises  at 
the  expiration  of  said  term. 

That  said  lease  shall  also  contain  covenants  on 
the  part  ol  said  A.  B. ,  or  his  representatives,  for 
quiet  enjoyment ;  to  renew  said  lease  at  the  ex- 
piration of  the  term  aforesaid,  at  the  request  of 
said  C.  D.,  to  be  made  fifteen  days  prior  to  such 

expiration,  for  a  further  term  ox years ;  and 

that  in  case  said  premises  shall  be  destroyed  b> 
fire,  said  A.  B.  shall  forthwith  proceed  to  rebuild 
the  same. 

That  the  costs  and  charges  of  making,  execut- 
ing, and  recording  said  lease,  and  duplicate 
thereof,  shall  be  equally  borne  and  divided  b»*- 
tween  the  parties  to  this  agreement. 

In  witness  whereof,  etc. 

Contract— I^easlni^. 

Dzielling-Nouse  and  Furniture. 

This  agreement,  etc.,  ^vitnesseth  : 

That  said  A.  B.  shall,  for  the  consideration  here- 
inafter mentioned,  and  on  or  before  the day 

of next  ensuing,  lease   unto   said  C.  D.  the 

d'welling  and  premises  situate  in  ,  and  de- 
scribed as  follows  •  (describing  it  by  metes  and 
bounds,  or  number .  street,  etc.).  together,  also,  with 
the  use  of  all  and  singular  the  furniture  belonging 
to  said  dwelling,  comprised,  described,  and  men- 
tioned  in  the    schedule    hereunto   annexed  and 

signed  by  said   parties,  for  a  term  of ,  at  the 

yearly  rent  of dollars,  clear  from  all  taxes, 

rates,  and  assessments  whatever  (except  the  land 
tax). 

That  said  C.  D.  shall,  in  consideration  thereof, 
pay  said  yearly  rent  as  follows:  (stating  payments. 
etc  ) 

That  said  C.  D.   shall,  during  said  term,  bear 

and  pay  his  full  proportion  (of )  of  the  expense 

of  cleansing  and  keeping  in  repair  said  premises, 
the  common  sewer  or  drain  therefrom  unto  the 
street  adjacent,  and  keep  said  premises  and  fur- 
niture in  good  condition,  and  so  deliver  the  same 
at  the  expiration  or  sooner  determination  of  said 
term  (reasonable  wear  and  tear  only  excepted) 

That  said  C.  D.  shall  not,  during  said  term,  or 
his  occupancy  of  said  premises,  permit  or  suffer 
any  part  of  said  furniture  or  fixtures  to  be  re- 
moved therefrom  (except  for  repairs). 

That  said  C.  D.  shall  not  let  or  underlease  said 
premises  to  any  person  or  persons  vtrhatsoever, 
during  said  term,  without  the  consent  of  said  A. 
B.  having  first  been  obtained,  in  writing. 

That  said  premises  shall  not  be  used  during 
said  term  to  carry  on  the  trade  or  business  of  soap 
maker,  butcher,  etc.,  nor  for  the  sale  of  intoxicat- 
ing liquors,  etc.,  or  any  of  them,  or  any  noisome 
or  offensive  trade  or  business  whatsoever,  in, 
upon,  or  about  the  same. 

That  on  the  non-payment  of  any  of  said  rents, 
or  the  non-performance  or  violation  of  any  cove- 
nant or  provision  herein  contained,  said  A.  B.  may, 
upon days'  notice,  re-enter  and  possess  him- 
self of  £:!id  premises,  ard  from  the  gjods  and 
effects  of  said  C.  D.  therein  may  reimburse  him- 
self by  execution  or  order  of  sale  of  all  costs  and 
expenses  of  whatsoever  kind,  caused  by  virtue  of 
such  re-entry,  the  amount  of  which  may  be  in- 
cluded in  any  judgment  for  possession  of  said 
premises,  or  otherwise. 

That  said  C.  C  shall  have  quiet  enjoyment  of 
said  premises,  during  said  term,  upon  payment, 
as  aforesaid,  of  said  yearly  rent,  and  tho  observ- 
ance and  performance  of  the  agreements  and 
covenants  herein  contained. 

In  witness,  etc. 

Contract — lyodtrinyfi 

Housekeeper  and  Lodger. 
See  Landlord  and  Tenant,  Lease,  post. 

This  agreement,  etc.,  witnesseth  : 

That  said  A.  B.  has  let  to  said  C.  D.  the  entir* 
first  floor  and  one  room  in  the  attic  story,  ^vith 
the  use  of  the  offices,  and  of  the  yard  for  drying 
linen,  beating  carpets  or  clothes,  of  the  dwelling- 
house  No.  ,  on street,  in  the  city  of , 

for  a  term  of ,  from  date  hereof,  at  a  yearly 

rent  of dollars,  payable  mcnthly  (in  advatKc> 

to  said  A.  B. 


CONTRACTS. 


249 


That  at  the  end  of  said  term,  or  upon  default 
of  any  payment,  said  C.  D.  shall  deliver  up  to  said 
A.  B.,  or  his  legal  representative,  on  request,  the 
quiet  and  peaceable  possession  of  said  premises, 
and  leave  them  in  as  good  condition  as  when  he 
took  possession  thereof,  reasonable  >vear  (or  de- 
itruction  from  fire  or  inevitable  accident)  excepted. 

In  witness  whereof,  etc.  A.  B. 

C.  D. 
Con  tract— liOd  ^1  n  g^s. 
Housekeeper  and  Lodger. 

This  agreement,  etc.,  witnesseth  : 

That  said  A.  B.,  in  consideration  of  the  rents 

hereinafter  mentioned,  has  let  for  a  term  of 

from  date  hereof,  to  C.  D.,  two  rooms  up  ose  pair 
of  stairs,  in  the  front  part  of  the  dwelling-house 
of  said  A.  B. ,  situated  (describe  premises),  together 
with  the  furniture  at  present  standing  therein,  to 
v/iX.  (give  Hems  of  furniture ,  etc.) 

That  said  C.  D.,  in  consideration  thereof,  shall 

pay  said  A.  B.  the  yearly  rent  of dollars,  to 

be  paid  quarterly,  to  wit,  on  the  first  days  of 
January,  April,  July,  and  October. 

That  said  C.  D.,  at  the  end  of  said  term,  or  in 
case  of  any  default  in  payment,  shall,  at  the  re- 
quest of  said  A.  B.,  immediately  yield  and  deliver 
up  to  him  the  peaceable  and  quiet  possession  of 
the  said  room,  together  with  the  whole  furniture 
which  he  on  his  first  entrance  thereon  and  at  all 
times  thereafter,  of  said  A.  B.,  there  found  and 
possess  in  good  and  sufficient  condition  and  order, 
reasonable  wear  and  tear  only  excepted. 

In  witness,  etc. 

Contract — liodgrln^i^. 
Housekeef'er  and  Lodger. 

This  agreement,  etc.,  witnesseth : 

That  said  A.  B.  shall  let,  and  said  C.  D.  shall 
hire,  the  following  rooms  in  the  dwelling-house, 
situated  (describing  location),  to  wit  (designating 
them). 

That  said  rooms  shall  be  properly  lighted, 
heated,  and  supplied  with  hot  and  cold  water,  as 
follows : 

North  room. — Gas, burners,  capable  of  sup- 
plying   feet  per  hour. 

Heat,  by  register  (or  steam  apparatus)  capable 

of  supplying  from to  degrees  of  heat 

at  pleasure  and  continuously. 

Water,  washstand  (or  bath),  etc.,  in  abun- 
dance in  all  seasons,  hot  water  from a.  m. 

to p.  m. 

Etc.,  throughout  the  entire  suite. 

That  said  A.  B.  shall  paint  and  paper  said 
fooms  as  follows,  viz. 

That  said  A.  B.  shall  furnish  and  provide  all 

>vindows  and  hall-doors  of  said  rooms  with 

curtains,  wire  screens,  and  blinds. 

That  said  A.  B.  shall  provide  all  doors,  win- 
dows, and  blinds  with  safe  and  substantial  locks 
and  fastenings,  retaining  no  duplicate  keys  of  the 
same  ^vhatcver. 

(That  said  A.  B.  shall  furnish  said  rooms  as  follows  : 
describing  the /urniture  throughout  each  room.) 

That  said  A.  B.  shall  provide  a  private  bell  at 
the  main  entrance  of  said  building,  and  thereon 
furnish  facilities  for  the  engraved  name  of  said 
C.  D.  to  be  substantially  fixed. 

That  said  A.  B.  shall  at  all  times  keep  the  halls 
and  stairways  leading  to  said  rooms  comfortably 
and  neatly  furnished,  and  free  from  all  dirt  and 
dust,  and  odors  from  cooking,  laundry-work,  and 
all  and  every  impure  or  offensive  smell,  and  at  all 
times  to  keep  the  air  therein  fresh  and  pure,  and 
that  during  the  cold  and  chilly  seasons  of  the 
year  to  keep  the  same  warm  and  comfortable. 

That  said  A.  B.  shall  at  all  times  keep  the  front 
>valks,  gutters,  fences,  yard ,  lawn ,  railings,  shrub- 
bery, and  entrance  of  said  dwelling  clean  and 
■wholesome. 

That  said  A.  B.  shall  at  all  times  neither  permit 
nor  alIo%v  any  unwholesome  accumulation  of 
refuse,  or  rubbish,  garbage,  or  decaying  matter 
to  accumulate  or  remain  in,  about,  or  upon  said 
premises,  or  in  any  manner  suffer  or  permit  any 
uncleanness  or  noisome  or  unwholesome  odors 
to  pervade  said  premises  by  reason  thereof. 

That  said  A.  B.  shall  deliver  or  cause  to  be  de- 
Bvered  at  said  rooms  all  and  every  card,  message. 


letter,  paper,  parcel,  package,  or  other  thing  left 
to  the  address  of  said  C.  D. ,  or  any  member  of  his 
household,  guests,  visitors,  or  servants,  forth- 
with, and  without  delay,  and  without  disturbing, 
going  through,  or  molesting  the  same. 

That  for  any  violation  or  material  omission  in 
providing  all  things  herein  agreed  by  said  A.  B., 
of  this  agreement,  said  A.  B.  shall,  upon  notice  in 
writing,  make  complete  reparation,  and  in  addi- 
tion pay  said  C.  D.  double  the  amount  of  injury 
sustained  by  reason  thereof;  or  the  same  shall 
thereafter  be  retained  out  of  the  rents  hereinafter 
mentioned. 

That  in  case  of  controversy  over  the  amount 
of  injury  sustained,  or  any  part  of  this  agreement 
omitted,  then  said  A.  B.  and  C.  D.  may  each  of  . 
them  choose  one  disinterested  person,  who  may 
select  a  third,  the  decision  of  which,  or  any  two 
of  them,  shall  in  such  matter  be  binding  and  final. 

That  if  said  A.  B.  shall  fail  to  designate  such 
person,  then  the  one  selected  by  said  A.  B.  shall 
select  another  in  the  same  manner  and  with  like 
effect  as  said  A.  B.  should  have  done,  and  there- 
after proceed  in  like  manner  and  with  like  effect 
as  aforesaid. 

That  said  C.  D.  shall  in  consideration  thereof 
pay  said  A.  B.  the  yearly  rent  of dollars,  pay- 
able (monthly,  or  quarterly,  in  advance,  or  other-wise) 
as  follows,  etc. 

In  witness,  etc. 
Contract— Manufacturers  and  A^rents, 

etc. 

Between  Manufacturer  and  an  Agent,  Broker,  Facter, 

or  ComtnissioH  Merchant. 

This  agreement,  etc.,  witnesseth  : 

That  said  A.  B.,  In  consideration  of  the  cove- 
nants and  agreements  hereinafter  entered  into 
by  said  C.  D.  &  Co.,  shall  act  as  agent  or  factor, 
etc.,  for  said  C.  D.  &  Co.,  and  their  survivors,  in 

the  selling,  vending,  etc.,  at ,  in ,  for  the 

term  of years  from  the  date  hereof,  as  here- 
inafter provided. 

Conducting  Business. 

That  said  A.  B.  shall  carefully  deposit  and  preserve, 
in  the  shop  or  warehouse  for  the  time  being  made  use 
of  for  the  purpose  of  said  agency  business,  all  such 
goods,  wares,  and  merchandise  as  may  be  sent  or  trans- 
mitted to  him  by  said  C.  D.  &  Co. 

That  in  managing  and  conducting  said  ap^enry  said 
A.  B.  shall  use  his  best  endeavors  and  skill  to  procure 
the  greatest  possible  sale  of  instate  the  kind  of  goods), 
and  all  other  goods  which  he  shall  be  employed  to  sell 
as  such  agent  or  factor,  etc.,  either  for  ready  money,  or 
to  persons  of  responsibility  and  substantial  credit. 

That  in  selling  upon  credit  said  A.  B.  shall  be  circum- 
spect and  cautious,  and  malce  due  inquiries  from  reliable 
and  respectable  persons,  whether  such  persons  applying 
for  credit  are  solvent  and  fit  to  be  trusted. 

That  said  A.  B.  shall  not  give  credit  to  any  person  or 

persons  for  a  greater  length  of  time  than ,  without 

the  consent  of  said  C.  D.  &  Co.,  or  their  survivors,  in 
writing. 

That  said  A.  B.  shall   not,  without  like  consent,  sell 

to  any  person  on  credit  to  a  greater  amount  than 

dollars. 

That  said  A.  B.  shall,  in  conducting  said  agency, 
conform  to  and  govern  himself  by  such  orders,  instruc- 
tions, and  directions  as  he  may  from  time  to  time  re- 
ceive from  the  said  C.  D.  &  Co. 

That  said  A.  B.  in  all  cases  where  he  shall  receive  no 
special  orders  or  directions  shall  act  in  such  manner  as 
be  shall  judge  most  to  the  advantage  of  said  C.  D.  & 
Co.,  etc. 

That  said  A.  B.  shall  from  time  to  time  account  for 
and  transmit  to  said  C.  D.  &  Co.  all  moneys,  bills,  and 
securities  for  money  received  from  the  sale  of  said 
goods. 

That  said  A.  B.  shall  keep  books  of  account  in  which 
shall  be  made  correct,  customary,  and  plain  entries  of 
all  goods  received  from  said  C.  D.  &  Co.,  of  all  goods 
sold,  to  whom,  and  whether  for  cash  or  credit,  and  like- 
wise of  all  other  matters  and  things  as  in  anywise  con- 
cern said  agency  business. 

That  said  A.  B.  shall  carefully  preserve  all  said  books 
of  account,  books,  documents,  papers,  and  writings  in 
anywise  concerning  said  agency  business  (in  a  fire-proof 

safe,  by  said to  be  provided),  and  upon  the  final 

adjustment,  settlement,  and  close  of  said  agency  busi- 


99» 


CONTRACTS. 


•ess  shall  deliver  und  gire  tip  said  books,  etc.,  un- 
injured, undefacedy  and  unobliterated  to  said  C.  D. 
&Co. 

That  said  A.  B.  shall  from  time  to  time  on  the  first 
day  of  each  and  every  month,  send  and  transmit  to 
said  C.  D.  &  Co.  a  full,  clear,  and  correct  statement  in 
writing  of  all  orders  both  taken  and  executed,  of  all 
goods  received,  of  all  goods  sold,  to  whom  and  whether 
lor  cash  or  credit,  and  likewise  of  all  other  matters,  trans- 
actions, and  thinfs  as  In  anywise  concern  said  agency 
business,  and  which  shall  have  transpired  during  the 
preceding  month. 

That  said  A.  B.  shall,  on  the  day  of  each  and 

every  year  (unless  either  of  said  days  shall  be  Sunday, 
and  in  that  case  on  the  day  following)  take  stock,  make 
an  inventory  of  all  stock,  etc.,  on  hand,  and  accurately 
cast  up  all  books  of  account,  so  that  the  state  and 
condition  of  said  agency  business  shall  clearly  appear 
therefrom . 

That  said  A.  B.  shall,  out  of  the  commission  (salary, 
or  wages)  hereinafter  agreed  to  be  paid  him,  find  and 
provide  a  clerk  who  writes  a  good  hand,  and  under- 
stands accounts  and  book-keeping,  for  the  purpose  of 
constantly  assisting  him  in  the  management  of  said 
agency  business. 

That  said  A.  B.  shall,  out  of  said  commission  (salary, 
or  wages)  aforesaid,  find  and  provide  a  porter  for  the 
purpose  of  assisting  him  in  said  business. 

That  said  C  D.  &  Co.,  or  any  of  them,  .shall  at  all 
seasonable  hours  of  the  daytime  have  free  access  to  said 
hooks  of  account,  and  to  all  other  books,  papers,  docu- 
ments, and  writings  in  anywise  concerning  said  agency 
business,  and  to  take  copies  and  extracts  from  the  same 
or  any  of  them. 

Detertnination  of  Agency,  etc. 

That  in  case  said  A.  B.  shall  at  any  time  before  the 
expiration  of  said  term  of years  be  desirous  of  giv- 
ing up  said  agency  business,  he  shall  give  six  months' 
previous  notice  in  writing  of  such  intention  to  said  C. 
D.  &  Co.,  or  their  survivors,  to  be  left  at  their  (or  his) 
usual  places  of  abode. 

That  in  case  said  C.  D.  &  Co.  shall  at  any  time  before 

the  expiration  of  said  term  of years,  be  desirous  of 

withdrawing  said  agency  business  from  said  A.  B.,  they 
shall  give  six  months'  previous  notice  in  writing  of  such 
intention  to  said  A.  B.,  to  be  left  at  his  usual  place  of 
abode  (shop  or  warehouse). 

That  at  the  expiration  of  said  six  months  said  agency 
business  shall  be  determined  and  dissolved,  and  final 
settlement  and  transfer  of  all  remaining  goods,  moneys, 
securities,  etc.,  made. 

Expenses,  etc. 

That  all  expenses  relating  to  the  conducting  of  said 
business,  cost  of  carriage,  gas,  store,  and  water  rents, 
sprinkling  streets,  etc.,  shall  be  borne  as  follows,  viz. 
Losses. 

That  said  A.  15.  shall  not  be  answerable  for  any  loss 
or  damage  which  may  happen  any  goods  or  me;  chan- 
dise  sent  to  him  during  its  transit  and  before  it  shall 
come  to  his  care  and  custody,  nor  for  any  loss  or  dam- 
age which  may  happen  to  the  same  which  has  actually 
come  into  his  hands  and  custody,  and  which  shall  be 
sent  by  said  A.  B.  to  any  customer  by  any  of  the  usual 
means  of  delivery  or  otherwise,  unless  said  A.  B.  shall 
have  neglected  to  enter  in  the  proper  book  of  the  office 
the  company  or  carrier,  and  receive  his  receipt  upon  the 
delivery  of  such  goods  or  merchandise,  and  the  remedy 
against  the  proper  party  is  thereby  made  so  uncertain 
that  the  loss  cannot  be  remedied. 

That  for  any  other  loss  or  damage  which  may  happen 
•to  any  goods  or  merchandise  committed  to  his  charge  or 
care,  unless  such  loss  or  damage  be  the  result  of  or  hap- 
pens through  his  wilful  negligence  or  omission. 
Other  Agents  or  Factors,  etc. 

That  .said  C.  D.  &  Co.,  or  their  survivors,  shall  not 
employ  any  other  person  or  persons  as  an  agent  or 
factor,  etc.,  during  such  time  as  said  shall  act  as 

•gent  or  factor,  etc.,  aforesaid. 

Other  Business. 

That  said  A.  B.  shall  devote  his  whole  time  and 
attention  to  said  agency,  and  shall  not  engage  in  the 

business  of ,  or  in  any  other  business  whatsoever, 

either  on  his  own  account  or  as  an  agent  or  factor,  etc., 
and  either  alone  or  in  copartnership  with  any  person  or 
persons  whomsoever. 

Place  of  Business. 

Tiiat  said  A.  B.  shall  carr>-  on  and  conduct  said 


agency  business  at  the  (shop,  or)  warehouse  of  said  C' 

D.  &  Co.,  at ,  in  ,  or  in  such  other  (shop,  or 

warehouse,  in aforesaid,  as  they,  or  their  survivor? 

may  appoint  or  direct  for  that  purpose. 

Salary,  Commission,  or  Wages. 

That  said  C.  D.  &  Co.,  in  consideration  of  the  true 
and  faithful  performance  of  the  agreements  and  cove- 
nants entered  into  by  said  A.  B.,  shall  (yearly)  pay,  or 
cause  to  be  paid,  unto  said  A.  B  ,  the  following  salary 
or  wages  (or  commission),  viz.  :  (stating  wages, saiary, 
or  commission,  as  the  case  may  be). 
Stationery,  etc. 

That  said  C.  D.  &  Co.   shall   pay  said  A.  B.,  once 

every ,  all  such  sum  and  sums  of  money  as  he  may 

have  necessarily  paid,  laid  out,  and  expended  for  and  on 
account  of  stationery,  paper,  books,  copy  books,  files, 
letter  press,  postage,  etc.,  etc.,  made  use  of  in  the  said 
agency  business. 

In  witness,  etc. 

Contract— Itlannfactnrinip. 

This  agreement,  etc.,  witnesseth  : 

That  said  A.  B.  shall,  at  his  own  expense,  man- 
ufacture (slate  luhaf),  of  the  same  quality  of  mate- 
rial and  workmanship,  and  in  all  other  respects 
according  to  {name  the  pattern  agreed  upon  between 
said  parties)  the  description  and  design  hereunto 
annexed. 

That  said  A.  B.  shall  deliver  the  same  to  said 

C.  D.  at ,  on  the day  of (or months, 

or  weeks  herefrom). 

That  said  C.  D.,  in  consideration  thereof,  shall 

pay  said  A.  B.,  at  the  rate  of dollars  per  

(after from  the  delivery  thereof). 

That  all  not  manufactured  agreeably  to 

said  (pattern,  or)  description  and  design  shall  be 
rejected  by  said  C.  D.,  and  taken  back  by  said  A. 
B.,  who  shall  manufacture  a  like  quantity  agree- 
ably to  the  provisions  of  this  agreement. 

In  witness  whereof,  etc. 

C-oii  tract— 9Iaiiiiracturin{;. 
Barrels. 

This  agreement,  etc.,  witnesseth  : 

That  said  A.  B.,  for  the  consideration  hereinaf- 
ter mentioned,  shall  make,  or  cause  to  be  made, 
for  said  C.  D.,  at  the  cooper   shop  of  said  C-  D., 

in   the   town   of ,  two   thousand   good,  hard, 

well-seasoned  flour  barrels,  the  staves  and  head- 
ing to  be  of  white  oak  timber,  and  the  hoops  of 
black  ash,  either  round  or  square,  as  the  said  C. 

D.  shall  direct. 

That  the  materials  therefore  are  to  be  furnished 
by  said  A.  B.,  at  his  own  cost  and  charge. 

That  said  A.  B.  shall  have  the  free  and  uninter- 
rupted use  of  the  tools  in  said  shop,  without  pay- 
ing anything  for  the  same. 

That  in  consideration  thereof,  said  C.  D.  shall 
pay  said  A.  B.  the  sum  of  twenty-five  cents  each 
for  said  two  thousand  barrels,  as  follows: 

That  upon  the  completion  of  each  one  hundred 
barrels,  said  A.  B.  shall  receive  the  sum  of  twenty- 
five  dollars. 

In  witness  whereof,  etc. 

Contract— Manufactiiringr. 

Boots. 

This  agreement,  etc.,  witnesseth  : 

That  A.  B.  shall  within  (state  tvhat  time)  from 
the  date  hereof,  make  and  deliver  to  said  C.  D. 

ten  thousand  pair  of  boots,  from calfskin,  of 

the quality,  and  of  the  following  sizes:  (here 

giTe  the  sizes) . 

That  in  consideration  therefor,  said  C.  D.  shal! 

pay  to  said  A.  B. dollars  for  each  pair  of 

boots,  upon  the  completion  and  delivery  of  said 
ten  thousand  pairs,  if  the  same  shall  be  delivered 
within  the  time  aforesaid. 

In  witness  whereof,  etc. 

4'oiitract— ^fHiiiifactiiriiigr. 
Bricks. 

This  agreement,  etc.,  witnesseth  : 

That  said  A.  B.,  for  the  consideration  hereinaf- 
ter mentioned,  shall,  within  six  months  from  the 
date  hereof,  and  with  good  and  sufficient  mate- 
rials, make,  or  cause  to  be  made,  and  deliver  at 

,  in , thousand  hard,  well-burned,  and 

substantial  and  merchantable  bricks  (by  actua^ 
count),  of  the  grade  commcily  known  «9  -"-^ 
brick. 


CONTRACTS. 


2;\ 


That  said  brick,  when  burnt,  shall  all  and  every 
one  be  full  four  inches  broad,  eight  and  three- 
quarters  inches  long,  and  two  and  one-half  inches 
thick. 

That  said  A.  B.  shall,  at  his  own  costs  and 
charges,  deliver  in  such  parcels  and  quantities, 
from  time  to  time,  at  the  house  of  said  C.  D.  (or 

otherwise,  as  agreed),  in ,  as  the  same  shall  be 

demanded,  or  occasion  require,  for  carrying  on 
his  buildings  there. 

That  said  C.  D.,  in  consideration  thereof,  shall 

pay  to  said  A.  B. dollars  for  every  thousand 

of  said  bricks,  made  and  delivered  as  aforesaid, 
in  payments  as  follows :  {^giving  terms,  time,  and 
tntount  of  payments). 

In  \vitness,  etc. 

Contract— Manufacturing. 

Patented  Articles. 

This  agreement,  etc.,  witnesseth  : 

That  said  A.  B.  is  the  (inventor  and)  proprietor 
of  an  invention  for  {state  7v/int),  and  proprietor  of 
letters  patent  issued  therefor  by  the  United  States 
of  America,  bearing  date  the day  of . 

That  said  A.  B.,  u>r  the  consideration  hereinaf- 
ter mentioned,  does  hereby  give,  grant  and  trans- 
fer unto  said  C.  D.,  during  all  the  residue  of  the 

term  of years  yet  unexpired  (together  with  all 

such  future  terms  as  may  hereatter  be  granted,  by  virtue 
of  any  new  patent  or  renewal  of  said  patent  by  this 
agreement  sold,  or  otherwise),  full  authority  and 
power,  license  and  liberty,  truly  and  without  re- 
straint, to  make,  produce,  manufacture,  barter, 
sell,  and  convey  the  same,  by  wholesale  or  retail, 
within  the  following  territorial  limits,  to  wit  (de- 
scribe  territory). 

That  said  A.  B.  shall  not,  at  any  time  during  the 
residue  of  said  term,  or  any  such  future  term,  give, 
grant,  or  transfer  any  authority,  power,  license,  or 
fiberty  whatsoever  to  any  other  person,  to  make, 
manufacture,  produce,  barter,  sell,  and  convey 
the  said  articles,  in  any  manner  whatsoever, 
within  the  territory  aforesaid,  without  the  con- 
sent of  said  C.  D.,  in  writing. 

That  in  case  any  person  shall  infringe  said  let- 
ters patent,  or  in  any  manner  violate  any  right 
thereunder,  within  said  limits  (actually  or  con- 
structively), the  said  C.  D.  shall,  for  his  own  use 
and  benefit,  and  at  his  own  costs  and  expenses, 
prosecute  the  same  (if  necessary,  ni  the  name  of  said 
A.  B.),  to  final  judgment.  And  for  this  purpose 
said  A.  B.  hereby  constitutes  said  C.  D.  his  law- 
ful attorney,  irrevocably,  with  full  power  of  sub- 
stitution and  revocation,  hereby  ratifying  and 
confirming  all  things  which  he  may  lawfully  do 
in  the  premises. 

That  said  C.  D.,  in  consideration  thereof,  shall 

pay  unto  said  A.  B.  the  sum  of dollars,  in 

payments  as  follows,  etc. 

That  said  payments  shall  be  evidenced  by  the 
corresponding  number  of  promissory  notes,  in 
sums  equal  to  said  payments,  of  even  date  here- 
with, maturing  on  the  respective  days  of  pay- 
ment, and  bearing  interest  at  the  rate  of per 

cent,  per  annum,  from  maturity  until  paid. 

That  said  notes  shall  be  secured  by  a  mortgage 
on  (state  what). 

Or,  That  said  C.  D.,  in  consideration  thereof, 
shall  pay  unto  said  A.  B. per  cent,  of  the  re- 
tail price  of  all  said  so  manufactured,  bar- 
tered,  and   sold,  said   per   cent,  to   be   due   and 

vayable  on  the  days  of in  each  year,  at 

which  time  said  A.  B.  shall  render  an  account  of 

all  sales  and  transfers  made  during  the last 

oast. 

In  witness,  etc. 

Contract — 9fannfactnringp. 

Shoes. 

This  agreement,  etc.,  witnesseth  : 

That  said  A.  B.,  for  the  consideration  hereinaf- 
ter mentioned,  shall,  at  his  own  expense,  make 

and  manufacture,  and  deliver  at ,  on  or  before 

the day  of ,  for  said  C.  D., dozen  la- 
dies' shoes,  of leather,  of quality,  and 

according  to  the  samples  and  pattern  agreed  be- 
tween said  parties  and  in  sizes  from  3  to  7. 

That  said  C.  D.,  in  consideration  thereof,  shall 
pay  said  A.  B.  at  the  rate  of per  pair, days 


(or  months)  from  and  after  the  delivery  of  said 
shoes  as  aforesaid. 

That  if  any  of  said  shoes  shall  not  be  made  in 
conformity  with  said  pattern,  and  for  that  reason 
shall  be  rejected  by  said  C.  D.,  then  said  A.  B. 
shall  receive  and  take  back  the  same,  and  in  then 
stead  deliver  a  like  quantity  to  said  C.  D.  in  con- 
formity with  the  pattern  aforesaid. 

In  witness,  etc. 

Con  t  rnct— Obstructions. 

To  Window  Lights,  etc. 

This  agreement,  etc.,  witnesseth  : 

That  on  the  south  side  of  the  dwelling-house 

of  A.  B.,  situated  in  ,  in  ,  there  are  two 

ancient  window  lights. 

That  said  window  lights  have  been  totally  ob- 
structed by  a  dwelling-house  lately  erected  by  C. 
D.  upon  his  lands  adjoining  thereto. 

That  said    A.  B. ,  for  a  consideration   of . 

hereby  agrees  that  said  window  lights  shall  and 
may  forever  remain  obstructed  as  aforesaid,  here- 
by releasing  said  C.  D.  and  his  legal  representa- 
tives from  all  actions,  claims,  controversies,  de- 
mands, and  suits  whatsoever  on  account  thereof. 

In  witness,  etc. 

Contract — Partnership. 

General  Form. 

This  agreement,  etc.,  witnesseth  : 

That  said  A.  B.,  C.  D.,  E.  F.,  and  G.  H.  shall  as- 
sociate themselves  together  in  the  trade  of  buy- 
ing, wholesaling,  and  retailing  all  sorts  of  goodS) 
wares,  and  merchandise  belonging  to  the  trade 
and  business  of . 

That  said  partnership  shall  continue  from  the 
date  of  this  agreement  for  and  during  the  term 
of  ten  years  next  ensuing. 

That  to  this  end  and  purpose  the  said  A.  B.  has 
contributed  as  stock  the  sum  of  one  thousand 
dollars  ;  and  said  C.  D.  the  sum  of  one  thousand 
dollars  ;  and  the  said  E.  F.  the  sum  of  one  thou- 
sand dollars;  and  the  said  G.  H.  the  sum  of  one 
thousand  -JcUars,  to  be  used,  invested,  and  em- 
ployed in  common  between  them,  to  their  general 
advantage  in  the  management  of  said  business. 

That  said  parties  shall  not,  at  any  time  hereaf- 
ter, use,  follow, or  exercise  said  business  or  occu- 
pation, or  any  other,  during  said  term,  to  their 
private  benefit  or  advantage,  but  shall,  at  all 
times  during  said  term,  with  their  utmost  skill 
and  ability,  conduct  and  act  only  for  their  mutual 
advantage  with  said  stock  and  for  its  increase. 

That  said  parties  shall  discharge  all  rents  and 
expenses  of  said  business  equally  between  them. 

That  all  profit,  gain,  and  increase  that  shall 
arise  by  reason  of  said  joint  business  shall  be 
equally  divided  between  them,  share  and  share 
alike. 

That  all  losses  and  decrease  that  shall  happen 
in  said  business,  by  reason  of  bad  debts,  or  other- 
wise, shall  be  borne  and  paid  equally  between 
them,  share  and  share  alike. 

That  there  shall  be  kept,  during  said  term  and 
joint  business,  just  and  true  books  of  account, 
wherein  each  of  said  partners  shall  enter  and  set 
down  the  money  by  him  received  and  expended, 
the  goods,  wares  and  merchandise  by  him  bought 
and  sold,  and  all  other  matters  and  things  con- 
cerning said  partnership,  so  that  either  of  said 
partners  may  at  any  time  have  free  access  thereto. 

That  said  partners  shall,  once  every  three 
months,  upon  the  request  of  any  one  of  them, 
make  and  render  to  each  other,  or  his  legal  rep- 
resentatives, a  true  and  perfect  account  of  all 
profits  and  gains  by  them  made,  and  of  all  losses 
sustained ;  and  also  of  all  receipts,  disburse- 
ments, and  other  things  whatsoever  concerning 
said  partnership,  and  thereupon  shall  cancel,  ad- 
just, pay,  and  deliver  unto  each  other  their  equal 
shares  of  the  profit  so  made,  if  any. 

That  at  the  end  of  said  term  of  ten  years  (if  said 
partnership  be  not  sooner  determined,  in  which  case) 
the  said  partners,  or  their  survivors,  shall  make 
a  final  and  true  account  of  all  things  as  afore- 
said, and  in  all  things  well  and  truly  adjust  the 
same. 

That  upon  making  such  account  of  stock, 
goods,  wares,  and  merchandise,  and  the  profit. 


«s« 


CONTRACTS. 


f«ln,  and  IncrcAse  thereof  which  remain,  the 
same  shall  be  equally  divided  between  them,  or 
their  survivors,  share  and  share  alike. 

In  witness,  etc. 

[  IVittusses.] 

Con  tract— Partn  ershlp. 

General  Form —  Various  Clauses. 
See  title  Partnership,  post. 

This  agreement,  made  this day  of ,  be- 
tween A.  B.  (of ),  C.  D.  (of ),  and  E.  F.  (of 

),  witnesseth  : 

That  said  parties  shall  associate  themselves  to- 
gether in  the  business  of  {slate  whal)  only. 

That  said  business  shall  be  commenced  on  the 

day  of and  be  concluded  on  or  before  the 

day  of .     It   shall,   in   the  meantime,   be 

concluded  by  either  the  bankruptcy,  death,  or  in- 
solvency of  either  of  the  parties,  or  by  their  mutual 
consent. 

That  said  business  shall  be  carried  on,  continued 
and  maintained  in only. 

That  the  capital  of  said  partnership  shall  be 
furnished  as  follows : 

A.  B., dollars  in  money, dollars  in  real 

estate,  as  per  schedule  marked  A,  hereunto  at- 
tached, and dollars  personal  property,  as  per 

schedule  B,  hereunto  attached. 

Etc.,  etc. 

C.  D.,  dollars    in   money,  dollars    in 

promissory  notes,  copies  of  which  are  set  forth 
m  the  schedule  hereunto  attached,  marked  C. 

E.  F., dollars,  etc. 

That  all  said  real  and  personal  estate  shall  be 
considered  between  said  partners,  as  being  the 
several  and  separate  property  of  the  partner  con- 
tributing the  same. 

Accounting. 
That  there  shall  be  a  settlement  of  all  partnership  ac- 
counts at  least  once  in  each  year,  at  which  times  the 
same  shall  be  adjusted,  and  all  balances  converted  into 
bills  payable  or  receivable,  which  bills  shall  be  negotia- 
ble and  payable  at ,  in  days  from  their  date, 

and  bearing  interest,  etc. 

Arbitration. 

That  at  any  time  hereafter,  and  before  the  accounts 
between  said  parties  concerning  said  partnership  shall 
be  finally  settled  and  closed,  any  difference  or  dispute 
that  shall  arise  between  them,  or  any  of  them,  concern- 
ing the  true  construction  of  these  presents,  or  any  cove- 
nant or  thing  herein  contained,  or  any  accounts  to  De 
stated  or  settled  in  pursuance  hereof,  or  any  fact,  mat- 
ter, or  thing  relating  to  said  partnership  or  the  concerns 
thereof,  shall  be  submitted  and  referred  to  the  determi- 
nation and  award  of  three  arbitrators  chosen,  two  of 
which  shall  be  chosen  by  the  parties  in  difference,  which 
two  shall  select  a  third,  and  the  decision  and  award  of 
any  two  of  them,  in  writing,  shall  be  final,  binding,  and 
conclusive. 

Assignment  of  Partner's  Interest. 

That  neither  of  said  parties  shall,  without  the  consent 
of  all  the  others,  in  writing,  sell  or  assign  his  share  or 
interest  in  said  partnership  and  joint  trade  and  business 
to  any  person  or  persons  whomsoever. 

(Where  there  is  a  right  reserved  to  either  party  to  as- 
sign his  interest  in  the  partnership,  if  he  abuses  it  by 
assigning  it  to  an  incompetent  person,  from  whatever 
cause,  a  court  of  equity  may  interfere  by  injunction. ») 

That  either  of  said  parties  may,  at  any  time,  upon 

notice,  in  writing,  to  all  the  others,  sell  and  assign, 

by  writing,  his  share  or  interest  in  said  partnership  trade 
and  business,  to  any  competent,  solvent,  and  responsible 
person  whomsoever. 

Business  Management. 

That  the branch  of  said  business  shall  be  man- 
aged by  A.  B.  ;  in  his  absence  by  C.  D.,  and  in  the  ab- 
sence of  both  by  E.  F. 

That  the branch  of  said  business  shall  be  man- 
aged by  C.  D.,  and  in  his  absence  by  E.  F. ;  in  the 
absence  of  both  by  the  foreman  of  said  department. 

That  the branch  of  said  business  shall  be  man- 
aged by  E.  F.,  and  in  his  absence  by  whoever  said  A. 
B.  and  C.  D.  may  at  the  time  designate. 
Buy  or  Sell. 

That  open  the  dissolution  of  said  partnership  either 

It-Story  Partn.  J  183  n.  3 ;  Id.  }  311. 


party  may,  in  writing,  make  an  offer  to  the  other  pur- 
ties  to  buy  their,  or  sell  his  own,  entire  interests  in  said 
partnership  eifects,  at  a  certain  specified  price. 

That  thereupon  and  within days  thereafter  said 

parties  shall  signify  by  writing,  to  said  party  proposing, 
their  acceptance  or  rejection  of  his  offer,  and  failing  so 
to  do  within  that  time  said  party  proposing  may  within 

days  buy  or  sell  at  his  own  option  and  according 

to  his  said  proposal. 

Capital  Stock. 
Increase  and  Limit. 

That  neither  of  said  parties  shall  draw  out  any  part 
of  the  profits  of  said  concern  without  the  consent,  in 
writing,  of  the  others  of  them,  until  the  capital  shall  ex- 
ceed the  sum  of dollars,  which  sum  of dollars 

shall  be  set  apart  during  the  term  of  said  partnership  as 
a  joint  capital  for  the  purposes  of  said  concern.     When, 

however,  said    capital  shall    exceed  the  sum  of  

dollars,  then  either  party  may  take  out  the  whole  or  any 

part  of  his  share  of  the  profits  appearing  to  his  credit. 

Amounts  and  Limit  allowed  Partners. 

That  each  of  said  parties  may  draw  from  the  cash  of 

the  joint  stock  the  sum  of dollars  (monthly  or 

quarterly)  for  his  own  use,  to  be  charged  on  account, 
and  neither  of  them  shall  draw  any  further  sum  for  his 
own  separate  use  without  the  consent  of  the  others  in 
writing. 

That  any  such  further  sum  taken  with  such  consent 

shall   draw   interest   at   the   rate  of per  cent,  per 

annum,  and  shall  be  payable,  together  with  interest  due, 

within  days  after  notice  in  writing  given  by  the 

other  of  said  parties. 

That  neither  of  said  parties  shall  be  entitled  to  or 
draw  from  the  joint  stock  at  any  time  more  tlian  his 
share  of  the  profits  of  the  business  then  earned  after 
adjustment  of  expenses  and  losses. 
Interest. 

That  if  at  the  expiration  of  each  year  a  balance  of 

firofits  shall  be  found  due  to  either  partner  he  shall  be  at 
iberty  to  withdraw  said  balance,  or  he  ,iiay  leave  the 
same  in  the  business,  if  the  other  partners  consent 
thereto:  in  which  case  he  shall  be  allowed  interest  on 

such  balance  at  the  rate  of per  cent,  per  annum, 

and  thereafter  when  said  balance  is   to  be  withdrawn 

notice  shall  be  given  of  its  intended  withdrawal. 

Cashier  or  Receiver. 

That  the  principal  clerk  for  the  time  being  shall  be 
the  cashier  and  general  receiver  of  all  the  money  be- 
longing to  said  joint  business  and  partnership,  and  shall 
pay  therefrom  all  demands  ordered  by  said  parties ;  and 
shall  from  time  to  time  pay  the  surplus  cash  to  such 
bankers  as  said  partners  shall  designate. 

Continuance  of  Partnership. 

It  is  hereby  agreed  that  the  partnership  evidenced  by 
the  within  articles  of  agreement  shall  be  continued  upon 
the  same  terms  and  under  the  same  provisions  and  re- 
strictions as  are  therein  contained  for  the  further  term 

of from  the day  of next. 

Credit. 

That  neither  of  said  parties  shall  sell  or  credit  any 
goods,  wares,  or  merchandise  belonging  to  said  joint 
business  or  partnership  to  any  person  or  persons  after 
notice  in  writing  from  the  other  of  said  parties  that  such 
person  or  persons  are  not  to  be  credited  or  trusted. 
Decease. 

That  in  case  of  the  decease  of  any  one  of  said  part- 
ners before  the  expiration  of  said  term  of ,  said  part- 
nership shall  cease  and  be  dissolved  as  to  such  partner 
only,  and  said  joint  business  and  partnership  may  be 
carried  on  and  conducted  by  the  surviving  partners  for 

all  the  residue  of  said  period  of ,  upon  the  same 

conditions  and  terms,  and  subject  to  the  same  stipulations 
and  terms  as  are  herein  contained. 

That  said  surviving  partners  shall  be  respectively  in- 
terested in  the  share  of  the  deceased  partner  and  the 
profits  arising  therefrom,  in  the  same  relative  propor- 
tions in  which  they  are  interested  in  the  other  and  re- 
maining shares  of  said  business  concern. 

That  within days  after  the  share  of  said  deceased 

partner  shall  be  withdrawn  from  said  joint  trade  the 
same  shall  be  replaced  by  the  surviving  partners  in  the 
same  proportions  in  which  they  respectively  are  to  bo 
interested  in  the  profits  arising  from  the  share  aforesaid. 
Determination  or  Dissolution. 

That  if  either  of  said  parties  shall  be  declared  a  bank- 
rupt, or  file  any  petition  for  the  benefit  of  the  insolvent 


CONTRACTS. 


25: 


debtors'  act,  or  enter  into  any  general  composition 
with  his  creditors,  or  the  greater  part  in  value  thereof, 
or  shall  for  his  own  use,  or  any  purpose  other  than  for 
the  immediate  use  of  said  partnership  concern,  accept, 
draw,  indorse,  or  make  any  bill  of  exchange  or  promis- 
sory notes  in  the  name  of  said  firm,  or  shall  suffer  his 
share  in  the  partnership  effects  to  be  attached  or  taken 
in  execution  for  any  private  debt,  then  the  others  of 

said  partners  may  within days  after  the  same  shall 

have  come  to  their  knowledge  give  said  party  so  acting 
notice  in  writing,  personally  or  by  leaving  the  same  at 
his  last  place  of  abode,  announcing  a  dissolution  of  said 
partnership. 

That  thereupon  said  partnership  shall  be  determined 
»nd  dissolved  in  the  same  manner  as  if  the  whole  of  said 
term  had  expired ;  and  the  party  giving  such  notice 
•hall  be  at  liberty  to  insert  a  notice  of  such  dissolution 
in  the or  any  other  newspaper  printed  and  of  gen- 
eral circulation  in ,  and  to  subscribe  and  afSx  the 

name  of  such  party  as  well  as  his  own  to  such  notice ; 
this  authority  to  be  irrevocable. 

Division  of  Duties. 

That  A.  B.  shall  confine  and  devote  all  his  attention, 
skill,  and  time  to  the  business  of  said  firm  as  salesman 

and    superintendent    of  the  department  of  said 

business. 

That  C.  D.  shall  confine  and  devote  all  his  attention, 

skill,  and  time  to  the  business  of  said  firm  as ,  etc., 

in department  of  said  business. 

Etc.,  etc. 

Expulsion  of  Members. 

That  for  gross  misconduct,  bankruptcy,  insolvency, 
etc.  {specifying  the  cause),  the  partner  guilty  thereof  may 
forthwith  be  expelled  by  said  firm,  and  his  accounts 
and  interests,  if  adjustable  by  said  firm,  shall  be  settled 
as  soon  as  the  same  can  be  conveniently  done,  not  ex- 
ceeding, however, from  the  date  of  such  expulsion. 

Firn\-Nanie. 

That  the  name  and  style  of  said  firm  shall  be  "  The 
B.  D.  and  E.  Company." 

Indorsement,  Signature,  etc. 

That  nelthei  of  said  parties  shall,  during  the  existence 
of  said  partnership,  without  the  consent  of  the  other 
being  first  obtained,  enter  into  any  bond,  conveyance, 
covenant,  judgment,  or  other  obligation,  become  bail  or 
surety,  accept  any  bill,  make  any  note,  or  indorse  any 
or  either  of  the  same  for  himself  or  any  other  person 
whatsoever,  or  for  said  firm,  without  the  consent  of  the 
others  having  been  first  obtained. 
Majority. 

In  the  absence  of  any  stipulation  to  the  contrary,  each 
partner,  no  matter  what  his  interest  in  the  stock  is,  has 
an  equal  voice  with  the  others,  and  the  necessary  consse- 
quence  of  this  rule  is,  that  the  majority  must  govern.* 
They  must,  however,  act  bona  fide,  and  the  minority 
have  a  right  to  be  consulted." 

That  in  all  matters  respecting  the  general  transactions 
of  the  affairs  and  management  of  the  business  of  said 
partnership,  the  wish  and  opinion  of  a  majority  of  said 
partners  shall  govern  and  be  binding  upon  the  whole  of 
said  partners. 

New  Partners. 

That  in  case  said  A.  B.,  etc.,  should  think  it  prudent 
to  admit  an  additional  partner  into  said  partnership 
concern  generally,  or  into  the  branch  of  said  con- 
cern only,  he  {or  they)  shall  be  at  liberty  to  do  so. 

That  such  party  so  admitted  shall  be  in  all  respects 
bound  by  all  the  agreements,  stipulations,  and  provisions 
herein  contained,  as  though  he  had  been  a  party  hereto, 
so  far  as  the  same  shall  or  may  be  applicable,  and  ex- 
cept as  to  the  proportion  of  his  share  and  interest  in  the 
increase  and  profits  thereof. 

That  said  party  so  admitted  shall,  when  thereunto  re- 
quired by  any  or  either  of  said  partners,  at  his  own  ex- 
pense enter  into  a  covenant  to  perform  and  observe  all 
and  every  agreement,  stipulation,  and  provisions  in  this 
agreement  contained. 

Profits  and  Losses. 

That  all  profits  and  losses  shall  be  apportioned  ac- 
cording to  the  capital  furnished  by  each  of  said  partners, 
and  in  no  other  manner. 

Release  of  Debts. 

That  neither  of  said  parties  shall,  without  the   con- 
sent of  the  others,  release  or  compound  any  debt  or  de- 
mand, dtte  or  payable  to  them  on  accoimt  of  their  said 
S-Story  Parts.  {  123. 


partnership,  except  for  so  much  as  shall  actually  be  re- 
ceived and  brought  into  the  cash  and  stock  account  of 
said  partnership  concern. 

Retiring  Partner. 

That  said  parties,  or  either  of  them,  retiring  from 
said  business  and  partnership  shall  not  at  any  time  or 
times  hereafter,  either  alone,  or  jointly  with,  or  as  agent 
or  representative  of  any  person  or  interest  whatsoever, 
or  upon  any  account  or  pretence  set  up,  exercise,  carry 
on,  be  interested  in,  or  encourage  said  trade  or  business 
of ,  within  miles  from  ,  aforesaid,  or  en- 
courage any  opposition  to  said  trade  or  business  carried 
on  by  his  or  their  successors  in  the  same,  nor  do  any- 
thing to  the  prejudice  thereof,  nor  disclose  or  make 
known  any  of^  the  accounts,  secrets,  or  transactions  of 
or  relating  to  said  partnership. 

That  if  said  parties  or  party  so  retiring  shall  do  any 
act  in  breach  or  violation  of  this  covenant,  then  such 
party  shall  thereupon  immediately  pay  unto  his  succes- 
sors the  sum  of dollars,  liquidated,  fixed,  and  ascer- 
tained damages,  for  said  breach  and  its  consequences. 
Settlements. 

That  at  the  expiration  of  said  term  a  settlement  shall 
be  made  in  either  of  the  following  modes,  to  be  agreed 
upon,  verbally  or  in  writing,  within  one  week  of  the 
date  of  said  expiration  : 

1.  By  turning  all  the  assets  of  said  firm  into  cash, 
and,  after  paying  all  the  liabilities  of  said  partnership, 
to  divide  such  moneys  as  remain  in  proportion  to  the 
several  interests  of  the  parties  ;  or 

2.  By  one  or  more  of  said  partners  purchasing  all  the 
property  or  shares  of  the  others  at  a  valuation  (to  be 
made  by  three  disinterested  persons,  each  chosen  by 
one  of  the  partners  for  that  purpose). 

3.  By  all  the  property  of  the  partnership  being  ap- 
praisea  by  appraisers  chosen  as  aforesaid,  and  after 
paying  the  partnership  debts  the  remainder  to  be  divided 
in  the  proper  proportions. 

In  witness,  etc. 

Coiitract^Partnership. 
Active  and  Dortnant  or  Silent  Partner. 

This  agreement,  etc.,  w^itnesseth  : 

That  said  A.  B.  and  C.  D.  have  joined  them- 
selves together  as  partners,  under  the  firm  name 
and  style  of  A.  B.  &  Co.,  for  the  purpose  of  car- 
rying on  the  business  of ,  at ,  in ,  for  a 

term  of  years  from  the  date  hereof,  unless 

sooner  dissolved  by  act  of  the  parties  or  by  opera- 
tion of  law. 

That  said  C.  D.  shall  furnish  to  said  partner- 
ship a  sufficient  stock  of  suitable  goods,  wares, 
and  merchandise  for  commencing  business,  not 
exceeding dollars,  and  not  less  than dol- 
lars, to  be  charged  to  said  partnership  at  first 
cost,  and  from  time  to  time,  as  such  stock  shall 
be  reduced,  to  renew  and  replace  the  same  upon 
like  terms. 

That  said  A.  B.  shall  not,  without  the  express 
consent  of  said  C.  D.,  purchase  or  procure  on  ac- 
count of,  or  for  the  purposes  of  said  partnership 
concern,  any  goods,  wares,  or  merchandise,  in  the 
line  of  said  joint  business,  or  otherwise,  from  any 
other  person  than  the  said  C.  D.,  nor  in  any  man- 
ner other  than  is  provided  in  this  agreement,  un- 
less specially  authorized  by  the  consent  of  said  C. 
D.,  in  writing. 

That  said  A.  B.  shall  take  upon  himself  the  sole 
care  and  management  of  said  joint  business,  at- 
tend to  all  sales,  and  devote  his  care,  diligence, 
and  labor  exclusively  to  the  superintendence  of 
the  same. 

That  said  A.  B.  shall,  from  time  to  time,  and  as 
often  as  required  by  said  C.  D.,  remit  to  him  all 
moneys  received  from  such  sales,  on  the  joint  ac- 
count, after  deducting  the  actual  and  necessary 
expenses  in  the  prosecution  of  said  business,  and 
at  all  times,  whenever  required  by  said  C.  D., 
shall  exhibit  the  books  and  accounts  in  relation 
thereto. 

That  said  A.  B.  shall  not,  during  said  term  of 

years,  use,  follow,  or  exercise  said  businesk, 

or  any  other,  for  his  own  private  benefit  or  ad- 
vantage, but  that  he  will,  at  all  times  during  the 
continuance  of  said  partnership,  conduct  and  per- 
form in  all  things  to  the  best  of  his  knowledge, 
skill,  and  ability,  to  the  joint  benefit  aad  adrAOr 
°  tage  of  both  parties. 


*54 


CONTRACTS. 


That  all  gain,  profit,  and  increase  that  shall 
arise  from  said  joint  business  and  partnership 
shall,  from  time  to  time,  during  said  term,  be 
e(^ually  divided  between  them,  share  and  share 
alike,  and  that  all  losses  that  shall  happen  to  said 
business  and  partnership  by  bad  debts,  etc.,  or 
otherwise,  shall  be  borne  and  paid  equally  be- 
tween them,  share  and  share  alike. 

That  at  the  end  of  said  term  of years,  or 

upon  a  sooner  termination  of  said  partnership,  as 
•foresaid,  the  stock  and  profits  which  may  be 
then  upon  hand,  and  all  other  property  of  said 
partnership  shall,  after  the  payment  of  all  debts 
of  said  partnership,  be  equally  divided  betvv^een 
said  A.  B.  and  C.  D.,or  their  survivors  or  legal 
representatives. 

In  witness,  etc. 

Contract — Partnerf«hlp. 

Between  Merchants  in  Different  Countries. 

This  agreement,  made  this day  of ,  be- 

twreen  A.  B.,  of  New  York  city,  in  the  State  of 
New  York,  United  States  of  America;  C.  D.,  of 
the  city  of  London,  in  the  kingdom  of  Great 
Britain;  E.  P.,  of  the  city  of  Berlin,  in  the  Ger- 
man Empire,  and  G.  H.,  of  the  city  of  Paris,  in 
the  republic  of  Prance,  writnesseth  : 

That  said   parties   shall,  for  the  term   of 

years,  carry  on  the  joint  business  of ,  at  the 

places,  by  the  respective  parties,  and  under  the 
respective  styles  and  firm  names,  as  follows,  viz.: 

A.  B.  in  said  city  of  New  York,  under  the  firm 
name  and  style  of  A.  B.  &  Co. 

C.  D.  in  said  city  of  London,  under  the  firm 
name  and  style  of  C.  D.  &  Co. 

E.  P.  of  said  city  of  Berlin,  under  the  firm  name 
And  style  of  E.  P.  &  Co. 

G.  H.  of  said  city  of  Paris,  under  the  firm  name 
and  style  of  G.  H.  &  Co. 

That  the  capital  stock  of  said  partnership  con- 
cern shall  be  provided  by  said  parties  in  the  fol- 
lowing proportions,  viz. : 

A.  B.,  the  sum  of dollars,  cash. 

C.  D..  the  sum  of dollars,  etc.,  etc. 

E.  P.,  the  sum  of dollars,  etc. 

Q.  H.,  the  sum  of dollars. 

Accounts.  That  said  parties  shall  be  just  and  tnie 
to  each  other,  and  shall  give  just  and  true  account  to 
each  other,  upon  request,  of  sill  their  partnership  con- 
cerns. 

That  proper  books  of  account  shall  be  kept  at  the  sev- 
eral counting  houses  of  said  parties  at  New  York,  Lon- 
don, Berlin,  and  Paris,  or  in  some  place  which  shall  be 
from  time  to  time  appointed  by  them,  in  which  shall  be 
entered  all  the  transactions  and  concerns  of  said  joint 
trade,  according  to  the  usual  course  and  practice  of  mer- 
chants, and  to  which  books  any  of  said  partners,  or  any 
other  persons  by  him  or  them  authorized,  shall  have 
free  access  for  all  matters  respecting  their  trade  and 
dealings,  at  all  seasonable  times,  and  may  take  copies 
thereof. 

Advances  on  Consignment,  Credit,  Purchase, 
etc.  That  none  of  said  partners  shall  enter  into  any 
purchase,  transaction,  or  engagement,  or  make  any  ad- 
vance upon  consignments  on  account  of  this  partnership, 
or  trust  any  person  with  goods,  or  otherwise,  to  the 
amount  of dollars  or  upwards,  without  the  concur- 
rence and  approbation  of  the  others  of  them. 

That  none  of  said  partners  shall  enter  into  or  make  any 
purchase,  transaction,  or  engagement,  or  make  any  ad- 
vance whatsoever,  on  consignments,  or  trust  any  person 
with  goods,  or  otherwise,  to  any  amount  whatever,  after 
notice  from  the  other  partners  not  to  do  so. 

Advances,  Increase,  Surplus.  That  if  any  of  said 
partners  shall  contribute  any  further  sum  of  money  into 
said  concern,  or  permit  his  gains  to  remain  therein,  to  a 
greater  amount  than  his  proper  share  thereof,  he  shall  re- 
ceive interest  for  such  surplus,  after  the  highest  rate  in  any 
manner  lawfully  allowed  at  the  place  where  the  same 
shall  so  remain  or  be  contributed,  and  the  stock  in  trade 
shall,  from  time  to  time,  be  a  security  to  such  partner 
for  any  such  advance  and  interest.  If  there  shall  not 
be  sufficient  stock  in  trade  to  answer  the  same,  the  other 
partners  shall  each,  from  their  own  respective  private 
estates,  be  liable  to  make  good  such  advances  and  in- 
Jprest. 

Allowances  for  Entertainment.     That  each  of 

(aid  partners  shall  be  allowed  the  sum  of dollars 

par  annum  out  of  said  concern,  before  aay  dirision  or 


distribution  of  gain  shall  take  place,  to  be  devoted  to  the 
entertainment  of  strangers,  etc.,  etc.,  at  their  respective 

pl.-tces  of  business. 

Application  to  Business.  That  each  of  said  part- 
ners shall, to  the  best  of  theirrespectiveskitl  and  ability, 
diligently  apply  hims?lf  in  and  about  the  business  of  said 
concern,  and  the  management,  profit,  and  advantage 
thereof 

Attachment  and  Executions.  That  none  of  said 
partners  shall  permit  or  suffer  said  joint  stock,  or  his 
share  or  interest  therein,  to  be  in  any  way  charged,  en- 
cumbered, attached,  or  taken  in  execution  for  his  own 
private  and  particular  debts. 

Bills  of  Exchange,  Promissory  Notes,  or  other 
Engagements.  1  nat  none  of  said  partners  shall,  for 
his  own  private  use,  or  for  any  other  purpose  than  tl<3 
immediate  use  of  said  partnership,  make,  draw,  sub- 
scribe, indopse,  or  accept  any  bill  of  exchange  or  prom- 
issory note,  or  other  engagement,  in  the  name  of  said 
partnership,  or  by  the  means  of  which  said  partnership 
shall  become  bound,  engaged,  or  liable,  nor  to  pay  or 
apply  any  such  partnership  moneys  or  effects,  except  on 
account  of  said  concern,  under  a  penalty  of  forfeiting 
treble  the  amount  of  such  bill,  note,  or  other  engage- 
ment, or  the  money  so  paid  or  misapplied,  to  the  other 
partners,  to  be  paid  by  or  deducted  from  the  share  of 
gains  or  capital  of  the  concern  of  the  offending  party, 
and  divided  between  the  other  partners  in  the  proper, 
tions  that  they  are  entitled  to  the  profits  arising  from 
said  copartnership  business. 

Decease.  That  if  any  or  either  of  said  partners  shall 
happen  to  die  during  said  partnership,  then  his  personal 
representatives  shall  become  thereby  interested  in  said 

concern,  only  until  the  day  of next  ensuing 

said  decea.se,  when  said  partnership  concern,  as  to  the 
part,  share,  and  interest  of  said  deceased  partner,  but  no 
further  or  otherwise,  shall  absolutely  cease  and  deter- 
mine. 

That  if  all  said  partners  shall  die  diiring  said  term 
said  partnership  shall  absolutely  cease  and  determine,  as 
to  all  said  partners,  and  the  accoimt,  division,  and  par- 
tition hereinafter  mentioned  shall  be  made  in  the  same 
manner  as  is  therein  provided  for. 

Dissolution.  That  if  any  or  either  of  said  parties 
shall  desire  to  put  an  end  to  said  partnership,  at  the 
expiration  of  the  third  year  thereof,  he  or  they,  on 
giving  one  full  year's  notice,  in  writing,  to  each  of  the 
other  partners,  shall  be  at  liberty  to  do  so,  for  which 
purpose  such  notice  shall  be  repeated  at  the  interval  of 

days,  by  registered  letter,  to  each  of  the  places  of 

residence  and  business  of  the  other  partners.  Said  notice 
shall  be  deemed  and  considered  to  date  from  the  delivery 
of  the  second  or  last  of  said  notices  at  the  post  office 
of  the  sender. 

That  at  the  expiration  of  said  notice,  or  at  any  subse- 
quent time  therein  named,  said  partnership  concern  shall 
absolutely  cease  and  determine  as  to  all  said  partners, 
and  the  same  account,  division,  partition,  and  payment 
as  is  herein  provided  shall  be  made. 

Outside  Business.  That  neither  of  said  partners 
shall,  during  this  partnership,  either  by  himself  or  in 
partnership  with  any  other  person  or  persons,  or  any 
other  persons  or  interests,  enter  into,  engage  in,  or  carry 
on  any  business  or  employment  distinct  and  outside  of 
the  said  concern,  without  the  consent,  in  writing,  of  the 
other  partners,  having  first  been  obtained  for  that  pur- 
pose. Provided,  however,  that  said  A.  B.  shall  be  at 
liberty  to  engage  in  any  other  concern  or  commercial 
undertaking  that  he  may  think  proper,  other  than  that 
of  a  merchant  or  commission  agent,  inany  of  said  pl.ices 
in  which  said  partnership  business  shall  be  carried  on. 

Profit  and  Loss.  That  said  parties  shall  be  inter- 
ested in  the  joint  stock  of  said  partnership  concern,  and 
in  all  gains  and  profits  therefrom  in  the  proportions  of 
their  contributions  to  the  capital  stock  {or  in  equal  pro- 
portion share  and  share  alike),  and  all  debts,  leases, 
rent,  taxes,  wages,  and  all  other  charges  and  expenses, 
incident  to  said  concern  shall  be  borne  and  paid  in  the 
same  proportions. 

Real  Estate.  That  if  any  real  property,  lands,  tene- 
ments, or  hereditaments  shall  be  purchased  with  the 
moneys  or  effects  of  said  partnership,  the  same  shall  be 
considered  and  held  as  the  joint  property  of  said  part- 
ners in  the  proportions  hereinbefore  mentioned. 

Releases.  Thnt  none  of  said  partners  shall  release 
or  discharge  any  debt  owing  to  said  concern,  above  the 

sum  of dollars,  without  the  consent  of  the  other 

partners. 


CONTRACTS. 


255 


Settlement  and  Partition  of  Partnership  Ef- 
fects, etc.     That  within  three  calendar  months  from 

the  expiration  of  said  term  of years,  or  after  the 

determination  of  said  partnership  in  any  of  the  events 
in  this  agreement  mentioned,  or  as  soon  thereafter  as 
can  be,  said  parties,  or  their  representatives,  shall 
state  and  adjust  a  final  account,  in  writing,  of  all  the 
partnership  estates  and  effects,  and  thereupon  a  division 
or  partition  thereof  shall  be  made  between  said  part- 
ners respectively,  or  their  representatives,  in  such 
proportions  as  they  shall  be  fairly  and  equitably  entitled 
thereto,  according  to  the  terms  of  this  agreement,  due 
care  being  first  taken  for  the  payment  of  all  partnership 
debts. 

That  each  of  said  parties,  or  his  representatives, 
shall,  on  the  request,  and  at  the  costs  of  the  others  of 
them  respectively,  make  unto  said  others  an  assign- 
ment of  their  respective  shares  of  said  estate  and  effects, 
which  shall  be  allotted  to  them,  and  invest  them  with 
full  power  to  collect,  receive,  and  recover  the  same,  and 
that  none  of  said  partners  shall  afterwards  release,  dis- 
charge, or  compound  any  debts  or  demands  which  shall 
have  been  allotted  to  the  others  of  them,  or  their  repre- 
sentatives, without  their  respective  consent,  in  writing. 

Yearly  Statetnent.  That  said  partners,  respect- 
ively resident  in  New  York,  London,  Berlin,  and  Pans, 

shall  yearly,  on  the day  of ,  or  as  near  thereby 

as  circumstances  will  admit,  make  up  a  particular  state- 
ment, in  writing,  of  all  goods,  credits,  property,  estate, 
and  effects  then  being  in  or  belonging  to  said  concern,  at 
said  places  respectively,  and  of  all  debts  and  duties  then 
owing  therefrom,  and  shall  transmit  the  same,  or  a  copy 
thereof,  to  each  of  the  other  partners  by  the  first  oppor- 
tunity, and  shall  enter  the  said  statement  or  account  in 
a  book  to  be  kept  for  thai  purpose,  and  subscribe  the 
same,  which  book  shall  be  kept  with  the  other  books  of 
account,  and  which  account  shall  not  be  opened  or 
called  in  question  unless  an  error  shall  be  found  therein 
to  the  amount  of dollars,  in  any  one  year. 

That  thereupon  said  parties  respectively  shall  be  at 
liberty  to  draw  their  respective  shares  of  the  profits  of 
the  preceding  year,  according  to  the  proportions  above 
mentioned.  Subject,  nevertheless,  to  the  sums  allowed 
for  the  entertainment  of  strangers  as  aforesaid. 
Contract — Partnership. 
Relinquishment  or  Separation  0/  Interest. 

This  agreement  made,  etc.,  witnesseth  : 

That  said  A.  B.,  C.  D.,  and  E.  F.  are   partners 

doing  business  as  ,  at  ,   under  the   firm 

name  and  style  of  B.,  D.  &  F. 

That  the  said  E.  F.,  for  the  consideration  here- 
inafter mentioned,  does  by  these  presents,  sell, 
grant,  and  convey  unto  said  A.  B.  and  C.  D. 
all  deists  and  sums  of  money  which  are  due  and 
owing  unto  said  parties  jointly,-  and  all  his 
right,  title,  interest,  property,  claim,  and  demand 
whatsoever,  in  and  to  all  said  debts  or  any  of 
them,  and  also  all  and  singular  the  agreements, 
bills,  bonds,  conveyances,  judgments,  specialties, 
and  writings  whatsoever  for  and  concerning  the 
same,  all  of  which  are  set  forth  and  mentioned 
in  the  schedule  hereunto  annexed,  marked  "A.," 
to  have  and  to  hold  the  same  unto  them,  the  said 
A.  B.  and  C.  D.,  forever,  with  full  power  to  ask, 
demand,  sue  for,  and  recover  the  same  in  their 
own  name,  or  otherwise,  and  to  receive,  receipt 
for,  release,  compound  and  discharge  any  sum  or 
sums  of  money  or  other  matter  in  said  schedule 
mentioned. 

That  said  E.  F.  shall  not,  at  any  time  hereafter, 
willingly  do  or  suffer  any  act  or  thing  to  hinder, 
let,  or  disturb  them,  the  said  A.  B.  andC.  D.,  in  the 
premises,  but  shall,  upon  reasonable  request  upon 
him,  execute,  and  deliver  said  parties  such  other 
sufficient  letters  of  attorney  for  the  recovery  and 
collection  of  said  debts,  etc.,  as  by  said  parties,  or 
their  counsel  learned  in  the  law,  shall  reasonably 
advise  and  require. 

That  said   A.  B.  and   C.  D.,  in   consideration 

thereof,  shall,  on   or  before   the  day  of 

next,  discharge  and  pay  all  debts  and  sums  of 
money  as  are  due  and  owing  by  said  partnership 
concern  to  any  and  all  its  creditors,  for  or  by  rea- 
son of  their  said  joint  trade  and  partnership. 

That  said  A.  B.  and  C.  D.  shall,  on  or  before  the 
day  of next,  obtain  for  said  E.  F.  suffi- 
cient general  releases  and  other  discharges  in 
law  from  all  creditors  whose  names  are  men- 


tioned and  set  forth  in  the  schedule,  hereunto 
annexed,  marked  "  B." 

That  said  A.  B.  and  C.  D.  shall  at  all  times 
hereafter  save  and  keep  harmless  and  indemni- 
fied said  E.  F.  against  all  and  every  person  and 
persons  whatever,  to  whom  said  parties  or  either 
of  them  are  indebted  in  relation  to  said  partner- 
ship, and  of  and  froin  all  actions,  charges,  costs, 
damages,  executions,  judgments,  and  demands 
whatsoever,  which  has  heretofore,  or  shall  at  any 
time  hereafter,  arise  and  come  against  said  E.  F., 
or  any  of  his  lands,  tenements,  goods,  chattels, 
or  effects,  or  any  part  thereof,  for  or  by  reason 
of  any  matter  or  thing  respecting  or  relating  to 
said  partnership. 

In  witness,  etc. 

Contract — Partnership. 

Retiring  from  Business. 

This  agreement,  etc.,  witnesseth  : 

That  said  A.  B.  has  for  some  time  past  been 
engaged  in,  and  is  about  to  retire  from,  the  busi- 
ness (or  trade)  of ,  at ,  in . 

That  said  C.  D.  shall  continue  said  business  (or 
trade)  under  the  covenants,  restrictions,  and 
agreements  hereinafter  contained. 

That  an  inventory  and  appraisement  has  been 
taken  and  made  of  the  stock,  the  value  of  which 

is dollars,  and  fixtures,  the  value  of  which  iK 

dollars,  and  entered  in  two  receipt  books, 

and  is  subscribed  by  both  of  said  parties,  each  of 
whom  retain  custody  of  one  of  said  books. 

That  said  C.  D.  shall  during  the  term  of  five 
years  (computed  from  the  date  of  this  agreement),  if 
said  parties  shall  live  so  long,  trade  with  said 
stock,  manage  and  improve  the  same,  in  such 
manner,  however,  as  said  A.  B.  shall  direct : 
Upon  trust,  nevertheless, 

I.  To  pay  and  discharge  all  taxes  which  now 
are  or  shall  hereafter  be  imposed  upon  said  C.  D. 
on  account  of  said  house  and  trade. 

3.  To  pay  said  A.  B.  or  his  assigns,  yearly  and 
every  year  during  said  term  of  five  years,  if  said 
parties  shall  live  so  long,  one  clear  annuity  or 
yearly  sum  of  dollars,  without  any  abate- 
ment or  deduction  whatsoever. 

3.  To  retain  the  overplus  and  profits  ^vhich 
shall  arise  from  trade  and  dealing  for  his  own 
sole  use  and  benefit,  as  a  recompense  and  satis- 
faction for  his  care  and  trouble  in  the  manage- 
ment and  sale  of  said  stock. 

And  the  said  C.  D.,  in  consideration  of  the 
premises,  shall  apply  himself  diligently  to  the 
care  and  manageinent  of  said  stock  trade  and 
business,  according  to  his  best  skill,  abilities,  and 
discretion,  and  apply  and  dispose  of  the  money 
which  shall  arise  from  the  sale  thereof,  and  all 
the  profits  of  his  trade  and  dealings,  to  answer 
and  discharge  the  trusts  hereby  reposed  in  him. 

That  said  C.  D.  shall  make  complete  and  perfect 
entries  in  the  proper  books  of  account  of  all 
goods  sold,  all  moneys  paid  and  received  by  him, 
and  permit  the  same  to  be  inspected  by  said  A.  B. 
at  all  times. 

That  on  the day  of ,  of  each  year  during 

said  term,  or  oftener  if  required  by  said  A.  B., 
said  C.  D.  shall  take  a  full  account  of  said  stock 
then  remaining  in  trade,  and  of  the  profits  and 
sales,  and  deliver  the  same  to  said  A.  B.,  and 
make  a  true  manifest  of  the  condition  thereof. 

That  he  will  not,  during  said  term  of  five  years, 
buy,  sell,  or  in  any  manner  deal  or  trade  in  his 
own  name  or  that  of  any  person  save  the  said  A. 
B.,  nor  do  any  act  whatsoever  whereby  said 
stock  or  any  part  thereof  shall  suffer,  or  become 
liable  to  attachment  or  execution. 

That  at  the  expiration  of  said  term  of  five  years 
said  C.  D.  shall  deliver  up  to  said  A.  B.  the  stock 
then  remaining,  for  his  own  use  and  benefit,  to 
the  value  of dollars  ;  losses  by  bad  debts,  de- 
cay of  goods,  and  other  inevitable  casualties  ex- 
cepted. 

In  witness  ■whereof,  etc. 

Contract— Party  Walls. 

This  agreement,  etc.,  witnesseth  : 

That  said  A.  B.  is  the  owner  of  the  lot  and 

storehouse.  No. ,  on  — —  street,  in  the  town 

of . 


17 


256 


CONTRACTS. 


That  said  C.  D.  is  the  owner  of  the  lot  adjoin- 
ing the  same  on  the  north  side  thereof. 

That  said  C.  D.  is  about  to  erect  a  brick  store- 
house  upon  said  last-named  lot. 

That  in  the  erection  of  said  storehouse  the  said 
C.  D.  shall  use  the  north  wall  of  the  storehouse 
of  said  A.  B.  for  the  purpose  of  a  party  wall. 

That  in  consideration  of  the  sum  of dollars 

the  receipt  of  which  is  hereby  acknowledged,  the 
■aid  C.  D.,  or  his  legal  representatives,  shall  and 
may,  freely  and  lawfully,  in  a  workmanlike  man- 
ner, make  use  of  and  continue  the  use  of  said 
wrall  as  a  party  wall  forever. 

That  if  it  shall  hereafter  become  necessary  to 
repair  or  rebuild  any  portion  of  said  party  wall, 
the  expense  of  such  repairing  or  rebuilding  shall 
be  borne  equally  by  said  A.  B.  and  C.  D.  or  their 
representatives  or  assigns. 

That  whenever  said  party  %vall  or  any  portion 
thereof  shall  be  rebuilt  it  shall  be  erected  on  the 
same  spot  where  it  now  stands,  and  be  of  the 
same  size,  and  the  same  or  similar  materials,  and 
of  like  quality,  with  the  present  wall. 

That  this  agreement  shall  be  perpetual,  and  at 
all  times  construed  as  a  covenant  running  with 
the  land,  and  that  no  part  of  the  fee  of  the  soil 
upon  which  the  wall  of  said  A.  B.  now  stands 
shall  pass  to  or  be  vested  in  said  C.  D.,  his  heirs 
or  assigns. 

In  witness  whereof,  etc. 

For  form  of  Acknow  edgment  see  that  title. 
Contract— Party  Walls. 

This  agreement,  etc.,  witnesseth  ; 

That  said  A.  B.  is  the  owner  and  in  possession 
of  a  certain  lot  (or  parcel)  of  ground  situated  in 

,  and  described  as  follows,  to  wit  (describing 

it  by  metes  and  bounds) . 

That  said  C.  D.  is  the  owner  and  in  possession 
of  a  certain  lot  (or  parcel)  of  ground  situated  in 

,  adjoining  the  property  of  A.  B  ,  aforesaid, 

and  described  as  follows,  to  wit  {describing  it  as 
above). 

That  said  A.  B.  has  erected  {or  is  about  to  erect) 
on  his  own  premises  aforesaid,  and  along  the  di- 
vision line  of  the  above  mentioned  lots  (or  prem- 
ises) a  brick  building  in  length,  stories 

high,  and  from  the  front  of  said  premises, 

etc.,  etc. 

That  said  CD.,  and  his  legal  representatives  or 
assigns,  shall  at  all  times  hereafter  {or  there.^fter) 
have  the  full  liberty,  right,  and  privilege  of  join- 
ing to  said wall,  above  and  below  the  surface 

of  the  ground,  and  along  the  whole  or  any  part 
of  the  length  of  said  wall  any  building  which  he 
or  his  legal  representatives  or  assigns  may  see  fit, 
or  have  occasion  to  erect,  and  for  said  purpose  to 

sink  joists  into  said  wall inches  in  depth,  but 

no  further,  and  to  use  and  enjoy  said  wall,  or  any 
part  thereof,  as  well  as  all  buildings  by  them 
erected. 

Provided,  however,  that  before  proceeding  to 
Join  any  other  buildings  to  said  wall,  and  before 
making  any  use  thereof,  or  breaking  into  the 
same,  said  C.  D.,  his  legal  representatives  or  as- 
signs, shallpay,  or  secure  to  be  paid,  to  said  A. 
B.,  or  his  legal  representatives  or  assigns,  one- 
half  value  of  the  said  wall,  or  so  much  thereof  as 
shall  be  joined  or  used  as  aforesaid  (which  value 

shall  be  affixed  and  assessed  by ,  or  at  the  rate  of 

— —  dollars  per ). 

In  witness  ^vhereof,  etc. 

Contract— Performance,  etc. 
Limited  in  Terms  and  Amount. 
I    This  agreement  witnesseth  : 

That  A.  B.  shall,  etc.  (stating  what  shall  be  done). 

That  A.  B.  shall  pay  said  A.  B.  therefore  the 

sum  of dollars,  as  follows,  etc.  (stating  terms, 

times,  and  amounts  0/ payment). 

That  in  no  event  shall  this  agreement  be  al- 
tered, modified,  or  in  anywise  or  particular  varied, 
except  by  indorsement  thereon  by  writing  an- 
nexed thereto.  (Signed)  A.  B. 

Dated .  C.  D. 

Contract— Performance,  etc. 
Performance  /or  Pnyntent. 

This  agreement,  between  A.  B.  and  C.  D.,  made 
this day  of ,  A.  D. ,  writnesses : 


That  A.  B.  shall  (state  what  A.  B.  ihall do). 

That  in  consideration  thereof,  C.  D.  shall  pay 

said  A.  B. dollars,  as  follO\vs  (state  time, place, 

number,  and  amount  0/ payments). 

(Signed)  A.  B. 

C.  D. 
<'ontract— Performance,  etc. 
Performance  /or  Per/ormance. 

This  agreement,  between  A.  B.  and  C.  D.,  made 
this day  of ,  A.  D. ,  witnesses : 

That  A.  B.  shall  (state  the  subject-matter,  or  ob- 
ject 0/ the  agreement). 

That  C.  D.,  in  consideration  thereof,  shall  (here 
state  what  C.  D.  shall  do  or  per/orm.). 

(Signed)  A.  B. 

CD. 
Con  tract— Pn  rchase. 
Corefivood. 

This  agreement,  etc.,  witnesseth: 

That  said  A.  B.  shall  sell  to  said  C  D.  all  the 
cordvi^ood  that  shall  come  from  all  trees  now 
grov«^ing  and  standing  on  a  certain  piece  of  rough 

ground  situated  in ,  and  described  as  follows, 

to  wit  (describing  it  by  metes  and  bounds). 

That  said  A.  B.  shall  permit  and  suffer  said  C 
D. ,  at  his  own  cost  and  expense,  to  cut  said  cord- 
\vood  and  convert  it  into  charcoal  in  the  north- 
west corner  of  said  land,  and  for  that  purpose  to 
use  the  turf  and  earth  in  said  corner,  but  not 
elsewhere,  and  thereafter  to  take  and  carry  away 
said  wood  so  converted  into  charcoal  from  on 
said  premises  the  most  convenient  wray  leading 
to  the road. 

That  said  C.  D.  shall,  on  or  before  the day 

of (or '\n  charcoal  at  per  bushel,  or  in  cord- 
wood  at  per  cord,  etc.,  etc.),  pay  said  A.  B 

therefor  at  the  rate  of cents  per  cord  for  all 

said  wood  so  cut,  to  be  measured  at  the  cutting 

thereof,  and  an  account  made  every during 

the  time  the  same  is  being  cut  and  converted  as 
aforesaid. 

That  said  C  D.  shall  commence  said  cutting 

on  or  before  the  day  of ,  and  complete 

the  same  on  or  before  the day  of ,  and  to 

have  converted  the  same  into  charcoal  or  other- 
wise, so  as  to  have  fully  removed  from  said 
premises  on  or  before  the day  of next. 

Contract— Pn  rchase. 

By  Several  Jointly. 

This  agreement,  etc.,  witnesseth: 

That  A.  B.,  of ,  C  D.,  of ,  and  E.  F.,  of 

,  or  some  one  of  them,  shall  purchase  all  that 

tract  or  parcel  of  land  situated  in  ,  in , 

now  owned  and  in  possession  of  G.  H. 

That  if  any  one  or  more  of  said  parties  shall 
purchase  said  land,  that  each  and  every  one  of 
said  parties  shall  pay  his  respective  proportion 
of  the  purchase  money. 

That  all  charges  and  expenses  shall  be  borne 
by  each  of  said  parties  in  equal  proportions. 

That  such  purchase  shall  be  for  the  joint  and 
equal  benefit  of  each  of  said  parties  (and  conveyed 
in  their  joint  names). 

That  the  purchase  money  for  said  land  shall 
not  exceed  the  sum  of  five  thousand  dollars. 

In  witness  whereof,  etc. 

Contract— Reassig^nment. 
Real  Estate  Assigned. 

This  agreement,  etc.,  witnesseth  : 

That  said  A.  B.  by  an  agreement  with  one  C  D. 

(of ),  bearing  date  the day  of ,  agreed 

to  convey  to  him  a  certain  tract  of  land  situate, 
etc.  (copying  the  description /rom  the /ormer  agree- 
ment). 

That  said  A.  B.,  by  an  agreement  with  said  E. 
F.,  contracted  for  the  erection  of  a  building  on 
said  land  for  a  consideration  of  one  thousand 
dollars,  five  hundred  dollars  thereof  to  be  paid 
six  months  from  the  date  of  said  building  con- 
tract, and  the  remainder  in  six  months  after  the 
completion  of  said  building. 

That  said  C  D.,  by  an  assignment  bearing  even 
date  with  the  day  and  year  of  the  agreement  last 
mentioned,  assigned  all  his  title  and  interest  in 
and  rights  under  the  agreement  first  above  men- 
tioned to  said  C  D.  as  collateral  security  for  the 
punctual  performance  of  said  building  contract. 


CONTRACTS. 


257 


That  if  said  A.  B.  shall  faithfully  perform  all 
his  agreements  and  covenants  v\'ith  said  E.  F.  m 
and  concerning  said  building  contract,  then  said 
E.  F.  shall  reassign  and  set  over  all  the  interest 
he  has  acquired  in  said  premises  by  virtue  of  said 
assignment  from  said  C.  D. 

That  in  case  of  default  or  nonperformance  of 
any  or  all  the  conditions  and  provisions  of  said 
building  contract,  then  said  E.  F.  shall  become 
absolutely  seized  and  possessed  of  said  premises, 
and  entitled  to  all  the  rights  of  said  C.  D.  therein. 

Provided,  however,  that  if  said  C.  D.  shall 
within  thirty  days  after  said  default  tender  said 
E.  F.  the  amount  or  amounts  due,  or  performance 
required,  according  to  said  contract,  then  the  said 
E.  F.  shall  reassign  and  transfer  said  premises  to 
said  C.  D. 

In  witness,  etc. 

Contract— Sale. 
Oy  Animals. 

This  agreement,  etc.,  witnesseth  : 

That  said  A.  B.,  for  the  consideration  herein- 
after mentioned,  shall  sell  and  deliver  on  the 

day  of next,  to  said  C.  D.,  at  his  store  in , 

one  yoke  of  four  year  old  oxen. 

That  said  C.  D.,  in  consideration  thereof,  shall 
pay  said  A.  B.  sixty  dollars  upon  the  delivery  of 
said  oxen. 

In  witness  %vhereof,  etc. 

Contract— Sale. 
General  Form. 

This  agreement,  made  this day  of ,  A. 

D. ,  between  A.  B.  (of ,  farmer),  and  C.  D. 

(of ,  merchant),  witnesseth  : 

That  said  A.  B.  (in  consideration  of  the  agreement 
hereinafter  contained,  to  be  performed  by  C.  D.), 
agrees  to  sell  and  deliver  to  the  said  C.  D.,  at  his 

storehouse   in  (here  specify    the  goods,   their 

quantity  and  quality),  on  or  before  the day  of 

,  A.  D. . 

That  said  C.  D.  (in  consideration  thereof)  agrees 

to  pay  to  the  said  A.  B.  the  sum  of dollars 

per for  the  said ,  immediately  upon  the 

completion  of  the  delivery  thereof. 

Witness  our  hands,  this day  of ,  A.  D. 

.  A.  B. 

CD. 
Contract— Sale. 
Bond  and  Mortgage. 

This  agreement,  etc.,  witnesseth  : 

That  said  A.  B.  and  his  wife  W.,  on  the day 

of ,  executed  a  mortgage  and  a  bond  bearing 

even  date  therewith,  to  said  C.  D.,for  the  pur- 
pose of  securing  the  payment  of  the  sum  of  four 

hundred  dollars,  in  four  years  from  the day 

of ,  with  interest  annually,  from  the  date  first 

aforesaid. 

That  said  mortgage  was  duly  recorded  in  the 
office  of  the  clerk  (recorder,  or  register  of  deeds),  of 

county,  in  book  10  of  mortgages,  at  pages 

512  and  513,  on  the day  of ,  at o'clock 

A.  M. 

That  said  C.  D.,  for  the  consideration  hereinaf- 
ter mentioned,  shall  sell,  transfer,  assign,  and  set 
over  to  said  E.  F.  said  mortgage  and  bond  ac- 
companying the  same,  together  with  all  the  said 

C.  D.'s  title  and  interest  in  and  rights  thereunder 
when  the  payments  hereinafter  specified  shall 
have  been  made. 

That  said  E.  F.,  in  consideration  of  the  prem- 
ises, shall  pay  or  cause  to  be  paid  unto  said  C.  D. 
the  sum  of  four  hundred  dollars,  in  the  manner 
following,  viz.:  fifty  dollars  upon  the  execution 
and  delivery  of  this  agreement,  and  three  hun- 
dred and  fifty  dollars  in  two  equal  annual  pay- 
ments from  the  date  hereof,  with  per  cent. 

interest. 

That  if  said  E.  F.  shall,  at  any  time  prior  to 
said  times  agreed  upon,  elect  to  pay  the  whole 
sum  agreed  to  be  paid,  with  legal  interest  there- 
on, he  shall  have  the  right  so  to  do,  and  said  C. 

D.  shall  immediately,  upon  said  payment,  trans- 
fer, assign,  and  set  over  unto  said  £.  F.  the  bond 
and  mortgage  aforesaid. 

In  ^witness  whereof,  etc. 

Contract— Sale. 

Coal. 
This  agreement  witnesseth : 


That  A.  B.,for  a  consideration  hereinafter  men- 
tioned, shall  sell  and  deliver  to  C.  D.,  free  of  all 
cost,  charge,  and  expense,  one  thousand  bushels 

of coal,  from  time  to  time,  from  the day 

of unto  the day  of ,  in  such  quantities 

and  at  such  times  as  said  C.  D.  shall  require,  the 
whole  to  be  delivered  on  or  before  the  last  named 
date. 

That  C.  D.,  in  consideration  thereof,  shall  pay 

unto   said   A.    B.    therefor  the  sum   of  per 

bushel,  one-half  to  be  paid  in  such  goods,  wares, 
and  merchandise  as  are  manufactured  and  sold 
by  said  C.  D.,  and  the  remaining  half  in  cash,  on 
or  before  the  last  mentioned  date. 

In  witness  whereof,  etc. 

Con  t  ract— Sal  e. 

Goods  at  Appraised  Value. 

This  agreement,  etc.,  witnesseth  : 

That  said  A.  B.  shall,  for  the  consideration  here- 
inafter mentioned,  sell  and  convey  unto  said  C.  D. 
all  and  singular  the  household  goods,  furniture, 
fixtures,  stock  in  trade,  chattels,  and  effects  con- 
tained in  and  belonging  to  the  dwelling  and  store 

now  occupied  by  said  A.  E.,  at ,  in (as  per 

schedule  hereunto  annexed). 

That  said  goods,  furniture,  fixtures,  stock  in 
trade,  chatties,  and  effects  shall  be  appraised  by 
E.  F.  and  G.  H.  {or  any  other  two  disinterested  per- 
sons chosen  one  by  each  of  said  parties),  and  in  case 
they  differ  in  such  appraisement,  then  a  third  in- 
different person,  chosen  by  them,  shall  determine 
the  same,  and  their  valuation,  with  its  differences 

adjusted  by  said  person,  if  delivered  in days, 

in  writing,  shall  and  will  be  taken  as  the  value 
of  the  same. 

That  said  A.  B.,  immediately  upon  such  valua- 
tion being  made,  shall  make  and  deliver  an  abso- 
lute bill  of  sale  of  all  said  goods,  furniture,  fix- 
tures, stock  in  trade,  chattels,  and  effects,  and 
give  possession  thereof  to  said  C.  D.,  at  the  price 
the  same  shall  be  appraised  at  as  aforesaid. 

That  said  C.  D.,  in  consideration  thereof,  shall 
accept  said  property  at  said  price  and  on  the  de- 
livery of  said  bill  of  sale,  and  shall  pay  said  A.  B. 
a  sum  of  money  at  which  said  property  is  ap- 
praised as  aforesaid. 

In  witness,  etc. 

Con  tract — Sale. 

Of  Goods  in  Store. 

This  agreement,  etc.,  witnesseth  : 

That  said  A.  B.,  in  consideration  of  the  cove- 
nants hereinafter  contained,  will  purchase  of  said 
C.  D.  all  his  stock  of  goods,  wares,  and  mer- 
chandise now  being  in  his  store,  in  the  town  of 
,  together  with  all  the  fixtures  thereto  be- 
longing, an  account  of  the  same  to  be  taken 
by  the  parties  hereto  in  the  presence  of  each 
other. 

That  said  A.  B.  shall  pay  for  the  same  at  the 
invoice  price,  saving  such  of  said  goods  as  are 
damaged. 

That  all  damaged  goods  and  the  fixtures  afore- 
said shall  be  valued  by  two  disinterested  persons, 
one  of  whom  is  to  be  selected  by  each  of  the  par- 
ties to  this  agreement,  and  said  A.  B.  shall  pay 
for  the  same  the  value  or  price  that  said  apprais- 
ers may  agree  and  put  upon  them  as  a  fair  val- 
uation of  the  same. 

That  said  A.  B.  shall,  within  five  days  after  the 
value  of  said  goods,  wares,  merchandise,  and  fix- 
tures is  ascertained  as  aforesaid,  pay  a  sum  equiv-. 
alent  to  said  value  to  said  C.  D. 

That  said  C.  D.,in  consideration  thereof,  agrees 
to  sell  and  deliver  said  A.  B.  said  goods,  wares, 
merchandise,  and  fixtures  as  aforesaid,  and  make, 
execute,  and  deliver  to  said  A.  B.  a  good  and  suf-| 
ficient  bill  of  sale  and  conveyance  thereof,  upon' 
receipt  of  said  last  mentioned  sum. 

In  witness  whereof,  etc. 

Contract— Sale. 

0/  Goods  in  Grocery  Store. 

This  agreement,  etc.,  witnesseth  : 

That  said  A.  B.  shall  sell  to  said  C.  D.,  and  said 
C.  D.  shall  buy  of  said  A.  B.,  all  the  stock  of 
goods  and  groceries,  wares,  and  merchandise  be- 
longing to  said  A.  B.,  and  now  in  the  grocery 
store  occupied  by  him,  on  lot  No. ,  on  ths 


«58 


CONTRACTS. 


comer  of and  ——streets, in  the  tovvrn  of , 

together  with  all  furniture  and  fixtures  therein  ; 
ind  also  all  goods,  wares,  merchandise,  grain, 
meats,  vegetables,  and  produce  of  every  name 
and  nature  bought  or  contracted  for  by  the  said 
A.  B.  and  intended  for  sale  in  said  grocery. 

That  the  stock  of  goods,  wares,  and  merchan- 
dise is  to  be  inventoried  to  said  C.  D.  at  the  orig- 
inal cost,  without  including  transportation  ex- 
penses, deducting  any  depreciation  on  account 
of  damage,  wear  or  tear. 

That  the  furniture  and  fixtures  shall  be  inven- 
toried at  their  fair  cash  value  by  the  parties  to 
this  agreement,  and  if  they  cannot  agree  as  to 
tuch  valuation,  or  the  deductions  aforesaid,  the 
4ame  shall  be  determined  by  the  appraisal  of  £. 
F.,  G.  H.,  and  I.  K.,  or  any  two  of  them. 

That  the  grain,  meats,  vegetables,  and  produce 
■hall  be  invoiced  at  their  original  cost. 

That  said  invoices  and  inventories  shall  be  com- 
pleted within  ten  days  from  the  date  hereof,  and 
the  property  above  specified  thereupon  immedi- 
ately delivered  to  said  C.  D. 

That  said  C.  D.,in  consideration  of  said  prem- 
ises, shall  execute  and  deliver  said  A.  B.,  in  lieu 
rf  the  purchase  money  for  said  property,  and  in 
full  payment  therefor,  his  promissory  notes,  in 
(;uch  several  sums  as  said  A.  B.  shall  direct,  pay- 
able at  the bank, ,  six  months  after  date, 

v/ith  interest  at  the  rate  of ^per  cent,  per  an- 
num, etc.,  etc.  (and  indorsed  by  E.  F.,  of ,  etc.; 

That  said  A.  B.  shall  not,  at  any  time  hereafter, 
engage  directly  or  indirectly,  or  concern  himself 
in  the  carrying  on  or  conducting  the  grocery  busi- 
ness within  one  mile  of  the  said  premises. 

That  the  stipulations  aforesaid  are  to  apply  to 
and  bind  the  heirs,  executors,  and  administrators 
of  the  respective  parties,  and  in  case  of  failure 
■aid  parties  bind  themselves  each  to  the  other  in 
the  sum  of dollars,  as  fixed  and  settled  dam- 
ages, to  be  paid  by  the  failing  party. 

In  witntss  whereof,  etc. 

Contraot^Sale. 

Of  a  Horse. 

This  agreement,  etc.,  witnesseth  : 

That  said  A.  B.  shall  sell  to  said  C.  D.,  and  said 
C.  D.  shall  purchase  of  said  A.  B.,  his  dark  bay 
^orse,  etc,  {adding  other  points  of  description),  and 
to  warrant  said  horse  to  be  well  broken,  kind, 
and  gentle,  both  under  the  saddle  and  in  single 
and  double  harness,  to  be  sound  in  every  respect 
and  free  from  every  vice,  for  the  sum  of  one  hun- 
dred dollars,  to  be  paid  by  said  C.  D.  on  the  

day  of next,  when  said  horse  shall  be  deliv- 
ered to  said  C.  D. 

In  witness  \vhereof,  etc. 

Contract— Sale. 

Real  Estate. 

This  agreement,  etc.,  witnesseth  : 

That  A.  B.  (of ),  in  consideration  of  the  sum 

of dollars  now  paid,  and  dollars  to  be 

paid  when  a  deed  is  executed,  shall,  on  the 

day  of next,  sell  and  convey  unto  C.  D.  (of 

),  his  heirs  and  assigns,  real  estate  situated  in 

and  described  as  follows,  to  wit :  [describing 

it),  together  with  all  the  appurtenances  thereunto 
)»e  longing. 

Dated .  (Signed)  A.  B. 

C.  D. 
Contract— Sale. 
Heat  Estate. 

This  agreement,  etc.,  \vitnesseth  : 

That  said  A.  B. ,  for  the  consideration  hereinaf- 
ter mentioned,  shall,  by  good  and  lawful  deeds, 
>well  and  sufficiently  grant,  bargain,  sell,  convey, 
and  assure  unto  said  C.  D.,  his  heirs  and  assigns, 
in  fee  simple,  free  of  all  incumbrances,  all  that 

part  and  parcel  of  land  situate  in ,  and  bounded 

and  described  as  folto>vs  :  {here  describe  the  prem- 
ises by  metes  and  bounds) . 

That  said  C.  D.,  in  consideration  thereof,  shall 
well  and  truly  pay  or  cause  to  be  paid  to  said  A. 
B.,  his  executors,  administrators,  or  assigns,  the 
■um  of dollars,  in  the  manner  following,  viz.: 

dollars  on  the  execution  of  this  agreement. 

dollars  on  the day  of next. 

— —  dollars  on  the day  of next. 


The  remaining  dollars  on  the  day  of 

next. 

That  said  sums  of  money  unpaid  shall  bear  in- 
terest at  the  rate   of per  cent,  per  annum 

from  date  until  paid. 

That  the  payment  of  said  several  sums  of 
money  shall  be  a  condition  precedent  to  the  exe- 
cution and  delivery  of  the  deeds  of  conveyanv* 
aforesaid. 

In  witness,  etc. 

Contract— Sale. 

Real   Estate. 

This  agreement,  etc.,  witnesseth  : 

That  said  A.  B.,  for  the  consideration  herelo* 
after  mentioned,  shall  sell  and  convay  to  said  C. 
D.  all  that  part  and  parcel  of  land   situated  in 

,  as  known  and  designated  on   the  recorded 

plat  of  said ,  as,  etc.  [describing  it  according  to 

the  record). 

That  said  A.  B.  shall  execute  and  deliver  to  said 
C.  D.  a  warranty  deed  containing  the  usual  cove- 
nants of  warranty,  that  said  premises  are  free, 
clear,  and  discharged  of  and  from  all  and  every 
incumbrance  whatsoever. 

That  said  C.  O.,  in  consideration  thereof,  shall 
pay  said  A.  B.  the  sum  of  dollars,  as  fol- 
lows : 

dollars  upon  the  execution  and  delivery  of 

said  deed. 

dollars,  payable  at  ,  on  the day  of 

next. 

dollars,  payable  at  ,  on  the day  of 

next. 

Said  payments  to  be  secured  by  promissory 
notes  for  the  same,  bearing  interest  at  the  rate  of 

per  cent,  per  annum,  which  notes  shall  be 

secured  by  a  mortgage  on  said  premises. 

That  if  any  default  be  made  in  fulfilling  this 
agreement,  or  any  part  thereof,  said  A.  B.  or  his 
legal  representatives  may  consider  this  agree- 
ment of  no  effect  and  annulled,  and  dispose  of 
said  land  or  otherwise,  as  though  this  agreement 
had  never  been  executed. 

In  witness,  etc. 

Contract — Sale. 

Real  Estate — Farm  and  Mill  Property. 

This  agreement  made,  etc.,  witnesseth  : 

That  said  A.  B.  shall,  for  the  consideration 
hereinafter  mentioned,  grant,  sell,  and  convey 
unto  said  C.  D.,  his  heirs  and  assigns  forever,  the 

following  described  real  estate,  situated  in , 

in county,  and  State  of ,  described  as  fol- 
lows (describing  the  same  by  metes  and  bounds). 

To  have  and  to  hold  the  same,  together  ^vith 
the  tenements,  buildings,  and  their  appurte- 
nances, goods,  chattels,  and  effects,  as  follows, 
to  wit : 

One  dwelling-house  (^.rcr/V5;"«;j';V),  together  \vith 
all  furniture,  fixtures,  apparel,  etc.,  described  in 
the  schedule  hereunto  annexed,  marked  "  A." 

One  grist  mill  {describing  it),  together  ^vith 
all  tools,  machinery,  fixtures,  furniture,  etc., 
described  in  the  schedule  hereunto  annexed, 
marked  "  B." 

One  saw  mill  {describing  it),  together  witft  all 
the  tools,  etc.  (as  above). 

One  woollen  mill  {describing  if),  together  Avith 
all  the  tools,  etc.  tas  above). 

And  also  all  the  goods,  chattels,  and  effects, 
growing  crops,  farm  utensils,etc.,  etc.,  described 
in  the  schedule  hereunto  annexed,  marked  "  E." 

That  said  C.  D.,  in  consideration  thereof,  shal^ 
pay  said  A.  B.  the  sum  of dollars,  as  tollows:f 

dollars  upon  the  execution  of  thi"  agree- 
ment. 

dollars,  payable  at  ,  on  the day  of 

next. 

dollars,  payable  at ,  on  the day  of 

next. 

Etc.,  etc. 

That  all  said  deferred  payments  shall  be  evi- 
denced by  the  promissory  notes  of  said  C.  D., 

bearing  interest  at  the  rate  of per  cent,  per 

annum  from  date  until  paid. 

That  said  notes  shall  be  secured  by  a  mort- 
gage given  by  said  C.  D.  to  said  A.  B.  upon  said 
premises. 


CONTRACTS. 


259 


That  said  premises  shall  in  the  meantime  be 
kept  fully  insured,  at  the  cost  and  expense  of  and 
by  said  C.  D.,  in  good  and  responsible  companies, 
to  be  approved  by  said  A.  B.,  to  whom  the  poli- 
cies thereon  shall  be  forthwith  assigned. 

That  said  C.  D.  shall  take  possession  of  said 
premises  on  the day  of next. 

In  witness,  etc. 

C'on  tract— Sale. 

Jiea/  £state  in  Fee. 

This  agreement,  etc.,  v^ritnesseth  : 

That  said  A.  B. ,  in  consideration  of  the  sum  of 

dollars,  to  be  paid  as  hereinafter  mentioned, 

•hall,  on  or  before  the  day  of next  en- 
suing, well  and  sufficiently  grant,  sell,  release, 
convey,  and  assure  unto  said  C.  D.,  his  heirs  and 
assigns,  all  that  tract  or  parcel  of  land  situated  in 

,  etc.,  and  described  as   follo\A's,  to  wit   {tie- 

scribing  it  by  boundaries). 

That  said  conveyance  shall  be  at  the  costs  and 
charges  (^excepting  only  counsel  fees)  of  said  C.  D., 
and  by  such  conveyances  and  assurances  as  he  or 
nis  counsel  may  reasonably  require,  and  shall  con- 
tain the  usual  covenants  that  said  premises,  at  the 
time  of  such  conveyance,  are  free  from  all  de- 
mands and  incumbrances  whatsoever  (except, 
etc.),  and  all  other  usual  and  reasonable  covenants. 

That  said  C.  D.,in  consideration  thereof,  shall 
well  and  truly  pay  or  cause  to  be  paid  unto  said 
C.  D.,  his  heirs,  executors,  or  administrators,  the 
aforesaid  sum  at  the  time  of  executing  said  con- 
veyance. 

In  witness,  etc. 

Contract — Sale. 
Real  Estate — Private  Contract. 

This  agreement,  etc.,  witnesseth  : 

That  said  A.  B.  shall,  on  or  before  the day 

of next,  on  the  receipt  of  the  sum  of dol- 
lars, and  at  the  costs  and  charges  of  the  grantee, 
convey  unto  said  C.  D.,  by  deed,  with  a  covenant 
of  general  warranty  and  against  incumbrance, 
and  with  other  usual  covenants  and  agreements, 

all  that  tract  or  parcel  of  land  situated  in , 

and  described  as  follows,  to  wit  (describing-  it). 

Thatsaid  C.  D.,on  the  execution  of  said  convey- 
ance, shall  pay  said  A.  B.  the  sum  of dollars. 

That  said  conveyance  shall  be  prepared  at  the 
expense  of  said  C.  D.,  to  the  approbation  of  the 
respective  counsel  of  said  A.  B.  and  C.  D. 

That  all  taxes  and  expenses  in  respect  to  said 
premises  in  the  meantime  shall  be  paid  by  said 
A.  B. 

That  if  said  conveyance  shall  not  be  executed 
and  the  purchase  money  paid  on  or  before  the 

day  of ,  then  said  C.  D.  shall  pay  interest 

for  the  same  from  said  last-mentioned  day  unto 

said  A.  B.  at  the  rate  of per  cent,  per  annum 

until  said  sum  is  paid. 

In  witness,  etc. 

Con  tract^Sale. 
Real  Estate — Remainder  or  Reversion. 

This  agreement,  etc.,  witnesseth  : 

That  said  A.  B. ,  for  the  consideration  herein- 
after named,  shall  sell  to  said  C.  D.  the  remain- 
der or  reversion  in  fee  which  will  take  effect  upon 
the  death  of  E.  F.  in  all  that  part  or  parcel  of 

land  situated  in ,  and  described  as  follows,  to 

wit  {describing  it  by  its  surveyed  boundaries'). 

That  said  A.  B.  shall,  within  days  from 

the  date  hereof,  make  and  deliver  to  said  C.  D. 
an  abstract  of  the  title  of  said  premises. 

That  said  A.   B.   shall  on  the  day  of 

next,  and  on  receiving  from  said  C.  D.  the  sum 

of dollars,  and  at  the  costs  and  charges  of 

said  grantee,  execute  a  good  and  sufficient  con- 
veyance to  the  said  C.  D.  in  fee  of  the  remainder 
and  reversion  aforesaid. 

That  said  conveyance  shall  be  prepared  at  the 
expense  of  said  A.  B.,  and  that  the  same  shall  be 
settled  and  approved  by  said  parties  and  their  re- 
spective attorneys  or  solicitors,  and  that  each  of 
said  parties  shall  pay  the  fees  of  his  own  attorney, 
conveyancer,  counsel,  or  solicitor. 

In  witness,  etc. 

Con  tract — Sale. 

Real  Estate — By  Warranty  Deed,  Damages  Fixed. 

S*e  Agreement /or  Purchase  of  Real  Property,  below, 

and  titl«  SoNp  fou  Pbe*,  post. 


This  agreen?ent,  made  this day  of ,  A. 

D. ,  by  and  between  A.  B.,  of county,  in 

the  State  of ,  of  the  first  part,  and  C.  D.,  of 

county,  in  the  State  of ,  of  the  second 

part,  witnesseth  : 

That  said  party  of  the  first  part,  for  the  consid- 
eration hereinafter  mentioned,  covenants  and 
agrees  to  sell  and  convey  unto  said  party  of  the 
second  part,  his  heirs  and  assigns,  all  the  follow- 
ing described  real  estate  situated  in  the  county 
of ,  and  State  of ,  to  wit  {describitig  it). 

That  said  party  of  the  second  part,  in  consid- 
eration thereof,  covenants  and  agrees  to  pay  unto 
the  said  party  of  the  first  part,  for  the  same,  the 

sum  of dollars,  as  follows  (stating  the  time 

place,  number,  and  amount  of  payvtents). 

That  said  party  of  the  first  part,  on  receiving 
said  sum  and  sums  of  money,  at  the  time  and  in 
the  manner  aforementioned,  shall,  at  his  own  ex- 
pense, execute  and  deliver  to  said  party  of  the 
first  part,  a  good  and  sufficient  warranty  deed, 
conveying  (and  assuring)  unto  said  party  of  the 
second  part  (an  indefeasible  estate  of  inheritance,  in 
fee  simple,  of  and  in)  all  and  singular  the  above  de- 
scribed premises,  with  the  appurtenances,  and 
warrant  that  the  same  are  free  (clear,  discharged, 
and  unincumbered  of  .ind)  from  all  (former  and  other 
grants,  titles,  charges,  estates,  judgments,  taxes,  assess- 
ments and)  incumbrances,  of  whatever  nature  or 
kind  soever. 

That  said  party  of  the  first  part  is  to  retain  pos- 
session of  said  premises  until  the day  of , 

A.  D. ,  when  the  same  shall  be  delivered  up 

to  said  party  of  the  second  part,  upon  his  com- 
pliance with  the  agreements  hereinbefore  con- 
tained : 

That  said  party  of  the  second  part  shall  pay  all 
taxes  or  assessments  becoming  chargeable  to  or 
upon  said  premises  after  delivery  of  possession 
thereof  as  aforesaid.  , 

That  if  default  be  made  in  fulfilling  this  agree- 
ment, or  any  part  thereof,  by  or  on  behalf  of  said 
party  of  the  second  part,  this  agreement  shall, 
at  the  option  of  said  party  of  the  first  part,  be 
forfeited  and  determined,  and  said  party  of  the 
second  part  shall  forfeit  all  payments  made  by 
him  on  the  same,  and  such  payments  shall  be  re- 
tained by  said  party  of  the  first  part  in  full  satis- 
faction, and  in  liquidation  of  all  damages,  by  him 
sustained,  and  he  shall  have  the  right  to  re-enter 
and  take  possession  of  said  premises. 

That  all  covenants  and  agreements  herein  con- 
tained shall  extend  to  and  bind  the  respective 
heirs,  executors,  administrators,  and  assigns  of 
said  parties. 

In  witness  whereof,  etc.  A.  B 

\^iVitnesses.\  C.  D 

Contract — Sale,  etc. 

Real  Estate —  With  Stipulation. 

This  agreement,  etc.,  witnesseth  : 

That  said  A.  B.,  in  consideration  of  the  St,  /-,< 

of  dollars,  to  be   paid   him   by  said   C.  T!.., 

at    or   before    the   delivery    of   this    agreement, 

and  the  further  sum  of dollars,  to  be  pcid  aa 

hereinafter  mentioned,  does  hereby  (for  himself, 
his  heirs,  executors,  and  administrators)  agree  with 
C.  D.  (his  heirs,  executors,  and  administrators)  that 
he  will  at  his  own  (or  said  C.  D.'s)  costs  and 
charges  (except  fees  of  counsel),  on  or  before  the 

day  of next,  grant,  bargain,  sell,  convey, 

release,  and  assure  to  said  C.  D.  and  his  heirs  (or 
to  whom  he  shall  appoint  or  direct)  all  that  tract  or 

parcel  of  land  situated  in ,  in  the  State  of , 

with  covenants,  to  be  therein  contained,  that  the 
said  premises,  at  the  time  of  such  conveyance, 
are  free  from  all  incumbrances  and  demands 
whatsoever  (excepting,  etc.,  stating  -what),  and  all 
other  usual  and  reasonable  covenants. 

That  said  C.  D.  (for  himself,  his  heirs,  executors, 
and  administrators)  agrees  with  said  A.  B.  (his  heirs, 

executors,  and  administrators)  that  said  sum  of 

dollars  shall  (well  and  truly)  be  paid  at  the  time  »/ 
executing  said  conveyance. 

(That  for  the  true  and  faithful  performance  of  all  an.', 
every  covenant  and  agreement  aforesaid,  said  partLii 
bind  themselves,  their  heirs,  executors^  and  adminis- 
trators, each  to  the  vtber  iii  the  penal  su<n  of  — -^ 
dollars.) 


afo 


CONTRACTS. 


Approval  by  Counsel. 

That  if  the  counsel  of  said  C.  D.  shall  not  approve  of 
the  title  of  said  A.  B.  to  said  premises,  this  agreement 
shall  be  void. 

Approval  by  Counsel  and  Approval  by  Buyer  on 
View,  etc. 

That  in  case  the  counsel  of  said  C.  D.  shall  not  approve 
of  the  title  of  said  A.  B.,  or  in  case  said  C.  D.,  on  his 
view  thereof,  will  not  proceed  in  the  purchase  thereof, 
and  shall  within  one  month  from  the  date  hereof  give 
■otice  in  writing  to  said  A.  B.  that  he  will  not  purchase 
said  premises,  then,  and  in  either  case,  these  presents 
shall  be  absolutely  void,  and  said  A.  B.  shall,  within 
months  next  ensuing,  repay  or  cause  to  be  re- 
paid unto  said  C.  D.  said  sum  of dollars,  paid  as 

aforesaid,  together  with  legal  interest  for  the  same 
from  the  date  of  its  payment  until  the  date  of  its  repay- 

BMDt. 

Delay  or  Default  of  Either  Party. 

That  if  by  reason  of  any  delay,  default  or  neglect  on 
the  part  of  said  A.  B.  or  his  counsel  or  agents,  said 
conveyance  is  not  ready  and  tendered  to  said  C.  D.  on 

or  before  said day  of ,  said  A.  B.   shall  pay 

and  allow  to  said  C.  D. interest  for  said  sum  of 

dollars,  to  be  computed  from  the day  of , 

■ntil  the day  of . 

That  if  by  reason  of  any  delay,  default  or  neglect  on 
the  part  of  said  C.  D.,  such  conveyance  shall  not  be 

executed   on    or   before   the  day  of ,  then    no 

such  interest  shall  be  paid  or  allowed  by  said  A.  B. 
during  the  time  of  such  delay. 
Fire. 

That  in  case  any  of  the  buildings  upon  said  premises, 
ot  any  part  thereof,  shall  be  damaged  or  destroyed  by 
fire,  the  same  shall  be  repaired  or  rebuilt  as  soon  there- 
after as  possible,  and  that  in  the  meantime  said  A.  B. 

shall  pay  the  sum  of dollars,  in  lieu  of  said  C.  D. 

being  deprived  of  the  use  thereof,  and  the  damage  occa- 
sioned in  such  repairs  or  rebuilding. 
Insurance. 

That  said  A.  B.  shall,  in  the  meantime,  keep  said 
buildings  fully  insured  in  good  and  responsible  insurance 
companies,  and  upon  the  execution  of  said  conveyance 
to  assign  all  policies  of  insurance  to  said  CD.,  and 
failing  so  to  insure,  said  C.  D.  may  effect  such  insur- 
ance, deducting  all  costs  and  charges  therefor  from  said 
last  named  payment. 

Non-performance  by  One  Releases  the  Other. 

That  if  either  party  shall  neglect  to  perform  his  or 
their  parts  of  the  covenants  and  agreements  herein  con- 
tained, then  and  in  such  case  the  other  party  shall  in  no- 
wise be  obliged  to  perform  his  covenants  and  agree- 
ments or  any  of  them  herein  contained,  but  shall  at  his 
own  option  be  fully  discharged  from  the  same. 
Purchase  Money,  etc. 

That  said  C.  D.,  upon  the  execution  of  said  convey- 
ance according  to  the  true  intent  of  this  agreement, 
shall  pay  or  cause  to  be  paid  unto  said  A.  B.  said  sum 

of dollars  in  full,  for  the  purchase  of  said  premises  ; 

Or, 

That  said  C.   D.   may  retain  out  of  said  purchase 

money  the  sum  of ,  for  the  purpose  of  paying  off 

the  sura  of ,  secured  by  a  mortgage  on  said  prem- 
ises given  by  said  A.  B.  to  one  E.  F.,  bearing  date  the 

day  of ,  when  said  sum  shall  become  due  by 

virtue  of  the  terms  of  said  mortgage. 

Title  Proving  Defective,  etc. 

That  in  case  the  said  A.  B.  cannot  make  out  a  good 
title  to,  and  execute  a  good  and  valid  conveyance   of 

said  premises,  on  or  before  the day  of ,  tlien 

said  (naming^ the  right  secured),  and  every  part  there- 
of, shall  remain  a  security  to  said  C.  D.  for  the  repay- 
ment of  said  sum  of dollars  paid  as  aforesaid,  to- 
gether with  lawful  interest  thereon  until  the  repayment 
thereof. 

That  in  addition  thereto,  all  rents  as  said  C.  D.  shall 
have  received  out  of  said  premises  shall  be  allowed  by 
said  A.  B.  in  part  payment  of  the  same  and  interest. 

Waste  and  Underletting. 
That  said  C.  D.  shall  not  in  the  meantime  cut  down 
any  timber  or  trees,  or  commit  any  damages  or  waste 
whatever,  in  or  upon  any  part  of  said  premises,  or 
suffer  the  same  to  be  done,  nor  grant  any  new  leases  of 
said  premises  or  any  part  thereof,  without  the  consent 
of  said  A.  B.  or  his  legal  representatives  in  writing. 


Contract— Nnle. 

Stack  and  Good-will  with  Restraini. 

This  agreement,  etc.,  witnesseth  : 

That  said  A. B.,  for  the  consideration  hereinafter 
mentioned,  shall  sell  to  said  C.  D.  all  the  stock 
of  goods,  wares  and  merchandise  belonging  to 

said  A.  B.,  now  in  the store,  occupied  oy  him 

in  ,  together  with  all  furniture  and  fixtures 

thereunto  appertaining,  and  also  all  goods,  ^vares 
and  merchandise  bought  or  contracted  for  by 
said  A.  B.,  and  intended  for  said  store,  together 
with  the  good-will  of  the  business  heretofore 
carried  on  there  by  said  A.  B. 

That  said  stock  of  goods,  wares  and  merchan- 
dise shall  be  inventoried  by  said  A.  B.  at  its 
original  cost,  and  excluding  all  costs  fur  carriage 
or  transportation,  and  making  deduction  for  de- 
preciation in  value  from  damage,  wear,  tear  or 
other  causes.  That  all  the  furniture  and  fixtures 
shall  be  inventoried  at  their  fair  cash  value. 

That  said  inventory  shall  be  completed  within 

days  from  the  date  hereof,  and  the  property 

above  specified  thereupon  immediately  delivered 
to  said  C.  D. 

That  said  A.  B.  shall  not,  at  any  time  hereafter 

within  from   said  place    of   business    now 

occupied  by  him,  engage  directly  or  indirectlj', 
either  as  agent,  principal,  servant,  or  otherwise, 
in  carrying  on,  conducting,  or  being  interested  ia 
said  business  of . 

That  said  C.  D.,  in  consideration  thereof,  shall 
pay  said  A.  B.  the  sum  of dollars,  as  follows: 

dollars  upon   the  delivery  of  said  goods, 

wares,  merchandise,  furniture  and  fixtures. 

dollars  on  the day  of next,  in  full 

payment  therefor,  which  sum  shall  be  secured 
hy  the  promissory  note  payable  at ,  and  bear- 
ing interest  at    the    rate  of  per  cent,   per 

annum,  from  date,  until  paid. 

Con  t  raet  —Sale. 

Shares  of  Stock  in  Corporation. 
This  agreement,  etc.,  witnesseth : 
That  said  A.  B.  shall  sell  and  convey  to  said 

C.  D.,  on  or  before  the day  of next,  on<e 

hundred  shares   of  the  capital  stock  of  the « 

company,  now  owned  and  held  by  said  A.  B. , 
and  standing  in  his  name  on  the  books  of  said 
company,  and  to  execute  unto  said  C.  D.  all  as- 
signments, conveyances  and  transfers  necessary 
to  assure  the  same  to  him,  his  heirs  and  assigns. 

That  said  C.  D.,  in  consideration  thereof,  shall 
pay  unto  said  A.  B.  for  each  and  every  share  of 
said  stock  the  average  market  price  of  the  same 

for  and  during  twenty  days   preceding  the  

day  of aforesaid,  to  be  determined  by  the 

safes  made  at  the  board  of  brokers  in  the  city 
of . 

In  witness  whereof,  etc. 

Coiitract^Sale. 

Shares  of  Stock  in  a  Corporation. 

This  agreement,  etc.,  witnesseth: 

That  said  A.  B.  shall  sell,  transfer  and  convey 
to  said  CD.,  on  the  day  of ,  one  thou- 
sand shares  of  the ,  now  owned  by  said  A.  B., 

and  standing  in  his  name  on  the  books  of  said 
company,  and  to  execute  and  deliver  to  said  C. 

D.  all  necessary  assignments,  conveyances  and 
transfers  concerning  the  same. 

That  said  C  D.  shall  pay  said  A.  B.  therefor, 

dollars  for  each  share  of  said  stock,  on  the 

day  of next. 

In  witness  whereof,  etc. 

Contract — Sale. 

Timher  Grouting. 

This  agreement,  etc.,  witnesseth  : 

That  said  A.  B.,  for  the  consideration  herein- 
after mentioned,  shall  sell  unto  said  C.  D.  all 
and   singular  the   timber-trees  and  other  trees, 

being  upon  a  certain  tract  of  land  in  ,  and 

bounded  as  follows  (stating  the  bounds'),  all  of 
which  are  marked  with  the  letter  "T,"  and  being 
of  the  kind  and  number  as  follows  : 

One  hundred  white  oak  trees,  marked  with  the 
letter  "T." 

One  hundred  and  thirty trees,  etc. 

That  said  C.  D.  shall,  between  the day  of 

,  and  the day  of next,  have  authority 


CONTRACTS. 


261 


fey  himself  or  servants  to  fell  said  trees,  and  to 
lay  and  place  barks  of  said  oak-trees  upon  said 
premises  to  dry. 

That  said  C.  D.  shall  have  full  liberty  to  carry 
off  said  >vood,  trees,  boughs,  lops  and  tops  of  the 
whole  of  said  wood  in  the  usual  manner,  and 
without  interruption  during  said  time. 

That  said  C.  D.  shall  have  full  authority  and 
liberty,  by  himself,  or  servants,  agents,  or  work- 
men, and  other  persons  to  whom  he  may  sell 
said  timber  and  wood,  etc.,  to  dig  sawpits,  and 
break  up  and  saw  said  timber  into  convenient 
lengths  for  removal  or  use  during  said  time. 

That  said  C.  D.,  in  consideration  thereof,  shall 
pay  said  A.  B.,  or  his  legal  representatives,  the 

sum  of dollars,  in  the  manner  following,  viz. 

(gniing  terms,  times,  and  amounts  of  payments]. 

That  said  C.  D.  shall  mend  and  repair  all  fences, 
hedges,  and  enclosures,  and  all  places  broken  or 
otherwise  damaged  or  destroyed  in  felling,  hew- 
ing, or  carrying  away  said  timber,  etc.,  within 
the  time  limited  as  aforesaid. 

In  witness,  etc. 

Con  t  ra  ct^Sale. 
Trees — Fruit. 

This  agreement,  etc.,  witnesseth  : 

That  said  A.  B.  shall  sell  and  deliver  to  said  C. 

D.,at  his  dwelling-house  in  ,  one  thousand 

apple  trees,  three  hundred  peach  trees,  two  hun- 
dred plum  trees,  one  hundred  pear  trees,  etc.,  all 
in  good  order  for  transplanting,  in  the  month  of 
May  next,  at  the  following  prices,  to  wit : 

For  each  hundred  apple  trees,  twenty  dollars. 

For  each  hundred  peach  trees,  fifteen  dollars. 

Etc.,  etc. 

That  said  C.  D.,  in  consideration  thereof,  agrees 
to  purchase  said  trees  in  the  quantities  and  for 
the  prices  aforesaid,  and  to  pay  said  A.  B.  the 
price  therefor  in  cash  upon  the  delivery  of  said 
fa  ees. 

In  witness  whereof,  etc. 

Con  tract — Sale. 
Vessel  Enrolled. 

This  agreement,  etc.,  witnesseth  : 

That  said  A.  B.,  owner  of  the  brig  or  vessel 
«  ailed  the  "  Dolphin,"  of  four  hundred  tons  bur- 
tnen,  or  thereabouts,  in  consideration  of  the  sum 

cf dollars,  lawful  money  of  the  United  States 

of  America,  to  me  paid  before  the  delivery  of 
these  presents,  the  receipt  of  which  is  hereby 
scknowledged,  does  by  these  presents  bargain, 
sell,  and  convey  said  brig  or  vessel,  together  with 
the  anchors,  boats,  bowsprit,  cables,  masts,  sails, 
and  all  other  accessories,  appurtenances,  neces- 
saries, and  paraphernalia  thereunto  belonging,  or 
in  anywise  appertaining,  to  said  C.  D. 

That  the  certificate  of  enrolment  of  said  brig 
or  vessel  is  as  follows  {here  copy  the  certificate). 

That  said  A.  B.  shall  warrant  and  defend  said 
brig  or  vessel,  and  all  the  above-mentioned  acces- 
sories, appurtenances,  necessaries,  and  parapher- 
nalia against  the  claims  of  all  and  every  person 
or  persons  whomsoever. 

In  witness  whereof,  etc. 

Coittraot— Sale. 

Wheat. 

This  agreement  witnesseth : 

That  A.  B.  shall,  at  his  own  cost  and  expense, 

deliver  to  C.  D.,  at ,  on  or  before  the day 

of ,  five  hundred  bushels  of  good,  clean,  and 

merchantable wheat. 

That  said  C.  D.  shall,  within  three  months  after 

such  delivery,  pay  unto  said  A.  B.  the  sum  of 

(per  bushel )  therefor.  {Signed)  A.  B. 

Dated ,  C.  D. 

Contract— Sale. 
Wlieat. 

This  agreement,  etc.,  witnesseth  : 

That  said  A.  B.  has  this day  of ,  sold  to 

C.  D. bushels  of  good,  clean,  merchantable 

winter  (<7r  spring)  wheat  'of  the  first  (niality),  to  be 
delivered  to  said  C.  D.  free  of  all  charges  or  ex- 
pense whatsoever,  at  ,  on  or  before  the  

day  of . 

That  said  C.  D.  shall  pay  or  caus;  to  be  paid  to 

said  A.  B.  therefor  within  days  (or  months) 

from  such  delivery,  the  sum  of dollars. 

In  witness  whereof,  etc. 


Contract— Kale. 

Of  Wood  or  Stone. 

This  agreement,  etc.,  witnesseth  : 

That  said  A.  B.,  for  the  consideration  herein- 
after mentioned,  shall  sell  to  said  C.  D.  five  hun- 
dred  cords  of  seasoned  maple  and  hickory  cord< 
wood,  and  deliver  and  securely  pile  the  same  on 
the  left  bank  of  the  river  {or  canal)  Immedi- 
ately east  of  the bridge,  in  the  town  of 

(or  one  thousand  perches  of  good  quarry-stone  suitable 
for   building,   and   deliver   and   cord   the  same  on   the 

south  side  of  the  vacant  lot,  No. ,  on street,  in 

the  town  of ). 

That  said  C.  D.,  in  consideration  thereof,  shall 

pay  said  A.  B.  the  sum  of for  each  and  every 

cord  {or  perch)  aforesaid,  upon  the  complete  and 
final  delivery  thereof. 

In  witness  whereof,  etc. 

Contract — Security. 
Change  0/  Mortgage  Security. 

This  agreement,  etc.,  witnesseth: 

That  said  A.  B.  has  this  day  conveyed  to  said 
C.  D.,  E.  F.,  and  G.  H.,  by  warranty  deed,  ten 
acres  of  land  situate  on  the  southeast  corner  of 

Front  and  Eighth  streets,  in  the  town  of ,  for 

the  consideration  of  one  thousand  dollars. 

That  in  order  to  secure  the  payment  of  eight 
hundred  dollars  in  eight  annual  payments,  with 
interest,  from  this  date,  said  C.  D.,  E.  F.,  and  G. 
H.  have  executed  to  said  A.  B.  a  mortgage  upon 
said  premises. 

That  said  C.  D.,  E.  F.,  and  G.  H.  intend  to  di- 
vide said  premises  into  town  lots,  and  sell  and 
dispose  of  the  same. 

That  said  C.  D.,  E.  F.,  and  G.  H.,  and  their 
legal  representatives,  shall  at  all  times  hereafter 
have  the  right  of  changing  the  security  above 
mentioned  by  substituting  instead  of  the  same, 
or  of  any  part  thereof,  the  like  security  on  other 
real  estate  of  at  least  equal  value. 

That  upon  said  substitution  said  A.  B.,  or  his 
legal  representative,  shall,  upon  request,  forth- 
with execute  and  deliver  said  C.  D.,  E.  F.,and 
G.  H.  good  and  sufficient  releases,  discharging 
said  mortgage,  or  the  lien  upon  any  portion  of 
the  premises  therein  described 

In  witness,  etc. 

Contract — Shipping  Seamen. 
Articles  of  Agreement  between  Master  and  Seamen 

in  ike  Merchant  Service  of  the   United  States,  re- 
quired by  Act  of  Congress  approved  yune  -jth,  1872. 

Any  erasure,  interlineation,  or  alteration  in  this  agree- 
ment will  be  void,  unless  attested  by  a  shipping  com- 
missioner, consul,  or  vice-consul,  to  be  made  with  the 
consent  of  the  persons  interested. 

United  States  of  America. 

U.  S.  Shipping  Commissioner  for  the  Port  of . 

office  at  No. Street. 

It  is  agreed  between  the  master  and  seamen,  or 

mariners,  of  the ,  of  which is  at  present 

master,   or   whoever  shall  go   for  master,   nowr 

bound  from  the  port  of to  {here  the  voyage  is  to 

be  described,  and  the  places  named  at  ivhich  the  ship 
is  to  touch,  or,  if  that  cannot  be  done,  the  general  na- 
ture and  probable  length  of  the  voyage  is  to  be  stated, 
and  the  port  or  country  at  ivhich  the  voyage  is  to  ter- 
minate. 

Scale  of  Provisions  to  be  allowed 
and  served  out  to  the  crew  during  the  voyage,  in  addi- 
tion to  the  daily  issue  of  lime  and  lemon  juice  and  sugar, 
or  other  anti-scorbutics  in  any  case  required  by  law. 


. 

. 

.0 

7 

£ 

.a 

T 

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0 

8 

1 

t 

f 

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J. 

1 

1 

3 

1 

i 

i 

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n 

0 
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IX 

5 

6 

(h 

^ 

Sunday, 

Monday, 

— 

— 

Tuesday, 

— 

Wednesday, 

— 

— 

Thursday, 

— 

Friday, 

— 

— 

Saturday, 

■" 

Substitutes. 
One  ounce  of  coffee,  or  cocoa,  or  chocolate  may  be 


aSs 


CONTRACTS. 


substituted  for  one-quarter  ounce  of  tea,  molasses  for 
sugar,  the  quantity  to  be  one-half  more  ;  one  pound  of 
potatoes  or  yams  ■,  one-half  pound  of  flour  or  rice  ;  one- 
third  pint  of  peas  or  one-quarter  pint  of  barley,  may  be 
substituted  for  each  other. 

When  fresh  meat  is  issued,  the  proportion  to  be  two 
pounds  per  man,  per  day,  in  lieu  of  salt  meat. 

Flour,  rice,  and  peas,  beef,  and  pork  may  be  substituted 
for  each  other,  and  for  potatoes  onions  may  be  substituted. 

General  Conditions. 
'  And  the  said  crew  agree  to  conduct  them.selves  in  an 
orderly,  faithful,  honest,  and  sober  manner,  and  to  be 
at  all  times  diligent  in  their  respective  duties,  and  to  be 
obedient  to  the  lawful  commands  of  the  said  master,  or 
el  any  person  who  shall  lawfully  succeed  him,  and  of 
their  superior  officers,  in  everything  relating  to  the  said 
ship,  andthestores  and  cargo  thereof,  whether  on  board, 
in  boats,  or  on  shore,  by  night  or  by  day;  and  in  con- 
sideration of  which  service  to  be  duly  performed,  the 
said  master  hereby  agrees  to  pay  to  the  said  crew,  as 
wages,  the  sums  against  their  names  respectively  ex- 
pressed, and  to  supply  them  with  provisions  according 
to  the  annexed  or  above  scale.  And  it  is  hereby  agreed, 
that  any  embezzlement  or  wilful  or  negligent  destruc- 
tion of  any  part  of  the  ship's  cargo  or  stores  shall  be 
made  good  to  the  owner  out  of  the  wages  of  the  person 
guilty  of  the  same.  And  if  any  person  enters  himself  as 
qualified  for  a  duty  which  he  proves  himself  incompe- 
tent to  perform,  his  wages  shall  be  reduced  in  proportion 
to  his  incompetency,  said  incompetency  to  be  decided 
upon  by  the  shipping  commissioner.  And  it  is  also 
agreed,  That  if  any  member  of  the  crew  considers  him- 
self to  be  aggrieved  by  any  breach  of  the  agreement  or 
otherwise,  he  shall  represent  the  same  to  the  master  or 
officer  in  charge  of  the  ship  in  a  quiet  and  orderly  man- 
ner, or  to  the  said  shipping  commissioner,  who  shall 
thereupon  take  such  steps  as  the  case  may  require. 
And  it  is  also  agreed.  That  we,  the  said  mariners,  are 
to  load  and  discharge  the  cargo  if  required.  {Here  any 
other  stipulations  may  be  inserted  to  v/kich  ike  parties 
agree,  and  which  are  not  contrary  to  la'M.^ 

No  sheath  knives  nor  grog  is  allowed,  and  none 
to  be  brought  on  board  by  the  crew,  and  if  any 
liquor  is  found  secreted  on  the  person  of,  or 
among  the  effects  of  the  crew,  the  same  is  to  be 
disposed  of  as  the  master  may  direct,  and  no 
profane  language  is  permitted  on  board. 


\ 

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W3 

» 

i.S.  E. 

a.  M.N. 

3.  Etc. 

Height. 

Descr 

ption. 

Wages 

per 
Month. 

Wages 

X 

0. 

1 
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i 

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Run. 

iFt.  |In. 

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Whole 
Amount 
Wages. 

0  rt  2 

%    i    c 

Mo.  1  E>s. 

$   1    c 

$    1    c 

$    1    c 

$    1    c 

1 

Place  and 
Time  of  Entry. 

e 
0 

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V  0  u 

-•rt 

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CJO" 

Place.  1  Time. 

Etc. 

p-6  N.  H.  164 ;  4  Id.  533  ;  5  Pick.  506 ;  9  Vt.  289  ;  2 
Id.  48;  5  Hamm.  58  ;  11  Mass.  114;  2  Pick.  579  ;  24 
Yt.  189;  6  Md.  113;    ao  Penn,  S^.  260;  9  Barb.  202;  10 


Contract— HubHcrtption. 

Subscription  is  the  placing  of  a  signature  at  the  bot- 
tom of  a  written  or  printed  engagement.  It  is  the  act 
by  which  a  person  contracts,  in  writing,  to  furnish  a 
sum  of  money  for  a  particular  purpose  ;  as,  a  subscrip- 
tion to  a  charitable  institution,  a  subscription  for  a  book 
and  the  like. 

When  several  promise  to  contribute  to  a  common  ob- 
ject, desired  by  all,  the  promise  of  each  may  be  a  good 
consideration  for  the  promise  of  others. P  In  general, 
subscriptions  on  certain  conditions  in  favor  of  the  party 
subscribing,  are  binding  when  the  acts  stipulated  are 
performed. 1 

Place ,  Date . 

'We,  the  undersigned,  agree  to  pay  the  amountc 
set  opposite  our  natnes,  to  (naming-  the  person  or 

corporation,  as  A.  Ti.,or  the  trustees  of  ihe church, 

in ,  etc.),  for  (here  state  the  object  or  thine,  as  a 

,  or  the  erection   of  a  house  of  worship  for  said 

church,  at ,  in ,  etc. 


Subscribers. 


Subscribers. 


Contract— Towlns:  Boats. 

This  agreement,  etc.,  witnesseth  : 
That  said  party  of  the  first  part,  in  considera" 
tion  of  the  covenant  hereinafter  contained,  shall 
provide  suitable  teams,  with  safe  and  skilful 
drivers,  and  tow  the  boats  belonging  to  said 
party  of  the  second  part  regularly  plying  between 

and ,  and  not  exceeding in  number 

during  the  entire  season  of  navigation,  to  com- 
mence on  the instant. 

That  said  party  of  the  second  part,  in  consider- 
ation of  the  premises,  shall  pay  or  cause  to  be 
paid  to  said  party  of  the  first  party,  for  each  and 
every  running   trip  so   made   by   their   boats,  as 

aforesaid,  the  sum  of dollars. 

That  two  boats  of  said  party  of  the  second  part 

shall  leave on  the day  of ,  and  three 

shall  leave  on  the  day  of ,  provided  the 

canal  shall  be  navigable  at  those  times,  and  if  not 
so  navigable  then  as  soon  thereafter  as  it  shall 
become  so. 

That  at  the  times  of  departure  from  ■ or 

during  the  remainder  of  the  season  of  navigation 
shall  depend  upon  the  convenience  cf  said  party 
of  the  second  part,  with  the  proviso,  however, 

that  not  more  than boats  shall  leave  either 

end  of  the  route,  or  more  than  boats  pass 

any  station  on  the  same  during  any  period  oT 
twenty-four  hours. 
That  when  said  boats  are  laden  to  the  burthen 

of tons  they  shall  be  towed  at  the  rate  of 

miles  per  hour,  running  time.  'When  light,  car- 
rying not  more  than tons  freight,  they  shall 

be  towed  not  less  than  miles  per  hour,  as 

aforesaid. 

That  said  party  of  the  second  part  shall  furnish 
and  provide  the  drivers  employed  by  said  party 
of  the  first  part  with  suitable  meals  or  board,  at 
regular  hours,  relieving  them  in  the  charge  of 
their  teams  at  such  times  by  one  of  the  hands  eo  - 
gaged  on  said  boats. 

That  whenever  any  boat  of  said  party  of  the 
second  part  is  detained  on  account  of  the  care- 
lessness or  negligence  of  the  agents,  drivers,  or 
servants  of  said  party  of  the  first  part,  a  deduction 
shall  be  made  from  the  compensation  of  said 
party  of  the  first  part,  as  aforesaid,  at  the  rate  of 
dollars  per  hour  during  the  time  of  each  de- 
tention, except  after  the  first  day  of  October  next, 

such  deduction  shall  be dollars  per  hour. 

That  said  party  of  the  second  part  shall  pay 
said  party  of  the  first  part,  or  to  their  regularh' 

authorized  agent  or  agents,  the  sum  of do 

lars  compensation,  to  be  paid  as  aforesaid  on  tht 

day  of  each  and  every  month  during  the  sea- 

■on  of  navigation,  subject,  however,  to  all  neces- 
sary deductions  on  account  of  detentions,  as 
aforesaid. 

That  within  days  after  the  final  close  of 

navigation   said   parties,  by  themselves  or  their 


Id 


d.  309  ;  9  Gratt.  633  ;  3  Seld.  349  ;  2  Denio,  403,  S.  C; 
.  Comst.  581;  2  Carter,  555;  37  Penn,  St.  210.  q-i« 
Pick.  5^1. 


CONTRACTS— CONVEYANCES. 


263 


agents,  shall  meet  at  the  office  of  said  party  of  the 
second  part  and  examine,  close,  and  settle  their 
respective  accounts,  and  pay  and  fully  discharge 
all  balances  which  may  be  found  due  or  owing 
upon  such  elimination  and  settlement  by  reason 
of  the  premises. 

In  witness  whereof,  etc. 

Co  ii  t  raet— Wor  k . 
General  Form. 

This  agreement,  etc.,  witnesseth  : 

That  said  A.  B.  shall  execute  and  perform  in  a 
thorough  and  workmanlike  manner  the  following 
work,  viz.:  (.describing  it). 

That  said  A.  B.  shall  be  responsible  for  all  ma- 
iirials  delivered  and  receipted  for. 

•  That  said  work  shall  be  commenced  on  the 

llay  of ,  and  be  completed  on  the day  of 

» — ,  and  delivered  free  from  all  mechanics'  or 
material  men's  or  other  liens,  on  or  before  the 
day  of ,  at . 

That  said  C.  D.  shall  pay  said  A.  B.  therefor  the 
sum  of dollars,  as  follows. 

"That  in  case  of  any  disagreement  in  reference 
to  the  performance  of  said  work,  all  questions 
of  disagreement  shall  be  submitted  to  E.  F.,  G. 
H.,and  I.  K.,  the  award  of  whom  or  a  majority  of 
them  shall  be  final  and  binding  upon  all  parties. 

In  witness  whereof,  etc. 

Contractors.  See  Contracts. 

Controversy.  See  Practice. 

Contusion.  See  Medical  Law. 

Convention.  See  Legislation. 

Conversion.  See  Practice. 

COXVEY.4XCES.  See  Acknowledgment; 
Agency;  Assignments;  Attorneys;  Contracts. 

Abstracts  of  Title  are  brief  accounts  of 
all  the  deeds  upon  which  titles  rest,  and  judg- 
ments and  instruments  affecting  such  titles.  A 
synopsis  of  the  distinctive  portions  of  the  vari- 
ous instruments  which  constitute  the  muniments 
of  title." 

The  evidences  of  title  are  usually  convey- 
ances, wills,  orders  or  decrees  of  courts,  judg- 
ments, judicial  sales,  sales  by  officers  appointed 
by  law,  acts  of  the  legislature  and  of  Congress.'' 

Conveyances.  The  abstract  of  convey- 
ances should  show : 

1.  Date. 

2.  Character  [whether  an  absolute  or  condi- 
tional conveyance  ;  as,  in  fee,  mortgage,  or  a 
lease). 

3.  Names  and  residence  of  parties,  and  if 
executors,  administrators,  guardians,  trustees, 
corporations,  officers,  or  the  like. 

4.  All  recitals  which  materially  affect  the  title. 

5.  The  testatum  clause.  This  part  of  the 
conveyance  embraces  : 

I.  Name  of  grantor.  2.  Name  of  grantee 
and  words  of  limitation ;  as,  to  "  C.  D.,  his 
heirs  and  assigns,"  or,  to  "  C.  D.  and  his  as- 
signs," or,  to  "  C.  D.  and  E.  F.,  and  the  heirs 
of  C.  D."  3.  The  consideration.  4.  The  de- 
scription of  the  premises  or  parcels.  This  is 
generally  done  by  giving  the  premises  at  large 
in  the  abstract  of  the  hrst  conveyance,  and  in 
'subsequent  conveyances  to  note  each  variation. 
5.  The  habendum — carefully  and  accurately 
stated."  6.  The  declaration  of  uses,  trusts, 
limitations,  or  special  agreements,  if  any.  7. 
Powers.  If  a  settlement  is  made  in  pursuance 
of  articles,  or  an  appointment  by  virtue  of  a 
power,  an  inspection  should  be  made  of  the 
articles  or  power.  A  deed  executed  by  attor- 
a-See  Preston  Abstracts  ;  Curwen  Abstracts  ;  Oliver's 
Conveyancing;    WhartOR   Picf,    zd   JLopd.    Ed.      b-3 


ney  should  be  produced  with  evidence  that  the 
power  of  attorney  was  recorded,  and  that  the 
principal  was  alive  when  the  deed  was  exe- 
cuted. 8.  Covenants  which  may  affect  the  ven- 
dee, and  especially  exceptions  against  incum- 
brances. 9.  By  what  parties  the  deed  is 
executed,  the  fact  of  signing,  sealing,  attesta- 
tion and  acknowledgment,  and  recording,  as 
required  by  statute. 

If  any  of  the  deeds  in  the  chain  of  title  ar« 
quit-claim,  the  reason  therefore  should  be  as- 
certained. 

Wills.  In  abstracting  wills  it  is  necessary 
to  consider: 

1.  The  date  of  the  testator's  death. 

2.  The  court  in  which  the  probate  is  made. 
The  date  of  letters  testamentary,  and  any  change 
in  the  executors  or  administrators,  by  death,  re- 
moval, or  otherwise. 

3.  Any  charge  imposed  by  the  payment  of 
debts,  legacies,  etc. 

4.  The  persons  to  whom  the  lands  are  de- 
vised. 

5.  Words  of  limitation,  modification,  condi- 
tions, charges  on  the  devisee,  etc. 

6.  Facts  which  operate  a  partial  revocation 
of  the  will ;  as,  the  birth  of  a  child,  or  the 
subsequent  alteration  of  the  estate  inconsistent 
with  the  terms  of  the  will. 

Codicils  should  be  given  in  the  order  of  their 
dates. 

Orders  or  Decrees.  Orders  or  decrees 
material  to  the  title  should  be  abstracted. 

Judgments.  A  party  claiming  title  to  real 
estate  under  an  execution  must  show : 

1.  A  valid  judgment. 

2.  A  levy  and  sale  as  required  by  law. 

3.  A  deed.  The  sheriff's  deed  must,  in  gen- 
eral, recite  the  substance  of  the  execution,  the 
names  of  the  parties,  the  action,  the  amount, 
and  the  date  of  the  rendition  of  the  judgment 
by  virtue  of  which  the  estate  was  sold,  and  be 
executed  and  acknowledged  as  required  by 
law. 

Judicial  sales  made  by  officers,  executors, 
administrators,  guardians  of  minors,  lunatics, 
etc. : — 

1 .  Must  be  examined  for  the  appointment  and 
authority  of  the  person  making  the  sale,  and 
whether  his  authority  continued  in  force  till  the 
sale. 

2.  The  service  of  summons,  notice,  or  other 
process,  upon  all  defendants,  or  persons  inter- 
ested. 

3.  The  appointment  of  guardians  ad  litem 
for  minors  when  necessary. 

4.  The  order  of  sale  and  its  confirmation. 

5.  The  deed. 

Other  sales  include  those  by  assignees  or 
commissioners  of  insolvents,  or  assignees  of 
bankrupts,  and  tax  sales.  In  the  latter  case, 
the  proper  records  should  be  examined  with  the 
utmost  care,  in  order  to  detect  any  omission  or 
defect  in   compliance  with  all  the  requisitions 

Western  Law  J.  (N.  S.)  98^-346.  C-ld.  citing  1  Prw 
ton  Abstracts,  109. 


c64 


CONVEYANCES. 


of  the  statute  ;  in  ihe  former  case,  the  leading 
points  are  the  authority  of  the  assignee,  etc., 
the  order  of  sale  and  its  confirmation,  and  the 
deed. 

Acts  of  the  legislature  may  be  considered  in 
the  same  manner  as  private  conveyances.  The 
abstract  should  show : 

1.  The  date  of  the  act. 

2.  The  title  of  the  act. 

3.  The  recitals  of  the  act. 

4.  The  enacting  clause  in  its  own  terms. 

5.  A  strict  compliance  with  the  terms  of  the 
act. 

Titles  by  Descent.  In  the  absence  of 
deeds,  pedigree  should  be  ascertained,  authen- 
ticated, and  incorporated. 

Incumbrances.  Incumbrances  may  be  as 
follows : 

1.  Judgments  in  the  county  where  the  land 
lies. 

2.  Judgments  in  the  United  States  courts. 

3.  Executions  from  other  counties. 

4.  Mortgages. 

5.  Liens  of  the  creditors  of  deceased  per- 
xms. 

6.  Dower. 

7.  Decrees  in  chancery. 

8.  Action  pending. 

9.  Taxes. 

10.  Mechanics'  liens. 

11.  Lien  of  executor,  administrator,  guar- 
dian, or  agent,  who  pays  taxes  upon  the  estate. 

12.  Leases. 

13.  Equity  of  a  vendee  in  possession. 

14.  Lien  of  a  vendor  for  purchase  money. 

15.  Caveats  in  case  of  a  contested  will. 

16.  Rents  assigned  in  lieu  of  dower. 

17.  The  levy  of  a  distress  warrant  upon  the 
property  of  certain  debtors  of  the  United  States.^ 

ABSTRACT  OF  TITLE  F0R:TIS. 
Abstract  of  Title— Oeneral  Form. 

Abstract  of  title  of  lot  No. ,  on  street 

{or  avenue),  in ,  in county,  State  of ,  or 

of  the  northwest  quarter  section ,  range , 

township  (east  or  west  of  the meridian),  in 

■ county,  State  of . 

I.  The  United  States  of  America  to : 

Patent  dated  ,  filed  ,   recorded  in  vol. 

of  the  records  of ,  conveys  said  lot  (or  par- 
cel of  land)  to . 

a.  to . 

Warranty  deed ,  filed ,  recorded  in  vol. 

of  the  records  of ,  acknowledged  before 

,  a  (ii't/e  0/  ihe  officer)  of county.  State  of 


,  etc.,  partition,  etc.,   describing 
,  etc.,  tax  deed,  etc.,  mortgage. 


3.  to 

as  above. 

4.  to 

etc. 

5.  to  ,  etc.,   judgment,  etc. 

6.  Etc.,  etc. 

State  of , county,  ss. 

I,  the  undersigned,  certify  the  foregoing  to  be  a 
/all,  true,  and  complete  abstract  of  tne  record  of 
all  conveyances  and  instruments  affecting  the 
property  therein  described,  as  the  same  appears 
upon  the  records  of  said  county,  the  circuit  and 
district  courts  of  the  United  States  for  the  dis- 
trict of ,  and  the  court  of  said  county ; 

and  that  no  judgment,  tax,  mechanics'  or  other 
Kens  of  record  in  said  county  (except,  etc.)  exist 
•gainst  said  property. 

^n  testimony  whereof,  I  have  hereunto  set  my 

ll^Acts  Congr  March  3,  1795:  May  15,  1830. 


hand  (and seal),  the day  of ,  A.  D.—— v 

( Date. )  {Signature.) 

Abstmct  or  Title — General  Form. 

Abstract  of  title  of  lots  Nos. and ,  mtk 

street  {or  avenue),  in ,  in county.  State 

of ,  from  the day  of unto  the day 

oi- . 

Title  assumed  by  consent  of  parties,  good  unto  the 
date  of  the  first  records  thereof. 

First  record,  and  in  fee,  with  general  warranty,  from 
A  B.  to  C.  D.,  consideration  ,  executed  and  ac- 
knowledged,  is    made  the   day  of  ,  in   vol. 

,  p. of  deed  record.  No. ,  of coimty 

aforesaid. 

Deed. — General  warranty,  from  C.  T.  to  E.  F., 

consideration  ,  executed    and    acknowledged        -^ 

recorded ,  in  vol. ,  p. of  deed  record,  Nou 

,  of  said  county  aforesaid. 

Deed. — Special  >varranty,  from  E.  F.  ar.d  W.  his 
wife  to  G.  H.,  consideration  ,  executed  and  ac- 
knowledged   (wife  being  separately  examined) , 

recorded  ,  in  vol.  ,  p.    ,  of  deed  record. 

No. ,  in  said  county. 

Agreement  to  sell,  convey,  aad  >varrant,  from 

G.  H.  and  W.  his  wife   to   I.   K.,  consideration  , 

executed  and  duly  acknowledged ,  recorded  in  vol. 

,  p. ,  conveyance  record  "A."  of  said  county. 

G.  H.,  died ,  leaving  W.,  his  said  wife,  and  four 

minor  children,  C.,  L.,  T).\  and  N. 

G.  N.  appointed  and  qualified  guardian  of  said  chil- 
dren. 

Order  of  probate  court  of  said  county  to  said  guardian 
to  convey  said  premises  in  conformity  with  said  agrea- 
ment. 

Guardian's  deed  from  G.  N.,  guardian  of  C,  L., 
D.,  and  N.,  minor  heirs  of  G.  H.,  deceased,  to  I.  K., 

consideration  ,  executed  and  acknowledged  , 

recorded  in  vol. ,  p. ,  of  deed  record.  No. , 

of  said  county. 

Conveys  all  estate  of  deceased  free  from  his  allow- 
ances, debts,  etc. 

Subdivided  into  lots  by  I.  K.,  surveyed  by  S.  R., 

surveyor  of  said  county,  and  numbered  from  to 

inclusive,  and  plat  recorded  in  vol.  ,  p. , 

of  deed  record,  No. ,  of  said  county. 

Will  of  I.  K.  devises  lots,  numbered  from  to 

,  and  to  ■,  and to inclusive,  to  J 

K.,   L.   K.,  and   M.  K.,  his  sons,  and  lots  nu:nbered 

,  to  his  wife  W.     Will  proved ,  and  recordeil  in 

vol. ,  p. ,  of  record  of  wills  in  the  office  of , 

in  said  coimty. 

Deed  from  E.  X.  and  T.  R.,  executors  of  said  will, 

for  lots  numbered  from  to  ,  and  to , 

and to ,  as  designated  on  the  recorded  plat  of 

said  subdivision,  to  J.  K.,  L.  K.,  and  M.  K.,  executed 

and  acknowledged ,  recorded  in  vol.  ,  p. , 

of  deed  record.  No. ,  of  said  county. 

Deed  with  covenants  of  warranty  from  J.  K., 

L.  K.,  and  M.  K.  to  N.  O.,  of  lots  numbered  to 

,  and  to  ,  and  to  inclusive,  as 

designated   on    said    sub-division,   consideration   _. 

executed  and  acknowledged ,  and  recorded  in  vol. 

,  p. of  deed  record  No. ,  of  said  county. 

Mortgage  from  N.  O.  and  W.  his  wife  to  P.  Q.  of 

lots  numbered to ,  and to  ,  and  

to ,  inclusive,  as  known  and  designated  in  said  sub- 
division, to  secure  the  sum  of ,  payable  ,  ex- 
ecuted and  acknowledged ,  recorded  in  mortgage 

record  No. ,  of  said  county. 

Declaration  (complaint,  or  petition)  of  P.  Q.  for  fore- 
closure filed . 

Answer  of  N.  O.  and  W.  his  wife,  filed . 

Replication  {or  reply)  of  P.  Q.,  filed . 

Judgment  of  foreclosure  and  order  for  sale  decreed 


of- 


Appeal  taken  to court . 

Judgment  of  court  below  affirmed, . 

sale  made  under  order  of court,  on  the  - 


■day 


Report  of  sale  of  said  lots  to  R.S.  or  the  sura  of , 

filed  and  approved and  deed  ordered  made . 

Deed  by  S.  F.,  sheriff  of county  aforesaid,  con- 
veying said  lots  to  R.  S.     Consideration ,  executed 

and  acknowledged  ,  recorded  in  deed  record  No. 

,  of  said  county. 

Escheat  of  said  lots  to  the  State  of aforesaid,  Ae 

day  of  — — ,  by  death  of  said  R.  S.,  he  being  »m 

alien. 


CONVEYANCES. 


i6s 


Afficlavit  of  A.  A.  annexed,  that  said  R.  S.  was  un- 
narried  at  the  date  of  his  death. 

An  Act  entitled  "An  act  to  release  the  interest  of 

Ihe  people  of  the  State  in   lots  numbered  from to 

,  and to  ,  and  to   ,  inclusive,  in 

,  in county,  as  known  and  designated  as  the 

•^—  sub-division  of  said ,  conveyed  by  S.  F.,  sher- 
iff of  said  county,  to  R.  S.,  and  which  escheated  on  his 

death  to  his  son  S.   S.     Approved  (or  passed )." 

Laws ,  p. .     Releases  all  the  estate,  right,  title, 

atnd  interest  of  the  people  of  this  State  acquired  by  es- 
cheat upon  the  death  of  said  R.  S.  in  and  to  said  prem. 
ises  to  his  son  S.  S. 

Deed,  general  wairanty  with  full  covenants  from  S.  S. 
and  his  wife,  conveying  said  lots  to  T.  U.  Consideration 
,  executed  and  aclcnowledged  (wife  separately  ex- 
amined)   ,  recorded  in  deed  record  No. ,  of  said 

eounty. 

Etc.,  etc. 

Opinion  concerning  title  to  said  lots,  numbered 
from to ,  etc. 

From  an  examination  of  the  transfers  above 
mentioned  I  am  of  the  opinion: 

That  all  said  transfers  and  the  acknowledg- 
ments thereof  have  been  duly  and  legally  made 
(excepting  only,  etc.) 

That  no  incumbrances  attach  at  this  date  upon 
•aid  premises  (except,  etc.,  stating  what,  if  any- 
thing). 

That  said  T.  U.  is  seized  of  an  indefeasible  estate 
in  fee  simple  in  said  premises  (subject  only  to,  etc., 
stating  what,  if  anything). 

That,  etc. 

Date .  (Signature  of  Conveyancer, 

or  Counsel.) 

Assignments.     See  that  title,  an.z. 

CONVEYANCES  are  transfers  of  the  title 
of  land  from  one  or  more  persons  or  corporations 
to  another  or  others.  It  is  the  instrument  of 
writing  for  effectmg  such  transfer. 

Absolute  conveyances  of  real  property*  are 
either  original  (primary)  or  derivative  (second- 
ary). Original  conveyances  are  by  exchange, 
feoffment,' grant,  lease,  and  partition.  Second- 
ary conveyances  are  by  assignment,  confirma- 
tion, defeasance,  and  surrender.  See  these 
titles,  below. 

Conditional  conveyances  of  real  property  are 
by  mortgage.     See  Mortgage,  below. 

Conveyances  deriving  their  force  from  stat- 
utes of  uses  are  :  Bargains  and  sale,  covenants 
to  stand  seized,  deeds  to  lead  or  declare  the 
uses  of  other  more  direct  conveyances,  deeds 
of  revocation  of  uses,  and  lease  and  release.^ 

Conveyances  by  matter  of  record  are :  By 
common  recovery,  by  fines,  by  grants  (as  by 
patents)  of  lands,  and  by  private  acts  of  the 
legislature. 

Derivative  {or  Secondary)  conveyances  are 
those  which  presuppose  some  other  conveyance 
precedent,  and  only  serve  to  alter,  confirm,  en- 
large, restrain,  restore,  or  transfer  the  interest 
granted  by  such  original  conveyance."" 

Fraudulent  conveyance  is  a  conveyance  the 
object,  tendency,  or  effect  of  which  is  to  defraud 
another,  or  the  intent  of  which  is  to  avoid  some 

e-i  N.  Y.  290,  294.  f-Gifts  of  corporeal  heredita- 
ments by  transmutation  of  possession,  Watk.  Conv.  183. 
g-i2  Washb.  R.  Prop.  600  et  seq.  I1-2  Sharsw.  Bl. 
Comm.  324.*  1-2  Kent.  Comm.  440;  4  Id.  462.  j-2 
Gray,  447.  k-6  Watts,  42q,  453  ;  5  Binn.  109  ;  1  Yeates, 
291  ;  3  W.  &  S.  255 ;  4  Ired.  102 ;  9  Pick.  93  ;  20  Id. 
347.  354  ;  I  Ohio,  469  :  2  South.  738  ;  2  Hill  (S.  C.)  488  ; 
7  Johns.  161 ;  I  W.  Bl.  262.  I-2  Sharsw.  Bl.  Comm. 
310;*  I  Stephen  Comm.  466.  in-5  Day,  223,  341  ;  i 
Johns. Cas.  161  ;  4  Johns.  Ch.  450;  3  Conn.  450;  4ld.  i; 
^  T«bns.  536  ;  15  Id.  14  ;  a  Munf.  363.    n-8  Wheat.  229 ; 


duty  or  debt  due  by  or  incumbent  on  the  party 
making  it.* 

All  conveyances  made  with  intent  to  defraud 
creditors  are  void.  Voluntary  conveyances  are 
not  so  construed,  where  the  subsequent  pur- 
chaser has  notice,  especially  if  there  be  a  good 
consideration.J  But  although  such  conveyances 
are  void  as  regards  purchasers  and  creditors, 
they  are  valid  as  between  the  parties.* 

Original  [or  Primary)  conveyances  are  those 
by  which  the  benefit  or  estate  first  ari.ses  or  is 
created,  as  by  gift,  grant,  lease,  exchange,  par- 
tition, etc' 

Voluntary  conveyances  are  transfers  of  es- 
tate made  without  any  adequate  consideration 
of  value. 

Whenever  a  voluntary  conveyance  is  made,  a 
presumption  of  fraud  properly  arises.  This 
presumption  may  be  repelled  by  showing  that 
the  transaction  on  which  the  conveyance  was 
i')unded  virtually  contained  some  conventional 
stipulations,  some  compromise  of  interests,  or 
reciprocity  of  benefits,  that  point  out  an  object 
and  motive  beyond  the  indulgence  of  affection 
or  claims  of  kindred,  and  not  reconcilable  with 
the  supposition  of  intent  to  deceive  a  purchaser. 

But  unless  so  repelled,  such  a  conveyance, 
coupled  with  a  subsequent  negotiation  for  sale, 
is  conclusive  evidence  of  a  statutory  fraud.™ 

A  distinction  is  made  between  previous  and 
subsequent  creditors ;  such  a  conveyance  is  void 
as  to  the  former,  but  not  as  to  the  latter."  And 
a  conveyance  by  a  father  who,  though  in  debt, 
is  not  in  embarrassed  circumstances,  who  makes 
a  reasonable  provision  for  a  child,  leaving  prop- 
erty sufficient  to  pay  his  debts,  is  not  per  se 
fraudulent." 

Gifts  of  goods  and  chattels,  as  well  as  of 
lands,  by  writing  or  otherwise,  made  with  in- 
tent to  delay,  hinder,  and  defraud  creditors,  are 
void  as  against  the  person  to  whom  such  frauds 
are  prejudicial.? 

As  between  the  parties  such  conveyances  are 
in  general  good.i  And  when  it  has  once  been 
executed  and  delivered,  it  cannot  be  recalled, 
even  where  an  unmarried  man  executes  a  vol- 
untary trust  deed  for  the  benefit  of  future  chil- 
dren; nor  can  he  relieve  himself  from  a  provi- 
sion in  the  conveyance  to  the  trustee  under 
which  the  income  of  the  trust  properly  is  to  be 
paid  to  him  in  the  discretion  of  a  third  person.' 

Acknowledgment.  See  that  title,  ante, 
where  the  precise  legal  requisites  and  practical 
forms  in  general  use  in  each  of  the  States,  Ter- 
ritories, and  Canadas  are  given. 

Assurance.  Any  instrument  which  con- 
firms the  title  to  an  estate,  or  is  legal  evidence 

3  Johns.  Ch.  481.  And  see  6  Ala.  (N.  S.)  506;  9  Id. 
937;  10  Conn.  69;  I  Md.  Ch.  Dec.  507  ;  2  Gray,  447. 
0-4  Wheat.  27  ;  6  W.  &  S.  97  :  4  Vt.  389  ;  6N.  H.67; 
II  Leigh.  137:  5  Ohio,  121.  p-3  Johns.  481  ;  i  Halst. 
450  ;  5  Cow.  87  ,  8  Wheat.  229  ;  11  Id.  199  ;  12  S.  &  R. 
448  ;  1  Rawle.  231 ;  9  Mass.  590;  11  Id.  421 ;  4  Me.  52; 
2  Pick.  411;  4  M'Cord,  294;  i  Const.  i8o ;  a  Nott. 
&  M'C.  334;  Coxe,  56;  Hare  &  Wall  Sel  Dec  33- 
6q.  q-2  Rand.  384 ;  i  Johns.  Ch.  329,  336 ;  1  Wash. 
Cf.  C.  «74.     r-a  Mylne  &  K.  496;    sc?  2  Moll.  Cr 


266 


CONVEYANCES. 


of  the  transfer  of  property,  is  called  an  assur- 
ance.^  Common  assurances  are  deeds  or  con- 
veyances which  make  safe  or  assure  to  a  man 
the  title  to  his  estate,  and  this  whether  they  are 
instruments  of  conveyance  or  to  charge  or  dis- 
charge. 

"  Further  assurance  "  is  a  phrase  frequently 
used  in  covenants  when  a  covenantor  has 
granted  an  estate,  and  it  is  supposed  that  some 
further  conveyance  may  be  required  ;  he  then 
entere  into  a  covenant  for  further  assurance, 
that  is,  to  make  any  other  conveyance  which 
may  lawfully  be  required.  See  Covenants, 
below. 

Attestation  is  the  act  of  witnessing  an  in- 
strument in  writing,  at  the  request  of  the  party 
making  the  same,  and  subscribing  it  as  a  wit- 
ness.* 

Conveyances  at  common  law  did  not  require 
attestation  in  order  to  be  valid." 

Attestation  of  conveyances  is  required  in 
many  of  the  States,  in  others  it  is  not  necessary. 

The  attesting  witness  need  not  see  the  grantor 
write  his  name ;  if  he  sign  in  the  presence  of 
the  grantor,  and  at  his  request,  it  is  sufficient.'' 
Where  there  are  statutory  regulations  on  the 
subject,  they  must  be  complied  with. 

Wills  must  be  attested  by  competent  and 
credible  witnesses,"  who  must  subscribe  their 
names  attesting  in  the  presence  of  the  testator.'' 

See  attestation  clauses  in  Assignments; 
Contracts,  ante. 

Backside  is  the  yard  at  the  back  part  of  or 
behind  the  house,  and  belonging  thereto.  This 
term  was  formerly  much  used,  both  in  convey- 
ances and  pleading,  but  now  is  seldom  used, 
and  occurs  only  in  conveyances  which  repeat 
an  ancient  description.^     See  Yard,  below. 

Bargain  and  sale  is  a  contract  or  bargain 
by  the  owner  of  land  in  consideration  of  money 
or  its  equivalent  paid,  to  sell  land  to  another 
person  called  the  bargainee,  whereupon  a  use 
arises  in  favor  of  the  latter,  to  whom  the  seizin 
is  transferred  by  force  of  the  statute  of  uses.* 
In  consequence  of  the  consideiation  paid,  and 
the  bargain  made  by  the  vendor,  of  which  the 
conveyance  was  evidence,  a  use  was  raised  at 
once  in  the  bargainee ;  to  this  use  the  statute 
of  uses  transferred  and  annexed  the  seizin 
whereby  a  complete  estate  vested  in  the  bar- 
gainee.* 

All  things,  for  the  most  part,  that  may  be 
granted  by  any  deed  may  be  granted  by  bargain 
and  sale,  and  an  estate  may  be  created  in  fee, 

tl-2  Bl.  Comm.  294.  t-3  P.  Wms.  254;  2  Ves.  Ch. 
454;  I  Ves.  &  B.  Ch.  362;  3  A.  K.  Marsh,  146;  17 
Pick.  373.  li-i  Wood  Conv.  354  ;  2  Bl.  Comm.  307 :  3 
Dane  Abr.  354  ;  Cheeves,  273  ;  12  Met.  Mass.  V-2  Bos. 
&  P.  217.  W-2  Greenl.  Ev.  6gi  ;  9  Pick.  350:  i  Burr. 
414;  4  Bum.  Eccl.  (Phill.  Ed.)ii6.  X-7  Harr.  &  J.  61  ; 
3  Harr.  &  M'H.  457  .  i  Leigh.  6  ;  1  Maule  &  S.  294  ; 
2  Curt.  Eccl.  320;  3  Id.  118;  Carth.  79;  2  Greenl.  Ev. 
§  678.  And  see  13  Gray,  103 ;  2  Cush.  342  ;  1  Ves.  Ch. 
II  ;  2  Washb.  R.  Prop.  682.  y-Chitty  Pr.  177  ;  2  Ld. 
Raytn.  1399.  Z-2  Washb.  R.  Prop.  128.  a-Id.  128,  et 
teg.  b-2  Co.  54 ;  Dyer,  309.  C-2  Washb.  R.  Prop. 
130;  5  Ired.  30;  7  Vt.  522  ;  13  B.  Mon.  30;  9  Ala.  410  ; 
I  Harr.  &  J.  527;  i  W.  &S.  395;  16  Johns.  515;  i 
Cow,  623    Cro.  C»r.  jaj  ;  Cruise  Dig.  107.    d-io  Johns. 


or  for  years.*  There  must  have  been  a  valua- 
ble consideration,*  though  it  need  not  be  ex- 
pressed.* 

The  proper  and  technical  words  to  denote  a 
bargain  and  sale  are  "  Bargain  and  sell,"  but 
any  other  words  that  are  sufficient  to  raise  a  use 
upon  a  valuable  consideration  are  sufficient  ,* 
as,  for  example :  "  Make  over  and  grant,"' 
"  Release  and  assign."* 

Bearing  date.  These  words  are  frequently 
used  in  conveyancing  to  introduce  the  date 
which  has  been  put  upon  an  instrument,  and  to 
designate  some  instrument  to  which  reference 
is  made.  For  example:  Whereas,  by  an  in- 
strument of  writing,  bearing  date  the day 

of ,  CD.  did,  etc. 

Behoof  is  advantage,  benefit,  profit,  use, 
service. 

Bipartite  is  the  being  in  two  correspond- 
ing parts ;  two  similar  conveyances,  one  for  each 
party.  The  usual  form  of  introduction  is : 
"  This  conveyance  [or  indenture)  bipartite  be- 
tween A.  B.  of  the  one  part  and  C.  D.  of  the 
other  part,  wilnesseth,"  etc. 

Bonds.    See  title  Obligations,  post. 

By  EsTiM.'VTiON.     See  Estimation,  below. 

Confirmation.  Where  a  conveyance  has 
been  informally  made  it  may  be  confirmed  by  a 
valid  conveyance  confirming  the  voidable  one. 
See  Contracts,  ante. 

Cancellation  is  the  act  of  crossing  out  or 
obliterating  a  writing ;  the  manual  operation  of 
destroying  or  tearing  a  written  instrument.*" 

Covenants  are  subject  to  the  same  rules  as 
other  contracts,  in  regard  to  the  qualification  of 
parties,  the  assent  required,  and  the  nature  of 
the  purpose  for  which  the  contract  is  entered 
into.  See  Contracts,  ante.  No  particular 
words  are  necessary  to  raise  a  covenant,  express 
or  implied.*  Describing  lands  in  a  deed  as 
bounded  on  a  street  of  a  certain  description 
raises  a  covenant  that  the  street  shall  be  of  that 
description  ,i  and  that  the  purchaser  shall  have 
the  use  thereof,*  and  binds  subsequent  purchas- 
ers from  the  grantor.' 

To  convey  are  those  by  which  the  cov- 
enantor undertakes  to  convey  to  the  covenantee 
the  estate  described  in  the  covenant  under  cer- 
tain circumstances.™  It  is  satisfied  only  by  st 
perfect  conveyance  of  the  kind  bargained  for," 
and  not  satisfied  where  an  imperfect  convey- 
ance has  been  accepted.* 

For  further  assurance  are  those   by 

456;  see  2  Washb.  R.  Prop.  134  ;  i  Sandf.  Ch.  259;  4 
I)en.  20I  ;  19  Wend.  339;  7  Vt.  522;  1  Penn.  486;  i 
Mo.  553;  2  Overt.  261.  e-2  Wood  Conv.  15.  f-3 
Johns.  484.  if-8  Barb.  463 :  see  2  W.-ish.  R.  Prop.  620; 
Shep.  Touchst.  222.  h-i  Eq.  Cas.  Abr.  409  ;  Roberts 
Wills,  367,  n.  As  to  the  effect  of  cancelling  an  unre- 
corded deed,  see  Gilbert  Ev.  109;  Greenl.  Ev.  §265;  1 
Me.  78  ;  10  Mass.  403;  ii  Id.  337;  gPick.  J05;  4  N. 
H.  191  ;  2  Johns.  82  ;  4  Conn.  450;  5  Id.  86,  262  ;  4 
Verg.  375.  And  see  generally  on  this  subject,  4  Bouv. 
Inst.  ^  3917,  3922;  Jarman  Wills;  Roberts  Wills; 
Gilbert  fi;v.;  Greenl.  Ev.;  4  Kent.  Comm.  531.  l-u 
lied.  145.  j-7  Gray,  563.  lt-5  Md.  514  ;  23  N.  H.  261. 
I-7  Gray,  83.  IH-14  Penn.  St.  308  ;  19  Barb.  639  ;  4 
Md.  408;  II  III.  194;  19  Qhio,  347.  11-19  Barb.  639. 
0-4  Md.  49». 


CONVEYANCES. 


267 


which  the  covenantor  undertakes  to  do  such 
reasonable  acts,  in  addition  to  those  already 
performed,  as  may  be  necessary  for  the  com- 
pletion of  the  transfer  made,  or  intended  to  be 
made,  at  the  requirement  of  the  covenantee.  It 
relates  both  to  the  title  of  the  vendor  and  to  the 
instrument  of  conveyance  to  the  vendee,  and 
operates  as  well  to  secure  the  performance  of  all 
acts  for  supplying  any  defects  in  the  former  as 
to  remove  all  objections  to  the  sufficiency  of  the 
latter.P  The  covenantor,  in  the  execution  of 
bis  covenant,  is  not  required  to  perform  unne- 
cessary acts.i 

Against  incumbrances  are  those  having 

for  their  object  security  against  those  rights  to, 
or  interests  in,  the  land  granted,  which  may 
subsist  in  third  persons,  to  and  thus  diminish 
the  value  of  the  estate,  though  consistently  with 
the  passing  of  the  property  by  the  deed  of  con- 
veyance. The  mere  existence  of  incumbrances 
constitutes  a  breach  of  this  covenant,""  without 
regard  to  the  knowledge  of  the  grantee.*  The 
covenantee  may  extinguish  the  incumbrance 
and  recover  therefor  at  his  election,  in  the  ab- 
sence of  an  agreement.*  The  measure  of  dam- 
ages is  the  injury  actually  sustained." 

Not  to  sue  are  those  entered  into  by  a 

party  who  has  a  cause  of  action  at  the  time  of 
making  it,  by  which  he  agrees  not  to  sue  the 
party  liable  to  such  action.  A  limited  covenant 
not  to  sue,  by  which  the  covenantor  agrees  not 
to  sue  for  a  limited  time,  does  not  operate  a  re- 
lease; and  a  breach  must  be  taken  advantage 
of  by  action.^  A  perpetual  covenant  not  to  sue 
(or  one  by  which  the  covenantor  agrees  not  to 
sue  the  covenantee  at  any  time)  operates  as  a 
release  to  the  covenantee,  and  may  be  set  up  as 
such."  But  such  a  covenant  with  one  of  sev- 
eral jointly  and  severally  bound  will  not  pro- 
tect the  others  so  bound. ^  And  a  covenant  by 
one  of  several  partners  not  to  sue  cannot  be  set 
ap  as  a  release  in  an  action  by  all.^ 

For  qrtiet  enjoyment    are    assurances 

against  the  consequences  of  a  defective  title, 
and  of  any  disturbances  thereupon.*  When  it 
is  general  in  its  terms  the  covenantor  stipulates 
at  all  events*  to  indemnify  the  covenantee 
against  all  acts  committed  by  virtue  of  a  para- 
mount title  ;•*  not,  however,  including  the  acts 
of  a  mob,"  nor  a  mere  trespass  by  the  lessor."* 

p- Piatt  Cov.  341  ;  see  2  Washb.  R.  Prop.  648;  10 
Me.  91 ;  4  Mass.  627:  10  Cush.  134.  q-Yelv.  44;  g 
Price,  43 ;  see  title  Real  Pkoperty,  Incumbrances, 
post,  r-2  Washb.  R.  Prop.  658;  20  Ala.  137,  156.  s-2 
Grcenl.  Ev.  g  242;  27Vt.  739;  8  Ind.  171  ;  10  Id.  424. 
t-4  Ind.  533  ;  19  Mo.  480;  25  N.  H.  369;  25  Id.  229. 
11-7  Johns.  358 ;  16  Id.  254:  5  Me.  94;  34^.422;  12 
Mass.  304  ;  3  Cush.  201  ;  20  N.  H.  369  ;  25  Id.  229.  v- 
Carth.  63  ;  I  Show.  46  ;  2SaIk,  573;  6  Wend.  471 ;  5 
Cal.  501  ;  see  29  Ala.  N.  S.  322.  W-Cro.  Eliz.  62^  ;  i 
T.  R.  446  :  8  Id.  486 ;  2  Salk.  375  :  3  Id.  298;  12  Mod. 
415;  7  Mass.  153;  16  Id.  24-  1713.623:  3  Ind.  473 ; 
and  see  II  S.  &  R.  149.  x-12  Mod.  551 ;  8T.  R.  168; 
6  Munf.  6  ;  i  Conn.  139  ;  4  Me.  421  ;  2  Dana,  107;  17 
Mass.  623.  y-3  Perr.  &  D.  149.  z-Platt  Cov.  312.  a- 
II  East.  64s;  I  Mod.  loi.  b-Platt  Cov.  313;  Lev.  83 ; 
8  Id.  305  ;  Hob.  34  ;  4  Co.  80,  b.:  Cro.  Car.  s  :  3  T.  R. 
584;  6  Id.  66;  5  Duer,  464;  2  Jones,  203;  Biisb.  384  ;  3 
N.  H.  260.  c-19  Miss.  87;  2  Strobh.  366.  d-10  N.  Y. 
151.     e-Cro.  Elu.  212;   5  M.  &  S.  374;   i  B.  &  C.  29; 


But  this  rule  may  be  varied  by  the  terms  of  the 
covenant,  as  where  it  is  against  acts  of  a  par 
ticular  person,*  or  "  those  claiming  or  pretend- 
ing to  claim,'"  or  molestation  by  any  person.*  It 
occurs  most  frequently  in  leases,*  and  is  there 
held  to  be  raised  by  the  words  grant,  demise, 
lease,  yielding  and  paying,  give,  etc.,'  and  ex- 
ists impliedly  in  a  parol  lease.J  It  is  frequently 
replaced  in  conveyances  by  the  covenant  of 
warranty.'' 

Of  seizin  (or  possession)  are  assurances 

to  the  grantee  that  the  grantor  has  the  very  es- 
tate, both  in  quantity  and  quality,  which  he 
professes  to  convey.'  A  covenant  for  indefeas- 
ible seizin  is  everywhere  held  to  run  with  the 
land,™  and  to  apply  to  all  titles  adverse  to  the 
grantors."  A  covenant  of  seizin  of  whatever 
form  is  broken  at  the  time  of  the  execution  of 
the  deed  if  the  grantor  has  no  possession  either 
by  himself  or  another,  and  no  rights  can  pass 
to  the  assignee  of  the  grantee.*  The  existence 
of  a  life  estate,?  a  material  deficiency  in  the 
amount  of  land,«i  non-existence  of  the  land  de- 
scribed,""  the  existence  of  fences  or  other  fix- 
tures on  the  premises  belong[ing  to  other  persons 
who  have  a  right  to  remove  them,"  concurrent 
seizin  of  another  as  tenant  in  common,*  adverse 
possession  of  a  part  by  a  stranger,  constitutes  a 
breach  of  this  covenant.  But  the  covenantee 
cannot  recover  against  his  grantor  when  the 
covenantee  purchased  knowing  that  he  had  no 
good  title." 

To  stand  seized  to  uses  are  covenants  by 

means  of  which,  under  the  statute  of  uses,  a 
conveyance  of  an  estate  may  be  effected.^  Such 
a  covenant  cannot  furnish  the  ground  for  an 
action  of  covenant  broken.  And  the  consider- 
ation for  such  a  covenant  must  be  relationship, 
either  by  blood  or  marriage.''  As  a  mode  of 
conveyance  it  has  fallen  into  disuse,  though  the 
doctrine  is  often  resorted  to  by  courts  in  order 
to  give  effect  to  the  intention  of  the  parties  who 
have  undertaken  to  convey  lands  by  deeds 
which  are  insufficient  for  the  purpose  under  the 
rules  required  in  other  forms  of  conveyance.* 

Of  warranty   are   assurances   by  the 

gi-antor  of  an  estate  that  the  grantee  shall  enjoy 
the  same  without  interruption  by  virtue  of  par- 
amount title.y  Such  covenants  give  the  cove- 
nantee and  grantee  the  benefit  of  subsequently 

2  Ventr.  61.  f-io  Mod.  383  ;  i  Ventr.  175.  gr-See  21 
Miss.  87.  h-i  Washb.  R.  Prop.  325.  i-i  Per.  &  D. 
360;  9  N.  H.  222;  15  N.  Y.  3-27;  6Bingh.656;  4 
Kent  Comm.  474,  n.  J-20  Eng.  L.  &  Eq.  374 ;  3  N.  J. 
260;  see  1  Duer,  176.  lt-2  Washb.  R.  Prop.  661.  I- 
Platt  Cov.  306.  111-2  Vt.  328 ;  2  Dev.  30;  4  Dall.  439 ; 
5  Sneed,  123  ;  14  Johns.  248;  14  Pick.  128;  10  Mo.  467. 
11-2  Wa.shb.  R.  Prop.  656.  0-2  Johns,  i  ;  2  Vt.  327 ;  5 
Conn.  497:  14  Pick.  170;  1  Met.  Mass.  450;  17  Ohio, 
60;  8  Gratt.  397  ;  4  Cranch,  430  ;  36  Me.  170;  24  Ala. 
N.  S.  189  ;  4  Kent.  Comm.  471  ;  2  Washb.  R.  Prop. 
656.  p-Rawle  Cov.  52.  q-i  Bay,  256;  see  24  Miss. 
597.  r-i  N.  Y.  564  :  7  Penn.  St.  122.  s-12  Me.  389. 
t-7  Johns.  376.  ll-Rawle  Cov.  111-114:  8  Pick.  547, 
22  Id.  490;  6  Cush.  127.  v-Burton  R.  Prop.  136,  145. 
w-2  Washb.  R.  Prop.  129,  130;  see  2  Seld.  342.  x-i 
Washb.  R.  Prop.  155,  156;  2  Sanders  Uses,  79,  83;  4 
Mass.  136;  18  Pick.  397:  22  Id.  376;  5  Me.  232;  u 
Johns.  351 ;  20  Id.  85;  5  Yerg.  249.  y-2  Jones,  203;  3 
Duer,  464 


m6» 


CONVEYANCES. 


Acquired  titles,*  to  the  extent  of  their  terms' 
(but  not  if  an  interest  actually  passes  at  the 
ume  of  making  the  conveyance  upon  which  the 
covenant  may  opeiate) ;''  in  case  of  a  term  for 
years  as  well  as  conveyances  of  greater  estates," 
as  against  the  grantor  and  those  claiming  under 
him,*  including  purchases  for  value."  And  this 
principle  does  not  operate  to  prevent  the  grant- 
ee's action  for  breach  of  the  covenant,  if  evicted 
by  such  title.' 

When  general,  this  covenant  applies  to  law- 
ful adverse  claims  of  all  persons  whatever. 
When  special,  it  applies  only  to  the  particular 
person  or  claims  to  which  its  operation  is  lim- 
ited or  restricted. 8  A  limitation  may  arise  from 
the  nature  of  the  subject-matter  of  the  grant.'' 

The  covenant  of  warranty,  until  broken, 
passes  with  the  land  to  the  heir  of  the  grantee ; 
or  if  the  land  be  assigned  or  conveyed,  it  passes 
to  the  assignee,  and  when  broken,  the  heir  or 
assignee  injured  by  the  breach  can,  in  his  own 
name,  maintain  an  action  against  the  warrantor, 
and  may  maintain  an  action  against  every  in- 
termediate warrantor,  and  prosecute  the  same  to 
judgment.  A  judgment  against  one  will  be  no 
bar  to  a  suit  against  another.  A  satisfaction  is 
the  only  bar.'  To  constitute  a  breach,  there 
must  be  an  eviction  by  paramount  title,J  which 
may  be  constructive.^  And  it  is  sufficient  if  the 
tenant  yields  to  the  true  owner,  or  if,  the  prem- 
ises being  vacant,  such  owner  takes  posses- 
sion.' 

The  action  for  breach  should  be  brought  by 
the  owner  of  the  land,  and,  as  such,  assignee 
of  the  covenant  at  the  time  it  is  broken,™  but 
may  be  by  the  original  covenantee,  if  he  has 
satisfied  the  owner." 

The  form  of  the  covenant  of  warranty  in  com- 
mon use  is  as  follows :  "And  I  (or  we)  the  said 
{Aere  nve  name  of  grantor  or  grantors)  for 
myself,  my  {or  ourselves,  our)  heirs,  executors, 
and  administrators,  do  covenant  with  said  [here 
give  grantee  or  grantees'  names),  his  [or 
their)  heirs  and  assigns,  that  I  {or  we),  my  {or 
our)  heirs,  executors,  and  administrators,  shall 
WARRANT  and  DEFEND  the  same  to  said  {re- 
peat grantees'  names),  h.^  (or their)  heirs  and 
assigns  forever,  against  the  lawful  claims  and 
demands  of  all  persons  {or  of  all  persons  claim- 
ing by,  through,  or  under  me  [or  us],  but  against 
none  other,  or  any  other  special  covenant). 

Date.  Written  instruments  generally  take 
effect  from  the  day  of  their  date,  but  the  actual 

T,-M  Johns.  91 ;  13  Id.  316;  74  Iil.  793  ;  9  Cow.  271  ; 
6  Walts,  60;  9  Crancn,  43;  13  N.  H.  389  ;  i  Ohio,  loo; 
3  Id.  107;  3  Pick.  52  :  13  Id.  116;  24  Id.  324 ;  3  ^let. 
HI  ;  13  Me.  281 ;  20  Id.  260.  a-12  Vt.  39;  3  Met.  121 ; 
9  Cow.  271 ;  34  Me.  483.  b-3  McLean  C.  C.  56  ;  9 
Cow.  371  :  12  Pick.  47  ;  s  Gratt.  is?.  C-Burton  R. 
Prop,  jf  850 ;  Wms.  R.  Prop.  220  •  Wash.  b.  R.  Prop. 
478;  4  Kent  Comm.  261,  «.;  Cro.  Car.  109:  i  Ld. 
Kaym.  729;  4  Wend.  502;  i  Johns.  Cas.  190.  «l-2 
.  Wa«hb.  R.  Prop.  479,  480.  e-14  Pick.  224 :  24  Id.  324  ; 
f  N.  H.  533:  13  Id.  389;  5  Me.  231  ;  12  Johns.  201  ;  13 
Id.  316;  9  Cranch.  53;  see  4  Wend.  619;  18  Ga.  192. 
fi  Gray,  195;  25  Vt.  635;  12  Me.  499.  jf-2  Washb.  R. 
Prop.  665.  I1-8  Pick.  547;  19  Id.  341  ;  5  Ohio,  igo  ; 
9  Cow.  271.  i-s  Ohio,  154;  14  Id.  118.  J-Rawl.  Cov. 
121 ;  6  Barb.  165  ;  5  Harr.  162  ;  11  Rich.  80  ;  13  La.  An. 
390,  499  •    5  Cal.  a62  ;    4  Ind.  174  ;    6  Ohio  St.  525;   a6 


date  of  execution  may  be  shown,  though  differ- 
ent from  that  which  the  instrument  bears. 
Though  the  date  is  not  of  the  essence  of  the 
instrument  it  is  essential  to  the  identity  of  the 
writing  by  which  it  is  proved."  If  a  written 
date  be  an  impossible  one,  the  time  of  delivery 
must  be  shown. p 

When  the  place  is  mentioned  in  the  date  of 
a  deed  the  law  presumes,  unless  the  contrary 
appears,  that  it  was  executed  at  the  place  of  the 
date.i 

Deeds  are  absolute  conveyances;  instru- 
ments of  writing  by  which  lands,  tenements,  or 
hereditaments  are  conveyed  for  no  less  an  estate 
than  for  life,  and  which  the  grantee  holds  in  his 
own  right,  subject  to  no  superior,  nor  to  condi- 
tions. As  to  their  requisites,  see  Deed  forms, 
below. 

To  declare  uses,  are  deeds  made  after 

a  fine  or  common  recovery  to  show  the  object 
thereof. 

To  lead  to  uses,  are  deeds  made  before 

a  fine  or  common  recovery  to  show  the  object 
thereof. 

Poll,  are  deeds  made  by  a  single  party 

only.  That  is,  only  the  party  making  it  ex- 
ecutes it  or  binds  himself  by  it  as  a  deed.'  Its 
purpose  is  merely  to  transfer  the  rights  of  the 
grantor  to  the  grantee.  A  deed  poll  is  an  instru- 
ment of  one  part  only,  an  indenture  is  an  instru- 
ment of  two  parts.     See  Indentures,  below. 

In  form  this  instrument  begins :  "  Know  all 
men  by  these  presents  that  I,  A.  B.,  have  given, 
granted,  and  enfeoffed,  and  by  these  presents  do 
give,  grant,  and  enfeoff,"  etc. 

Defeasance  may  be  effected  in  two  ways : 
I.  By  a  separate  instrument  (if  not  prohibited 
by  statute),  which  defeats  the  force  or  operation 
of  some  other  conveyance  or  estate.  2.  By  a 
clause  in  the  same  instrument  or  conveyance 
which  defeats  the  force  or  operation,  (he  con- 
veyance or  estate.  In  the  first  case  it  is  called 
a  "  defeasance,"  in  the  latter  a  "  condition. "• 

The  defeasance  may  be  subsequent  to  the 
deed  in  case  of  things  executory,'  but  must  be 
a  part  of  the  same  transaction  in  case  of  an  ex- 
ecuted contract."  Yet  where  the  instrument  of 
defeasance  is  executed  subsequently,  in  pursu- 
ance of  an  agreement  made  at  the  time  of  mak- 
ing the  original  conveyance,  it  is  sufficient,^  as 
well  as  where  the  conveyance  and  defeasance 
bear  different  dates,  but  are  delivered  at  the 
same  time."      The  instrument  of  defeasance 

Mo.  92;  17  111.185;  36  Me.  455;  14  Ark.  309.  k-12 
Me.  499;  17  111.  185;  5  Hill,  599  ;  4  Mass.  349  ;  8  111. 
162;  5  Ired.  393.  1-5  Hill,  599;  4  Mass.  349;  8  111. 
162;  5  Ired.  393;  see  4  Halst.  139.  IM-4  Johns.  8g  ;  19 
Wend.  344;  2  Mass.  455  ;  7  Id.  144;  3  Gush.  219;  10 
Me.  81  ;  5  Monr.  357;  12  N.  H.  413.  n-s  Cow.  137 
10  Wend.  184;  2  Met.  Mass.  618;  5  Monr.  357;  t 
Conn.  244  :  1  Dev.  &  B.  94  ;  10  Ga.  311 ;  26  Vt.  279. 
0-2  Greenl.  Ev.  g  12,  13,  489,  n.;  8  Mass.  159;  4  Cush. 
403 ;  I  Johns.  Cas.  91  ;  3  Wend.  233  ;  31  Me.  243  ;  17 
Eng.  L.  &.  Eq.  548 ;  2  Greenl.  Cruise  Dig  618,  n.  p- 
Shepp.  Touchst.  72  ;  Cruise  Dig  C.  2,  g6i.  q-Plowd. 
7,  b.  r-2  Washb.  R.  Prop.  588.  s-Com.  Dig.  Defeas- 
ance. t-Co.  Litt.237,  a.;  2Saund.  43.  u-Co.  Litt.  216, 
b.;  1  N.  H.  39 ;  3  Mich.  482 ;  7  Watts,  401  ;  2i  Ala.  N. 
S.  9.  V-2  Washb.  489.  W-12  Mass.  463  ;  13  Pick.  411  ; 
18  Id.  540;   31  Penn.  St.  131;   7  Me.  435  ;   13  Ala.  246. 


CONVEYANCES. 


269 


must,  in  law,  be  of  as  high  a  nature  as  the 
principal  conveyance.*  Defeasance  of  deeds 
conveying  real  estate  are  generally  subject  to 
the  same  rules  as  deeds  respecting  record  and  no- 
tice to  purchasers.*  And  in  some  States  actual 
notice  is  not  sufficient  without  recording  the 
defeasance. 

Delivery  is  the  transfer  of  a  deed  from  the 
grantor  to  the  grantee,  or  some  person  acting  in 
his  behalf,  in  such  a  manner  as  to  deprive  the 
grantor  of  the  right  to  recall  it  at  his  option. 
/  Absolute  delivery  is  that  which  is  complete 
■pon  the  actual  transfer  of  the  instrument  from 
the  possession  of  the  grantor. 

Conditional  delivery  is  that  which  passes  the 
deed  from  the  possession  of  the  grantor,  but  is 
not  to  be  completed  by  possession  in  the  grantee, 
or  a  third  person  as  his  agent,  until  the  happen- 
ing of  a  specified  event.  A  deed  delivered  in 
this  manner  is  an  "escrow,"  and  such  delivery 
must  be  always  made  to  a  tliird  person,?  though 
where  the  transfer  to  the  possession  of  the  grantee 
was  merely  to  enable  him  to  convey  it  to  a  third 
person  to  hold  as  an  escrow,  it  was  held  not  an 
absolute  delivery  to  the  grantee.* 

No  particular  form  of  procedure  is  required 
to  effect  a  delivery.  It  may  be  by  acts  merely, 
by  words  merely,  or  by  both  combined ;  but  in 
all  cases  an  intention  that  it  shall  be  a  delivery 
must  exist.'  The  deed  of  a  corporation  is  gen- 
erally delivered  by  affixing  the  corporate  seal  * 
Delivery  may  be  made  by  an  agent  as  well  as 
by  the  grantor  himself,"  or  to  an  agent  previ- 
ously appointed,*  or  subsequently  recognized  ;* 
but  a  subsequent  assent  on  the  part  of  the 
grantee  will  not  be  presumed.' 

To  complete  a  delivery,  acceptance  must  take 
place,  which  may  be  presumed  from  the  grant- 
ee's possession,*  from  the  relationship  of  a  per- 
son holding  the  deed  to  the  grantee,''  and  from 
other  circumstances.* 

There  can  ordinarily  be  but  one  valid  deliv- 
ery,J  which  can  take  place  only  after  complete 
execution  ;*  but  there  must  be  one,'  and  from 
that  one  the  conveyance  takes  effect.™ 

Estimation.  In  sales  of  land  it  frequently 
happens  that  the  property  is  said  to  contain  a 
certain  number  of  acres  "  by  estimation,"  or  so 
many  acres,  "  more  or  less."  When  these  ex- 
pressions are  used,  if  the  land  fall  short  by  a 

W-13  Mass.  443  ;  22  Pick.  526;  7  Watts,  261 ,  401 ;  18 
Me.  246;  43  Id.  206.  x-3  VVend.  208;  14  Id.  63;  7  S. 
&  R.  70;  12  Mass.  456;  38  Me.  447:  40  Id.  381.  y- 
Shep.  Touchst.  59;  Cro.  Eliz.  520;  8  Mass.  230.  z-2 
Dev.  &  B.  530;  4  Watts,  180;  22  Me.  569  ;  23  Wend. 
43;  2  B.  &  C.  82.  a-Com.  Dig.  AizV,  (A);  i  Wood 
Conv.  193 ;  6  Sim  Ch.  191  :  11  Vt.  621  ;  18  Me.  301  ;  2 
Penn.  St.  191;  12  Johns.  536;  i  Johns.  Ch.  456 ;  20 
Pick.  28 :  4  J.  J.  Marsh,  572.  b-Co.  Litt.  22, «.,  36  «.; 
Cro.  Eliz.  167  ;  2  Rolle  Abr.  Fait,  (i).     c-o  Mass.  307; 

3  Met.  (Mass.)  412;  4  Day.  66;  5  B.  &  C.  671;  2 
Washb.  R.  Prop.  579.  d-6  Met.  (Mass.)  356.  e-22 
Me.  121  ;  14  Ohio,  307.  f-9lll.  177;  i  N.  H.  353;  5 
Id.  71  ;  IS  Wend.  656  ;  25  Johns.  187;  see  also  9  Mass. 
307  ;  4  Day,  66  ;  2  Ired.  Eq.  557.     g-i  Harr.  &  J.  319 ; 

4  Pick.  518;  2  Ala.  136;  11  Id.  412;  i  N.  H.353;  4 
Fla.  359;  6  Mo.  326;  I  Zabr.  379.  I1-7  111.  557 ;  i 
Johns.  Ch.  240,  456.  I-18  Conn.  257  :  5  Watts,  243.  J- 
12  Johns.  536;  20  P5ck.  28.  It-a  Dev.  379.  I-2  Mar- 
ring. 197;  16  Vt.  563;  2  Washb.  R.  Prop.  581.  in-12 
itvu.  455;  4  Veates,  278;  18  Me.  190;  see  i  Den.  323. 


small  quantity,  the  purchaser  will  receive  no  re- 
lief. In  one  case  of  this  kind  the  land  fell 
short  two-fifths,  and  the  purchaser  received  no 
relief"  The  meaning  of  these  words  has  never 
been  precisely  determined  by  judicial  decision.* 
See  More  or  Less,  below. 

Escrow  is  a  deed  delivered  to  a  stranger,  to 
be  by  him  delivered  to  the  grantee  upon  the 
event  of  certain  conditions,  upon  which  last 
delivery  the  transmission  of  title  is  complete. 

The  delivery  must  be  to  a  stranger."  The 
second  delivery  must  be  conditioned,  and  not 
merely  postponed.'  Care  should  be  taken  to 
express  the  intent  of  the  first  delivery  clearly.' 
An  escrow  has  no  effect  as  a  deed  till  the  per- 
foimance  of  the  condition"  takes  effect  from  the 
second  delivery.*    See  Delivery,  above. 

Execute  is  to  make  and  deliver."  It  in- 
cludes all  the  essential  and  formal  parts  of  a 
conveyance  of  real  property. 

Expense.  When  there  is  no  express  agree- 
ment to  the  contrary,  the  expense  of  the  con- 
veyance falls  upon  the  purchaser,'  who  must 
prepare  and  tender  the  conveyance.*  The  ex- 
pense of  the  execution  of  the  conveyance  is,  on 
the  contrary,  always  borne  by  the  vendor.' 

Fee  simple  is  an  estate  belonging  to  a  per- 
son and  his  heins,  absolutely.  An  estate  of  in- 
heritance.?  The  word  "  simple "  adds  no 
meaning  to  the  word  "  fee  "  standing  by  itself, 
but  it  extends  all  qualification  or  restriction  as 
to  the  persons  who  may  inherit  it  as  heirs,  thus 
distinguishing  it  from  a  "  fee  tail,"  as  well  as 
from  an  estate  which,  though  inheritable,  is  sub- 
ject to  conditions  or  collateral  determination.* 
A  fee  simple  is  the  largest  possible  estate  a  man 
can  have,  being  an  absolute  estate  in  perpetuity ; 
it  is  where  lands  are  given  to  a  person  and  his 
heirs  absolutely,  without  any  end  or  limitation 
being  put  upon  the  estate.' 

Fee  tail  is  an  estate  limited  to  particular 
classes  of  heirs.  An  inheritable  estate  which  can 
descend  to  certain  classes  of  heirs  only.  It  is 
necessary  that  these  heirs  should  be  heirs  "  of 
the  body  "  of  the  ancestor.  The  descent  of 
property  is  in  general  regulated  by  statute,  and 
unless  disposition  be  expressly  made  by  the 
owner  during  his  lifetime  will,  after  his  death, 
descend  according  to  such  statutory  regulations, 
and  not  by  common  law. 

n-2  Freem.  106;  see  i  Call.  301;  4  H.  &  M.  184;  6 
Binn.io6:  1S.&R.166;  2johns.37:  5ld.5o8;i5 
Id.  471  :  3  Mass.  380:  5  Id.  355  ;  i  Root,  528.  o-See 
Sugden  Vend.  231-236.  p-8  Mass.  320;  see  9  Co.  137, 
i>.:  T.  Moore,  642  ;  5  Blackf.  18;  23  Wend.  43:  2  Dev. 
&  B.  530 ;  4  Watts,  180  ;  22  Me.  569.  q-3  Met.  (Mass.) 
412 ;  8  Id.  436 :  2  B.  &  C.  82  :  Shep.  Touchst.  (Preston 
Ed.)  58.  r-2  Johns.  248  ;  10  Wend.  310  .  8  Mass.  230  ; 
22  Me.  569;  X4  Conn.  271;  3  Green  Ch.  155.  lJ-21 
Wend.  267.  t-i  Barb.  500;  set  3  Met.  (Mass.)  412  ;  6 
Wend.  666:  16  Vt.  563  :  30  Me.  no.  10  Penn.  St.  285; 
see  generally,  14  Ohio  St.  309  :  13  Johns.  285  ;  5  Mas. 
C.  C.  60;  6  Humph.  405;  3  Met.  (Mass.)  4:2.  u-I.  & 
W.  531 ;  2  Sandf.  Ch.  400.  v-2  Ves.  Ch.  155,  note.  W- 
But  see  Contra  2  Rand.  Va.  20.  x-Sugden  Vend.  296  ; 
Contra  2  Rand.  20;  2  McLean  C.  C.  49s;  but  see  3 
Mass.  487;  5  Id.  472:  Eunomus  Dial  2  ?  2.  y-Co. 
Litt.  I,  b  :  2  Bl.  Comm.  106.  z-i  Washb.  R.  Prop.  51 ; 
Wright  Ten.  146;  1  Prest.  Est.  420;  Litt.  |  i.  »- 
Plowd.  SS7 ;  Atkinson  Conv.  183 ;  3  Sharsw.  BL 
Comm.  106. 


^70 


CONVEYANCES. 


Feoffment  was  one  of  the  earliest  modes 
of  conveyance  used  at  common  law. 

Grant  is  a  generic  term,  applicable  to  all 
transfers  of  real  property.'*  It  is  a  technical 
term  made  use  of  in  deeds  of  conveyance  of 
lands  to  import  a  transfer,"  and  is  said  to  be 
construed  into  a  general  warranty. 

Grant  and  demise.*  Grant,  bargain, 
SELL.'  Grant,  bargain,  sell,  alien,  and 
confirm.'  These  words  are  used  in  a  similar 
manner  to  the  word  grant  being  used  in  instru- 
ments of  conveyance  of  real  estate.* 

Grantees  are  those  to  whom  a  conveyance 
js  made. 

Grantors  are  those  by  whom  a  conveyance 
is  made. 

Habendum  is  the  clause  which  usually  fol- 
lows the  granting  part  of  the  premises  of  a  con- 
veyance or  deed,  and  which  defines  the  extent 
of  the  ownership  of  the  thing  granted  to  be  held 
and  enjoyed  by  the  grantee.''  It  commences 
with  the  words,  "  To  have  and  to  hold,"  etc.* 
This  is  not  an  essential  part  of  a  conveyance 
or  deed,  but  serves  to  qualify,  define,  or  control 
it,i  and  may  be  rejected  if  clearly  repugnant  to 
the  rest  of  the  instrument." 

Hereditaments  are  those  things  which  are 
capable  of  being  inherited,  whether  they  be  cor- 
jKjreal  or  incorporeal,  real,  personal,  or  mixed, 
and  it  includes  not  only  lands  and  everything 
thereon,  but  also  heirlooms  and  certain  furni- 
ture, which  by  custom  may  descend  to  the  heir 
together  with  the  land.'  This  term  denotes  such 
things  as  may  be  the  subject-matter  of  inherit- 
ance, but  not  the  inheritance  itself;  therefore 
it  cannot,  by  its  own  intrinsic  force,  enlarge  an 
estate,  prima  facie  a  life  estate,  into  an  absolute 
fee.™  Corporeal  hereditaments  are  such  per- 
manent, substantial  objects  as  may  be  inherited ; 
ihe  term  "  land  "  will  include  all  such."  In- 
corporeal hereditaments  are  such  intangible,  in- 
visible things  as  are  the  subject  of  ownership, 
and  are  inheritable."  Of  these  are  annuities, 
easements  of  air,  light,  etc.,  equities  of  re- 
demption, franchises,  reversions,  rents,  and  the 
like.P 

Hold.    See  Habendum,  above. 

Indenture.  This  is  a  formal  written  in- 
strument between  two  or  more  pei-sons  in  dif- 
ferent interests,  as  opposed  to  "  Deed  Poll " 
(which  is  made  by  a  single  person,  or  by  sev- 
eral having  similar  interests).  Its  name  comes 
from  a  practice  of  indenting  or  scalloping  such 
an  instrument  on  the  top  or  side  in  a  wav- 
ing line.  The  ancient  practice  was  to  de- 
liver as  many  copies  of  an  instrument  as  there 
were  parties  to  it;  to  write  the  copies  on 
the  same  parchment,  with  the  word  "  chiro- 

b-a  Washb.  R.  Prop.  517.  e-Id.  620.  d-4  Wend. 
502  :  8  Cow.  36  ;  9  Ves.  Ch.  330.  e-4  Dall.  441  ;  2  Binn. 
op  ;  I  Rawle.  377  ;  i  S.  &  R.  50,  438 ;  4  Kent.  Comm.  460. 
f-2Caincs,  188;  7  Johns.  258;  Comm.  Dig.  Guaranty  A. 
|C-Sec  8  Barb.  463  ;  i  Monr.  30;  i  Conn.  79;  5  Tenn. 
124;  2  Binn.  95;  11  S.  &  R.  109;  i  Mo.  576;  i  Murph. 
J4r  h-2  Wa.shb.  R.  Prop.  642.  i-The  words  "  to 
hold  "  have  now  no  meaning  in  our  deeds,  2  Bl.  Comm. 
3^.  J-Co.  Litt.  6,  a,  299;  I  Wood  Conv.  224  ;  4  Kent 
Comm.  468;    8  Mass.  162,  174.     k-i  Wood  Conv.  199; 


graphum,"  or  some  other  word,  written  between 
them,  and  then  lo  cut  them  apart  through  such 
word,  leaving  |)art  of  each  letter  on  either  side 
of  the  line,  which  was  at  first  straight  and  after- 
ward "  indented  "  or  notched.' 

In  witness  whereof.  These  words,  when 
conveyancing  was  in  the  Latin  language,  were 
"  in  cujus  rei  testimonium^^  they  are  the  initial 
words  of  the  concluding  clause  in  conveyances : 
"  In  witness  whereof,  the  said  parties  hav* 
hereunto  set  their  hands,"  etc. 

In  testimony  whereof.  These  words  are 
the  initial  words  of  the  concluding  clause  in 
the  acknowledgment :  "  In  testimony  whereof, 
I  have  hereunto  set  my  hand  and  official  seal," 
etc. 

Intended  to  be  recorded  is  a  phrase  fre- 
quently used  in  conveyancing,  in  deeds  which 
recite  other  deeds  which  have  not  been  re- 
corded. It  has  been  construed  to  be  a  cove-, 
nant  on  the  part  of  the  grantor  to  procure  the 
deed  to  be  recorded  in  a  reasonable  time.' 

Inter  partes  (between  the  parties).  This 
signifies  an  agreement  which  in  the  outset,  and 
before  any  stipulations  are  made,  to  be  between 
such  and  such  persons ;  as,  for  example :  "  This 
conveyance,  made  this  day  of ,  be- 
tween A.  B.  of  the  one  {or  fii-st)  part  and  C, 
D.  of  the  other  {or  second),  witnesseth.""  Such 
an  introduction  is  a  solemn  declaration  that  all 
the  covenants  comprised  in  the  conveyance  are 
to  be  covenants  between  these  parties  and  none 
others.  And  should  a  stipulation  be  found  in 
the  body  of  an  instrument  by  which  "  the  said 
A.  B.  covenants  with  E.  F.  to  pay  him  one  hun- 
dred dollars,"  the  words  "  with  E.  F."  are  in- 
operative unless  they  have  been  used  to  denote 
for  whose  benefit  the  stipulation  may  have  been 
made,  being  in  direct  contradiction  with  what 
was  previously  declared,  and  C.  D.  alone  can 
sue  for  the  non  payment,  it  being  a  maxim  that 
where  two  opposite  intentions  are  expressed  in 
a  contract  the  first  in  order  shall  prevail.*  But 
this  rule  does  not  apply  to  simple  contracts." 
When  there  are  more  than  two  sides  to  a  con- 
veyance "  inter  partes,"  as  between  A.  B.  of  the 
first  part,  C.  D.  of  the  second,  and  E.  F.  of  the 
third,  there  is  no  objection  to  one  covenanting 
with  another  in  exclusion  of  the  third.' 

Judicial  mortgages  are  liens  resulting  from 
judgments,  whether  rendered  on  contested  cases 
or  by  default,  whether  in  actions  or  special  pro- 
ceedings, and  whether  final  or  provisional  in 
favor  of  the  person  obtaining  them. 

Judicial  sales  are  sales  by  authority  of  some 
competent  tribunal,  by  an  officer  authorized  by 
law  for  the  purpose. 

Shepp.  Touchst.  102;  Skinn.  543.  I-Co.  Litt.  5  b:  « 
Bl.  Comm.  17.  111-2  B.  ft  P.  251 :  8  T.  R.  503  ;  see  4 
Washb.  R.  Prop.  11-2  Sharsw.  Bl.  Comm.  17.  o-a 
Woodison  Lect.  4.  p-J  Washb.  R.  Prop.  11;  1  Hitl- 
iard  R.  Prop.  443  ;  3  Kent  Comm.  402-404,454.  q-i 
Reeve  Hist.  Eng.  L.  89  ;  DuCai.ge;  2  Washb.  R.  Prop. 
587,  et  seq.  r-2  Rawle,  14.  S-Addis.  Contr.  9.  t^8 
Mod.  116  ;  1  Show.  58;  3  Lev.  138;  Carth.  76:  Rolle, 
196:  7  M.  &  W.  63.  11-2  Dowl.  &  R.  277;  3  Id.  273; 
Add'is.  Contr.  244,256.  v-See  5  Co.  182;  8  Taunt.  345," 
4  Q.  B.  207;  Addis.  Contr.  267. 


CONVEYANCKS. 


271 


The  officer  who  makes  the  sale  conveys  all 
the  rights  of  the  defendant,  or  other  person 
against  whom  the  process  has  been  issued,  in 
the  property  sold.  Under  such  a  sale  there  is 
no  warranty,  either  express  or  implied,  of  the 
thing  sold.* 

When  real  estate  is  sold  by  the  sheriff  or  mar- 
shal, the  sale  is  subject  to  the  confirmation  of 
the  court.'' 

Leases.     See  Leases,  below. 

Lines  and  corners  are  boundary  lines  and 
their  angles  with  each  other.y 

Locative  calls  are  calls  describing  certain 
means  by  which  the  land  to  be  located  can  be 
identified.  Reference  to  physical  objects  in 
entries  and  deeds  by  which  the  land  to  be  lo- 
cated is  exactly  described.*  Special  are  to  be 
distinguished  from  general  calls  or  descrip- 
tions." 

Misreading — Misrecital.  When  a  con- 
veyance is  read  falsely  to  an  illiterate  or  blind 
j>erson  who  is  a  party  to  it,  such  false  reading 
amounts  to  a  fraud,  because  the  contract  never 
had  the  assent  of  both  parties.** 

More  or  less  are  words  in  a  conveyance  of 
lands  or  contract  to  convey  lands,  importing 
that  the  quantity  is  uncertain  and  not  warranted, 
and  that  no  right  of  either  party  under  the  con- 
tract shall  be  affected  by  a  deficiency  or  excess 
in  the  quantity .°  So  in  contracts  of  sale  gen- 
erally.^ 

In  case  of  an  executory  contract,  specific  per- 
formance may  be  enforced  without  changing 
the  price,  if  the  excess  or  deficiency  is  very 
small,*  but  not  if  the  excess  or  deficiency  is 
great,  even  though  the  price  reserved  be  per  acre.' 
But  a  deed  adding  the  words  more  or  less  to  the 
description  of  the  property  is  not  a  sufficient  ful- 
filment of  a  contract  to  convey  the  described 
property,  when  more  or  less  was  not  in  the 
original  contract,  if  there  is  an  actual  deficiency. 
But  after  such  a  conveyance  is  made,  and  a 
note  given  for  the  purchase  money,  the  note  can- 
not be  defended  against  on  the  ground  of  defi- 
ciency.8 

In  case  of  an  executed  contract  it  will  not  be 
disturbed  unless  there  be  a  great  deficiency ,*•  or 
excess,'  or  actual  misrepresentation  without 
fraud,  and  there  be  a  material  excess  or  defi- 
ciency.J 

Eighty-five  feet,  more  or  less,  means  eighty- 
five  feet,  unless  the  deed  or  situation  of  the  land 
in  some  way  controls  it.* 

The  words  more  or  less  will  not  cover  a  dis- 
tinct lot.'    See  Estimation,  above. 

Mortgage.     See  Mortgages,  below. 

Muniments.    See  Title,  below. 

W-g  Wheat.  616.  x-Sce  4  Wash.  C.  C.  45,  322.  y- 
17  Miss.  459;  21  Ala.  66;  9  Fost.  &  H.  471 ;  10  Gratt. 
455;  t6  Ga.  141.  z-2  Bibb.  145:  3  Id.  414.  a-3  Bibb. 
414  ;  2  Wheat.  211  ;  10  Id.  463  ;  7  Pet.  171  ;  18  Wend. 
157;  16  Johns.  257:  17  Id.  29;  10  Gratt.  445;  Jones  L. 
469;  16  Ga.  141  :  5  Ind.  302  ;  15  Mo.  80;  2  Bibb  118. 
b-5  Co.  19  ,  6  East.  309  ;  Dane  Abr.  Ch.  86,  Art.  3,  g 
7;  2  Johns.  404:  12  Id.  469;  3  Cow,  537.  C-i7  Ves. 
Ch.  394:  Powell  Pow.  397.  d-2  B.  &  Ad.  106.  e-17 
Vcs.  Ch.  394;  Powell  Pow.  397;  24  Miss.  597;  13 
Texas,  223.     f-In  2  B.  &  Ad.  106,  it  was  held  that  an 


Natural  affection  (the  affection  which 
a  husband,  a  father,  a  brother,  or  other  near 
relative  naturally  feels  towards  those  who  are 
so  nenrly  allied  to  him)  sometimes  supplies  the 
place  of  a  valuable  consideration  in  contracts ; 
and  natural  affection  is  a  good  consideration  in 
a  deed. 

Partition  is  the  division  of  real  estate. 
Compulsory  partition  is  that  which  takes  place 
without  regard  to  the  wishes  of  one  or  more  of 
the  owners,  and  is  made  by  virtue  of  special 
laws  providing  that  remedy.  Voluntary  partitirn 
is  made  by  the  owners,  and  on  mutual  consent, 
and  is  effected  by  mutual  conveyances  or  re 
leases,  to  each  person,  of  the  share  which  he  is 
to  hold,  executed  by  the  other  owners. 

Personal  Property.  See  Mortgages, 
below,  and  title  Property,  etc.  ;  Sales. 

Poll.    See  Deed  Poll  ;  Indenture,  above. 

Power  of  Attorney.  See  title  Agency  ; 
Attorneys,  ante. 

Premises.  "  The  premises  "  is  that  part  of 
a  conveyance  which  precedes  the  "  haben- 
dum"; it  embraces  the  statement  of  the  par- 
ties, the  consideration,  recitals  inserted  for 
explanation,  description  of  property  granted, 
with  the  intended  exceptions.  When  lands  are 
granted  by  metes  and  lx)unds,  all  the  area 
within  those  bounds,  and  no  more,  passes." 
Growing  crops  are  part  of  the  land  while  in  the 
owner's  hands,  and  unless  excepted,  pass  by 
the  deed." 

Primary  Conveyances.  See  Original 
Conveyances,  above. 

Property,  etc.  See  Leases  ;  Mortgages, 
below,  and  title  PERSONAL  PROPERTY;  Real 
Property,  etc. 

Punctuation.     See  title  Contracts,  ante. 

Quadripartite  is  having  four  parts,  or  di- 
vided into  four  parts,  as.  This  conveyance  quad- 
ripartite, made  this day  of ,  between 

A.  B.  of  the  one  (or  first)  part,  C.  D.  of  the  sec- 
ond part,  E.  F.  of  the  third  part,  and  G.  H. 
of  the  fourth  part,  witnesseth,  etc. 

Quit-claim  is  a  form  of  deed  in  the  nature 
of  a  release  containing  words  of  grant  as  well 
as  release." 

The  term  is  in  constant  and  general  use.  It 
presupposes  a  previous  or  precedent  convey- 
ance, or  a  subsisting  estate  and  possession. p  It 
is  a  conveyance  at  common  law,  but  differs  from 
a  release  in  that  it  is  regarded  as  an  original 
conveyance.'  The  operative  words  are  "  re- 
mise, release,  and  forever  quit-claim."''  Cov- 
enants of  warranty  against  incumbrances  by  the 
grantor  are  usually  added.  See  Deed  forms, 
post. 

excess  of  fifty  quarters  over  three  hundred  quarters  of 
grain  was  not  covered  by  the  ^yords  "three  hundred 
more  or  less,"  if  there  was  not  shown  that  so  large  an 
excess  was  in  contemplation,  i  Esp.  229.  )Sf-2  Penn.  St. 
533;  9  S.  &  R.  80;  13  Id.  143;  10  Johns.  297;  4  Ma.ss. 
414.  h-2  Russ.  Ch.  597;  I  Pet.  C.  C.  49.  1-8  Paige, 
312  :  2  Johns.  37;  Owen,  133  :  i  Ves.  &  B.  Ch.  Ir.  375. 
i-14  N.  Y.  143.  lt-20  Pick.  62.  I-24  Mo.  574.  in-13 
Ohio,  430.  11-3  Ohio  St.  483.  0-2  Wash.  R.  Prop.  6afc 
p-Thornton  Conv.  44.  q-6Pick.  49^;  14  Id.  374;  3 
Comm.  398 ;  9  Ohio,  96 ;  5  111.  117.  r-Thornton  C«nv.  44. 


272 


CONVEYANCES. 


Real  Property.  See  title  Property, 
ETC.-,  Real  Property. 

Receipts.  The  general  principle  settled  by 
weight  of  authority  is,  that  for  the  purpose  of 
sustaining  the  conveyance  as  against  the  ven- 
dor and  his  privies,  the  receipt  is  conclusive  : 
they  are  estopped  to  deny  that  a  consideration 
was  paid  sufficient  to  sustain  the  conveyance.'' 
But  in  a  subsequent  action  for  the  purchase- 
money  or  upon  any  collateral  demand,  e.  g.,  in 
an  action  to  recover  a  debt  which  was  in  fact 
paid  by  the  conveyance,  or  in  an  action  for 
damages  for  breach  of  a  covenant  in  the  deed, 
and  the  like,  the  grantor  may  show  that  the 
consideration  was  not  in  fact  paid;  that  an  ad- 
ditional consideration  to  that  mentioned  was 
agreed  for,  etc' 

And  when  a  deed  is  attacked  for  fraud,  or  is 
impeached  l^y  creditors  as  voluntary,  and  there- 
fore void,  or  when  the  object  is  to  show  the 
conveyance  illegal,  the  receipt  may  be  explained 
or  contradicted.™  With  this  exception  of  re- 
ceipts inserted  in  a  sealed  instrument  having 
some  other  purpose,  to  which  the  receipt  is  col- 
lateral, a  receipt  under  seal  works  an  absolute 
estoppel  on  the  same  principles  and  to  the 
same  general  extent  as  other  specialties." 

Recitals  are  repetitions  of  some  former 
writing  or  statement  of  something  which  has 
been  done.  It  is  useful  to  explain  matters  of 
fact  which  are  necessary  to  make  the  transac- 
tion intelligible." 

The  party  which  executes  a  deed  is  bound  by 
the  recitals  of  essential  facts  contained  therein. p 
The  amount  of  consideration  received  is  not  an 
essential  averment  under  this  rule.i  The  reci- 
tals in  a  conveyance  bind  parties  and  privies 
thereto,  whether  in  blood,  estate,  or  law.'  A 
deed  of  defeasance  which  professes  to  recite 
the  principal  deed  must  do  so  truly." 

Recording.  By  the  laws  of  the  several 
States,  certain  conveyances  and  instruments 
must  be  recorded  in  order  to  perpetuate  the 
matters  which  they  contain,  and  that  copies 
thereof  from  such  records  shall  have  the  same 
effect  as  the  records  themselves.  The  fact  of 
an  instrument  being  recorded  is  held  to  operate 
as  a  constructive  notice  upon  all  subsequent 
purchasers  of  any  estate,  whether  legal  or  equit- 
able, in  the  same  property.'  But  all  convey- 
ances and  deeds  which  may  be  in  fact  recorded, 

U-i  Binn.  502  ;  26  Mo.  56  ;  4  Hill  (N.  Y.")  64::t.  I-16 
Wdid.  460  ;  4  Johns.  23  ;  14  Id.  210  ;  2  Hill  (N.  Y.')  554  ; 
10  Vt.  96  ;  12  Id.  443  ;  3  N.  H.  170  ;  4  Id.  229,  397 ;  i 
M'Cord,  514;  7  Pick.  533;  i  Rand.  219;  4  Dev.  355;  3 
Hawks.  82  ;  6  Me.  364  ;  5  B.  &  Aid.  606  ;  5  Ala.  224  ;  5 
Lond.  Jur.:  2  Harring.  (Del.)  354;  13  Mi<is.  238;  ^ 
Conn.  113;  I  Harr.  &  G.  139;  2  Humph.  584;  i  Gill. 
84;  1  J.  I.  Marsh,  387:  3  Md.  Ch.  Dec.  411;  3  Ind. 
212;  15  III.  230;  I  Stockt.  Ch.  492.  But  there  are  many 
contrary  cases.  See  i  Me.  2  ;  5  Id.  232  ;  7  Johns.  341  ; 
3  M'Cord,  552  ;  1  Johns.  Ch.  390;  i  Harr.  &  J.  252 ;  i 
Huwks.  64  :  4  Hen.  &  M.  113  ;  2  Ohio,  182  ;  i  B.  &  C. 
704.  iil-3  Zab.  465 ;  3  Md.  Ch.  Dec.  461  :  21  Penn.  St. 
480;  20  Pick.  247:  12  N.  H.  248.  n-Ware  Dist.  Ct. 
496;  4  Hawkes,  22  ;  see  2  Taunt.  141.  0-2  Bl.  Comm. 
»j8.  p-Cora.  Dig.  Estoppel  {Pi..  2),  Met.  Yelv.  227,  «.; 
2  Co.  33 :  8  Mod.  311.  «|-17  Mass.  249  ;  20  Pick.  247; 
5  Cush.  431  ;  6  Me.  364  :  7  Id.  175  ;  13  Id.  233;  15  Id. 
118;  10  Vt.  96;  4  N.  U.  229,  397;  8  Conn.  304;  14 
Johns.  210;  20  Id.  3S8;    16  ^Vend.  460;    7  S.  &  R.  311 ; 


are  not  to  be  considered  as  giving  notice.  In 
order  to  have  this  effect  the  instruments  must 
be  such  as  are  authorized  or  required  to  be  re- 
corded. And  the  registry  must  have  been  made 
in  compliance  with  law — otherwise  the  record- 
ing is  to  be  treated  as  a  mere  nullity,  and  will 
not  effect  a  subsequent  purchaser  or  incumbran- 
cer, unless  he  has  such  actual  notice  as  would 
amount  to  a  fraud." 

Reddendum  is  that  clause  in  a  conveyance 
which  reserves  something  new  to  the  grantor, 
which  must  be  of  some  other  thing  issuing  or 
coming  out  of  the  thing  granted,  and  not  a  part 
of  the  thing  itself;^  nor  of  something  issuing 
out  of  another  thing;  and  it  must  be  made  to 
one  of  the  grantors,  and  not  to  a  stranger  to 
the  conveyance.  "  Saving  and  excepting," 
etc.*  The  thing  excepted  must  be  particularly 
described." 

Re-entry.  Conveyances  in  fee  reserving  a 
ground  rent,  and  leases  for  a  term  of  years, 
usually  contain  a  clause  authorizing  the  propri- 
etor to  re-enter  in  case  of  the  non-payment  of 
rent,  or  of  the  breach  of  some  covenant  in  the 
lease  which  forfeits  the  estate.  Without  such 
reservation  he  would  have  no  right  to  re-enter 
for  a  mere  breach  of  a  covenant,  although  he 
may  do  so  upon  the  breach  of  a  condition  which, 
Ijy  its  terms,  is  to  defeat  the  estate  granted .' 
See  Leases,  below. 

Release.  A  release  is  a  conveyance  of  a 
person's  interest  or  rights  unto  a  thing  to  an- 
other who  has  the  possession  thereof  or  some 
estate  therein.*  The  relinquishment  of  some 
right  or  benefit  to  a  person  who  has  already 
some  interest  in  the  tenement,  and  such  in- 
terest as  qualifies  him  to  receive  or  avail  him- 
self of  the  right  or  benefit  so  relinquished.* 

Remise,  release,  and  quit-claim  are  the 
ordinary  effective  words  in  a  release.  These 
words  are  sufficient  to  pass  the  estate  in  a  primary 
conveyance.*"  Remise  is  a  French  word  synon- 
ymous with  release."    See  Surrender,  below. 

Reservation  is  that  part  of  a  deed  or  instru- 
ment which  reserves  a  thing  not  in  esse  at  the 
time  of  the  grant,  but  merely  created.*  It  is 
the  creation  of  a  right  or  interest  which  had  no 
prior  existence,  as  such,  in  a  thing  or  part  of  a 
thing  granted,  by  means  of  a  clause  inserted  by 
the  grantor  in  the  instrument  of  conveyance. 

3  Watts,  151 ;  I  Harr.  &  G.  139  :  i  Bland.  Ch.  236;  4 
Hen.  &  M.  113;  i  Rand.  219;  2  Hill,  404;  i  M'Cord, 
514;  15  Ala.  498  ;  loYerg.  160;  7  Monr.  291  ;  i  J.  J. 
Rlarsh,  389  ;  but  see  i  Hawks.  64 ;  4  Id.  22  ;  i  Dev.  8c 
B  453  ;  1 1  La.  416  ;  2  Ohio,  350  ;  3  Mas.  C.  C.  347.  r- 
I  Greenl.  Ev.  g  3.  And  see  3  Ad.  &  E.  265 ;  7  Dowl.  & 
R.  141  ;  4  Pet.  1 ;  6  Id.  6n.  s-Cruise  Dig.  tit.  32,  Ch. 
7,  J  28  ;  see  3  Penn.  324  ;  3  Chanc.  Cas.  101  ;  Co.  Litt. 
352;  Com  Dig.  J^ait  {¥..  i).  t-i  Johns.  Ch.  394.  ll-i 
Sch.  &  L.  157;  2  Id.  68;  4  Wheat.  466;  1  Binn.  40;  i 
Johns.  Ch.  300;  I  Story  Eq.  Jur.  ??  403,  404  ;  s  Me.  272. 
V-See  2  Bl.  Comm.  299;  Co.  Litt.  47;  Shep.  Touchst. 
80;  Cruise  Dig.  tit.  32,  c.  24,  ?  I.  w-See  30  Vt.  424  ;  R. 
I.  419;  41  Ms.  177.  x-WoodiF.  L.  &'ren.  10;  Co.  Litt. 
47,  «.;  12  Me.  337  ;  Wright,  711  ;  3  Johns.  375  ;  s  N. 
Y.  33;  8 Conn.  369-  6  Pick.  499;  6  N.  H.  421;  2Strobh. 
208;  2  Tayl.  173.  y-3  VVils.  27;  2  Bingh,  13:  i  M.  & 
R.  694  ;  Tayl.  Sandl.  &  Ten.  ^290.  -  a-Shepp.  Touchst. 
320.  a-Bunt.  R.  Prop.  15*  b-7  Conn.  250;  24  N.  H. 
460;  21  Ala.  (N.  S.)  125;  7  N.  Y.  422.  c-See  Qi/iT- 
Claim,  above.    U-2  HiUiard  Abr.  359. 


CONVEYANCES. 


373 


A  reservation  is  distinguished  from  an  excep- 
tion in  that  it  i&  of  a  new  right  or  interest ;  thus 
a  right  of  way  reserved  at  ihe  time  of  conveying 
an  estate,  which  may  have  been  enjoyed  by  the 
grantor  as  owner  of  the  estate,  becomes  a  new 
right.' 

A  reservation  may  be  of  a  life-estate,"  of  a 
right  of  flowage,''  right  to  use  water,?  right  of 
way,*  and  many  other  rights  and  interests.* 

Scriveners,  or  conveyancers,  are  those 
whose  business  it  is  to  write  conveyances  and 
other  instruments  for  others.  They  act  also  as 
^agents  for  the  purchase  and  sale  of  real  estate. 

Signature  is  the  act  of  putting  one's  name 
at  the  end  of  an  instrument  to  attest  its  validity. 
The  name  thus  written  is  also  called  a  signature.** 

It  is  not  necessary  that  a  party  should  write 
his  name  himself  to  constitute  a  signature;  his 
mark  is  sufficient  though  he  was  able  to  write." 
A  signature  made  by  a  party,  another  guiding 
his  hand  with  his  consent,  is  sufficient."^ 

The  signature  is  usually  made  at  the  bottom 
of  the  instrument. 

Spelling.     See  title  Contracts,  ante. 

Surrender  is  the  yielding  up  of  an  estate 
for  life  or  years  to  him  who  has  an  immediate 
estate  in  reversion  or  remainder,  by  which  act 
the  lesser  estate  is  merged  into  the  greater  by 
mutual  agreement.^  It  is  the  instrument  by 
which  the  surrender  is  made, 

A  surrender  is  of  a  nature  directly  opposite 
to  a  release :  the  latter  operates  by  the  greater 
estate  descending  upon  the  less,  the  former  is 
the  falling  of  a  less  estate  upon  the  greater  by 
deed.  The  surrender  may  be  express  or  im- 
plied ;  the  latter  is  when  an  estate  incompati- 
ble with  an  esdsting  estate  is  accepted,  or  the 
lessee  takes  a  new  lease  of  the  same  lands.' 

The  technical  and  proper  words  of  this  con- 
veyance are,  "  Surrender  and  yield  up,"  but 
any  form  of  words  by  which  the  intention  of  the 
parties  is  sufficiently  manifested  will  operate  as 
a  surrender.K 

Tax  deeds  are  absolute  conveyances  made 
by  a  public  officer,  of  the  title  of  the  owner  to 
the  purchaser,  at  a  tax  sale  or  sale  of  lands  for 
non-payment  of  taxes.  By  the  principles  of 
the  common  law,  this  conveyance  is  simply  a 
link  in  the  chain  of  the  grantee's  title.  It  does 
not  ipso  facto  transfer  the  title  of  the  owner,  as 
in  grants  from  the  government  or  conveyances 
between  man  and  man.  The  operative  char- 
acter of  it  depends  upon  the  regularity  of  the 
anterior  proceedings.  The  deed  is  not  the  title 
itself,  nor  even  evidence  of  it.  Its  recitals 
bind  no  one.  It  creates  no  estoppel  upon  the 
former  owner.  No  presumption  arises  upon 
the  mere  production  of  the  conveyance  that  the 

V-42  Me.  9.  w-28  Vt.  10;  33  N.  H.  18 :  3  Jones,  37, 
38  ;  23  Mo.  373  ;  3  Md.  Ch.  l3ec.  230.  X-41  Me.  298. 
y-41  Me.  177;  9  N.  Y.  423;  j6  Barb.  212.  a-25  Conn. 
331 ;  6  Cush.  254  ;  10  Id.  313  ;  10  B.  Mon.  463.  H-33 
N.  H.  507;  9  B.  Mon.  163;  5  Penn.  St.  317;  see  6 
Cush.  162  ;  4  Penn.  St.  173  ;  9  Johns.  73.  b-See  Mer- 
En  Rep.  Signaturt ,  for  a  history  of  the  origin  of  signa- 
tures, also  Cruise  Dig.  32,  c.  2,  J  73,  et  seq.  C-8  Ad.  & 
E.  94;  3  Nev.  &P.  228;  3  Curt.  C.  C.  752  ;  5  Jghns. 
144.     d-4  Wash.  C.C.  262,  269.     e-Co.  Litt.  337,  <J.     f- 


facts  upon  which  it  is  based  had  any  existence. 
When  it  is  shown,  however,  that  the  ministerial 
officers  of  the  law  have  performed  every  duty 
which  the  law  imposed  upon  them,  and  every 
condition  essential  to  its  character,  then  the 
deed  becomes  conclusive  evidence  of  the  title 
in  the  grantee,  according  to  its  extent  and  pur- 
port.""    See  General  Statutes. 

Tenendum  was  that  part  of  a  conveyance 
which  was  formerly  used  to  express  the  tenure 
by  which  the  estate  conveyed  was  held.  Its 
effect  is  now  expressed  by  the  clause  called  the 
"  Habendum,"  which  see  above. 

Testatum  is  that  part  of  a  conveyance  which 
commences  with  the  words,  "  This  conveyance  " 
i^or  deed,  or  indenture),  etc.,  witnesseth. 

Title  is  the  means  whereby  the  owner  of 
lands  has  the  lawful  possession  thereof.' 

Muniiuents  of  title  are  those  instruments  of 
writing  and  written  evidences  which  the  owner 
of  lands,  possessions,  or  inheritances  has,  anjl 
by  which  he  is  enabled  to  defend  the  title  cf 
his  estate. 

Title  deeds  are  those  deeds  which  are  evi- 
dences of  the  title  of  the  owner  of  an  estate. 
The  person  who  is  entitled  to  the  inheritance 
has  a  right  to  the  possession  of  the  title  deed^.J 

Transfer  is  the  act  by  which  the  owner  cf 
a  thing  delivers  it  to  another  person  with  tj  le 
intent  of  passing  the  rights  which  he  has  in  it 
to  the  latter. 

Tripartite  is  the  consisting  of  three  partis; 
as,  "  This  conveyance  tripartite  between  A.  I  J. 
of  the  first  part,  C.  D.  of  the  second  part,  and 
E.  F.  of  the  third  part,"  etc. 

Will.  Last  will  and  testimony,  see  Wills, 
below. 

Witness  attestation  is  not  essential  to  the 
validity  of  a  conveyance  unless  required  by 
statute. 

Careful  conveyancers,  in  general,  have  all  in- 
struments of  conveyance,  as  well  as  other 
important  instruments,  attested  by  at  least  one 
witness. 

Yard.  A  yard  is  a  piece  of  ground  enclosed 
for  the  use  and  convenience  of  the  occupants 
of  a  house.     See  BACKSIDE,  above. 

For  Agreements  to  Convey  see  title 
Contracts,  ante. 

For  Bonds  to  Convey  see  title  Bonds, 
ante. 

For  Contracts  to  Convey  see  title  Con- 
tracts, ante. 

eOXVEYAXC'ES— DEED  FOR9kS. 

Deeds  must  be  on  paper  or  parchment,*  completely 
written  before  delivery,'  between  competent  parties, 
made  without  restraint,"'  contain  the  names  of  the  grantor 
and  grantee,"  relate  the  suitable  property,'  and  contain 
the  requisite  parts  : 

16  Johns.  28 ;  2  Wils.  26 ;  i  B.  &  Aid.  50;  2  Id.  no ;  S 
Taunt.  518.  jf- Perkins,  ?6o7  ;  i  T.  R.  441 ;  Cora.  Dig. 
Surrender  (A.l  h-See  Blackwell  Tax  Titles, .430;  2 
Washb.  R.  Prop.  542.  i-Termes  de  la  Ley.  Co.  3d 
Inst.  170.  j-i  Carr.  &  M.  653.  fe-s  Johns.  246.  l-i 
Hill  fSo.  C")  267  :  6  Mees.  &  W.  216,  Am.  Ed.  ».     ill- 

13  Mass.  371;  2  Bl.  Conun.  291.  11-2  Brock  C.C.  156; 
19  Vt.  613;    12  Mass.  447;    14  Mo.  420;    13  Ohio,  120; 

14  Pet.  322  ;  1  McLean  C.C.  21  ;  2  N.  H.  525.  O-Browii 
on  Frauds,  §  6 ;  2  Washb.  R.  Prop.  259,  et  **f . 


274 


CONVEVANCES. 


The  Introduction — "  This  conveyance  (or  this  deed, 
*r  this  indenture),  made  this day  of ." 

1.  The  Premises.  This  embraces  the  statement  of 
the  parties,  the  consideration,  recitals  inserted  for  ex- 
planation, description  of  property  granted,  with  the  in- 
tended exceptions.  When  lands  are  granted  by  metes 
and  bounds,  all  the  area  within  those  bounds  and  no  more 
passes.'  Growing  crops  are  a  part  of  the  land  while  in 
the  owner's  hands,  and  unless  excepted,  pass  by  the 
deed.f 

Do^ve^.  If  a  wife  unite  with  her  husband  in  the 
granting  part  of  a  deed  conveying  her  land,  she  is  there- 
by barred  of  her  right  of  dower,  as  against  all  those  who 
;laim  under  such  deed.!"  All  that  the  statute  requires 
of  a  married  woman  in  order  to  convey  her  own  estate, 
or  her  dower  interest,  is,  that  she  should  join  with  her 
husband  in  the  granting  part  of  the  deed.  If  she  do 
this,  her  dower  is  thereby  barred  without  express  words 
for  that  purpose.' 

2.  The  Habendum.  "To  have  and  to  hold,"  etc. 
This  limits  and  defines  the  estate  which  the  grantee  is 
to  have. 

3.  The  Reddendum.  This  is  used  to  reserve  some- 
thing to  the  grantor,  which  must  be  of  some  other  thing 
issuing  or  coming  out  of  the  thing  granted,  and  not  a 
part  of  the  thing  itself'  "  Saving  and  excepting,"  etc.' 
The  thing  excepted  must  be  particularly  described." 

4.  The  Condition.  This  is  a  qualification  or  re- 
striction annexed  to  the  conveyance,  whereby  it  is  pro- 
\ii  led  that  in  case  a  particular  event  does  or  does  not 
h.ippen,  or  in  case  the  grantor  or  grantee  does  or  omits 
to  do  a  particular  act,  an  estate  shall  commence,  be  en- 
larged, or  be  defeated." 

5.  Covenants.  See  Covenants,  above.  The  Cov- 
enant of  Warranty.  This  is  an  assurance  by  the 
grantor  of  an  estate  that  the  granteeshall  enjoy  the  same 
without  interruption  by  virtue  of  paramount  title."  Such 
covenants  give  the  covenantee  and  grantee  the  benefit 
of  subsequently  acquired  titles.P  to  the  extent  of  their 
termsi  (but  not  if  an  interest  actually  passes  at  the  time 
of  making  the  conveyance  upon  which  the  covenant  may 
operate)  :■■  in  case  of  a  term  for  years  as  well  as  convey- 
ances of  greater  estates,'  as  against  the  grantor  and 
those  claimi  ng  under  him,'  including  purchases  for  value." 
And  this  principle  does  not  operate  to  prevent  thegrant- 
«e's  action  for  breach  of  the  covenant,  if  evicted  by  such 
title.' 

The  covenant  of  warranty,  until  broken,  passes  with 
the  land  to  the  heir  of  the  grantee  ;  or  if  the  land  be  as- 
signed or  conveyed,  it  passes  to  the  assignee,  and  when 
broken,  the  heir  or  assignee  injured  by  the  breach  can, 
in  his  own  name,  maintain  an  action  against  the  war- 
rantor, and  may  maintain  an  action  against  every  inter- 
mediate warrantor,  and  prosecute  the  same  to  judgment. 
A  judgment  against  one  will  be  no  bar  to  a  suit  against 
another.  A  satisfaction  is  the  only  bar."  To  constitute 
a  breach  there  must  be  an  eviction  by  paramount  title,* 
which  may  be  constructive.! 

6.  The  Conclusion.  This  mentions  the  execution, 
date,  etc. 

7.  The  Signature  by  the  grantor  or  grantors  (and 
their  seals  when  required  by  law). 

8.  The  Attestation  by  competent  witnesses  when 
required  by  statute. 

9.  The  Acknowledgment  or  proof. 

Af.ABASIA. 

All  persons  twenty-one  years  of  age,  not  under  legal 

disability,    may    convey    or    incumber  real    estate    or 

any  interest  therein.    All  conveyances  must  be  in  writing 

or  printed  upon  parchment,  and  must  be  signed  at  their 

f-13  Ohio,  430.  g-3  Ohio  St.  483.  I1-15  Ohio,  191. 
I-Id.  191,  232  ;  Wms.  K.  Prop.  189  ;  see  6  Ohio  St.  510; 
»  Binn.  341  ;  1  Bail.  421 ;  i  Blackf.  379  ;  13  Barb.  50. 
She  cannot  release  her  dower  by  parol,  see  5  Monr.  57  : 
3  Zabr.  62.  li-See  2  Bl.  Comm.  299  ;  Co.  Litt.  47  ; 
Shep.  Touchst.  80;  Cruise  Dig.  tit.  32,  c.  24,  J  i.  I- 
See  30  Vt.  424 ;  R.  I.  419  ;  41  Ms.  177.  Ill-Woodf  L. 
&  Ten.  10;  Co.  Litt.  47,  a.;  12  Me.  337;  Wright,  711  ; 
5  Johns.  375  ;  5  N.  Y.  33  ;  8  Conn.  369  ;  6  Pick.  499  ;  6 
N.  H.  421  ;  2  Strobh.  208;  2  Tayl.  173.  ll-Greenl. 
Cruise  Dig.  tit.  xiii.,  c.  i,  §  t.  0-2  Jones,  203 ;  3  Duer, 
464.  p-ii  Johns.  91  :  13  Id.  316;  14  Id.  193  .  9  Cow. 
271  ;  6  Watts,  60;  oCranch,  43  ;  13  N.  H.  389  :  i  Ohio, 
190 ;  3  Id.  107  ;  3  Pick.  52  ;  13  Id.  1 16  ;  24  Id.  324  ;  3 
Met.  121  ;  13  Me.  281  ;  20  Id.  260.  q-i2  Vt.  39  ;  3  Met. 
121 ;    9  Cow.  271  ;    34  Me.  483.     r-3  McLean  C.  C.  56; 


foot  by  the  contracting  party,  or  his  or  her  agent  having 
written  authority. 

Acknowledgment.  See  that  title,  ante.  Acknowl- 
edgment dispenses  with  the  necessity  of  witnes.ses. 

Dower  may  be  relinquished  by  the  wife  joining  with 
her  husband  in  the  conveyance  of  land;  or  in  a  power 
of  attorney  authorizing  the  attorney  to  convey  the 
land ;  or,  subsequent  to  a  convtyancc,  by  a  separate 
instrument  executed  by  her  alone ;  and  in  either  case 
her  signature  must  be  attested  by  two  witnesses  who 
are  able  to  write,  or  acknowledged  by  her  according  to 
the  form  prescribed  fcr  the  acknowledgment  of  their 
conveyances  in  the  State.'  Husband  must  join  in  wife's 
conveyance  of  real  property,  except  he  be  non  compos 
mentis,  non-resident,  has  abandoned  her,  or  is  impris- 
oned  under  conviction  for  exceeding  two  years.* 

Recording.  Conveyances,  whether  by  absolute 
deed  or  by  mortgage,  must  be  recorded  within  thirty 
days  from  their  date  in  the  office  of  the  judge  of  probate 
for  the  country.  Other  conveyances  must  be  recorded 
before  the  rights  of  purchasers,  mortgagees,  or  judgment 
creditors  accrue. •> 

Seals  are  not  necessary.     A  scroll  is  customary. 

Witnesses.  The  execution  of  such  conveyances 
must  be  attested  by  one,  and  where  the  party  cannot 
write,  by  two  witnesses  who  are  able  to  write,  and  who 
must  write  their  names  as  witnesses. 

See  General  Forms  and  Kentucky  and  Virginia 
Forms,  post. 

Coiireyance— Gen«ral  Warranty   Deed. 

This  conveyance,  made  this day  of ,  by 

A.  B.,of county,  in  the  State  of ,  to  C.  D., 

of county,  in  the  State  of ,  witnesseth  : 

That  in  consideration  of  the  sum  of dollars, 

the  said  A.  B.  does  by  these  presents  grant,  bar- 
gain and  sell  and  convey  unto  said  C.  D.  (his  heirs 
and  assigns),  all  the  following  described  real  estate, 

situated  in county  and  State  of  Alabama,  to 

wit  :    ^describi-ng  it  by  metes  and  bounds). 

To  have  and  to  hold  the  same,  together  with 
the  appurtenances  and  every  part  thereof,  for- 
ever. And  the  said  A.  B.  does  hereby  covenant 
and  agree  with  said  C.  D.,  that  he  is  lawfully 
seized  in  fee  of  said  premises,  that  they  are  free 
from  all  incumbrances,  that  he  has  a  perfect  right 
to  convey  the  same,  and  that  he  will  warrant  and 
forever  defend  the  same  unto  the  saidC.  D.,  his 
heirs  and  assigns,  against  the  lawful  claims  of  all 
persons  whomsoever. 

In  witness  whereof  said  grantor  has  hereunto 
set  his  hand ,  the  day  and  year  first  above  written. 

(Signed,)        A.  B, 
Executed  in  presence  of  ) 
W.  T.,N.  S.  I 

For  form  of  Acknowledgment,  s'.e  that  title. 

ARKAIVSAS. 

All  persons  of  full  age  and  under  no  legal  disabilitj^ 
may  convey  their  real  estate  or  any  interest  therein. 

Acknowledgment.     See  that  title,  ante. 

Dower.  When  hu.sband  and  wife  convey  lands  of 
the  hu.sband,  the  certificate  of  acknowledgment  must 
show  th.1t  the  wife  acknowledged  her  relinquishment 
of  dower." 

Married  women  may  convey  in  the  same  manner 
as  the  husband. 

Recording  is  not  required  within  any  specified  time. 
Mortgages  are  not  liens  until  recorded.* 

Seals  are  not  required. 

See  Kenti;cky  Forms,  post. 

o  Cow.  271  ;  12  Pick.  47  ;  5  Gratt.  157.  S-Burton  R. 
Prop,  g  850;  Wms.  R.  Prop.  229  ;  Washb.  b.  R.  Prop. 
478;  4  Kent.  Comm.  261,  «.;  Cro.  Car.  109;  i  Ed. 
Raym.  739 ;  4  Wend.  502 ;  i  Johns.  Cas.  190.  t-2 
Washb.  R.  Prop.  479,  480.  n-14  Pick.  224  ;  24  Id.  324 ; 
5  N.  H.  533 ;  13  Id.  389  ;  5  Me.  231  ;  12  Johns.  201  ;  13 
Id.  316:  9  Cranch,  53;  see  4  Wend.  619;  18  Ga.  192. 
▼-I  Gray,  195;  25  Vt.  635;  12  Me.  499.  w-5  Ohio, 
154:  14  Id.  118.  x-Rawl.  Cov.  221:  6  Barb.  165:  5 
Harr.  162;  11  Rich.  80;  13  La.  An.  390,  499  ;  5  Cal 
262;  4lnd.  174;  6  Ohio  St.  525  ;  26  Mo.  92  ;  17  111. 
185;  36  Me.  455  :  14  Ark.  309.  y-i2Me.  499;  17  111. 
185  ;  5  Hill,  59Q  ;  4  Mass.  349  ;  8  III.  162  ;  5  Ired.  393. 
«-Code  1886,  I  1894.  a-Id.  I  2348.  b-Id.  i8io-it. 
c-Gould's  Dig.  Ch.  81,  gj  1-37.    d-Gould's  Dig.  TJt 


CONVKVA.NXES. 


275 


CATilFORlVIA. 

Conreyances  or  deed-;  are  here  called  "grants,"  and 
may  be  in  substance  as  follows  :» 

I,  A.  B.,  grant  to  C.  D    all   that   real   property, 

situated     in  county,    State     of     California, 

bounded  (or  described)  as  follows  :  (here  /ollo7vs 
the  description,  either  hy  metts  and  iounds  or  by  a 
descriptive  natne,  as  "  The  Noiris  Ranch  ")  : 

Witness  my  hand,  this day  of . 

A.  B. 

Acknowledgment.     See  that  title. 

Kecording  imports  notice  at  once  and  mnst  be  in  the 
office  of  the  recorder  of  the  county  where  the  land  is 
situated. 

Seals.  Distinctions  between  .sealed  and  unsealed  in- 
»truments  are  abolished." 

Witnesses  are  not  required. 

See  General  Forms. 

CANADA. 

Province  of  Ontario. 

The  common  law  form  of  conveyance,  as  modified  by 
iMiage  and  as  stated  below,  and  when  duly  executed  ac- 
cording to  the  laws  or  custom  of  the  locality  of  the 
property  conveyed,  are  valid. 

Acknowledgment.     See  that  title,  ante. 

Duplicates.  Conveyances  must  be  in  duplicate  for 
the  purpose  of  registration. 

Heirs.  The  word  "  heirs  "  is  necessary  to  convey  a 
iee  simple. 

Married  women  may  convey  real  property  by  a  deed 
in  which  the  husband  joins,  may  appoint  an  attorney 
to  convey,  etc.,  and  a  separate  examination  is  unneces- 
sary.    A  married  infant  may  bar  her  dower. 

Registering.  After  a  grant  from  the  crown  every 
li.on  veyance  and  instrument  affecting  real  estate  is  deemed 
fraudulent  and  void  against  creditors,  subsequent  pur- 
chasers, and  mortgagees  for  valuable  consideration  with- 
out actual  notice,  unless  registered  in  the  registry  office 
of  the  county  where  the  lands  lie. 

Seal.  Conveyances  and  instruments  affecting  real 
property  must  be  under  seal ;  a  wafer  or  other  adhesive 
substance  should  be  used.     A  scroll  or  scrawl  is  improper. 

Witnesses  must  each  make  affidavit  as  to  the  execu- 
tion of  the  instrument  by  the  party  whose  execution 
he  attests,  where  parties  sign  before  different  subscrib- 
ing witnesses,  or  the  conveyance,  etc.,  cannot  be  reg- 
istered. 

Province  of  Quebec. 

Conveyances  and  other  instruments  affecting  real 
property  or  any  interest  therein,  made  in  conformity 
with  the  laws  in  force  where  the  property  is  situated, 
are  valid  here. 

Acknowledgment.     See  that  title  ante. 

Recording  is  necessary  in  order  to  affect  creditors, 
subsequent  mortgagees  or  purchasers  in  good  faith,  for 
value,  and  without  notice. 

COLORADO. 

See  conveyances  referred  to  below. 

Acknowledgment.     See  that  title,  ante. 

Corporations.  Private  corporations  may  be  author- 
ized by  law  to  convey.  It  should  be  executed  in  the 
name  of  the  corporation,  by  its  president  or  other  chief 
officer,  naming  him,  and  be  by  him  signed,  attested  by 
its  common  seal,  and  acknowledged,  "  for  and  as  the  act 
and  deed  of  the  (natne  the  corporation)." 

Dower  is  abolished. 

Married  women  convey  same  as  married  men  ; 
either  may  convey  their  own  real  estate  without  joining 
the  other. 

Recording  is  necessary  in  order  to  affect  creditors, 
uubsequent  purchasers  or  mortgagees  in  good  faith,  for 
value,  and  without  notice. 

See  Kansas  Forms,  post. 

COXXECTICITT. 

See  Conveyances  referred  to  below. 

Acknowledgment  must  be  personally  made.  See 
title  Acknowledgment,  ante. 

Married  women.  Women  married  since  April 
ao,  1877,  may  convey  without  husband  joining  in 
deed. 

Recording  must  be  at  length,  within  a  reasonable 
time,  by  the  town  clerk  of  the  town  where  such  lands 
are  situated. 

a-C  C.  \  1092.    »-C.  C.  \  i6w. 


Witnesses.  Conveyances  must  be  attested  by  two 
witnesses. 

See  Genbral  Forms,  post. 
DAKOTA,  N.  and  H. 

Conveyances  may  be  made  from  husband  to  wife,  or 
vice  versa.     See  conveyances  referred  to  below. 

Acknowledgments.     See  that  title  ante. 

Courtesy  is  abolished. 

Dower  is  abolished. 

Married  Woman  need  not  join  in  a  conveyance  of 
land  belonging  to  her  husband  except  homestead,  nor  need 
the  husband  join  in  a  conveyance  of  the  lands  of  his  wife. 

Recording  is  net  -.ssary  in  order  to  affect  creditor}, 
subsequent  piirchiv.ers  or  mortgagees  in  good  faith,  for 
value,  and  without  notice. 

Witness.  The  execution  and  delivery  of  a  convey- 
ance must  be  attested  by  at  least  one  witness. 

DELAWARE. 

Acknowledgments.     See  that  title,  ante. 

Corporations  convey  by  their  President  or  other  le- 
gally presiding  officer  duly  authorized  by  the  directors, 
trustees  or  other  managers. 

Dower.  The  certificate  of  acknowledgment  must 
show  that  the  wife  relinquishes  her  dower. 

Married  women  must  be  examined  privately,  and 
such  examination  certified  to. 

Recording  must  be  within  three  months  from  the  seal- 
ing and  delivering  of  the  conveyance,  otherwise  it  is  void 
as  against  a  subsequent  fair  creditor,  mortgagee,  or  pur- 
chaser, fur  a  valuable  consideration,  without  notice. 

Seal.     .\  r.croU  is  sufficient. 

Witness.     One  witness  is  sufficient. 

RESTRICT  OF  COLUMBIA. 

Conveyances  of  any  estate  or  interest  in  lands,  tene- 
ments, or  hereditaments  within  this  district  must  be 
executed  and  acknowledged  before  any  officer  authorized 
by  the  law  there  to  take  acknowledgments. 

Acknowledgments.     See  that  title. 

Dower,  lobar  her  dower  the  wife  must  be  examined 
apart  from  her  husband,  and  have  the  conveyance  fully 
explained  to  her.     See  title  Acknowledgment,  ante. 

Married  women  may  convey  their  real  estate  in  the 
same  manner  as  though  single.'' 

Recording  is  necessary  in  order  to  affect  creditors, 
subsequent  purchasers,  or  mortgagees  in  good  faith,  for 
value,  and  without  notice. 

Seals  are  not  required,  but  customary. 

■Witnesses  are  not  required,  but  the  signing,  sealing, 
and  delivery  is  usually  attested  by  one  witness. 
See  General  Forms,  post. 

FLORIDA. 

Conveyances  of  any  estate  or  interest  of  freehold  or 
for  a  term  of  more  than  two  years  must  be  in  writing, 
etc.     See  forms  referred  to  below. 

Acknowledgment.     See  that  title,  ante. 

Dower.     See  tide  Acknowledgment,  ante. 

Married  women.  Citizens  of  this  State  at  marriage 
and  seized  or  possessed  of  real  or  personal  property 
preserve  their  title  separate,  independent,  and  beyond 
their  husbands' control. 

Recording  must  be  in  the  county  in  which  the  lands 
are  situated  and  within  six  months  after  the  execution 
thereof,  or  they  are  void  as  against  creditors,  subse- 
quent purchaser,  or  mortgagee,  for  value,  without  notice. 

Seals.  A  scrawl  with  the  word  "  seal"  written  in  it 
affixed  to  it  is  a  sufficient  seal." 

Witnesses.     At  least  two  are  necessary. 
See  General  Forms,  post. 

GEORGIA. 

Conveyances  of  any  estate  or  interest  in  real  property 
are  made  as  referred  to  below. 

Acknowledgment.     See  that  title,  ante. 

Dower  need  not  be  renounced  except  where  the  hus- 
band is  alienating  lands  to  which  he  derived  tide  through 
the  wife,  prior  to  the  statute  of  1866.  The  wife  joining 
in  the  deed  with  her  husband  bars  her  dower. 

Recording  should  be  in  the  ofiSce  of  the  clerk  of  the 
superior  court  of  the  county  where  the  land  lies,  within 
twelve  months  from  the  date  of  the  conveyance. 

Seals.     A  seal  or  scroll  is  necessary. 

Witnesses.     All  deeds,  mortgages,  etc.,  to  real  es- 
tate,  should   be  attested  by  two   witnesses,   the   com- 
missioner, consul,  etc.,  or  judge  being  one  of  them. 
See  GtNERAL  FoKMS,   post. 

b-Acts  1869,  April  10, 16  Swt.  L.  45.     c-2  Fla.  */ii. 


a76 


CONVEYANCES. 


Courtesy  and,  perhaps,  dower  abolished.  Mar- 
ried >vomen  must  join  hiusbands  to  convey.  No 
distinction  between  sealed  and  unsealed  instru- 
ments. Recording  necessary,  but  time  not 
limited. 

Witnesses  not  required.     See  General  Forms. 

Acknowledgment— See  Page  22.  Married  wo- 
men convey  individual  property  bj'  joining  in  the  con- 
veyance with  the  husband,  and  thereby  release  dower. 
Recording  is  necessary ;  time  not  limited.  Seals 
are  required  ;  a  scroll  is  sufficient.  Witnesses  are 
not  required. 

"Sec.  Q.  Deeds  for  the  conveyance  of  land 
may  be  suostantially  in  the  following  form  : 

The  grantor  (here  insert  the  name  or  names  and 
place  of  residence),  for  and  in  consideration  of 
(here  insert  consideration)  in  hand  paid,  conveys 
and  warrants  to  (here  insert  the  grantee's  name  or 
names)  the  following  described  real  estate  (here 

insert  description),  situated  in  the  County  of , 

in  the  State  of  Illinois.*  A.  B.  [L.  S.) 

Dated  this  — day  of ,  A.  D. ." 

"Every  deed  in  substance  in  the  above  form,  when 
otherwise  duly  executed,  shall  be  deemed  and  held  a 
conveyance  in  fee  simple  to  the  grantee,  his  heirs  or 
assigns,  with  covenants  on  the  part  of  the  grantor  (i} 
that  at  the  lime  of  making  and  delivering  of  such  deed 
he  was  lawfully  seized  of  an  indefeasible  estate  in  fee 
simple,  in  and  to  the  premises  therein  described,  and 
had  good  right  and  full  power  to  convey  the  same ; 
(2)  that  the  same  were  then  free  from  all  incumbrances; 
and  (3)  that  he  warrants  to  the  grantee,  his  heirs  and 
assigns,  the  quiet  and  peaceable  po.ssession  of  such 
premises,  and  will  defend  the  title  thereto  against  all 
persons  who  may  lawfully  claim  the  same.  And  such 
covenants  shall  be  obligatory  upon  any  grantor,  his 
heirs  and  personal  representatives,  as  fully  and  with 
like  effect  as  if  written  at  length  in  iuch  deed."  R.  S. 
1877,  Ch.  30. 

"Sec.  10.  Quit  claim  deeds  may  be,  in 
substance,  in  the  following  form  : 

The  grantor  (^here  insert  gran^or's  name  or  names 
and  place  of  residence),  for  th«  consideration  of 
(here  insert  consideration),  convey  and  quit  claim 
to  (here  insert  grantee's  name  or  names)  all  interest 
in  the  following  described  real  estate  (here  in- 
sert description),  situated  in  the  County  of , 

in  the  State  of  Illinois.*  A.  B.  [L.  S.J 

Dated  his  —  day  of , — .  D. ." 

"Every  deed  in  substance  in  the  form  prescribed  in 
this  Section,  when  otherwise  duly  executed,  shall  be 
deemed  and  held  a  good  and  sufficient  conveyance, 
release  and  quit  claim  to  the  grantee,  his  heirs  and 
assigns,  in  fee  of  all  the  then  existing  legal  or  equita- 
ble rights  of  the  grantor,  in  the  premises  therein  de- 
scribed, but  shall  not  extend  to  after  acquired  title  un- 
less words  are  added  expressing  such  intention." 
R.  S.  1877,  Ch.  30, 

*  "Sec.  II.  .  .  .  When  the  grantor  or  grantors 
in  any  such  deed  or  mortgage  for  the  conveyance  of 
any  real  estate  desires  to  release  or  waive  his,  her  or 
their  homestead  rights  thereon,  they  or  either  of  them 
may  release  or  waive  the  same  by  inserting  in  the 
form  of  deed  or  mortgage  (as  the  case  may  be)  pro- 
vided in  Sections  nine,  ten  and  eleven,  after  the  words 
"State  of  Illinois,  in  substance  the  following  words"  : 
"hereby  releasing  and  waiving  all  rights  under 
and  by  virtue  of  the  homestead  exemption  laws 
of  the  State."     R.  S.  1877,  Ch.  30. 

i:ni>iaika. 

Any  conveyance  of  lands  worded  in  substance  as  fol- 
lows :  "A.  B.  conveys  and  warrants  to  C.  D.  {here  de- 
scribe the  premises),  for  the  sum  of  (here  insert  the 
consideration),  the  said  conveyance  being  dated  and 
duly  signed,  sealed  and  acknowledged  by  the  grantor," 
shall  be  deemed  and  held  to  be  a  conveyance  in  fee  sim- 
ple to  the  grantee,  his  heirs  and  assigns,  with  covenant 
from  the  grantor  for  himself  and  his  heirs  and  personal 
representatives,  that  he  is  lawfully  seized  of  the  prem- 
ises, has  goud  right  to  convey  the  same,  and  guarantees 
«he  quiet  possession  thereof;  that  the  same  are  free  from 
all  incumbrances,  and  that  he  will  warrant  and  defend 
the  title  to  the  same  against  all  lawful  claims. s 

Acknowledgment.     See  that  title. 

Corporations  convey  as  natural  persons  ;  they  must 
Use  their  private  seal. 

Dower  is  abolished. 


Heirs,  etc.  It  shall  not  be  necessary  to  use  tlie 
words  "  heirs  and  assigns  of  the  grantee  '  to  create  in 
the  grantee  an  estate  of  inheritance.  And  if  it  be  the 
intention  of  the  grantor  to  convey  a  less  estate,  it  shall 
be  so  exprcssetl  in  the  deed.'' 

Married  women.  Separate  deed  of  the  husband 
conveys  no  interest  in  the  lands  of  the  wife.  The  joint 
deed  of  husbaiul  ,-ind  wife  is  necessary  to  pass  th'^  lands 
of  the  wife.  Wife  bound  by  her  covenants  as  if  sole. 
The  wife  cannot  convey  her  separate  real  estate  un- 
less the  husband  joins  in  the  conveyance. 

Recording  mu'^t  be  in  the  recorder's  office  of  the 
county  where  the  land  is  situated  witliin  forty-five  day* 
after  the  execution  of  the  cunveyance,  or  such  convey- 
ance will  not  be  valid  againstany  others  than  the  grantor, 
his  heirs,  and  those  having  notice  thereof. 

Seals  are  not  required.'     See  Cokporations,  above. 

Witnesses  are  not  required. 
I'onveyaiK'e— Cieiieral   Warranty  Deed. 
Short  Form. 

This  conveyance,  made  this day  of ,  A. 

D. ,  witnesseth  : 

That  A.  B.  and   W.  B.  his  wife,  of county, 

in  the  State  of ,  conveys  and  warrants  to  C-  D., 

of county,  in  the  State  of ,  for  the  sum  o\ 

,  all  the  following  described  real  estate,  situ- 
ated in  the  county  of ,  and  State  of ,  t»» 

wit :  (descri!>iii^  it  by  metes  and  bounds). 

Witness  the  grantors'  hands,  the  day  and  year 
first  above  written. 

A.  B.     r5<'<i/.l 
W.  B.  \Seal.\ 
For  form  of  Acknowledgment,  see  that  title. 

Couveyaiice— General  Warranty  Deed. 

Lo7tg  Form. 

This  conveyance,  made  this day  of ,  A. 

D. ,by  A.  B.  and  W.  B.  his  wife,  of counter, 

in  the  State  of ,  of  the  first  part,  to  C.  D.,  of 

county ,  of  the  State  of ,  of  the  second  part, 

vi^itnesseth : 

That  said  parties  of  the  first  part,  in  considera- 
tion of  the  sum  of dollars,  the  receipt  of  which 

is  hereby  acknowledged,  do  by  these  presents 
grant,  bargain,  sell,  and  convey  unto  said  party 
cf  the  second  part,  his  heirs  and  assigns,  all  the 
following  described  real  estate,  situated  in  thti 

county  of ,  and  State  of ,  to  wit :  (describing 

it  by  measure  and  boundaries). 

To  have  and  to  hold  the  same,  with  the  appur- 
tenances and  every  part  thereof,  forever. 

And  said  (here  insert  the  name  0/  the  party  or  par- 
ties warranting,  it  being  desirable  in  some  cases  that 
the  ivarranty  shall  be  made  by  only  one  0/  the  parties 
conveying),  do  (or  does)  hereby  covenant,  promise, 
and  agree,  to  and  with  said  party  of  the  second 
part,  that  he  is  (or  they  are)  lawfully  seized  in  his 
lyr  their)  own  right,  of  an  absolute  and  indefeasi- 
ble estate  of  and  in  all  and  singular  the  above 
granted  and  described  premises,  with  the  appur- 
tenances; that  he  has  good  right  to  convey  the 
same;  that  he  guarantees  the  quiet  possession 
thereof;  that  the  same  are  free,  clear,  and  dis- 
charged of  and  from  all  incumbrances  of  what- 
ever nature  or  kind  soever,  and  that  he  (or  they) 
will  warrant  and  forever  defend  the  title  to  the 
same  unto  the  said  party  of  the  second  part,  his 
heirs  and  assigns,  against  all  and  every  person  or 
persons  whomsoever,  lawfully  claiming  or  to 
claim  the  same. 

In  witness  whereof,  the  said  parties  of  the  first 
part  have  hereunto  set  their  hands  and  seals,  the 
day  and  year  first  above  written. 

A.  B.     \Seal.\ 
W.  B.  \Seal.\ 
For  form  of  Acknowledgment,  see  that  title. 

Conveyance— General  Warranty  Deedl 

By  Attorney — Short  Form. 

This  conveyance,  made  this day  of ,  A. 

D. ,  witnesseth  : 

That  A.  B.,  of county,  in  the  State  of—, 

by  A.  A.,  his  attorney  in  fact,  convey  said  war- 
rants to  C.  D.,  of county,  in  the  State  of , 

for  the  sum  of dollars,  all  the  following  «*e- 

scribed  real  estate,  situated  in  the  county  of , 

d-4th  Sess.  67.  e-Id.  f-i  Gross,  90.  ff-R.  S.  l8«^ 
I  2927.    k-Id.  g  9929.    i-Id.  §  3919. 


CXDNVEYANCES. 


277 


4nd  State  of ,  to  wit :  (dtseribing  it  by  metes 

%nd  bounds). 

Witness  the  grantor's  hand,  the  day  and  year 
&rat  above  written. 

(Signed)  A.B.,by/l.A. 

For  form  of  Acknowledgment,  see  that  title. 
lonveyBnce— Oeneral  Warranty  Deed. 
By  Attorney — Long  Form. 

This  conveyance,  made  this day  of ,  A. 

D. ,  by  A.  B.,of county,  in  the  State  of 

,  of  the   first  part,  by  A.  A.,  his  attorney  in 

fact,  to  C.  D.,  of county,  in  the  State  of , 

of  the  second  part,  witnesseth  : 

That  said  party  of  the  first  part,  in  considera- 
tion of  the  sum  of dollars,  the  receipt  of  which 

is  hereby  acknowledged,  does  by  these  presents 
grant,  bargain,  sell,  and  convey  unto  said  party 
of  the  second  part,  his  heirs  and  assigns,  all  the 
following  described  real  estate,  situated   in  the 

county  of ,  and  State  of ,  to  wit:  {describe 

it). 

To  have  and  to  hold  the  same,  together  with 
all  and  singular  the  tenements,  hereditaments, 
and  appurtenances  thereunto  belonging,  or  in 
anywise  appertaining,  unto  the  said  party  of  the 
second  part,  his  heirs  and  assigns  forever.  And 
said  [here  insert  the  name  0/  the  party  ivarranting), 
only  for  himself,  his  heirs,  executors,  or  adminis- 
trators, does  hereby  covenant,  promise,  and  agree, 
to  and  with  said  party  of  the  second  part,  that 
at  the  delivery  of  these  presents  he  was  law- 
fully seized,  in  his  own  right,  of  an  absolute  and 
k.defeasible  estate  of  inheritance,  in  fee  simple, 
o!'  and  in  all  and  singular  the  above  granted  and 
d:scribed  premises,  with  the  appurtenances; 
that  he  has  good  right  to  convey  the  same;  that 
hi  guarantees  the  quiet  possession  thereof;  that 
the  same  are  free,  clear,  discharged,  and  unin- 
eimbered,  of  and  from  all  (former  and  other  grants, 
ti'.les,  charges,  estates,  itidgments,  taxes,  assessments, 
aid)  incumbrances  of  whatever  nature  or  kind 
soever  ;  and  that  he  will  warrant  and  forever  de- 
ft lid  the  title  to  the  same  unto  said  party  of  the 
Si  icond  part,  his  heirs  and  assigns,  against  said 
p  irty  of  the  first  part,  his  heirs,  and  all  and  every 
p  ;rson  or  persons  whomsoever,  lawfully  claim- 
u  g  or  to  claim  the  same. 

In  witness  whereof,  the  said  party  has  hereunto 
II !  t  his  hand  and  seal,  the  day  and  year  first  above 
» p  ritten.  A.  B.     {Seal.  J 

By  A.  A.,  his  attorney  in  fact. 
For  form  of  Acknowledgment,  see  that  title. 
CoMveyance— Speeaal  Warranty  Deed. 

Short   Form. 

This  conveyance,  made  this day  of ,  A. 

D. ,  witnesseth  : 

That  A.  B.  and  his  wife  W.  B.,of county, 

ir  the  Stateof , convey  to  C.  D.,of county, 

in  the  State  of ,  for  the  sum  of dollars,  all 

their  estate,  right,  title,  and  interest  as  derived 
tiom  their  grantors  therein  (or  othertvise,  as  the 
'use  may  be),  in  and  to  the  following  described  real 

estate,  situated  in  the  county  of ,  and  State 

of ,  to  wit :  (describe  it  by  metes  and  bounds,  or 

copy  description  from  last  grantor' s  deed\. 

Witness  the  grantors'  hands  and  seals,  the  day 
and  year  first  above  written. 

A.  B.     \SeaL^     • 
W.  B.   [6>a/.] 
For  form  of  Acknowledgmbnt,  see  that  title. 

Conveyance— Special  Warranty  Deed. 

Long  Form. 

This  conveyance,  made  this day  of ,  A. 

D. ,  by  A.  B.  (and  W.  B.  his  wife,  of county, 

in  the  State  of ,  of  the  first   part,  to  C.  D.,  of 

•— —  county,   in  the  State  of ,  of  the  second 

part,  witnesseth  : 

That  said  parties  of  the  first  part,  in  considera- 
tion  of   the   sum   of dollars,  the  receipt  of 

which  is  hereby  acknowledged,  do  by  these  pres- 
ents grant,  bargain,  sell,  and  convey  unto  said 
party  of  the  second  part,  his  heirs  and  assigns, 
all  the  following  described  real  estate,  situated  in 

the  county  of ,  and  State  of ,  to  wit :  (de- 

scri/'ing  it  by  metes  and  bounds). 

To  have  and  to  hold  the  same,  together  with 
ill  and  singular  the  tenements,  hereditaments, 


and  appurtenances  thereunto  belonging,  or  in  any- 
wise appertaining,  unto  said  party  of  the  second 
part,  tiis  heirs  and  assigns,  forever ;  and  said 
party  of  the  first  part,  for  themselves,  their  heirs, 
executors,  or  administrators,  do  hereby  covenant, 
promise,  and  agree,  to  and  with  said  party  of  the 
second  part,  his  heirs  and  assigns,  that  they  will 
warrant  and  forever  defend  the  vk^ithin  granted 
and  described  premises,  with  the  appurtenances, 
against  the  claims  of  all  persons  claiming  or  to 
claim  by,  through,  or  under  themselves(and  them- 
selves   only. 

In  witness  whereof,  the  said  parties  of  the  first 
part  have  hereunto  set  their  hands  and  seals,  the 
day  and  year  first  above  written. 

A.  B.     \Seal.] 
W.  B.  [Seal.] 
For  form  of  Acknowledgment,  see  that  title. 
Conveyance — Qntt-CIaim  Deed. 
Short  Form. 
Any  conveyance  of  lands  worded  in  substance  as  fol- 
lows :  "A.  15.  quit-claims  to  C.  D.  (here  describe  the 
premises),  for  the  sum  oi  (here  insert  the  considera- 
tion)," the  said  conveyance  being  duly  signed,  sealed, 
and  acknowledged  by  the  grantor,  shall  be  deemed  a  good 
and  sufficient  conveyance  in  quit-claim  to  the  grantee, 
his  heirs  and  assigns.* 

This  conveyance,  made  this day  of ,  A. 

D.  ,  by   A.    B.   and   W.    B.    his  wife,  of 

county,  in  the  State  of ,  quit-claims  to  C.  D., 

of county,  in  the  State  of ,for  the  sum  of 

dollars,  all  the  following  described  real  es- 
tate, situated  in  the  county  of ,  and  State  of 

,  to  wit  :  (describing  it  by  metes  and  bounds K 

Witness  the  grantors'  hands  and  seals,  the  day 
and  year  first  above  written. 

A.  B.     \Seal.  ] 
W.  B.  [Seal.] 
For  form  of  Acknowledgment,  see  that  title. 

Conveyance — Qnit-Clalm  Deed. 

Long  Form,  7uith  Warranty. 

This  conveyance,  made  this day  of ,  A. 

D.  — — ■,  by  A.  B.,  of county,  in  the  State  of 

,  of  the  first  part,  to  C.  D.,  of county,  in 

the  State  of ,  of  the  second  part,  witnesseth  : 

That  said  party  of  the  first  part,  in  considera- 
tion of  the  sum  of dollars,  the  receipt  of 

which  is  hereby  acknov^rledged,  does  by  these 
presents  remise,  release,  and  forever  quit-claim 
unto  said  party  of  the  second  part,  his  heirs  and 
assigns,  all  the  following  described  real  estate,  sit- 
uated in  the  county  of and  State  of ,  to  wit : 

To  have  and  to  hold  the  same,  together  with  all 
and  singular  the  tenements,  hereditaments,  and 
appurtenances  thereunto  belonging,  or  in  any- 
wise appertaining,  unto  the  said  party  of  the  sec- 
ond part,  his  heirs  and  assigns  forever.  And  said 
A.  B.,  for  himself,  his  heirs,  executors,  or  admin- 
istrators, does  hereby  covenant,  promise,  and 
agree,  to  and  with  said  party  of  the  second  part, 
his  heirs  and  assigns,  that  he  has  not  made,  done, 
committed,  executed,  or  suffered  any  act  or  acts, 
thing  or  things,  whatsoever,  whereby,  or  by 
means  whereof  the  within  granted  and  described 
premises,  or  any  part  thereof,  now  are  incum- 
bered in  any  manner  whatsoever. 

In  witness  whereof,  the  said  party  of  the  first 
part  has  hereunto  set  his  hand  the  day  and  year 
first  above  written. 

A.  B.     \Seal.] 
For  form  of  Acknowledgment,  see  that  tide. 

IOWA. 

Conveyances  sfTecting  real  estate  or  any  interest 
therein  must  be  in  writing,  etc.  See  forms  referred  to 
below. 

Acknowledgment.     See  that  title. 

Married  women.  The  wife  joining  with  her  hui- 
band  in  the  convey.mee  of  real  property  is  sufficient  to 
p.Tss  her  interest  in  the  same,  whether  her  separate  prop- 
erty or  nu. 

Recording  in  the  office  of  the  recorder  of  deeds  of  the 
county  wh'  re  the  land  is  situated,  after  acknowledgment 
or  proof,  is  absolutely  necessary  to  their  validity  as 
against  subse<|uent  purchasers,  or  mortgagees  in  g«od 
faith,  for  value,  and  without  notice. 

»-R.  S.  1881,  g  2928. 


278 


CONVEYANCES. 


Seals  are  not  required. 

Witnesses  are  unnecessary. 

See  Indiana  Forms,  ante ;  General  Forms,  post. 

Forms  printed  and  sold  by  Geo.  W.  Crane,  Topeka, 
Kansas. 

Conveyances  of  real  estate  or  any  interest  therein 
must  be  in  writing,  and  are  in  forms  as  given  below. 

Corporations  execute  conveyances  under  their  cor- 
porate seal. 

Married  women  should  join  their  husbands  in  the 
Conveyance  of  real  estate  ;  but  this  is  not  necessary  if  <it 
the  time  of  executing  the  conveyance  she  has  never  been 
president  of  the  State.  Separate  examination  is  not 
S»quired  nor  customary. 

■  Recording  in  the  office  of  the  register  of  deeds  of  the 
•ounty  in  which  the  lands  are  situate  is  necessary  to  im- 
.part  notice  to  creditors,  subsequent  purchasers,  and 
mortgagees  in  good  faith,  for  value,  and  without  notice. 

Seals  are  abolished. 

Witnesses  are  unnecessary. 

Conveyance — General   Warranty   Deed. 

This  conveyance,  made  this day  of ,  A. 

D. ,  between  A.  B.  and  W.  B.  his  wife,  of 

county,  in  the  State  of ,  of  the  first  part,  and 

C.  D.,  of county,  in  the  State  of ,  of  the 

second  part,  witnesseth  : 

That  said  parties  of  the  first  part,  in  considera- 
tion of  the  sum  of dollars,  the   receipt  of 

^hich  is  hereby  acknowledged,  do  by  these  pres- 
ents grant,  bargain,  sell,  and  convey  unto  said 
party  of  the  second  part,  his  heirs  and  assigns, 
all  the  following  described  real  estate,  situated  in 

the  county  of ,  and  State  of ,  to  wit:  {de- 

icribing  it  by  metes  and  bounds). 

To  have  and  to  hold  the  same,  together  with 
all  and  singular  the  tenements,  hereditaments, 
and  appurtenances  thereunto  iDelonging,  or  in 
anywise  appertaining,  forever. 

And  said  (here  insert  the  name  of  the  party  or  par- 
ties ■juar ranting),  for  himself  (i)r  themselves),  his  (or 
their)  heirs,  executors,  or  administrators,  does 
hereby  covenant,  promise,  and  agree,  to  and  with 
said  party  of  the  second  part,  that  at  the  deliv- 
ery of  these  presents  that  he  was  lawfully  seized 
in  his  own  right  of  an  absolute  and  indefeas- 
ible estate  of  inheritance,  in  fee  simple,  of  and 
in  all  and  singular  the  above  granted  and  de- 
scribed premises,  with  the  appurtenances ;  that 
the  same  are  free  (clear,  disch;irged,  and  unincum- 
bered, of  and)  from  all  (former  and  other  grants,  titles, 
charges,  estates,  judgments,  taxes,  assessments,  and) 
incumbrances  of  what  nature  or  kind  soever ;  and 
that  he  will  warrant  and  forever  defend  the  same 
unto  said  pai^y  of  the  second  part,  his  heirs  and 
assigns,  against  said  parties  of  the  first  part, 
their  heirs,  and  all  and  every  person  or  persons 
whomsoever,  lawfully  claiming  or  to  claim  the 
same. 

In  witness  whereof,  the  said  parties  of  the  first 
part  have  hereunto  set  their  hands,  the  day  and 
year  first  above  written.  A.  B. 

W.  B. 
For  form  of  Acknowledgment,  see  that  title. 

Conveyance — Special  Warranty  Deed. 

This  conveyance,  made  this day  of ,  A. 

D. ,  by  A.  B.  (and  W.  B.  his  wife^,  of county, 

in  the  State  of—,  of  the  first  part,  to  C.  D.,  of 

county,  in  the  State  of ,  of  the  second 

part,  witnesseth  : 

That  said  parties  of  the  first  part,  in  considera- 
tion of  the  sum  of dollars,  the  receipt  of  which 

is  hereby  acknowledged,  do  by  these  presents 
grant,  bargain,  sell,  and  convey  unto  said  party 
•  f  the  second  part,  his  heirs  and  assigns,  all  his 
right,  title  and  interest  only  in  the  following  de- 
scribed real  estate,  situated  in  the  county  of , 

and  State  of ,  to  wit :  (describing  it  by  metes  and 

bounds). 

To  have  and  to  hold  the  same,  together  with 
all  and  singular  the  tenements,  hereditaments, 
and  appurtenances  thereunto  belonging,  or  in 
anywise  appertaining,  unto  the  said  party  of  the 
second  part,  his  heirs  and  assigns,  forever  ;  and 
said  parties  of  the  first  part,  for  themselves,  their 
Wr»,  «xc«ut9rs,  or  »dmini?i;r«<9rs,  dg  hereby 


covenant,  promise,  and  agree,  to  and  witTi  said 
party  of  the  second  part,  his  heirs  and  assigns, 
that  they  will  warrant  and  forever  defend  said  in- 
terest, the  within  granted  and  described  prem- 
ises, with  the  appurtenances,  against  the  claims 
of  all  persons  claiming  or  to  claim  by,  through, 
or  under  themselves  (and  themselves)  only. 

In  witness  whereof,  the  said  parties  of  the  first 
part  have  hereunto  set  their  hands,  the  day  and 
year  first  above  written.  A.  B. 

W.  B. 
For  form  of  Acknowledgment,  see  that  title. 

Conveyance — General  Warranty  Deed. 

By  Attorney. 

This  conveyance,.made  this day  of ,  A. 

D. ,  by  A.  B.,  of  the county,  in  the  State 

of ,  of  the  first  part,  by  A.  A.,  his  attorney  in 

fact,  to  C.  D.,  of county,  in  the  State  of , 

of  the  second  part,  witnesseth  : 

That  said  party  of  the  first  part,  in  considera- 
tion of  the  sum   of dollars,  the  receipt  of 

which  is  hereby  acknowledged,  does  by  these 
presents  grant,  bargain,  sell,  and  convey  unto 
said  party  of  the  second  part,  his  heirs  and  as- 
signs, all  the  following  described  real  estate,  sit- 
uated in  the  county  of ,  and  State  of ,  to 

v*/it :  (describe  it). 

To  have  and  to  hold  the  same,  together  with  all 
and  singular  the  tenements,  hereditaments,  and 
appurtenances  thereunto  belonging,  or  in  any- 
wise appertaining,  unto  the  said  party  of  the  sec- 
ond part,  his  heirs  and  assigns,  forever.  And 
said  (party  -warranting),  for  himself,  his  heirs,  ex- 
ecutors, or  administrators,  does  hereby  covenant, 
promise,  and  agree,  to  and  with  said  party  of  the 
second  part,  that  at  the  delivery  of  these  presents 
that  he  wa.'^  lawfully  seized  in  his  own  right  of  an 
absolute  and  indefeasible  estate  of  inheritance,  in 
fee  simple,  of  and  in  all  and  singular  the  above 
granted  and  described  premises,  with  the  appur- 
tenances; that  the  same  are  free  (clear,  discharged, 
and  unincumbered,  of  and)  from  all  (former  and  other 
grants,  titles,  charges,  estates,  judgments,  taxes,  assess- 
ments, and)  incvimbrances,  of  whatever  nature  or 
kind  soever ;  and  that  he  will  warrant  and  for- 
ever defend  the  same  unto  said  party  of  the  sec- 
ond part,  his  heirs  and  assigns,  against  said  party 
of  the  first  part,  his  heirs,  and  all  and  every  per- 
son or  persons  whomsoever,  lawfully  claiming  or 
to  claim  the  same. 

In  witness  whereof,  the  said  party  has  hereunto 
set  his  hand,  the  day  and  year  first  above  written. 

A.  B., 
By  A.  A.,  his  attorney  in  /act. 
For  form  of  Acknowledgment,  see  that  title. 

Conveyance — Quit-Claim  Deed  with 
Warranty. 

This  conveyance,  mad«  this day  of ,  A. 

D. ,  by  A.  B.,  of county,  in  the  State  of 

,  of  the  first  part,  to  C.  D.,  of county,  in 

the  State  of ,  of  the  second  part,  witnesseth: 

That  said  party  of  the  first  part,  in  considera- 
tion of  the  sum  of  dollars,  the  receipt  of 

which  is  hereby  acknowledged,  does  by  these 
presents  remise,  release,  and  forever  quit-claim 
unto  said  party  of  the  second  part,  his  heirs  and 
assigns,  all  the  following  described  real  estate, 

situated  in  the  county  of ,  and  State  of , 

to  wit: 

To  have  and  to  hold  the  same,  together  with  all 
and  singular  the  tenements,  hereditaments,  and 
appurtenances  thereunto  belonging,  or  in  any- 
wise appertaining,  unto  the  said  party  of  the  sec- 
ond part,  his  heirs  and  assigns,  forever.  And 
said  A.  B.,  for  himself,  his  heirs,  executors,  or 
administrators,  does  hereby  covenant,  promise* 
and  agree,  to  and  with  said  party  of  the  second 
part,  his  heirs  and  assigns,  that  he  has  not  made^ 
done,  committed,  executed,  or  suffered  any  act  or 
acts,  thing  or  things,  whatsoever,  whereby  or  by 
means  whereof  the  within  granted  and  described 
premises,  or  any  part  thereof,  now  are  incum- 
bered in  any  manner  whatsoever. 

In  witness  whereof,  the  said  pdrty  of  the  first 
part  has  hereunto  set  his  hand,  the  day  and  yeaf 
nrs*  above  written.  A.  B, 

For  form  of  Ackwwi,spgm8nt,  see  thjit  tiric. 


CONVEYANCES. 


279 


ronveyance— Trnst  Deed  with  War- 
ranty. 

This  conveyance,  made  this day  of ,  A. 

D. ,  between  A.  B. ,  ot county,  in  the  State 

of ,  of  the  first  part,  and  E.  F. ,  of county, 

in  the  State  of ,  of  the  second  part,  and  C.  D., 

of county,  in  the  State  of ,  of  the  third 

part,  witnesseth  : 

That  said  party  of  the  first  part,  in  considera- 
tion of  the  sum  ot dollars,  the  receipt  of  which 

is  hereby  acknowledged,  does  by  these  presents 
grant,  bargain,  sell,  and  convey  unto  said  party 
of  the  second  part,  his  successors  and  assigns,  all 
the   followmg   described  real  estate,  situated  in 

the  county  of ,  and  State  of ,  to  wit :  {dc- 

Sl  ribe  it ). 

To  have  and  to  hold  the  same,  together  with  all 
and  singular  the  tenements,  hereditaments,  and 
sippurtenances  thereunto  belonging,  or  in  any- 
v>/ise  appertaining,  forever,  in  fee,  in  trust,  never- 
thelesis,  and  to  and  for  the  uses,  interests,  and 
purposes  hereinafter  limited,  described,  and  de- 
clared— that  is  to  say,  in  trust,  to  {state  the  fur- 
poses,  etc. ) 

And  said  party  of  the  firsx  part  does  hereby 
covenant,  promise,  and  agree  that  the  within  de- 
scribed premises  are  free,  clear,  and  discharged 
of  and  from  all  incumbrances,  of  whatever  nature 
or  kind  soever  ;  and  that  he  will  warrant  and  for- 
ever defend  the  same  unto  said  parties  of  the  sec- 
ond and  third  parts,  their  successors  and  assigns, 
against  said  party  of  the  first  part,  his  heirs,  and 
all  and  every  person  or  persons  whomsoever, 
lawfully  claiming  or  to  claim  the  same. 

And  the  said  party  of  the  second  part  covenant 
faithfully  to  perform  and  fulfil  the  trusts  herein 
created. 

In  witness  whereof,  the  said  parties  have  here- 
unto set  their  hands,  the  day  and  year  first  above 
written.  A.  B. 

E.  F. 
C.  D. 
For  form  of  Acknowledgment,  see  that  title. 

Conveyauce — Executor's  or  Adniluis- 
trator's  need. 

This  conveyance,  made  this day  of ,  A. 

D. ,  between  E.  A.  (executor  of  the  last  will  and 

testament,  or  administrator  of  the  estate  and  effects),  of 

A.  B.,  of county,  and  State  of .deceased, 

of  the  first  part,  and  C.  D.,  of county,  in  the 

State  of ,  of  the  second  part,  witnesseth  : 

That  said  party  of  the  first  part,  by  virtue  of 
an  order  of  sale  issued  out  of  the  probate  court 

of county,  in  the  State  of  Kansas,  and  dated 

the day  of ,  A.  D. ,  the  real  property 

hereinafter  described  has  been  sold,  in  conformity 
with  said  order,  and  sale  thereof  confirmed,  as 
required  by  law,  and  in  conformity  with  the  pro- 
visions of  the  act  of  the  legislature  of  the  State 
of  Kansas,  entitled  "  An  act  respecting  executors 
and  administrators,  and  the  settlement  of  the  Es- 
tates of  deceased  persons,"  approved  February 

38,  i863,  and  in  consideration  of  the  sum  of 

dollars  (the  same  being  more  than  three-fourths  of  the 
appraised  value  of  said  real  property),  the  receipt  of 
which  is  hereby  acknowledged,  does,  by  these 
presents,  grant,  bargain,  sell,  and  convey  unto  the 
said  party  of  the  second  part,  his  heirs  and  as- 
signs, forever,  all  the  right,  title,  and  interest  of 
said  deceased,  discharged  from  liability  for  his 
debts,  in  and  to  all  the  following  described  real 

estate,  situated  in  the  county  of ,  and  State 

of  Kansas,  to  wit :  (describing  it). 

To  have  and  to  hold  the  above  granted  prem- 
ises, together  with  the  appurtenances  and  every 
part  thereof,  unto  the  said  party  of  the  second 
part,  his  heirs  and  assigns,  forever.  And  the  said 
party  of  the  first  part  does  hereby  covenant  with 
the  said  party  of  the  second  part,  his  heirs  and 
assigns,  that  he  has,  in  all  things,  observed  the 
requirements  of  law,  and  of  all  orders  in  and 
concerning  said  sale. 

In  witness  whereof,  the  said  party  of  the  first 
part  has  hereunto  set  his  hand  and  seal,  the  day 
and  year  first  above  written. 

E.  A.,         \Seai:\ 
{Executor')  or  Administrator . 

For  fona  of  AcKjiowtspcMSNT,  se?  that  title- 


The  above  deed  approved  by  me  this day 

of ,  A.  D. .  P.  J., 

{Seal.\  Probate  jfMdgt. 

Conveyance— Gnardian'8  Weed. 

This  conveyance,  made  this day  of ,  A. 

D. ,  between  G.  N.,  guardian  of  I.  I.,  minor 

heir  of  A.  B. ,  of county,  and  State  of  Kansas, 

deceased,   of   the   first   part,  and   C.  D.,  of 

county,  in  the  State  of ,  of  the  second  part, 

v/itnesseth  : 

That  said  party  of  the  first  part,  by  virtue  of  an 
order  of  sale  issued  out  of  the  probate  court  of 

county,  in  the  State  of  Kansas,  and  dated  the 

day  of ,  A.  D. ,  the  real  property  here- 
inafter described,  has  been  sold,  in  conformity 
with  said  order,  and  sale  thereof  confirmed,  as 
required  by  law.  and  in  conformity  with  the  pro- 
visions of  the  acts  of  the  legislature  of  the  State 
of  Kansas,  entitled  "An  act  concerning  guardians 
and  wards,"  approved  February  39,  1868,  and 
"An  act  respecting  executors  and  administra- 
tors, and  the  settlement  of  the  estates  of  deceased 
persons,"  approved  February  28, 1868,  and  in  con- 
sideration of  the  sum  of dollars  (the  same  be- 
ing more  than  threc-fuiirths  of  the  appraised  vahie  of 
said  real  property),  the  receipt  of  which  is  hereby 
acknowledged,  does,  by  these  presents,  grant, 
bargain,  sell,  and  convey  unto  the  said  party  of  the 
second  part,  his  heirs  and  assigns,  forever,  all  the 
right,  title,  and  interest  of  said  minor  in  and  to 
all  the  folloviring  described  real  estate,  situated 

in  the  countyof ,and  State  of  Kansas, to  wit: 

{describing  it  by  metes  and  bounds). 

To  have  and  to  hold  the  above  granted  prem- 
ises, together  with  the  appurtenances  and  every 
part  thereof,  unto  the  said  party  of  the  second 
part,  his  heirs  and  assigns,  forever. 

And  the  said  party  of  the  first  part  does  hereby 
covenant  with  the  said  party  of  the  second  part, 
his  heirs  and  assigns,  that  he  has,  in  all  things, 
observed  the  requirements  of  law,  and  of  all 
orders,  in  and  concerning  said  sale. 

In  witness  whereof,  the  said  party  of  the  first 
part  has  hereunto  set  his  hand  and  seal,  the  day 
and  year  first  above  written. 

G.  N.,        [Seal-i 
Guardian. 
For  form  of  Acknowledgment,  see  that  title. 

The  above  deed  approved  by  me  this div 

of ,  A.  D. .  P.  J., 

\Seal.\  Probate  Judge 

Conveyance — Sheriff's  Deed. 

After  Sale  on  Execution. 

This  conveyance,  made  this day  of ,  A. 

D. ,  between  S.  F.,  sheriff  of county,  and 

State  of  Kansas,  of  the  first  part,  and  E.  F.,  of 

county,  and  State  of ,  of  the  second  part, 

witnesseth : 

That,  whereas,   on   the  day  of ,  A.  D. 

,  in   an   action   then   pending   in  the  district 

court  of— —  county,  in  the  judicial  district 

of  the  State  of  Kansas,  judgment  was  rendered 
in  favor  of  A.  B.,  and  against  C.  D.,for  the  sum 

of dollars,  and  the  further  sum  of dollars, 

as  costs  of  suit.     And  whereas,  S.  F.,  sheriff  of 

county,  and  State  of  Kansas,  by  virtue  of  an 

execution  issued  out  of  the  district  court  of 

county,  in  the  judicial  district  of  the  State 

of  Kansas,  upon  said  judgment,  and  to  said  sher- 
iff directed  and  delivered,  commanding  him  that 
of  the  goods  and  chattels  of  said  judgment  debtor 
he  cause  to  be  made  the  aforesaid  judgment  and 
costs,  and  for  want  of  goods  and  chattels,  he 
cause  the  same  to  be  made  of  the  lands  and  tene- 
ments of  said  debtor — upon  which  execution  ^vas 
indorsed  the  amount  of  debt,  damages  and  costs, 
for  which  said  judgment  was  entered — did  levy 
said  execution  upon  the  real  estate  hereinafter 
described,  and  make  sale  thereof,  in  conformity 
with  the  provisions  of  an  act  of  the  legislature 
of  the  State  of  Kansas,  entitled  "An  act  to  es- 
tablish a  code  of  civil  procedure,"  approved 
February  25,  1868: 

Therefore,  the  said  party  of  the  first  part,  sheriff 
aforesaid,  by  virtue  of  said  execution,  and  in  con- 
sideration of  the  sum  of dollars  (the  same  be- 
ing more  thaij  t>vo-thirds  the  appraised  value  of  sajtf 


28o 


CONVEYANCES. 


teal  estate),  the  receipt  of  which  is  hereby  ac- 
kno^wledged,  does  hereby  grant,  bargain,  sell,  and 
convey  unto  the  said  party  of  the  second  part,  his 
heirs  and  assigns,  forever,  all  the  estate,  right, 
title,  and  interest  of  said  C.  D.,  judgment  debtor 
aforesaid,  whereof  he  was  seized  or  possessed  at 
and  after  the  time  when  said  real  estate  became 
liable  to  the  satisfaction  of  said  judgment,  in  and 
to  all  the  following  described  real  estate,  situated 

in  county,  in   the  State  of  Kansas,  to  wit: 

[,df scribing  it  by  metes  an<i bounds^. 

To  have  and  to  hold  the  same,  together  with 
all  and  singular  the  tenements,  hereditaments, 
and  appurtenances  thereunto  belonging,  forever; 
and  the  said  party  of  the  first  part  does  hereby 
covenant  with  the  said  party  of  the  second  part, 
his  heirs  and  assigi.s.  that  in  pursuance  of  the 
writ  of  execution  atbresaid,he  did  levy  the  same, 
have  appraisement  made,  make  return  of  the 
same,  give  public  notice  by  advertisement,  and 
make  sale,  and  in  all  things  observed  the  require- 
ments of  law,  and  of  all  orders  in  and  concerning 
said  sale. 

In  witness  whereof,  the  said  party  of  the  first 
part,  sheriff  aforesaid,  has  hereunto  set  his  hand, 
the  day  and  year  first  above  written. 

S.  F.,      \Seal.\ 
Sheriff. 

CJonveyance— SheriflT's  Dee<l. 

On  Order  of  Sale. 

This  conveyance,  made  this day  of ,  A. 

D. ,  between  S.  F.,  sheriff  of county,  and 

State  of  Kansas,  of  the  first  part,  and  E.  F.,  of 

county,  and  State  of ,  of  the  second  part, 

Witnesseth  : 

That  the  said  party  of  the  first  part,  sheriff 
aforesaid,  by  virtue  of  an  order  of  sale  issued  out 

jf  the  district  court  of  county,  in  the  

judicial  district  of   the   State   of  Kansas,   on  a 

judgment  to  enforce  a lien — rendered  by  the 

diiitnct  court  of county,  in  the  State  of  Kan- 
sas,on  the day  of ,  A.  D. ,  in  an  action 

then  and  there  pending,  in  favor  of  A.  B.,  judg- 
ment creditor,  and  against  C.  D.,  judgment 
debtor,  and  for  the  sale  of  the  lands  and  tene- 
ments hereinafter  described  and  granted,  and  to 
said  sheriff  directed  and  delivered  :  commanding 
him  that  of  said  lands  and  tenements  of  said  judj;- 
mint  debtor  he  cause  to  be  made  the  aforesaid 
judgment,  costs,  and  charges  hereinafter  men- 
tioned— upon  which  order  of  sale  was  indorsed 
the  amount  of  debt,  damages,  costs,  and  charges 
for  which  said  judgment  was  entered — by  him 
levied  upon  said  lands  and  tenements,  and  sale 
thereof  made,  in  conformity  with  the  provisions 
of  an  act  of  the  legislature  of  the  State  of  Kansas, 
entitled  *'  An  act  to  establish  a  code  of  civil 
procedure,"  approved  February  25,  i868,  and  an 
act  of  the  legislature  of  the  State  of  Kansas,  en- 
titled "An  act  to  amend  the  code  of  civil  pro- 
cedure," being  chapter  80  of  the  General  Statutes 
of  x868,  and  to  amend  "  Section  27  of  chapter  22 
of  the  General  Statutes  of  1868,"  approved  March 

%,  1870,  and  in   consideration  of  the  sum  of 

dollars,  the  amount  and  amounts  for  which  said 
judgment  was  rendered,  due   as  well    to    said 

filaintiff  as  other  parties  to  said  action  having 
iens  upon  the  said  lands  and  tenements,  by  mort- 
gage or  otherwise,  with  interest  thereon,  and 
costs  of  suit,  taxes,  insurance,  attorney's  fees, 
and  interest  thereon,  and  all  other  expenses  ac- 
crued and  to  accrue  in  said  action  (the  some  beini; 
more  than  two-thirds  the  apprai'-ed  value  of  said  real 
estate),  the  receipt  of  which  is  hereby  acknowl- 
edged, does  hereby  grant,  bargain,  sell,  and  con- 
vey unto  the  said  party  of  the  second  part,  his 
heirs  and  assigns,  forever,  all  the  estate,  right, 
title,  and  interest  of  said  C.  D.,  judgment  debtor 
aforesaid,  whereof  he  was  seized  or  possessed 
at  and  after  the  time  when  said  real  estate  be- 
came liable  to  the  satisfaction  of  said  judgment, 
in  and  to  all  the  following  described  real  estate, 

situated  in county,  in  the  State  of  Kansas,  to 

wit:  {describing'  it  by  metes  and  bounds). 

To  have  and  to  hold  the  same,  together,  etc. 
\fhe  balance  0/  this  deed  is  the  same  as  the  preceding 
tite,  in(iH4i"-S  ^^^  /»rm  qf  oiknowltdgmeni). 


CoiiTcyaiK^e— Tax  l>e«4. 

Lands  or  I^ts. 
Know  all  men  by  these  presents : 
That,   whereas,  the   following  described    real 
property,  viz.  ^describing  the  entire  parcel  subject  to 

taxation  1,  situated  in  the  county  of ,  and  State 

of  Kansas,  was  subject  to  taxation  for  the  year 

A.  D. ,  and  whereas,  the  taxes  assessed  upon 

said  real  property  for  the  year  aforesaid  remained 
due  and  unpaid  at  the  date  of  the  sale  hereinafter 
mentioned  ;  and  whereas,  the  treasurer  of  said 

county  did,  on  the day  of ,  A.  D. ,  by 

virtue  of  authority  in  him  vested  by  law,  at  (tin 
adjourned  sale  of),  the  sale  begun  and  publicly 
held,  on  the  first  Tuesday  of .  A.  D. ,  ex- 
pose to  public  sale,  at  the  counts-seat  of  said 
county,  in  substantial  conformity  -with  all  the 
requisitions  of  the  statute  in  such  case  made  and 
provided,  the  real  property  above  described,  for 
the  payment  of  taxes,  interest,  and  cost  then  due 
and  remaining  unpaid  upon  said  property;  and 
whereas,   at  the   place   aforesaid,  C.  D.,  of  the 

county  of ,  and  State  of ,  having  offered  to 

pay  the  sum  of dollars  and cents,  being 

the  whole  amount  of  taxes,  interests,  and  costs, 
then  due  and  remaining  unpaid  on  said  property, 
for  (.describing  t/tat  portion  0/ the  entire  parcel  sold "i, 
which  was  the  least  quantity  bid  for;  and  pay- 
ment of  said  sum  having  been  by  him  made  to 
the  said  treasurer,  the  said  property  was  stricken 
off  to  him  at  that  price. 

( H'hen    there    has    been    assignments,    add :    And 

whereas,  the  said  C.  D.  did,  on  the day  of ,  A.- 

D. ,  duly  assign   the  certificate  of  the  sale  of  the 

property  as  aforesaid,  and  all  his  right,  title,  and  inter- 
est tn  said  property,  to  E.  F.,  of  the  county  of ,  and 

State  of .) 

(And  whereas,  the  said  F,.  F.  did,  on  the day  of 

,  A.  D.  ,  duly  assign  the  certificate  of  the  sale 

of  the  property  as  aforesaid,  and  all  his  right,  title,  and 

interest  to  said  property,  to  G.  H.,  of  the  county  of , 

and  State  of .) 

And  whereas,  the  subsequent  taxes  of  the  year 

,  amounting  to  the  sum  of dollars,  have 

been  paid  by  the  purchaser,  as  provided  by  law  ; 

and  whereas, years   have   elapsed   since   the 

date  of  said  sale,  and  the  said  property  has  not 
been  redeemed  tlierefrom,  as  provided  by  law  : 

Now,  therefore,  I,  C.  C,  county  clerk  of  the 
county  aforesaid,  for  and  in  consideration  of  the 

sum  of dollars  and cents,  taxes,  costs, 

and  interest  due  on  said  land  for  the  year  A.  D. 

,  to  the  treasurer  paid  as  aforesaid,  and  by 

virtue  of  the  statute  in  such  case  made  and  pro- 
vided, have  granted,  bargained,  and  sold,  and  by 
these  presents  do  grant,  bargain,  and  sell,  unto 
the  said  A.  B.  (or  G.  H.,  as  the  case  may  be),  his 
heirs  and  assigns,  the  real  property  last  hereinbe- 
fore described,  to  have  and  to  hold  unto  him,  the 
said  A.  B.  for  G.  H.  1,  his  heirs  and  assigns,  for- 
ever, subject,  however,  to  all  ri.jhts  of  redemption 
provided  by  law. 

In  witness  whereof,  I,  C.  C,  county  clerk  as 
aforesaid,  by  virtue  of  authority  aforesaid,  have 
hereunto   sub.^cribed   my  name  and   affixed   the 

official  seal  o'    said  county,  on  this day  of 

,  A.  D. .  C.  C. 

[Seal']  County  Clerk. 

For  form  of  Acknowtedgment,  see  that  tide. 
Conveyance — Tax  I>oe«l. 
Property  Bid  Off  by  the  County. 

Knowr  all  men  by  these  presents  : 

That,  whereas,  the  following  described  rea' 
property,  viz.  (describing  tite  entire  parcel  subject  to 

taxation),  situated  in  the  county  of ,  and  State 

of  Kansas,  was  subject  to  taxation  for  the  year 

A.  D. ,  and  whereas,  the  taxes  assessed  upon 

said  real  property  for  the  year  aforesaid  remained 
due  and  unpaid  at  the  date  of  the  sale  hereinafter 
mentioned  ;  and  whereas,  the  treasurer  of  said 

county  did,  on  the day  of ,  A.  D. ,  by 

virtue  of  authority  in  him  vested  by  law,  at  (an 
adjourned  sale  of),  the  sale  begun  and  publicly 
held,  on  the  first  Tuesday  of ,  A.  D. ,  ex- 
pose to  public  sale,  at  the  county  seat  of  said 
county,  in  substantial  conformity  with  all  the  re- 
quisitions of  the  statute  in  such  case  made  and 
provided,  the  real  property  above  described,  fw 


CONVEYANCES. 


2Rr 


the  payment  of  taxes,  interest,  and  cost  then  due 
and  remaining  unpaid  upon  said  property;  and 
whereas,  at  the  place   aforesaid,  said   property 

could  not  be  sold  for  the  sum  of dollars  and 

cents,  being  the  whole   amount  of  tax  and 

charges  thereon,  the  same  was  bid  off  by  the 
county  treasurer  for  said  county  ;  and  whereas, 

on  the day  of ,  A.  D. ,  C.  D.,  of  the 

county  of ,  and  State  of ,  having  paid  into 

the  county  treasury  of  the  county  first  aforesaid 

the  sum  of dollars  and cents,  being  equal 

to  the  cost  of  redemption  of  said  property  at  that 
time ; 

And  whereas,  the  said   C.  D.  did,  on  the  

day  of ,  A.  D. ,  duly  assign  the  certificate 

•f  the  sale  of  the  property  as  aforesaid,  and  all 
his  right,  title,  and  interest  to  said  property  to  E. 
F.,  of  the  county  of ,  and  State  of ; 

And  whereas,  the  subsequent  taxes  of  the  year 

,  amounting  to  the  sum  of dollars,  have 

been  paid  by  the  purchaser,  as  provided  by  law  ; 

And  whereas, years  have  elapsed  since  the 

date  of  said  sale,  and  the  said  property  has  not 
been  redeemed  therefrom,  as  provided  by  law  : 

Now,  therefore,  I,  C.  C,  county  clerk,  etc.  {the 
balance  of  this  deed  is  the  same  as  the  preceding  one, 
including  the  form  of  acknowledgntent). 

KENTUtlKY. 

Forms  printed  and  sold  by  Wilstach,  Baldwin  &  Co., 
Cincinnati,  Ohio. 

Conveyances  of  real  estate  or  any  interest  therein  are 
jiven  below. 

Acknowledgment.     See  that  title. 

Corporations.     See  title  Acknowledgment,  ante. 

Married  women.  Separate  examination  is  not  ne- 
cessary. 

Recording  conveyances  of  any  title  or  interest  in 
land,  or  deed  of  trust,  or  mortgage,  and  all  other  instru- 
ments affecting  such  title  or  interest,  are  not  valid  against 
:»  purchaser  for  a  valuable  consideration  without  notice, 
or  any  creditor,  until  it  is  acknowledged  or  proved  and 
lodged  in  the  county  clerk's  office  for  record.'  No  deed 
is  held  to  be  legally  lodged  for  record  until  the  tax  be 
paid  thereon;''  by  non-residents  within  four  months; 
other  deeds  by  residents  must  be  recorded  within  sixty 
days. 

Seals  are  abolished. 

Witnesses  are  not  required. 
For  Long  Fokm  Conveyances,  see  Indiana  Forms, 
ante,  and  General  Forms,  post. 

Conveyance— l¥arranty    Deed. 

Short  Form." 

This  conveyance,  made  this  day  of , 

Witnesseth : 

That  A.  B.,of county,  in  the  State  (or  Com- 
monwealth) of ,  conveys  and  warrants  to  C.  D., 

of county,  in  the  State  {or  Commonwealth)  of 

,  for  the  sum  of  $ ,  all  the  following  de- 
scribed real  estate,  situated  in  the  county  of , 

and  State  {or  Commonwealth)  of ,  to  wit :  {here 

follows  the  description^. 

In  witness  whereof,  the  said  grantor  has  here- 
unto set  his  hand,  the  day  and  year  first  above 
written.  A.  B. 

For  form  of  Acknowledgment,  see  that  title. 

Conveyance— General  Warranty  Deed. 

By  Attorney — Short  Form. 

This  conveyance,  made  this  day  of , 

witnesseth : 

That  A.  B.,  of county,  in  the  Stato  {or  Com- 
monwealth) of ,  by  A.  A.,  his  attorney  in  fact, 

conveys  and  warrants  to  C.  D. ,  of county,  in 

the  State  {or  Commonwealth )  of ,  for  the  sum  of 

dollars,  all  the  following  described  real  estate, 

situated  in  the  county  of ,  and  State  {or  Com- 
monwealth) of ,  to  wit :  {here  follows  the  descrip- 
tion). 

In  witness  whereof,  said  grantor  has  hereunto 
set  his  hand,  the  day  and  year  first  above  written. 
{Signed)        A.  B., 
By  A.  A.,  his  attorney  in  fact. 
For  form  of  Acknowledgment,  see  that  title. 
Conveyance— Special  Warranty  Deed. 
Short  Form. 

This  conveyance,  made  this day  of  , 

witnesseth : 


That  A,  B.,  of county,  in  the  State  {or  Com 

monwealth)  of .conveys  to C.  D.,of county, 

in  the  State  {or  Commonwealth)  of ,  for  the  sum 

of dollars,  all  his  right,  title,  and  interest  (as 

derived  from )  in  and  to  all  the  foUovring  de- 
scribed real  estate,  situated  in  the  county  of , 

and  State  {or  Commonwealth)  of ,  to  M^it :  {here 

/oHo-MS  the  description). 

In  witness  whereof,  said  grantor  has  hereunto 
set  his  hand,  the  day  and  year  first  above  written. 

A.  B. 
For  form  of  Acknowledgment,  see  that  title. 

Conveyance — Quit^Claiin  Deed. 

This  conveyance,  made  this day  of , 

witnesseth  : 

That  A.  B. ,  of county,  in  the  State  {or  Com- 

monwealth)  of ,  quit-claims  unto  C.  D.,  of— — 

county,  and   State  {or  Commonwealth)  of ,  for 

the  sum  of dollars,  all  the  following  described 

real  estate,  situated   in  the  county  of  ,  and 

State  {or  Commonwealth)  of ,  to  wit:  {here  fal- 
louts the  description). 

In  witness  whereof,  said  grantor  has  hereunto 
set  his  hand,  the  day  and  year  first  above  written. 

A.  B. 
For  form  of  Acknowledgment,  see  that  title. 
Conveyance — Trust  Deed. 

Short  Form. 

This  conveyance,  made  this  day  of , 

witnesseth : 

That  A.  B.,  of county,  in  the  State  {or  Com- 
monwealth) of ,  conveys  (and  warrants)  to  C.  D., 

of county,  in  the  State  (or  Commonwealth)  of 

,  and  E.   F.,of county,  in  the  State  (or 

Commonwealth)  of ,  for  the  sum  of dollars, 

all  the  following  described  real  estate,  situated  in 

the  county  of ,  and  State  {or  Commonwealth)  of 

,  to  wit :  {here  follo-MS  the  description). 

In  trust,  nevertheless,  for  the  following  pur- 
poses, to  wit :  {here  set  forth  the  objects  and  pur- 
poses to  be  effected ). 

In  witness  whereof,  said  parties  have  hereunto 
set  their  bands,  the  day  and  year  first  above  writ- 
ten. {Signed)        A.  B. 

C.  D. 
E.  F. 
For  form  of  Acknowledgment,  see  that  title. 

Conveyance — Adinini««trator''s,  Execu- 
tor's, Trustee's,  etc..  Deed. 

This  conveyance,  made  this  day  of  , 

witnesseth  : 

That as  (administrator  of  the  estate  and  eilects 

of  D.  B.,  deceased,  or  executor  of  the  la.st  will  and  tes- 
tament of  D.  D.,  deceased,  or  guardian  of  the  persons 

and  estates   of , , ,  minor  heirs  of  D.  D., 

deceased,  or  trustee  of ),  etc.,  of county,  in 

the  State  (or  Commonwealth)  of  ,  by  order  of 

the  circuit  court  of county,  in  the judicial 

district  of  the  Commonwealth  of  Kentucky,  en- 
tered in  volume of ,  on  page ,  conveys 

to  C.  D.,  of county,  in  the  State  (or  Common- 
wealth) of ,  for  the  sum  of  dollars,  all  the 

following  described  real  estate,  situated  in  

county,  and   State  ior  Commonwealth)  of ,  to 

wit :  {here  follotus  the  description). 

In  witness  whereof,  said ,  as  (administrator, 

etc.),  aforesaid,  has  hereunto  set  his  hand,  the 
day  and  year  first  above  written. 

(Signature  and  representative  title.) 
For  form  of  Acknowledgment,  see  that  title. 
LOUISIABTA. 

Conveyances  of  real  estate  or  any  interest  may  be 
made  before  a  notary  public,  who  reduces  the  contract 
to  writing,  and  together  with   the   parties,  and  in  the 

Cresenceof  two  competent  witnesses  (three  if  the  grantor 
e  blind),  signs  it,  and  adds  his  certificate,  made  in  the 
usual  form  and  acknowledged. 

Acknowledgment.     See  that  title. 

Corporations  execute  conveyances  in  the  same  man- 
ner as  private  individuals. 

Married  women.     See  that  title. 

Recording  is  necessary  in  the  parish  where  the  prop- 
erty is  situated.  Conveyances  take  effect  against  third 
parties  from  the  date  of  such  record  only. 

a-G.  S.  187a,  Ch.  24.  b-G.  S.  1873,  p.  25Q,  g  71.  e 
G.  S.  1873,  p  355,  Ch.  24, 1 1. 


iS: 


CONVEYANCES. 


Seals  or  scrolls  are  not  authorized. 
6ee  AcKNOWLBr>CMSNT,  ante ;  Genbral  Forms,  post. 

MAINE. 

See  conveyances  referred  to  below. 
Acknowledgment.     See  that  title. 
Married  women  need  not  be  examined  separately. 
Recording  is  necessary  in  order  to  render  them  vjdid 
Igainst  subsequent  conveyances  and  attachments.J 
Seals  must  be  wafers  or  wax. 
Witnesses.     One  is  necessary  ;  two  customary 
See  Massachuset-i's  Forms,  post. 

MARYL.AND. 

Conveyances  of  an  estate  of  inheritance,  or  freehold, 
or  any  declaration  of  use,  or  estate  for  above  seven 
years,  must  be  by  deed  in  writing,  etc.  No  words  of  in- 
heritance are  necessary  to  convey  an  estate  in  fee  sim- 
ple. The  word  "  grant "  inadeetl  is  sufficient  to  convey 
.Hie  whole  interest  and  estate  of  the  grantor. 
I    Acknowledgment.     See  that  title,  ante. 

Consideration  must  be  stated  when  a  consideration 
is  necessary. 

Married  women  need  not  be  ex.tmined  separately. 

Parties  conveying  and  to  whom  conveyed  must  be 
set  forth  in  the  instrument. 

Recording.  Where  land  lieg  in  more  than  one 
c.iiinly,  or  in  the  city  of  Baltimore  and  a  county  adjoin- 
ing, the  deed  must  be  recorded  in  each  of  them.  Con- 
veyances, etc.,  must  be  recorded  within  six  months 
(T.,m  date,  in  the  county  or  city  where  the  land  affected 
lits.k 

Seals  are  necessary ;  a  scroll  is  sufficient. 

Witnesses.     At  least  one  is  necessary. 
See  General  Forms,  post. 

MASSACmiSETTS. 

Conveyances  of  real  estate  or  any  interest  therein  must 
he.  made  in  writing,  etc. 

Acknowledgment  by  the  grantors,  or  one  of  them, 
is  necessary.     See  title  Acknowledgment,  ante. 

Married  ■women  need  not  be  examined  separately. 

Recording  is  necessary  to  render  the  conveyance 
valid  against  subsequent  bona  fide  purchasers  or  attach- 
ing creditors. 

Seals  are  necessary,'  and  should  be  wafer  or  wax. 

Witnesses  are  not  necessary ;  one  is  customary. 

Conveyance — Warranty  Deed. 

Know  all  men  by  these  presents  : 

That  I,  A.  B.,  of ,  in  county,  State  of 

,  in  consideration  of dollars,  to  me  paid 

by  C.  D.,  of ,  in  county,  State  of ,  the 

receipt  of  which  I  hereby  acknowledge,  do  by 
these  presents  give,  grant,  bargain,  sell,  and  con- 
vey unto  said  C.  D.,his  heirs  and  assigns, all  that 

certain    parcel  of   land    situate    in  ,  in  

county,  and  State  of ,  bounded  and  described 

siS  follOTAfS  :  {here  follinvs  the  desrri/>tion),  together 
with  all  the  privileges  and  appurtenances  to  the 
said  land  in  anywise  appertaining  and  belong- 
ing. 

To  have  and  to  hold  the  above  granted  prem- 
ises unto  said  C.  D.,  his  heirs  and  assigns,  to  his 
and  their  use  and  behoof,  forever. 

And  I,  the  said  A.  B.,  for  myself,  my  heirs,  ex- 
ecutors, and  administrators,  do  covenant  with 
said  C.  D.,  his  heirs  and  assigns,  that  I  am  law- 
fully seized  in  fee  of  the  aforegranted  premises  ; 
that  they  are  free  from  all  incumbrances;  that  I 
have  good  right  to  sell  and  convey  the  same  to 
caid  C.  D.  as  aforesaid  ;  that  I  wiil,  my  heirs,  ex- 
ecutors, and  administrators  shall,  warrant  and 
(defend  the  same  to  said  C.  D.,hi3  heirs  and  as- 
signs, forever,  against  the  lawful  demands  of  all 
persons. 

In  witness  whereof,  I,  the  said  A.  B.,   have 

hereunto  set  my  hand  and  seal,  this day  of 

.  A.  B.     [l.  S.J 

For  form  of  Acknowledgment,  see  that  title. 
Wife's*  Relea.<«e  of  Dower. 

In  ^vitness  >vhereef,  I,  the  said  A.  B.,  and  W., 
my  wife,  in  token  of  her  release  of  all  right  of 
dower  (and  homestead  exemption),  in  said  premises, 

have  hereunto  set  our  hands  and  seals,  this 

day  of .  A.  B.    [l.  s.] 

W.  B.  [L.  s.] 

JR  S.Ch  73,§8.  k-P.G.L.Art.24,2gi3,i4.  l-i3 
^l«t  79     ui-Comp.  L.  1346.    w-Comp.  X*ws,  176U, 


Signed,  sealed,  and  delivered  in  the  presetice 
of  us.  W.  T.,N.  S. 

Conveyance — Warranty  Deed. 

Husband  and  Wife — Wife's  Land. 

Know  all  men  by  these  presents  : 

That  we,  A.  B.,  of ,  etc.,  and  W.  B.,  his 

%vife,  in  her  own  right,  in  consideration  of ,  to 

us  paid,  the  receipt  of  which  is  hereby  acknowl- 
edged, do  by  these  presents  give,  grant,  bargain, 
and  sell  unto  C.  D.,  his  heirs  and  assigns,  all  that 

parcel  of  land  situate  in ,  in county,  State 

of {describing  it),  and  all  the  right,  title,  and 

interest  which  they,  or  either  of  them,  have  in  or 
to  the  same  or  any  part  or  parcel  thereof. 

To  have  and  to  hold  the  above  described  real 
estate,  with  the  appurtenances,  to  the  said  C.  D., 
his  heirs  and  assigns,  to  his  and  their  use  and  be- 
hoof, forever. 

And  the  said  A.  B.,  for  himself,  his  heirs,  ex- 
ecutors, and  administrators,  does  hereby  cove- 
nant v/ith  said  C.  D.,  his  heirs  and  assigns,  that 
immediately  before  the  sealing  and  delivery 
hereof,  he,  the  said  A.  B.,  and  W.  B.,  his  wife,  in 
her  right,  are  lawfully  seized  in  fee  of  the  above 
conveyed  real  estate  ;  that  the  same  is  free  from 
all  incumbrances,  and  that  the  said  A.  B.,  his 
heirs,  executors,  and  administrators  shall  and 
will  warrant  and  defend  the  same  to  the  said  C. 
D.,  his  heirs  and  assigns,  against  the  lawful 
claims  and  demands  of  all  persons. 

In  witness,  etc.  {as  above). 

MICHIGAN. 

Conveyances  of  any  estate  or  interest  in  real  property 
must  be  in  writing,  etc.  See  conveyances  referred  to 
below. 

Acknowledgment.     See  that  title,  ante. 

Recording  must  be  according  to  the  provisions  of  the 
statute,  or  the  conveyance  will  be  void  as  against  any  sub- 
sequent purchasers  in  good  faith  for  value." 

Seals  are  not  necessary,"  but  customary. 

Witnesses.     Two  are  necessary. 

See  General  Forms,  post. 

MINNESOTA. 

Conveyances  affecting  real  estate  or  any  interest 
therein  must  be  in  writing,  etc.  See  conveyances  re- 
ferred to  below. 

Acknowledgment.     See  that  title,  ante. 

Dower  is  released  by  wife  joining  in  the  conveyance 
with  the  husband. 

Married  woman  may  convey  her  separate  estate  by 
the  husband  joining.  She  is  liable  on  the  covenants  in 
the  deed  the  same  as  though  she  were  a  fentt  sole. 
Separate  acknowledgment  is  not  required. 

Recording  in  the  office  of  the  register  of  deeds  of  th» 
county  in  which  the  land  is  situate  is  necessary.  Un- 
less so  recorded  it  is  void  against  subsequent  purchasers 
in  good  faith,  for  valuable  consideration,  whose  convey- 
ance is  first  recorded,  or  against  attachments  levied,  or 
jutigments  lawfully  obtained  before  recording.' 

Seals  are  necessary. 

Witnesses.     Two  are  necessary. 

See  General  Forms,  post. 
MISSISSIPPI. 

Conveyances,  etc.,  of  any  estate  or  interest  in  lands 
ninst  be  in  writing,  etc.  A  deed  of  quit-claim  or  release 
conveys  all  the  estate  of  the  grantor.P  See  forms  re- 
ferred to  below. 

Acknowledgment.     See  that  title,  ante. 

Dower  may  be  relinquished  either  by  joining  in  the 
conveyance  or  by  a  separate  instrument. 

Married  woman  need  Bot  be  examined  privately 
and  apart  from  he:  husband. 

Recording  in  the  offices  of  the  chancery  clerks  of  the 
respective  counties  in  which  the  land  is  situate  is  neces- 
sary to  affect  subsequent  purchasers,  mortgagees,  etc. 

Seals.     A  printed  impression  or  scroll  is  sufficient.*! 

See  General  Forms,  post. 

MISSOURI. 

Conveyances,  etc.,  of  any  estate  or  interest  in  real  es- 
tate must  be  in  writing,  etc.  The  words  "  grant,  bar- 
gain, and  sell  "  imply  covenants. 

Acknowledgment.     See  that  title,  ante. 

Corporations  executing  conveyances  must  attach 
their  corporate  seal. 

o-G.  S.  Ch.  40, 9  21 ;  18  Minn.  405.  0-33  Miss,  ms  ;  34 
Id.i5.    q-8S.  &M.  480;  9ld.  34.  * 


CONVRYA'NCES. 


m 


Dower.     See  title  Acknow'lf.domknt.  ante. 

Married  \vomen  need  not  be  examined  separate 
from  their  husbands. 

Recording  in  the  county  where  the  real  estate  is  .sit- 
uated is  necessary  in  order  to  render  the  conveyance  ef- 
fective against  purchasers,  etc.,  without  notice. 

Seals.     A  scrawl  is  sufficient. 

Witnesses  are  not  necessary. 

Conveyance — Warranty   Deed. 

Know  all  men  by  these  presents  : 

That  I,  A.  B.,of county,  in  the  State  of—; — , 

have  this day  of ,  for  and  in  consideration 

of  the  sum  of dollars  to  me  in  hand  paid  *have 

granted,  bargained,  and  sold,  and  by  these  pres- 
ents do  grant,  bargain,  sell  and  convey  unto  C.  D., 

fcf county,  in  the  State  of ,  the  following 

6:srribed  tract  or  parcel  of  land,  situate  in  the 

eaunty  of ,  in  the  State  of ,  that  is  to  say 

(Itere  follotvs  the  descriptioti). 

To  have  and  to  hold  the  premises  hereby  con- 
veyed, with  all  the  rights,  privileges,  and  appur- 
tenances thereto  belonging  or  in  anywise  apper- 
taining, unto  the  said  C.  D.,  his  heirs  and  assigns, 
forever. 

And  I,  the  said  A.  B.,  hereby  covenant  to  and 
with  said  C.  D.,  his  heirs  swid  assigns,  for  myself, 
my  heirs,  executors,  and  administrators,  to  war- 
rant and  defend  the  title  to  the  premises  hereby 
conveyed  against  the  claim  of  every  person 
whomsoever    *    * 

In  witness  whereof,  I  have  hereunto  subscribed 

my  name  and  affixed  my  seal,  this day  of . 

A.  B.     \Seal.-\ 
For  form  of  Acknowledgment,  see  that  title. 
Conveyance— <lnjf-<'lalni  I»ce*l. 

Follow  from  the  *  :  do  remise,  release,  and  for- 
ever quit-claim  unto  C.  D.,  his  heirs  and  assigns, 
the  following   described  tract  or  parcel  of  land, 

situate  in  the  county  of ,  in  the  State  of , 

that  is  to  say  (here  follorvs  the  description). 

In  witness  whereof,  etc.  {as  above). 

Conveyance— Special  Warrair»ty. 

All  that  Is  "necessary  to  convert  the  foregoing  form 
into   a   special    warranty   deed   is   to  add  at  the    *    * 
"Claiming  by,  through,  or  under  the  said  A.  B." 
MOXTA^TA. 

Conveyances,  etc.,  of  any  interest  or  estate  in  lands 
must  be  in  writing,  etc.  See  conveyances  referred  to 
below. 

Acknowledgment.     See  that  title,  ante. 

Corporations.     See  title  Acknowledgment,  ante 

Recording  is  necessary  to  the  validity  of  a  convey- 
ance, etc.,  as  against  subsequent  purchasers  and  mort- 
gagees in  good  faith,  for  value  and  without  notice. 
See  Gener.\l  Forms,  post. 
NKBR.^SKA. 

Conveyances,  etc.,  of  any  estate  or  interest  in  real 
property  must  be  in  writing,  etc.  See  forms  referred  to 
below. 

Acknowledgment.     See  that  title,  ante. 

Curtesy  is  barred  by  husband  joining  in  wife's  deed. 

Dower  is  barred  by  wife  joining  in  husband's  deed. 

Married  women  need  not  be  separately  examined. 

Recording.  Delivery  fur  record  to  the  county  clerk 
lor  record  or  to  tUe  register  of  deeds  in  the  county 
in  which  the  lands  lie  is  necessary  to  render  a  convey- 
ance effectual  against  all  creditors  and  subsequent  pur- 
chasers in  good  faith,  ^^ithout  notice. 

Subscribing  by  the  grantor  is  necessary. 

Witnesses.     At  least  one  is  necessary. 

See  Kansas  and  Ohio  Forms,  ante  and  post. 
NEVADA. 

Conveyances, etc.,  of  any  estate  or  interest  in  real  es- 
tate must  be  in  writing,  etc.  See  forms  referred  to 
below. 

Acknowledgments.     See  that  title,  ante. 

Married  women  should  be  examined  apart  from 
their  husbands. 

Recording  is  necessary  to  render  a  conveyance  valid 
as  against  subsequent  purchasers  in  good  faith,  and  for 
a  valuable  consideration  when  his  conveyance  is  first 
•ecorded. 

Seal.     A  scroll  is  sufficient. 

See  General  Forms  and  Ohio  Forms,  post 

NEW  HA9IPSHIKE. 

Conveyances,  etc.,  of  any  estate  or  interest  in  real 


property  must  Ve  in  writine,  etc.  See  forms  referred  t( 
below. 

Acknowledgment.     See  that  title,  ante. 

Married  women.  See  title  Acknowledgmb:«t 
ante. 

Recording  of  any  conveyance  must  be  in  the  offic* 
of  the  reg'si'  r  of  d.-etls  in  the  county  wherein  th'i 
real  estate  is  situated  in  order  to  be  valid  against  su'ose- 
quent  purchasers,  mortgagees,  etc. 

Seals  are  necessary. 

>A^itnesses.     'I'wo  are  required. 
See  General  FoRM.sand  Massachusetts  Forms,  post. 
NEW  JERSEY. 

Conveyances  are  by  the  common  law  forms. 

Acknowledgment.     See  that  title,  ante. 

Dower  is  relinquished  by  wife's  joining  in  the  deed. 

Heirs.  'J'his  word  is  necessary  to  convey  a  fee 
simple. 

Married  women  must  be  separately  examined. 

Recording  must  be  within  fii'teen  days  after  sigr.irjr, 
sealing,  and  delivering,  or  they  are  void  against  subse- 
quent bona  Jide  purchasers  or  mortgagees  without 
•iKtice. 

Seals  are  necessary.     A  scroll  is  not  sufficient 

^Vitnesses.     One  is  usn,.l  but  not  necessary. 

Ordinary  W^arranty  I>«'ed— Short  Form, 

This  conveyance,  made  this day  of ,  by 

A.  B.,  of county,  and  State  of ,  of  the  first 

part,  to  C.  D.,  of county,  and  State  of ,  of 

the  second  part,  witnesseth  : 

That  said  party  of  the  first  part,  for  the  con- 
sideration of dollars,  the  receipt  of  which  is 

hereby  acknowledged,  has  and  by  these  presents 
does  grant,  bargain,  sell,  and  convey  unto  said 
party  of  the  second  part,  his  heirs  and  assigns,  all 

that  tract  and  parcel  of  land,  situate  in  ,  in 

county,  and  State  of ,  to  wit:  (here /o/loms 

the  description),  together  with  the  rights,  mem- 
bers, privileges  and  appurtenances,  and  the  re- 
versions and  remainders,  rents,  issues,  and  profits 
thereof. 

To  have  and  to  hold  the  same  unto  said  party 
of  the  second  part,  his  heirs  and  assigns,  to  hii, 
and  their  only  use,  benefit,  and  behoof,  forever. 

And  the  said  party  of  the  first  part  does,  for 
himself,  his  heirs,  executors,  and  administrators, 
covenant  with  said  party  of  the  second  part,  his 
heirs  and  assigns,  that  *  *  at  the  sealing  and 
delivery  hereof  he  is  the  owner  in  fee  simple  of 
the  said  premises  hereby  granted  or  intended  so 
to  be;  that  the  same  are  free  and  clear  of  all 
charges  and  incumbrances  whatsoever,  and  that 
he  and  they  the  said  premises  unto  said  party 
of  the  second  part,  his  heirs  and  assigns,  against 
all  persons  lawfully  claiming  or  to  claim  the 
same,  shall  and  will  warrant  and  forever  defend. 

In  witness  whereof,  said  party  of  the  first  part 
has  hereunto  set  his  hand  and  seal,  the  day  and 
year  first  above  written.  A.  B.     [l.  s.J 

Signed,  sealed  and  delivered  in) 
presence  of  \V.  T.  J 

Conveyance— Special  Warranty. 

Convert  the  above  form  into  a  special  warranty  deed 
by  substituting  for  the  matter  following  the  *  *  "  he  has 
not  done,  or  suffered  to  be  done,  anything  where- 
by said  premises  hereby  granted  or  intended  so 
to  be  are  or  may  be  in  any  manner  incumbered  or 
charged  ;  and  that  he  and  they  the  said  premises 
unto  said  party  of  the  second  part,  his  heirs  and  as- 
signs, against  all  persons  lawfully  claiming  or  to 
claim  the  same,  by,  through,  or  under  said  parties 
of  the  first  part  ^or  either  of  them)  shall  and  will 
warrant  and  forever  defend. 

In  witness  whereof,  etc.  (as  above). 
MECHAjaCS'  UEN  LAW  OF  NEW  JERSEY 

Of  the  Lien. 
Every  building  hereafter  erected  or  built 
within  thi.s  state  shall  be  liable  for  the  pay- 
ment of  any  debt  contracted  and  owing  to  any 
person  for  labor  performed  or  materials  fur- 
nished for  the  erection  and  construction  there- 
of, which  debt  shall  be  a  lien  on  such  building, 
and  on  the  land  whereon  it  stands,  including 
the  lot  or  curtilage  whereon  the  same  is  erected. 


234 


CONVEYANCES. 


Whenever  any  building  shall  be  erected 
in  whole  or  in  part  by  contract  in  writing,  such 
building  and  the  land  whereon  it  stands  shall 
be  liable  to  the  contractor  alone  for  work  done 
or  materials  furnished  in  pursuance  of  such 
contract;  provided,  said  contract,  or  a  dupli- 
cate thereof,  together  with  the  specifications 
accompanying  the  same,  or  a  copy  or  copies 
thereof,  be  filed  in  the  office  of  the  clerk  of 
the  county  in  which  such  building  is  situate 
before  such  work  done  or  materials  furnished. 

Whenever  any  master  workman  or  con- 
tractor shall,  upon  demand,  refuse  to  pay  any 
person  who  may  have  furnished  materials  used 
in  the  erection  of  any  such  house  or  other 
building,  or  any  journeyman  or  laborer  em- 
ployed by  him  in  the  erecting  or  constructing 
any  building,  the  money  or  wages  due  to  him, 
it  shall  be  the  duty  of  such  journeyman,  or 
laborer  or  materialman  to  give  notice  in  writing 
to  the  owner  or  owners  of  such  building  of 
such  refusal,  and  of  the  amount  due  to  him  or 
them  and  so  demanded,  and  the  owner  or 
owners  of  such  building  shall  thereupon  be 
authorized  to  retain  the  amount  so  due  and 
claimed  by  any  such  journeyman,  laborer  or 
materialman  out  of  the  amount  owing  by  him 
or  them  on  the  contract,  or  that  may  there- 
after become  due  from  him  or  them  on  such 
contract  for  labor  or  materials  used  in  the 
erection  of  such  building,  giving  the  master 
workman  or  contractor  written  notice  of  such 
notice  and  demand ;  and  if  the  same  be  not 
paid  or  settled  by  said  master  workman  or  con- 
tractor, such  owner  or  owners,  on  being  satis- 
fied of  the  correctness  of  said  demand,  shall 
pay  the  same,  and  the  receipt  of  such  journey- 
man, laborer  or  materialman  for  the  same  shall 
entitle  such  owner  or  owners  to  an  allowance 
therefor  in  the  settlement  of  accounts  between 
him  and  such  master  workman  or  contractor, 
or  his  representatives  or  assigns,  as  so  much 
paid  on  account. 

When  a  notice  or  notices  shall  be  served 
upon  such  owner  or  owners  by  any  journey- 
man, laborer  or  materialman,  under  the  pro- 
visions of  this  act,  and  notice  thereof  shall 
have  been  given  by  such  owner  or  owners  to  the 
master  workman  or  contractor,  as  required  by 
said  section,  and  said  master  workman  or  con- 
tractor shall,  within  five  days  after  receiving 
the  notice  aforesaid,  notify  in  writing  the  jour- 
neyman, laborer  or  person  who  has  furnished 
materials  that  he  disputes  his  or  their  claim, 
and  requests  him  or  them  to  establish  the  same 
by  judgment,  the  owner  shall  not  pay  the 
claim  until  it  is  so  established ;  provided,  the 
master  workman  or  contractor  shall  notify  him 
in  writing  that  he  has  given  the  aforesaid 
notice  to  said  journeyman,  laborer  or  material- 
man. 

If  the  owner  or  owners  of  any  building 
or  other  property  which,  by  this  act,  is  made 
the  subject  of  liens  for  or  toward  the  con- 
struction, altering,  repair  or  improvement  of 
which  labor  or  services  have  been  performed 


or  materials  furnished  by  contract,  duly  filed, 
shall,  for  the  purpose  of  avoiding  the  pro- 
visions of  this  act,  or  in  advance  of  the  terms 
of  such  contract,  pay  any  money  or  other  val- 
uable thing  on  such  contract,  and  the  am»)unt 
still  due  to  the  contractor,  after  such  payment 
has  been  made,  shall  be  insufficient  to  satisfy 
the  notices  served  in  conformity  with  the 
provisions  of  this  act,  such  owner  or  owners 
shall  be  liable  in  the  same  manner  as  if  no 
such  payments  had  been  made. 

In  all  cases  journeymen  or  laborers  shall 
have  priority  and  preference  over  any  em- 
ployers of  labor,  contractors  or  materialmen 
for  the  payment  of  wages,  without  reference 
to  the  date  when  said  journeymen  or  laborers 
shall  have  filed  the  lien  or  served  the  notices 
provided  for  in  this  act ;  laborers  or  material- 
men giving  notices  in  accordance  with  the 
provisions  of  the  third  section  shall  have 
priority  and  preference  in  the  disposition  of 
the  moneys  due  and  to  grow  due  upon  the 
contract  over  any  persons  claiming  said  moneys 
or  any  part  thereof  by  reason  of  order  or  orders 
thereon  or  assignments  thereof. 

If  any  building  be  erected  by  a  tenant  or 
other  person  than  the  owner  of  the  land,  then 
only  the  building  and  the  estate  of  such  ten- 
ant or  other  person  so  erecting  such  building, 
shall  be  subject  to  the  Hen  created  by  this  act 
and  the  other  provisions  thereof,  unless  such 
building  be  erected  by  the  consent  of  the  owner 
of  such  lands  in  writing,  which  writing  may 
be  acknowledged  or  proved  and  recorded,  as 
deeds  are,  and  when  so  acknowledged  or 
proved  and  recorded,  the  record  thereof  and 
copies  of  the  same,  duly  certified,  shall  be  evi- 
dence in  like  manner. 

Any  addition  erected  to  a  former  building, 
and  any  fixed  machinery  for  gearing,  or  other 
fixtures  for  manufacturing  purposes,  shall  be 
considered  a  building  for  the  purposes  of  this 
act. 

The  lien  given  by  this  act  is  hereby  ex- 
tended to  all  mills  and  manufactories,  of 
whatever  description,  within  this  state. 

The  lien  given  by  this  act  shall  be  and  is 
hereby  extended  to  all  buildings  of  whatever 
description  erected  or  to  be  erected  in  this 
state  and  the  lots  or  curtilages  whereon  the 
same  are  erected,  for  all  debts  contracted  by 
the  owners  thereof,  or  by  'any  other  person 
with  the  consent  of  the  owner  or  owners  in 
writing,  for  work  done  or  materials  furnished 
in  and  for  the  repairing  or  alteration  of  any 
such  building;  provided,  however,  that  said 
lien  shall  not  be  valid  against  a  bona  fide 
purchaser  or  mortgagee  before  said  lien  is 
filed  in  the  office  of  the  clerk  of  the  county  in 
which  said  lot  or  curtilage  is  situate;  and 
provided  further,  that  work  done  or  materials 
furnished  under  contract  in  and  for  such 
repairs  or  alterations  shall  be  liable  to  the 
said  contractor  alone  in  the  manner  provided 
by  this  act. 

The  lien  given  by  this  act  is  hereby  ex- 


CONVEYANCES. 


285 


tended  to  all  docks,  wharves,  and  piers  erected 
upon  any  navigable  river  in  this  state. 

Every  building  or  part  or  parts  of  any 
building  which  shall  hereafter  be  removed, 
shall,  as  provided,  be  subject  to  lien  as  given 
by  this  act. 

Any  married  woman,  upon  whose  lands 
any  building  or  buildings  shall  hereafter  be 
erected  or  repaired,  or  whereon  any  fixtures 
shall  be  put,  shall  be  taken  as  consenting  to 
the  same,  and  such  building  or  buildings  and 
curtilages  whereon  the  same  are  erected  shall 
be  subject  to  the  lien  created  by  this  act, 
unless  said  married  woman  shall  duly  file 
with  the  clerk  of  the  county  court  her  protest 
against  such  construction  or  repairs. 

Nothing  in  this  act  shall  make  the  lands  of 
any  person  liable  for  any  building  or  repairs 
not  authorized  by  the  owner,  or  built  or  done 
without  the  knowledge  of  the  owner. 

Whereas  it  is  the  practice  of  owners  of 
lots  or  tracts  of  land  to  dispose  of  the  same  to 
a  builder  or  builders,  taking  therefor  a 
mortgage  or  mortgages  in  excess  of  the  pur- 
chase money  price  of  said  lot  or  trnct  of  land, 
the  mortgagee  agreeing  to  pay  such  excess  to 
the  aforesaid  builders  from  time  to  time,  as 
the  building  or  buildings  progress,  such  mort- 
gages being  known  as  advance  money  mort- 
gages; therefore,  in  all  such  transactions  the 
building  or  buildings  so  erected  shall  be  liable 
for  the  payment  of  any  debt  contracted  and 
owing  to  any  person  or  persons  for  labor  per- 
formed or  materials  furnished  for  the  erection 
and  construction  thereof,  which  debt  shall  be 
a  lien  on  such  building  or  buildings  and  on 
the  land  whereon  they  stand,  including  the 
lot  or  curtilage  whereon  the  same  are  erected, 
and  the  lien  for  labor  performed  or  materials 
furnished  for  the  erection  and  construction  of 
any  such  building  or  buildings  shall  be  a 
prior  lien  to  the  lien  of  any  mortgage  created 
on  such  building  or  buildings  and  lot  or  tract 
of  ground  to  secure  either  in  whole  or  in  part 
any  advances  in  money  to  be  used  in  and 
about  the  construction  of  such  building  or 
buildings,  but  to  the  extent  only  of  the  moneys 
remaining  to  be  advanced  by  the  mortgagee 
under  such  agreement;  provided,  such  mort- 
gage shall  be  recorded  or  registered  before 
the  filing  of  any  claim  in  pursuance  of  this 
act. 

Every  mortgage  given  or  to  be  given 
upon  lands  in  this  state  shall  have  priority 
over  any  claim  that  may  be  filed  in  pursuance 
of  this  act  to  the  extent  of  the  money  actually 
advanced  and  paid  by  the  mortgagee  and 
applied  to  the  erection  of  any  new  building 
upon  the  mortgaged  lands  or  any  alterations, 
repairs  or  additions  to  any  building  on  said 
lands ;  provided,  such  mortgage  be  registered 
or  recorded  before  the  filing  of  any  such 
claim. 

Of  the  Claim. 

Every  person  intending  to  claim  a  lien 


under  the  provisions  of  this  act  shall,  within 
four  riionths  after  the  labor  is  performed  or 
the  materials  furnished  for  which  such  lien  is 
claimed,  file  his  or  her  claim  in  the  office  of 
the  clerk  of  the  county  where  the  building 
and  land  subject  to  such  lien  is  situate,  which 
claim  shall  contain : 

A  description  of  the  building  and  of  the 
lot  or  curtilage  upon  which  the  lien  is  claimed, 
and  of  its  situation,  sufficient  to  identify  the 
same ; 

The  name  of  the  owner  or  owners  of  the 
land  or  of  the  estate  therein  on  which  the  lien 
is  claimed; 

The  name  of  the  person  who  contracted 
the  debt,  or  for  whom,  or  at  whose  request 
the  labor  was  performed  or  the  materials 
furnished  for  which  such  lien  is  claimed,  who 
shall  be  deemed  the  builder; 

A  bill  of  particulars  exhibiting  the 
amount  and  kind  of  labor  performed  and  of 
materials  furnished,  and  the  price  at  which 
and  times  when  the  same  was  performed  and 
furnished,  and  giving  credit  for  all  the  pay- 
ments made  thereupon  and  deductions  that 
ought  to  be  made  therefrom,  and  exhibiting 
the  balance  justly  due  to  such  claimant,  which 
statement,  when  the  work  or  materials  or 
both  are  furnished  by  contract,  need  not  state 
the  particulars  of  such  labor  or  materials 
further  than  by  staling,  generally,  that  certain 
work  therein  stated  was  done  by  contract  at  a 
price  mentioned ;  and  such  bill  of  particulars 
and  statements  shall  be  verified  by  the  oath 
of  the  claimant  or  his  agent  in  said  matter, 
setting  forth  that  the  same  is  for  labor  done  or 
materials  furnished  in  the  erection  of,  addition 
to,  repair  of,  or  alteration  in  or  of  the  building 
in  such  claim  described,  at  the  times  therein 
specified,  and  that  the  amount  as  claimed 
therein  is  justly  due ;  and  when  such  claim 
shall  not  be  filed  in  the  manner  or  within  the 
time  aforesaid,  or  if  the  bill  of  particulars 
shall  contain  any  willful  or  fraudulent  mis- 
statement of  the  matters  above  directed  to  be 
inserted  therein,  the  building  or  lands  shall  be 
free  from  all  lien  for  the  matters  in  such 
claim. 

No  debt  shall  be  a  lien  by  virtue  of  this 
act,  unless  a  lien  claim  is  filed  as  hereinbefore 
provided,  within  four  months  from  the  date  of 
the  last  work  done  or  materials  furnished  for 
which  such  debt  is  due  ;  nor  shall  any  lien  be 
enforced  by  virtue  of  this  act,  except  as  in  the 
manner  provided. 

Discharge  of  Land  from  Lien. 

Such  land  and  building  may  be  dis- 
charged from  any  lien  created  by  this  act : 

By  payment  and  receipt  therefor,  given 
by  such  claimant,  which,  when  the  same  is 
executed  in  the  presence  of,  and  is  attested  by 
any  officer  entitled  to  take  the  acknowledg- 
ment of  the  execution  of  a  deed,  or  when 
acknowledged  or  proved  before  such  officer, 
shall  be  filed  by  such  clerk,  and  the  words 


2  86 


CONVEYANCES. 


"discharged  by  receipt"  shall  he  entered  by 
him  in  said  lien  docket,  opposite  the  entry  of 
said  lien; 

By  paying  to  said  county  clerk  the 
amount  of  said  claim  with  interest  and  costs; 
which  amount  said  clerk  shall  pay  over  to 
said  claimant; 

By  the  expiration  of  the  time  limited  for 
issuing  a  summons  on  such  lien  claim,  without 
any  summons  being  issued,  or  without  notice 
thereof  endorsed  on  snid  claim  ; 

By  filing  an  affidavit  that  a  notice  from 
the  owner  to  the  chumant,  requiring  such 
claimant  to  commence  suit  to  enforce  such 
lien  in  thirty  days  from  the  service  of  such 
notice;  and  the  lapse  of  thirty  days  after  such 
service  without  such  suit  being  commenced, 
or  without  any  entry  of  the  time  of  issuing 
such  summons  being  made  on  such  claim ; 

When  it  shall  be  made  to  a]i]iear  by 
afifidavit  or  otherwise,  to  the  satisfaction  of 
the  justice  of  the  supreme  court  holding  the 
circuit  court  in  the  county  wherein  said  lien  is 
filed,  that  said  lien  has  been  duly  paid  and 
satisfied,  and  that  the  claimant  under  said 
lien,  and  his  attorney,  have  died  or  removed 
from  this  state  since  the  filing  of  said  lien, 
and  said  lien  still  remains  on  record  as  unsatis- 
fied, the  judge  of  said  court  shall  have  power 
to  forthwith  order  the  clerk  of  said  court  to 
enter  a  discharge  of  said  lien  in  said  lien 
docket,  opposite  the  entry  of  said  lien. 

A  landowner  desiring  to  contest  a 
claim,  and  free  his  property  from  the  lien, 
may  pay  to  the  county  clerk  the  amount  of 
such  claim,  with  six  months'  interest,  and  $2^ 
in  addition  thereto,  with  notice  to  said  clerk 
not  to  pay  over  the  same  until  such  claim  be 
established  by  suit;  which  sum  shall  be  paid 
to  such  claimant  upon  his  obtaining  judgment 
against  such  property  in  the  manner  prescribed, 
and  said  claim  shall  be  a  lien  on  said  money, 
and  said  building  and  lands  shall  be  dis- 
charged therefrom,  and  no  execution  shall 
issue  against  the  same  by  virtue  of  such  judg- 
ment; but  if  such  suit  is  not  commenced 
within  the  time  at  which  the  said  lands  would 
be  discharged  by  the  provisions  of  this  act 
without  suit,  or  in  case  judgment  be  given 
therein  without  being  against  said  lands,  said 
sum  shall  be  repaid  to  him  by  said  clerk,  and 
if  judgment  be  given  against  such  lands  for 
an  amount  less  than  that  so  deposited,  then 
the  surplus  shall  be  returned  by  said  clerk  to 
said  landowner. 

NEW  MEXICO. 

Conveyances,  etc.,  of  any  estate  or  interest  in  lands 
must  be  in  writing,  etc.     See  forms  referred  to  below. 

Acknowledgment.     See  that  title,  ante. 

Married  women  need  not  be  examined  separate 
and  apart  from  their  husbands. 

Recording  is  necessary  to  render  the  conveyance 
valid  against  iona  fide  purchasers,  mortgagees,  etc. 

Seals.     A  scroll  is  sufficient. 

See  Grnrral  Forms,  post. 
NEW  YORK. 

Conveyances  take  effect  from  the  time  of  delivery 
which  must  be  attested.  ' 


The  law  of  New  York  has  been  materially 
changed  so  far  as  concerns  the  transfer  and 
mortgage  of  property.  The  old  common  law 
forms  are  virtually  abolished,  and  new  and 
simplified  ones  substituted  by  the  act  of  1890, 
which  is  as  follows.  It  will  be  seen  to  con- 
tain the  necessary  and  proper  forms  : 

AN  ACT  to  provide  for  short  forms  of 
deeds  and  mortgages. 

Approved  by  the  Governor  June  2,  1890, 
Passed,  three-fifths  being  present. 

The  People  of  the  State  of  New  York,  rep- 
resented in  Senate  and  Assembly,  do  enact  as 
follows: 

Section  i.  In  grants  of  freehold  interests 
in  real  estate  the  following  or  similar  cove- 
nants shall  be  construed  as  follows: 

(1)  A  covenant  that  the  grantor  "  is  seized 
of  the  said  premises  (described)  in  fee  simple, 
and  has  good  right  to  convey  the  same,"  shall 
be  construed  as  meaning  that  such  grantor  at 
the  time  of  the  execution  and  delivery  of  the 
conveyance  is  lawfully  seized  of  a  good,  abso- 
lute and  indefeasible  estate  of  inheritance  in 
fee  simple,  of  and  in  all  and  singular  the 
premises  thereby  conveyed,  with  the  tene- 
ments, hereditaments  and  appurtenances 
thereto  belonging,  and  has  good  right,  full 
power  and  lawful  authority  to  grant  and  con- 
vey the  same  by  the  said  conveyance. 

( 2)  A  covenant  that  the  grantee  "  shall 
quietly  enjoy  the  said  premises,"  shall  be  con- 
strued as  meaning  that  such  grantee,  his  heirs, 
successors  and  assigns  shall  and  may,  at  all 
times  thereafter,  peaceably  and  quietly  have, 
hold,  use,  occupy,  possess  and  enjoy  the  said 
premises,  and  every  part  and  parcel  thereof, 
with  the  appurtenances,  without  any  let,  suit, 
trouble,  molestation,  eviction,  or  disturbance 
of  the  grantor,  his  heirs,  successors  or  assigns, 
or  any  person  or  persons  lawfully  claiming  or 
to  claim  the  same. 

(3)  A  covenant  "  that  the  said  premises  are 
free  from  incumbrances"  shall  be  construed 
as  meaning  that  such  premises  are  free,  clear, 
discharged  and  unincumbered  of  and  from  all 
former  and  other  gifts,  grants,  titles,  charges, 
estates,  judgments,  taxes,  assessments,  liens 
and  incumbrances,  of  what  nature  or  kind 
soever. 

(4)  A  covenant  that  the  grantor  will  "  exe- 
cute, or  procure  any  further  necessary  assur- 
ance of  the  title  to  said  premises"  shall  be 
construed  as  meaning  that  the  grantor  and  his 
heirs,  or  succes.sors,  and  all  and  every  person 
or  persons  whomsoever  lawfully  or  equitably 
deriving  any  estate,  right,  title,  or  interest  of, 
in  or  to  the  premises  conveyed  by,  from,  under, 
or  in  trust  for  him  or  them,  shall  and  will  at 
any  time  or  times  thereafter  upon  the  reasona- 
ble request,  and  at  the  proper  costs  and 
charges  in  the  law  of  the  grantee,  his  heirs, 
succeisors  and  assigns,  make,  do  and  execute 
or  cause  to  be  made,  done  and  executed,  all 


CONVEVaKCES. 


^87 


and  every  such  further  ami  other  lawful  and 
reasonable  acts,  conveyances  and  assurances 
in  the  law  for  ilie  iielter  and  more  effectually 
vesting  and  confirming  the  premises  thereby 
granted  or  so  intended  to  he,  in  and  to  the 
grantee,  his  heirs,  successors  and  assigns  for- 
ever, as  by  the  grantee,  his  heirs,  successors 
or  as-igns,  or  his  or  their  counsel  learned  in 
the  law  shall  be  reasonably  advised  or  re- 
quired. 

(5)  A  covenant  that  the  grantor  "  will  for- 
ever warrant  the  title "  to  the  said  premises 
shall  be  construed  as  meaning  that  the  grantor 
and  his  heirs,  or  successors,  the  premises 
granted,  and  every  part  and  parcel  thereof, 
with  the  appurtenances,  unto  the  grantee,  his 
heirs,  successors  and  assigns,  against  the 
grantor  and  his  heirs  or  successors,  and 
against  all  and  every  person  and  persons 
whomsoever  lawfully  claiming  or  to  claim  the 
same  shall  and  will  warrant  and  forever  de- 
fend. 

(6)  A  covenant  that  the  grantor  *'has  not 
done  or  suffered  anything  whereby  the  said 
premises  have  been  incumbered  in  any  way 
whatever,"  shall  be  construed  as  meaning 
that  the  grantor  has  not  made,  done,  com- 
mitted, executed,  or  suffered  any  act  or  acts, 
thing  or  things  whatsoever,  whereby  or  by 
means  whereof,  the  above-mentioned  and  de. 
scribed  premises,  or  any  part  or  parcel  thereof, 
now  are,  or  at  any  time  hereafter  shall  or  may 
be  impeached,  charged  or  incumbered  in  any 
manner  or  way  whatsoever. 

I  2.  In  any  grant  or  mortgage  of  freehold 
interests  in  real  estate,  the  words  "  together 
with  the  appurtenances  and  all  the  estate  and 
rights  of  the  grantor  in  and  to  said  premises," 
shall  be  construed  as  meaning,  together  with 
all  and  singular  the  tenements,  hereditaments 
and  appurtenances  thereunto  belonging  or  in 
anywise  appertaining,  and  the  reversion  and 
reversions,  remainder  and  remainders,  rents, 
issues  and  profits  thereof,  and  also  all  the 
estate,  right,  title,  interest,  dower,  and  right 
of  dower,  curtesy  and  right  of  curtesy,  prop- 
erty, possession,  claim  and  demand  whatso- 
ever, buth  in  law  and  in  equity,  of  the  said 
grantor  of,  in  and  to  the  said  granted  prem~ 
ises  and  every  part  and  parcel  thereof,  with 
the  appurtenances. 

§  3.  In  any  deed  by  an  executor  of,  ot 
trustee  under  a  will,  the  words  "together 
with  the  appurtenances  and  also  all  the  estate 
which  the  said  testator  had  at  the  time  of  his 
decease  in  said  premises,  and  also  the  estate 
therein  which  said  grantor  has  or  has  powei 
to  convey  or  dispose  of,  whether  individually 
or  by  virtue  of  said  will  or  otherwise,"  shall 
be  construed  as  meaning,  together  with  all 
and  singular  the  tenements,  hereditaments 
and  appurtenances  thereunto  belonging  or  in 
anywise  appertaining,  and  the  reversion  and 
reversions,  remainder  and  remaindere,  rents, 
tasues   and  profits   thereof;  and    also  ail  the 

19 


estate,  right,  title,  interest,  property,  posses- 
sion, claim  and  demand  whatsoever,  both  in 
law  and  equity,  which  the  said  testator  had  in 
his  lifetime,  and  at  the  time  of  his  decease,  or 
which  the  said  grantor  has  or  has  power  to 
convey  or  dispose  of,  whether  individually  or 
by  virtue  of  the  said  last  will  and  testament  or 
otherwise,  of,  in  and  to  the  said  granted 
premises,  and  every  part  and  parcel  thereof, 
with  the  appurtenances. 

^  4.  In  mortgages  of  real  estate  and  iu 
bonds  secured  by  such  mortgages  the  follow- 
ing or  similar  covenants  shall  be  construed  as 
follows : 

(i)  The  words,  "And  it  is  hereby  expressly 
agreed  that  the  whole  of  the  said  principal 
sum  shall  become  due  at  the  option  of  said 
mortgagee  or  obligee  after  default  in  the  pay- 
ment of  interest  for days,  or  after  default 

in   the  payment   of  any  tax  or  assessment  for 

days  after  notice  and  demand,"  shall  be 

construed  as  meaning,  and  it  is  hereby  ex- 
pressly agreed,  that  should  any  default  be 
made  in  the  payment  of  the  said  interest,  or 
of  any  part  thereof  on  any  day  whereon  the 
same  is  made  payable  as  above  expressed,  or 
should  any  tax  or  assessment,  which  now  is 
or  may  be  hereafter  imposed  upon  the  prem- 
ises hereinai'ier  described,  become  due  or 
payable,  and  should   the  said  interest  remain 

unpaid   and   in    arrear  for  the  space  of 

days,  or  such  tax  or  assessment  remain  unpaid 

and  in  arrear  for days  after  written  notice 

by  the  mortgagee  or  obligee,  his  executors, 
administrators,  successors  or  assigns,  that  such 
tax  or  assessment  is  unpaid,  and  demand  for 
the  payment  thereof,  then  and  from  thence- 
forth, that  is  to  say,  after  the  lapse  of  either 
one  of  said  jjcriods,  as  the  case  may  be,  the 
aforesaid  principal  sum,  with  all  arrearage  of 
interest  thereon,  shall,  at  the  option  of  the 
said  mortgagee  or  obligee,  his  executors,  ad- 
ministrators, successors  or  assigns,  become 
and  be  due  and  payable  immediately  there- 
after, although  the  period  above  limited  for 
the  payment  thereof  may  not  then  have  ex- 
pired, anything  thereinbefore  contained  to  the 
contrary  thereof  in  anywise  notwithstanding. 

(2)  A  covenant  that  the  mortgagor  "  will 
pay  the  indebtedness,  as  provided  in  the 
mortgage,  and  if  default  be  made  in  the 
payment  of  any  part  thereof,  the  mortgagee 
shall  have  power  to  sell  the  premises  therein 
described,  according  to  law,"  shall  be  con- 
strued as  meaning  that  the  mortgagor  lor 
himself,  his  heirs,  executors  and  administrator? 
or  successors  doth  covenant  and  agree  to  pay 
to  the  mortgagee,  his  executors,  administra- 
tors, successors  and  assigns  the  principal  sum 
of  money  secured  by  said  mortgage  and  also 
the  interest  thereon  as  provided  by  said 
mortgage.  And  if  default  shall  be  made  in 
the  payment  of  the  said  principal  sum  or  the 
interest  that  may  grow  due  thereon,  or  of  any 
part  thereof,  that  then  and  from  thenceforth  it 


283 


CONVEYANCES. 


shall  be  lawful  for  the  mortgagee,  his  execu- 
tors, administrators  or  successors  to  enter  iHto 
and  upon  all  and  singular  the  premises 
granted,  or  intended  so  to  be,  and  to  sell  and 
dispose  of  the  same,  and  all  benefit  and 
equity  of  redemption  of  the  said  mortgagor, 
his  heirs,  executors,  administrators,  successors 
or  assigns  therein  at  public  auction,  according 
to  the  act  in  such  case  made  and  provided, 
nnd  as  the  attorney  of  the  mortgagor  for  that 
purpose  duly  authorized,  constituted  and  ap- 
pointed to  make  and  deliver  to  the  purchaser 
or  purchasers  thereof  a  good  and  sufficient 
deed  or  deeds  of  conveyance  in  the  law  for 
the  same  in  fee  simple  (or  otherwise,  as  the 
case  may  be)  and  out  of  the  money  arising 
from  such  sale,  to  retain  the  principal  and 
interest  which  shall  then  be  due,  together 
with  the  costs  and  charges  of  advertisement 
and  sale  of  the  said  premises,  rendering  the 
overplus  of  the  purchase  money,  if  any  there 
shall  be,  unto  the  mortgngor,  his  heirs,  execu- 
tors, administrators,  successors,  or  assigns, 
which  sale  so  to  be  made,  shall  forever  be  a 
perpetual  bar  both  in  law  and  equity  against 
the  mortgagor,  his  heirs,  successors  and 
assigns,  and  against  all  other  persons  claiming 
or  to  claim  the  premises  or  any  part  thereof 
by,  from  or  under  him,  them  or  any  of  them. 
(3)  A  covenant  "  that  the  mortgagor  will 
keep  the  buildings  on  the  said  premises  in- 
sured against  loss  by  fire,  for  the  benefit  of 
the  mortgagee,"  shall  be  construed  as  mean- 
ing that  the  mortgagor,  his  heirs,  successors 
and  assigns  will,  during  all  the  time,  until  the 
money  secured  by  the  mortgage  shall  be  fully 
paid  and  satisfied,  keep  the  buildings  erected 
on  the  premises  insured  against  loss  or  dam- 
age by  'fire,  to  an  amount  and  in  a  com- 
pany to  be  approved  of  by  the  mortgagee,  and 
will  assign  and  deliver  the  policy  or  policies 
of  such  insurance  to  the  mortgagee,  his  execu- 
tors, administrators,  successors,  or  assigns,  so 
and  in  such  manner  and  form  that  he  and 
they  shall  at  all  time  and  times,  untd  the  full 
payment  of  said  moneys,  have  and  hold  the 
said  policy  or  policies  as  a  collateral  and  fur- 
ther security  for  the  payment  of  said  money, 
and  in  default  of  so  doing,  that  the  mortgagee 
or  his  executors,  administrators,  successors  or 
assigns,  may  make  such  insurance  from  year 
to  year,  in  a  sum  not  exceeding  the  principal 
sum  for  the  purposes  aforesaid,  and  pay  the 
premium  or  premiums  therefore,  and  that  the 
mortgagor  will  pay  to  the  mortgagee,  his  ex- 
ecutors, administrators,  successors  or  assigns, 
such  premium  or  premiums  so  paid,  with  in- 
terest from  the  time  of  payment,  on  demand, 
and  that  the  same  shall  be  deemed  to  be  se- 
cured by  the  mortgage,  and  shall  be  collecti- 
ble thereupon  and  thereby  in  like  manner  as 
the  principal  moneys,  and  in  default  of  such 
payment  by  the  mortgagor,  his  heirs,  execu- 
tors, administrators,  successors  or  assigns,  or 
of  assignment  and  delivery  of  policies  as 
aforesaid  the  whole  of  the  principal  sum  and 


interest  secured  by  the  mortgage  shall,  at  tbe 
option  of  the  mortgagee,  his  executors,  admin- 
istrators, successors  ur  assigns,  immeiUately 
become  due  and  payable. 

(4)  A  covenant  that  the  mortgagor  '•  will 
execute  any  further  necessary  assurance  of  the 
title  to  said  pretnises,  and  will  forever  warrant 
said  title,"  shall  he  construed  as  meaning  that 
the  mortgagor  shall  and  will  make,  execute, 
acknowledge,  and  deliver  in  due  form  of  law, 
all  such  further  or  otlier  deeds  or  assurances 
as  may  at  any  lime  hereafter  be  reasonably 
desired  or  required  for  the  more  fully  and 
effectually  conveying  the  premises  by  the 
mortgage  described  and  thereby  granted  or 
intended  so  to  be,  unto  the  said  mortgagee, 
his  executors,  administrators,  successois  or 
assicrns,  for  the  purjiose  aforesaid,  and  unto  all 
and  every  person  or  persons,  corporation  or 
corporations,  deriving  any  estate,  right,  title 
or  interest  therein,  under  the  said  indenture 
of  mortgage  or  the  power  of  sale  therein 
contained,  and  the  said  granted  premises 
against  the  said  mortgagor,  and  all  persons 
claiming  through  him  will  warrant  and 
defend. 

§  5.  All  covenants  contained  in  any  grant 
or  mortgage  of  real  estate  shall  bind  the  heirs, 
executors,  successors,  administrators  and  as- 
signs of  the  grantor  or  mortgaijor,  and  shall 
inure  to  the  benefit  of  the  heirs,  executors, 
administrators,  successors  and  assigns  of  the 
grantee  or  mortgagee,  in  the  same  manner 
and  to  the  same  extent,  and  with  like  eflect, 
as  if  such  heirs,  executors,  administrators, 
successors  and  assigns  were  so  named  in  such 
covenants,  unless  otherwise  in  said  grant  or 
mortgage  expressly  provided. 

§  6.  The  schedules  hereto  annexed  contain 
forms  of  instruments  such  as  are  authorized 
by  this  act,  and  shall  be  taken  as  a  part 
thereof,  but  nothing  herein  contained  shall 
invalidate  or  prevent  the  use  of  other  forms. 

^  7.  The  register  or  county  clerk  of  the 
county  of  New  York  and  the  county  of  Kings 
shall  be  entitled  to  charge  for  the  recording 
of  any  instrument  containing  the  above-men-, 
tioned  covenants,  or  any  of  them  at  large, 
instead  of  the  short  forms  thereof,  in  this  act 
contained,  the  sum  of  five  dollars  in  addition 
to  the  fee  chargeable  by  law  for  such  re- 
cording. 

5  8.  All  existing  acts  and  parts  of  acts 
inconsistent  with  this  act  are  repealed. 

2  9.  This  act  shall  take  effect  the  first  day 
of  September,  eighteen  hundred  and  ninety. 

SCHEDULE  A. 
need  wltb  Full  Covennnts. 

THIS  INDENTURE,  made    the  day  of 

,  in  the    year    eighteen    hundred    and    

between  of  (insert  occupation  and  resi- 
dence) of  the  first  part,  and  of  (insert  occu- 
pation and  residence)  of  the  second  part, 

WITNESSETH,  that  the  said  party  of  the 
first  part,  in  consideration  of  —  dollars,  lawful 
money  of  the  United  States,  paid  by  the  party 
of  the  second  part,  doth  hereby  grant  and  re- 
lease unto  the  said  party  of  the  second  part,  his 


CONVEYANCES. 


289 


heirs  and  assigns  forever  (description),  together 
with  the  appurtenances  and  all  the  estate  and 
rights  of  the  party  of  the  first  part  in  and  to 
said  premises. 

TO  HAVE  AND  TO  HOLD  the  above  granted 
premises  unto  the  said  party  of  the  second  part, 
his  heirs  and  assigns  forever. 

And  the  said  party  of  the  first  part  doth  cove- 
nant with  said  party  of  the  second  part  as  fol- 
lows : 

First.— That  the  party  of  the  first  part  is  seized 
of  the  said  premises  in  fee  simple,  and  has  good 
right  to  convey  the  same. 

Second. — That  the  party  of  the  second  part 
shall  quietly  enjoy  the  said  premises. 

Third. — That  the  said  premises  are  free  from 
incumbrances. 

Fourth.— That  the  party  of  the  first  part  will 
execute  or  procure  any  further  necessary  assur- 
ance of  the  title  to  said  premises. 

Fifth.— That  the  party  of  the  first  part  will 
torever  warrant  the  title  to  said  premises. 

IN  WITNESS  WHEREOF,  the  said  party  of 
the  first  part  hath  hereunto  set  his  hand  and 
seal  the  day  and  year  first  above  written. 

In  the  presence  of: 

i«C'HEDVL.E  B. 

Execntor'M  Deed. 

THIS  INDENTURE,   made  the  day  of 

eighteen   hundred    and   between   

as  executor  of  the  last  will  and  testament  of 
• late  of  deceased,  of  the  first  part,  and 

of of  the  second  part,  witnesseth  : 

That  the  said  party  of  the  first  part,  by  virtu* 

of  the  power  and  authority  to  him  given  in  and   j 
by  the  said  last  will  and  testament,  and  in  con- 
sideration of dollars,  lawful  money  of  the 

United  States  paid  by  the  said  party  of  the  sec- 
ond part,  doth  hereby  grant  and  release  unto 
the  said  party  of  the  second  part,  his  heirs  and 
assigns  forever  (description),  together  with  the 
appurtenances,  and  also  all  the  estate  which  the 
said  testator  had  at  the  time  of  his  decease  in 
said  premises,  and  also  the  estate  therein, 
which  the  said  party  of  the  first  part  has  or  has 
power  to  dispose  of,  whether  individually,  or  by 
virtue  of  said  will  or  otherwise. 

TO  HAVE  AND  TO  HOLD  the  above  granted 
premises  unto  the  said  party  of  the  second  part, 
his  heirs  and  assigns  forever 

And  the  said  party  of  the  first  part  covenants 
with  said  party  of  the  second  part  that  the  party 
of  the  first  part  has  not  done  or  suffered  any- 
thing whereby  the  said  premises  have  been  in- 
cumbered in  way  whatever. 

IN  WITNESS  WHEREOF  the  said  party  of 
the  first  part  has  hereunto  set  his  hand  and  seal 
the  day  and  year  first  above  written. 

In  the  presence  of: 

SCHEBUI.E  C. 

THIS   INDENTURE,   made   the   day  of 

in    the    year  eighteen    hundred    and    

between  of party  of  the  first  part,  and 

of ,  party  of  the  second  part. 

WHEREAS,  the  said  is  justly  indebted 

to  the  said  party  of  the  second  part  in  the  sum 

of  dollars,  lawful    money    of   the    United 

States,  secured  to  be  paid  by  his  certain  bond 
or  obligation,  bearing  even  date  herewith,  con- 
ditioned  for   the   payment  of  the  said  sum   of 

dollars,   on   the  day  of  eighteen 

hundred   and  ,  and  the  interest  thereon,  to 

be  computed  from  at  the  rate   of  per 

centum  per  annum,  and  to  be  paid. 

It  being  thereby  expressly  agreed  that  the 
whole  of  the  said  principal  sum  shall  become 
due  after  default  in  the  payment  of  interest, 
tax»s  or  assessments,  as  hereinafter  provided. 

NOW  THIS  INDENTURE  WITNESSETH, 
that  the  said  party  of  the  first  part  for  the  bet- 
ter securing  the  payment  of  the  said  sum  of 
money  mentioned  in  the  condition  of  the  said 
bond  or  obligation,  with  interest  thereon,  and 
also  for  and  in  consideration  of  one  dollar  paid 


by  the  said  party  of  the  second  part,  the  receipt 
virhereof  is  hereby  acknowle<^ged,  doth  hereby 
grant  and  release  unto  the  said  party  of  the  sec- 
ond part,  and  to  his  heirs  (or  successors)  and 
assigns  forever  (description),  together  with  the 
appurtenances,  and  all  the  estate  and  rights  of 
the  party  of  the  first  part  in  and  to  said  prem- 
ises. 

TO  HAVE  AND  TO  HOLD  the  above  granted 
premises  unto  the  said  party  of  the  second  part, 
his  heirs  and  assigns  forever. 

PROVIDED  ALWAYS,  that  if  the  said  party 
of  the  first  part,  his  heirs,  executors  or  adminis- 
trators, shall  pay  unto  the  said  party  of  the 
second  part,  his  executors,  administrators  or 
assigns,  the  said  sum  of  money  mentioned  in 
the  condition  of  the  said  bond  or  obligation,  and 
the  interest  thereon,  at  the  time  and  in  the 
manner  mentioned  in  the  said  condition,  that 
then  these  presents,  and  the  astate  hereby 
granted,  shall  cease,  determine  and  be  void. 

And  the  said  party  of  the  first  part  covenants 
with  the  party  of  the  second  part  as  follows  : 

First. — That  the  party  of  the  first  part  will  pay 
the  indebtedness  as  hereinbefore  provided,  and 
if  default  be  made  in  the  payment  of  any  part 
thereof,  the  party  of  the  second  part  shall  have 
power  to  sell  the  premises  therein  described, 
according  to  law. 

Second. — That  the  party  of  the  first  part  will 
keep  the  buildings  on  the  said  premises  insured 
against  loss  by  fire  for  the  benefit  of  the  mort- 
gagee. 

Third. — And  it  is  hereby  expressly  agreed  that 
the  whole  of  said  principal  sum  shall  become 
due  at  the  option  of  the  said  party  of  the  second 
part  after  default  in  the  payment  of  interest  for 

days  after  default  in  the  payment  of  any 

tax  or  assessment  for days,  after  notice  and 

demand. 

IN  WITNESS  WHEREOF,  the  said  party  of 
the  first  part  hath  hereunto  set  his  hand  and 
seal,  the  day  and  year  first  above  written. 

In  the  presence  of: 

Admlniiiitratloii  of  Decedent's  Estate. 

Letters  of  admini.stralion  and  letters  te.sta- 
mentary  are  issued  by  the  surrogate.  Admin- 
istrators are  required  to  give  bond ;  execu- 
tors are  not  required  to  give  bond  unless  objec- 
tion is  made  and  tlie  surrogate  satisfied  that 
his  circumstances  are  such  that  they  do  not 
afford  adequate  security  to  the  creditors  or 
persons  interested  for  the  due  administration 
of  the  estate,  and  where  he  is  not  a  resident 
of  the  State.  The  testator  may,  by  provision 
in  his  will,  relieve  a  non-resident  executor 
from  giving  bonds.  Before  letters  of  admin- 
istration or  testamentary  are  issued  all  heirs 
and  legatees  are  cited  by  the  surrogate  to  ap- 
pear and  object,  if  they  desire.  Citations  are 
served  personally  or  by  publication. 

Dttscent  and  Distrlbatlon  of  the  Prop- 
erty of  Decedents. 

1.  Real  estate.  Widow  has  common- 
law  dower.  Husband  has  courtesy  in  property 
of  which  wife  dies  seized.  (See  Married 
Women.)  Real  estate  of  intestate  descends  :  i . 
To  lineal  descendants:  2.  To  father;  3.  To 
mother;  4.  To  collaterals.  Descendants  take 
shares  of  parents,  except  when  all  are  of  equal 
consanguinity,  when  all  share  alike. 

2.  Personal  estate.  After  debts  are  paid, 
personal  property  is  distributed  :  i.  One-third 
to  the  widow  and  the  residue  to  children  or 
their  heirs  or  legal  representatives ;  2.  If 
there  are  no  children,  one-half  is  given  to  the 


290 


CONVEYANCES. 


widow  and  the  other  to  the  next  of  kin  ;  3.  If 
there  is  no  descendant,  parent,  brother,  sister, 
nephew  or  niece,  the  widow  takes  all ;  4.  If 
there  is  no  widow,  the  children  and  their  rep- 
resentatives take  all;  5.  If  there  is  no  widow 
or  children,  all  goes  to  the  next  of  kin;  post- 
humous children  take  as  survivors ;  married 
women's  personal  estates  are  distributed  as 
men's,  the  husband  taking  to  the  same  extent 
as  a  widow. 

ILTES  I.ATF   OF  NEW   YORK. 

Mechanics'  lien  on  real  property. — A 
contractor,  sub-contractor,  laborer  or  material- 
man, who  performs  labor  or  furnishes  materials 
for  the  improvement  of  real  property  with  the 
consent  or  at  the  request  of  the  owner  thereof, 
or  of  his  agent,  contractor  or  sub-contractor, 
shall  have  a  lien  for  the  principal  and  interest 
of  the  value,  or  the  agreed  price,  of  such  la- 
bor or  materials  upon  the  real  property  im- 
proved or  to  be  improved  and  upon  such  im- 
provement, from  the  time  of  filing  a  notice  of 
such  lien,  as  prescribed  in  this  article. 

Extent  of  lien. — Such  lien  shall  extend  to 
the  owner's  right,  title  or  interest  in  the  real 
property  and  improvements,  existing  at  the 
time  of  filing  the  notice  of  lien.  If  an  owner 
assigns  his  interest  in  such  real  property  by  a 
general  assignment  for  the  benefit  of  creditors, 
within  thirty  days  prior  to  such  filing,  the  lien 
shall  extend  to  the  interest  thus  assigned.  If 
labor  is  performed  for,  or  materials  furnished 
to,  a  contractor  or  sub-contractor  for  an  im- 
provement, the  lien  shall  not  be  for  a  sum 
greater  than  the  sum  earned  and  unpaid  on 
the  contract  at  the  time  of  filing  the  notice  of 
lien,  and  any  sum  subsequently  earned  thereon. 
In  no  case  shall  the  owner  be  liable  to  pay  by 
reason  of  all  liens  created  pursuant  to  this  ar- 
ticle a  sum  greater  than  the  value  or  agreed 
price  of  the  labor  and  materials  remaining  un- 
paid, at  the  time  of  filing  notices  of  such 
liens,  except  as  hereinafter  provided. 

Liens  under  contracts  for  public  im- 
provements.— A  person  performing  labor  for 
or  furnishing  materials  to  a  contractor,  his  sub- 
contractor or  legal  representative,  for  the  con- 
struction of  a  public  improvement  pursuant  to 
a  contract  by  such  contractor  with  the  state  or 
a  municipal  corporation,  shall  have  a  lien  for 
the  principal  and  interest  of  the  value  or 
agreed  price  of  such  labor  or  materials  upon 
the  moneys  of  such  corporation  applicable  to 
the  construction  of  such  improvement,  to  the 
extent  of  the  amount  due  or  to  become  due 
on  such  contract,  upon  filing  a  notice  of  lien 
as  prescribed  in  this  article. 

Liens  for  labor  on  railroads. — Any  per- 
son who  shall  hereafter  perform  any  labor  for 
a  railroad  corporation  shall  have  a  lien  for  the 
value  of  such  labor  upon  the  railroad  track, 
rolling  stock  and  appurtenances  of  such  rail- 
road corporation  and  upon  the  land  upon 
which  such  railroad  track  and  appurtenances 
are  situated,  by  filing  a  notice  of  such  lien  in 


the  office  of  the  clerk  of  any  county  wherein 
any  part  of  such  railroad  is  situated,  to  the  ex- 
tent of  the  right,  title  and  interest  of  such  cor- 
poration in  such  property,  existing  at  the  time 
of  such  filing.  The  lien  must  be  properly 
filed. 

Liability  of  owner  for  advance  pay- 
ments, collusive  mortgages  and  incum- 
brances.— Any  payment  by  the  owner  to  a 
contractor  upon  a  contract  for  the  improve- 
ment of  real  property,  made  prior  to  the  time 
when,  by  the  terms  of  the  contract,  such  pay- 
ment becomes  due,  for  the  purpose  of  avoiding 
the  provisions  of  this  article,  shall  be  of  no 
effect  as  against  the  lien  of  a  sub-contractor, 
laborer  or  materialman  under  such  contract, 
created  before  such  payment  actually  becomes 
due. 

Terms  of  contract  maybe  demanded. — 
A  statement  of  the  terms  of  a  contract  pur- 
suant to  which  an  improvement  of  real  prop- 
erty is  being  made,  and  of  the  amount  due  or 
to  become  due  thereon,  shall  be  furnished 
upon  demand,  by  the  owner,  or  his  duly  au- 
thorized agent,  to  a  sub-contractor,  laborer  or 
materialman  performing  labor  for  or  furnish- 
ing materials  to  a  contractor,  his  agent  or  sub- 
contractor, under  such  contract. 

Contents  of  notice  of  lien. — The  notice 
of  lien  shall  state  : 

1.  The  name  and  residence  of  the  lienor. 

2.  The  name  of  the  owner  of  the  real  prop- 
erty against  whose  interest  therein  a  lien  is 
claimed,  and  the  interest  of  the  owner  as  far 
as  known  to  the  lienor. 

3.  The  name  of  the  person  by  whom  the 
lienor  was  employed,  or  to  whom  he  furnished 
or  is  to  furnish  materials  ;  or,  if  the  lienor  is  a 
contractor  or  sub-contractor,  the  person  with 
whom  the  contract  was  made. 

4.  The  labor  performed  or  to  be  performed, 
or  materials  furnished  or  to  be  furnished  and 
the  agreed  price  or  value  thereof. 

5.  The  amount  unpaid  to  the  lienor  for  such 
labor  or  materials. 

6.  The  time  wheu  the  first  and  last  items 
of  work  were  performed  and  materials  were 
furnished. 

7.  The  property  subject  to  the  lien,  with  a 
description  thereof  sufficient  for  identification ; 
and  if  in  a  city  or  village,  its  location  bystreet 
and  number,  if  known.  A  failure  to  state  the 
name  of  the  true  owner  or  contractor,  or  a  mis- 
description of  the  true  owner,  shall  not  affect 
the  validity  of  the  lien.  The  notice  must  be 
verified  by  the  lienor  or  his  agent,  to  the  effect 
that  the  statements  therein  contained  are  true 
to  his  knowledge,  except  as  to  the  matters 
therein  stated  to  be  alleged  on  information 
and  belief,  and  that  as  to  those  matters  he  be- 
lieves it  to  be  true. 

Filing  of  notice. — The  notice  of  lien  may 
be  filed  at  any  time  during  the  progress  of  the 
work  and  the  furnishing  of -the  materials,  or 
within  ninety  days  after  the  completion  of  the 
contract,  or  the  final  performance  of  the  work, 


CONVEYANCES. 


291 


or  the  final  furnishing  of  the  materials,  dating 
from  the  last  item  of  work  performed  or  ma- 
terials furnished.  The  notice  of  lien  must  be 
filed  in  the  clerk's  office  of  the  county  where 
the  property  is  situated.  If  such  property  is 
situated  in  two  or  more  counties,  (he  notice  of 
lien  shall  be  filed  in  the  office  of  the  clerk  of 
each  of  such  counties. 

Service  of  copy  of  notice. — At  any  time 
after  filing  the  notice  of  lien,  the  lienor  may 
serve  a  copy  of  such  notice  upon  the  owner, 
by  delivering  the  same  to  him  personally,  or 
if  the  owner  cannot  be  found,  to  his  agent  or 
attorney,  or  by  leaving  it  at  his  last  known 
place  of  residence  in  the  city  or  town  in 
which  the  real  property  or  some  part  thereof 
is  situated,  with  a  person  of  suitable  age  and 
discretion,  or  by  registered  letter  addressed 
to  his  last  known  place  of  residence,  or,  if 
such  owner  has  no  such  residence  in  such  city 
or  town,  or  cannot  be  found,  and  he  has  no 
agent  or  attorney,  by  affixing  a  copy  thereof 
conspicuously  on  such  property,  between  the 
hours  of  nine  o'clock  in  the  forenoon  and 
four  o'clock  in  the  afternoon. 

Notice  of  lien  on  account  of  public 
improvements. — At  any  time  before  the  con- 
struction of  a  public  improvement  is  com- 
pleted and  accepted  by  the  municipal  corpor- 
ation, and  within  thirty  days  after  such  com- 
pletion and  acceptance,  a  person  performing 
work  for  or  furnishing  materials  to  a  con- 
tractor, his  sub-contractor,  assignee  or  legal 
representative,  may  file  a  notice  of  lien  with 
the  head  of  the  departmeiU  or  bureau  having 
charge  of  such  construction  and  with  the 
financial  officer  of  the  municipal  corporation, 
or  other  officer  or  person  charged  with  the  cus- 
tody and  disbursements  of  the  corporate  funds 
applicable  to  the  contract  under  which  the 
claim  is  made.  To  be  valid  the  notice  shall 
contain  certain  required  information. 

Priority  of  liens. — A  lien  for  materials 
furnished  or  labor  performed  in  the  improve- 
ment of  real  property  shall  have  priority  over 
a  conveyance,  judgment  or  other  claim  against 
such  property  not  recorded,  docketed  or  filed 
at  the  time  of  filing  the  notice  of  such  lien; 
over  advances  made  upon  any  mortgage  or 
other  incumbrance  thereon  after  such  filing ; 
and  over  the  claim  of  a  creditor  who  has  not 
furnished  materials  or  performed  labor  upon 
such  property,  if  such  property  has  been  as- 
signed by  the  owner  by  a  general  assignment 
for  the  benefit  of  creditors,  within  thirty  days 
before  the  filing  of  such  notice.  Such  liens 
shall  also  have  priority  over  other  advances 
under  certain  conditions.  Persons  standing 
in  equal  degrees  as  co-laborers  or  materialmen 
shall  have  priority  according  to  the  date  of 
filing  their  respective  liens;  but  in  all  cases 
laborers  for  daily  or  weekly  wages  shall  have 
preference  over  all  other  claimants  under  this 
article,  without  reference  to  the  time  when 
such  laborers  shall  have  filed  their  notices  of 
Uen§. 


Assignment  of  lien. — A  lien  properly  filed 
may  be  assigned  by  a  written  instrument  signed 
and  acknowledged  by  the  lienor,  at  any  time 
before  the  discharge  thereof.  To  be  valid  the 
filing  of  the  lien  must  conform  to  certain  re- 
quirements. 

Assignments  of  contracts  and  orders  to 
be  filed. — No  assignment  of  a  contract  for 
the  performance  of  labor  or  the  furnishing  of 
materials  for  the  improvement  of  real  property 
or  of  the  money  or  any  part  thereof  due  or  to 
become  due  therefor,  nor  an  order  drawn  by  a 
contractor  or  sub-contractor  upon  the  owner 
of  such  real  property  for  the  payment  of  such 
money,  shall  be  valid  until  the  contract,  or  a 
statement  containing  the  substance  thereof  and 
such  assignment  or  a  copy  of  each  or  a  copy 
of  such  order,  be  filed  in  the  office  of  the 
county  clerk  of  the  county  wherein  the  real 
property  improved  or  to  be  improved  is  situ- 
ated, and  such  contract,  assignment  or  order 
shall  have  effect  and  be  enforceable  from  the 
time  of  such  filing. 

Duration  of  lien. — No  lien  specified  in  this 
article  shall  be  a  lien  for  a  longer  period  than 
one  year  after  the  notice  of  lien  has  been  filed, 
unless  within  that  time  an  action  is  commenced 
to  foreclose  the  lien,  and  a  notice  of  the  pen- 
dency of  such  action,  whether  in  a  court  of 
record  or  in  a  court  not  of  record,  is  filed  with 
the  county  clerk  of  the  county  in  which  the 
notice  of  lien  is  filed,  containing  the  names  of 
the  parties  to  the  action,  the  object  of  the  ac- 
tion, a  brief  description  of  the  real  property 
affected  thereby,  and  the  time  of  filing  the 
notice  of  lien  ;  or  unless  an  order  be  granted 
within  one  year  from  the  filing  of  such  notice 
by  a  court  of  record,  continuing  such  lien,  and 
such  lien  shall  be  redocketed  as  of  the  date  of 
granting  such  order  and  a  statement  made 
that  such  lien  is  continued  by  virtue  of  such 
order.  For  the  lien  to  continue  valid  certain 
subsequent  requirements  must  be  complied 
with. 

Duration  of  Hen  under  contract  for  a 
public  improvement. — If  the  lien  is  for 
labor  done  or  materials  furnished  for  a  public 
improvement,  it  shall  not  continue  for  a  longer 
period  than  three  months  from  the  time  of 
filing  the  notice  of  such  lien,  unless  an  action 
is  commenced  to  foreclose  such  lien  within 
that  time,  and  a  notice  of  the  pendency  of 
such  action  is  filed  with  the  financial  officer 
of  the  municipal  corporation,  with  whom  the 
notice  of  lien  was  filed. 

Discharge  of  lien  generally. — A  lien 
other  than  a  lien  for  labor  performed  or  ma- 
terials furnished  for  a  public  improvement 
specified  in  this  article  may  be  discharged  as 
follows : 

1.  By  the  certificate  of  the  lienor,  duly  ac- 
knowledged or  proved  and  filed  in  the  office 
where  the  notice  of  lien  is  filed,  stating  that 
the  lien  is  satisfied  and  may  be  discharged. 

2.  By  failure  to  begin  an  action  to  foreclose 
such  Hen  or  to  secure  an  order  continuing  it, 


293 


CONVEYANCES. 


within  one  year  from  the  time  of  filing  the 
notice  of  lien. 

3.  By  order  of  the  court  vacating  or  can- 
celling such  lien  of  record,  for  neglect  of  the 
lienor  to  prosecute  the  same,  granted  pursuant 
to  the  code  of  civil  procedure. 

4.  Either  before  or  after  the  beginning  of  an 
action  by  the  owner  executing  an  undertaking 
with  two  or  more  sufficient  sureties,  who  shall 
be  freeholders,  to  the  clerk  of  the  county 
where  the  premises  are  situated.  The  under- 
taking shall  be  in  accordance  with  certain  re- 
quirements. 

Discharge  of  lien  by  payment  of  money 
into  court. — A  lien  specified  in  this  article, 
other  than  a  lien  for  performing  labor  or  fur- 
nishing materials  for  a  public  improvement,  may 
be  discharged,  at  any  time  before  an  action  is 
commenced  to  foreclose  such  lien,  by  deposit- 
ing with  the  county  clerk,  in  whose  office  the 
notice  of  lien  is  filed,  a  sum  of  money  equal 
to  the  amount  claimed  in  such  notice,  with  in- 
terest to  the  time  of  such  deposit.  After  such 
action  is  commenced  the  lien  may  be  dis- 
charged by  a  payment  into  court  of  such  sum 
of  money,  as,  in  the  judgment  of  the  court  or 
a  judge  or  justice  thereof,  after  at  least  five 
days'  notice  to  all  the  parties  to  the  action, 
will  be  sufficient  to  pay  any  judgment  which 
may  be  recovered  in  such  action.  Upon  any 
such  payment,  the  county  clerk  shall  forth- 
with enter  upon  the  lien  docket  and  against 
the  lien  for  the  discharge  of  which  such 
moneys  were  paid,  the  words  "  discharged  by 
payment."  This  deposit  money  shall  be  re- 
funded after  the  lien  has  been  discharged  pur- 
suant to  law. 

Discharge  of  lien  for  public  improve- 
ment.— A  lien  against  the  amount  due  or  to 
become  due  a  contractor  from  a  municipal 
corporation  for  the  construction  of  a  public 
improvement  may  be  discharged  as  follows : 

1.  By  filing  a  certificate  of  the  lienor  or  his 
successor  in  interest,  duly  acknowledged  and 
proved,  stating  that  the  lien  is  discharged. 

2.  By  lapse  of  time,  when  three  months 
have  elapsed  since  filing  the  notice  of  lien, 
and  no  action  has  been  commenced  to  en- 
force the  lien. 

3.  By  satisfaction  of  a  judgment  rendered 
in  an  action  to  enforce  the  lien. 

4.  By  the  contractor  depositing  with  the 
financial  officer  of  the  municijial  corporation, 
or  the  officer  or  person  with  whom  the  notice 
of  lien  is  filed,  such  a  sum  of  money  as  is  di- 
rected by  a  justice  of  the  supreme  court, 
which  shall  not  be  less  than  the  amount 
claimed  by  the  lienor,  with  interest  thereon 
for  the  term  of  one  year  from  the  time  of 
making  such  deposit,  and  such  additional 
amount  as  the  justice  deems  sufficient  to  cover 
all  costs  and  expenses.  The  amount  so  de- 
posited shall  remain  with  such  financial  officer 
or  other  officer  or  person  until  the  lien  is  dis- 
charged as  prescribed  in  subdivisions  one,  two 
or  three  of  this  section. 


Building  loan  contract. — A  contract  for 
the  sale  of  land  with  a  building  loan  and  any 
modification  thereof  must  be  in  writing,  and 
within  ten  days  after  its  execution  be  filed  in 
the  office  of  the  clerk  of  the  county  in  which 
any  part  of  the  land  is  situated.  If  not  so 
filed,  the  interest  of  each  party  to  such  con- 
tract in  the  real  property  affected  thereby  is 
subject  to  the  lien  and  claim  of  a  person  who 
shall  thereafter  file  a  notice  of  lien  under  this 
chapter.  A  modification  of  such  contract 
shall  not  affect  or  impair  the  right  or  interest 
of  a  person,  who,  previous  to  the  filing  of  such 
modification,  had  furnished  or  contracted  to 
furnish  materials,  or  had  performed  or  con- 
tracted to  perform  labor  for  the  improvement 
of  the  real  property,  but  such  right  or  interest 
shall  be  determined  by  the  original  contract. 

Construction  of  article. —  This  article  is 
to  be  construed  liberally  to  secure  the  bene- 
ficial interests  and  purposes  thereof.  A  sub- 
stantial compliance  with  its  several  provisions 
shall  be  sufficient  for  the  validity  of  a  lien  and 
to  give  jurisdiction  to  the  courts  to  enforce  the 
same. 

Enforcement  of  mechanics'  liens. — The 
mechanics'  liens  specified  in  this  article  may 
be  enforced  against  the  property  specified  in 
the  notice  of  lien  and  which  is  subject  thereto 
and  against  any  person  liable  for  the  debt 
upon  which  the  lien  is  founded.  The  code  of 
civil  procedure  regulates  and  provides  for  such 
enforcement. 

Liens  on  monuments,  gravestones  and 
cemetery  structures. — A  person  furnishing 
or  placing  in  a  cemetery  or  burial  ground  a 
monument,  gravestone,  inclosure  or  other 
structure,  has  a  lien  thereon  for  the  agreed 
price  thereof  or  the  part  remaining  unpaid, 
with  interest  from  the  time  the  amount  was 
due,  upon  filing  with  the  superintendent  or 
person  in  charge  of  such  cemetery  or  burial 
ground  a  notice  of  lien  as  provided  by  law 

Lien  for  labor  performed  in  quarrying, 
dressing  and  cutting  stone. — A  person  em- 
ployed in  a  quarry,  yard  or  dock  at  excavat- 
ing, quarrying,  dressing  or  cutting  sandstone, 
granite,  biuestone,  or  marble,  may  have  a  lien 
upon  such  sandstone,  granite,  biuestone  or 
marble,  for  the  amount  due  for  the  labor  ex- 
pended thereon,  upon  filing  a  notice  of  lien 
in  the  office  where  a  chattel  mortgage  upon 
such  sandstone,  granite,  biuestone  or  marble 
is  required  to  be  filed,  as  provided  in  this 
chapter.  Such  notice  must  be  filed  within 
thirty  days  after  the  completion  of  such  labor, 
and  must  state  amount  due,  and  name  and 
residence  of  lienor,  and  of  person  for  whom 
labor  was  performed. 

Duration  and  effect  of  lien. — Such  lien 
shall  terminate  unless  an  action  is  brought  to 
enforce  the  same  within  three  months  after  the 
date  of  filing  such  notice,  as  provided  in  the 
code  of  civil  procedure  for  theenforcement  of 
a  lien  upon  a  chattel.  If  the  labor  on  such 
sandstone,  granite,  biuestone  or  marble  is  per» 


CONVEYANCES. 


293 


formed  for  a  contractor  under  a  contract  with 
the  owner  of  such  quarry,  yard  or  dock,  the 
owner  shall  not  be  liable  to  pay  by  reason  of 
all  the  liens  filed  against  such  quarry,  yard  or 
dock  a  greater  sum  than  the  amount  unpaid 
upon  such  contract  at  the  time  of  filing  such 
notices,  or  in  case  there  is  no  contract,  then 
the  aggregate  amount  unpaid  of  the  value  of 
labor  and  services  performed,  pursuant  to  the 
preceding  section.  The  lien  created  by  this 
article  shall  not  attach  to  any  material  which 
shall  have  become  a  part  of  any  building  or 
structure,  or  ceased  to  be  the  property  of  the 
person  for  whom  such  labor  was  performed. 

Discharge  of  lien. — Such  lien  may  be  dis- 
charged by  a  payment  of  the  amount  due 
thereon,  by  a  failure  to  bring  an  action  to  en- 
force the  same  within  the  time  prescribed  in 
the  preceding  section,  by  the  written  consent 
of  the  lienor,  duly  acknowledged  and  filed 
with  the  proper  officer,  to  the  effect  that  such 
lien  may  be  discharged,  and  by  the  owner  of 
such  sandstone,  granite,  bluestone  or  marble 
filing  with  such  officer  an  undertaking  in  an 
amount  equal  to  twice  the  sum  specified  in 
the  notice  of  lien,  executed  by  one  or  more 
sureties,  who  shall  justify  in  such  amount 
and  approved  by  the  officer  with  whom  the 
notice  of  lien  is  filed,  conditioned  for  the  pay- 
ment of  the  sum  due  such  lienor  by  reason 
of  such  lien,  and  the  costs  and  expenses  of 
enforcing  same. 

Artisans'  lien  on  personal  property. — 
A  person  who  makes,  alters,  repairs  or  in  any 
way  enhances  the  value  of  an  article  of  per- 
sonal property,  at  the  request  or  with  the  con- 
sent of  the  owner,  has  a  lien  on  such  article, 
while  lawfully  in  possession  thereof,  for  his 
reasonable  charges  for  the  work  done  and  ma- 
terials furnished,  and  may  retain  possession 
thereof  until  such  charges  are  paid. 

Liens  of  hotel,  inn,  boarding  and  lodg- 
ing house  keepers. — A  keeper  of  a  hotel, 
inn,  boarding  house  or  lodging  house,  except 
an  emigrant  lodging  house,  has  a  lien  upon, 
while  in  possession,  and  may  detain  the  bag- 
gage and  other  property  brought  upon  their 
premises  by  a  guest,  boarder  or  lodger,  for  the 
proper  charges  due  from  him,  on  account  of 
his  accommodation,  board  and  lodging,  and 
such  extras  as  are  furnished  at  his  request.  If 
the  keeper  of  such  hotel,  inn,  boarding  or 
lodging  house  knew  that  the  property  so 
brought  upon  his  premises  was  not,  when 
brought,  legally  in  possession  of  such  guest, 
boarder  or  lodger,  a  lien  thereon  does  not 
exist. 

Factors'  lien  on  merchandise. — A  per- 
son, in  whose  name  any  merchandise  shall  be 
shipped,  is  deemed  the  true  owner  thereof  so 
far  as  to  entitle  the  consignee  of  such  mer- 
chandise to  a  lien  thereon. 

I.  For  any  money  advanced  or  negotiable 
security  given  by  such  consignee,  to  or  for  the 
use  of  the  person  in  whose  name  such  ship- 
rnent  is  made ; 


2.  For  any  money  or  negotiable  security  re- 
ceived by  the  person  in  whose  name  such  ship- 
ment is  made,  to  or  for  the  use  of  such  con- 
signee. 

Such  lien  does  not  exist  where  the  consig- 
nee has  notice,  by  the  bill  of  lading  or  other- 
wise, when  or  before  money  is  advanced  or 
security  is  given  by  him,  or  when  or  before 
such  money  or  security  is  received  by  the  per- 
son in  whose  name  the  shipment  is  made,  that 
such  person  is  not  the  actual  and  bona  fide 
owner  thereof. 

Warehouse  liens. — A  warehouse  com- 
pany, warehouseman  or  other  person  lawfully 
engaged  in  the  business  of  storing  goods, 
wares  and  merchandise  for  hire  has  a  lien  on 
goods  deposited  and  stored  with  him  for  his 
storage  charges,  and  for  moneys  advanced  by 
him  for  cartage,  labor,  weighing  and  coopering 
in  relation  to  such  goods,  or  other  goods  be- 
longing to  the  same  owner ;  and  he  may  de- 
tain such  goods  until  his  lien  is  paid. 

Lien  of  bailee  of  animals. — A  person 
keeping  a  livery  stable,  or  boarding  stable,  for 
animals,  or  pasturing  or  boarding  one  or  more 
animals,  has  a  lien  dependent  upon  possession 
upon  each  animal  kept,  pastured  or  boarded 
by  him  under  an  agreement  with  the  owner 
thereof,  whether  such  owner  be  a  mortgagor 
remaining  in  possession  or  otherwise,  for  the 
sum  due  him  for  the  care,  keeping,  boarding 
or  pasture  of  the  animal  under  the  agreement, 
and  may  detain  the  animal  accordingly  until 
such  sum  is  paid. 

Sale  of  personal  property  to  satisfy  a 
lien. — A  lien  against  personal  property,  other 
than  a  mortgage  on  chattels,  if  in  the  legal 
possession  of  the  lienor,  may  be  satisfied  by 
the  public  sale  of  such  property  according  to 
the  provisions  of  law. 

NORTH  CAROI..INA. 

Conveyances,  etc.,  of  any  estate  or  interest  in  real 
property,  must  be  in  writing,  etc.  See  forms  referred 
to  below. 

Acknowledgment.     See  that  title,  ante. 

Dower.  Separate  examination  of  wife  is  necessary 
to  her  dower. 

Married  woman  must  be  examined  separately  from 
her  husband  in  all  deeds  executed  with  him.  She  must 
acknowledge  her  signature  before  she  is  privily  exam- 
ined. She  cannot  convey  her  separate  property  with- 
out her  husband  joins  in  the  conveyance  or  gives  his 
written  consent  thereto. 

Recording  is  necessary  in  order  to  render  the  con- 
veyance valid  against  bonajide  subsequent  purchasers, 
mortgagees,  etc. 

Seals.     A  scroll  is  sufficient. 

See  South  Carolina,  and  General  Forms,  post. 

OHIO. 

Conveyances  of  estate  or  any  interest  in  real  estate 
must  be  in  writing,  etc.     See  forms  below. 

Acknowledgment.     See  that  title,  ante. 

Dower  is  barred  by  wife  joining  in  the  deed  with  her 
husband. 

Married  'Women  need  not  be  examined  separate 
and  apart  from  their  husbands.  Husbands  need  not 
join  in  conveyance  of  wife's  property,  and  vice  versa, 
unless  relinquishment  of  dower  is  sought. 

Recording  must  be  in  the  office  of  the  recorder  of 
deeds  of  the  county  in  which  the  lands  conveyed  are 
situated.  The  filing  takes  effect  in  the  order  of  pre- 
sentment to  the  recorder  for  record.    Such  instruments, 


294 


CONVEYANCES. 


and  all  other  instruments  in  writing,  conveying  or 
incumbering  lands,  tenements  or  liereditaments,  until 
to  filed  for  record,  are  deemed  fraudulent  as  to  a  subse- 

Suent  bona  fide  purchaser,  having,  at  the  time  of  pur- 
lase,  no  knowledge  of  the  existence  of  former   instru- 
ment. 

Seals.  All  private  seals  are  abolished.  The  act 
does  not,  however,  affect  corporate  seals. 

Witnesses.  The  grantor's  sign.'.ture  and  acknowl- 
edgment must  be  in  presence  of  two  witnesses  who 
must  sign  their  names. 

WHrraiity  I>«»o€l— Witli  D«wor. 

KNOW  ALL  MEN  BY  THESE  PRESENTS: 

That ,  in  consideration  of to paid  by 

,the  receipt  whereof  is  hereby  acknowledged, 

do—    hereby  BARGAIN,  SELL  and   CONVEY 

to  the  said , heirs  and  assigns  forever, 

the  following   real    estate,   viz.:    ,   together 

with  the  privileges  and  appurtenances  to  the 
same  belonging.      TO  HAVE  AND  TO  HOLD 

the  same  to  the  said , heirs  and  assigns 

forever  hereby   covenanting   that  the  title 

so  conveyed  is   clear,  free   and   unincumbered, 

and  that will  warrant  and  defend  the  same 

against  all  claims  whatsoever. 

And  ,  wi —  of  the  said  ,  in  considera- 
tion of  one  dollar  to paid,  do  remise,  release 

and  forever  quit-claim  unto  the  said  grantee,  all 

right  by  way  of  dower  or  otherwise,  in  and 

to  the  above  granted  premises, 

IN    WITNESS  WHEREOF,    The  said    , 

hereunto  set hand —  this day  of ,  in 

the  year  Eighteen  Hundred  and  Ninety . 

Signed  and  delivered  in  the 

presence  of 

(2  •witnesses.) 
For  form  of  Acknowledgment,  see  that  title. 

The  warranty  deed  "without  dower  is  the  same  a* 
the  above,  omitting  the  clause  releasing  dower. 
Special  liVarranty  Deed— With  Kelease 
of  D«wer. 

KNOW  ALL  MEN  BY  THESE  PRESENTS: 

That in  consideration  of to paid  by 

■ the   receipt  whereof  is   hereby    acknowf. 

edged,  do— hereby  GRANT,  BARGAIN,  SELL 
and  CONVEY  to  the  said , heirs  and  as- 
signs forever,  the  following  real  estate,  viz.: 
and  all  the  ESTATE,  TITLE  AND  INTER- 
EST of  the  said ,  either  in  law   or  in   equity, 

of,  in  and  to  the  said  premises;  TOGETHER 
with  all  the  privileges  and  appurtenances  to  the 
same  belonging,  and  all  the  rents,  issues  and 
profits  thereof;  TO  HAVE  AND  TO  HOLD  the 

same  to  the  only  proper  use  of  the  taid , 

heirs  and  assigns  forever. 

And  the  said  for and  heirs,  do 

HEREBY  COVENANT  with , heirs  and 

assigns,  thatthesaid  premises  are  free  and  clear 
from  all  incumbrances  by,  from,  through  or  un- 
der the  said  grantor — ,  and  that will  forever 

WARRANT  and  DEFEND  the  same,  with  the 

appurtenances,  unto  the  said  — ^, heirs  and 

assigns,  against  the  lawful  claims  of  all  persons, 
claiming  by,  from,  through  or  under  the  grant- 
or—  herein. 

IN    WITNESS    WHEREOF,    The    said    

hereby    release    right    and    expectancy  of 

DOWER  in  the  said  premises,   ha—   hereunto 

set hand—  this day  of ,  in  the  yeat 

of  our  Lord  One  Thousand  Eight  Hundred  and 
Ninety . 

Signed  and  acknowledged 
in  presence  of 

(2  -witnesses. ) 
For  form  of  Acknowlbdghbnt,  see  that  till* 
Warranty  Deed  by  Attorney. 
KNOW  ALL  MEN  BY  THESE  PRESENTS: 
That ,  by , attorney  in  fact,  in  con- 
sideration of to paid  by ,  the  receipt 

whereof  is  hereby  acknowledged,  does  hereby 
BARGAIN,  SELL   and    CONVEY   to   the  said 

, heirs  and  assigns,  the  following  real 

oatate,  viz.:  ,  together  with  the  privileges 

{^nd  appurtenances  to  the  sante  belonging. 


TO  HAVE  AND  TO  HOLD  the  same  to  the 

said  ,  heirs  and   assigns   forever,   

hereby  covenanting  that  the  title  so  conveyed  is 

clear,  free  and  unincumbered,  and  that will 

WARRANT  and  DEFEND  the  same  against 
all  other  claims  whatsoever. 

IN  WITNESS  WHEREOF,  the  said  ,  by 

,  attorney  in  fact,    hereunto    set   

hand—  vhis  day  of ,  in  the  year  of  our 

Lord  One  Thousand  Eight  Hundred  and  Ninety 


Signed  and  acknowledged        By 

in  presence  of  attorney  in  fact. 

(2  witnesses.) 

Qnit-Clafm  Deed. 

KNOW  ALL  MEN  BY  THESE  PRESENTS: 

That ,  of ,  the  grantor — ,in  consideration 

of ,  to paid  by ,  of ,  the  grantee, 

the  receipt  whereof  is  hereby  acknowledged, 
do—  hereby  REMISE,  RELEASE,  and  forever 

QUIT-CLAIM  unto  said  grantee—,  and  to  

heirs  and  assigns  forever,  all  the  following  de- 
scribed real  property,  situate  in  the  county  of 

,  and  State  of  Ohio,  to  wit:  ,  together 

with  all  the  privileges  and  appurtenances  there- 
unto belonging. 

TO  HAVE  AND   TO    HOLD  the  same  unto 

the  said  grantee — ,  and  to heirs  and  assigns 

forever. 

IN  WITNESS  WHEREOF,  the  said ha— 

hereunto  set ■  hand — ,  this day  of——,  in 

tke  year  Eighteen  Hundred  and  Ninety  — -. 

Signed  and  acknowledged 
in  presence  of 

(2  witnesses.) 
Trust  Deed  with  Warranty. 

lyitA  or  Without  Dower. 

This  conveyance,  made  this  —  day  of  — ^, 

between  A.  B.,of county,  in  the  State  of , 

of  the  first  part,  and  E.  F.,  of county,  in  the 

State  of ,  of  the  second  part,  and  C.   D.,  of 

county,  in   the  State   of  •,  of  the  third, 

part,  witnesseth  : 

That  the  said  party  of  the  first  part,  in  consid- 
eration of  the  sum  of dollars,  the  receipt  of 

which  is  hereby  acknowledged,  does  by  these 
presents  grant,  bargain,  sell,  and  convey  unto 
said  party  of  the  second  part,  his  successors  and 
assigns,  all  the  following  described  real  estate 
(with  dower,  <7r  without  dower,  as  the  case  may  be), 

situated  in  the  county  of ,  and  State  of , 

to  wit :  (describe  it). 

To  have  and  to  hold  the  same,  together  with 
all  and  singular  the  tenements,  hereditaments, 
and  appurtenances  thereunto  belonging,  or  in 
anywise  appertaining,  forever,  in  fee  ;  in  trust, 
nevertheless,  and  to  and  for  the  uses,  interests, 
and  purposes  hereinafter  limited,  described  and 
declared— that  is  to  say,  in  trust,  to  {state  the 
purposes,  etc.). 

And  said  party  of  the  first  part  does  hereby 
covenant,  promise,  and  agree  that  Jhe  within 
described  premises  are  free,  clear,  and  dis- 
charged of  and  from  all  incumbrances  of  what- 
ever nature  or  kind  soever ;  and  that  he  will  war- 
rant and  forever  defend  the  same  unto  said  par- 
ties of  the  second  and  third  parts,  their  succes- 
sors and  assigns,  against  said  party  of  the  first 
part,  his  heirs,  and  all  and  every  person  or  per- 
sons whomsoever  lawfully  claiming  or  to  claim 
the  same. 

And  the  said  party  of  the  second  part  cove- 
nanu  faithfully  to  perform  and  fulfil  the  trusts 
herein  created. 

OREOON. 

Conveyances,  etc. ,  of  real  estate,  or  any  interest  there- 
in, must  be  in  writing,  etc.    See  forms  referred  to  below. 

Acknowledgment.     See  that  title,  ante. 

Married  women  need  not  be  separately  examined. 

Recording  must  be  within  five  days  after  the  exe- 
cution of  the  conveyance  to  be  valid  against  subsequent 
purchasers,  etc.,  in  good  faith  for  value  and  without 
notice,  whose  conveyance  sliall  be  first  duly  recorde4. 

Seals.     A  scroll  is  sufficient. 


CONVEYANCES. 


295 


PEHrXSYI^VANIA. 

Conveyances,  etc.,  are  by  the  forms  of  the  common 
few. 

Acknowledgment.     See  that  ti.l  •,  amc. 

Dower  is  relinquished  andlxirred  by  the  wife  joining 
in  the  conveyance. 

Married  women  must  be  examined  separately. 

Recording  in  the  office  of  the  recorder  of  deeds  in 
the  county  where  the  lands  lie,  and  within  ninety  days 
after  execution,  is  necessary,  except  when  executed  out 
of  the  State,  when  recording  must  be  done  within  six 
months. 

Seals.     A  scroll  is  sufficient. 

Witnesses  are  not  necessary,  thotigh  one  or  more  is 
usual. 

€oHTeyance — Warranly  I>ee«l. 

This  conveyance  (or  indenture),  made   the  

day  of ,  in  the  year  of  our  Lord ,  between 

A.  B.,  etc.,  of  the  one  part,  and  C.  D.,  etc.,  of  the 
other  part,  witnesseth  : 

That  the  said  party  of  the  first  part,  in  considera- 
tion of  the  sum  of dollars,  to  him  in  hand  paid 

by  the  said  party  of  the  second  part,  the  receipt 
w^hereof  is  hereby  acknowledged,  has  granted, 
bargained,  sold,  aliened,  enfeoffed,  released,  and 
confirmed,  and  by  these  presents  does  grant,  bar- 
gain, sell,  alien,  enfeoff,  release,  and  confirm  to 
the  said  party  of  the  second  part,  his  heirs  and 
assigns  Ikere  describe  the  property,  and  add  as  /ol- 
/otj/j-),  together  with  all  and  singular  the  minerals, 
%voods,  underwoods,  timber  {and  whatever,  e/se', 
wraters,  water-courses,  ways,  houses,  fences,  im- 
provements, rights,  liberties,  members,  heredita- 
ments, and  appurtenances  thereunto  belonging 
or  in  any  way  appertaining,  and  the  reversion 
and  reversions,  remainder  and  remainders,  rents, 
issues,  and  profits  thereof,  and  of  every  part  and 
parcel  then  f  ;  and  also  all  the  estate,  right,  title, 
interest,  benefit,  property,  claim,  and  demand 
whatsoever,  in  law  or  equity,  of  the  said  party 
of  the  first  part,  of,  in  and  to  the  same,  and  every 
part  and  parcel  thereof. 

To  have  and  to  hold  the  said to  the  said 

party  of  the  second  part,  his  heirs  and  assigns,  to 
the  only  proper  use  and  behoof  of  the  said  party 
of  the  second  part,  his  heirs  and  assigns,  for- 
ever. 

And  the  said  A.  B.,  for  himself,  his  heirs,  exec- 
utors, and  administrators,  does  covenant,  prom- 
ise, and  agree  to  and  with  the  said  party  of  the 
second  part,  his  heirs  and  assigns,  that  he,  the 
said  A.  a.,  and  his  heirs,  all  and  singular  the  he- 
reditaments and  premises  hereby  granted  or 
mentioned  and  intended  so  to  be,  with  the  appur- 
tenances, unto  the  said  party  of  the  second  part, 
his  heirs  and  assigns,  against  him,  the  said  A.  B., 
and  his  heirs,  and  against  all  and  every  person 
or  persons  whomsoever  lawfully  claiming  or  to 

claim  the  same, shall  and  will  warrant  and 

forever  defend. 

In  witness  whereof,  etc. 

Conveyance — Warranty  Deetl. 

This   conveyance  (or  indenttire),  made  the  

day  of ,  in  the  year  of  our  Lord ,  between 

A.  B.,  of ,  of  the  one  part,  and  C.  D.,  of , 

of  the  other  part,  witnesseth  : 

That  the  said  A.  B.,  for  and  in  consideration  of 
the  sum  of dollars,  lawful  money  of  the  Uni- 
ted States  of  America,  unto  him  well  and  truly 
paid  by  the  said  C.  D.,  at  and  before  the  sealing 
and  delivery  of  these  presents,  the  receipt  where- 
of is  hereby  acknowledged,  has  granted,  bar- 
gained, sold,  aliened,  enfeoffed,  released,  and  con- 
firmed, and  by  these  presents  does  grant,  bargain, 
sell,  alien,  enfeoff,  release,  and  confirm  unto  the 
said  C.  D.,his  heirs  and  assigns  (descride property, 
and  add  as  /o^^ws),  together  with  all  and  singular 
buildings,  improvements,  etc.,  ways,  waters, 
water-courses,  rights,  liberties,  privileges,  hered- 
itaments, and  appurtenances  whatsover  there- 
unto belonging  or  in  anywise  appertaining,  and 
the  reversions  and  remainders,  rents,  issues,  and 
profits  thereof;  and  all  the  estate,  ri£ht,  title,  in- 
terest, property,  claim,  and  demand  ^vhatsoevei- 
of  him,  the  said  A.  B.,  in  law,  equity,  or  other- 
wise howsoever,  of,  in,  and  to  the  same  and  every 
part  thereof. 

To  have  and  to  hold  the  said  real  estate,  b:.:. 


jngs,  improvements,  hereditaments  and  premises 
hereby  granted  or  mentioned  and  intended  so  to 
be,  with  the  appurtenances,  unto  the  said  C.  D.., 
his  heirs  and  assigns,  to  and  for  the  only  proper 
use  and  behoof  of  the  said  C.  D.,  his  heirs  and 
assigns,  forever. 

And  the  said  A.  B.,his  heirs,  executors,  and 
administrators,  does  by  these  presents  covenant, 
grant,  and  ag;ree  to  and  with  the  said  C.  D.,  his 
heirs  and  assigns,  that  he,  the  said  A.  B.,  and  his 
heirs,  all  and  singular  the  hereditaments  an4 
premises  herein  above  described  and  granted,  or 
mentioned  and  intended  so  to  be,  with  the  ap- 
purtenances, unto  the  said  C.  D.,  his  heirs  and 
assigns,  against  him,  the  said  A.  B.,  and  his 
heiis,  and  against  all  and  every  other  person  or 
persons  whomsoever  lawfully  claiming  or  to 
claim  the  same  or  any  part  thereof  (here  insert 
clause  for  special  vuarranly ,  iuhe?i  desired),  shall  and 
will  warrant  and  forever  defend. 

In  witness  whereof, 

Conveyaiaee— Ceneral  (and  Special) 
Warranty  Deed. 

This  conveyance   (or  indenture),  made   the  

day  of ,  in  the  year  of  our  Lord ,  between 

A.  B.,  of county,  in  the  State  of ,  of  the 

first  part,  and  C.  D.,  of county,  in  the  State 

of ,  of  the  second  part,  witnesseth  : 

That  the  said  party  of  the  first  part,  for  and  in 

consideration  of  the  sum  of dollars,  lawful 

money  of  the  United  States  of  America,  well  and 
truly  paid  by  the  said  party  of  the  second  part 
to  the  said  party  of  the  first  part,  at  and  before 
the  ensealing  and  delivery  of  these  presents,  the 
receipt  whereof  is  hereby  acknowledged,  has 
granted,  bargained,  sold,  aliened,  enfeoffed,  re> 
leased,  conveyed  and  confirmed,  and  by  these 
presents  does  grant,  bargain,  sell,  alien,  enfeoff., 
release,  convey  and  confirm  unto  the  said  party 
of  the  second  part,  his  heirs  and  assigns,  all  (de- 
scription of  the  property),  together  with  all  and 
singular  the  buildings,  improvements,  woods, 
ways,  rights,  liberties,  privileges,  hereditaments 
and  appurtenances  to  the  same  belonging  or  in 
anywise  appertaining,  and  the  reversion  and  re- 
versions, remainder  and  remainders,  rents,  is- 
sues and  profits  thereof,  and  of  every  part  and 
parcel  thereof:  and  also  all  the  estate,  right, 
title,  interest,  property,  possession,  claim,  and 
demand  whatsoever,  both  in  law  and  equity,  of 
the  said  party  of  the  first  part,  of,  in,  and  to  the 
said  premises,  with  the  appurtenances. 

To  have  and  to  hold  the  said  premises,  with  all 
and  singular  the  appurtenances,  unto  the  ^aid 
party  of  the  second  part,  his  heirs  and  assign.s,  to 
the  only  proper  use,  benefit  and  behoof  of  the  said 
party  of  the  second  part,  his  heirs  and  assigns, 
forever. 

And  the  said  A.  B.,  for  himself,  his  heirs,  exec- 
utors, and  administrators  does  by  these  presents 
covenant,  grant  and  agree  to  and  with  the  said 
party  of  the  second  part,  his  heirs  and  assigns, 
that  he,  the  said  A.  B.,  his  heirs,  all  and  singuli* 
the  hereditaments  and  premises  herein  above 
described  and  granted,  or  mentioned  and  intended 
to  be  so,  with  the  appurtenances,  unto  the  said 
party  of  the  second  part,  his  heirs  and  assigns, 
against  him,  the  said  A.  B.,  his  heirs,  and  against 
all  and  every  other  person  or  persons  whomso- 
ever lawfully  claiming  or  to  claim  the  same  ot 
any  part  thereof  ("  by,  from,  or  under  them,  or  any 
of  them."  These  luords  convert  this  freneral  ivar- 
ranty  deed  into  «  specia.1  warranty  deed),  shall  and 
v^ill  warrant  and  forever  defend. 
In  witness  whereof,  etc. 

Conveyance— Sheriff's  Deed. 

On  Fieri  Facias. 

S.  F.,  esquire,  high  sheriff  of county,  in  the 

commonwealth  of  Pennsylvania,  to  all  to  whom 
these  presents  shall  come,  greeting: 

Whereas,  by  virtue  of  a  writ  of  fieri   facias, 

bearing  test  the day  of ,  A.  D. ,  I  was 

commanded  that  of  the  goods  and  chattels,  lands 

and  tenements  of  A.  B.,  late  of county, 

in  my  bailiwick,  I  should  cause  to  be  levied  and 
mad?  ?s  well  ^  certain  4ebt  gf dpUars,  law- 


296 


CONVEYANCES. 


ful  money  sf  the-  United  States,  with  interest 

from  the day  of ,  A.  D. ,  which  C.  D. , 

late  in  our court,  before  our  judges  at  , 

recovered  against  him,  as  also  dollars  like 

money,  which  to  the  said  plaintiff  in  our  said 
court  were  in  like  manner  adjudged  for  his  dam- 
ages which  he  sustained  by  occasion  of  the  de- 
tention of  that  debt  whereof  the  said  defendant 
rras  convict  as  appears  of  record.     And  that  I 

should  have  that  money  before  our  judges  at , 

at  our  court  there  to  be  held  for  said  

county,  on  the Monday  of next,  to  render 

to  the  said  plaintiff  for  his  debt  and  damages. 

And  whereas,  the  defendant  having  no  personal 
property  out  of  which  to  make  the  above  moneys, 
in  pursuance  whereof  and  by  virtue  of  said  writ, 
I  levied  on  [here  describe  the  property). 

And  whereas,  the  defendant  having,  by  writing 
filed,  waived  his  right  of  inquisition,  and  agreed 
that  the  above  described  property  should  be  sold 
on  the  said  fieri  facias;  and  thereupon,  in  pursu- 
ance of  the  said  writ,  I,  the  said  sheriff,  having 
given  due  and  legal  notice  of  the  time  and  place 
of  sale  by  advertisements  in  the  public  news- 
papers, and  by  handbills  set  up  on  the  premises, 
and  in  the  most  public  places  in  my  bailiwick, 

did,  on ,  the day  of ,  A.  D. ,  expose 

the  said  premises  above  described,  with  the  ap- 
purtenances, to  sale  by  public  vendue  or  outcry, 

and  sold  the  same  to  E.  F. ,  of ,  for dollars, 

lie  being  the  highest  and  best  bidder,  and  that 
t'^e  highest  and  best  price  bidden  for  the  same. 

Now  know  ye,  that  I,  the  said  S.  F.,  esquire, 
high  sheriff  aforesaid,  for  and  in  consideration  of 

tile  aforesaid  sum  of dollars,  to  me  in  hand 

paid  by  the  said  E.  F.,  at  and  before  the  sealing 
a  ad  delivery  hereof,  the  receipt  whereof  I  do 
hereby  acknowledge,  have  granted,  bargained, 
and  sold,  and  by  these  presents,  according  to  the 
directions  of  the  said  writ,  and  by  force  and  vir- 
tie  thereof,  and  the  constitution  and  laws  of  this 
c»mmonv(^ealth  in  such  case  made  and  provided, 
do  grant,  bargain,  and  sell  unto  the  said  E.  F., 
his  heirs  and  assigns,  all  that  land,  messuage, 
improvements,  etc.,  and  being  as  hereinbefore 
particularly  described ;  together  with  all  and 
singular  the  improvements,  their  rights,  liberties, 
privileges,  hereditaments,  and  appurtenances 
w^hatsoever  thereunto  belonging,  or  in  anywise 
appertaining,  and  the  reversions,  remainders. 
Tents,  issues,  and  profits  thereof: 

To  have  and  to  hold  all  and  singular  the  heredi- 
taments and  premises  hereby  granted,  with  the 
appurtenances,  unto  the  said  E.  F.,  his  heirs  and 
assigns,  to  and  for  their  only  proper  use  and  be- 
hoof forever,  according  to  the  form,  force,  and 
effect  of  the  laws  and  usages  of  this  common- 
>vealth  in  such  case  made  and  provided. 

In  witness  whereof,  I,  the  said  sheriff,  have 
hereunto  set  my  hand,  and  affixed  my  seal,  the 

day  of ,  in  the  year  of  our  Lord . 

S.T.,  Sheriff  0/ county,     [seal.] 

Sealed  and  delivered         I 

in  the  presence  of  us,  J 

Conveyance — SherlflT's  Deed. 
On  Le7iari  Facias. 

S.  F.,  esquire,  high  sheriff  of county,  in  the 

commonwealth  of  Pennsylvania,  to  all  to  whom 
these  presents  shall  come,  greeting  : 

Whereas,  by  a  certain  writ  of levari  facias, 

issued  out  of  the  court,  tested  at  ,  the 

day  of ,  in  the  year  of  our  Lord ,  I,  the 

said   sheriff,  was  commanded  that  without 

any  other  writ,  of  the  lands  and  tenements  of  A. 
B.,  etc.  {here  follorvs  the  recitals  and  description, 
tind  adding  the  following): 

Together  with  the  hereditaments  and  appurte- 
nances in   my  bailiwick,  I   should  cause   to   be 

levied  as  well  a  certain  debt  of dollars,  lawful 

money  of  Pennsylvania,  with  the  lawful  interest 

thereof,  from  the  day  of  ,  as  also  

dollars  like   money  for  costs,  which  said  debt, 

with   interest   and   costs  aforesaid, lately  in 

the  court,  before  the  judges  at  ,  to  wit, 

on  the day  of ,  by  the  consideration  of  the 

same  court  recovered  to  be  levied  of  the  same 
premises,  v/ith  the  appurtenances,  by  the  default 
cf  the  said  A.  B.)  in  not  paying  the  ^aid  sum  9f 


,  with  the  lawful  interest  thereof,  at  the  day 

and  time  when  the  same  ought  to  have  been  paidL 
according  to  the  form  and  effect  of  an  act  of 
Assembly  of  the  State  of  Pennsylvania,  in  such 
case  made  and  provided,  and  that  I  should  have 

those   moneys  before   the  judges  at  ,  at  the 

court,  there  to  be  held  the of next, 

to  render  to  the  said  C.  D.  for  the  debt,  interest, 
and  damages  aforesaid,  whereof  the  aforesaid  A. 
B.  is  convict  as  appears  of  record,  etc.,  and  that 
I  should  have  then  there  that  writ. 

And  thereupon,  in  pursuance  of  the  said  writ, 
I,  the  said  sheriff,  having  given  due  and  legal 
notice  of  the  time  and  place  of  sale  by  advertise- 
ments in  the  public  newspapers,  and  by  handbills 
set  up  on  the  premises,  and  in  the  most  public 

places  in  my  bailiwick,  did,  on ,  the  daj. 

of ,  expose  the  said  premises  above  described, 

with  the  appurtenances,  to  sale  by  public  vendue 
or  outcry,  and  sell  the  same  to  E.  F.,  for  the  sum 
of dollars,  he  being  the  highest  and  best  bid- 
der, and  that  the  highest  and  best  price  bidden 
for  the  same. 

Now  know  ye,  th^  I,  the  said  S.  F.,  esquire, 
high   sheriff  aforesan,  for  and   in  consideration 

of  the  aforesaid  sum  of ,  to  me  in  hand  paid 

by  the  said  E.  F.,  at  and  before  the  sealing  and 
delivery  hereof,  the  receipt  whereof  I  do  hereby 
acknowledge,  have  granted,  bargained  and  sold, 
and  by  these  presents,  according  to  the  direc- 
tions of  the  said  writ,  and  by  force  and  virtue 
thereof,  and  the  constitution  and  laws  of  this 
commonwealth  in  such  case  made  and  provided, 
do  grant,  bargain,  and  sell  unto  the  said  C.  D., 
his  heirs  and  assigns,  all  that  the  said  messuage, 
etc.,  and  being  as  hereinbefore  particularly 
described ;  together  with  all  and  singular  the 
buildings,  improvements,  rights,  liberties,  priv- 
ileges, hereditaments  and  appurtenances  what- 
soever thereunto  belonging,  or  inanywise  apper- 
taining, and  the  reversions,  remainders,  rents, 
issues,  and  profits  thereof: 

To  have  and  to  hold  all  and  singular  the  heredi- 
taments and  premises  hereby  granted,  with  the 
appurtenances,  unto  the  said  E.  F.,  and  assigns, 

to  and  for ,  their  only  proper  use  and  behoof 

forever,  etc.,  according  to  the  form,  force,  and 
effect  of  the  laws  and  usages  of  this  common- 
wealth in  such  case  made  and  provided. 

In  witness  whereof,  I,  the  said  sheriff,  have 
hereunto  set  my  hand,  and  affixed  my  seal,  the 

day  of ,  in  the  year  of  our  Lord . 

S.  F.,  sheriff  0/ county,     [seal.] 

Sealed  and  delivered      I 

in  the  presence  of  us,/ 

Conveyance— Sheriff's  Deed. 

On  Venditioni  Exponas. 

S.  F. ,  esquire,  high  sheriff  of county,  in  the 

Commonwealth  of  Pennsylvania,  to  all  to  whom 
these  presents  shall  come,  greeting  : 

Whereas  (here  insert  recitals  and  description  of 
property,  adding  as  follows):  which  remained  in 
my  hands  unsold  for  want  of  buyers,  and  there- 
fore I  could  not  have  the  money  in  the  said  writ 
mentioned  at  the  day  and  place  in  the  said  writ 
specified  as  therein  I  was  commanded,  and  that 
the  residue  of  the  execution  of  said  writ  ap- 
peared in  a  certain  schedule  or  inquisition  there- 
unto annexed,  by  which  schedule  and  inquisition 
it  was  found  that  the  rents,  issues  and  profits  of 
the  above  described  property  in  my  said  return 
upon  the  said  writ  thereunto  annexed  mentioned, 
were  not  of  a  clear  yearly  value  beyond  all  re- 
prizes, sufficient  within  the  space  of  seven  years 
to  satisfy  the  debt  and  damages  in  the  said  writ 
mentioned. 

And  whereas,  by  a  certain  writ  of vendi- 
tioni exponas,  to  me,  the  said  sheriff,  directed. 
tested  at  ,  the  day  of ,  I  was  com- 
manded that  the  premises  above  described,  with 
the  appurtenances,  I  should  expose  to  sale,  and 

that  I  should  have  that  money  before  the day 

of ,  at ,  at ,  there   to  be  held  the  ■ 

of next,  to  render  to  the  said  debt  and  dam- 
ages aforesaid.  In  pursuance  Whereof,  I,  the 
said  sheriff,  having  given  due  and  legal  notice  of 
the  time  and  place  of  sale  by  advertisements  in 
the  public  newspapers,  and  by  handbills  set  up 


CONVEYANCES. 


297 


on  the  premises,  and  in  the  most  public  places  in 

my  bailiwick,  did,  on  ,  the  day  of — —, 

expose  the  said  premises  above  described,  with 
the  appurtenances,  to  sale  by  public  vendue  or 

outcry,  and  sold  the  same  to  E.  F.,of ,  for  the 

sum  of dollars,  he  being  the  highest  and  best 

bidder,  and  that  the  highest  and  best  price  bid- 
den for  the  same. 

Now  know  ye,  that  I,  the  said  S.  F.,  es- 
quire, high  sheriff  aforesaid,  for  and  in  consid- 

tration  of  the  aforesaid  sum  of dollars,  to 

me  in  hand  paid  by  the  said  E.  F.,  at  and  be- 
fore the  sealing  and  delivery  hereof,  the  i_ceipt 
whereof  I  do  hereby  acknowledge,  have  granted, 
bargained  and  sold,  and  by  these  presents,  ac- 
cording to  the  directions  of  the  said  writ,  and  by 
force  and  virtue  thereof,  and  the  constitution  and 
laws  of  this  commonwealth  in  such  case  made 
and  provided,  do  grant,  barg;ain,  and  sell  unto  the 
said  E.  F.,  his  heirs  and  assigns,  all  that  the  said 
messuage,  etc.,  and  being  as  hereinbefore  par- 
ticularly described ;  together  v^ith  all  and  sin- 
gular the  buildings,  improvements,  rights,  lib- 
erties, privileges,  hereditaments,  and  appurte- 
nances %vhatsoever  thereunto  belonging,  or  in 
anywise  appertaining,  and  the  reversions,  re- 
mainders, rents,  issues,  and  profits  thereof: 

To  have  and  to  hold  all  and  singular  the  heredi- 
taments and  premises  hereby  granted,  with  the 
appurtenances,  unto  the  said  E.  F.,  and  assigns, 

to  and  for ,  their  only  proper  use  and  behoof 

forever,  according    to  the  form,  force,  and 

effect  of  the  lavt^s  and  usages  of  this  common- 
wealth in  such  case  made  and  provided. 

In  witness  whereof,  I,  the  said  sheriff,  have 
hereunto  set  my  hand,  and   affixed  my  seal,  the 

day  of ,  in  the  year  of  our  Lord . 

S.  F.,      [seal.] 

Sheriff  0/ county. 

Sealed  and  delivered      ) 

in  the  presence  of  us,  j 

RHOI>E  ISI,AN1>. 

Conveyances  of  any  estate  of  inheritance  or  freehold 
for  a  term  exceeding  one  year  must  be  by  deed,  in 
writing,  etc.     See  forms  referred  to  below. 

Acknowledgment.     See  that  title,  ante. 

Corporations  have  no  prescribed  form.  The  presi- 
dent or  treasurer  affixes  the  corporate  seal,  signs  his 
name,  and  adds  his  ofTicial  tide,  and  so  acknowledges 
its  execution. 

Dower  is  relinquished  and  barred  by  the  wife  joining 
in  the  conveyance. 

Married  women  must  be  examined  separately. 
They  must  be  joined  in  conveyance  of  their  lands  by 
their  husbands,  and  vice  versa. 

Recording  must  be  in  the  office  of  the  clerk  of  the 
town  or  city  where  the  lands  ate  situated.  If  the 
estate  is  in  the  city  of  Providence  the  conveyance  must 
be  recorded  in  the  office  of  the  recorder  of  deeds  in  said 
city. 

Seals  must  be  of  some  adhesive  substance,  as  wax, 
wafers,  adhesive  paper,  etc. 

Witnesses  are  not  necessary,  one  is  customary. 
See  General  Forms,  post. 

SOFTH  CAROLINA. 

Conveyances^  of  real  estate  or  any  interest  therein 
must  be  in  writing,  etc. 

Acknowledgment.     See  that  title,  ante. 

Dower.  If  grantor  is  married,  the  wife's  dower 
must  be  renounced  on  the  deed  or  paper  attached,  in 
the  form  below. 

Married  women  may  hold  property  separate  from 
their  husbands,  and  convey  or  alien  the  same  as  if 
unmarried. 

Recording.  Deeds  must  be  recorded  in  the  office 
of  the  registrar  of  mesne  conveyances  within  forty  days 
after  execution  ;  if  recorded  thereafter  they  take  pre. 
ccdence  only  of  subsequent  conveyances  not  recorded. 

Seals.     A  scroll  is  .sufficient. 

Signature  of  the  grantor  must  be  in  the  presence  of 
twn  witnesses,  who  must  subscribe  their  names  in  attes- 
i.tion  thereof. 

See  General  Forms,  post. 
Conveyance— Warranty  Deed. 

Stntii/ory  J-'onit.^ 
State  of  South  Carolina  : 
Know  all  men  by  these  presents : 

J8-5  p.  L.  256, 2  I ;  9  Rich,  374 ;  11  W,  80.    »-i  Swan. 


That  I,  A.  B.,  of ,in  the  State  aforesaid,  in 

consideration  of ,  to  me  paid  by  C.  D.,  in  the 

State  aforesaid,  have  granted,  bargained,  sold, 
and  released,  and  by  these  presents  do  grant,  bar- 
gain, sell,  and  release  unto  said  C.  D.  all  that 
{here describe  the  land),  together  with  all  and  sin- 
gular the  rights,  members,  hereditaments,  and 
appurtenances  to  the  said  premises  belonging  or 
in  anywise  incident  or  appurtenant. 

To  have  and  to  hold  all  and  singular  the  prem- 
ises before  mentioned  unto  the  said  C.  D.,  his 
heirs  and  assigns,  forever. 

And  I  do  hereby  bind  myself,  my  heirs,  execu- 
tors, and  administrators,  to  warrant  and  forever 
defend  all  and  singular  the  said  premises  untc 
the  said  C.  D.,  his  heirs  and  assigns,  against  my- 
self and  my  heirs,  and  against  every  person 
whomsoever,  lawfully  claiming  or  to  claim  the 
same,  or  any  part  thereof. 

Witness   my   hand   and  seal,  this  day  of 

,  in  the  year  of  our  Lord ,  in  the year 

A  the  independence  of  the  United  States  of 
America.  A.  B.    [sbal.] 

Signed,  sealed,  and  delivered 

in  presence  of  ^V.  T.,  N.  S. 

Proof  as  above.     See  acknowledgment. 
T£W9rE.SSEE. 

Conveyances  of  real  estate  or  any  interest  therein  must 
be  in  writing,  etc.     See  forms  referred  to  below. 

Acknowledgment.     See  that  title,  ante. 

Dower  is  relinquished  and  barred  by  the  wife's  join- 
ing in  the  conveyance. 

Married  women  must  be  separately  examined. 
They  must  be  joined  by  their  husbands  in  the  convey- 
ance of  their  real  estate,  and  join  the  husband  in  the 
conveyance  of  his  or  of  their  joint  realty. 

Recording  must  be  in  the  ofBce  of  the  register  of 
deeds  cl  the  county  wherein  the  land  is  situate  in  order 
to  affect  subsequent  bona  fide  purchasers,  etc.,  without 
notice. 

Seals.  A  scroll  with  the  word  seal  written  after  the 
signature  is  suffici  jju.> 

See  General  Forms,  post. 
TEXAS. 

Conveyances  of  any  estate  or  interest  in  real  prop- 

rty  need  no  technical  words  to  convey  a  fee  simple: 

md  where   the   instrument  purports  to  pass  a  greater 

interest  than  the  grantor  possesses  it  alienates  only  such 

interest  as  he  possesses.'' 

Acknowledgment.     See  that  title,  ante. 

Married  women  must  be  examined  separately. 

Recording  is  necessary  to  affect  subsequent  bona 
fide  purchasers  and  creditors  without  notice  or  reason- 
able information. 

Seals  are  not  necessary,  except  to  instruments  exe- 
cuted by  corporations. 

Witnesses  to  grantor's  signature  not  riecessary, 
when  instrument  is  acknowledged  before  authorized 
officer,  but  when  not,  then  two  witnesses  are  necessary, 
who  must  sign  at  request  of  grantor. 

See  General  Forms,  post. 
Use  South  Carolina  Form." 

UTAH. 

Conveyance  includes  every  instrument  in  writing  by 
which  real  estate  or  any  intere.st  therein  is  created, 
aliened,  mortgaged  or  assigned,  except  wills,  and  leases 
not  exceeding  a  term  of  one  year. 

Acknowledgment.     See  that  title,  ante. 

Dow/er  has  been  re-established. 

Married  women  convey  in  the  same  manner  as  un- 
married women. 

Recording  in  the  office  of  the  recorder  of  deedr  of 
the  county  where  the  lands  are  situated  is  necessary. 

Seals.     No  seals  are  necessary. 

■Witnesses.    One  witness  is  sufficient. 

See  California  Form,  ante,  and  General  Forms, 
post. 

VERMONT. 

Conveyances  of  lands  or  any  interest  therein  must  be 
in  writing,  etc.     See  forms  referred  to  below. 

AckiKiwledgment.     See  that  title,  ante. 

Married  women  need  not  be  examined  separately. 

Recording  in  the  office  of  the  town  or  city  clerk  dk 
the  town  or  city  where  the  land  is  located  is  necessary 
to  convey  title  as  against  subsequent  bonajide  purchas- 
ers or  attaching  creditors  without  notice. 

333.     L/-Pasch.     Dig.  Art  5087.     C-HartL  Dig.   12^ 
Art.  170. 


S9S 


CONVEYANCES. 


Seals  rTni<;t  be  of  wax,  wafers,  or  other  adhesive  sub- 
stance. 

Signature  ot'  the  grantor  must  be  in  the  presence  of 
two  witnesses,  who  must  attest  such  signature. 
See  General  Forms,  post. 

TIROINIA. 

Conreyancss  of  real  estate  or  any  interest  therein 
must  be  in  writing,  etc. 

Acknowledgment.     See  that  title,  ante. 

Dower  is  relinquished  and  barred  by  the  wife  joining 
her  husband  in  the  conveyance. 

Married  ^vomen.  Common  law  prevails  with  slight 
modification.     Separate  examination  is  not  necessary. 

Recording  within  sixty  days  of  a  deed  of  bargain 
and  sale  is  necessary,  and  all  conveyances  from  the  time 
they  are  duly  admitted  to  record  are  valid  against  sub- 
sequent bono,  fide  purchasers  and  creditors  without 
notice. 

Seals.    A  scroll  is  sufficient. 

€onveyancc— Statnfory  Deetl.^ 

The  following  f  5rm  will  pass  all  the  estate,  right,  title, 
and  interest  of  the  grantor,  both  in  law  and  in  equity." 
Unless  exception  is  made  a  conveyance  of  land  includes 
and  passes  all  buildings,  privileges,  and  appurtenances 
of  every  kind.' 

This  conveyance,  made  this day  of ,  by 

A.  B.,  of ,  etc.,  to  C.  D.,  of  ,  etc.,  wit- 

nesseth : 

That  in  consideration  of  {state  •what),  the  said 
A.  B.  doth  with  the  said  C.  D.  bargain,  sell,  and 
grant  all,  etc.  (here  describe  the  property,  and  add 
•whatever  covenants,  conditions,  restrictions,  limited 
tioHs,  etc.,  agreed  upon). 

Witness  the  following  signature  and  seal.e 

A.  B.        [l.  s.] 
Conveyance — Warranty  Deed. 
With  Full  Covenants^ 

This  conveyance,  made  this day  of ,  by 

A.  B.,  of ,  etc.,  to   C.  D.,  of  ,  etc.,  wit- 

nesseth  : 

That  in  consideration  of  {state  luhat),  the  said 
A.  B.  doth  with  the  said  C.  D.  bargain,  sell,  and 
grant,  all,  etc.  {here  describe  the  property,  and  add 
ivhatever  covenants ,  conditions,  restrictions,  limita- 
tions, etc.,  agreed  upon). 

And  the  said  A.  B.  covenants,  That  he  has  the 
right  to  convey  said  land  to  the  grantee ;  that  the 
same  is  free  from  all  incumbrances ;  that  the 
grantee  shall  have  quiet  possession  of  said  land ; 
that  he  will  execute  such  further  assurances  of 
«aid  lands  as  shall  be  requisite ;  and  that  he  will 
"warrant  generally  {or  specially)  the  property  here- 
by conveyed. 

Witness  the  following  signature  and  seal,  etc. 
(«j  above). 

Conveyance — I^ife  Estate  Clause. 

To  have,  to  hold,  and  enjoy  the  same,  and  all 
and  singular  the  appurtenances  and  every  part 
thereof,  during  the  natural  life  of  said  C.  D.> 

Conveyance— <fcnlt-Claiin  I>eed. 

This  conveyance,  made  this day  of ,  by 

A.  B.,  of ,  to  C.  D.,  of ,  witnesseth  : 

That  in  consideration  of dollars,  the  said 

A.  B.  doth  release  to  the  said  C.  D.  all  his  claims 
upon  the  following  described  lands,  to  wit :  {de- 
scribing them). 

■Witness  the  following  signature  and  seal,  etc. 
ifls  above). 

Conveyance— Trust  Deed  J 

This  conveyance,  made  this day  of ,  by 

A.  B.,  of  one  part,  to  C.  D.,  of  the  other  part, 
!  witnesseth  : 

That  the  said  A.  B.  doth  grant  unto  said  C.  D. 
'the  following  property:  {here /oUo7vs  the  descrip- 
iinn).  In  trust,  to  secure  (here  describe  the  debts  to 
(>e  secured,  or  the  securities  to  be  indemnified,  and 
•L'hatez'er  covenants,  provisions,  etc.,  agreed  upon). 
Witness  the  following  signature  and  seal,  etc. 
ieu  above). 

WASHINOTTOjr. 
Conveyances  of  realty,  or  interest  therein,  must  be 
by  deed  in  writing,  signed  by  party  bound  thereby  and 
acknowledged  by  party  making  it.     See  forms  referred 
to  below. 

<|-Code  1849,  p.  503,  Ch,  117,  \  I,     ^-Code  ^o^,  \  ?. 


Acknowledgment.     See  that  title,  ante. 

Dower  is  relinquished  and  barred  by  the  wife  joining 
the  husband  in  the  conveyance. 

Married  women  must  be  separately  examined. 

Recording  is  necessary  to  render  the  conveyance 
valid  against  subsequent  bona  fide  purchasers,  etc., 
without  notice. 

Witnesses.     Two  are  necessary. 
WEST  TIRGISTIA. 

Conveyances  of  real  estate  or  any  interest  therein 
must  be  in  writing,  etc.     See  forms  referred  to  below. 

Acknowledgment.     See  that  title,  ante. 

Dower  is  relinquished  and  barred  by  the  wife  joining 
her  husband  in  the  conveyance. 

Married  women  need  not  be  examined  separately 
and  apart  from  their  husbands. 

Recording  in  the  office  of  the  clerk  of  the  county 
court  is  necessary  to  render  the  conveyance  valid  against 
subsequent  bona  fide  purchasers  or  creditors  without 
notice. 

Seals.     A  scroll  is  sufficient. 

Witnesses  are  not  necessary. 

See  Virginia  Forms,  above,  and  Genbsai.  Forms, 
post. 

wiscoNsinr. 

Conveyances,  etc.,  of  any  estate  or  interest  in  real 
property  must  be  in  writing,  etc.  See  forms  referred  to 
below. 

Acknowledgments.     See  that  title,  ante. 

Dower  is  released  and  barred  by  the  wife  joining  in 
the  conveyance  with  her  husband. 

Married  women,  whether  by  their  sole  deed  or  by 
joining  with  their  husbands  to  convey  their  estate  or 
dower,  execute  the  conveyance  the  same  as  though  they 
were  unmarried.     No  separate  examination  is  necessary. 

Recording  in  the  office  of  the  register  of  deeds  in 
the  county  where  the  land  is  situated  is  necessary  to 
render  the  conveyance  valid  against  subsequent  bona 
fide  purchasers,  etc. 

Seals.     A  scroll  is  sufficient. 

Signature  of  the  grantor  is  necessary,  in  the  pres- 
ence of  two  witnesses,  who  must  subscribe  their  names 
in  attestation  thereof. 

See  Ohio  Forms,  above,  and  General  Forms,  post. 
WYO.IIINO. 

Conveyances  of  lands  or  any  interest  therein  must  be 
in  writing,  etc.     See  forms  referred  to  below. 

See  Acknowledgment,  ante. 

Dower  and  Courtesy  abolished. 

One  witness  enough.  Private  seals  abolished,  except 
corporation  seals.  Wife  must  join  husband  to  deed  or 
mortgage  homestead.  Wife  must  sign  and  acknowledge, 
freely  and  voluntarily,  and  separate  and  apart  from 
husband,  and  must  be  fully  apprised  by  official  of  con> 
tents  and  her  rights  and  effect  of  signing. 

Recording  necessary,  to  protect  against  subsequent 
purchasers. 

CONVEYANCES— VARIOUS   DETAIES. 

lutrotlnctions  In  Deeds  and  Otber 

Conveyances. 

The  introduction  to  a  conveyance,  deed,  mortgage, 
etc.,  is  called  the  "  Testatum  "  clause.     See  text  above  . 

A.  B.  {or  A.  B.  and  W.  13.  his  wife)  conveys,  etc. 

I  {or  we,  A.  B.,  of ,  and  W.  B.  his  wife),  for  a 

consideration,  etc.,  convey,  etc. 

This  conveyance  {or  deed,  or  indenture,  bipartite, 
tripartite,  quadripartite,  etc.,  or  mortgage,  etc.),  wit- 
nesseth. 

That,  etc. 

This  conveyance  (or  deed,  etc.),  made  this  

day  of ,  witnesseth  : , 

That,  etc. 


This  conveyance  {or  deed,  etc.),  made  this 

day  of ,  by  A.  B.,  of  ,  to  C.  D.,  of  - 

witnesseth  : 

That,  etc. 


This  conveyance  {or  deed,  etc.),  made  this 

day  of ,  in ,  by  A.  B.,  of county,  in  the 

State  {or  Commonwealtli)  of ,  farmer,  to  C.  D., 

f-Code  503,  J  7.    jf-i  Munf  487  ;  2  Leigh.  488.    Il-Codo 
^03,  J^  10^15.    i-ij  Gratt.  65J.    J-Code  50J,  g  5. 


CONVfiYANCES. 


290 


bt CAunty,  in  the  State  (<?^  Commonwealth)  of 

,  merchant,  witnesseth  : 

That,  etc.  

Know  all  men  by  these  presents : 
That  this  conveyance,  etc.  (as  above). 

Know  all  men  by  these  presents  : 

That  A.  B.,  of ,  has,  for  a  consideration  of 

,  etc.,  the  receipt  of  which,  etc.,  has  granted, 

bargained,  and  sold,  and  does  by  these  presents 
grant,  bargain,  sell,  and  convey  unto  C.  D.,  of 
,  etc. 

This  conveyance  (or  deed,  etc.),  made  and  en- 
tered into  this day  of ,  by  and  between  A. 

B.,  of county,  and  the  State  of ,  party  of 

the  first  part,  and  C.  D.,  of county,  in  the 

State  of ,  of  the  second  part,  witnesseth  : 

That,  etc. 

In  trust,  etc. 


To  all  to  whom  these  presents  may  come  greet- 
ing (or  To  all  whom  it  may  concern)  : 

Know  ye : 

That  this  conveyance  (or  deed,  etc.),  between 

the ,  a  corporation  existing  under  the  laws  of 

the   State   (or  Commonwealth)  of ,  of  the  first 

part,  and  C.  D.,  E.  F.,  and  G.  H.,  a  company  do- 
ing business  under  the  firm-name  and  style  of  the 

D.,  F.,  H.  manufacturing  company,  of  the 

second  part,  witnesseth  : 

That,  etc. 
Preiuises  in  I>ee<9s  and  Oilier  Couvey- 
anocfi. 
I.  Statement  op  Pakties. 

"A.  A.,  assignee  of  the  estate  and  effects  of  B. 
I.,  of ,  bankrupt  (or  insolvent),"  etc. 

"  The  ,  a  company  (or,  corporation)  created 

and  existing  (or,  organized  and  doing  business)  under 

and  by  virtue  of  the  laws  of  the  State  of (or, 

an  act  of  the  legislature  of  the  State  of ,  entitled  'An 

act,'  etc.,  reciti7ij;  the  title)." 

"A.  R.,  administrator  of  the  estate  and  effects 
of  D.  D.,  deceased,  of ,"  etc. 


"A.  R.,  administrator  of  all  and  singular  the 
goods  and  chattels,  rights,  credits,  and  effects  of 
D.  D.,  late  of ,  deceased." 


"  E.  X.,  executor  of  the  last  will  and  testament 
of  D.  D.,  of ,  deceased,"  etc. 


"  G.  N.,  guardian  of  the  person  and  estate  off. 
D.,  minor  heir  of  D.  D.,  of ,  deceased,"  etc. 

"A.  B.,  C.  D.,  and  E.  F.,  of ,  in ,  part- 
ners, doing  business  (as )  under  the  firm-name 

and  style  of  A.  B.  &  Co." 


"  R.  R.,  receiver  in  the  matter  of  A.  B.  vs.  C.  D., 
in  the court  of ." 


"T.  R.,  trustee  oi  (state  what)." 

2.  Recitals  for  Explanation. 

This  may  include  consideration,  a  statement  of  the 
condition  of  the  estate,  or  any  particulars  concerning 
the  derivation  of  title  or  material  fact  respecting  it,  or 
of  any  other  matter  requiring  explanation  upon  the  face 
•f  the  deed. 

Tii/e  by  Administrator. 

And  whereas,  A.  R.,  administrator  of  the  estate 

and  effects  of  D.  D.,  of ,  who  died  intestate, 

by  virtue  and  in  pursuance  of  an  order  of  the 

court  for  the  sale  of  the  real  estate  of  the  said  in- 
testate, by  (conveyance,  deed,  or,  indenture"),  under 
the  hand  (and  seal)  of  said  administrator,  bearing 

date  the  day  of ,  for  the  consideration 

therein  mentioned  did  (grant  and  confirm,  or,  sell 
and  convey)  unto  E.  F.,  his  heirs  and  assigns,  all 

the  above  mentioned  and  described  tract  of 

acres  (and  allowance  aforesaid),  with  the  appurte- 
nances : 

To  have  and  to  hold  the  same  forever,  as,  in, 
and  by  the  last  recited  (conveyance,  deed,  or,  inden- 
Wre,  recorded  in  the  office  of ,  m county,  in 


,  Record  E,  page  ),  relation  (or,  reference) 

being  thereto  had,  appears. 

Recital — Title  by  Attorney . 

And  whereas,  said  C.  D.,  by  his  attorney,  A.  A., 
(by  letter  [or,  power]  of  attorney,  under  his  hand  and 
seal  bearing  date  the day  of^ )  did  by  (convey- 
ance, deed,  or,  indenture)  bearing  date  the day 

of ,  for  the  consideration  therein  mentioned, 

grant  and  confirm  iorr.e\\  and  convey)  unto  E.  F., 
his  heirs  and  assigns,  all  that  tract  and  parcel  of 
acres  of  land  with  the  appurtenances: 

To  have  and  to  hold  the  same  forever,  as  in  and 
by  said  last  mentioned  (conveyance,  deed,  or  inden- 
ture, [recorded  in  the  office  for  the  recording  of  deeds, 

at ,  in  book  A,  page ],  relation  (or,  reference) 

being  thereto  had,  appears. 

Recital —  Title  by  Executors. 

And  whereas  said  E.  X.  and  T.  R.,  executors 
of  the  last  will  and  testament  of  said  D.  D.,  de- 
ceased, by  virtue  of  the  authority  and  power  to 
them  given  by  said  will,  and  pursuant  to  the 
directions  thereof,  did,  by  conveyance  under  their 

hands  and  seals,  bearing  date  the day  of , 

and  for  the  consideration  therein  mentioned, 
grant  and  confirm  unto  E.  F.,  his  heirs  and  as- 
signs, all  the  saMI  tract  of acres,  v^rith  the 

appurtenances  : 

To  have  and  to  hold  the  same  unto  him,  his 
heirs  and  assigns  forever,  as  in  and  by  said  recited 
conveyance  (recorded  in  the  office  for  the  recording 
of  deed.'!,  at ,  in ,  in  book ,  page ),  re- 
lation (or,  reference)  being  thereto  had,  appears. 
Recital—  Title  by  Deed. 

It  being  (the  same,  or,  a  part  of  the  same)  premises 
which  M.  M.,and  W.,  his  wife,  by  conveyance 

(deed,  or,  indenture),  bearing  date  the  day  of 

,  and  for  the  consideration  therein  mentioned, 

did  convey  and  confirm  unto  said  A.  B.,  his  heirs 
and  assigns  forever,  as  in  and  by  the  said  (in  part) 
recited  conveyance   (recorded    in  the  office  for  the 

recording  of  deeds,  in ,  in county,  in  book , 

page ),  relation  (or,  reference)  being  thereto  had, 

more  fully  and  at  large  appears. 

Recital —  Title  by  Deed,  Descent,  and  Patent. 

It  being  the  same  tract  which  the  State  (or, 
commonwealth)  of ,  by  patent,  bearing  date  the 

day  of (recorded  in  the  land  office  of  said 

State  \or,  commonwealth],  in  patent  book  ,  page 

),  for  the  consideration  therein  mentioned,  did 

convey  and  confirm  unto  A.  in  fee,  who  being 
thereof  lav^rfully  seized,  died  intestate,  leaving 
issue  B.  and  W.,  who  intermarried  with  C.,to 
whom  the  same  by  the  laws  of  said  State  (or 
commonwealth)  did  descend  and  come.  And  said 
B.  and  C,  and  W.,  his  wife,  by  their  joint  con- 
veyance, bearing  date  the day  of ,  and  for 

the  consideration  therein  mentioned,  did  grant 
and  confirm  unto  said  A.  B.  in  fee,  as  in  and  by 
the  said  conveyance  (deed,  or,  indenture,  [recorded 

in  the  office  for  recording  deeds,  in ,  in county, 

in  book ,  page ),  relation  (or,  reference)  beir\g 

thereto  had,  appears. 

For  Title  by  Descent,  see  preceding  form  and  Title  ^y 

Administrator ,  above. 

For  Title  by  Devisee,  see  Title  by  Executor,  above. 

Recital — Title  by  Partition. 
And\vhereas,bydeed  (or  instrument)  of  partition 
between  the  said  A.  B.,  of  the  one  part,  and  the 
said  C.  D.,  of  the  other  part,  bearing  date  the 

day  of ,  partition  of  the  said  premises, 

etc.,  with  the  appurtenances,  was  made  between 
said  parties,  wherein  and  whereby  the  tract  or 
parcel  thereof,  bounded  and  limited  as  follows,  to 

wit:   beginning,  etc.;  containing  acres  and 

allowance  aforesaid,  was  released  and  confirmed 
to  the  said  C.  D.,  his  heirs  and  assigns,  forever. 

To  have  and  to  hold  to  him,  the  said  C.  D.,  his 
heirs  and  assigns  (in  severalty),  forever,  as  in  and 
by  said  deed  (or,  instrument)  of  partition  (recordet* 

in  the  office  for  the  recording  of  deeds,  in ,  in 

county,  in  deed   book  ,  page  ),  relation  (or, 

reference)  being  thereto  had,  appears. 

Title  by  Patent,  see  "Title  by  Deed,  Descent,  and 

Patent,  above. 

Title  by  Sheriff,  see  New  York,  Pennsyh>ania,  and 

General  Forms. 


3» 


CONVEYANCES. 


3.    DbsCRIPTIONS  of  PROFBKTYGRANTBO.tnTH  THB 

Iktbndko  Excbptions. 

Easement  /or  Drainage  Reserved. 

The  following  described  property,  situated 

i« ,  etc.  (desrrilung  it,  and  then  adding)  : 

Subject,  nevertheless,  to  the  perpetual  right  of 
the  owner  upon  the  prennises  upon  the  north  side 
immediately  adjoining  the  premises  hereby  con- 
veyed (constructing  a  drain,  state  where,  or)  using 
and  fully  enjoying  a  drain  or  sewer  passing 
through  said  premises  hereby  conveyed  {state 
%vkert). 

Easement /or  Party  IValls  Reserved. 

After  describing  the  property  add  : 

Subject,  nevertheless,  to  the  use  of  the  walls 
upon  the  north  and  south  sides  of  said  premises 
by  E.  F.  and  G.  H.,  owners  of  the  lots  next  ad- 
joining said  north  and  south  sides  of  the  prem- 
ises hereby  conveyed,  their  heirs  and  assigns,  as 
party  walls. 

Metes  and  Bounds. 

All  the  following  described  real  estate,  situated 

in  the  city  {or  town,  or  village  of ,  in  the)  county 

of  ,  and   State  {or  Commonwealth)  of ,  to 

wit :  Lot  number  seventy-two  (72)  and  eighty- 
eight  (88)  on  Main  street  (in  the  city,  etc.,  county 
and  State  aforesaid). 

Another. 

As  above,  etc.  Town  lot  numbered  four  (4),  as 
known  and  designated  by  the  nutnber  four  (4)  on 

the  recorded  plat  of 's  addition   to  the  town 

of ,  in  the  county  and  State  aforesaid. 

Another. 

All  that  certain  tract  or  parcel  of  land  known 
as  lot  number  seventy-nine  (79/,  in  township  num- 
ber eight  (8),  in  range  seven  (7),  in  the  county  of 

■,  and  State  of aforesaid,  containing  

acres. 

Another. 

"All,"  etc.  {as  above).  The  west  half  (J^)  of  the 
east  half  (^)  of  the  northwest  quarter  {y^)  of  sec- 
tion twenty-one  (ai),  in  township  fourteen  (14), 
range  fifteen  (15),  east  of  the  principal  me- 
ridian, containing  forty  (40)  acres,  more  or  less. 
Another. 

All  the  following  described  real  property,  situ- 
ated in  county, ,  to  wit:   The  undivided 

one-half  (54)  of  lot  number  seven  (7),  in  block  num- 
ber sixty-one  (61),  in  the  city  (or  town,  or  village)  of 

— -,  of (county  and  State  aforesaid). 

Another. 

All  that  certain  tract,  piece  or  parcel  of  land, 

situate,  lying  and  being  in  the  town  of ,  county 

of ,  and  State  of ,  known  and  described  as 

follows,  to  wit : 

Beginning  at  a  corner  stone  at  the  northeast 

corner  of  a  certain  out  lot  at  the  junction  of 

and streets  of  said  town  (s&id  corner-stone  be- 
ing  from  said  street  and  from  said 

street),  running  thence  south  twenty-three  de- 
grees (83^),  west  sixteen  (16)  rods,  thence  north 
seventy-nine  degrees  (79°),  west  ten  (10)  rods, 
thence  north  twenty-five  degrees  and  ten  min- 
utes (as'^  10'),  east  sixteen  (i6l  rods  ten  (lo) 
inches,  thence  east  by  south  to  the  point  of  be- 
ginning, containing acres. 

Another. 

All  that  certain  lot,  piece  or  parcel  of  land  (with 
the  huilUlngs  erected  thereon),  lying  and  being  in  the 

wardjCityof ,county  of ,and  State  of 

,  bounded  and  described  as  follows,  to  wit :  Be- 
ginning at  a  point  on  the  west  side  of  Twentieth 
(2oth)  street,  seventy  (701  feet  and  five  (5)  inches 
north  of  the  north  sideof  Fourth  (4th )  avenue,  run- 
ning thence  west  through  a  party  wall  and  parallel 
with  Fourth  (4th)  avenue  one  hundred  and  ten 
(no)  feet,  thence  north  fifty-one  (51 )  feet  and  six 
(6)  inches,  thence  east  and  through  another  party 
vtrall  and  parallel  with  said  Fourth  (4th)  avenue 
one  hundred  and  ten  (iio)  feet,  and  thence  south 
along  the  west  side  of  said  Twentieth  (20th  1  street 
fifty-one  (51)  feet  and  six  (6)  inches  to  the  point  or 
place  of  beginning. 

Natural  Boundaries ,  Highways,  etc. 

Beginning  at  the  west  side  ior  liaiik)  of  the 

river  (or  creek)  at  the  junction   of  the  run 

(creek,  »r  ravine,  etc.),  and  running  thence  north 


along  the  west  bank  of  said  rivef rods  unto  a 

ledge  of rock,  thence  west  to  the  highway 

leading  from to ,  thence  south rods  to 

said  run  (creek,  or  ravine,  etc.),  thence  along 

the  course  of  said  run,  etc.,  unto  the  place  of  be- 
ginning, containing acres,  more  or  less. 

4.  Dower. 
See  title  Acknowledgment,  ante,  and  Dower, above. 

Habendum  lu  Deeds  and  Other  Con- 
veyanveH. 

The  habendum  limits   and  defines  what  estate  th» 
grantee  is  to  have  m  the  premises  conveyed. 
Habendum — In  Feb  Simple. 
To  have  and  to  hold  the  same  forever. 

Another. 
To  have  and  to  hold  the  same,  together  with 
ti.e  appurtenances  and  every  part  thereof,  for- 
ever. 

Another. 
To  have  and  to  hold  the  same,  with  the  appur- 
tenances, unto  the  said  C.  D.,his  heirs  and  as. 
signs,  in  fee  simple,  forever. 
Another. 
To  have  and  to  hold  the  same,  together  witb 
all  and  singular  the  tenements,  hereditaments 
and  appurtenances   thereunto    belonging    or  in 
anywise  appertaining  unto  the  said  party  of  the 
second  part,  his  heirs  and  assigns,  forever. 
Another. 
To  have  and  to  hold  the  said  messuage  or  tenC'. 

ment  and   tract  of acres  of  land,  heredita^ 

ments  and  premises  hereby  granted  or  mentioned 
or  intended  so  to  be,  with  the  appurtenances  and 
every  part  thereof,  unto  the  said  C.  D.,  his  heirs 
and  assigns,  to  the  only  proper  use  and  behoof 
of  the  said  C.  D.,  his  heirs  and  assigns,  forever. 
Habendum — Life  Estate. 
To  have  and  to  hold  the  same  during  the  nat- 
ral  life  {or  lives)  of . 

Habendum — With  Conditions. 
See  Mortgages  and  Trust  Deeds,  post. 
To  have  and  to  hold,  etc.  {as  in  the  haiemdrnm 
/arms  above). 

In  trust  to  {state  what)  :  or, 
In  trust,  nevertheless,  to,  etc. ;  or. 
Reserving  and  retaining,  etc. ;  or. 
Saving  and  excepting,  etc. ;  or, 
Subject  to  {state  what) :  or. 
Subject,  nevertheless,  to,  etc. ;  or. 
Yielding  and  paying,  etc. 

Red<ieiidnni  in  Deedn  and  Other  Con* 

vo.raiioes. 

The  reddendum  (or  reservation)  is  that  clause  in  a 
conveyance  or  deed  by  which  thegrantor  reserves  some- 
thing  new  to  himself  out  of  that  which  he  granted  be- 
fore. It  usually  follows  the  habendum,  and  is  usually  in 
these  words,  "Yielding  and  paying."  In  every  good 
reddendum  or  reservation  these  things  must  concur*. 
1.  It  must  be  in  apt  words.  2.  It  must  be  of  some 
other  thing  issuing  or  coming  out  of  the  thing  granted, 
and  not  a  part  of  the  thing  itself,  nor  of  something  is- 
suing  out  of  another  thing.  3.  It  must  be  made  of  a 
thing  on  which  the  gr.Tntor  may  resort  to  distrain.  4. 
It  must  be  made  to  one  of  the  grantors,  and  not  to  a 
stranger  to  the  conveyance  or  deed.» 

Reddendum  ok  Reservation  of  Annuity. 

Yielding  and  paying  unto  W. ,  the  wife  of  seid  A, 
B.  (and  to  lierhcir.->  and  assigns),  the  yearly  rent  or 

annuity  of dollars,  in  instalments,  on 

the days  of of  each  year,  for  a  term  of 

years  from  the  (sealing  and)  delivery  of  these 

presents. 

Reddendum  or  Reservation  of  Mines,  etc. 
Excepting  and  reserving  unto  the  said  A.  B., 
his  heirs  and  assigns,  all  mines,  beds,  seams,  or 
veins  of  coal,  ironstone,  and  other  mineralswhat- 
soever  already  found  or  which  may  hereafter  be 
found  upon  or  under  the  lands  hereby  conveyed 

a-See 2  Bl  Comm.  299  :  Co.  Lilt.  47.  Shepp  Touchst. 
Ss;  Cruise  Dig.  tit.  32,  Ch.  24,  \  1 ;  Dane  Abr. 


conv?:vances. 


36t 


or  intended  so  to  be,  with  full  liberty  of  ingress, 
egress,  and  regress  at  all  times  for  said  A.  B.,  his 
heirs  or  assigns,  and  his  and  their  agents,  ser- 
vants, and  workmen  in  and  upon  said  lands,  and 
either  with  or  without  horses  and  other  cattle, 
carts  and  wagons,  and  other  carriages,  for  the 
purpose  of  searching  for,  vv^orking  said  mines,  and 
taking  and  carrying  away  the  said  minerals ; 
and  with  full  liberty  for  said  A.  B.,  his  heirs  and 
assigns,  to  drive,  make,  sink,  and  use  pits,  shafts, 
drifts,  outlets,  air  courses  and  vt^ater  courses,  and 
to  erect  and  set  up  fire  and  other  engines,  ma- 
chinery and  works,  and  to  lay  down  railroads 
and  other  roads  in,  upon,  under,  over  and  above 
said  lands  or  any  of  them,  for  the  purpose  of  more 
conveniently  working  said  mines  and  carrying 
away  said  minerals  ;  and  also  to  appropriate  and 
'use  any  part  of  the  surface  of  said  lands  for  de- 
positing, placing,  and  piling  thereon  the  minerals, 
rubbish,  v^raste,  or  other  substances  issuing  from 
said  mines  or  minerals,  and  generally  to  do  all 
other  acts  and  things  necessary,  proper,  and  usual 
for  working  said  mines  and  procuring  said  min- 
erals (aocordjng  to  the  most  approved  practice  of  min- 
ing in  the  district  wherein  they  are  situated). 

Provided  always. 

That  said  A.  B.,  his  heirs  and  assigns,  do  and 
shell  pay  to  said  C.  D.,  his  heirs  or  assigns,  the 

annual  sum  of dollars  for  every  acre,  and  so 

m  proportion  for  any  less  quantity  than  an  acre 
of  land,  the  surface  whereof  shall  be  appropriated 
or  used  for  any  of  the  purposes  aforesaid,  so  long 
as  such  appropriation  or  use  shall  continue,  and 
until  the  surface  shall  be  restored  as  nearly  as 
may  be  practicable  to  its  original  state  or  condi- 
tion before  such  appropriation  or  use  commenced. 

And  provided  further . 

That  the  ^vorking  of  said  mines  shall  be  con- 
ducted in  such  a  manner  as  not  to  endanger  any 
buildings  now  being  on  said  lands,  or  which  may 

hereafter  be  erected  on  the  site  of,  or  within 

feet  from  the  site  of  any  present  buildings,  and 
generally  to  do  as  little  damage  or  injury  to  the 
surface  of  the  said  lands  as  shall  be  consistent 
^vith  and  necessary  to  the  proper  working  of  said 
mines,  and  procurement  and  carrying  away  of 
said  minerals. 

And  provided  further : 

That  said  A.  B.,  his  heirs  or  assigns,  shall  pay 
said  C.  D.,his  heirs  or  assigns,  adequate  compen- 
sation for  all  damage  or  injury  ^which  he  or  they, 
or  his  or  their  tenants  may  sustain  by  the  reason 
of  the  working  of  said  mines,  or  the  exercise  of 
any  of  the  liberties  and  privileges  hereby  ex- 
ceoted  and  reserved ;  the  amount  of  such  compen- 
sation and  all  other  matters  in  difference  which 
may  arise  between  said  parties  in  connection 
with  said  excepted  mines,  minerals,  liberties,  and 
privileges  to  be  ascertained  by  arbitration,  etc. 
See  Agency,  Arbitration  Forms,  ante. 

Reddendum  or  Reservation — For  Streets,  etc. 

Saving  and  reserving  from  and  out  of  the  here- 
by granted  premises  such  streets  as  are  now,  or 
hereafter  may  be  laid  out  through  the  premises 
hereby  granted.  And  whenever  any  such  streets 
may  be  laid  out  over  and  across  the  said  premises 
that  the  same  shall  be  made  at  the  expense  of 
said  party  of  the  second  part,  his  heirs  or  assigns, 
and  be  and  remain  forever  public  streets  as  other 
public  streets  are  or  ought  to  be. 

See  Descriptions  Subject  to  Conditions,  above. 

Conditions  In  Deeds  and  Otber  Con- 
veyances. 

The  condition  in  a  conveyance  or  deed  is  a  qualifica- 
tion or  restriction  annexed  to  the  conveyance,  whereby 
it  ifc  provided  that  in  case  a  particular  event  does  or 
does  not  happen,  or  in  case  the  grantor  or  grantee  does 
or  omits  to  do  a  particular  act,  an  estate  shall  com- 
mence, be  enlarged,  or  be  defeated.*  "Subject,  never- 
theless, to,"  or  "  Subject  to,"  or  "  On  condition,"  etc. 
Thus  the  property  conveyed  maybe  subject  to  the  pay- 
ment of  an  annuity,  an  easement,  an  incumbrance,  a  mort- 
g.-ige,  or  other  condition,  qualification,  restriction,  etc. 

See  Dbsckiition,  etc.,  with  ExcBFnoNS,  and  Ha- 
bendum and  Reddendum,  above ;  Mortgages,  Trust 
Deeds,  post. 

a-Greenl.  Cruise  Dig.  tit.  xiii,  c.  i,  g  i. 


<'ovenanfs  in  Deeds  and  Other  Convey- 
ances. 

For  the  law  concerning  covenants,  see  Covenants, 
etc.,  above. 

Covenant — Op  Onk  Person  to  Another. 
Genera/  Form. 

And  the  said  A.  B.,  for  himself,  his  heirs,  exec- 
utors, and  administrators,  does  covenant  \vith 
the  said  C.  D.,  his  heirs,  executors,  and  adminis- 
trators {or,  his  heirs  and  assigns,  or,  his  heirs,  exec- 
utors, administrators,  and  assigns). 

Covenant — Against  Acts  op  Grantor. 

And  said  party  of  the  first  part,  for  himself,  and 
his  heirs,  executors,  and  administrators,  does 
covenant,  promise,  and  agree  to  and  with  said 
party  of  the  second  part,  his  heirs,  executors, 
administrators,  and  assigns,  that  he  has  not 
made,  done,  committed,  or  suffered  any  act, 
matter,  or  thing  whatsoever,  whereby,  or  by 
means  whereof  the  above-granted  premises,  or 
any  part  thereof,  now  are,  or  at  any  time  here- 
after, shall  or  may  be  impeached,  charged,  cr 
incumbered  in  any  manner  or  form  wrhatsoever. 
Another — Short  Form. 

And  said  grantor  hereby  covenants  and  agrees 
that  he  has  not  done  or  suffered  anything  what- 
soever whereby  the  title  of  the  said  premises  to 
said  grantee  can  be  rendered  invalid  or  annulled. 
Covenant — Against  Inctimbrances,  etc 

And  said  {here  insert  the  name  o/  the  party  or  par. 
ties  warranting),  for  himself  {or,  themselves),  his 
{or,  their)  heirs,  executors,  or  administrators,  does 
hereby  covenant,  promise,  and  agree  to  and  with 
said  party  of  the  second  part,  that  at  the  delivery 
of  these  presents  that  he  was  lawfully  seized  in 
his  own  right,  of  an  absolute  and  indefeasible 
estate  of  inheritance,  in  fee  simple,  of  and  in  all 
and  singular  the  above  granted  and  described 
premises,  with  the  appurtenances ;  that  the  same 
are  free,  clear,  discharged,  and  unincumbered  of 
and  from  all  former  and  other  grants,  titles, 
charges,  estates,  judgments,  taxes,  assessments, 
and  incumbrances,  of  what  nature  or  kind  soever ; 
and  that  he  will  warrant  and  forever  defend  the 
same  unto  said  party  of  the  second  part,  his  heirs 
and  assigns,  against  said  parties  of  the  first  part, 
their  heirs,  and  all  and  every  person  or  persons 
whomsoever,  lawfully  claiming  or  to  claim  tbe 
same. 

Covenant — ExBCtrroRS  or  Administrators. 

And  the  said  party  of  the  first  part  (executor,  or, 
administrator  aforesaid)  does  hereby  covenant  with 
the  said  party  of  the  second  part,  his  heirs  and 
assigns,  that  he  has,  in  all  things,  observed  the 
requirements  of  la>v,  and  of  all  orders  in  and  con- 
cerning said  sale. 

The  Same — Covenant  o/  Seizin. 

And  said  parties  of  the  first  part  (executors,  or 
administrators  aforesaid)  do  jointly  and  severally 
for  themselves,  their  heirs,  executors,  and  admin- 
istrators, covenant,  promise,  and  agree  to  and 
with  said  party  of  the  second  part,  that  D.  D. 
died  lawfully  seized  in  his  own  right  of  a  good, 
absolute,  and  indefeasible  estate  of  inheritance 
in  fee  simple,  of  and  in  all  and  singular  the  above 
granted  premises,  with  the  appurtenances  (sub- 
ject to,  state  what,  i/ anything). 

Covenant — Further  Assurance. 

And  the  said  A.  B.  (party  hereto),  for  himself,  his 
heirs,  executors,  and  administrators,  does  cove, 
nant,  promise,  and  agree  with  said  C.  D.,  his 
heirs  and  assigns.that  he,thesaid  A.  B.,  his  heirs, 
executors,  and  administrators,  at  the  request  and 
charges  of  said  C.  D.,  his  heirs,  executors,  or  ad- 
ministrators, shall  and  will  from  time  to  time,  acd 
at  all  times  hereafter,  execute,  deliver,  and  ac- 
knowledge, or  cau&e  to  be,  etc. ,  all  and  every  such 
further  and  other  acts,  conveyances,  and  assur- 
ances in  law,  for  the  better  assuring  unto  said  C. 
D. ,  bis  heirs  and  assigns,  the  premises  in  the  man- 
ner above  conveyed,  or  mentioned  or  intended  to 
be  conveyed,  as  by  said  C.  D.,  nis,  etc., or  his  or 
their  counsel,  learned  in  the  la^v,  shall  be  reason- 
ably advised  and  required. 

Another — Short  Form. 
That  I,  the  said  A.  B.,  and  all  persons  hereafter 


30* 


CONVfiVANcES. 


claiming  under  me,  will  at  any  time  hereafter,  at 
the  request  and  expense  oT  said  C.  D.,  his  heirs 
and  assigns,  make  all  such  further  assurances 
for  the  more  effectual  conveying  of  the  said 
premises,  >vith  the  appurtenances,  as  may  be 
reasonably  required  by  him  or  them. 

Covenant — Hitsband  for  Shlf  and  Wife. 
And  the  said  A.  B.,  for  himself,  etc.,  and  for 
and  on  behalf  of  the  said  W.,  his  'wife,  and  her 
ti.:irs,  does  covenant,  etc. 

Covenant — Joint. 
And  said  A.  B. ,  C.  D. ,  and  E.  F. ,  for  themselves, 
their  executors,  and  administrators,  do  covenant, 
etc. 

Covenant — Joint  and  Several. 
And  said  A.  B.,  C.  D.,and  E.  F.,  for  themselves, 
their  heirs,   executors,    and    administrators,   do 
jointly  and  severally  covenant,  etc. 

Covenant — Mutual — To   Convey,  etc. 

And  the  said  C.  D.,  for  himself  and  his  heirs, 
executors  and  admimstrators,  does  covenant, 
promise  and  agree,  to  and  ^vith  A.  B.,  his  heirs 
and  assigns,  that  he  will  pay  said  A.  B.,  his  heirs 

ar.d  assigns,  the  sum  of dollars,  on  the  

day  of next,  and  in  consideration  thereof  the 

said  A.  B.,  for  himself,  his  heirs,  executors  and 
aaministrators.does  covenant,  promise  and  agree 
tc  and  with  the  said  C.  D.,  his  heirs  and  assigns, 
that  he  will  make  and  execute  to  the  said  C.  D., 
his  heirs  and  assigns,  a  good  and  sufficient  deed 
of ;  inheritance,  in  fee  simple,  or  otherwise ,  as  the  case 
I'l.ty  ie),  upon  the  payment  of  the  said  sum  as 
aforesaid. 

Covenant — Power  to  Convey. 

That  said  party  of  the  first  part  {or  that  said  A. 
B  ),  at  the  time  of  the  execution  (or  sealing)  and 
delivery  of  these  presents  has  good  right,  full 
power,  and  lawful  authority  to  grant,  bargain, 
sell  and  convey  the  same  in  the  manner  aforesaid. 

Covenant — Quiet  Enjoyment. 

That  said  A.  B.,  for  himself  and  his  heirs,  ex- 
ecutors and  administrators,  does  covenant,  prom- 
ise and  agree,  to  and  with  said  C.  D.  (or  said  parly 
of  the  second  part),  his  heirs  and  assigns,  shall  and 
may  at  all  times  hereafter  peaceably  and  quietly 
have,  hold,  use,  occupy,  possess  and  enjoy  the 
above  granted  premises  and  every  part  and  par- 
cel thereof,  with  the  appurtenances,  without  any 
restraint,  suit,  action  or  disturbance  from  said 
A.  B.  {or  said  party  of  the  first  part),  his  heirs,  etc., 
or  any  other  person  or  persons  lawfully  claiming 
or  to  claim  the  same. 

Covenant — Seizin. 

That  said  party  of  the  first  part  (or  that  said  A. 
n,  I,  at  the  time  of  the  execution  (or  sealing)  and 
delivery  of  these  presents  is  lawfully  seized  in 
his  own  right  {or  otherwise,  as  the  rase  7>iay  /v),  of  a 
good,  absolute,  and  indefeasible  estate  of  inher- 
itance, in  fee  simple,  of  and  in  all  and  singular 
the  above  granted  premises,  with  the  appurte- 
nances {if  conveyed  subject  to  incumbrances,  etc.,  say 
iubject  as  aforesaid). 

Covenant — Several. 

'And  the  said  A.  B.,  C.  D.,  E.  F.,  and  G.  H.,  for 

themselves,  severally  and  respectively,  and  for 

their  several  and  respective  heirs,  executors,  and 

administrators  (and  not  jointly,  or  the  one  (or  the 

other,  or  others),  do  covenant  >vith  said  ,  his 

iieirs  and  assigns,  that,  etc. 

Covenant — Warranty. 
See  Covenant  Against  Incumbrances,  above. 

Conclusions  In  1>eedM  and  Otber  Con- 
veyances. 

Signed  (and  sealed') ;  or. 


In  witness  whereof,  we  hereunto  set  our  hand«, 

etc.  ;  or. 

In  witness  whereof,  the  parties  to  these  pres- 
ents have  hereunto  set  their  hands,  etc.  ;  or, 

In  witness  whereof,  we  have  hereunto  set  our 

hands  (and  affixed  our  seals)  (at },  this  day 

of ;  or,  

In  witness  whereof,  we  have  hereunto  set  our 
hands  {or  subscribed  our  names),  the  day  and  year 
first  {or  last)  above  written  ;  or. 


Signed,  sealed,  and  acknowledged;  or. 

Witness  our  hands  (and  seals');  or. 

Given  under  our  hands  (and  seals') ;  or, 

f-In  many  States  private  seals  are  abolished.     This 
does  not,  however,  include  the  seals  ot  corporations. 


In  witness  whereof,  A.  B.,  the  party  of  the  first 
part,  and  C.  D.,  the  party  of  the  second  part,  \a, 
their  own  proper  persons,  have  hereunto  respect- 
ively and  severally  set  their  hands  and  seals,' this 

day  of {or  the  day  and  year  first,  or  last) 

above  written. 

Sig^natnre  (and  Seals')  in  Deeds  and 
Other  Conveyances. 

Where  a  person  acts  in  a  representative  capacity,  ha 
must  sign  in  that  capacity;  thus,  if  A.  R.   is  adminis- 
trator, he  must  sign  A.  R.,  Administrator. 
{Signed)        A.  B. 
Corporation  Signati're. 
See  Conveyances — Corporations,  post. 

Partnership  signatures  in  conveyances  affecting 
leal  estate  or  any  interest  therein  should  never  be  by  the 
firm-name.  Each  member  of  the  partnership  must 
sign  his  own  name  himself,  or  else  give  special  authority 
to  another  to  sign  it.     See  title  Partnership,  post. 

Representative  and  individual  signatures  may 
be  as  follows,  adding  the  seal  or  scrawl  (scroll)  when  it  is 
required  by  law.' 

A.  ^.,lyA.  A., 

kis  Attorney  in  Fact.   {Seal.^ 

his 
A.  X  B. 

mark. 

A.  R.,  Administrator.  " 

A.  X. ,  Administratrix.  " 

£.  X.,  Executor.  " 

E.  X.,  Executrix.  '' 

G.  N.,  Guardian.  " 

S.  F.,  Sheri^.  " 

T.  T.,  Trustee.  " 

Attecitntion   or   Witness   Clanses   in 
Deeds  and  Oilier  Conveyances. 

Test;  or. 

Attest;  or. 


In  witness;  or, 
^Vitnesses  ;  or. 
In  presence  of;  or. 


Executed  (and  delivered)  in  presence  of;  or. 

Signed  and  interchanged  in  presence  of;  or. 

Signed,  sealed',  and  delivered  in  presence  of  i  or. 

Signed,  sealed',  and  acknowledged  in  presence 
of:  

Attestation— Erasures  or  Interlineations. 
(Signed,  sealed' — or  executed)  and  delivered  by  the 
above  or  within  named  A.  B.,  the  words  "  {here 
copy  them)"  having  been  previously  interlined  lor 
erased)  in  the  sixth  and  seventh  lines  of  the  first 
page,  in  the  presence  of 

{Signed)       JJ^-gl"-     

In  %vitness  whereof,  the  said  party  of  the  first 
part  has  hereunto  set  his  hand  and  seal,  the  day 
and  year  first  above  written. 

[SigHature  and  Seal.\ 


CONVEYANCES. 


303 


Or  that:  (Pigned,  sealed — or  exertited)  and  deliv- 
ered by  the  above-named  A.  B.  (four  words  being 
erased  on  the  third  page;  in  the  presence  of,  etc. 

Or  thus  :  (Signed,  sealed — or  executed)  and  deliv- 
ered by  the  above-named  A.  B.  (the  name  E.  J. 
being  previously  written  over  an  erasure  on  the  second 
page;  in  the  presence,  etc. 

Signed,  sealed,  and  delivered  in  the  presonce 
of  (the  word  "  five,"  on  the  first  page  was  erased,  the 
words,  "be  the  same  more  or  less,"  written  over  an 
erasure;  on  the  second  page,  the  words  "or  assigns," 
interlined  in  three  places,  and  the  word  "forthwith" 
cancelled  on  the  third  page,  before  execution). 
[Sigiiaiuye  of  witness  J^ 

Attestation — Blind  Pbrson. 
Oy  the  Execution  of  a  Deed. 
Afemorandum.  The  above  written  instrument 
was  signed,  sealed,  and  delivered  by  the  above- 
named  A.  B.,  and  he  being  blind,  the  same  was 
first  carefully  and  deliberately  read  over  to  him, 
in  the  presence  of  us. 

Attestation — Deaf  and  Dumb  Person. 
Cj'  the  Execution  of  a  Deed  by. 
MeiiiorandujH.  The  above  written  instrument 
was  signed,  sealed,  and  delivered  by  the  above- 
named  A.  B. ,  who  being  deaf  and  dumb,  but 
ciipable  of  rean'ing,  the  same  was  first  read  over 
by  him,  and  hu  seemed  perfectly  to  understand 
the  same,  in  the  presence  of  us,  etc. 

Attestation — Illiterate  Prrson. 

Of  the  Execution  of  a  Deed  by. 

J\Iet>iorandum.     The   above  written   instrument 

was  signed,  sealed,  and  delivered  by  the  within- 

niimed   A.  B.,  the  same   being   previously  read 

over  to  him  in  the  presence  of,  etc. 

Attestation — Power  of  Attorney. 
Of  a  Deed  Executed  tinder. 
(Signed,  sealed,  or,  executed)  and  delivered  by  the 
within-named  A.  A.,  astheattorney  of  the  within- 
named  A.  B.,  in  the  presence  of,  etc. 

Attestation — Self  and  for  Another. 
Of  a  Deed,  Executed  by  one  of  the  Parties  in  his  oivn 
right,  and  as  the  Attorney  of  Another. 
(Signed,  sealed,  or  executed)  and  delivered  by  the 
above-named  A.  B.  with  his  own  name  and  as 
his  own  act  and  deed,  and  afterwards,  as  the 
attorney,  and  with  the  name,  and  as  the  act  and 
deed  of  the  above-named  C.  D.,  by  virtue  of  the 
authonity  given  to  him,  the  said  A.  B.,  for  that 
purpose,  by  the  indenture  of  assignment  from 
the  said  C.  D.  to  him,  the  said  A.  B.,  and  which 
is  above  recited,  in  the  presence  of,  etc. 

SHORT  ]>£EI>  FORMS. 

Conveyance — Chancellor  Kent's  Deed. 
This  form  is  given  by  Chancellor  Kent  as  siiiTicient  to 
convey  an  absolute  fee  in  any  part  of  the  United  States  » 

I,  A.  B.,  in  consideration  of dollars,  to  me 

paid  by  C.  D.,  do  bargain  and  sell  to  C.  i).  (and 

liis  heirs)  the  lot  of  land  (  bounded,  or,  described),  etc. 

\Vitness  my  hand  and  seal,  etc. 

For  form  of  Acknowledgment,  see  that  title. 

Conveyance — California  Deed. 

I,  A.  B.,  grant  to  C.  D.  all  that  real  property 

situated  in county,  of  the  State  of  California, 

bounded  [or,  described)  as  follows  : 

Witness  my  hand  this day  of .    A.  B. 

For  form  of  Acknowledgment,  see  that  title. 
CcNVEv.\NCE — Indiana  Deed. 
A.  B.  conveys  and  warrants  to  C.  D.  (description 

of  the  pi-einises),  for  the  sum  of . 

Witness  my  hand  and  seal  this day  of . 

A.  B.       [SEAL.J 

For  form  of  Acknowledgment,  see  that  title. 
Conveyance — Virginia  and  Texas  Deed. 
A.  B.  doth  bargain,  sell,  and  grant  unto  C.  D. 
all   liere  follows  t/ie  description  of  the  real  estate  con- 
veyed). 
Witness  the  following  signature  and  seal. 

A.  B.     [seal.] 
For  form  of  Acknowledgment,  see  that  title. 

n-4  Kent  Comm.  461.  It  is  sustained  by  19  N.  H. 
487;  I  Mass.  219  ;  34  Miss.  18  ;  13  Gratt.  653  ;  2  Dana, 
31.    I>-A  coveuant  of  this  sort  aught  not  to  be  entered 

80 


T.OXO  1>EEP  70RMS. 

See  New  Yokk,  Pennsylvania,  and  the  various  other 
Stale  forms,  ante. 

OENERAIi  DEED  FOR9IS. 

Conve.yance — AdniiiiiMtrator*!*  Dee4l. 

For  other  General  Forms,  see  the  various  States,  ante. 
Know  all  men  by  these  presents :  or. 
This  conveyance  (or,  deed,  or,  indenture),  made 

this day  of ,  witnesseth : 

That  I,  A.  R.,  of ,  as  administrator  of  the 

goods  and  estate  which  were  of  D.  D.,  late  of 

,  deceased,  intestate,  being  duly  empowered 

in  this  behalf  by  the court,  for  the circuit 

lyor,  district),  at  ,  in  county,  in  pursuance 

of  a  sale  at  public  auction,  and  in  consideration 

of  the  sum  of ,  to  me  paid  by  E.  P.,  of 

(who  was  the  highest  bidder  at  said  sale  for  the  estate 
hereinafter  described),  the  receipt  whereof  (or,  of 
wliich)  I  do  hereby  acknowledge,  do  hereby  grant, 
bargain,  sell,  and  convey  unto  said  E.  F.,  his 
heirs  and  assigns  forever,  a  parcel  of  land  situate 
in county,  and  State  of ,  bounded  and  de- 
scribed as  follows,  to  wit :  (here  follows  the  de- 
scription). 

To  have  and  to  hold  said  parcel  of  land,  with 
the  privileges  and  appurtenances  thereof,  to  the 
said  £.  P.,  his  heirs  and  assigns  forever. 

And  I,  the  said  A.  R.,  do  covenant  with  said  E. 
P.,  his  heirs  and  assigns  (That  said  D.  D.  died 
seized  of  the  above  granted  premises'^):  that  I  am 
duly  empowered  to  convey  the  same  to  the  said 
E.  P.,  as  aforesaid  :  that  I  have  in  all  things  ob- 
served the  rules  and  directions  of  the  law  in  said 
sale  :  and  that  I  will,  and  my  heirs,  executors, 
and  administrators  shall,  warrant  and  defend  the 
same  unto  the  said  E.  P.,  his  heirs  and  assigns, 
against  all  persons  claiming  the  satne,  by,  from, 
or  under  the  said  D.  D.,  or  me,  the  said  A.  R., 
but  against  no  other  persons. 
In  witness  whereof,  I   have  hereunto  set  my 

hand  (and  seal)  this day  of (or,  the  day  and 

year  first  above  written).  A.  R.,  [seal.] 

Administrator. 

For  form  of  Acknowledgment,  see  that  title. 

Conveyance— Adiniiaistrator  De  Bonis 

noil  Deed. 

With  the  Will  Annexed^Setting  forth  Orders  at 

Length. 
To  all  to  whom  these  presents  shall  come,  A. 

R.,  of ,  administrator  with  the  will  annexed 

of  the  goods  and  chattels,  rights  and  credits, 
which  have  not  been  administered,  and  of  which 

D.  D.,  late  of ,  deceased,  sends  greeting:  or. 

This  conveyance  (deed,  or,  indenture),  made  this 

day  of ,  by  A.  R.,  administrator  of  the 

estate  and  effects  of  D.  D.,  deceased,  witnesseth : 
or. 

Know  all  men  by  these  presents : 

Whereas,  the court,  holden  at ,  in , 

at  its term,  on  the  day  of ,  upon  ap- 
plication duly  made  by  A.  P.,  granted  an  order 
for  the  sale  of  certain  real  property  of  said  D.  D. 
in  the  words  and  figures,  as  follows:  (here  copjt 
the  order  at  lengi/i )  : 

And  whereas,  pursuant  to  law,  and  the  terms 
of  said  order,  upon  giving  bond,  being  duly 
sworn,  and  upon  due  notice,  valuation,  and  ap- 
praisement, a  sale  was  by  me  made  at  public 
auction  to  E.  P.  of  the  hereinafter  granted  prem- 
ises, the  same  being  (a  part  of)  the  premises  de- 
scribed in  said  order,  for  the  sum  of dollars, 

he  being  the  highest  bidder  therefor,  returns  of 
which  was  thereupon  fully  made  to  said  court ; 

And  whereas,  upon  examination  of  said  returns 
by  said  court  it  appearing  that  such  sale  was  duly 
and  legally  made,  and  fairly  conducted,  and  that 
the  sum  bid  was  not  disproportional  (or,  exceeded 
two-thirds  [or,  three-fourths  |  the  appraised  value  there- 
of, or,  that  a  greater  than  the  above  sum  cannot  be  ob- 
tained),  said   court  did,  on  the  day  of  , 

make  an  order  confirming  said  sale,  and  directing 
a  conveyance  lor,  deed,  etc.)  to  be  executed,  'which 
order  is  in  the  words  and  figures  following  (here 
copy  the  order  at  length)  : 

into  by  the  administrator.  It  is  sufficient  that  he  con- 
vey the  property  sold,  and  covenant  only  for  his  «wa 
acts. 


J<H 


CONVEYANCES. 


Now,  thfrefore  (Vnow  ye  thnt)  1,  A.  R.,  by  virtue 
of  the  power  and  authoi  ity  in  me  vested  as  afore- 
said, and  in  consideration  of  the  sum  of dol- 
lars to  me  paid  by  said  E.  F.,  the  receipt  (of  which, 
rr)  whereof  is  hereby  acknowledged,  do  hereby 
grant,  bargain,  sell  and  convey  unto  said  E.  F., 
his  heirs  and  assigns,  forevjr,  all  i.liere  foUoius  the 
description  of  tlie  premises  conveyed). 

To  have  and  to  hold  the  above-granted  prem- 
ises to  the  said  E.  F.,  his  heirs  and  assigns,  for- 
ever: 

And  I,  the  said  A.  R.,  for  myself,  my  heits,  ex- 
ecutors, and  administrators,  do  hereby  covenant, 
promise  and  agree  with  said  E.  F.,  his  heirs  and 
jissigns,  that  in  pursuance  of  the  order  aforesaid 
1  took  the  oath,  gave  bond,  and  public  notice, 
and  made  the  sale  and  due  return  thereof  as 
above  set  forth,  and  in  all  things  have  observed 
the  requirements  of  the  law  and  said  order  in 
said  sale. 

In  witness  whereof,  I,  the  said  A.  R.,as  admin- 
istrator aforesaid,   have  hereunto  set    my  hand 

(and  seal)  this  day  of (or  the  day  and  ytar 

first  above  written).  A.  R.,  \Seal  J 

Administrator. 

(Attestation  when  necessary.) 

For  form  of  Acknowledgment,  see  that  title. 

Conveyance— A«l mill iMirator'M  Deetl. 
iVhen  Intestate  has  Contracted  to  Comiey 

To  all  to  whom  these  presents  shall  come,  etc. 
{as  in  the  above  form).     Or, 

This  conveyance,  etc.  (as  in  the  above  forni). 

Whereas,  the  said  D.  D.,  in  his  lifetime,  and  (on 

or  about  the day  of ),  by  a  contract  bearing 

date  the day  of ,  agreed,  to  and  with  E. 

P.,  of ,  to  sell  and  convey  to   him,  his  heirs 

and  assigns,  forever,  the  premises  hereinafter  de- 
scvibed,  in  consideration  of  the  payment  by  said 

E.  F.  of  the  sum  of dollars  ;  butsaid  D.  D.  died 

intestate,  without  performing  said  contract ; 

And  whereas,  at  the term  of  the court, 

holden  at  ,  in  ,  upon  the  application  of 

,  said  court  did,  on  the day  of ,  order 

said  administrator  to  carry  into  effect  the  terms 
and  conditions  of  said  contract: 

Now,  therefore  (know  ye  that),  by  virtue  of  the 
authority  and  order  aforesaid,  and  in  pursuance 
of  the  terms  and  conditions  of  said  contract,  on 
the  part  of  said  D.  D.  to  be  performed,  and  in 
consideration  of  the  payment  to  me  of  said  sum 

of dollars  by  said  E.  F.,and  the  performance 

and  fulfilment  of  all  things  in  the  above-named 
contract  on  his  part  to  be  performed,  I,  the  said  A. 
R.,  do  hereby  grant,  bargain,  sell  and  convey 
unto  said  E.  F.,his  heirs  and  assigns,  forever,  the 
said  {lie}  e  follows  a  description  of  the  premises),  with 
the  appurtenances. 

To  have  and  to  hold  the  same  unto  the  said  E. 
P.,  his  heirs,  to  his  and  their  use  forever. 

In  witness  whereof,  etc. 

For  form  of  Acknowledgment,  see  that  title. 

Coiiveyauoe— Adniinf  Hi  razor's  Deed. 

With  a  Recital. 

To  all,  etc.  (as  in  aboze  form).   Or, 

This  conveyance,  etc.  (as  in  the  above  form). 

Whereas,  the court,  at  its term,  holden 

at .  in  ,  on  the  day  of ,  did  em- 
power and  order  me  to  sell,  and  to  make,  execute 
and  deliver  good  and  sufficient  deeds,  conveying 
BO  much  of  the  real  estate  of  the  said  intestate  as 

should  amount  to  the  sum  of dollars,  for  the 

payment  of  the  just  debts  of  said  intestate,  with 
the  actual  and  necessaty  incidental  costs  and 
charges ; 

And  whereas,  having  given  the  bond  and  taken 
the  oath  required  by  law,  and  given  public  notice 
of  the  time  and  place  of  the  sale  of  the  real  estate 
hereinafter  described  (hy  an  advertisement  thereof 

pnblished  for consecutive  weeks,  beginning  on  the 

day  of ,  m  the newspaper,  pnblisiied  and 

of  general  citcnlation  in county),  I  have  sold  said 

real  estate  to  E.  F.,  of ,  for  the  sum  of 

dollars,  which  was  the  highest  sum  bid  therefor 

at  the  public  sale  thereof  on  the day  of , 

at ,  in : 

Now,  therefore,  etc.  {as  m  the  second  preceding 
form). 


Conveynnre— AMHlffunieiit  of  Dee«l. 

See  titles  A«si(;NMBNr  and  Cuntkacis,  ante. 
C'oii%'eyance — A((<n>iiey  in  Fael. 

See  forms  in  vatious  States,  ante. 

This  conveyance  (or  deed,  etc.),  made  this 

day  of ,  by  A.  B.,  of ,  of  the  first  pait,  by 

A.  A.,  his  attorney  in  fact,*  to  C.  D.,  of  ,  of 

the  second  part,  witnesseth  : 

That,  etc.  (as  in  the  ordinary  forms). 
In  witness  whereof,  said  party  of  the  first  pait 
has  hereunto,  by  A.  A.,  his  attorney  in  fact,  stt 
his  hand  (and  seal),  the  day  and  year  first  above 
written.  P%..'B.,t.y  A.  A., 

his  Attorney  in  Fact. 
Or  the  following  may  be  substituted  : 
In  witness  whereof,  said  A.  A.,  in  pursuance  of 
the  letter  of  attorney  hereunto  attached  (<>r  a  copy 

of  which  is  hertunto  attached),  bearing  date  the 

day  of ,  has  hereunto  set  the  hand  (and  scii) 

of  his  said  principal  (this day  of ),  on  the 

day  and  year  first  above  written. 

A.  ^.,byA.A  , 
Ms  Attorney  in  Fact. 
For  form  cf  Acknowledgment,  see  that  title. 
The  following  may  be  inserted  at  the  *  if  desirable: 
*  Specially  constituted  by  power  of  attorney, 

bearing  date  the day  of ,  and  recorded  in 

the  office  for  the  recording  of  deeds  in county, 

State  of ,  in  deed   book  ,  page ,  as  by 

reference  thereunto  had  appears. 

<'onveyanc« — Bond  foi*  Deed. 
Sec  title  Bonus,  ante. 

Conveyance — ConiniiNsioners'    Deed. 

On  Sale  in  Partition. 

This  deed  (or  indenture),  made  this  day  of 

,  A.  D.  ,  between  C.  O.,  of  ,  in  the 

county  of  ,   and  State   of  ,  M.  S.,of  the 

same  place,  and  R.  S.,  of ,  in  said  county,  of 

the  first  part,  to  S.  P.,  of  aforesaid,  of  the 

second  part. 

Whereas,  in  proceedings  duly  taken  and  had  in 

the court  of  ,  by  and  between   P.  A.,  R. 

T.,andN.  N.,for  the  partition  and  division  of 
certain  pretnises  mentioned  in  the  petition  in  said 
proceedings,  according  to  the  respective  rights 
of  the  parties  interested  therein,  or  for  a  sale  of 
such  premises,  if  partition  thereof  could  not  be 
made  without  prejudice  to  the  owners,  pursuant 
to  the  statute  relating  to  the  partition  of  lands 
owned  by  several  persons,  it  was  by  the  said 
court  ordered,  adjudged  and  decreed,  by  an  order 

made  on  the  day  of ,  at ,  that  a  sale 

of  the  said  premises  should  be  made  jn  order  to 
a  division  of  the  proceeds,  according  to  the  several 
rights  and  interests  of  the  said  parties ;  and 
thereupon  to  make  such  partition,  the  parties  of 
the  first  part  to  these  presents  being  qualified, 
were,  by  the  said  court,  appointed  commis- 
sioners; 

And  whereas,  such  proceedings  were  after- 
wards had  in  the  said  court  upon  the  said  peti- 
tion, that  the  said  commissioners  so  appointed, 
as  aforesaid,  were,  by  a  rule  of  said  court,  ordered 
and  directed  to  sell  the  said  premises,  with  the 
appurtenances,  at  public  auction,  to  the  highest 
bidder;  giving  notice,  according  to  law,  of  the 
time  and  place  of  such  sale  ;  and  that  they  should 
make  report  thereof  to  the  said  court; 

And  whereas,  the  said  commissioners,  pursuant 
to  the  said  order  and  direction,  after  giving  pub- 
lic notice  of  the  time  and  place  of  such  sale,  did, 

on  the day  of ,  A.  D. ,  at ,  in ■, 

in  said  county  of  ,  expose  to  sale  at  public 

auction,  all  and  singular  the  said  premises,  with 
the  appurtenances;  at  which  sale  (a  part  of)  the 
said  premises  hereinafter  described  were  sold  to 
the  said  party  of  the  second  part  for  the  sum  of 

dollars,  that  being  the  highest  sum  bid  for 

the  same  ; 

And  whereas,  the  proceedings  of  the  said  com- 
missioners in  the  premises  were  duly  reported 
to  the  said  court,  and  the  sale  approved  and 
confirmed,  on  the  day  of ,  as  by  the  rec- 
ords of  the  said  court  more  fully  appears;  and 
the  said  commissioners  were  thereupon,  by  an 
order  of  said  court  then  made,  directed  to  exe- 
cute to  the  said  party  of  the  second  part  a  coo* 


CONVEYANCES. 


305 


[[Sea/. 


tfcyanee  of  said  premises,  pursuant  to  the  sale  so 
made  as  aforesaid. 

Now  thia  .onveyance  (deed,  or,  indenture)  wit- 
nesseth : 

That  the  said  parties  oi  the  first  part,  pursuant 
to  the  direction  and  authority  to  them  given,  and 
for  and  in  consideration  of  the  sum  of  money  so 
bid  as  aforesaid,  I-  ■  them  in  hand  paid  by  the  said 
party  of  the  second  part,  the  receipt  whereof  is 
nereby  acknowledged,  have  bargained,  sold, 
aliened,  conveyed  and  v,  nfirmed,  and  by  these 
presents  do  bargain,  sell,  alien,  convey,  and  con- 
firm unto  the  said  party  of  the  second  part,  all 
the  ektate,  right,  title,  interest,  claim,  and  de- 
mand of  the  said  parties  of  the  first  part,  and  also 
•11  the  right,  title,  interest,  claim,  and  demand  of 
all  and  singular  the  several  and  respective  parties 
to  the  proceedings  in  partition  aforesaid,  of,  in 
and  to  all  \here  follows  description  0/  the  premises), 
together  with  all  and  singular  the  tenements, 
hereditaments,  and  appurtenances  to  the  same 
belonging,  or  in  anywise  appertaining;  and  the 
reversion  and  reversions,  remainder  and  remain- 
ders, rents,  issues,  and  profits  thereof,  and  of 
every  part  thereof: 

To  have  and  to  hold  the  said  above-bargained 
premises,  with  the  appurtenances,  and  every 
part  thereof,  unto  the  said  party  of  the  second 
part,  his  heirs  and  assigns ;  as  fully  and  abso- 
lutely as  the  said  parties  of  the  first  part  can  and 
ought  to  grant  and  convey  the  same,  pursuant  to 
the  statute  and  their  authority  as  aforesaid. 

In  witness  whereof,  the  said  parties  of  the  first 
part  have  hereunto  set  their  hands  and  seals,  the 
day  and  year  first  above  written. 

C.  O-l  {\Seaiy 

M.  S.  >  Commissioners.  <  \Seal.\ 
R.  S.j  I^S-^-H 

(Signed,  sealed,  or,  executed)  and  ) 

cNelivered  in  presence  of  J 

\Signature  of  7vitness.'\ 

For  form  of  Acknowledgment,  see  that  title. 

Conveyance— Coniinittee's  l>eed. 

By  Committee  of  Idiot,  Lunatic,  or  Habitual 
Drunkard. 

This  conveyance  (deed,  or,  indenture),  made  this 

day  of ,  by  C.  E.,  of ,  in  the  county  of 

,  and  State  of ,  committee  of  the  person 

and  estate  of  I.  D.,  an  idiot  (or,  a  lunatic,  or,  an 
iidbitual  drunkard ),  of  the  first  part,  and  E.  F.,  of 
,  aforesaid,  of  the  second  part. 

Whereas,  upon  an  application  duly  made,  the 

court  of ,  at ,  on  the day  of , 

by  an  order  bearin|;  date  on  that  day,  directed 
the  real  estate  of  said  I.  D.,  hereinafter  described 
(or,  so  much  of  the  real  estate  of  said  I.  D.  9&  might 

be  necessary  to  raise  the  sum  of dollars),  to  be 

sold  by  the  said  C.  E.  at  public  or  private  sale, 
subject  to  the  approbation  of  the  court,  as  by  the 
terms  of  said  order  will  more  fully  appear ;  and 
whereas,  pursuant  to  law,  and  to  the  terms  of 
said  order  (after  giving  the  additional  securits'  required 
by  said  order),  and  upon  due  notice,  a  sale  was 
made  by  said  C.  E. ,  by  public  auction,  to  the  said 
party  of  the  second  part,  of  the  hereinafter 
granted  premises,  being  (a  part  of)  the  real  estate 

aforesaid  of  said  I.  D.,  for  the  sum  of dollars, 

said  party  of  the  second  part  being  the  highest 
bidder  therefor  (or  state  sale  by  private  agreetiient): 
and  thereupon  the  said  C.  E.,  on  oath,  made  his 
report  of  such  agreement  to  this  court,  pursuant 
to  the  last  recited  order,  upon  which  an  order 

was  made  by  said  court,  at   the  ,  in  said 

county,  bearing  date  the day  of ,  confirm- 
ing said  report,  approving  and  confirming  said 
sale,  and  directing  the  same  to  be  carried  into 
effect,  and  ordering  the  said  co.nmittee  to  exe- 
:ute,  acknowledge,  and  deliver  a  deed  of  said 
premises  to  said  party  of  the  second  part,  on  his 
complying  with  the  terms  on  which,  by  said 
agreement,  the  same  was  to  be  delivered  ; 

And  whereas,  the  said  party  of  the  second  part 
has  complied  with  the  said  terms : 

Now  this  conveyance  (deed  or  indenture)  wit- 
nesseth : 

That  tne  said  party  of  the  first  part,  committee 

as  aforesaid,  in  consideration  of  the  sum  of 

dollars,  to  him  paid  by  the  said  party  of  the  sec- 


ond part,  the  receipt  wrhereof  is  hereby  ackno\wl- 
edged,  has  granted,  bargained  and  sold,  and  by 
these  presents  does  grant,  bargain  and  sell  unto 
the  said  party  of  the  second  part,  and  to  his  heirs 
and  assigns  /orever,  all  (here  follows  description  of 
premises),  together  with  all  and  singular  the  tene- 
ments, hereditaments  and  appurtenances  there- 
unto belonging  or  in  anywise  appertaining;  and 
the  reversion  and  reversions,  remainder  and  re- 
mainders, rents,  issues  and  profits  thereof;  and 
also  all  the  estate,  right,  title,  interest,  property, 
possession,  claim  and  demand  whatsoever,  as 
well  in  law  as  in  equity,  of  the  said  party  of  the 
first  part,  and  of  the  said  M.  N.,  of,  in  and  to  the 
above-granted  premises,  and  every  part  and  par- 
cel thereof. 

To  have  and  to  hold  all  and  singular  the  above, 
granted  premises,  together  with  the  appurte- 
nances and  every  part  thereof,  unto  the  said  partj 
of  the  second  part,  his  heirs  and  assigns,  forever 

(Covenant  as  to  regularity  of  proceedings,  if  de 
sired.     See  ante.) 

In  witness  whereof,  the  said  party  of  the  firs 
part  has  hereunto  set  his  hand  and  seal,  the  da 
and  year  first  above  written. 

(Signature,  title,  and  seal.) 
Signed,  sealed,  acknowledged,  and  ) 

delivered  in  presence  of  ) 

(Signature  of  witness.) 
For  form  of  Acknowledgment,  see  that  tide. 

Conveyance— Correct  9Iistakes. 

See  Conveyance,  Mistakes,  etc.,  post. 

Conveyance— Conflrmation  Deed. 

Confirming  a  Prior   Voidable  Deed. 

This  conveyance  (deed,  or  indenture),  made  vh    ' 

day  of ,  by  A.  B.,  of ,  county ,  ai  J 

State  of  ,  of  the  first  part,  to  C.  D.,of , 

in  the  said  county,  of  the  second  part. 

Whereas,  by  a  deed   bearing   date   on  the 

day  of ,  and  therein  mentioned  to  be  mad«:  b> 

the  party  hereto  of  the  first  part  (with  one  E  F.), 
of  the  one  part,  and  (or  unto)  the  said  C.  D.,ot  the 

other  part,  and  in  consideration  of ,  the  p»  em- 

ises  hereinafter  described  were  granted  and  \.on- 
veyed,  or  intended  so  to  be,  to  the  said  C.  D.^  hil 
heirs  and  assigns,  forever ; 

And  whereas  (here  recite  defect  which  rendered 
the  deed  voidable — e.g.,  infancy,  thus):  the  said  A. 
B.,  at  the  time  of  the  date  and  making  the  said 
in  part  recited  deed,  was  not  of  the  age  of  twenty- 
one  years,  but  has  since  attained  to  such  age,  and 
has  this  day,  and  before  the  execution  of  thes» 
presents,  duly  sealed  and  delivered  the  said  in 
part  recited  deed : 

Now  this  conveyance  (deed,  or  indenture)  wit- 
nesseth : 

That  (as  well  in  the  performance  of  a  covenant  for 
further  assurance  in  the  said  deed  contained,  as  also) 

for  and  in  consideration  of  the  sum  of dollars, 

to  him,  the  said  A.  B.,in  hand  paid  by  the  said 
C.  D.,  the  receipt  whereof  the  said  A.  B.  does 
hereby  acknowledge,  he,  the  said  A.  B.,  has,  and 
now  by  these  presents,  does  ratify,  approve  and 
confirm  said  deed''  and  remise,  release  and  quit- 
claim unto  the  said  C.  D.,in  his  actual  posses- 
sion now  being,  by  virtue  of  the  before-mentioned 
deed, and  to  Msheirs  and  assigns, all  (here  folloivs 
the  description  of  premises). 

To  have  and  to  hold  all  and  singular  the  above, 
described  premises,  together  with  the  appurte. 
nances  and  every  part  thereof,  unto  said  party  of 
the  second  paVt,  his  heirs  and  assigns,  forever. 

And  the  said  A.  B.  (not  namitig  the  wife),  for  him- 
self, his  heirs,  executors,  and  administrators, 
does  hereby  covenant,  promise,  and  agree  to  and 
with  the  said  party  of  the  second  part,  his  heirs 
and  assigns,  that  he  has  not  made,  done,  com- 
mitted, executed,  or  suffered  any  act  or  acts, 
thing  or  things  whatsoever,  whereby  or  by  means 
whereof,  the  above-mentioned  and  described 
premises,  or  any  part  or  parcel  thereof,  now  are, 
or  at  any  time  hereafter,  shall  or  may  be  im- 
peached, charged  or  incumbered,  in  any  manner 
or  way  whatsoever. 

Il-These  are  the  appropriate  words  for  such  a  deed, 
a  HiUtard  R.  Prop.  315. 


3o6 


CONVEYANCES. 


In  lArltness  whereof,  the  said  party  (<"-  parties) 
of  the  first  part  has  {or  have;  hereunto  set  his 
hand  and  seal  {or  their  hands  and  seals),  the  day 
and  year  first  above  written. 

{Signatures  and  seals.) 
For  form  of  Acknowledgment,  see  that  title. 

By  Indorskmknt  on  the  Prior  Deed. 

Know  all  men  by  these  presents  : 

That  I,  A.  B.,  etc.,  the  within-named  grantor, 
do  by  these   presents  grant,  ratify  and   confirm 

unto  C.  D.,  of ,  all  the  estate  which   I   may 

have  in  the  premises  within  described,  with  the 
appurtenances. 

To  have  and  to  hold  unto  him,  the  said  C.  D., 
and  his  heirs  and  assigns,  forever. 

Witness  my  hand  (and  seal),  this  day  of 

■ .  A.  B.        iSeaL\ 

Executed  in  presence  of 

For  form  of  Acknowledgment,  see  that  title. 

Conveyance — Corporation  Deed. 

This  conveyance  (deed,  or  indenture),  made  this 

r—  day  of ,  by  the  {here  give  the  legal  title  of 

the  corporation),  of ,  parties  of  the   first  part, 

and  C.  D. ,  of county,  in  the  State  of ,  par- 
ties of  the  second  part,  witnesseth  : 

That  the  said  parties  of  the  first  part,  in  con- 
sideration of  the  sum  of dollars  {thence pro- 
ceeding as  in  other  deeds  to  the  covenants,  each  o/ 
which  will  begin  tlius)  : 

And  the  said  parties  of  the  first  part  {or  name 
(he  corporation  I,  lOT  themselves  and  their  succes- 
sors, do  covenant  {etc.,  continuing  «.f  in  other  cases). 

In  witness  whereof,  the  said  parties  of  the  first 

part  in  pursuance  of  a  resolution  adopted day 

of month  A  D. ,  by  the  board  of  directors, 

have  hereunto  caused  their  corporate  seal  to  be 
affixed,  and  these  presents  to  be  subscribed  by 
their  president  and  cashier  {or  secretary,  or  other 
officer  or  officers,  as  the  corporation  may  order). 

(Signatures  of  officers.) 
[Corporate  seal.'\ 

For  form  of  acknowledgment  see  that  title. 
Another — By  a  Municipal  Corporation. 

{Same  as  in  the  preceding  /or  in  to  the  attestation, 
which  -will  be  : 

The  common  seal  of  the  said  city  of to 

tt  affixed,  the  day  and  year  first  above  written. 
(Signature  <if)  Mayor. 
[Corporate  seal.] 

By  the  Common  Council. 

{Signature  o/)  Clerk. 
Another —  Where  all  the  Directors  Sign. 

{Same  as  in  the  preceding  /ortn  to  the  attestation, 
which  will  be)  : 

In  witness  whereof,  the  president,  directors, 
and  company  of  {naming  the  corporation)  have 
hereunto  set  their  corporate  seal  by  the  hands  of 
their  president  and  directors,  and  the  president 
and    directors  have   hereunto    subscribed    their 

names,  this day  of {or  the  day  and  year  first 

above  written).  {Signat7tre  of)  President. 

{Corporate  seal.]  (Signatures  of) }  Directors. 

Conveyance— To  Corporation  Deed. 

This   conveyance   {or  deed,  or  indenture),  made 

this  day  of ,  by  A.  B.,  of county,  in 

the  State  of ,  of  the  first  part,  and  the  {/lere 

insert  the  legal  title  of  the  corporation),  of ,  par- 
ties of  the  second  part,  witnesseth  : 

That  the  said  party  of  the  first  part,  in  consid- 
eration of  the  sum  of dollars,  to-  him  in  hand 

paid  by  the  said  parties  of  the  second  part,  the 
receipt  of  which  is  hereby  acknowledged,  and 
the  said  parties  of  the  second  part  and  their  suc- 
cessors, forever  released  and  discharged  from  the 
same  by  these  presents,  have  granted,  bargained, 
sold,  aliened,  remised,  released,  conveyed  and 
confirmed,  and  by  these  presents  do  grant,  bar- 
gain, sell,  alien,  remise,  release,  convey  and  con- 
firm unto  the  said  parties  of  the  second  part,  and 
to  their  successors  and  assigns  forever,  all  {here 
/allows  the  des<  ription,  etc.,  as  in  other  deeds). 

To  have  and  to  hold  all  and  singular  the  above- 
mentioned  and  described  premises,  together  with 
the  appurtenances,  unto  the  said  parties  of  the 
tecond  part,  their  successors  and  assigns,  for- 


ever. And  the  said  A.  B.,  for  himself  and  his 
heirs,  executors  and  administrators,  does  cove- 
nant, promise  and  agree  to  and  with  the  said 
parties  of  the  second  part,  that  (etc.,  continuing  as 
in  other  cases,  but  naming  ' '  successors ' '  instead  of 
"heirs,  executors,"  etc.,  of  the  parties  of  the  second 
part). 

ror  form  of  Acknowledgment,  see  that  title. 

Conveyance— Covenants  in  Deeds. 

See  ante.  Covenants  in  Deeds,  and  text,  ante. 
Conveyance— Deed  Poll. 

See  stibie..ts.  Deed  Poll  and  Indenture,  in  ths 
text  above.  , 

Conveyance—Exchange  Deed. 

This  form  of  conveyance  is  neither  convenient  nor 
customary.  Where  an  exchange  is  made,  sepaiuie 
deeds  are  given;  the  ordinary  form  is  used  in  sue!, 
cases. 

Conveyance — Executor's  Deed. 
See  various  States,  additional  forms,  ante. 

This   conveyance  (deed,  or  indenture),  made  this 

day  of ,  between  E.  X.,  of county,  in 

the  State  of ,  executor  {or,  sole  acting  executor, 

er,  sole  surviving  executor;  or,  i/  there  are  several, 
say  :  E.  X.,  of,  etc.,  and  T.  R.,  of,  etc.,  executors)  of 

the  last  will  and  testament  of  D.  D.,  late  of , 

in county,  and  State  of ,  deceased,  of  the 

first  part,  and  C.  D.,  of county,  State  of , 

of  the  second  part,  witnesseth  : 

That  the  said  party  (or,  parties)  of  the  first  part, 
by  virtue  of  the  power  and  authority  to  him  (or, 
them)  given  in  and  by  the  said  last  will  and  testa- 
ment, and  in  consideration  of  the  sum  of 

dollars  to  him  {or,  them)  paid  by  the  said  party  of 
the  second  part,  the  receipt  whereof  is  hereby 
acknowledged,  has  {or,  have)  granted,  bargained, 
sold,  aliened,  remised,  released,  conveyed,  and 
confirmed,  and  by  these  presents  does  {or,  do; 
grant,  bargain,  sell,  alien,  remise,  release,  con- 
vey, and  confirm,  unto  the  said  party  of  the  sec- 
ond part,  his  heirs  and  assigns,  forever,  all  {here 
follows  the  description),  together  with  all  and  sin- 
gular the  tenements,  hereditaments,  and  appur- 
tenances thereunto  belonging,  or  in  anywise  ap- 
pertaining ;  and  the  reversion  and  reversions, 
remainder  and  remainders,  rents,  issues,  and 
profits  thereof;  and  also  all  the  estate,  right,  title, 
interest,  property,  possession,  claim  and  demand 
whatsoever,  both  in  law  and  equity,  which  the 
said  testator  had  in  his  lifetime,  and  at  the  time 
of  his  decease,  and  which  the  said  party  (or, 
parties)  of  the  first  part  {or,  either  of"  them,  have  or) 
has,  by  virtue  of  the  said  last  will  and  testament, 
or  otherwise,  of,  in  and  to  the  above-granted 
premises,  and  every  part  and  parcel  thereof,  with 
the  appurtenances. 

To  have  and  to  hold  all  and  singular  the  above- 
granted  premises,  together  with  the  appurte- 
nances, and  every  part  thereof,  unto  the  said 
party  of  the  second  part,  his  heirs  and  assigns, 
forever.* 

And  the  said  party  (or,  parties)  of  the  first  part, 
for  himself,  his  {or,  themselves,  their>  heirs,  exec- 
utors, and  administrators  does  {or,  do)  covenant, 
promise  and  agree,  to  and  with  the  paity  of  the 
second  part,  that  he  is  (or,  they  are;  lawfully  the 
executor  [s]  of  the  last  will  and  testament  of  said 
M.  N.,  and  has  {or,  have)  power  to  convey  as 
aforesaid,  and  has  {or,  have)  in  all  respects  acted, 
in  making  this  conveyance,  in  pursuance  of  the 
authority  granted  in  and  by  the  said  last  will  and 
testament ;  and  that  he  has  {or,  they  have)  net 
made,  done,  or  suffered  any  act,  matter  or  thing 
whatsoever,  since  he  was  (or,  they  were)  executcr 
as  aforesaid,  whereby  the  above-granted  prem- 
ises, or  any  part  thereof,  are,  shaK  or  may  be  im- 
peached, charged  or  incumbered  in  any  manner 
whatsosver. 

In  witness  whereof,  the  said  party  {or  parties) 
of  the  first  part  has  (or,  have;  hereunto  set  his 
hand  (and  seal,  [or,  their  hands]  and  seals),  the  day 
and  year  first  above  written.     A.  B.,         [Seal.\ 

Executor,  etc. 
Executed  and  delivered  ) 

in  presence  of  / 

[Signature  of  7vitness.\ 

For  f<  rm  jf  Acknowledgment,  see  that  title. 


CONVEYANCES. 


307 


Conveyance — Execntor's  Deed. 

Several  Executors  Covenanting  Severally  and  Each 
/or  himself  Alone. 

(As  in  preceding  form  to  the  *,  continuing  thus  : 

And  the  said  parties  of  the  first  part,  each  for 
himself,  his  heirs,  executors  and  administrators, 
does  severally  and  not  jointly,  nor  the  one  for  the 
other,  or  for  the  act  or  deed  of  the  other,  but 
each  for  his  own  acts  only,  covenant,  promise 
and  agree,  to  and  with  the  said  party  of  the  sec- 
ond part,  that  he  is  lawfully  the  executor  of  the 
last  will  and  testament  of  the  said  D.  D.,  and 
has  power  to  convey  as  aforesaid,  and  has  in  all 
respects  acted,  in  making  this  conveyance,  in 
pursuance  of  the  authority  granted  in  and  by  the 
said  last  will  and  testament ;  and  that  he  has  not 
made,  done,  or  suffered  any  act,  matter  or  thing 
v/hatsoever,  since  he  was  executor  as  aforesaid, 
whereby  the  above-granted  premises,  or  any  part 
thereof,  are,  shall  or  may  be  impeached,  charged 
or  incumbered,  in  any  manner  whatsoever. 

In  witness  whereof,  the  parties  of  the  first  part 
have  hereunto  set  their  hands  and  seals,  the  day 
and  year  first  above  written. 

A.'B.,  Executor,  etc.     [Seal.] 
C.  D.,  Executor,  etc.     [Seal.] 
Executed  and  delivered ) 

in  presence  of  j 

For  form  of  Acknowledgment,  see  that  title. 
Conveyance— Gift  I>eed. 

This  conveyance    deed,  £;r  indenture),  made  this 

day  of ,  A.  D.  ,  betv.'een  A.  B.,  of 

county,  and  State  of  (and  W.  B.,  his  wife),  of 

the  first  part,  and  C.  B.,  of  the  same  place,  son 
of  the  said  A.  B.,  of  the  second  part,  witnesseth  : 

That  the  said  A.  B. ,  for  and  in  consideration  of 
the  natural  love  and  affection  which  he  has  unto 
the  said  C.  B.,  by  these  presents  does  give,  grant, 
alien,  convey  and  confirm  unto  the  said  C.  B.,  his 
heirs  and  assigns,  forever,  all  {here  insert  descrip- 
tion of  the  pretni^es)  :  together  with  all  and  sin- 
gular the  tenements,  hereditaments,  and  appur- 
tenances thereunto  belonging,  or  in  anywise 
appertaining  ;  and  the  reversion  and  reversions, 
remainder  and  remainders,  rents,  issues,  and 
profits  thereof,  and  all  the  estate,  right  ( dower  and 
claim  of  dower),  title,  interest,  property,  claim  and 
demand,  whatsoever,  of  the  said  party  (or,  par- 
ties), of  the  first  part,  of,  in  and  to  the  said  prem- 
ises, with  the  appurtenances,  and  every  part 
thereof: 

To  have  and  to  hold  all  and  singular  the  above- 
granted  premises,  with  the  appurtenances,  unto 
the  said  C.  B.,  his  heirs  and  assigns,  forever. 

In  witness  whereof,  the  party  (or,  parties)  of  the 
first  part  has  (or,  have)  hereunto  set  his  hand  and 
seal  (or,  their  hands  and  seals),  the  day  and  year 
above  written.  (Signatures  and  seals. ) 

Executed  and  delivered  \ 

in  presence  of  J 

For  form  of  Acknowledgment,  see  that  title. 

Conveyance— Ground-Rent  Deed. 

See  Pennsylvania  Forms,  ante. 

Conveyance— Guardian's  Deed. 

See  forms  under  the  various  States,  ante. 

Conveyance— Husband  and  Wile. 

See  forms  under  the  various  States,  ante. 

i'onveyance— Indenture. 

See  subjects.  Indenture  and  Deed  Poll,  in  the  text 
above. 

Conveyance— Iiife  Kstate. 

See  Habendum  in  Deeds,  ante. 

<'onveyance— Masters  in  Ciiancery 
I»eed. 

This  conveyance  (deed,  or  indenture),  made  this 

day  of- ,  by  M.  C,  a  master  in  chancery  in 

rnd  for  the  State  of ,  in  county,  party  of 

tiie   first  part,  and  C.  D.,  of  ,  of  the  second 

part. 

\Vhereas,  at  a  court  of  chancery,  held  at , 

in ,  before  the  vice-chancellor  of  the cir- 
cuit of  the  State  of ,  on  the day  of ,  it 

was,  among  other  things,  ordered,  adjudged  and 
decreed  by  the  said  court,  in  a  certain  cause  then 
pending  in  the  said  court  between  C.  T.,  com- 
plainant, and  D.  T.,  defendant,  that  all  and  sin- 


fular  the  mortgaged  premises  mentioned  in  the 
ill  of  complaint  in  said  cause,  and  in  said  d.:cree 
described,  or  so  much  thereof  as  might  be  suffi- 
cient to  raise  the  amount  due  to  the  complainant 
for  principal,  interest,  and  costs  in  said  cause, 
and  which  might  be  sold  separately  without  ma- 
terial injury  to  the  parties  interested,  be  sold  at 
public  aiiction,  according  to  the  course  and  prac- 
tice of  this  court,  by  or  under  the  direction  of  a 

master  thereof,  in county  of ;  that  the  said 

sale  be  made  in  the  county  where  the  said  mort- 
gaged premises,  or  the  greater  part  thereof,  are 
situated ;  that  said  master  give  public  notice 
of  the  time  and  place  of  such  sale,  according  to 
the  course  and  practice  of  said  court,  and  as  re- 
quired by  law,  and  that  any  of  the  parties  in  said 
cause  might  become  a  purchaser  or  purchasers 
on  such  sale;  that  the  said  master  execute  to  the 
purchaser  or  purchasers  of  the  said  mortgaged 

C remises,  or  such  part  or  parts  thereof  as  should 
e  so  sold,  a  good  and  sufficient  deed  or  deeds  of 
conveyance  for  the  same  ; 

And  whereas,  a  certificate  of  the  enrolment  of 
said  decree,  signed  by  the  clerk  of  said  court,  1  as 
been  presented  to  the  said  master  in  chancery, 
the  party  of  the  first  part ; 

And  whereas  he,  in  pursuance  of  the  order  and 

decree  of  the  said  court,  did,  on  the  day  of 

,  sell  by  public  auction,  at ,  in  the  county  of 

,  (part  of )  the  premises  in  the  said  order  men- 
tioned, due  notice  of  the  time  and  place  of  sucii 
sale  being  first  given,  agreeably  to  the  said  order 
at  which  sale  the  premises  hereinafter  described 
were  struck  off  to  said  party  of  the  second  pa»-t, 

for  the  sum  of dollars,  that  being  the  highest 

sum  bid  for  the  same  : 

Now  this  conveyance  (deed,  or  indenture)  wit 
nesseth  : 

That  the  said  master  in  chancery,  the  party  of 
the  first  part  to  these  presents,  in  order  to  carry 
into  effect  the  sale  so  made  by  him  as  aforesaid; 
in  pursuance  of  the  order  and  decree  of  the  said 
court,  and  in  conformity  to  the  statute  in  such 
case  made  and  provided,  and  also  in  considera- 
tion of  the  premises,  and  of  the  said  sum  of 
money  so  bidden  as  aforesaid  being  first  duly  paid 
by  the  said  party  of  the  second  part,  the  receipt 
whereof  is  hereby  acknowledged,  has  granted, 
bargained,  sold,  and  by  these  presents  does  grant, 
bargain,  sell  and  convey  unto  the  said  party  of 
the  second  part,  his  heirs  and  assigns,  all  those 
two  certain  lots,  pieces  or  parcels  of  land,  being 
(part  of)  the   said   mortgaged   premises,   situate, 

lying  and  being  in county  and  State  of  (etc., 

inserting  the  description^,  together  with  all  and  sin- 
gular the  tenements,  hereditaments,  and  appur- 
tenances to  the  same  belonging,  or  in  anywise 
appertaining: 

To  have  and  to  hold  all  and  singular  the  above- 
granted  premises,  with  the  appurtenances  and 
every  part  thereof,  unto  the  said  party  of  the  sec- 
ond part,  his  heirs  and  assigns,  forever. 

In  witness  whereof,  the  said  M.  C,  master  in 
chancery  as  aforesaid,  hath  hereto  set  his  hand 
and  seal,  the  day  and  year  first  above  written. 
M.C.,         \Seul.\ 
Executed  and  delivered  )  Master  in  Chancery. 

in  presence  of  j 

For  form  of  Acknowledgment,  see  that  title. 

Conveyance— MistaUe—To  Correct. 

Deed  to  Correct  Mistakes  in  a  Prior  Coni'eyance. 

This  conveyance  (deed,  or  indenture),  made  this 

day  of ,  by  A.  B. ,  of ,  of  the  first  part, 

and  C.  D. ,  of ,  of  the  second  part,  witnesseth  : 

Whereas,  the  said  A.  B.  did,  on  or  about  the 

day  of ,  execute  and  deliver  to  the  party 

of  the  second  part  (or,  to  one  C.  D.,  under  whom  the 
party  of  the  second  part  hereto  claims),  for  the  con- 
sideration therein  mentioned,  a  conveyance  of 
certain  lands  in  ,  hereinafter  more  particu- 
larly described,  which  said  conveyance  is  re- 
corded  in  the  office  of  the  ,  of  county. 

book ,  page ,  of  conveyances ; 

And  whereas,  in  said  conveyance,  by  mistake, 

the  words were  written  instead  of  thewords 

(or  other-vise,  setting  out  the  errors)  ; 

And  whereas,  to  prevent  difficulties  hereafter, 
it  is  expedient  to  correct  said  errors ; 


3o8 


CONVEYANCES. 


Now,  therefore,  this  conveyance  (deed  or  inden- 
ture^ witnesseth : 

That  the  said  party  of  the  first  part,  in  consid- 
iration  of  the  premises  and  of  one  dollar  to  him 
paid  by  the  party  of  the  second  part,  hereby 
grants,  conveys,  releases  and  confirms  unto  the 
said  party  of  the  second  part,  his  heirs  and  as- 
signs, forever,  all  (etc.,  giving  tkf  description,  and 
concluding  as  in  other  cases). 

For  lorm  of  Acknowledgment,  see  that  title. 
Conveyance — Partition  I>eed. 

This  conveyance  (deed,  or  indenture),  made  the 

day  of ,  between  A.  B.,  of county, 

and  State  of ,  of  the  first  part,  and  C.  D.,  of 

. county,  in  the  State  of ,  of  the  second 

part,  and  E.  F.,  of county,  and  State  of , 

of  the  third  part: 

Whereas,  the  parties  hereto  have  and  hold  as 
tenants  in  common  (or  as  joint  tenants),  in  equal 
parts  {or,  viz.,  the  said  A.  B.  two  equal  undivided 
sixths,  and  the  said  C.  D.  one  equal  undivided  sixth, 
and   the  said  E.  F.  three,  etc.,  of)  a  certain  tract, 

piece,  or  parcel  of  land,  situate  in ,  being  the 

same   premises   conveyed   to   them   by  D.  D.  by 

deed  bearing  date  the  day  of {c;r  devised 

to  them  by  the  will  of  D.  D.,  or  otherwise,  according 
to  the  fact) :  and  whereas,  the  parties  hereto  have 
mutually  agreed  to  make  partition  of  said  land 
and  hold  their  respective  shares  in  severalty : 

Now  this  conveyance  (deed,  or  indenture)  wit- 
nesseth : 

I.  The  said  A.  B.,  party  of  the  first  part,  shall 
from  henceforth  have,  hold,  possess  and  enjoy 
ia  severalty  by  himself,  and  to  h-m,  and  his  heirs 
and  assigns,  for  his  share  and  proportion  of  the 
said  lands  and  premises,  all  (here  follows  descrip- 
tion of  the  part  allotted  to  him) ;  and  the  said  par- 
ties of  the  second  and  third  parts,  in  considera- 
tion of  the  premises  (and  of  the  sum  of dollars 

to  them  paid  by  the  said  A.  B.  for  equality  of  partition, 
the  receipt  whereof  is  hereby  acknowledged),  do  hereby 
give,  grant,  set  over,  convey,  release  and  confirm 
unto  the  said  A.  B.,  the  party  of  the  first  part, 
his  heirs  and  assigns,  forever,  the  last  above- 
described  premises,  together  with  all  and  sin- 
gular the  tenements,  hereditaments  and  appur- 
tenances thereunto  belonging  or  in  anywise 
appertaining,  and  the  reversion  and  reversions, 
remainder  and  remainders,  rents,  issues  and 
profits  thereof,  and  also  all  the  estate,  right,  title, 
interest  (dower  and  right  of  dower),  property,  pos- 
session, claim  and  demand  whatsoever  of  the 
said  parties  of  the  second  and  third  parts,  both 
in  law  and  in  equity,  of,  in  and  to  the  above- 
granted  premises,  with  the  hereditaments  and 
appurtenances: 

To  have  and  to  hold  all  and  singular  the  above- 
granted  premises,  together  with  the  appurte- 
nances and  every  part  thereof,  unto  the  said  party 
of  the  first  part,  his  heirs  and  assigns,  forever 
(if  there  is  any  incumbrance,  add,  subject  to,  etc., 
specifying  it). 

And  the  said  parties  of  the  second  and  third 
parts  do  hereby  severally,  and  not  jointly,  but 
each  for  himself,  and  for  his  heirs,  executors  and 
administrators,  covenant,  promise  and  agree,  to 
and  with  the  said  party  of  the  first  part,  that  he, 
the  said  A.  B.,  his  heirs  and  assigns,  shall  or  law- 
fully may,  from  time  to  time,  and  at  all  times 
hereafter,  forever,  freely,  peaceably  and  quietly 
have,  hold,  occupy,  possess  and  enjoy  the  said 
first-described  piece  or  allotment  of  land,  with 
the  appurtenances,  and  receive  ard  take  the 
rents,  issues  and  profits  thereof,  \n\K.\  out  any  mo- 
lestation, interruption  or  denial  of  them,  the  par- 
ties of  the  second  and  third  parts,  their  heirs  or 
assigns,  or  of  any  other  person  or  persons  what- 
soever, lawfully  claiming  or  to  claim  by,  from  or 
under  them  or  either  of  them,  or  by  or  with  his 
or  their  act,  privity  or  procurement. 

3.  The  said  CD.,  party  of  the  second  part,  shall 
from  henceforth  have,  hold,  possess  and  enjoy  in 
severalty  by  himself,  and  to  him,  and  his  heirs 
and  assigns,  for  his  share  and  proportion  of  the 
said  lands  and  premises,  all  (here  insert  description 
if  the  part  allotted  to  him)  ;  and  the  said  parties  of 
the  first  and  third  parts  do  hereby  give,  grant,  set 
•vcr,  convey,  release  and  confirm  unto  the  said 


C.  U.,  the  party  of  the  second  part,  his  heirs  and 
assigns,  forever,  the  last  above-described  prem- 
ises :  together  with  (etc.,  as  above ;  and  so  on  with 
the  allotment  to  the  party  of  the  third  part). 

In  witness  whereof,  the  parties  to  these  pres- 
ents have  hereunto  interchangeably  set  their 
hands  and  seals,  the  day  and  year  first  above 
written.  (Signatures  and  seals.) 

Executed  and  delivered  1 

in  presence  of  ] 

For  form  of  Acknowledgment,  see  that  title. 

Conveyance— Pew  Deed. 

By  the  Proprietors  of  a  Church. 

Know  all  men  by  these  presents: 

That  we,  the  proprietors  (or,  trustees,  etc.)  of  the 
Church,  in ,  in  consideration  of dol- 
lars, to  us  paid  by  C.  D.,  of ,  do  hereby  grant, 

bargain,  sell  and  convey  unto  the  said  C.  D.,  his 
heirs  and  assigns,  the  pew  in  the  church  afore- 
said, numbered . 

To  have  and  to  hold  the  same,  with  the  priv- 
ileges and  appurtenances,  to  the  said  C.  D.,  his 
heirs  and  assigns,  forever: 

And  the  said  proprietors  (or,  trustees,  etc.)  here- 
by covenant  with  the  said  C.  D.,his  heirs  and 
assigns,  that  they  are  the  lawful  owners  of  the 
said  pew,  and  have  good  right  and  authority  to 
sell  the  same  as  aforesaid  : 

Provided,  however,  that  this  deed  shall  not 
be  binding  until  recorded  in  the  books  of  said 
church. 

In  testimony  whereof,  the  said  proprietors  (or, 
trustees,  etc.)  have  caused  these  presents  to  be 
signed  by  their  treasurer,  and  their  corporate 
seal  to  be  hereunto  affixed  by  their  treasurer,  this 
day  of . 

\Seal.\  {Signatures. "l 

Executed  and  delivered ) 

in  presence  of  J 

For  form  of  Acknowledgment,  see  that  title. 

Conveyance— Qui t-€lalin  Deed. 

See  various  forms  in  different  States,  ante. 

Conveyance — Referee's  Deed. 

Pursuant  to  a  fudinal  Sale — The  following  Partus 

yoiuing :   Adininistratrijr,  Husband  and   Wife  in 

Right  of  Wife ;    Wife  an  Executrix ;  and  Infants, 

by  their  Guardians. 

This  conveyance  (deed,  or  indenture),  made  this 

day  of ,  in  the  year ,  by  R.  T.,  (special) 

referee  and  trustee,  appointed  by  the  court, 

party  of  the  first  part,  A.  X.,  of ,  administra- 
trix with  the  will  annexed  of  D.  D.,  deceased, 
and  the  said  A.  X.,  in  her  own  right,  H.  X.,of 

,  and  W.  X.,  his  wife,  in  right  of  the  said  W. 

X.,  and  the  said  'W.  X.,  as  executrix  of  the  last 
will  and  testament  of  D.  D.,  deceased,  I.  N.,  of 

,  and  F.  T.,  of ,  by  G.  N.,  their  guardian, 

parties  of  the  second  part,  and  T.  B.,  of ,  of 

the  third  part : 

Whereas,  at  a  special  term  of  the court  of 

the  State  of ,  held  for  the  county  of ,  at 

,  on  the day  of ,  it  was  among  other 

things  ordered,  adjudged  and  decreed  by  the  said 
court,  in  a  certain  cause  then  pending  in  the  said 
court,  between  (here  name  the  parties  to  the  suit), 
that  the  said  R.  R.  T.,  as  such  referee  and  trus- 
tee, for  that  purpose  appointed  by  the  said  decre- 
tal order,  proceed  with  all  convenient  speed,  to 
sell  for  cash,  all  real  estate  which  the  said  D.  D., 
deceased,  died  seized  or  possessed  of  or  entitled 
to,  and  that  each  distinct  farm,  tract  or  lot  be 
sold  separately,  and  at  public  auction,  in  the 

county  of ,  by  or  under  the  direction  of  said 

referee  and  trustee,  and  that  said  referee  and 
trustee  give  public  notice  of  the  time  and  place 
of  such  sale,  by  advertising  the  same  for  three 

weeks,  twice  each  week,  in  the  county  of  , 

and  for  three  weeks,  once  each  week,  in  any 
other  county  in  this  State  in  which  the  property 
may  be  situated,  as  in  case  of  sale  of  mortgaged 
premises  in  suits  for  the  foreclosure  of  mortgages 
on  lands,  and  that  such  referee  and  trustee  exe- 
cute to  the  purchaser  or  purchasers,  good  and 
sufficient  deed  or  deeds  of  conveyance  therefor: 

And  it  was  further  ordered,  adjudged,  and  de- 
creed, in  and  by  the  said  decretal  order,  that  the 
parties  to  the  said  suit,  respectively— tjiat  is  to 


CONVEYANCES. 


309 


•ay,  the  adult  parties,  personally,  and  the  said 
''jitant  defendants  by  their  several  guardians  ad 
Stem  (who  were  thereby  severally  appointed  and 
Mithorixed  for  that  purpose,) — unite  with  the  said 
referee  and  trustee  in  such  deed  or  deeds  of  con- 
veyance ;  and  that  the  said  W.  X.,  if  living, 
unite  in  the  said  deed  or  deeds  as  such  executrix 
as  aforesaid,  and  in  case  the  said  E.  D.  should 
die  before  the  said  sale  and  conveyance,  then  it 
was  ordered  that  no  proceedings  be  had  towards 
such  sale,  until  some  party  to  the  said  suit  should 
obtain  letters  of  administration  with  the  will  an- 
nexed, of  the  goods,  chattels  and  credits  not  ad- 
ministered of  the  decedent,  'W.  D.,  thereby  left 
without  a  personal  representative,  and  that  the 
party  obtaining  such  letters  of  administration 
also  unite  as  such  in  the  said  deed  or  deeds  of 
conveyance.  And  whereas  the  said  R.  R.  T.,  the 
said  party  of  the  first  part,  as  referee  or  trustee 
aforesaid,  in  pursuance  of  the  said  decretal  order 

of  the  said  court,  did,  on  the day  of ,  sell 

at  public  auction,  at  the ,  in ,  in  the  county 

of ,  the  premises  hereinafter  mentioned  and 

described,  due  notice  of  the  time  and  place  of 
such  sale  being  first  given,  agreeably  to  the  said 
decretal  order,  by  advertising  the  same  for  three 
weeks  and  upwards,  twice  each  week,  in  a  news- 
paper published  in  the  city  of ,  and  for  three 

weeks  and  upwards,  once  each  week,  in  a  news- 
paper published  in  the  county  of  ,  in  which 

county  part  of  the  property  to  be  sold  is  situated, 
such  advertisement  being  as  in  the  case  of  sales 
of  mortgaged  premises  in  suits  for  the  foreclosure 
of  mortgages  on  lands;  at  which  sale  the  prem- 
ises hereinafter  described  were  struck  off  to  the 

said  party  of  the  third  part  for  the  sum  of  

dollars,  that  being  the  highest  sum  bidden  for  the 
same,  and  he  being  the  highest  bidder  therefor: 

Now  this  conveyance  (deed,  or  indenture)  wit- 
nesseth: 

That  the  said  party  of  the  first  part,  as  referee 
and  trustee  as  aforesaid,  and  the  parties  of  the 
second  part  to  these  presents,  in  order  to  carry 
into  effect  the  sale  so  made  by  said  party  of  the 
first  part,  and  in  pursuance  of  said  decretal  order, 
and  in  consideration  of  the  premises,  and  of  the 
said  sum  of  money  so  bidden  as  aforesaid  being 
first  duly  paid  by  the  said  party  of  the  third  part 
to  the  said  party  of  the  first  part,  the  receipt 
whereof  is  hereby  acknowledged  by  the  said 
party  of  the  first  part,  have  bargained  and  sold, 
and  by  these  presents  do  bargain,  sell  and  convey 
unto  the  said  party  of  the  third  part  all  that  cer- 
tain lot,  piece  or  parcel  of  land  {here  /allows  the 
descrifrtio'iof  the  premises  conveyed  ),  together  with 
all  and  singular  the  tenements,  hereditaments, 
and  appurtenances  thereunto  belonging,  or  in 
aayv«^iss  appertaining,  and  the  reversion  and  re- 
versions, remainder  and  remainders,  rents,  issues, 
and  profits  thereof;  and  also  all  the  estate,  right, 
title,  interest  (dower  and  right  of  dower),  property, 
possession,  claim  and  demand  whatsoever,  as 
welt  at  law  as  in  equity,  of  the  said  parties  of  the 
first  and  second  parts,  and  of  each  and  every  of 
them,  of,  in  and  to  the  above-described  premises, 
and  every  part  and  parcel  thereof,  with  the  ap- 
purtenances. 

To  have  and  to  hold  all  and  singular  the  above- 
mentioned  and  described  premises,  together  vifith 
the  appurtenances,  unto  the  said  party  of  the 
third  part,  his  heirs  and  assigns  forever. 

In  witness  whereof,  the  said  parties  of  the  first 
and  second  parts  have  hereto  set  their  hands  and 
seals,  the  day  and  year  first  above  written. 

R.  R.  T. ,  Trustee  and 

Referee.      {Seal^ 

A.  X.,  Administratrix,  etc  A  Seal. 

A.  B.,  {Seal. 

H.  X.,  \Seai: 

W.  X.,  Seal: 

V/.  X.,  Executrix,  etc.       [Seal. 

I.  N.  and  [Seal.] 

F.  T.,  by 

Q.  \\.,  their  Guardian.       [Seal.'] 
Signed,  sealed  and  delivered  ) 
ic  the  presence  of  / 

( Witnesses'  signatures. ) 
For  form  of  Acknowledgment,  see  that  titl?, 


Convoyance— Relense  Deed. 

To  all  people  to  ^vhom  these  presents  shall 
come,  A.  B.,  C.  D.,  E.  F.  and  W.,  his  wife,  of 
,  send  greeting :  or, 

This  conveyance  (or  deed,  etc.),   made  this 

day  of ,  by  A.  B.,  etc.,  to  H.  I.,  etc.,  witness- 

eth.     Or, 

Know  all  men  by  these  presents,  etc. 

(Insert  recitals,  etc.,  if  any.) 

Now  know  ye  ;  that  said  parties  of  the  first  part, 

in  consideration  of  the  sum  of dollars,  the 

receipt  of  which  is  hereby  acknowledged,  do  by 
these  presents  remise,  release,  and  forever  quit- 
claim unto  the  said  H  I.,  and  to  his  heirs  and 
assigns,  all  the  estate  and  estates,  shares,  pur- 
ports and  dividends,  tight,  title,  interest,  prop- 
erty, claim  and  demand  whatsoever  of  them,  the 
parties  of  the  first  part,  in  law  or  equity,  or  other- 
wise howsoever,  of,  in,  to,  or  out  of  all  that  tract, 
part  and  parcel  of  land,  uituate,  lying  and  being  in 

the  township  of ,  county  of ,  State  of 

(in  the  actual  possession  and  seizin  of  the  said  H.  I.), 
bounded,  limited,  and  described  as  follows,  to 
wit:  (here  follo^us  the  description  0/  the  premises), 
together  with  all  and  singular  the  buildings,  iim- 
provements,  rights,  tnembers,  and  appurtenances 
whatsoever  thereunto  belonging  or  in  anywise 
appertaining,  and  the  reversions  and  remainders, 
rents,  issues,  and  profits  thereof. 

To  have  and  to  held  all  and  singular  the  prem- 
ises hereby  remisec  and  released,  or  mentioned  or 
intended  to  be,  with  the  appurtenances,  unto  the 
said  H.  I.,  his  heirs  and  assigns,  forever.  So  that 
neither  of  said  parties,  nor  their  heirs,  nor  either 
or  any  of  them,  nor  any  other  person  or  persons 
whomsoever,  lawfully  claiming  or  to  claim  by, 
from  or  under  them  or  any  of  them,  shall  or  may 
at  any  time  or  times  hereafter,  have,  claim,  or 
challenge,  or  demand  any  estate,  right,  title,  or 
interest  of,  in,  to,  or  out  of  the  said  premises, 
etc.,  hereditaments,  etc.,  or  any  part  or  parcel 
thereof;  but  thereof  and  therefrom  shall  and  will 
be  utterly  excluded  and  forever  debarred  by  these 
presents. 

In  witness,  etc. 

For  form  of  Acknowledgment,  see  that  title. 

Conveyance — Reversion  in  Fee. 

Sub;ect  to  an  Outstanding  Life  Estate. 

This   conveyance   (or  deed,  or  indenture),   made 

this day  of ,  between  A.  B. ,  of county, 

in  the  State  of ,  of  the  first  part,  and  C.  D., 

of  county,  and  State  of ,  of  the  second 

part : 

Whereas,  M.  B.  (mother  of  said  party  of  the  firs* 
part),  holds  for  the  term  of  her  natural  life  the 
premises  hereinafter  described,  the  reversion  and 
remainder  whereof  belongs  to  the  party  of  the 
first  part  and  his  heirs  : 

Now  this  conveyance  (or  deed,  or  indenture)  wit- 
nesseth  : 

That  the  said  party  of  the  first  part,  in  consiv^ 

eration  of  dollars,  to  him  paid  by  the  said 

party  of  the  second  part,  the  receipt  whereof  is 
hereby  acknowledged,  has  and  by  these  presents 
does  grant,  bargain,  sell,  alien,  remise,  release, 
convey  and  confirm  unto  the  said  party  of  the 
second  part,  his  heirs  and  assigns,  forever,  the 
reversion  and  remainder  of  all  (here  insert  descrip- 
tion 0/  the  premises.) 

To  have  and  to  hold  the  said  reversion  and  re- 
mainder, and  the  rents,  issues,  and  profits  there- 
of, when  it  shall  happen,  upon  the  death  of  said 
M.  B. ,  in  and  of  all  and  singular  the  above-granted 
premises,  together  with  the  appurtenances,  unto 
the  said  party  of  the  second  part,  his  heirs  and 
assigns,  forever.  (1/ there  is  any  incumbrance,  add, 
subject  to,  etc.,  specifying  it.) 

Andtlis  said  party  of  the  first  part,  for  himself, 
his  heirs,  executors  and  administrators,  does  cove- 
nant, p.-omise  and  agree,  to  and  with  the  said 
party  ofth-i  second  part,  his  heirs  and  assigns,  that 
the  said  party  of  the  first  part  is  lawfully  seized  in 
his  ovfn  right  of  a  good,  absolute  and  indefeasi- 
ble estate  in  remainder  m  the  fee  of  said  prem- 
ises, with  the  appurtenances,  immediately  from 
and  after  the  decease  of  the  said  M.  B.  (if  con^ 
veyea  "^bfect  to  *«  incumbrance  say,  subjsct  as  afore- 
saidi. 


3IO 


CONVEYANCES. 


That  the  said  reversion  and  remainder  now  is, 
and  the  said  premises  and  appurtenances  imme- 
diately from  and  after  the  death  of  the  said  W. 
B.,  shall  be  free  from  all  incumbrances  (except  as 
aforesaid) :  that  the  said  party  of  the  first  part  has 
good  right,  full  power,  and  lawful  authority  to 
convey  the  same  as  aforesaid,  and  that  after  the 
decease  of  the  said  W.  B. ,  he,  and  his  heirs,  ex- 
ecutors and  administrators  will  warrant  and 
defend  the  above-granted  premises  and  appurte- 
nances to  the  said  C.  D.,  his  heirs  and  assigns, 
forever,  against  the  lawful  demands  of  all  per- 
sons. 

In  witness  whereof,  the  said  party  of  the  first 
.part  has  hereunto  set  his  hand  and  seal,  the  day 
«nd  year  first  above  written. 

A.  B.         [Sea/.] 
Executed  and  delivered  ) 

in  presence  of  / 

For  form  of  AcKNOWLKDGMB>nr,  see  that  title. 

Conveyance— Right  of  IVay. 

See  Premises  in  Deeds,  above. 
Conveyance — Sheriff's   I>ee«ls. 

See  Sheriff's  Deeds  in  various  States,  ante. 
Conveyance — Tenancy  in  Common. 

Creating  a  Tenancy  m  Conttnon, 
This  conveyance  (or  deed,  or  indenture),  made  the 

day  of  ,  by  A.  B.,  of county,  in  the 

State  of (and  \V.  B.,  his  wife),  of  the  first  part, 

and  C.  D.  and  E.  F.,  of county,  in  the  State 

of ,  of  the  second  part,  witnesseth  : 

That  the  said  party  (or  parties)  of  the  first  part, 

in  consideration  of  the  sum  of dollars  to  him 

(or  them)  paid  by  the  said  parties  of  the  second 
part,  the  receipt  of  which  is  hereby  acknowl- 
edged, has  {or  have)  (granted,  bargained,  sold, 
aliened,  remised,  released,  conveyed,  and  confirmed), 
and  by  these  presents  does  (or  do)  grant,  bar- 
gain, sell,  alien,  remise,  release,  convey  and  con- 
firm unto  the  said  parties  of  the  second  part, 
and  to  their  heirs  and  assigns,  and  the  survivor 
of  them,  and  the  heirs  and  assigns  of  the  survi- 
vor of  them,  forever,  all  (here  follows  the  descrip- 
tion of  the  prevtises  coniieyed),  together  ^vith  all 
and  singular  the  tenements,  hereditaments  and 
appurtenances  thereunto  belonging  or  in  anywise 
appertaining,  and  the  reversion  and  reversions, 
remainder  and  remainders,  rents,  issues  and 
profits  thereof;  «nd  also  all  the  estate,  right, 
title,  interest  (dower,  or  right  of  dower»),  property, 
possession,  claim  and  demand  whatsoever,  of  the 
said  party  (or  parties)  of  the  first  part,  both  in  law 
and  in  equity,  of,  in,  and  to  the  above-granted 
premises,  with  the  hereditaments  and  appurte- 
nances. 

To  have  and  to  hold  all  and  singular  the  above- 
granted  premises,  together  with  the  appurte- 
nances and  every  part  thereof,  unto  the  said 
parties  of  the  second  part,  their  heirs  and  as- 
signs forever,  as  tenants  in  common,  and  not 
as  joint  tenants.  And  the  said  A.  B.  does  hereby 
covenant,  promise  and  agree,  to  and  with  the 
said  parties  of  the  second  part,their  heirs  and  as- 
signs, in  manner  aforesaid,  that  (etc.,  as  in  other 
eases). 

Conveyance— Joint  Tenancy. 
Creating  a  jfoint  Tenancy. 
(Same  as  above,  except  that  the  habendum  will  be)  : 
To  have  and  to  hold  all  and  singular  the  above- 
granted    premises,  together  with   the   appurte- 
nances and  every  part  thereof  unto  the  said  C. 
D.  and  E.  F.,  their  heirs  and  assigns,  forever,  as 
joint  tenants,  and  not  as  tenants  in  common. 
For  form  of  Acknowledgment,  see  that  title. 

Conveyance— Trnsit  need. 

In   Trust  for  Support   of   Grantor's   Parents,   -with 
Power  df  Appointment  to  thetn,  and  a  Reservation 
of  Rents  for  Payment  of  Incumbrances. 
This  conveyance  (or  deed,   or  indenture)  tripar- 
tite, made  this  day  of ,  A.  D. ,  between 

A.  B. ,  of ,  party  of  the  first  part,  and  C.  D. ,  of 

,  party  of  the  second  part,  and  W.  B.,  of , 

wife  of  B.  B.,  of ,  party  of  the  third  part : 

Whereas,  the  undersigned  is  desirous  to  make 
m.  provision  and  settlement  for  the  benefit  of  his 

e-Omit  these  words,  unless  a  wife  joins. 


father,  mother  and  sisters,  by  a  conveyance  \^ 
trust  of  the  property  hereinafter  mentioned,  sub- 
ject, however,  to  the  reservations  herein  pro- 
vided, and  to  the  trusts  and  powers  herein  con* 
tained: 

Now  this  conveyance  (or  deed,  or  indenture) 
witnesseth : 

That  the  said  party  of  the  first  part,  for  and  In 

consideration  of  the  sum  of dollars,  to  them 

paid  by  the  said  parties  of  the  second  part,  the 
receipt  of  which  is  hereby  acknowledged,  have 
granted,  bargained,  sold,  aliened,  remised,  re- 
leased, conveyed  and  confirmed,  and  by  these 
presents  do  grant,  bargain,  sell,  alien,  remise,  re- 
lease, convey  and  confirm  unto  the  said  parties 
of  the  second  part,  and  to  their  successors  and 
assigns  forever,  all  {here  follows  the  description  of 
the  premises.) 

Together  with  all  and  singular  the  tenements, 
hereditaments  and  appurtenances  thereunto  be- 
longing, or  in  anywise  appertaining,  and  the  re- 
version and  reversions,  remainder  and  remain- 
ders, rents,  issues,  and  profits  thereof;  and  also 
all  the  estate,  right,  title,  interest,  property, 
possession,  claim  and  demand  whatsoever  of  the 
said  party  of  the  first  part,  both  in  law  and 
in  equity,  of,  in  and  to  the  above-granted  prem- 
ises, with  the  hereditaments  and  appurtenances ; 

To  have  and  to  hold  all  and  singular  the  above- 
granted  premises,  together  with  the  appurte- 
nances, and  every  part,  unto  the  said  party  of  the 
second  part,  his  heirs  and  assigns,  forever.  (/; 
there  is  any  incumbrance  add,  subject  to,  etc.,  sped 
fying  it. ) 

It  is,  however,  to  be  taken  and  understood  as 
part  of  this  indenture,  and  as  limiting  and  con- 
trolling the  grant  hereby  made  to  the  party  here- 
to of  the  second  part,  that  the  party  hereto  of  the 
first  part  hereby  retains  and  reserves  the  posses- 
sion, use,  occupation,  rents,  issues  and  profits  of 
the  premises  hereby  conveyed,  for  the  purpose 
of  paying,  and  until  the  mortgage  liens  now 
existing  upon  the  said  premises  shall  be  paid  off 
or  discharged,  such  retaining  and  reservation  of 
the  possession,  use,  occupation,  rents,  issues  and 

profits  not,  however,  to  extend  beyond  the  

day  of ,  but  to  terminate  sooner  if  the  afore- 
said mortgage  liens  shall  be  sooner  paid  off  or 
discharged,  or  if  both  B.  B.  and  W.  B.,  the  father 
and  mother  of  the  party  hereto  of  the  first  part, 
shall  sooner  depart  this  life  ; 

In  trust,  nevertheless,  subject  to  the  reserva- 
tion aforesaid,  that  the  said  party  of  the  second 
part,  his  heirs,  successors  and  assigns,  shall  man- 
age said  property  hereby  conveyed,  and  shall  ap- 
ply the  net  income  and  profits,  after  deducting 
for  repairs,  taxes,  assessments  and  insurance, 
which  sho.ll,  from  time  to  time,  be  realized  from 
the  premises  hereby  conveyed,  to  the  sole  and 
separate  use  of  the  said  W.  B. ,  during  her  nat- 
ural life,  free  and  discharged  from  any  rights  or 
claims  of  or  against  her  husband  ;  the  separate 
receipt  or  settlement  of  the  said  W.  B.  therefor, 
to  be  a  full  and  complete  discharge  of  the  said 
party  of  the  second  part ;  secondly,  in  trust  from 
the  death  of  the  said  W.  B.,to  apply  the  said  net 
income  and  profits  as  they  shall  from  time  to 
time  arise,  to  the  sole  use  of  the  said  B.  B.,  and 
for  the  support  of  himsel''  and  family  during  his 
life.  It  is  further  understood  and  to  be  taken  as 
part  of  this  conveyance,  that  the  property  and 
premises  hereby  conveyed  at  the  death  of  the 
said  B.  and  W.  B.  shall  vest  in  the  children  of 
the  said  B.  B.,  or  in  a  trustee  or  trustees  for  their 
benefit,  in  such  shares  and  proportions,  and  in 
such  estates  as  the  said  B.  B.  shall  by  a  convey- 
ance or  last  will  and  testament  order  and  ap- 
point. 

It  being  to  be  further  understood  and  taken  a* 
part  of  this  indenture,  that  the  said  B.  B.  shall 
have  the  power  of  ordering  and  appointing,  or 
distributing  among,  or  in  trust  for  his  children, 
the  fee-simple  of  said  property,  or  less  estate 
therein,  either  by  a  conveyance  or  by  a  last  will 
and  testament,  subject  to  the  aforesaid  reserva- 
tion and  life  interest,  and  in  such  shares  and  pro- 
portions, and  in  such  manner  as  he  shall  therein 
designate  and  direct,  provided,  however,  that  at 


CONVEYANCES. 


3>i 


least  one-fourth  part  thereof  shall  be  appointed 
to  the  use  of  the  party  hereto  of  the  first  part. 

It  being  the  intent  and  meaning  hereof  to 
clothe  the  said  B.  B.  with  all  the  power  and 
authority  over  three-fourths  of  said  estate  or 
property,  in  distributing  the  same  among  his 
children,  subject  to  said  reservation  and  life  in- 
terests, as  the  party  of  the  first  part  would  have 
had,  had  not  this  indenture  been  executed. 

And  it  is  further  understood  and  to  be  taken  as 
part  of  this  conveyance,  that  if  the  power  of  ap- 
pointment and  distribution  aforesaid  shall  not  be 
exercised  by  the  said  B.  B.  during  his  lifetime, 
that  the  same  may  be  exercised  by  the  said  W.  B. , 
v/ho,  upon  the  death  of  the  said  B.,  without 
having  by  a  conveyance  or  last  will  and  testa- 
ment exercised  the  power  and  authority  hereby 
granted,  shall  have  the  same  power  and  authority. 

And  the  said  party  hereto  of  the  second  part  is 
hereby  authorized  and  directed  to  convey  the 
property  and  premises  herein  and  hereby  con- 
veyed in  pursuance  and  upon  the  terms  of  the 
order  and  appointment  of  the  said  B.  or  W.  B. 
legally  made  under  the  provisions  of  this  convey- 
ance (or,  deed  or  indenture). 

This  conveyance  (or  deed,  or  indenture)  further 
■witnesseth,  that  the  said  party  of  the  first  part, 
for  and  in  consideration  of  the  sum  often  dollars 
to  him  in  hand  paid  by  the  said  party  of  the  third 
part,  the  receipt  whereof  is  hereby  acknowledged , 
and  the  said  party  of  the  third  part  forever  dis- 
charged therefrom, hath  granted,  bargained,  sold, 
assigned,  transferred  and  set  over,  and  by  these 
presents  doth,  for  himself,  his  heirs  and  assigns, 
grant,  bargain,  sell,  assign,  transfer  and  set  over 
unto  the  said  party  of  the  third  part,  her  heirs 
and  assigns,  all  the  estate,  premises  and  property 
hereinbefore  described  and  intended  to  be  con- 
veyed, if  any,  which  are  not  legally  vested  in  or 
conveyed  to  the  said  party  of  the  second  part, 
his  heirs  and  assigns,  by  virtue  of  the  execution 
of  this  indenture,  for  the  uses  and  purposes  here- 
inbefore mentioned,  or  which  cannot  be  claimed 
by  the  beneficiaries  under  or  through  the  trusts, 
or  persons,  or  the  execution  thereof,  herein  or 
hereunder  intended  to  be  legally  created,  author- 
ized and  executed,  reserving  and  retaining,  how- 
ever, to  the  said  party  of  the  first  part,  the  use, 
occupation,  rents,  issues  and  profits  of  the  said 
property  and  premises,  for  the  period  hereinbe- 
fore reserved  and  retained. 

In  witness  whereof,  the  said  parties  have  here- 
unto set  their  hands  (and  seals),  the  day  and  year 
first  above  written. 

{Signatures  and  seals.) 
Executed  and  delivered) 

in  presence  of  j 

For  form  of  Acknowledgment,  see  that  title. 

Conveyance— Trust  Deed. 

With  Warranty. 

This  conveyance  {or  deed,  or  indenture),  made 

this  day  of  ,  by  and  between  A.  B. ,  of 

• county,  in  the  State  of ,  of  the  first  part, 

and  E.  F.,  of county,  in  the  State  of ,  of 

the  second  part,  and  C.  D.,  of county,  in  the 

State  of ,  of  the  third  part,  witnesseth  : 

That  said  party  of  the  first  part,  in  considera- 
tion of  the  sum   of  dollars,  the   receipt  of 

which  is  hereby  acknowledged,  does  by  these 
presents  grant,  bargain,  sell  and  convey  unto  said 
party  of  the  second  part,  his  successors  and  as- 
signs, all  the  following  described  real  estate,  sit- 
uated  in   the   county  of ,  and   State   of  , 

to  wit :  (describe  it). 

To  have  and  to  hold  the  same,  together  with  all 
and  singular  the  tenements,  hereditaments,  and 
appurtenances  thereunto  belonging,  or  in  any- 
wise appertaining,  forever,  in  fee  ;  in  trust,  nev- 
ertheless, and  to  and  for  the  uses,  interests  and 
purposes  hereinafter  limited,  described  and  de- 
clared—that is  to  say,  in  trust,  to  {state  the  />ur- 
poses,  etc  ) 

And  said  party  of  the  first  part  does  hereby 
covenant,  promise,  and  agree  that  the  within- 
described  premises  are  free,  clear,  and  discharged 
of  and  from  all  incumbrances,  of  whatever  nature 
or  kind  soever  ;  and  that  he  will  warrant  and  for- 
ever defend  the  same  unto  said  parties  of  the  sec- 


ond and  third  parts,  their  successors  and  assigns, 
against  said  party  of  the  first  part,  his  heirs,  an(i 
all  and  every  person  or  persons  whomsoever, 
lawfully  claiming  or  to  claim  the  same. 

And  the  said  party  of  the  second  part  covenant 
faithfully  to  perform  and  fulfil  the  trusts  herein 
created. 

In  witness  whereof,  the  said  parties  have  here- 
unto set  their  hands,  the  day  and  year  first  above 
written.  {Signed)        A.  B. 

Executed  in  presence  of  E.  F. 

W.  T.,N.  S.  CD. 

For  form  of  Acknowledgment,  see  that  title. 

Conveyance— Warranty  Deeds. 

See  forms  given  for  the  various  States,  ante. 

Conveyance— Warranty  Deed. 

IVith  Full  Covenants. 
This  conveyance  (deed,  or  indenture),  made  this 

day  of ,  in  the  year ,  between  A.  B., 

of county,  in  the  State  of (and  W.  B.,  hii 

wife),  of  the  first  part,  and  C.  D.,of ,  in  the 

State  of ,  of  the  second  part,  witnesseth  : 

That  the  said  party  {or  parties)  of  the  first  part, 
in  consideration  of  the  sum  of dollars,  law- 
ful money  of  the  United  States,  to  him  (or  them) 
paid  by  the  said  party  of  the  second  part,  at  or 
before  the  (sealing  and)  delivery  of  these  presents, 
the  receipt  whereof  is  hereby  acknowledged, 
and  the  said  party  of  the  second  part,  his  heirs, 
executors  and  administrators,  forever,  released 
and  discharged  from  the  same  by  these  presents; 
has,  and  by  these  presents  does  {or  do)  grant, 
bargain,  sell,  alien,  remise,  release,  convey  and 
confirm  unto  the  said  party  of  the  second  part, 
and  to  his  heirs  and  assigns,  forever,  all  (here /al- 
lows the  description  of  the  premises),  together  with 
all  and  singular  the  tenements,  hereditaments 
and  appurtenances  thereunto  belonging  or  in 
anywise  appertaining,  and  the  reversion  and  re- 
versions, remainder  and  remainders,  rents,  issues 
and  profits  thereof;  and  also  all  the  estate,  right, 
title,  interest  (dower  and  right  of  dower),  property, 
possession,  claim  and  demand  whatsoever,  both 
in  law  and  in  equity,  of  the  said  party  (or  parties) 
of  the  first  part,  of,  in  and  to  the  above-granted 
premises,  and  every  part  and  parcel  thereof,  with 
the  appurtenances : 

To  have  and  to  hold  and  singular  the  above- 
granted  premises,  together  with  the  appurte- 
nances and  every  part  thereof,  unto  the  said 
party  of  the  second  part,  his  heirs  and  assigns, 
forever.  (If  there  is  any  incumbrance  state  it  thus  : 
subject,  however,  to  a  certain  indenture  of  mortgage  for 

dollars,  and  dated ,  and  recorded  in  the  office 

of ,  in  mortgage  record ,  at  page ,  and  also 

subject,  etc.) 

And  the  said  A.  B.  {naming  only  the  party  -whs 
-warrants),  for  himself,  his  heirs,  executors  and 
administrators,  does  covenant,  promise,  and 
agree,  to  and  with  the  said  party  of  the  second 
part,  his  heirs  and  assigns,  that  the  said  A.  B.,  at 
the  time  of  the  (sealing  and)  delivery  of  these  pres- 
ents, is  lawfully  seized  in  his  own  right  (or  other- 
irise,  as  the  case  may  be),  of  a  good,  absolute,  and 
indefeasible  estate  of  inheritance,  in  fee  simple, 
of  and  in  all  and  singular  the  above-granted  and 
described  premises,  with  the  appurtenances  {if 
conveyed  subject  to  incumbrance  icy,  subject  as  afore- 
said i  ;  and  has  good  right,  full  power  and  lawful  au- 
thority to  grant,  bargain,  sell  and  convey  the  same 
in  manner  aforesaid.  And  that  the  said  party  of 
the  second  part,  his  heirs  and  assigns,  shall  and 
may  at  all  times  hereafter  peaceably  and  quietly 
have,  hold,  use,  occupy,  possess  and  enjoy  the 
above-granted  premises,  and  every  part  and  par- 
cel thereof,  with  the  appurtenances,  without  any 
let,  suit,  trouble,  molestation,  eviction,  or  dis- 
turbance of  the  said  party  (o>- parties)  of  the  first 
part,  his  (or  their)  heirs  or  assigns,  or  of  any  other 
person  or  persons  lawfully  claiming  or  to  claim 
the  same  ;  and  that  the  same  now  are  free,  clear, 
discharged  and  unincumbered  of  and  from  all 
former  and  other  grants,  titles,  charges,  estates, 
judgments,  taxes,  assessments  and  incum- 
brances of  what  nature  or  kind  soever  (ij  con- 
veyed subject  to  an  inctttnirance  say,  except  as  afbrc 
said.) 


3>2 


CONVEYANCES. 


And  also,  that  the  said  party  {or  parties)  of  the 
first  part,  and  his(«>rthcir)heirs,  and  all  and  every 
other  person  or  persons  whomsoever,  lawfully  or 
equitably  deriving  any  estate,  right,  title  or  in- 
terest, ot,  in,  or  to  the  above-granted  premises,  by, 
from,  under  or  in  trust  for  him  {or  them ),  shall  and 
Will  at  any  time  or  times  hereafter,  Vipon  the  rea- 
sonable request,  and  at  the  proper  costs  and 
charges  in  the  law,  of  the  said  party  of  the  sec- 
ond part,  his  heirs  and  assigns,  make,  do  and  ex- 
ecute, or  cause  or  procure  to  be  made,  done  and 
executed,  all  and  every  such  further  and  other 
lawful  and  reasonable  acts,  conveyances  and  as- 
surances in  the  law,  for  the  better  and  more 
effectually  vesting  and  confirming  the  premises 
hereby  granted  or  intended  so  to  be  in  and  to  the 
said  party  of  the  second  part,  his  heirs  and  assigns, 
forever,  as  by  the  said  party  of  the  second  part, 
his  heirs  or  assigns,  or  his  or  their  counsel  learned 
in  the  law,  shall  be  reasonably  devised,  advised, 
or  required. 

And  the  said  A.  B.  (name  party  7vho  ivarrants), 
and  his  heirs,  the  above-described  and  hereby 
granted  and  released  premises,  and  every  part 
and  parcel  thereof,  with  the  appurtenances,  unto 
the  said  party  of  the  second  part,  his  heirs  and 
assigns,  against  the  said  parties  of  the  first  part 
and  their  heirs,  and  against  all  and  every  person 
and  persons  whomsoever,  lawfully  claiming  or 
to  claim  the  same,  shall  and  will  warrant,  and, 
by  these  presents,  forever  defend. 

In  witness  whereof,  the  said  party  (or  parties) 
of  the  first  part  has  (or  have)  hereunto  set  his 
hand  (and  seal)  (or  their  hands  [and  sealsj),  the  day 
and  year  first  above  written. 

(Signatures  [and  seais.}) 
Signed,  sealed,  acknowledged  and) 

delivered  in  the  presence  of  j 

(Signature  of  witness.) 
Foi  form  of  Acknowledgment,  see  that  title. 

Oonveyance — Oeneral   Warranty  Deed. 

By  Attorney. 

This  conveyance  (or  deed,  etc.),  made  this 

day  of ,  by  A.  B.,  of county,  in  the  State 

of ,  of  the  first  part,  by  A.  A.,  his  attorney  in 

fact,  to  C.  D.,  of county,  in  the  State  of , 

of  the  second  part,  witnesseth  : 

That  said  party  of  the  first  part,  in  considera- 
tion  of  the  sum  of  dollars,  the  receipt  of 

which  is  hereby  acknowledged,  does  by  these 
presents  grant,  bargain,  sell,  and  convey  unto 
said  party  of  the  second  part,  his  heirs  and  as- 
signs, all  the  following  described  real  estate  (with 
dower  or  without  dower,  as  the  case  7itay  be),  situated 

in  the  county  of ,  and  State  of ,  to  wit : 

{/describe  it). 

To  have  and  to  hold  the  same,  together  with 
all  and  singular  the  tenements,  hereditaments, 
and  appurtenances  thereunto  belonging,  or  in 
anywise  appertaining,  unto  the  said  party  of  the 
second  part,  his  heirs  and  assigns,  forever. 

And  said  (party  ■warranting),  for  himself,  his 
heirs,  executors,  or  administrators,  does  hereby 
covenant,  promise,  and  agree  to  and  with  said 
party  of  the  second  part,  that  at  the  delivery  of 
these  presents  that  he  was  lawfully  seized  in  his 
own  right  of  an  absolute  and  indefeasible  estate 
of  inheritance,  in  fee  simple,  of  and  in  all  and  sin- 
gular the  above-granted  and  described  premises, 
with  the  appurtenances  ;  that  the  same  are  free, 
clear,  discharged  and  unincumbered,  of  and  from 
all  former  and  other  grants,  titles,  charges,  es- 
>ates,  judgments,  taxes,  assessments,  and  incum- 
brances, of  whatever  nature  or  kind  soever;  and 
that  he  will  warrant  and  forever  defend  the  same 
unto  said  party  of  the  second  part,  his  heirs  and 
assigns,  against  said  party  of  the  first  part,  his 
heirs,  and  all  and  every  person  or  persons  whom- 
soever, lawfully  claiming  or  to  claim  the  same. 

In  witness  whereof,  the  said  party  has  here- 
unto set  his  hand  and  seal,  the  day  and  year  first 
above  written.  K.S.tByA.A.,  [Seal.] 

his  Attorney  in  Fact. 
Signed,  sealed,  and  acknowledged) 

in  presence  of  W.  T.,  N.  S.  J 

For  fori?)  of  AcjcjJowLBDCMfNT,  scc  that  title. 


ronveyance— Special  Warranty  Doert. 

This  conveyance  (deed,  etc.),  made  this day 

of ,  by  A.  B.  (and  W.  B.,  his  wife),  of county, 

in  the  State  of ,  of  the  first  part,  to  C.  D.,  of 

county,  in  the  State  of ,  of  the  second 

part,  witnesseth : 

That  the  said  parties  of  the  first  part,  in  con- 
sideration of  the  sum  of dollars,  the  receipt 

of  vkrhich  is  hereby  acknowledged,  do  by  these 
presents  grant,  bargain,  sell,  and  convey  unto 
said  party  of  the  second  part,  his  heirs  and  as- 
signs, all  the  following  described  real  estate  (with 
dower  or  without  dower),  situated  in  the  county  of 

,  and  State  of  ,  to   wit :  (describing  it  by 

metes  and  bounds). 

To  have  and  to  hold  the  same,  together  with 
all  and  singular  the  tenements,  hereditaments 
and  appurtenances  thereunto  belonging,  or  in 
anywise  appertaining,  unto  the  said  party  of  the 
second  part,  his  heirs  and  assigns,  forever  ; 

And  said  parties  of  the  first  part,  for  themselves, 
their  heirs,  executors,  or  administrators  do  hereby 
covenant,  promise,  and  agree,  to  and  with  said 
party  of  the  second  part,  his  heirs  and  assigns, 
that  they  will  warrant  and  forever  defend  the 
within  granted  and  described  premises,  with  the 
appurtenances,  against  the  claims  of  all  persons, 
claiming  or  to  claim  by,  through,  or  under  them- 
selves (and  themselves  only). 

In  witness  whereof,  the  said  parties,  etc.  (as  in 
the  first  Jbrin). 

Conveyance — Water-Course. 

See  Premises  in  Deeds,  ante. 

Conveyance — Way— Right  of. 

See  Premises  in  Deeds,  ante. 

LEASES  are  conditional  conveyances; 
species  of  contracts  for  the  possession  and 
profits  of  lands  and  tenements,  either  for  life 
or  for  a  certain  term  of  years,  or  during  the 
pleasure  of  the  parties.  A  lease  is  a  contract 
for  the  possession  and  profits  of  lands  and 
tenements  on  the  one  side,  and  a  recompense 
of  rent  or  other  income  on  the  other." 

One  of  the  essential  properties  of  a  lease  is 
that  its  duration  must  be  for  a  shorter  period 
than  the  duration  of  the  interest  of  the  lessor 
in  the  land ;  for  if  he  disposes  of  his  entire  in- 
terest it  becomes  an  assignment,  and  is  not  a 
lease.  In  other  words,  the  granting  of  a  lease 
always  supposes  that  the  grantor  reserves  to 
himself  a  reversion  in  the  leased  premises. 

The  party  who  leases  is  called  the  lessor;  he 
to  whom  the  lease  is  made,  the  lessee ;  and  the 
compensation  or  consideration  of  the  lease  is 
the  rent. 

What  may  be  Leased.  Anything  cor- 
poreal or  incorporeal  lying  in  livery  or  in 
grant,  may  be  the  subject-matter  of  a  lease; 
and,  therefore,  not  only  lands  and  houses,  but 
commons,  ways,  fisheries,  franchises,  annuities, 
rent  charges,  and  all  other  incorporeal  heredi- 
taments, are  included  in  the  common  law  rule.*" 
Goods,  chattels,  or  live-stock  may  also  be 
leased,  and  although  rent  cannot  technically  be 
said  to  issue  out  of  these,  the  contract  for  its 
payment  is  good,  and  an  action  for  rent  in 
arrear  may  be  maintained  on  such  leases." 

Who  may  Lease.  All  persons  in  possession 
of  lands  and  tenements  may  grant  leases  of  them, 
unless  they  are  under  some  legal  disability;  as 

a-Bac.  Abr.  Lease.  b-Shepp.  -Touchst.  268  ;  23 
Penn.  St.  106;  3  N.  Y.  151  ;  1  Root,  308.  See  i  Washb. 
Real  Prop.  310.  c-Co.  Litt.  57,  a;  3  Hen.  &  M-  470," 
31  Penn.  St.  ao. 


*  CONVEYANCES. 


313 


ansound  mind,  immature  age,  or  the  like  :^  and 
m  case  of  many  of  these  disabilities,  the  leases 
are  voidable  merely,  and  not  void."  But  it  is 
essential  to  the  validity  of  a  lease  that  the  les- 
sor has,  at  the  time  he  undertakes  tomake  the 
grant,  possession  of  the  premises,  otherwise 
whatever  he  does  will  amount  to  nothing  more 
than  the  assignment  of  a  c/iose  in  actionJ  But, 
unless  there  is  an  adverse  holding,  possession 
will  be  deemed  to  follow  the  ownership ;  and 
although  a  lease  may  not  be  sutiicienc  to  au- 
thorize a  lessee  to  demand  possession  for  the 
want  of  a  possessory  title  in  his  lessor,  it  will 
still  o])erate  by  way  of  estoppel,  and  inure  to 
his  benefit  if  the  lessor  afterwards  comes  into 
possession  of  the  land  before  the  expiration  of 
the  lease.* 

The  power  to  lease  will  of  course  depend  upon 
the  extent  of  the  lessor's  estate  in  the  premises ; 
and  if  he  has  but  an  estate  for  life,  his  lease 
can  only  be  co-extensive  therewith ;  when,  for  a 
term  of  years,  its  commencement,  as  well  as  its 
termination,  must  be  ascertained,  for  certainty 
in  these  respects  is  of  the  essence  of  a  term 
of  years.  But  although  this  term  may  not  at 
first  appear  to  be  certain,  it  may  be  rendered  so 
by  reference  to  some  fact  or  event ;  as,  if  a 
lease  be  made  to  a  man  for  so  many  years  as  he 
has  in  the  manor  of  Dale,  and  he  happens  to 
have  a  term  of  two  years  in  that  manor,  the 
lease  will  be  good  for  that  period. •> 

In  all  cases  of  uncertain  duration,  or  if  no 
time  has  been  agreed  upon  for  the  continuance 
of  the  term,  or  if  after  the  expiration  of  a  term 
the  tenant  continues  to  hold  over,  without  any 
effort  on  the  part  of  the  landlord  to  remove 
him,  the  tenancy  is  at  the  vf\\\  of  either  party ; 
and  it  remains  at  will  until  after  the  payment 
and  receipt  of  rent  on  account  of  a  new  ten- 
ancy, or  until  the  parties  concur  in  some  other 
act  which  recognizes  the  existence  of  a  tenancy, 
from  which  event  it  becomes  a  tenancy  from 
year  to  year.  After  this,  neither  party  has  a 
right  to  terminate  it  before  the  expiration  of  the 
current  year  upon  which  they  have  entered, 
nor  then  without  having  first  given  reasonable 
notice  to  the  other  party  of  his  intention  to 
do  so.' 

Termination  of  Lease.  A  lease  may  be 
terminated  otherwise  than  by  forfeiture  before 
the  prescribed  period,  if  the  premises  are  re- 
quired to  be  taken  for  public  uses  or  improve- 
ments, or  the  subject-matter  of  the  lease  wholly 
perishes,  or  is  turned  into  a  house  of  ill-fame.J 
The  same  result  will  follow  when  the  tenant 
purchases  in  fee,  or  the  fee  descends  to  him  as 

d-2  Exch.  487:  4  Id.  17;  9  Id.  309;  8  C.  &  P.  679; 
10  Pet.  65:  5  Pick.  431  :  11  Id.  304:  17  Wend.  133;  4 
Dev.  &  B.  289  ,  I  N.  H.  75.  e-See  as  to  infants,  10 
Pet.  65  ;  5  Ohio,  251  ;  15^.192;  1 1  H umph .  468  :  11 
Johns.  530;  14  id.  124.  Intoxicated  persons,  13  M.  & 
W.  623.  Married  women,  Smith  Landl.  &  Ten.  48  :  i 
Piatt  Leases,  48;  19  N.  H.  483.  f-Cro.  Car.  109: 
Shepp.  Touchst.  269.  $r-Rac.  Abr.  Lfases{\.  4)  ;  Cro. 
Eiiz.  109 :  28  Barb.  240 ;  2  Hill,  554  ;  i6  Johns.  110,  201  : 
S  Ark.  693  ;  7  Mann.  &  G.  701.  Il-Co.  Litt.  45,  l> :  3  T. 
R.  463;  4  East.  29:  1  M.  &  \V.  533.  i-it  Wend.  616; 
13  Johns.  109  ;  ST.  R.  3 ;  4  Ired.  294;  3  Zabr.  iii.  j- 
«4  Wend.  454 ;  29  Barb.  116;  5  Ohio,  3*3.    k-jo  Johtis. 


heir  in  law;  for  in  either  case  the  lease  is 
merged  in  the  inheritance  :  since  there  would 
be  a  manifest  inconsistency  in  allowing  the 
same  person  to  hold  two  distinct  estates  imme- 
diately expectant  on  the  other,  while  one  of 
them  includes  the  time  of  both,  thus  uniting 
the  two  opposite  characters  of  landlord  and 
tenant.*    See  Lease  Forms,  post. 

L.EAHE  FORMS. 

Leases  are  made  either  by  parol  or  in  writing,  but  no 
particular  form  of  expression  is  required  in  any  case  t .) 
create  an  immediate  demise.'  Any  permissive  holding 
is,  in  fact,  sufficient  for  the  purpose,  and  it  maybe  con- 
tained in  any  written  memorandum  by  which  it  appears 
to  have  been  the  intention  of  one  of  the  parlies  volun- 
tarily to  dispossess  himself  of  the  premises  for  any  given 
period,  and  of  the  other  to  assume  the  possession  tor  the 
same  period.™  Any  general  description  will  suffice  to 
pass  the  leased  premises,  if  it  be  capable  of  distinct  as- 
certainment and  identification.  Whatever  words  are 
sufficient  to  explain  the  intent  of  the  parties,  that  the 
one  shall  divest  himself  of  the  possession,  and  the  other 
come  into  it,  for  a  determinate  time,  are  of  themselves 
sufficient,  and  will,  in  construction  of  ^aw,  amount  to  a 
lease,  as  well  as  if  the  most  proper  and  pertinent  words 
had  been  made  use  of  for  that  purpose."  And  inaccu- 
racies as  to  qualities,  names,  amounts,  etc.,  will  be  re- 
jected, if  there  is  enough  to  make  the  purposes  and 
intentions  of  the  parties  certain." 

The  formal  parts  of  a  lease  in  writing  are: 

1.  The  introduction,  which  may  include  the  date. 

The  date,  which  will  fix  the  time  for  its  commence- 
ment, unless  some  other  period  is  specified  in  the  in- 
strument itself  for  this  purpose  ;  but  if  there  is  no  date, 
or  an  impossible  one,  the  time  will  be  considered  as 
having  commenced  from  the  delivery  of  the  lease. P 

3.  The  premises,  which  include  : 

1.  The  NAMES  OF  THE  parties;  and  the  law  knows  but 
one  Christian  name  ;  and  therefore  the  middle  letter  of 
the  name  of  either  party  is  immaterial,  and  a  person 
may  always  show  that  he  is  as  well  known  by  one  name 
as  another.i 

2.  The  consideration  must  appear,  although  it  need 
not  be  what  is  technically  called  rent,  or  a  periodical 
render  of  compensation  for  the  use  of  the  premises  ;  but 
it  may  be  a  sum  in  gross,  or  the  natural  affection  which 
one  party  has  for  the  other.  It  may  also  consist  in 
grain,  animals,  or  the  personal  services  of  the  lessee.' 

3.  The  description  op  the  premises  need  not  spe- 
cify all  the  particulars  of  the  subject-matter  of  the  lease, 
for  the  accessories  will  follow  the  principal  thing  named  ; 
thus  the  garden  is  parcel  of  a  dwelling-house,  and  the 
general  description  of  a  farm  includes  all  the  houses 
and  lands  appertaining  to  the  farm."  But  whether  cer- 
tain premises  are  parcel  to  those  leased  or  not  is  always 
matter  of  evidence.' 

3.  The  habendum. 

4.  The  reddendum. 

5.  Condition  or  proviso. 

6.  The  covenants. 

7.  The  conclusion. 

8.  The  signatures  (and  seals  where  required  by  law) 
of  the  grantors.  And  where  the  covenants  in  the  lease 
are  mutual  both  parties  must  sign. 

9.  Attestation  of  witnesses,  when  required  by  law. 

10.  The  acknowledgment,  when  required  by  stat- 
ute, as  where  the  term  is  years. 

The  rights  and  liabilities  of  the  respective  parties 
are  regulated  by  law,  in  the  absence  of  any  particular 
agreement  in  respect  thereto:  but  express  covenants  are 
usually  inserted  in  a  lease  for  the  purpose  of  limiting  or 

482:  2  C.  &  P.  347:  Tayl.  Landl.  &  Ten.  ?  502.  1-8 
Bingh.  182;  9  Ad.  &  E.  650:  5  T.  R  168:  2  Wend. 
438;  I  Denio,  602;  8  Penn.  St.  272;  12  Me.  135;  Wins. 
Real  Prop.  327.  ill-Tayl.  Landl.  &  Ten.  ^  26 ;  i 
Washb.  Real  Prop.  300  n-4  Burr.  2209:  i  Mod.  14: 
II  Id.  42  :  2  Id.  89  :  3  Burr.  1446 ;  Bac.  Abr.  Leases :  6 
Watts,  362;  sM'Cord,  211,  3  Fairf.  478:  5  Rand.  571 : 
1  Root,  318.  O-i  M  &  S.  342:  Cro.  Car  473:  Cro 
Jac.  34;  Plowd  187,  191;  Dyer,  376,^.  i  M.  &  Sel 
299:  5  B.  &  Ad.  43;  6  M.  &  W.  234,  269.  p-14  Pet. 
322.  «i-2  Johns.  231:  I'i,  Wend  656;  4  B.  &  C.  272 
r-3  Hill  (N  Y.)345;  i  Speers.  408.  »-9  Conn  374:  4 
Kawle,  330 ,  9  Cow.  747.    t-x4  Barb.  434 ;  3  B.  &  C.  870^ 


3»4 


CONVEYANCES. 


etherwiie  defining  their  rights  and  duties  in  relation  to 
repairs,  taxes,  insurance,  renewals,  residence  on  the 
premises,  modes  of  cultivation,  fixtures  and  the  like. 

In  every  well-drawn  lease  provision  is  made  for  a 
forfeiture  of  the  term  in  case  the  tenant  refuses  to  pay 
rent,  commits  waste,  or  is  guilty  of  a  breach  of  the 
covenant  to  repair,  insure,  reside  on  the  premises,  or 
the  jilie.  This  clause  enables  the  lessor  or  his  assigns 
to  re-enter,  in  any  such  event,  upon  the  leased  premises 
and  eject  the  tenant,  leaving  both  parties  in  the  same 
condition  as  if  the  lease  were  a  nullity;  but  in  the 
absence  of  a  proviso  for  re-entry,  the  lessor  would  pos- 
sess no  such  power,  the  mere  breach  of  a  covenant 
enabling  him  to  sue  for  damages  only."  The  forfeiture 
■will  generally  be  enforced  by  the  courts,  except  where 
Ithe  landlord's  damages  are  a  mere  matter  of  computa- 
tion, and  can  be  readily  compensated  by  money.'  But 
in  the  case  of  a  forfeiture  for  the  non-payment  of  rent, 
the  proviso  is  allowed  to  operate  simply  as  a  security 
for  rent,  and  the  tenant  will  be  relieved  from  its  effects  at 
any  time  by  paying  the  landlord,  or  bringing  into  court 
the  amount  of  all  arrears  of  rent,  with  interest  and  costs. 

1.EASES— VARIOrS  DETAILS. 

Introclnctions  in  Eeasies. 

See  other  Conveyances. 

The  introduction  to  a  conveyance,  deed,  lease,  mort- 
gage, etc.,  is  called  the  "Testatum"  clause.  See  the 
text  preceding  Deed  Forms,  above. 

A.  B.  (or  A.  13.  and  W.  B.  his  wife  [conveys,  or'\ 
leases,  etc.  

I  {or  we,  A.   B.,   of ,  and  W.  B.  his  wife)  for  a 

consideration,  etc.  (convey,  or)  lease,  etc. 


This  (agreement,  or  conveyance,  or  lease,  or  inden- 
ture, bipartite,  tripartite,  quadripartite,  etc.)  witness- 
eth: 

That,  etc.  

This  agreeinent  (conveyance,  or  lease,  etc.)   made 

this day  of ,  witnesseth  : 

That,  etc.  

This  (agreement,  or  conveyance,  or  lease,  etc. ),  tnade 

this day  of ,by  A.  B.,of ,to  C.  D.,  of 

,  witnesseth  : 

That,  etc.  

This  agreement  (conveyance,  or  lease,  etc.),  made 

this  day   of  ,  in  ,  by  A.  B.,  of  

county,  in  the  State  (or  Commonwealth)  of ,  far- 
mer, to   C.  D.,   of county,  in  the   State  (or 

Commonwealth)  of ,  merchant,  witnesseth  : 

That,  etc.  

Know  all  men  by  these  presents: 
That  this  (agreement,  or  conveyance,  or  lease,  etc., 
as  above) .  

Know  all  men  by  these  presents: 

That  A.  B.,  of ,  has,  for  a  consideration  of 

,  etc.,  the  receipt  of  which,  etc.,  has  leased 

and  conveyed,  and  does  by  these  presents  lease 
and  convey  unto  C.  D.,  of ,  etc. 

This  (agreement,  or  conveyance,  or  lease,  etc. ),  made 
and  entered  into  this day  of ,  by  and  be- 
tween A.  B. ,  of county,  and  the  State  of , 

party  of  the  first  part,  and  C.  D.,  of county, 

in  the  State  of  ,  of   the    second 


nesseth ; 
That,  etc. 
Saving  and  excepting,  etc. 


part,  wit- 


To  all  to  whom  these  presents  may  come  greet- 
ing (or  To  all  whom  it  may  concern) : 

Know  ye  : 

That  this  (agreement,  or  conveyance,  or  lease,  etc.), 

by  and  between  the ,  a   corporation  existing 

under  the  laws  of  the  State  (or  Commonwealth) 

of ,  of  the  first  part,  and  C.  D.,  E.  F.,  and   G. 

H.,  a  company  doing  business  under  the  firm- 
name  and  style  of  the  D.,F.,  H. manufactur- 
ing company,  of  the  second  part,  witnesseth  : 

That,  etc. 

M-3  Wils.  127 ;  2  Cow.  591 ;  2  Overt.  233.  ▼-7  Johns. 
*3S :  4  Munf.  332  ;  2  Price,  200. 


PremiMes  in  Lenneii, 

See  other  Coxreyances. 

I.  Statement  of  Parties. 

See  Defies,  ante,  p.  299. 

2.    RrCITALS  FOIt   EXHIANAT  ^_^.y. 

See  Deeds,  ante,  p.  299. 

3-  Descriptions  of  Property  Leased,  with 

Exceptions,  etc. 

See  Deeds,  ante,  p.  300. 

HabeiKliiin  in  Ijeases. 

See  Other  Conveyances. 

The  habendum  limits  and  defines  what  estate  th< 
grantee  is  to  have  in  the  premises  conveyed,  as,  an 
estates  for  lives,  years,  or  a  less  period:  an  absolute  or 
conditional,  joint  or  several,  restricted,  or  limited  estate, 
etc.,  etc 

Habendum — Life  Estate. 

To  have  and  to  hold  the  same  during  the  nat- 
ural life  (or  lives)  of . 

Another. 

To  have  and  to  hold  said  premises,  with  their 
appurtenances,  unto  said  C.  D.,and  his  legal  rep- 
resentatives, from  last  past,  for  and  during 

(the  term  of  ninety-nine  years  thence  next  ensuing,  and 
to  be  fully  complete  and  ended  if)  (orforand  during  the 
lives  of)  D.  D.  (daughter  of  said  C.  D.),  S.  D.  (son  ot 
said  C.  D),  and  N.  D.  (nephew  of  "iaid  C.  D.),  or  any 
or  either  of  them  shall  so  long  live. 

Habendum — Lives  and  Years. 

To  have  and  to  hold  said  premises,  togethar 
with  all  and  singular  the  buildings,  ways,  streets, 
alleys,  passages,  waters,  water-courses,  rights, 
liberties,  privileges,  hereditaments  and  appurte- 
nances whatsoever,  unto  said  CD.,  his  executors, 
administrators  (and  assigns),  from  henceforth,  for 
and  during  the  natural  life  and  lives  of  him,  the 

said  C.   D.   (aged  about   years),  of  D.    D.,  his 

daughter  (aged  about years'.,  and  of  S.   D.,  his 

son  (aged  about years),  and  of  the  survivor  of 

them,  and  for  and  during  the  further  term  of 

years,  to  commence  from  and  immediately  after 
the  death  of  the  survivor  of  them. 

Yielding  and  paying  therefor,  etc. 


Habendum — Years. 
To  have  and  to  hold  said  premises,  etc.,  for  and 

during  the  term  of years  from  and  after  tht 

day  of ,  last  past. 

Rcildendiini  or  Reservation  in  lieases. 

See  Other  Conveyances. 

The  reddendum  (or  reservation)  is  that  clause  In  a 
conveyance,  deed,  lease,  etc.,  by  which  the  grantor  re- 
serves something  new  to  himself  out  of  that  which  he 
granted  before.  It  usually  follows  the  habendum. 
Reddendum  ok  Reservation — Balcony,  Observa- 
tory, etc. 

Excepting  and  always  reserving  unto  said  C. 
D.,  etc.,  their  executors,  administrators  and  as- 
signs, liberty  for  them  and  such  other  persons  as 
they  or  either  of  them  shall  elect  (not  exceet'ing 

in  number  at  any  one  time)  to  pass  and   repass 

to  and  from  and  stand  on  and  occupy  the bal- 
cony (or  observatory,  etc.),  and  witness  all  exhibi- 
tions, pastimes,  parades,  reviews,  shows,  or  other 
public  affairs,  etc.,  that  shall  be  or  appear  in  and 
upon  the  streets  near  the  same,  from  time  to 
time,  and  at  all  times  during  the  said  term  here- 
under granted. 

Reddendum  or  Reservation— Drive,  Roadway, 
etc. 

Excepting  and  always  reserving  out  of  the 
premises  hereby  leased  and  conveyed  unto  said 

A.  B.,  etc.,  the   drive  or  roadway  (describing 

it)  through  and  over  said  premises,  for  the  aaid  A. 

B.,  to   and    from   to   ,   for  any  purpose 

whatsoever. 


Reddendum  or  Reservation — Private  Passage, 
Roadway,  or  Way. 
Excepting  and  always  reserving  unto  said  A. 
B.,  his  executors,  administrators,  tenants,  and 
assigns,  and  all   other  persons  whatsoever,  free 
leave    and    liberty  to    pass    an4    repass,    by  o( 


CONVEYANCES. 


3tS 


through,  the   passage,  roadway,  or  'wray,  lying 

through  the  said  premises,  out  of into , 

on  the  back  part  of  said  premises  called  the , 

leading  from into (at  all  convenient  times  in 

the  daytime  only),  during  the  term  of  years  herein- 
before (or  hereinafter)  granted. 

Reddendum  or  Reservation — Timber,  etc. 
Excepting  and    always  reserving  out   of  the 
premises  herein  leased  and  conveyed  all  timber, 
trees,  etc.,  standing  and  being  on ,  etc. 


Reddendum  or   Reservation — Water-Course. 

Excepting  and  always  out  of  the  present  lease 
reserving  unto  said  A.  B.  and  W.  B.  his  wife, 
their  executors,  administrators  and  assigns,  and 
the  inhabitants  of  said  premises,  the  water- 
course or  passage  made  through  and  under  the 

of  said  premises  for  the  conveyance  of  water 

from  to  ,   and   free    liberty  of  ingress, 

egress,  and  regress  in  and  upon  said  premises, 
for  them,  the  said  A.  B.  and  W.,  their  executors, 
administrators,  tenants,  workmen,  servants,  and 
assigns,  at  all  times  convenient  and  necessary, 
during  the  term  hereby  granted,  to  cleanse,  re- 
pair and  use  said  water-course. 

Conditions  and  Provisos  in  liCases. 

See  Other  Conveyances. 

The  condition  in  a  conveyance  or  deed,  lease,  etc.,  is 
R  qualification  or  restriction  annexed  to  the  conveyance, 
whereby  it  is  provided  that  in  case  a  particular  event 
does  or  does  not  happen,  or  in  case  the  grantor  orgrantee 
does  or  omits  to  do  a  particular  act,  an  estate  shall  com- 
mence, be  enlarged,  or  be  defeated.  "Subject  to,"  or 
"  Subject,  nevertheless,  to,"  or  "  On  condition,"  "  Pro- 
vided," "  Provided  always,"  "  Provided  nevertheless," 
etc.  Thus  the  property  conveyed  may  be  subject  to 
the  payment  of  an  annuity,  an  easement,  an  incumbrance, 
a  mortgage,  or  other  condition,  qualification,  restriction, 
etc. 

See  Description,  etc.,  with  Exceptions,  and  Ha- 
bendum and  Reddendum,  above  •  Mortgages  Trust 
Deeds,  post. 

Condition  or  Proviso — Death  op  Lessee. 

Provided  always,  and  these  presents  are  upon 
this  condition  : 

That  if,  during  the  time  hereby  conveyed  and 
leased,  said  C.  D.  shall  die,  and  his  executors, 
administrators  or  assigns  shall  at  any  time  after 

be  desirous  to  leave  and  quit  said  premises, 

they  shall,  after  full  payment  of  all  rent  accrued 
i:nd  to  accrue,  give  or  leave  months'  warn- 
ing, in  writing,  to  said  A.  B.,  or  his  heirs,  execu- 
tors, administrators  or  assigns,  at  his    or  their 

places  of  abode,  and  at  the  expiration  of  said 

months  these  presents,  and  the  term  hereby 
granted,  as  for  any  further  continuance,  shall 
cease,  determine,  and  be  utterly  void,  anything 
herein  to  the  contrary  notwithstanding. 

Cokdition  or  Proviso — Notice  to  Determine 
Lease. 

Provided  always,  and  these  presents  are  upon 
this  condition: 

That  it  shall  be  lawful  to  and  for  either  said  A. 
B.  or  his  legal  representatives,  or  said  C.  D.  or 
his  legal  representatives,  to  determine  and  make 

void  this  lease  at  the  expiration  of (months,  or 

years,    etc.),   of  the   said    term    of  (months,  £>r 

years,  etc.),  in  causing  notice  or  warning,  in  writ- 
ing, for  thkat  purpose,  to  be  given  to  or  left  for  the 
other  of  them,  his  (or  her)  legal  representatives  at 

his   (or  their)   usual   or   last   place    of   abode, 

months  at  least  before  the  time  limited  for  deter- 
mining the  same  as  aforesaid  (anything  herein  con- 
tained to  the  contrary  notwithstanding). 


Condition  or  Proviso— Re-Entrv  for  Non- 
Payment  OF  Rent. 

Provided  always,  and  these  presents  are  upon 
this  express  condition : 

That  if  said  I  monthly,  or  quarterly,  or  yearly,  etc.) 

rent  or  sum  of dollars,  or  any  part  thereof, 

shall  be  behind  and   unpaid  for  the  space  of 

days  next  after  the  said  days  of  payment  (whereon 
the  same  is  appointed  to  be  paid  as  aforesaid),  then  it 
shall  be  lawful  to  and  for  said  A.  B.,  his  heirs. 


executors,  administrators  or  assigns,  to  re-enter 
said  premises  or  any  part  thereol,  and  the  same 
to  repossess  and  enjoy,  as  in  his  and  their  former 
estate,  anything  herein  contained  to  the  contrary 
notwithstanding. 

Condition  or  Proviso — Re-Entrv,  Occupation, 
or  Trade  Being  Offensive,  etc. 

Provided  always  (or  nevertheless): 

That  if  said  C.  D.,  his  executors,  administra- 
tors or  assigns  shall  permit  or  suffer  any  person 
or  persons  to  occupy  said  premises  or  any  part 
thereof  who  shall  engage  in,  use,  follow,  or  per- 
mit the  business,  trade    or    occupation  of 

therein,  then  and  from  thenceforth,  and  from  any 
of  said  causes,  it  shall  be  lawful  for  said  A.  B., 
his  heirs  or  assigns,  and  without  notice  thereof, 
to  re-enter  and  enjoy  said  premises,  in  part  or  in 
whole,  as  in  their  former  estate  and  right  ^anything 
herein,  to  the  contrary  notwithstanding). 

Condition  or  Proviso — Re-Entry   for  Various 

Causes,  with  Waiver  of  Notice,  etc. 
Provided,  however,  and  it  is  further  agreed  : 

That  if  said  rent  shall  remain  unpaid days 

after  the  same  shall  become  payable  as  aforesaid, 
or  if  said  party  of  the  second  part  shall  assign 
this  lease,  or  underlet,  or  otherwise  dispose  of  the 
whole  or  any  part  of  said  leased  premises,  or  use 
the  same  for  any  purpose  save  that  hereinbefore 
authorized  and  agreed  upon,  or  shall  make  any 
alteration  therein  without  the  consent  of  said 
party  of  the  first  part  being  first  obtained  in 
writing,  or  shall  commit  waste  or  suffer  it  to  be 
committed  on  said  premises,  or  injure  or  misuse 
the  same,  then  this  lease  shall  thereupon  and 
without  notice  or  demand  from  said  party  of  the 
first  part  expire,  and  said  party  of  the  first  part 
may  re-enter  said  premises  or  any  part  thereof 
and  repossess  and  recover  the  same  to  all  intents 
and  purposes  as  though  said  party  of  the  second 
part  had  never  occupied  the  same,  and  that  with- 
out such  re-entry,  and  without  demand  for  rent, 
said  party  of  the  first  part  may  recover  posses- 
sion thereof  in  the  manner  prescribed  by  statute 
relating  to  summary  proceedings  in  such  cases. 

Covenants  in  I^eases. 

See  Other  Conveyances. 

For  the  law  concerning  covenants,  see  Covenants, 
etc.,  in  the  text  to  Deeds,  above. 

Covenant — Assignment  of  Lease  Allowed. 

That  said  C.  D.  may  assign,  lease,  or  otherwise 
dispose  of  or  part  with  all  or  any  part  of  the  prem- 
ises and  tenements  to  him  conveyed  and  leased 
by   these   presents,  or   by  a   (conveyance  or)  lease 

bearing  date  the  day  of ,  unto ,  etc., 

for  all  or  any  part  of  his  estate,  interest,  or  terms 
thereunder,  or  by  virtue  of  his  said  lease,  any  re- 
striction therein  to  the  contrary  notwithstanding. 


Covenant — Assignment  of  Lease  Prohibited. 

That  said  party  of  the  second  part  (his  executors, 
administrators  or  assigns,  or  any  or  either  of  them), 
shall  not  at  any  time  hereafter  during  the  term 
hereby  granted,  assign,  convey,  lease,  or  transfer 
any  of  his  or  their  estate,  interest,  or  term  or  any 
part  thereof  in  said  premises  or  their  appurte- 
nances, to  any  person  or  persons  whomsoever 
(without  the  consent  of  said  party  of  the  first  part,  his 
heirs,  etc.,  in  writing,  being  first  obtained),  anything 
hereinbefore  contained  in  anywise  to  the  contrary 
thereof  notw^ithstanding. 


Covenant — Building,  etc. 
See  Lease — Building,  etc.,  post. 

Covenant — Blinds,  Boards,  etc.,  to  Obstruct 
View,  etc. 

And  it  is  hereby  covenanted  and  agreed  by  and 
between  all  said  parties  to  these  presents,  their 
executors,  etc.,  as  follows  (that  is  to  say) : 

That  any  of  said  parties,  their  executors,  etc., 
shall  and  may  at  their  pleasure  fasten  and  set  up 
blinds  or  boards  for  the  purpose  of  hindering  and 

obstructing  the  outlook  or  prospect  of  the 

windows,  in   the  part  (or  side)  of  the    

building  of  the  premises  hereby  conveyed  and 


3»6 


CONVEYANCES. 


ieasexi.  Provided  said  blinds  or  boards  shall  not 
obstruct  or  hinder  the  light  coming  through  said 
windows  into  said  building. 

CovKNANT — Death  of  Lbssbb. 
See  Conditions  or  Provisos,  above. 


Covenant — Dwelling  in  Premises. 
That  said  C.  D.  shall  dwell  in  and  personally 
inhabit  and  occupy  said  premises,  or  a  part  there- 
c,  with  his  family,  and  not  close  and  desert  the 
same  during  said  term. 

Covenant — Entry,  etc. 
See  Conditions  or  Provisos,  Re-kntrv,  etc.,  above. 

Covenant — Fire  Clause. 

That  in  case  the  building  hereby  leased  shall  be 
partially  damaged  by  fire,  the  same  shall  be  re- 
paired as  speedily  as  possible  by  and  at  the  ex- 
pense of  said  party  of  the  f.rst  part  (a  proportionate 
reduction  ofrcr.t  oeingmadeforlhe  time  of  said  damaged 
portion  is  untenantable).  Provided  the  damage  be 
not  caused  by  the  carelessness  of  the  party  of  the 
second  part,  his  agents  or  employees. 

That  in  case  the  damage  is  so  extensive  as  to 
render  the  building  untenantable,  the  rent  shall 
cease  until  the  same  is  repaired.  Provided  the 
damage  be  not  caused  by  the  carelessness  of  the 
party  of  the  second  part,  his  agents  or  employees. 

If  the  building  be  so  damaged  that  the  owner 
shall  decide  to  rebuild,  said  term  shall  cease,  the 
premises  be  surrendered,  and  the  accrued  rent  be 
paid  up  to  the  time  of  the  fire. 

Covenant — Fixtures — To  Buy. 
And  said  parties  hereby  covenant  and  agree : 
That  at  the  expiration  of  the  present  lease,  or 
of  the  renewal  thereof,  the  same  be  accepted  : 
Said  party  of  the  first  part  shall  and  will  purchase 
of  said  party  of  the  second  part  all  the  machinery 
and  fixtures  that  shall  have  been  placed  in  and 
upon  said  premises  during  the  whole  time  he 
shall  have  occupied  the  same  by  virtue  of  this 
lease,  allowing  the  full  valuation  at  which  said 
machinery  and  fixtures  shall  be  estimated  in  said 
buildings,  and  not  for  the  purpose  of  removal. 

In  case  said  parties  shall  not  agree  upon  such 
valuation,  then  the  same  shall  be  made  by  three 
disinterested  persons,  one  each  to  be  chosen  by 
satid  parties,  and  they  to  choose  the  third,  etc. 
See  Agency,  Arbitration  Forms,  ante. 


Covenant — Improvements,  etc. 
Said  A.  B.  hereby  covenants  with  said  C.  D. 

that  he,  the  said  A.  B.,  shall  and  will,  within 

next  after  the  date  hereof,  lay  out  and  expend  the 

sum  of in  repairing,  bettering,  and  improving 

said  premises,  and  the  buildings,  etc. ,  thereon,  as 
foUov/s :  {specifying  tke particular  improvements  and 

repairs,  etc.)  

Covenant — Inhabiting  Premises. 
See  Covenant— Dwelling  in  Premises,  above. 


Covenant — Insurance  by  Lessor,  etc. 

That  said  A.  B.,  his  executors,  administrators, 
and  assigns,  shall  and  will,  at  his  or  their  own 
cost  and  expense,  from  time  to  time,  sufficiently 
insure  all  and  every  building  and  tenement,  etc., 
erected  and  to  be  erected  on  the  land  hereby  con- 
veyed and  leased,  or  any  part  thereof,  from  cas- 
ualty, damage,  and  loss  by  fire  during  the  time 
hereby  granted,  in  some  one  or  more  responsible 
and  secure  insurance  company  or  companies. 

That  in  case  said  buildings,  tenements,  etc.,  or 
any  of  them,  or  any  part  of  them,  shall  at  any 
time  or  times  during  the  said  term  be  burned 
down,  destroyed,  or  damaged  by  fire,  said  A.  B. 
shall  and  will  from  time  to  time  immediately 
thereafter  rebuild,  or  sufficiently  repair  and  in- 
sure the  same.  

Covenant — Notice  to  Determine  Lease. 
See  Condition  or  Proviso,  Notice,  etc.,  ante. 

Covenant — Noxious    or    Offensive  Occupation — 

Nor  to  Pursue. 

That  said  C.  D.,  his  executors,  administrators, 


and  assigns,  shall  not  at  any  time  during  the  con- 
tinuance of  said  term  permit  or  suffer  any  person 
or  persons  to  follow,  in  or  upon  said  premises,  or 
any  part  thereof,  the  trade  of  brewer,  butcher, 
distiller,  dyer,  glue  manufacturer,  soap  boiler, 
tallow  chandler,  etc. ,  etc. ,  or  any  other  nauseous, 
noxious,  or  offensive  occupation  whatsoever, 
without  the  assent  of  said  A.  B.,  his  executors, 
administrators,  or  assigns,  being  first  obtained 
in  writing  for  that  purpose. 

Covenant — Paying  Rent,  etc. 
See  Lease — Building,  etc.,  above. 

Covenant-  Quit  at  End  of  Term. 
That  said  C.  D.  shall  and  will  at  the  expiration 
or  other  sooner  determination  of  the  said  term 
peaceably  and  quietly  surrender  and  yield  up  said 
premises  unto  said  A.  B. ,  his  heirs  and  assigns, 
together  with  all  fixtures  and  appurtenances,  and 
all  other  things  fastened  or  standing  in  and  upon 

the  same  or  any  part  thereof  for  the  last years 

of  said  term.  

Covenant — Re-Entry,  etc. 
See  Conditions  or  Provisos — Rk- Entry,  etc.,  above. 

Covenant — Renewal. 

Thart  said  A.  B.  (liis  executors,  etc  ),  at  the  cost 
and   expense   of  said  C.  D.    (his  executors,   etc.), 

(when  requested  by  him  or  them months  before  the 

expiration  of  the  term  hereby  granted;  shall  and  will 
grant  a  further  lease  of  the   aforesaid  premises 

for  the  further  term  of  ,  to  commence  from 

the  term  hereby  granted,  at  and  under  the  same 
yearly  rent,  and  containing  therein  the  like  agree- 
ments and  covenants  as  are  in  these  presents 
contained. 

Another — By  Indorsement. 

That  in  case  said  party  of  the  second  part  shall 
with  the  written  consent  of  said  party  of  the  first 
part,  indorsed  hereon,  or  on  the  duplicate  hereof, 
at  any  time  hold  over  the  said  premises  beyond 
the  period  above  specified  as  the  termination  of 
this  lease,  then  said  party  of  the  second  part 
shall  hold  said  premises  upon  the  same  terms  and 
under  the  same  agreements  and  covenants  as  are 
contained  in  this  lease :  and  no  holding  over  by 
said  party  of  the  second  part  shall  operate  to  re- 
new this  lease  without  said  written  consent. 


Covenant — R  epai  rs. 
See  Covenant — Improvement's,  etc.,  above. 


Covenant — Sell  on  Request. 
That  in  case  said  C.  D.,  his  heirs,  executors, 
administrators,  or  assigns,  shall  during  said  term 
desire  and  intend  to  purchase  the  premises  here- 
by leased,  and  shall  give  notice  of  such  desire  and 
intention  in  writing  during  said  term  unto  said 
A.  B.,  his  heirs  or  assigns,  at  his  or  their  usual 
or  last  place  of  abode,  then  said  A.  B.,  his  heirs 
and  assigns,  shall  at  the  costs  and  expense  of  said 
C.  D.,  his  heirs,  etc.,  convey  said  premises,  with 
the  appurtenances  and  every  part  thereof  unto 
said  C.  D.,his  heirs,  executors,  etc.,  as  he  or  they 
shall  direct,  upon  the  payment  by  said  C.  D.,  his 
heirs,  executors,  etc.,  the  sum  of ,  as  the  con- 
sideration of  said  purchase,  and  also  paying  to 
him  or  them  all  arrears  of  rent  which  shall  be 
then  due,  etc. 


Covenant — Taxes — Payment  of  by  Lessor. 
That  said  A.  B.,  his  executors,  administrators, 
and  assigns,  shall  and  will  from  time  to  time 
during  said  term  pay  ail  assessments,  dues,  rates 
and  taxes  whatsoever,  when  due,  that  may  be  as- 
sessed, charged,  imposed,  or  rated  on  the  prem- 
ises hereby  leased,  or  any  part  thereof,  and  there- 
from save  harmless  and  keep  indemnified  said 
C.  D. ,  his  executors,  administrators,  and  assigns, 
his  and  their  goods,  chattels,  lands,  and  tene- 
ments.   

Covenant — Taxes  and  Repairs. 
Lessee  to  Deduct  Out  of  "Rent. 
That  said  C.  D.,his  executors,  administrators, 
and  assigns,  shall  and  may  retain  out  of  every 


CONVEYANCES. 


5»7 


year's  rent  agreed  to  be  paid  to  said  A.  B.  as 
aforesaid,  so  much  money  as  he,  the  said  C.  D., 
shall  from  time  to  time,  during  said  term,  have 
paid  for  the  taxes  agreed  to  be  paid  by  said  A.  B., 
his  heirs,  executors,  etc.  And  also  for  such  ad- 
ditions, amendments,  and  repairs  by  him  made 
and  done,  in  and  about  said  premises,  by  and 
writh  the  consent  and  direction  of  said  A.  B.,  his 
heirs,  etc.,  or  without  such  consent,  so  that  such 
money  be  laid  out  and  expended  in  repairing  and 
•upporting  said  premises  or  some  part  thereof. 

COVEMANT— UnDEK-LeASE   PkoHIBITEI>. 

That  said  C.  D. ,  his  executors  or  administrators, 
shall  not  at  anytime  during  said  term  assign,  set 
over,  under-lease  or  under-let  said  premises,  or 
any  part  thereof,  or  in  any  other  manner  part 
with  the  possession  or  occupation  of  the  same 
without  the  special  consent  or  license  of  said  A. 
B.,  his  heirs  or  assigns,  in  writing  under  his  or 
their  hands  (and  se.ils;  first  had  and  obtained. 


Covenant — Use  op  Premises  Limited. 
That  said   premises,   and   every  part  thereof, 

shall  during  said  term  of be  used  only  for  the 

following  business  and  purposes,  to  wit :  {describ- 
ing Ihem). 

Another. 
That  said  premises,  nor  any  part  thereof,  shall 

not  at  any  time  during  said  term  of ,  be  used 

as  {state  what).  

Covenant— Water  Rate  or  Tax,  etc. 

That  said  A.  B.  shall  pay  the water  rate  or 

tax,  and  keep  all  plumbing,  pipes,  drains,  etc., 
etc.,  in  said  premises,  in  repair,  and  leave  the 
same  in  as  good  state  and  condition  as  reasonable 
use  and  wear  thereof  will  permit. 

Conclusions  In  Leases. 

See  Other  Conveyances. 
Signed  (and  sealed);  or. 

Signed,  sealed,  and  acknowledged  ;  or. 

Witness  our  hands  (and  seals) ;  or. 

Given  under  our  hands  (and  seals);  or. 


In  witness  whereof,  we  hereunto  set  our  hands, 
etc. ;  or,  

In  witness  whereof,  the  parties  to  these  pres- 
ents have  hereunto  set  their  hands,  etc. ;  or. 

In  witness  -whereof,  we  have  hereunto  set  our 

hands  (and  affixed  our  seals;  (at ),  this day 

of ;  or,  

In  witness  whereof,  we  have  hereunto  set  our 
hands  {or  subscribed  our  names,  the  day  and  year 
first  {or  last)  above  written  ;  or. 

In  -witness  whereof,  A.  B.,the  party  of  the  first 
part,  and  C.  D.,  the  party  of  the  second  part,  in 
their  own  proper  persons  have  hereunto  respec- 
tively and  severally  set  their  hands  and  seals,  this 

day  of  {or  the  day  and  year  first,  or  last) 

above  written. 

Sl{;natnre  (and  Seals). 

See  Deeds  and  other  conveyances,  ante. 

Attestation  or  'Witness  Clauses. 

See  Deeds  and  other  conveyances,  ante. 

Acknowledgement  of  Leases. 

All  instruments  for  the  conveyance  of  real  estate  or 
any  interest  therein  must  be  recorded  in  the  proper 
office  for  the  recording  of  deeds,  etc.,  in  order  to  affect 
judgment  creditors,  mortgagees,  subsequent  purchasers, 
etc.  It  is  customary  to  only  record  leases  for  years, 
and  not  for  a  shorter  period.     See  General  Statutes. 

SnORT  FORM  LEASES. 

A.   B.   leases  to  C.    D.  {description  of  premises), 

for  a  term  of ,  upon  the  payment  of . 

Dated  the day  of .  A.  B. 

Another. 
I,  A.  B.,  doth  lease  and  convey  unto  C.  D.  {de- 


scription of  premises),  for  a  term  of from  date, 

upon  the  payment  of ,  as  follows  : . 

Witness  my  hand,  this day  of . 

A.  B. 
Another. 

I,  A.  B.,  in  consideration  of dollars,  payable 

,  do  hereby  lease  and  demise  unto  C.  D.,  the 

following  premises  (describing  them),  for  a  term 
of from  the  date  hereof. 

Witness  the  following  signature  and  seal. 

A.  B.     \Seal.\ 
Another. 

Know  all  men  by  these  presents  : 

That  I  have,  this day  of ,  let  and  rented 

unto  C.  D.  my  house  and  premises,  number , 

in street,  in ,  with  the appurtenances, 

and  the  sole  and  uninterrupted  use  and  occupa- 
tion thereof  for  one  year,  to  commence  the  

day  of next,   at  the  yearly   (or  quarterly,  cr 

monthlj')  rent  of dollars,  payable  (lu  advanct, 

or  at  tile  end  of  each  month,  or  quarter). 

Witness  my  hand,  etc.  A.  B. 

GENERAL  FOR.1I  LEASES. 

Lease — Ciieneral  Form. 

It  is  agreed,  the day  of ,  between  A.  B., 

of ,  and  C.  D.,of . 

The  said  A.  B.  doth  let  unto  the  said  C.  D.,  and 
he  takes,  all  (describing  premises),  for  one  year 
from ,  and  for  such  longer  time  after  the  ex- 
piration of  the  said  one  year,  as  both  the  said 
parties  shall  agree,  and  until  the  end  of  three 
months  after  notice  shall  be  given,  by  either  of 
the  said  parties  to  the  other  of  them,  for  eaving 
the  said  premises,  at,  etc.,  for  the  yearly  rent  of 

,  to  be  paid  quarterly  on  the days  of , 

etc.,  by  even  and  equal  portions,  which  said 
yearly  rent  the  said  C.  D.  does  hereby,  for  him- 
self, his  executors  and  administrators,  covenant 
and  agree  to  pay  to  the  said  A.  B.  {if  freehold,  say, 
"  and  r.is  heirs"),  (i«<  if  other7vise,  say,"  cxecMor^, 
administrators  and  assigns  "),  accordingly,  for  so  long 
time  as  he  shall  hold  and  enjoy  the  said  premises 
as  aforesaid,  and  until  the  end  of  the  said  three 
months,  next  after  notice  shall  be  given  by  either 
of  the  said  parties,  to  the  other  of  them,  for  leav- 
ing the  said  premises  as  aforesaid. 

In  witness  whereof,  etc. 

Lease— General  Form. 

This  (agreement,  conveyance,  indenture,  or)  lease, 

made  this day  of ,  between  A.  B.,  of 

party  of  the  first  part,  and  C.  D. ,  of ,  party  of 

the  second  part,  witnesseth  : 

That  the  said  party  of  the  first  part  does  by 
these  presents  lease  to  the  said  party  of  the  sec- 
ond part  the  following-described  property,  to  wit 
{describe  the  property). 

To  have  and  to  hold  the  same  to  the  said  party 

of  the  second  part,  from  the  day  of to 

the day  of . 

And  the  said  party  of  the  second  part  cove- 
nants and  agrees  with  the  party  of  the  first  part 
to  pay  the  said  party  of  the  first  part,  as  rent  for 
the  same,  the  sum  of dollars,  payable  as  fol- 
lows, to  wit  (state  the  times  and  terms  of  payment). 

The  said  party  of  the  second  part  further  cove- 
nants with  the  said  party  of  the  first  part,  that  at 
the  expiration  of  the  time  mentioned  in  this 
lease,  peaceable  possession  of  the  said  premises 
shall  be  given  to  said  party  of  the  first  part,  in  a» 
good  condition  as  they  now  are,  the  usual  wear, 
inevitable  accidents,  and  loss  by  fire  excepted  ; 
and  that  upon  the  non-payment  of  the  whole  or 
any  portion  of  the  said  rent  at  the  time  when  the 
same  is  above  promised  to  be  paid,  the  said  party 
of  the  first  part  may,  at  his  election,  either  dis- 
train for  said  rent  due,  or  declare  this  lease  at  an 
end,  and  recover  possession  as  if  the  same  was 
held  by  forcible  detainer :  the  said  party  of  the 
second  part  hereby  waiving  any  notice  of  such 
election,  or  any  demand  for  the  possession  of  said 
premises. 

The  covenants  herein  shall  extend  to  and  be 
binding  upon  the  heirs,  executors,  and  adminis- 
trators of  the  parties  to  this  lease. 

Witness  said  parties'  hands  and  seals. 

(Signature  of  Lessor.)     \Seal.\ 
{Signature  of  Lessee.)    [Sra/J 


3i8 


CONVEYANCES. 


I<cn«iO— Weniornndnni. 

Memorandum,  That  A.  B.,of ,  has  leased  to 

C.  D.,of ,  the  premises  or  tenement  in  S.  street, 

in ,  in  which  the  said  A.  B.  lately  dwelt,  to 

hold  for  one  whole  year  from  next  ensuing, 

and  so  from  year  to  year  ;  yielding  and  paying 
yearly  and   every  year   unto  the  said  A.  B.    the 

sum  of ,  by even  and  equal  payments,  the 

first  payment  to  be  made  on ,  the  second  pay- 
ment on ,  etc.,  in  every  year. 

And  the  said  A.  B.  has  agreed  to  repair  the  prem- 
ises, other  than  the  glass  windows  thereof  and 
pales  before  the  door  ; 

And  the  said  C.  D.  has  agreed  to  repair  the  win- 
dows during  the  term  ; 

And  the  said  A.  B.  has  agreed  that  C.  D.  may 
retain  the  first  quarter's  rent,  laying  it  out  in 
painting  the  outside  of  the  said  house,  and  the 
overplus  (if  any)  otherwise  in  and  about  the  said 
house: 

And  further,  that  the  said  C.  D.  may  enter  at 
aivy  time  before  midsummer. 

Provided,  that  if  either  of  said  parties,  their 
executors  or  administrators,  should  desire  to  de- 
termine the  said  lease,  and  should  leave  and  give 
notice  thereof  in  writing  to  the  other,  his  exec- 
utors or  administrators,  one-quarter  of  a  year  be- 
fore the  end  of  any  year,  then,  from  the  end  of 
the  same  year,  the  said  lease  shall  determine  and 
be  void. 

In  witness  whereof,  etc. 

I^ease— General  Form. 

This  fagreeniciit,  conveyance,  indenture,  or)  lease, 
made  the day  of ,  witnesseth  : 

That  I,  A.  B.,  of ,  do  hereby  lease,  demise, 

and  let  unto  C.  D.,  of ,  a  certain  tract  of  land, 

in  county,  and   State  of  ,  with  all  the 

buildings  thereon  standing  and  the  appurte- 
nances to  the  same  belonging,  bounded  and  de- 
scribed as  follows,  to  wit  (or  a  certain  house  in  said 

city,  on  lot  number  ,  in street,  etc.,  with  the 

land  under  and  adjoining  the  same). 

To  hold  the  same  for  the  term  of ,  from  the 

day  of . 

Yielding    and    paying   therefor    the    rent 

of . 

And  said  lessee  agrees  to  pay  the  said  rent  in 

four  quarterly  payments  on  the days  of : 

to  quit  and  deliver  up  the  premises  to  the  lessor 
or  his  attorney,  peaceably  and  quietly,  at  the  end 
of  the  term,  in  as  good  order  and  condition,  rea- 
sonable use  and  wearing  thereof,  fire  and  other 
unavoidable  casualties  excepted,  as  the  same  now 
are  or  may  be  put  into  by  the  said  lessor :  to  pay 
the  rent  as  above  stated,  and  all  taxes  and  duties 
levied  or  to  be  levied  thereon,  during  the  term, 
and  also  the  rent  and  ta::es,  as  above  stated,  for 
such  further  time  as  the  lessee  may  hold  the 
same.  And  also  not  to  make  or  suffer  any  viraste 
thereof;  nor  lease,  noi  underlet,  nor  permit  any 
other  person  or  persons  to  occupy  or  improve  the 
same  :  or  make  or  suffer  to  be  made  any  altera- 
tion therein  but  with  the  approbation  of  the 
lessor  thereto,  in  \vriting,  having  been  first  ob- 
tained :  And  further  that  the  lessor  may  enter  to 
view,  and  make  improvements,  and  to  expel  the 
lessee,  if  he  shall  fail  to  pay  the  rent  and  taxes  as 
aforesaid,  or  make  or  suffer  any  strip  or  v^aste 
thereof. 

In  witness  whereof,  the  said  parties  have  here- 
unto interchangeably  set  their  hands  (and  seals), 
the  day  and  year  first  above  written. 

A.  B.     [Seal.] 
Signed,  sealed  and  delivered  )  C.  D.    [.Si-a/.] 

in  presence  of  J 

(it.^Halures  of  witnesses.) 

Lease— General  Form. 

This   (agreement,  conveyance,  indenture,  or  lease) 

made  this da^  of ,  by  A.  B.,of ,  of  the 

first  part,  to  C.  D.,  of ,  of  the  second  part, 

witnesseth : 

That  the  party  of  the  first  part  does  hereby  let 
and  rent  unto  the  party  of  the  second  part,  and 
the  party  of  the  second  part  does  hereby  hire  and 
lake  from  the  party  of  the  first  part  the  follow- 
ing described  premise*:  \Jte>e /oUo-ms  t/ie  descrip- 
tion). 


For  a  term  of years,  commencing  the  — - 

day  of ,  and  ending  the day  of . 

At  the  yearly  (qiiarieily,  <?>- monthly;  rent  of 

dollars,  payable  in  equp.l  (quarterly,  or  monthly) 
payments,  on  the  first  days  of  (each  month,  or 
January,  April,  July,  and  October;  in  each  year.* 

That  if  any  rent  shall  be  due  and  unpaid,  or  if 
default  shall  be  made  in  any  of  the  covenants 
herein  contained,  then  it  shall  be  lawful  for  said 
party  of  the  first  part  to  re-enter  said  premises 
and  remove  all  persons  therefrom  (said  party  of 
the  second  part  waiving  notice  to  quit,  or  of  intention 
to  reenter). 

And  said  party  of  the  second  part  covenants 
that  at  the  expiration  of  said  term,  or  other  de- 
termination of  this  lease,  to  quit  and  surrender" 
said  premises  to  said  party  of  the  first  part,  or 
his  assigns,  in  as  good  a  state  and  condition  as 
reasonable  use  and  wear  thereof  will  permit, 
damage  by  the  elements  excepted. 

And  said  party  of  the  first  part  covenants  that 
on  paying  the  said  yearly  (quarterly,  or  monthly; 
rent,  and  performing  the  covenants  aforesaid, 
said  party  of  the  second  part  shall  and  may  peace- 
ably and  quietly  have,  hold, and  enjoy  said  leased 
premises  for  the  term  aforesaid. 

In  witness  whereof,  said  parties  have  inter- 
changeably set  their  hands  (and  seals)  the  day  and 
year  first  above  written. 

A.  B. 
Executed  in  presence)  C.  D. 

of  W.  T.,  N.  S.       j" 

I^ease— General  Form. 

This  (agreement,  conveyance,   indenture,  or)  lease, 

made  this day  of ,  by  A.  B. ,  of ,  of  the 

first  part,  and  C.  D.,  of ,  of  the  second  part, 

witnesseth  : 

That  the  said  party  of  the  first  part,  in  consid- 
eration of  the  rents,  covenants  and  stipulations 
hereinafter  mentioned,  and  hereby  agreed  to  be 
paid,  kept  and  performed  by  the  said  party  of  the 
second  part,  his  executors,  administrators  and 
assigns,  has  leased,  and  by  these  presents  does  . 
lease,  to  the  said  party  of  the  second  part  the  fol- 
lowing described  premises  ((iescriOe  the  house,  as 
of  brick,  or  stone,  or  "wood,  nuiuber  of  stories),  lot 
number ,  in  block  number ,  in  the  city  of 

For  and  during  the  term  of ,  to  commence 

on  the day  of ,  at  the  annual  rent  of , 

payable  in  four  equal  quarterly  payments,  begin- 
ning three  months  from  the  date  hereof. 

Any  failure  to  pay  each  payment  of  rent  when 
due,  to  produce  a  forfeiture  of  this  lease,  if  so  de- 
termined by  said  lessor  or  his  successors. 

The  lease  of  said  tenement  or  any  part  of  it  is 
not  assignable,  nor  is  said  tenement  or  any  part 
of  it  to  be  underlet,  without  the  written  consent 
of  said  lessor,  under  penalty  of  forfeiture. 

And  it  is  hereby  covenanted,  that,  at  the  expi- 
ration of  this  lease,  the  said  tenement  and  prem- 
ises are  to  be  surrendered  to  said  lessor,  his  heirs, 
assigns,  or  successors,  in  the  condition  received, 
only  excepting  its  natural  wear  and  decay,  or  the 
effects  of  accidental  fire. 

All  lepairs  deemed  necessary  by  said  lessee  to 
be  made  at  his  expense. 

All  fixtures  shall  be  bound  for  the  rent. 

The  said  lessee,  and  all  holding  under  him, 
hereby  engages  to  pay  the  rent  above  reserved, 
and  double  rent  for  every  day  when  he  or  any  one 
else  in  his  name  shall  hold  on  to  the  whole  or 
any  part  of  said  tenement,  after  the  expiration 
of  this  lease,  or  of  its  forfeiture  for  non-payment 
of  rent,  etc. 

This  tenement  and  premises  to  be  kept  free  of 
any  nuisance  in  or  adjacent  thereto,  at  the  ex- 
pense of  said  lessee.  A.  B.        [Seal.] 
C.  D.        [Seai.[ 
Executed  in  presence  of  1 
W.  T.,N.  S.         I 

l.eaHe— General  Form— With  W«»iver, 
eio. 

This  lease,  made  this day  of ,  by  A.  B. 

(of ),  of  the  first  part,  to  CD.  (of ;,  of  the 

second  part,  witnesseth  : 

That  the  said  party  of  the  first  part,  in  consid' 


CONVEYANCES. 


\i^ 


eratton  of  the  rents,  Covenartts  and  agreements, 
of  the  said  party  of  the  second  part,  hereinafter 
set  forth,  does  by  these  presents  grant,  lease  and 
rent  to  the  said  party  of  the  second  part  the  fol- 
lowing described  property,  situated  in  the  county 
of ,  and  State  of ,  to  wit :  (tiescribing  it). 

To  have  and  to  hold  the  same  unto  the   said 

party  of  the  second  part,  from  the day  of 

to  the day  of . 

And  the  said  party  of  the  second  part,  in  con- 
sideration of  the  leasing  the  premises  as  above 
set  forth,  covenants  and  agrees  with  the  said 
party  of  the  first  part  to  pay  the  said  party  of  the 
first   part,  his   heirs   or  assigns,  as  rent  for  the 

same,  the rent  or  sum  of dollars,  in 

payments,  as  follows,  to  vs'it :  {giving  time,  place, 
amount,  and  manner  of  payment). 

(Hereby  waiving  the  benefit  of  the  exemption,  valua- 
tion and  appraisement  laws   of  said   State  of ,  to 

secure  the  payment  thereof.) 

The  said  party  of  the  second  part  further  cove- 
nants with  saici  party  of  the  first  part,  that  at  the 
expiration  of  the  time  mentioned  in  this  lease  to 
give  peaceable  possession  of  the  said  premises  to 
3aid  party  of  the  first  part,  in  as  good  a  condition 
as  they  now  are,  the  usual  wear,  inevitable  acci- 
dents and  loss  by  fire  excepted,  and  will  not  make 
or  suffer  any  waste  thereof,  nor  lease,  nor  under- 
let, nor  permit  any  other  person  or  persons  to 
occupy  the  same,  or  make  or  suffer  to  be  made 
any  alteration  therein  without  the  consent  of  said 
party  of  the  first  part,  in  writing,  having  been 
first  obtained,  and  not  use  or  occupy  said  premi- 
ses for  any  business  or  thing  deemed  extra  haz- 
ardous on  account  of  fire :  and  that  upon  the 
non-payment  of  the  rent  as  aforesaid  the  said 
party  may,  at  his  election,  either  distrain  for  said 
rent  due,  or  declare  this  lease  at  an  end,  and  re- 
cover the  same  as  if  held  by  forcible  detainer,  the 
said  party  of  the  second  part  hereby  waiving  any 
notice  of^such  election  or  any  demand  for  the 
possession  of  said  premises. 

The  covenants  herein  shall  extend  to  and  be 
binding  upon  the  heirs,  executors,  and  adminis- 
trators of  the  parties  to  this  lease. 

In  witness  whereof,  the  said  parties  have  here- 
unto set  their  hands,  the  day  and  year  first  above 
written.  A.  B. 

yVVitnesses.'\  C.  D. 

For  form  of  Acknowledgment,  see  that  title. 

Lipase — General  Form. 

This  (agreement,  conveyance,  indenture,  or)  lease, 

made  this day  of ,  by  A.  B.,  of ,  of  the 

first  part,  to  C.  D.,  of ,  of  the  second  part, 

witnesseth : 

That  the  said  party  of  the  first  part,  for  and  in 
consideration  of  the  rents,  covenants  and  agree- 
ments hereinafter  mentioned,  reserved  and  con- 
tained, on  the  part  and  behalf  of  the  said  party 
of  the  second  part,  his  executors,  adminis- 
trators and  assigns,  to  be  paid,  kept,  and  per- 
formed, has  and  by  these  presents  does  convey 
and  lease  unto  the  said  party  of  the  second  part, 
and  his  executors,  administrators  and  assigns,  all 
(describe  the  premises). 

Tp  have  and  to  hold  the  said  above-mentioned 
and  described  premises,  with  the  appurtenances, 
unto  the  said  party  of  the  second  part,  his  ex- 
ecutors, administrators  and  assigns,  from  the 

day  of ,  for,  during  and  until  the  full  end  and 

term  of thence  next  ensuing ;  and  fully  to  be 

csmplete  and  ended. 

Yielding  and  paying  therefore  unto  the  said 
party  of  the  first  part,  his  heirs  or  assigns,  yearly, 
and    every  year    during    the    said    term  hereby 

granted,  the  yearly  rent  or  sum  of ,  in  equal 

quarter-yearly  payments,  to  wit :  (naming ilie  dates 
of  payments),  in  each  and  every  of  the  said  years ; 

Provided  always,  nevertheless,  that  if  the  yearly 
rent  above  reserved,  or  any  part  thereof,  shall  be 
behind  or  unpaid  on  any  day  of  payment  whereon 
the  same  ought  to  be  paid  as  aforesaid  ;  or  if  de- 
fault shall  be  made  in  any  of  the  covenants  herein 
contained,  on  the  part  and  behalf  of  the  said  party 
of  the  second  part,  his  executors,  administrators, 
and  assigns,  to  be  paid,  kept  and  performed,  then 
and  from  thenceforth  it  shall  and  may  be  lawful 
for  the  said  party  of  the  first  part,  his  heirs  or  as- 

21 


signs,  to  re-enter  into  and  upon  the  said  demised 
premises,  and  every  part  thereof,  and  remove  all 
persons  therefrom,  and  the  same  to  have  again, 
repossess  and  enjoy,  as  in  his  or  their  first  and 
former  estate,  anything  hereinbefore  contained  to 
the  contrary  thereof  in  anywise  notwithstanding. 

And  the  said  party  of  the  second part,  for 

himself  and  his  heirs,  executors  and  administra- 
tors, does  covenant  and  agree,  to  and  with  the 
said  party  of  the  first  part,  his  heirs  and  assigns, 
by  these  presents,  that  the  said  party  of  the  sec- 
ond    part,   his  executors,  administrators,  or 

assigns,  shall  and  will  yearly,  and  every  year  dur- 
ing the  said  term  hereby  granted,  well  and  truly 
pay,  or  cause  to  be  paid,  unto  the  said  party  of 
the  first  part,  his  heirs  or  assigns,  the  said  yearly* 
rent  above  reserved,  on  the  days  and  in  manner 
limited  and  prescribed  as  aforesaid,  for  the  pay- 
ment thereof,  without  any  deduction,  fraud,  or 
delay,  according  to  the  true  intent  and  meaning 
of  these  presents. 

And  that  the  said  party  of  the  second  part,  his 
executors,  administrators,  or  assigns,  shall  and 
will,  at  their  own  costs  and  charges,  bear,  pay, 
and  discharge  all  such  taxes,  duties,  and  assess- 
ments whatsoever,  as  shall  or  may,  during  the 
said  term  hereby  granted,  be  charged,  assessed, 
or  imposed  upon  the  said  demised  premises. 

And  that  on  the  last  day  of  the  said  term,  or 
other  sooner  determination  of  the  estate  hereby 
granted,  the  said  party  of  the  second  part,  his 
executors,  administrators,  or  assigns,  shall  and 
will  peaceably  and  quietly  leave,  surrender  and 
yield  up  unto  the  said  party  of  the  first  part,  his 
heirs  or  assigns,  all  and  singular  the  said  demised 
premises. 

And  the  said  party  of  the  first  part,  for  himKelf 
and  his  heirs,  executors,  and  administrators,  does 
covenant  and  agree  to  and  with  the  said  party 
of  the  second  part,  his  executors,  adminis- 
trators, and  assigns,  by  these  presents,  that  the 

said  party  of  the  second part,  his  executors, 

administrators,  or  assigns,  paying  the  said  yearly 
rent  above  reserved,  and  performing  the  cove- 
nants and  agreements  aforesaid  on  his  and  their 
part,  the  said  party  of  the  second  part,  his  exec- 
utors, administrators,  and  assigns,  shall  and  may 
at  all  times  during  the  said  term  hereby  granted, 
peaceably  and  quietly  have,  hold,  and  enjoy  the 
said  demised  premises,  without  any  obstruction, 
suit,  trouble  or  hindrance  of  or  from  the  said 
party  of  the  first  part,  his  heirs  or  assigns,  or  any 
other  person  or  persons  whomsoever. 

In  witness  whereof,  the  said  parties  have  here- 
unto set  their  hands  (and  seals).        A.  B.     \Seal.~\ 
Executed  in  presence )  C.  D.    [&a/.] 

of  / 

tease— General  Forna. 
Water-Rate  or  Tax,  Fire  Clause,  etc. 

This  (agreement,  conveyance,  indenture,  or)  lease, 

made  by  A.  B.,  of ,  party  of  the  first  part,  to 

C.  D.,  of ,  party  of  the  second  part,  witnes- 
seth : 

That  the  said  party  of  the  first  part  has  agreed 
to,  and  hereby  does  let,  and  the  said  party  of  the 
second  part  has  agreed  to,  and  hereby  does  take, 
the   following  described    premises    (describe   the 

premises)  for  the  term  of ,  to  commence  the 

day  of ,  and  to  end  the day  of ,  to 

be  occupied  {here  describe  the  intended  occupation) 
and  not  otherwise. 

And  the  said  party  of  the  second  part  hereby 
covenants  and  agrees  to  pay  unto  the  said  party 

of  the  first  part  the  annual  rent  or  sum  of 

dollars,  payable  (here  set  forth  the  times  and  terms 
of  the  payments). 

That  said  party  of  the  second  part  shall  pay  the 

water  rate  or  tax  ;  keep  the  plumbing  work, 

water-pipes,  glass,  and  the  premises  generally 
in  repair,  and  will  surrender  them  at  the  expira- 
tion of  the  said  term,  in  as  good  state  and  con- 
dition as  reasonable  use  and  wear  thereof  will 
permit. 

That  said  party  of  the  second  part  shall  not  as- 
sign, let,  or  underlet  the  whole  or  any  part  of  the 
said  premises,  nor  make  any  alteration  therein 
without  the  written  consent  of  the  said  party  of 
the  first  part,  under  the  penalty  of  forfeiture  and 


3*6 


CONVEYANCES. 


damages ;  that  he  will  not  occupy  the  said  prem- 
ises, nor  permit  the  same  to  be  occupied  for  any 
business  deemed  extra-hazardous  without  the 
hke  consent,  under  the  lilce  penalty. 

That  said  party  of  the  second  part  shall  permit 
the  said  party  of  the  first  part,  or  his  agent,  to 
show  the  premises  to  persons  wishing  to  hire  or 
purchase,  and  three  months  next  preceding  the 
expiration  of  the  term  will  permit  the  usual 
notices  of  "  to  let,"  or  "  for  sale,"  to  be  placed 
upon  the  windows,  walls,  or  doors  of  said  prem- 
ises, and  remain  thereon  without  hindrance  or 
molestation. 

That  if  default  be  made  in  any  of  the  covenants 
herein  contained  on  the  part  of  the  party  of  the 
second  part,  or  if  the  said  premises  or  any  part 
thereof  shall  become  vacant  during  the  said 
term,  the  said  party  of  the  first  part  may  re-enter 
the  same,  either  by  force  or  otherwise,  without 
being  liable  to  any  prosecution  therefor,  and  re- 
let the  said  premises  or  any  part  thereof  in  one 
or  more  parcels,  as  the  agent  of  the  said  party  of 
the  second  part,  and  receive  the  rent  thereof,  ap- 
plying the  same,  first  to  the  payment  of  such 
expense  as  he  may  be  put  to  in  re-entering,  and 
then  to  the  payment  of  the  rent  due  by  these 
presents  ;  and  the  balance  (if  any)  to  be  paid  over 
to  the  said  party  of  the  second  part;  and,  in  case 
of  deficiency,  said  party  of  the  second  part  will 
psiy  the  same. 

That  said  party  of  the  second  part  hereby  fur- 
ther covenants  that  if  any  default  be  made  in  the 
payment  of  the  said  rent  or  any  part  thereof,  at 
the  times  above  specified,  or  if  default  be  made 
in  the  performance  of  any  of  the  covenants  or 
agreements  herein  contained,  the  said  hiring, 
and  the  relation  of  landlord  and  tenant,  at  the 
option  of  the  said  party  of  the  first  part,  shall 
wholly  cease  and  determine  ;  and  the  said  party 
of  the  first  part  shall  and  may  re-enter  the  said 
premises,  and  remove  all  persons  therefrom  ;  and 
the  said  party  of  the  second  part  hereby  expressly 
waive  the  service  of  any  notice  in  writing  of  in- 
tention  to   re-enter,  as   provided  for  in  the 

section  of  an  act  entitled  "An  act,"  etc.  (reciting 
the  title  of  the  act),  Approved  ior  Passed  ),  etc. 

And  it  is  further  agreed  between  the  parties  to 
these  presents,  that,  in  case  the  building  hereby 
leased  shall  be  partially  damaged  by  fire,  the 
same  shall  be  repaired  as  speedily  as  possible  by 
the  party  of  the  first  part ;  that,  in  case  the  dam- 
age shall  be  so  extensive  as  to  render  the  building 
untenantable,  the  rent  shall  cease  until  the  same 
be  repaired  ;  provided  the  damage  be  not  caused 
by  the  carelessness  or  negligence  of  the  party  of 
the  second  part,  or  his  agents  or  servants. 

If  the  building  be  so  damaged  that  the  owner 
shall  decide  to  rebuild,  the  term  shall  cease,  the 
premises  be  surrendered,  and  the  accrued  rent  be 
paid  up  to  the  time  of  the  fire. 

In  consideration  of  the  letting  of  the  premises 
above-mentioned  to  the  above  named  C.  D.,and 
of  the  sum  of  one  dollar  to  him  paid  by  the  said 
party  of  the  first  part,  the  said  party  of  the  sec- 
ond part  does  hereby  covenant  and  agree  to  and 
with  the  party  of  the  first  part  above-named, 
and  his  legal  representatives,  that  if  default  shall 
at  any  time  be  made  by  the  said  party  of  the  sec- 
ond part  in  the  payment  of  the  rent  and  perform- 
ance of  the  covenants  above  contained  on  his 
part  to  be  paid  and  performed,  that  he  will  well 
and  truly  pay  the  said  rent  or  any  arrears  there- 
of, that  may  remain  due  unto  the  said  party  of 
the  first  part  and  also  all  damages  that  may  arise 
in  consequence  of  the  non-performance  of  said 
covenants,  or  either  of  them,  without  requiring 
notice  of  any  such  default  from  the  said  party 
of  the  first  part. 

Witness  our  hands  (and  seals)  this  day  of 

.  A.  B.     [SealA 

Executed  in  presence  of  "I  C.  D.    \Seal.'\ 

{Signature  o/ witnesses.)  ] 

l.ease— <)ieiieral  Form. 

This  (agreement,   conveyance,  indenture,  or)  lease, 

made  and  entered  into  on  the day  of ,  by 

and  between  A.  B.,  of ,  party  of  the  first  part, 

and  C.  D.,  of ,  party  of  the  second  part,  wit- 

De«seth: 


That  the  said  party  of  the  first  part,  in  consid- 
eration of  the  rents  reserved,  and  the  covenants 
hereinafter  contained,  does  hereby  lease  unto  the 
said  party  of  the  second  part  (here  describe  the 
premises). 

To  have  and  to  hold  the  same,  with  all  the 
rights,  immunities,  privileges  and  appurtenances 
thereto  belonging,  unto  the  said  party  of  the  sec- 
ond part,  and  his  executors,  administrators  and 
assigns,  for  and  during  the  full  end  and  term  of 

,  commencing  on  the  day  of  ,  and 

ending  on  the day  of ,  under  and  subject 

to  the  stipulations  hereinafter  contained,  the  said 
party  of  the  second  part  yielding  and  paying  to 
the  said  party  of  the  first  part,  for  the  said  prem- 
ises,.the  annual  rent  of dollars,  payable  ia 

equal payments,  as  follows:  on  the • 

during  said  term  ;  which  rent  the  said  party  of 
the  second  part,  for  himself  and  his  executors, 
administrators  and  assigns,  covenants  well  and 
truly  to  pay,  at  the  times  aforesaid. 

And  the  said  party  of  the  second  part  covenants 
and  agrees : 

That  if  the  rent  aforesaid  should  at  any  time 
remain  due  and  unpaid,  the  same  shall  bear  inter- 
est at  the  rate  of per  cent,  per  annum,  from 

the  time  it  so  becomes  due  until  paid. 

That  it  shall  be  lawful  for  the  said  party  of  the 
first  part,  and  those  having  freehold  estate  in  the 
premises,  at  reasonable  terms,  to  enter  into  and 
upon  the  same,  to  examine  the  condition  thereof; 
That  the  said  party  of  the  second  part  and  his 
legal  representatives  shall  and  will,  at  the  expira- 
tion of  this  lease,  whether  by  limitation  or  for- 
feiture, peaceably  yield  up  to  the  said  party  of  the 
first  part,  or  his  'egal  representatives,  the  said 
premises,  in  the  condition  received,  only  except- 
ing natural  wear  and  decay,  and  the  effects  of 
fire ; 

That  the  said  party  of  the  second  part,  for  and 
during  all  the  time  that  he  or  any  one  else  in  his 
name  shall  hold  over  the  premises  after  the  expi- 
ration of  this  lease,  in  either  of  said  ways,  shall 
and  will  pay  to  said  party  of  the  first  part  double 
the  rent  hereinbefore  reserved  ; 
That  any  failure  to  pay  the  rent  hereinbefore 

reserved,  when  due  and  within days  after  a 

demand  of  the  same,  shall  produce  an  absolute 
forfeiture  of  this  lease,  if  so  determined  by  said 
party  of  the  first  part,  or  his  legal  representa- 
tives ; 

That  this  lease  shall  not  be  assigned,  nor  the 
said  premises,  or  any  part  thereof,  underlet,  with- 
out the  written  consent  of  the  said  party  of  the 
first  part,  or  his  legal  representatives,  under  pen- 
alty of  forfeiture ; 

That  all  repairs  of  a  temporary  character, 
deemed  necessary  by  said  party  of  the  second 
part,  shall  be  made  at  his  own  expense,  with  the 
consent  of  the  said  party  of  the  first  part,  or  his 
legal  representatives,  and  not  otherwise. 

Provided  always,  that  if  the  said  party  of  the 
second  part,  or  his  legal  representatives,  shall 
fail  to  pay  the  rent  hereinbefore  reserved,  for  the 
space  of days  after  the  same  shall  have  be- 
come due,  or  shall  fail  to  perform  any  of  the  cov- 
enants hereinbefore  entered  into  on  his  and  their 
part,  then  the  said  party  of  the  first  part  shall  be 
at  liberty  to  declare  this  lease  forfeited,  by  serving 
a  written  notice  to  that  effect  on  the  said  party 
of  the  second  part,  or  his  legal  representatives, 
and  to  re-enter  upon  and  take  possession  of  the 
demised  premises,  free  from  any  claim  of  the  les 
see  or  any  one  claiming  under  him  ;  and  all  es- 
tate herein  granted  shall,  upon  service  of  such 
notice,  forthwith  cease,  and  said  lessor,  his  heirs. 
legal  representatives  or  assigns,  shall  be  forth- 
with entitled  to  the  possession  of  the  demised 
premises  without  any  further  proceeding  at  law 
or  otherwise,  to  recover  possession  thereof. 

And  the  said  party  of  the  first  party  covenants 
and  agrees  with  the  said  party  of  the  second  part, 
and  his  legal  representatives,  that,  the  covenants 
herein  contained  being  faithfully  performea  by 
the  said  party  of  the  second  par^,  he  shall  peace- 
ably hold  and  enjoy  the  said  demised  premises, 
during  the  term  aforesaid,  without  hindrance  or 
interruption  by  the  said  lessor  or  any  other  person. 


CONVEYANCES. 


iit 


In  witness  'whereof,  the  said  parties  have  here- 
unto Bet  their  hands  (and  afTixcd  their  seals),  the 
day  and  year  first  above  written. 

A.  B.     [Sea/.] 
Executed  in  presence  of  C.  D.     {SeaL] 

Iiease— General  Form. 

This  (agreement,  conveyance,  indenture,  or)  lease, 

made  this day  of ,  by  and  between  A.  B., 

of  the of ,  in  the  county  and  State  of , 

party  of  the  first  part,  and  C.  D.,  of ,  party  of 

t^^  second  part,  witnesseth  : 

That  the  said  party  of  the  first  part,  for  and  in 
consideration  of  the  covenants  and  agreements 
hereinafter  mentioned,  to  be  itept  and  performed 
by  the  said  party  of  the  second  part,  his  execu- 
tors, administrators  and  assigns,  has  leased  to  the 
said  party  of  the  second  part  all  those  premises 

situate,  lying  and  being  in  the  township  of , 

county  of ,  and  State  of ,  known  and  de- 
scribed as  follows,  to  wit :  {describe  the  premises  in 
a  manner  to  identify  by  situation,  7>ieies,  and  hounds, 
etc.) 

To  have  and  to  hold  the  said  above-described 
premises,  v/ith  the  appurtenances,  unto  the  said 
party  of  the  second  part,  and  his  executors,  ad- 
ministrators and  assigns,  from  the  day  of 

,  for,  during,  and  until  the day  of ,  he 

paying  rent  therefor  as  hereafter  stated. 

And  the  said  party  of  the  second  part,  in  con- 
sideration of  the  leasing  of  the  premises  afore- 
said by  the  said  part  of  the  first  part  to  the  said 
party  of  the  second  part,  does  covenant  and  agree 
with  the  said  party  of  the  first  part,  and  his  heirs, 
executors,  administrators  and  assigns,  to  pay  the 
said  party  of  the  first  part,  as  rent  for  the  said 

demised  premises,  the  sum  of dollars,  annual 

rent,  payable  quarterly,  in  four  equal  quarterly 
payments,  the  first  payment  to  be  due  and  made 
in  three  months  from  the  date  of  this  lease,  pay- 
able at . 

And  the  said  party  of  the  second  part  further 
covenants  with  the  said  party  of  the  first  part, 
that  at  the  expiration  of  the  time  in  this  lease 
mentioned,  he  will  yield  up  the  said  leased 
premises  to  the  said  party  of  the  first  part  in  as 
good  condition  as  when  the  same  were  entered 
upon  by  the  said  party  of  the  second  part,  loss  by 
fire  or  inevitable  accident  and  ordinary  wear  ex- 
cepted. 

It  is  further  agreed  by  the  said  party  of  the  sec- 
ond part,  that  neither  he  nor  his  legal  representa- 
tives will  underlet  said  premises  or  any  part 
thereof,  or  assign  this  lease  without  the  written 
assent  of  said  party  of  the  first  part,  first  had 
and  obtained  thereto. 

It  is  expressly  understood  and  agreed  by  and 
between  the  parties  aforesaid  : 

That  if  the  rent  above  reserved,  or  any  part 
thereof,  shall  be  behind  or  unpaid,  on  tne  day  and 
at  the  place  of  payment,  whereon  the  same  ought 
to  be  paid,  as  aforesaid,  or  if  default  shall  be 
made  in  any  of  the  covenants  herein  contained, 
to  be  kept  by  the  said  party  of  the  second  part, 
his  executors,  administrators,  and  assigns,  it 
shall  and  may  be  lawful  for  the  said  party  of  the 
first  part,  his  heirs,  executors,  administrators, 
agent,  attorney,  or  assigns,  at  his  or  their  elec- 
tion, to  declare  said  term  ended,  and  the  said 
leased  premises,  or  any  part  thereof,  either  with 
or  without  process  of  law,  to  re-enter,  and  the 
said  party  of  the  second  part,  or  any  other  person 
or  persons  occupying,  in  or  upon  the  same,  to 
expel,  remove,  and  put  out,  using  such  force  as 
may  be  necessary  in  so  doing,  and  the  said  prem- 
ises again  to  repossess  and  enjoy,  as  in  his  or 
their  first  and  former  estate  ; 

That  it  shall  be  the  duty  of  the  said  party  of  the 
second  part,  his  executors,  administrators,  or  as- 
signs, to  be  and  appear  at  the  said  place  above 
specified,  for  the  payment  of  said  rent,  and  then 
and  there  tender  and  pay  the  same  as  the  same 
shall  fall  due  from  time  to  time,  as  above,  to  the 
said  party  of  the  first  part,  or  his  agent  or  as- 
signs ;  or  in  his  or  their  absence,  if  the  said  party 
of  the  second  part  shall  offer  to  pay  the  same 
then  and  there,  such  offer  shall  prevent  said  for- 
feiture, 
Th"t  •*'  shall  not  be  necessary  in  any  event  for 


the  party  of  the  first  part  or  his  assign^*  to  go  on 
or  near  the  said  leased  premises  to  detriancT  said 
rent,  or  elsewhere  than  at  the  place  aforesaid. 

That  in  the  event  of  any  rent  being  due  and 
unpaid,  whether  before  or  after  such  forfeiture 
declared,  to  distrain  for  any  rent  that  may  be  due 
thereon,  upon  any  property  belonging  to  the  said 
party  of  the  second  part,  whether  the  same  be 
exempt  from  execution  or  distress  by  law  or  not, 
and  the  said  party  of  the  second  part,  in  that  case, 
hereby  waives  all  legal  rights  which  he  now  has 
or  may  have  to  hold  or  retain  any^  such  property, 
under  any  exemption  laws  now  in  force  in  thi» 
State,  or  in  any  other  way. 

That  it  is  intended  hereby  to  give  to  the  said 
party  of  the  first  part  and  his  heirs,  executors, 
administrators,  and  assigns,  a  valid  and  first  lien 
upon  any  and  all  the  goods,  chattels,  or  other 
property  belonging  to  the  said  party  of  the  second 
part,  as  security  for  the  payment  of  said  rent  in 
manner  aforesaid,  anything  hereinbefore  con- 
tained to  the  contrary  notwithstanding. 

That  if  at  any  time  said  term  shall  be  ended  at 
such  election  of  said  party  of  the  first  part,  or  his 
heirs,  executors,  administrators,  or  assigns,  as 
aforesaid,  or  in  any  other  wray,  the  said  party  of 
the  second  part,  for  himself  and  his  executors, 
administrators,  and  assigns,  does  hereby  covj- 
nant,  promise,  and  agree  to  surrender  and  deliv  jr 
up  said  above-described  premises  and  property, 
peaceably,  to  said  party  of  the  first  part,  or  fcis 
heirs,  executors,  administrators,  and  assigt\s, 
immediately  upon  the  determination  of  said  ter.m 
as  aforesaid  ;  and  if  he  shall  remain  in  the  pos- 
session of  the  same days  after  notice  of  such 

default,  or  after  the  termination  of  this  lease,  in 
any  of  the  ways  above  named,  he  shall  be  deem  td 
guilty  of  a  forcible  detainer  of  said  demia:d 
premises,  and  shall  be  subject  to  all  the  conditio)  la 
and  provisions  above  named,  and  to  eviction  af  d 
removal,  forcibly  or  otherwise,  with  or  wither  it 
process  of  law,  as  above  stated. 

And  it  is  further  covenanted  and  agreed  by  ai|d 
between  the  parties,  that  the  party  of  the  second 
part  shall  pay  and  discharge  all  costs  and  at- 
torney's fees  and  expenses  that  shall  arise  from 
enforcing  the  covenants  of  this  indenture  by  t^  e 
party  of  the  first  part. 

In  witness  whereof,  the  said  parties  have  here- 
unto set  their  hands  (and  seals),  the  day  and  ye;ir 
first  above  written.  A.  B.     [&«/.] 

Executed  in  presence  of  C.  D.     \Seal.\ 

Iiease — Oeneral  Form. 

This  (agreement,  conveyance,  indenture,  or)  lease, 

made  this day  of ,  between  A.  B.,  of  the 

city  of ,  in county,  and  State  of ,  party 

of  the  first  part,  and   CD., of ,  party  of  the 

second  part,  witnesseth  : 

That  the  said  party  of  the  first  part,  for  and  in 
consideration  of  the  covenants  and  agreements 
hereinafter  mentioned,  to  be  kept  and  performed 
by  the  oaid  party  of  the  second  part,  or  his  ex. 
ecutors,  administrators  and  assigns,  has  con- 
veyed and  leased  to  the  said  party  of  the  second 
part  all  those  premises  situate,  lying  and  being  in 

the  city  of  ,  in  county  of ,  and  State  of 

,  and  knovirn  and  described  as  follows,  to  wit 

(here  describe  the  premises). 

To  have  and  to  hold  the  said  above-described 
premises,  with  the  appurtenances,  unto  the  said 
party  of  the  second  part,  and  his  executors,  ad- 
ministrators and   assigns,  from  the  day  of 

,  for,  during,  and  until  the  day  of , 

the  said  party  of  the  second  part  paying  rent 
therefor,  as  hereinafter  stated. 

And  the  said  party  of  the  second  part,  in  con- 
sideration of  the  leasing  the  premises  aforesaid, 
by  the  said  party  of  the  first  part  to  the  said 
party  of  the  second  part,  does  covenant  and  agree 
with  the  said  party  of  the  first  part,  and  his  heirs, 
executors,  administrators  and  assigns : 

That  he  will  pay  the  said  party  of  the  first  part, 
at  the  house  (office,  or  store)  of  the  said  party  of  the 

first  part,  number  ,  in  street, ,  or  at 

the  house  or  office  of  his  assigns,  as  rent  for  the 
said  leased  premises,  the  sum  o{(state  the  annual 
rent),  payable  as  follows  :  {here  stale  the  amounts, 
times  and  terms  qf  the  ^ayjnenls). 


iii 


CONVEYANCES. 


That  said  party  of  the  sacond  part  shall  and 
will  pay,  or  cause  to  be  paid,  promptly,  as  soon 
as  the  same  becomes  due,  all  assessments  for 
water-rents  that  may  be  levied  upon  said  de- 
mised premises,  during  the  continuance  of  this 
lease,  by  the  board  of  water  commissioners  of  the 

city  of ,  and  save  the  said  premises  and  the 

said  party  of  the  first  part  harmless  therefrom. 

That  he  will  keep  said  premises  in  a  clean  and 
healthy  condition,  in  accordance  with  the  ordi- 
nances of  the  city  and  the  direction  of  the  sewer- 
age commissioners. 

That  in  case  of  delay  in  payment  of  any  water- 
rent  levied  upon  said  premises  during  said  term, 
to  pay  said  party  of  the  first  part,  as  liquidated 
damages  for  such  breach  of  covenant,  double  the 
sum  of  such  rent  so  assessed  upon  said  premises 
as  aforesaid. 

That  at  the  expiration  of  the  time  in  this  lease 
mentioned  he  will  yield  up  the  said  demised 
premises  to  the  said  party  of  the  first  part  in  as 
good  condition  as  when  the  same  were  entered 
upon  by  the  said  party  of  the  second  part,  loss  by 
fire  or  inevitable  accident  and  ordinary  wear 
excepted. 

It  is  further  agreed  by  the  said  party  of  the  sec- 
ond part,  that  neither  he  nor  his  legal  represent- 
atives will  underlet  said  premises,  or  any  part 
thereof,  or  assign  this  lease,  without  the  written 
assent  of  said  party  of  the  first  part  first  had 
and  obtained  thereto. 

It  is  expressly  understood  and  agreed,  by  and 
between  the  parties  aforesaid  : 

That  if  the  rent  above  reserved,  or  any  part 
thereof,  shall  be  behind  or  unpaid  on  the  day 
and  at  the  place  of  payment  whereon  the  same 
ought  to  be  paid,  as  aforesaid,  or  if  default  shall 
be  made  in  any  of  the  covenants  herein  con- 
tained, to  be  kept  by  the  said  party  of  the  second 
part,  or  his  executors,  administrators  and  as- 
signSjMt  shall  and  maybe  lawful  for  the  said  party 
of  the  first  part,  or  his  heirs,  executors,  adminis- 
trators, agent,  attorney,  or  assigns,  at  his  or  their 
election,  to  declare  said  term  ended,  and  the  said 
demised  premises,  or  any  part  thereof,  either  with 
or  without  process  of  law,  to  re-enter,  and  the 
said  party  of  the  second  part,  or  any  other  per- 
son or  persons  occupying,  in  or  upon  the  same, 
to  expel,  remove,  and  put  out,  using  such  force 
as  may  be  necessary  in  so  doing,  and  the  said 
premises  again  to  repossess  and  enjoy  as  in  his 
or  their  first  and  former  estate  ;  and  it  shall  be 
the  duty  of  the  said  party  of  the  second  part,  his 
executors,  administrators  or  assigns,  to  be  and 
appear  at  the  said  place  above  specified  for  the 
payment  of  said  rent,  and  then  and  there  tender 
and  pay  the  same  as  the  same  shall  fall  due  from 
time  to  time,  as  above,  to  the  said  party  of  the 
first  part,  or  his  agent  or  assigns ;  or  in  his  or 
their  absence,  if  the  party  of  the  second  part  or 
his  legal  representatives  shall  offer  to  pay  the 
same  then  and  there,  such  oifer  shall  prevent  such 
forfeiture. 

That  it  shall  not  be  necessary  in  any  event  for 
the  party  of  the  first  part,  or  his  assigns,  to  go  on 
or  near  the  said  demised  premises  to  demand  said 
rent,  or  elsewh«re  than  at  the  place  aforesaid. 

That  in  the  event  of  any  rent  being  due  and 
unpaid,  whether  before  or  after  such  forfeiture 
declared,  to  distrain  for  any  rent  that  may  be  due 
thereon,  upon  any  property  belonging  to  the  said 
party  of  the  second  part,  whether  the  same  be 
exempt  from  execution  or  distress  by  law  or  not, 
and  the  said  party  of  the  second  part,  in  that 
case,  hereby  waives  all  legal  rights  which  he  may 
have  to  hold  or  retain  any  such  property  under 
any  exemption  laws  now  in  force  in  this  State,  or 
in  any  other  way. 

That  it  is  intended  hereby  to  give  to  the  said 
party  of  the  first'  part,  and  his  heirs,  executors, 
administrators  and  assigns,  a  valid  and  first  lien 
upon  any  and  all  the  goods,  chattels,  or  other 
property  belonging  to  the  said  party  of  the  sec- 
ond part,  as  security  for  the  payment  of  said  rent, 
in  manner  aforesaid,  anything  hereinbefore  con- 
tained to  the  contrary  notwithstanding. 

That  if  at  any  time  said  term  shall  be  ended  at 
such  election  of  said  party  of  the  first  part,  or  his 


heirs,  executors,  administrators,  or  assigns,  flS 
aforesaid,  or  in  any  other  way,  the  said  party  of 
the  second  part,  for  himself,  and  his  executors, 
administrators,  and  assigns,  does  hereby  cove- 
nant, promise  and  agree  to  surrender  and  deliver 
up  said  above-described  premises  and  property, 
peaceably  to  the  said  party  of  the  first  part,  or 
his  heirs,  executors,  administrators,  and  assigns, 
immediately  upon  the  determination  of  said  term 
as  aforesaid ;  and  if  he  shall  remain  in  the  pos- 
session of  the  same days  after  notice  of  such 

default,  or  after  the  termination  of  this  lease,  in 
any  of  the  ways  above  named,  he  shall  be  deemed 
guilty  of  a  forcible  detainer  of  said  demised 
premises  under  the  statute,  and  shall  be  subject^ 
to  all  the  conditions  and  provisions  above  named,' 
and  to  eviction  and  removal,  forcibly  or  other- 
wise, with  or  without  process  of  law,  as  above 
stated  ;  and  in  order  to  enforce  a  forfeiture  of 
this  lease  for  non-payment  of  rent  when  due,  no 
demand  for  rent  when  due  shall  be  required,  any 
demand  being  hereby  expressly  waived. 

And  it  is  further  covenanted  and  agreed  by  and 
between  the  parties,  that  the  party  of  the  second 
part  shall  pay  and  discharge  all  costs  and  at- 
torney's fees  and  expenses  that  shall  arise  from 
enforcing  the  covenants  of  this  indenture  by  the 
party  of  the  first  part. 

In  witness  whereof,  the  said  parties  have  here- 
unto set  their  hands  and  seals  the  day  and  year 
first  above  written.  A.  B.     [Sra/.] 

Executed  in  presence  of  C.  D.    [iVa/.j 

Lease — By  Attorney. 

This  ^agreement,  conveyance,  indenture,  or)  lease, 

made  this day  of ,  between  A.  B.,  of , 

etc.,  by  A.  A.,  his  attorney,  of  the  one  part,  and 
C.  D.,  of ,  of  the  other  part,  witnesseth: 

Whereas  the  said  A.  B.,bya  certain  writing, 
or  letter  of  attorney,  under  his  hand  and  seal, 

duly  executed,  dated  the day  of ,  amongst 

other  things  therein  contained,  did  authorize  the 
said  A.  A.,  in  the  name  of  him,  the  said  A.  B., 
and  on  his  behalf,  to  execute  leases  of  such  part 
of  his  lands,  tenements,  and  hereditaments,  in 

,  as  by  the  said  A.  A.  should  be  thought  fit  to 

be  leased : 

Now  this  indenture  witnesseth: 

That  for  and  in  consideration  of  the  sum  of 

,  to  the  said  A.  B.  paid  by  the  said  C.  D.,  the 

receipt  of  which  is  hereby  acknowledged,  he,  the 
said  A.  B.,  by  his  said  attorney,  does  lease  unto 
the  said  C.  D.  the  following  described  premises 
(desc7'i7itng  ilieni). 

To  have  and  to  hold,  etc. 

Yielding  and  paying,  etc. 

And  the  said  C.  D.  covenants  with  the  said  A. 
B.,  his  heirs,  etc.,  to  pay  the  rent,  etc. 

And   the  said  A.  B.,  by  his  said  attorney,  for 
himself,  his  heirs,  executors,  administrators,  and 
assigns,  covenants  with  said  C.  D.,  etc. 
See  Contracts,  Deeds,  ante. 

Lease — Build  iiij^-Ijease. 

With  various  SJ>eciai  Clauses. 

This  (agreement,  conveyance,  indenture,  or)  lease, 

made  this day  of ,  between  A.  B.,  of , 

of  the  one  part,  and  C.  D.,  of ,  of  the  other 

part,  witnesseth  : 

That  the  said  A.  B.,  for  and  in  consideration 
of  the  covenants  and  agreements,  hereinafter 
reserved  and  contained,  on  the  part  of  the  said 
C.  D.,  his  executors,  etc.,  to  be  done  and  per- 
formed, does  lease  unto  the  said  C.  D.,  his  exec- 
utors, etc.,  all   that  piece  or  parcel  of  ground,' 

situate  in ,  containing  in  breadth  on  the  north 

side  thereof ,  and  in  depth  on  the  east  side 

thereof ,  be  the  same  more  or  less,  together 

with  the  tenements  and  buildings  thereon, 
which  the  said  C.  D.  shall  have  full  liberty  to 
pull  down,  and  to  convert  to  his  own  use,  which 
said  piece  or  parcel  of  ground  abuts  north  on, 
aforesaid  ;  east,  etc.,  and  is  more  fully  delineated 
and  described  in  the  plan  or  ground-plot  thereof, 
in  the  margin  of  these  presents,  together  with  all 
buildings  to  be  erected  thereon,  and  all  ways, 
easements  and  appurtenances  whatsoever,  be- 
longing to  the  said  premises,  or  any  part  or  par- 
cel thereof: 


CONVEYANCES. 


Yo  have  and  to  hold  the  said  premises  unto  the 

said  C  D.,  his  executors,  etc.,  from  the  day 

of ,  last  past  before  the  date  hereof,  for  and 

during  the  full  end  and  term  of years  from 

thence  next  ensuing. 

Yielding  and  paying  therefor  yearly,  for  and 
during  the  said   term,   unto  the  said  A.  B.,  his 

heirs  and  assigns,  the  yearly  rent  or  sum  of , 

by  hall-yearly  payments,  on  the  day  of , 

and  day  of in  each  year,  by  equal  por- 
tions, the  first  payment  thereof  to  be  made  on 
;  the  said  several  rents  to  be  paid  and  pay- 
able, from  time  to  time  during  the  said  term, 
free  and  clear  of  all  charges,  assessments,  and 
payments  whatsoever,  assessed  or  imposed  upon 
the  said  premises,  or  any  part  thereof,  in  anywise 
whatsoever,  during  the  continuance  of  said  term. 

To  Build  and  Repair,  etc. 

That  said  C.  D.,  his  executors,  administrators, 
or  assigns,  shall  and  v^rill,  before  the  expiration 
of  the  first  year  of  the  said  term,  at  his  and  their 
own  proper  costs  and  charges,  erect,  build,  and 
complete,  in  a  workmanlike  manner  one  or  more 
good  and  substantial  brick  buildings,  upon  some 
part  of  the  ground  hereby  leased,  and  shall  and 

will  lay  out  and  expend  therein  the  sum  of or 

upwards; 

That  he,  the  said  C.  D.,  his  executors,  etc., 
shall  and  will,  from  time  to  time,  and  at  all  times 
from  and  after  the  said  buildings  on  the  said 
ground  shall  be  respectively  completed  and  fin- 
ished, during  the  remainder  of  the  said  term,  when 
and  as  often  as  need  shall  require,  at  his  and 
their  own  proper  costs  and  charges,  well  and 
sufficiently  repair,  maintain  and  keep  the  said 
buildings,  and  all  the  pavements,  sinks,  and 
drains  thereunto  belonging. 

To  Repair. 

And  that  the  said  C.  D.,  his  executors,  etc., 
shall  and  will,  within  three  months  next  after 
every  such  notice  or  warning  shall  be  given  or 
left,  at  his  and  their  own  proper  costs  and  charges, 
well  and  sufficiently  repair  and  amend  all  and 
every  the  defects,  whereof  such  notice  or  warn- 
ing shall  be  so  given  or  left,  as  aforesaid. 
To  Insure. 

That  said  C.  D.,his  executors,  etc.,  shall  and 
v/ill,  at  his  and  their  own  proper  costs  and 
charges,  from  time  to  time,  sufficiently  insure  all 
and  every  the  buildings,  which  shall  be  erected 
upon  the  said  piece  of  ground  hereby  demised, 
or  any  part  thereof,  from  casualties  by  fires  dur- 
ing the  then  remainder  of  the  said  term  in  some 
one  of  the  public  offices  kept  for  that  purpose  in 

,  and  in  case  the  said  buildings   or  any  part 

thereof  shall  at  any  time  or  times  during  the  said 
term  be  destroyed  or  damaged  by  fire,  shall  and 
will,  immediately  afterwards,  rebuild,  or  well 
and  sufficiently  repair  the  same. 
That  Lessor  may  Enter  to  Make  an  Inventory, 

ETC. 

Said  A.  B.,  hisheirsandassigns,  with  workmen 
or  without,  to  enter  upon  the  said  premises,  and 
every  part  thereof,  at  seasonable  and  convenient 
times  in  the  daytime,  as  well  at  any  time  or  times 

during  the  last years  of  the  said  term,  to  make 

an  inventory  or  schedule  of  the  several  fixtures 
and  things  then  standing  and  being  in  and  upon 
the  said  premises,  which  are  to  be  left  at  the  end 
of  the  said  term  to  and  for  the  use  of  the  said  A. 
B.,  his  heirs  and  assigns,  pursuant  to  the  cove- 
nant hereinbefore  contained,  as  also  twice  or 
oftener  in  every  year  during  the  said  term  to  view 
and  examine  the  defects  and  wantof  repairs  of  the 
said  premises,  and  to  repair  and  amend  the  same. 
Not  to  Carry  on  any  Offensive  Trades. 

That  said  C.  D.,  his  executors,  etc.,  shall  not 
nor  will  during  the  said  term  permit  or  suffer 
any  person  or  persons  to  exercise,  or  carry  on  in 
and  by  the  said  premises,  or  any  part  thereof, 
any  trade  or  business  which  may  be  nauseous  or 
offensive,  or  grow  to  the  annoyance,  prejudice  or 
disturbance  of  any  of  the  other  tenements  of  the 
said  A.  B. ,  near  adjoining  thereto. 

To  Pay  the  Rent,  Taxes,  etc. 

Th^^  said  C.  P.,  his  heirs,  executors,  adminis- 


trators, and  assigns,  shall  and  will,  during  the 
said  term,  wrell  and  truly  pay,  or  cause  to  be  paid 
unto  the  said  A.  B.,  his  heirs  and  assigns,  the 

said  yearly  rent  or  sum  of  ,  on  the  several 

days  and  times,  and  in  manner  hereinafter  ap- 
pointed for  payment  thereof,  without  making 
any  abatement  thereof,  for  or  in  respect  of  any 
taxes,  duties,  or  impositions  whatsoever,  assessed 
or  imposed  upon  the  said  premises,  or  any  part 
thereof,  during  the  said  term  ;  all  which  taxes, 
duties,  or  impositions,  he,  the  said  C.  D.,  his  ex- 
ecutors, administrators,  or  assigns,  shall  and  'will 
pay  and  discharge,  and  therefrom  save  harmless 
and  keep  indemnified  the  said  A.  B.,  his  heirs 
and  assigns. 

Re-Entry  on  Non-Payment  of  Rent,  etc. 

That  if  the  said  yearly  rent  or  sum  of here- 
by reserved,  or  any  part  thereof,  shall  be  behind 

and  unpaid,  for  the  space  of days  next  after 

either  of  the  said  days  of  payment  (being  lawfully 
(Itmaiided;,  or  if  the  said  C.  D.,  his  executors, etc., 
shall  not  well  and  truly  perform,  fulfil  and  keep 
all  and  every  the  covenants,  conditions  and  agree- 
ments, in  these  presents  expressed  and  con- 
tained, on  his  and  their  part  and  behalf  to  be 
performed  and  kept,  according  to  the  true  intent 
and  meaning  thereof,  then  it  shall  and  may  be 
lawful  to  and  for  the  said  A.  B.,  his  heirs  and  as- 
signs, to  re-enter  into  and  upon  the  said  leased 
premises,  or  any  part  thereof,  in  the  name  of  the 
whole,  and  the  same  to  repossess  and  enjoy,  as  in 
his  and  their  first  and  former  estate,  and  from 
thence  utterly  to  expel  the  said  C.  D.,  his  execu- 
tors, administrators  or  assigns,  and  all  other  ten- 
ants and  occupiers  of  the  said  premises. 

That  from  and  after  such  re-entry  made,  this 
present  lease,  and  every  clause,  article  and  thing 
herein  contained,  on  the  lessor's  part  and  behalf, 
from  thenceforth  to  be  done  and  performed,  shall 
cease,  determine,  and  be  utterly  void,  to  all  in- 
tents and  purposes  whatsoever,  anything  herein- 
before contained  to  the  contrary  notwithstanding. 

In  witness  whereof,  etc. 

To  Yield  Up  Quietly,  etc. 
That  said  C.  D.,his  executors,  etc.,  shall  and 
will,  at  the  expiration  or  other  sooner  determina- 
tion of  the  said  term,  peaceably  and  quietly  sur- 
render and  yield  up  unto  the  said  A.  B.,  his  heirs 
and  assigns,  together  with  all  its  fixtures  and  ap- 
purtenances, and  all  other  things  which  shall  be 
in  anywise  fastened,  and  standing  in  and  upon 
the  said  premises,  or  any  part  thereof,  within  the 
last years  of  the  said  term. 

L,ease— Certificate. 

Landiord's  Agreement. 

This  is  to  certify  that  I  have,  this  day  of 

,  let  and  rented  unto  C.  D.  my  house  and  lot, 

known  as  number ,  in  street,  in  the 

of ,  with  the  appurtenances,  and  the  sole  and 

uninterrupted  use  and  occupation  thereof,  for  one 

year,  to  commence  the  day  of next,  at 

the  yearly  rent  of dollars,  payable  (monthly  er 

quarterly)  (add,  if  agreed  to,  with  all  taxes  and  assess- 
ments thereon).  A.  B. 

I^ease — Cert  i  ficate. 

Tenant' s  Agreement. 

This  is  to  certify  that  I  have  hired  and  taken 
from  A.  B.  his  house  and  lot,  known  as  number 
,  in street,  in  the of ,with  the  ap- 
purtenances, for  the  term  of  one  year,  to  com- 
mence the  day  of next,  at  the  yearly  rent 

of dollars,  payable  quarterly.  (Insert  the  clause 

in  relation  to  taxes,  if  necessary.) 

And  I  do  hereby  promise  to  make  punctual  pay- 
ment of  the  rent  in  manner  aforesaid,  except  in 
case  the  premises  become  untenantable  from  fire 
or  any  other  cause,  when  the  rent  is  to  cease  ; 

And  I  do  further  promise  to  quit  and  surrender 
the  premises  at  the  expiration  of  the  term  in  as 
good  state  and  condition  as  reasonable  use  and 
wear  thereof  will  permit,  damages  by  the  ele- 
ments excepted. 

Given  under  my  hand  (and  seal),  this  day 

of . 

In  presence  of  ) 

G.  H.     ; 


324 


CONVEYANCES. 


Lcnso— Cerl  Ifloat*. 

Landlord' s  Agreevirnt. 

This  is  to  certify  that  I,  the  undersigned,  have, 

this day  of ,  let  and  rented  to  C.  D.  the 

fono>ving    premises,    situated     in    ,    in    

county,  and  State   of ,  to  wit:  (describing  the 

/;r/«««),  together  with  the  appurtenances,  and 
the  sole  and  uninterrupted  use  and  occupation 
thereof: 

For  a  term  oi{give  the  period  for  ivhich  rented), 

from  the day  of ,  at  the  rent  of 

dollars,  payable  {state  time,  place,  and  amount  of 
payments). 

And  said  tenant  has  agreed  to  make  punctual 
payment  of  the  rent  in  the  manner  aforesaid,  ex- 
cept in  case  the  premises  become  untenantable, 
from  fire  or  any  other  cause,  when  the  rent  is  to 
cease  ;  to  quit  and  surrender  the  premises  at  the 
expiration  of  said  term,  in  as  good  a  condition  as 
reasonable  use  and  wear  thereof  will  permit, 
damages  by  the  elements  excepted.  And  not  use 
or  occupy  said  premises  in  any  business  deemed 
extra  hazardous  on  account  of  fire  or  otherwise, 
nor  let  or  underlet  the  same,  except  with  the  con- 
sent of  said  landlord,  in  writing,  under  penalty 
of  forfeiture  and  damages.  And  has  mortgaged 
and  pledged  all  the  personal  property  of  what 
kind  soever  which  he  shall  at  any  time  have  on 
said  premises,  whether  exempt  by  law  from  dis- 
tress for  rent,  or  sale  under  execution,  or  not, 
waiving  the  benefits  of  and  from  the  exemption, 
valuation  and  appraisement  laws  of  said  State  to 
secure  the  payment  thereof. 

In  witness  whereof,  he  has  hereunto  set  his 
hand,  this day  of ,  A.  D. . 

[Witness.]  A.  B. 

I^ase— Certificate. 

Tenant's  IVaiver,  Surety,  etc. 

This  is  to  certify  that  I,  the  undersigned,  have 
hired  and  taken  from  A.  B.  the  following  prem- 
ises, situated  in ,  in county,  and  State  of 

,  to  wit :  {describing  the  premises). 

For  a  term  of  {give  the  period /or  tuhich  rented), 

from  the  day  of ,  A.  D. ,  at  the  

rent  of dollars,  payable  {state  time,  place,  and 

amount  of  payjiients  I. 

And  I  do  hereby  agree  to  make  punctual  pay- 
ment of  the  rent  in  the  manner  aforesaid,  except 
in  case  the  premises  become  untenantable,  from 
fire  or  any  other  cause,  when  the  rent  is  to  cease  ; 
to  quit  and  surrender  the  premises  at  the  expira- 
tion of  said  term,  in  as  good  a  condition  as  rea- 
sonable use  and  wear  thereof  will  permit,  dam- 
ages by  the  elements  excepted.  And  not  use  or 
occupy  said  premises  in  any  business  deemed 
extra  hazardous  on  account  of  fire  or  otherwise, 
nor  let  or  underlet  the  same,  except  with  the  con- 
sent of  said  landlord,  in  writing,  under  penalty 
of  forfeiture  and  damages.  And  do  mortgage 
and  pledge  all  the  personal  property  of  what  kind 
soever  \vhich  he  shall  at  any  time  have  on  said 
premises,  whether  exempt  by  law  from  distress 
for  rent,  or  sale  under  execution,  or  not,  waiving 
the  benefits  of  and  from  the  exemption,  valua- 
tion, and  appraisement  laws  of  said  State  to 
secure  the  payment  thereof. 

In  witness  whereof,  he  has  hereunto  set  his 
hand,  this day  of ,  A.  D. . 

[  Witness.]  C.  D. 

Lease— roT  e  n  a  n  I  s. 
See  various  clauses,  above. 

Ijeaste— Fa  r  in , 

Year  to  Year,  Mode  o/  Husbandry,  etc. 

Memorandum. 

This  i.-^reement,  conveyance,   indenture,  or)  lease, 

made  this day  of ,  between  A.  B.,  of , 

of  the  one  part,  and  C.  D.,  of ,  of  the  other 

part,  witnesseth  : 

That  said  A.  B.  lets,  and  the  said  C.  D.  agrees 
to  take  and  hold  of  him  as  tenant,  all  that,  etc., 
situate,  etc. 

From  day  of next  ensuing,  upon  the 

terms  following,  that  is  to  say  : 

Said  tenant  shall  be  deemed  a  tenant  from  year 
to  year ; 

That  said  tenant  enter  and  take  possession  of 
said  premises  on next; 

Tb^t  either  party  may  determine  th?  tenancy 


by  a  notice  in  writing, months  before  the  ex- 
piration  of  any  year  from  the  day  of 

next  preceding ; 

That  said  tenant  shall  go  out  of  possession  at 
the  expiration  or  determination  of  his  term  ; 

That  the  rent  of  said  premises  shall  be dol- 
lars per  annum,  payable  in  half  yearly  payments 
on,  etc.,  and  on,  etc.,  without  deduction  on  ac- 
count of  any  tax  or  assessment  now  in  existence 
or  hereafter  to  be  imposed,  except,  etc.,  which  is 
to  be  paid  by  the  said  C.  D.  ; 

That  the  said  tenant  agrees  to  cause  the  follow- 
ing repairs  to  be  made,  viz. ,  etc.,  and  to  keep 

the  buildings  in  tenantable  repair; 

That  said  tenant  agrees  to  keep  the  ^ates  and 
fences  in  good  repair,  said  tenant  finding  rough 
timber  or  fencing  stuff; 

That  said  tenant  shall  not  lop  or  cut  any  oak, 
etc.,  on  the  estate,  except  such  as  have  usually 
been  lopped,  and  those  only  to  be  used  for  making 
and  repairing  the  fences  to  the  estate,  etc.  ; 

That  said  tenant  shall  not  mow  any  grass  oi 
meadow  land  above  once  in  any  one  year  of  his 
tenancy,  and  if  he  breaks  up  any  old  meadow  o" 
old  pasture  land,  unless  with  the  said  landlord's 
consent,  in  writing,  then  he  shall  pay  the  further 

yearly  rent  of dollars  for  every  acre  so  broken 

up,  and  after  that  rate  for  any  part  of  an  acre  ; 

That  said  tenant  may  crop  the  arable  land  in  each 
year  as  follows,  viz.  :  one  equal  third  part  therec  f 
with  wheat  or  barley,  one  other  equal  third  part 
with  beans,  peas,  clover,  or  oats,  etc.,  and  the 
remaining  third  part  to  lie  in  fallow ; 

That  said  land  shall  not  be  cropped  with  wheat 
twice,  or  barley  twice,  in  any  period  of  three 
years ; 

That  said  tenant  shall  use  and  consume  on  the 
farm  all  hay  and  straw  made  and  grown  thereon  ; 

That  said  tenant  shall  use  and  spread  dung  and 
manure  arising  or  made  on  the  farm,  in  such 
manner  as  that  every  acre  in  tillage  of  the  faim 
aforesaid  may  be  well  manured  once  in  every  three 
years  of  his  tenancy.  (Except  that  all  hay  and  whi:;ii 
siraw  on  the  faini  unconsumed  at  the  expiration  of  llic 
tenancy  may  be  purchased  by  the  landlord  or  succeed- 
ing tenant,  at  a  fair  valuation  by  two  iudiffereut  perso.\s, 
one  10  be  named  by  each  party.) 

That  said  tenant  shall  leave  on  the  premist.'S, 
without  compensation,  not  only  all  lent  and 
white  straw  arising  upon  or  from  the  premises, 
and  remaining  unconsumed  thereon  at  the  expi- 
ration of  his  tenancy,  but  also  all  dung  and 
manure  arising  or  made  on  the  farm,  and  thrn 
remaining  unconsumed  ; 

That  said  tenant  shall  keep  clean,  by  well  hoe- 
ing, twice  at  the  least,  and  weeding  all  the  land 
whilst  cropped  with  beans,  peas,  clover,  etc.  ; 

That  said  tenant  shall  endeavor  to  prevent  any 
injury  by  persons,  cattle,  or  sheep,  to  any  of  the 
hedges,  or  trees,  or  fences,  and  to  preserve  the 
same,  and  not  to  do  any  injury  to  any  timber  or 
other  trees,  in  taking  such  loppings,  as  before 
allowed  to  him. 

That  said  tenant  shall  not  crop  or  sow  any  of 
the  land  with  rape,  flax,  hemp,  etc. 

That  said  tenant  shall  not  underlet  or  assign 
the  premises  or  any  part  thereof,  except,  etc. 

That  said  tenant  on  quitting  the  farm  shall 
receive  such  pecuniary  compensation  for  im- 
provements in  fencing,  etc.,  as  two  arbitrators 
(one  of  which  arbitrators  shall  be  nominated  by  each 
party,  and  if  either  neglect  to  nominate  his  arbitrator, 
the  other  party  may  nominate  both  arbitrators)  shall 
award,  which  arbitrators  shall  abate  according 
to  the  benefit  derived  by  the  tenant  from  such 
repairs,  improvements,  and  additions,  and  take 
into  consideration  how  far,  at  the  expiration 
of  the  tenancy,  they  may  be  beneficial  to  the 
estate. 

In  witness  \vhereof,  etc. 

I.ea»te— OoodM  and  Fnrnilnre. 

This  (iigreement,  conveyance,  indenture,  or)  lease, 

of  two  parts,  made  this day  of ,  between 

A.  B.,  of ,  and  C.  D.,  of ,  witnesseth  : 

That  the  said  A.  B.,  in  consideration  of  the 
covenants  hereinafter  contained,  on  the  part  of 
the  said  C.  D.  to  be  performed,  has  leased  to  the 
said  Q.  D.,  and  his  ^issigns,  all  the  goods  and 


CONVEYANCES. 


325 


household  furniture  contained  in  the  schedule 
hereunto  annexed. 

To  hold  to  the  said  C.  D.,  and  his  assigns,  from 
the  date  hereof  for  the  full  term  of  three  years: 

Yielding  and  paying  therefor  the  annual  rent 
of  fifty  dollars,  in  four  equal  quarterly  payments, 

viz.,  on  the  day  of  ,  on  the  day  of 

,  on  the  day  of ,  and  on  the day 

of ,  in  every  year  during  the  said  term. 

And  the  said  A.  B.  covenants  that  the  said  C. 
D.,  etc.,  and  his  assigns,  shall  quietly  hold  and 
enjoy  the  leased  premises,  without  the  lawful 
hindrance  of  any  person  or  persons  whatso- 
ever. 

And  the  said  C.  D.  covenants  that  he  will  pay 
the  rent  aforesaid  in  manner  aforesaid,  during 
the  said  term  ;  that  he  will  not  assign  this  lease, 
or  underlet  the  said  goods,  or  any  part  thereof 
without  the  written  consent  of  the  said  A.  B.  ; 
that  he  will  replace  at  his  own  expense  any  of 
the  said  goods,  which  may  be  casually  lost  or 
injured  during  the  said  term,  and  at  the  expira- 
tion of  the  said  term,  or  other  sooner  determina- 
tion of  this  lease  will  restore  the  said  goods  and 
household  furniture  to  the  said  A.  B.,  or  his  as- 
signs, in  the  like  good  order  and  condition,  as 
they  now  are,  wear  and  tear  arising  from  a  rea- 
sonable use  of  the  same,  and  loss  from  the  cas- 
ualty of  lire,  alone  excepted. 

In  witness,  etc. 

For  Determining  Lease  of  Goods. 

Provided,  that  if  the  said  A.  B.,  or  his  assigns, 
shall  at  any  time  during  the  said  term  tender  to 
the  said  C.  D.,  or  his  assigns,  one  dollar,  with  an 
intent  to  determine  this  lease,  then  this  lease 
shall  wholly  cease  and  determine  from  the  time 
ot  such  tender,  in  like  manner  to  all  intents  and 

purposes  whatever,  as  if  the  said  term  of 

were  fully  complete  and  ended,  and  the  said  rent 
stall  be  so  apportioned  that  the  said  C.  D.,  or  his 
af  signs,  shall  pay,  and  the  said  A.  B.,  or  his  as- 
si,{ns,  shall  receive,  after  the  rate  of  fifty  dollars 
per  annum,  for  the  use  of  the  goods  and  house- 
hi  Id  furniture  aforesaid,  during  the  time  that 
th  ey  shall  be  used,  or  retained  by  the  said  C.  D. 
in  his  possession,  by  virtue  hereof. 

Purchase  of  Goods,  etc. 

And  it  is  expressly  covenanted  by  either  of  the 
Sii  id  parties  to  the  other  of  them,  and  their  as- 
si|  ins  respectively,  that  if,  at  any  time  during  the 
sa  id  term,  or  within  ten  days  after  expiration  or 
sooner  determination  thereof,  as  aforesaid,  the 
said  C.  D.,  or  his  assigns,  shall  be  minded  to  pur- 
chase the  leased  premises,  at  the  prices  set 
against  them  in  the  said  schedule,  amounting  in 
the  whole  to  the  sum  of  five  hundred  and  eighty 
dollars,  and  shall  pay  or  tender  the  said  sum  to 
the  said  A.  B.,  or  his  assigns,  together  with  all 
ai  rearages  of  rent  then  due  or  to  be  apportioned 
t\i  aforesaid,  with  intent  to  purchase  the  said 
SfMods,  then  the  said  A.  B.,  or  his  assigns,  in  con- 
B  ideration  of  the  said  sums  of  money  so  tendered 
or  paid  as  aforesaid,  shall  by  a  legal  and  sufficient 
bargain  and  sale,  or  other  deed  or  conveyance, 
sell,  and  convey  the  said  leased  premises  to  the 
said  C.  D.,  or  his  assigns,  to  his  or  their  sole  use 
free  from  the  lawful  claims  and  demands  of  all 
persons  whatsoever,  and  the  said  lease,  if  not 
otherwise  determined,  shall  from  thenceforth 
cease  and  determine,  in  the  same  manner  as  if 
the  said  term  of  three  years  had  wholly  expired 
and  elapsed. 
In  witness,  etc. 

I<ease— Groniid  V^cnse. 

This  (agreement,  conreyance,  indenture,  or)  lease, 

made  this day  of ,  by  and  between  A.  B., 

of ,  party  of  the  first  part,  and  C.  D.,  of , 

party  of  the  second  part,  witnesseth  : 

That  the  said  party  of  the  first  part,  for  and  in 
consideration  of  the  covenants  and  agreements 
hereinafter  mentioned,  to  be  kept  and  performed 
by  the  party  of  the  second  part,  has  demised 
and  leased  to  the  party  of  the  second  part  all 

those  premises  situate  in  the of ,  in 

county,  and  State  of ,  known  and  described 

as  follows,  to  wit ;  {/tere  give  description  0/  the 
premises) 


To  have  and  to  hold  the  above-described  prem- 
ises, with  the  appurtenances,  unto  the  party  of 

the  second  part,  from  the  day  of ,  for, 

during,  and  until  the day  of . 

And  the  party  of  the  second  part,  in  considera- 
tion of  the  leasing  of  the  premises  aforesaid,  does 
covenant  and  agree  with  the  party  of  the  first 
part :  That  he  will  pay  to  the  party  of  the  first 
part  as  rent  for  said  leased  premises,  at  the  office 

of ,  in ,  the  sum  of  (state  tke  annual  tent), 

in  four  equal  quarterly  payments,  each  of  them 

the  sum  of dollars,  to  be  paid  on  the  first  (or 

other;  day  of  the  months  of  (April,  July,  October, 
and  January,  or  otherwise)  in  each  year. 

That  the  said  party  of  the  second  part  will  pay, 
or  cause  to  be  paid,  all  water-rates  and  all  taxes 
and  assessments  that  may  be  laid,  charged  or  as- 
sessed on  said  demised  premises,  pending  the 
existence  of  this  lease  ; 

That  if  at  any  time  after  any  tax,  assessment, 
or  water-rate  shall  have  become  due  or  payable, 
the  party  of  the  second  part,  or  his  legal  repre- 
sentatives, shall  neglect  to  pay  such  water-rates, 
tax,  or  assessment,  it  may  be  lawful  for  the  party 
of  the  first  part  to  pay  the  same  at  any  time  there- 
after, and  the  amount  of  any  and  all  such  pay- 
ments so  made  by  the  party  of  the  first  part  shall 
be  deemed  and  taken,  and  are  hereby  declared  to 
be,  so  much  additional  and  further  rent,  for  the 
above  demised  premises,  due  from  and  payable 
by  the  party  of  the  second  part ;  and  may  be  col- 
lected in  the  same  manner,  by  distress  or  other- 
wise, as  is  hereinafter  provided  for  the  collection 
of  other  rents  to  grow  due  thereon. 

That  the  whole  amount  of  rent  reserved,  and 
agreed  to  be  paid  for  said  above-demised  prem- 
ises, and  each  and  every  instalment  thereof,  shall 
be  and  is  hereby  declared  to  be  a  valid  and  first 
lien  upon  any  and  all  buildings  and  improve- 
ments on  said  premises,  or  that  may  at  any  time 
be  erected,  placed,  or  put  on  said  premises  by 
said  party  of  the  second  part,  or  his  heirs,  execu- 
tors, and  administrators,  or  assigns,  and  upon  his 
or  their  interest  in  this  lease,  and  the  premises 
hereby  demised ; 

That  whenever,  and  as  often  as  any  instalment 
of  rent  or  any  other  amount  above  declared  to  be 
deemed  and  taken  as  rent,  shall  become  due  and 
remain  unpaid  for  one  day  after  the  same  be- 
comes due  and  payable,  said  party  of  the  first 
part,  his  heirs,  executors,  administrators,  agent, 
attorney,  or  assigns,  may  sell  at  public  auction  to 
the  highest  bidder  for  cash,  after  having  first 
given  ten  days'  notice  of  the  time  and  place  of 

such  sale  in  some  newspaper  published  in , 

all  the  buildings  and  improvements  on  said  prem- 
ises, and  all  the  right,  title  and  interest  acquired 
by  said  party  of  the  second  part,  under  this  lease, 
to  the  premises  herein  described,  and  as  the  at- 
torney of  said  party  of  the  second  part — hereby 
irrevocably  constituted — may  make  to  the  pur- 
chaser or  purchasers  thereof  a  suitable  and  proper 
transfer  bill  of  sale  or  deed  of  the  same — and  out 
of  the  proceeds  arising  from  such  sale,  after  first 
paying  all  costs  and  expenses  of  such  sale,  in- 
cliiding  commissions  and  attorney's  fees — retain 
to  himself  the  whole  amount  due  on  said  lease, 
up  to  the  date  of  said  sale,  rendering  the  surplus 
(it  any)  to  said  party  of  the  second  part,  his  heirs, 
executors,  administrators,  agent,  attorney,  or  as- 
signs, which  sale  shall  be  a  perpetual  bar  to  and 
against  all  rights  and  equities  of  said  party  of  the 
second  part,  his  heirs  and  assigns  in  and  to  the 
property  sold. 

That,  at  the  expiration  of  the  time  in  this  lease 
mentioned,  said  party  of  the  second  part  will 
yield  up  said  leased  premises  to  the  party  of  thei 
first  part  in  as  good  condition  as  when  the  same 
were  entered  upon  by  the  party  of  the  second 
part,  loss  by  fire  or  inevitable  accident  and  ordi- 
nary wear  excepted. 

That  neither  said  party  of  the  second  part  nor 
his  legal  representatives  will  underlet  said  prem- 
ises or  any  part  thereof,  or  assign  this  lease,  with- 
out the  written  assent  of  said  party  of  the  first 
part,  first  had  and  obtained  thereunto,  nor  use  or 
suffer  them  to  be  used  for  any  purpose  calculated 
to  injure  the  reputation  of  the  premises  or  of  the 


326 


CONVEYANCES. 


neighbcrnood,  or  to  impair  the  value  of  the  sur- 
rounding neighborhooa"  property  for  present  use 
or  otherwise. 

It  is  expressly  understood  and  agreed,  by  and 
between  the  parties  aforesaid  : 

That  if  the  rent  above  reserved,  or  any  part 
thereof,  shall  be  behind  or  unpaid  on  the  day  of 
payment,  whereon  the  same  ought  to  be  paid,  as 
aforesaid,  or  if  default  shall  be  made  in  any  of 
the  covenants  herein  contained  to  be  kept  by  the 
party  of  the  second  part,  his  executors,  adminis- 
trators, or  assigns,  it  shall  and  may  be  law^ful  for 
the  party  of  the  first  part,  or  his  heirs,  executors, 
administrators,  agent,  attorney,  or  assigns,  at  his 
•r  their  election,  to  declare  said  term  ended,  and 
into  the  said  demised  premises,  or  any  part  there- 
of, either  with  or  without  process  of  law,  to  re- 
enter, and  the  party  of  the  second  part,  or  any 
other  person  or  persons  occupying,  in  or  upon  the 
same,  to  expel,  remove,  and  put  out,  using  suck 
force  as  may  be  necessary  in  so  doing,  and  the 
said  premises  again  to  repossess  and  enjoy,  as  of 
his  or  their  first  and  former  estate  ;  and  to  dis- 
train for  any  rent  that  may  be  due  thereon,  upon 
any  property  belonging  to  the  party  of  the  second 
part,  whether  the  same  be  exempt  from  execu- 
tion and  distress  bylaw  or  not ;  and  the  party  of 
the  second  part,  in  that  case  hereby  waives  all 
legal  rights  which  he  now  has,  or  may  have,  to 
hold  or  retain  any  such  property  under  any 
exemption  laws  now  in  force  in  this  State,  or  in 
any  other  way; 

That  it  is  intended  hereby  to  give  the  party  of 
the  first  part,  his  heirs,  executors,  administrators, 
agent,  attorney,  or  assigns,  a  valid  and  first  lien, 
upon  any  and  all  the  goods,  chattels,  cr  other 
property  belonging  to  the  party  of  the  second 
part,  as  security  for  the  payment  of  said  rent,  in 
manner  aforesaid,  anything  hereinbefore  con- 
tained to  the  contrary  notwithstanding  ; 

That  if  at  any  time  said  term  shall  be  ended  at 
such  election  of  said  party  of  the  first  part,  or  his 
heirs,  executors,  administrators,  agent,  attorney, 
or  assigns,  as  aforesaid,  or  in  any  other  way,  the 
party  of  the  second  part  does  hereby  covenant 
and  agree  to  surrender  and  deliver  up  said  above- 
described  premises  and  property,  peaceably,  to 
the  party  of  the  first  part,  or  his  heirs,  executors, 
administrators,  agent,  attorney,  or  assigns,  im- 
mediately upon  the  determination  of  said  terms, 
as  aforesaid  ; 

That  if  the  said  party  of  the  second  part,  or 
his  legal  representatives,  shall  remain  in  posses- 
sion of  the  same  one  day  after  notice  of  such  de- 
fault, or  after  the  termination  of  this  lease,  in  any 
of  the  ways  above  named,  he  or  they  shall  be 
deemed  guilty  of  a  forcible  detainer  of  the  prem- 
ises, and  shall  be  subject  to  all  the  conditions  and 
provisions  above  named,  and  to  eviction  and  re- 
moval, forcibly  or  otherwise,  with  or  without 
process  of  taw,  as  above  stated. 

That  neither  the  right  given  in  this  lease,  to 
said  party  of  the  first  part,  to  collect  the  rent 
that  may  be  due  under  the  terms  of  this  lease  by 
sale,  nor  any  proceedings  under  the  same,  shall  in 
any  way  affect  the  right  of  said  party  of  the  first 
part  to  declare  this  lease  void  and  the  term  here- 
by created  ended,  as  above  provided  upon  default 
made  by  said  party  of  the  second  part. 

That  said  party  of  the  first  part  hereby  waives 
his  right  to  any  notice  from  said  party  of  the 
second  part,  of  his  election  to  declare  this  lease 
at  an  end,  under  any  of  its  provisions,  or  any  de- 
mand for  the  payment  of  rent,  or  the  possession 
of  premises  leased  herein  ;  but  the  simple  fact  of 
the  non-payment  of  the  rent  reserved  shall  con- 
stitute a  forcible  entry  and  detainer  as  aforesaid. 
That  said  party  of  the  second  part  shall  not  re- 
move any  buildings  or  other  improvements  from 
said  premises  without  written  consent  of  said 
party  of  the  first  part. 

That  the  said  second  party  shall  pay  and  dis- 
charge all  costs  and  attorney's  fees  and  expenses 
that  shall  arise  from  enforcing  the  covenants  of 
this  indenture  by  the  party  of  the  first  part. 

It  IS  further  understood  and  agreed.  That  all 
the  conditions  and  covenants  contained  in  this 
lease  shall  be  binding  upon  the  heirs,  executors, 


administrators,  and  assigns  of  the  parties  to  thes* 
presents  respectively. 

In  v/itness  whereof,  the  said  parties  have  here* 
unto  set  their  hands  and  seals  the  day  and  year 
first  above  written.  A.  B.     [Sea/.] 

Signed,  sealed,  and  delivered  1         CD.     [Seui.) 

in  presence  of  j 

l.ea«t<>— TlnbciKlniii. 

See  VARIOUS  clauses,  above. 

I^easc — House. 

Lease  of  a  House,  with  Various  Clauses. 

This  (agreement,  conveyiince,  indenture,  or)  lease, 
made  and  agreed  on,  this  day  of ,  be- 
tween A.  B.,  of ,  of  the  one  part,  and  C.  D., 

of ,  of  the  other  part,  witnesseth  : 

That  for  and  in  consideration  of  the  provisos 
and  agreements  hereinafter  mentioned,  and 
which  on  the  part  and  behalf  of  the  said  C.  D., 
his  executors,  administrators,  and  assigns,  are  to 
be  done  and  performed,  he,  the  said  A.  B.,  does 
lease,  etc.,  unto  the  said  C.  D.,  his  executors,  ad- 
ministrators, and  assigns,  all  that  real  property 

situate  in  S.  (knoivn  by  the  name  c/ ),  now  (or 

lately)  in  the  occupation  of  E.  F.,  together  with 
all  the  appurtenant;  s  whatsoever,  to  the  same 
belonging  or  appertaining. 

To  have  and  to  hold  the  said  premises,  hereby 
demised,  with  the  appurtenances,  unto  the  said 
C  D.,  his  executors,  administrators,  and  assigns, 
from  the  day  of  the  date  hereof,  for  and  during 
the  full  term  of next  ensuing. 

Yielding  and  paying  therefor  (monthly,  quarterly, 

<??■  yearly),  on  every  first  day  of ,  during  the 

said  term  unto  the  said  A.  B. ,  his  heirs  or  assigns, 
tne rent  of dollars. 

Entry — On  Non-Payment  or  Assignment,  etc. 

That  if  said  rents,  or  either  of  them,  shall  be 
unpaid  for  the  space  of  twenty  days  next  after 
either  of  the  said  days  of  payment,  or  if  the  said 
C.  D.,  his  executors,  or  administrators,  shall  as- 
sign over  this  indenture,  or  the  premises  here- 
by leased,  or-any  part  thereof,  to  any  person  or 
persons  whomsoever,  without  the  consent  of  the 
said  A.  B.,  his  heirs  or  assigns,  first  had  and  ob- 
tained in  writing,  for  that  purpose,  then,  and  in 
either  of  the  said  cases,  it  shall  be  lawful  for  the 
said  A.  B.,  his  heirs  and  assigns,  into  the  said 
premises  hereby  leased,  or  any  part  thereof  in  the 
name  of  the  whole,  to  re-enter  and  to  have  again, 
repossess,  and  enjoy  the  same,  as  of  his  and  their 
first  and  former  estate,  anything  herein  contained 
to  the  contrary  notwithstanding. 

Entry — Lessor  may  to  View,  etc. 
That  said  A.  B.,  his  executors,  etc.,  or  any  of 
them,  with  workmen  or  others,  or  without,  twice 
in  every  year  during  the  continuance  of  this  de- 
mise, at  seasonable  times  in  the  daytime,  may 
enter  upon  the  said  leased  premises,  or  any  part 
thereof,  and  view  the  state  and  condition  of  the 
same.,  and  of  all  defects,  and  want  of  repairs, 
then  and  there  found,  to  give  or  leave  notice 
or  warning  in  writing,  at  and  upon  the  said 
premises,   to   said   C.  D.,  for  the  repairing  and 

amending  the  same  within  the  space  of ,  then 

next  following,  in  which  said  space  or  time,  etc., 
after  every  or  any  such  notice  or  warning,  he, 
the  said  A.  B.,  for  himself,  his  executors,  etc., 
does  hereby  covenant,  etc.,  to  and  vtrith  the  said 
C.  D.,  his  executors,  etc.,  well  and  sufficiently  to 
repair  and  amend  the  defects  and  w^ant  of  repa- 
ration, so  to  be  found  as  aforesaid  (except  as  here- 
inbefore excepted). 

Quiet  Enjoyment — Covenant  For. 
That  he,  the  said  C.  D.,  his  executors,  etc.,  pay- 
ing the  said rent,  and  performing  and  keep- 
ing all  and  singular  the  covenants  and  agreements 
herein  contained,  on  his  and  their  part  to  be  ful- 
filled and  kept,  shall  and  may  peaceably  and 
quietly  use,  occupy,  and  enjoy  the  said  premises 
hereby  leased,  with  the  appurtenances,  and 
every  part  and  parcel  thereof,  for  and  during  all 

the  said  term  of hereby  granted,  without  any 

hindrance,  molestation,  or  interruption  whatso- 
ever, of  or  by  the  said  A.  B.,  or  his  heirs,  or  of,  oc 


CONVEYANCES. 


J27 


by  any  other  person  or  persons  whatsoever,  law- 
fully claiming  under  them,  or  any,  or  either  of 
them. 

Quit — Lessee  may  Give  Notice,  etc. 
That  in  case  said  C.  D.,  his  executors  or  ad- 
ministrators, shall  be  desirous  to  quit  and  leave 

the  said  premises  at  the  expiration  of of  the 

said  term  of hereby  granted,  and  shall  give 

notice  in  writing  under  his  or  their  hands  and 
seals,  of  such  intention,  unto  the  said  C.  D.,  or 
his  heirs, months  before  the  end  and  expira- 
tion of  the  said term  of ,  then  and  at  the 

end  of  such  of  the  said  term  of hereby 

granted,  this  present  lease,  and  the  term  hereby 
granted,   shall  cease,   determine,  and  be  utterly 
void,  anything  herein  contained  to  the  contrary 
notwithstanding. 
In  witness  whereof,  etc 

Possession — Covenant  to  Deliver. 
That  attheend  of  the  said  term,  or  other  sooner 
determination  of  this  present  demise,  unto  the 
said  A.  B.,  his  heirs  or  assigns,  shall  and  will 
peaceably  and  quietly  leave  and  yield  up,  except 
as  hereinbefore  excepted. 

Rent — Covp;nant  to  Pay. 
And  the  said  C.  D.  does  hereby  for  himself,  his 
heirs,  executors,  administrators,  and  assigns, 
covenant  and  agree  that  he  (said  C.  D.),  his  exec- 
utors, administrators,  or  assigns,  shall  and  will, 
well  and  truly  pay,  or  cause  to  be  paid,  unto  the 
said  A.  B.,  his  heirs  and  assigns,  the  said  yearly 

rent  of ,  in  the  manner  hereinbefore  limited 

and  appointed,  according  to  the  reservation  there- 
of and  the  true  intent  and  meaning  of  these  pres- 
ents (except  the  premises  or  some  part  thereof,  shall 
hapnen  to  be  destroyed  or  damaged  by  reason  of  un- 
avoidable casualty). 

Repair— Covenant  to. 
And  also,  that  he,  the  said  C.  D.,  his  executors, 
administrators,  or  assigns,  or  some  of  them,  shall 
and  will  at  his,  their,  or  some  of  their  proper 
costs  and  charges,  from  time  to  time,  and  at  all 
times  hereafter  during  the  said  term,  well  and 
sufficiently  repair,  maintain,  and  keep  the  said 
premises,  with  the  appurtenances  hereinbefore 
demised,  and  every  part  and  parcel  thereof,  with 
all  and  all  manner  of  needful  and  necessary  re- 
parations whatsoever,  and  that,  as  often  as  need 
or  occasion  shall  require,  unavoidable  casualties 
only  excepted. 

Taxes— Lessee  to  Pay. 
That  he,  the  said  C.  D.,  his  executors,  etc.,  shall 
and  will,  at  all  times  hereafter  during  the  said 
term  hereby  granted,  pay  and  discharge  all  as- 
sessments, charges,  duties,  and  taxes,  which 
shall  be  assessed  upon  the  said  premises  or  any 
part  thereof. 

liease— House  and  Lands. 

IFit/t  Exceptions  and  Special  Covenants,  etc. 

This  (agreement,  conveyance,  indenture,  or)  lease, 

made,  etc.,  between  A.   B.,  of  ,  of  the  one 

part,  and  C.  D.,  of ,  of  the  other  part,  wit- 

nesseth  : 

That  for  and  in  consideration  of  the  covenants 
and  agreements,  hereinafter  reserved  and  con- 
tained, and  which  on  the  part  and  behalf  of  the 
said  C.  D.,  his  executors,  administrators,  and  as- 
signs, are  to  be  done  and  performed,  he,  the  said 
A.  F.,  does  lease  and  convey  unto  the  said  C.  D., 
his  executors,  administrators,  and  assigns,  all 
that  real  property,  tenements,  and  farm-house 
(iate  in  tlie  possession  of  E.  F.),  with  the  appurte- 
nances, situate  in ,  together  with  all  and  sin- 
gular the  yards,  gardens,  orchards,  outhouses, 
thereunto  belonging,  and  also  all  these  several 
closes,  pieces  or  parcels  of  arable  land,  meadow, 
pasture,  wood,  and  wood  ground,  containing  by 

estimation acres  (be  they  more  or  less,  lying  and 

being  in ,  to  the  said  messuage,  tenement,  or  farm- 
house belonging,  and  therewith  held,  used,  occupied, 
and  enjoyed,  as  part  and  parcel  thereof). 
VARIOUS  CLAUSES. 
Fallow  and  Unsown,  etc. — To  Let  Land  Lie 

EvEKY  Third  Year,  etc. 
That  he,  the  said  C.   D.,  his  heirs,  executors, 
administrators,  or  assigns,  shall  not,  no|r  will,  at 


any  time  during  this  present  lease,  crop  or  sow 
above  two  years  together,  any  of  the  arable  lands 
and  closes  hereby  leased,  but  every  third  year 
permit  the  same  to  lie  fallow  and  unsown. 

And  that  it  shall  be  lawful  for  the  said  C.  D., 
his  heirs   and   assigns,   with   servants,   and   the 

necessary  materials,  at  day  next  preceding 

the  expiration  of  this  present  lease,  to  enter  upon 
such  enclosure  and  grounds,  being  a  part  of  the 
said  premises  as  then  ought  to  lie  fallow  and  un- 
sown, and  the  same  to  plough,  fallow  and 
manure,  and  to  have  the  grass,  herbage,  sheep- 
walks,  and  sheep  commons  thereof,  and  also  to 
enter  upon  the  dung  which  shall  then  be  in  the 
yard  or  yardSi  and  at  the  same  time  to  have  the 
dung  in  the  henhouse,  and  also  to  have  some 
convenient  place  for  the  lodging  of  their  servants 
and  cattle,  without  extinguishment  of  any  of  the 
yearly  rent  hereinbefore  reserved,  and  without 
giving  or  making  any  allo^vance  or  satisfaction 
for  the  same. 

Habendum  and  Reddendum. 

To  have  and  to  hold  the  said  premises,  ^vith 
their  appurtenances  (excep*  as  before  excepted), 
unto  the  said  C.  D.,  his  executors,  administrators, 
and  assigns,  from  the  day  oi  the  date  hereof,  for 
and  during  the  full  term  of years  next  ensu- 
ing, and  fully  to  be  complete  and  ended  ; 

Yielding  and  paying  therefor  yearly,  during  the 
said  term,  unto  the  said  A.  B  ,  his  heirs  or  as- 
signs, the  yearly  rent  or  sum  of ,  on  the  first 

day  of ,  in  every  year  during  the  said  term. 

Quiet  Enjoyment — Covenant  for. 

That  it  shall  and  may  be  lawful  to  and  for  the 
said  C.  D.,  his  executors,  etc.,  performing  the 
covenants  and  agreements,  hereinbefore  men- 
tioned, peaceably  and  quietly,  to  hold  and  enjoy 
all  and  singular  the  said  premises,  with  the  ap- 
purtenances, during  the  said  term  of years 

hereby  leased,  without  any  molestation  whatso- 
ever, by  him,  the  said  A.  B.,  his  heirs  or  assigns, 
by  any  other  person  or  persons  lawfully  claiming 
from  or  under  him  or  them. 

Quit  Possession — At  the  End  of  the  Term. 

That  at  the  expiration  or  other  sooner  deter- 
mination of  this  present  lease,  said  C.  D.,  etc., 
will  yield  up  said  premises,  etc.,  unto  the  said 
A.  B.,  his  heirs  or  assigns. 

Repairs — Lessor  to  Find  Materials  for,  etc. 

That  said  A.  B. ,  his  heirs  and  assigns,  shall  and 
will,  from  time  to  time,  during  this  present  lease, 
at  reasonable  time  for  cutting  timber,  provide  and 
allow  unto  the  said  C.  D.,  his,  etc.,  on  the  said 
premises,  or  within  four  miles  distant  therefrom, 
necessary  materials  for  the  repairing  and  amend- 
ing thereof,  within  forty  days  after  notice  of  the 
want  thereof,  and  demand  of  the  same  made  by 
the  said  C.  D.,  his  executors,  etc.,  the  said  mate- 
rials to  be  carried  to  the  said  premises  at  the  ex- 
pense of  the  said  C.  D.,  his  executors,  etc. 

Repairs — The  Lessor  to  Find  Materials  for. 

That  he,  the  said  C.  D.,  his  executors,  adminis- 
trators, and  assigns,  shall  and  vj\\\,  at  his  and 
their  own  proper  costs  and  charges,  well  and 
sufficiently  repair,  maintain,  and  preserve,  the 
said  real  property,  tenements,  and  farm-house, 
and  all  other  the  outhouses,  gates  and  fences  be- 
longing to  the  said  premises,  he,  the  said  A.  B., 
his  heirs  and  assigns,  upon  notice  and  request  to 
them  made,  finding  and  allowing  on  the  said 
premises,  or  within  four  miles  thereof,  all  ma- 
terials whatsoever  for  the  doing  thereof,  to  be 
carried  to  the  said  premises  at  the  charge  of  tiie 
said  C.  D.,  his  executors,  administrators,  or  as- 
signs. 

Straw — Not  to  Burn,  etc. 

That  the  said  C.  D.,  his  executors,  administra- 
tors and  assigns,  shall  not,  at  any  time  or  times, 
during  the  last  two  years  of  said  term,  sell,  or 
otherwise  dispose  of,  any  of  the  straw  which 
shall  be  growing  and  arising  upon  the  said  leased 
premises,  and  shall  not  burn  any  straw,  except  it 
be  for  the  necessary  singeing  of  his  and  their 
hogs  for  the  use  of  their  own  families,  etc. 
Taxes — To  Pay. 

That  he,  the  $aid  C.  D.,  Mis  e?i«cutors,  ad4iinia> 


328 


CONVEYANCES. 


trators  and  assigns,  shall  and  will,  at  at  all  times 
during  the  said  term  of  years  hereby  leased,  pay 
and  discharge  all  such  taxes  and  assessments  as 
shall  be  levied  or  assessed  upon  the  said  prem- 
ises, the  land  tax  only  excepted. 

Timber — Exception  of,  etc. 

Except,  and  always  reserved,  out  of  this  pres- 
ent lease  unto  the  said  A.  B.,  his  heirs  and  as- 
signs, all  timber  and  timberlike  trees,  and  all 
other  trees  whatsoever,  but  the  fruit  trees  for 
their  fruit  only,  and  the  pollard  trees  for  their 
lops  and  tops  only,  which  now  are,  or  at  any 
time  or  times  hereafter  shall  be  standing  and 
growing  in  and  upon  the  said  premises,  or  any 
part  thereof,  with  free  liberty  of  ingress  and 
egress  to  and  for  the  said  A.  B.,  his  heirs  and  as- 
signs, servants  and  workmen,  from  time  to  time, 
and  at  all  times  during  the  term  hereby  leased, 
the  same  to  cut  down  and  carry  away,  in  and 
through  the  said  leased  premises,  or  any  part 
thereof  (doing  no  wilful  hurt  or  damage  to  the  grain  and 
grass  of  the  said  C.  D.,  his  executors,  administrators, 
and  .nssigns),  at  all  times  during  the  term  hereby 
leased,  and  free  liberty  to  enter  into  and  upon  the 
said  premises,  and  every  part  thereof,  to  view 
the  condition  of  the  repairs  thereof. 
Timber  to  Repair  Farming  Utensils — Lessor  to 
Allow. 

And  also  shall  and  will,  from  time  to  time,  dur- 
ing this  present  lease,  allow  unto  the  said  C.  D., 
his,  etc.,  timber  to  be  had  and  taken  off  and  from 
the  said  premises  (if  any  such  there  he),  for  neces- 
sary repair  of  all  fanning  utensils,  to  be  used  and 
spent  upon  the  said  premises,  and  not  elsewhere, 
and  to  be  set  out  for  that  purpose  by  the  said  A. 
B.,  his  heirs  or  assigns,  on  such  notice  as  afore- 
said of  the  want  thereof. 

Trees — Not  to  Lop,  etc. 

That  the  said  C.  D.,  his  executors,  etc.,  shall 
not,  nor  will  at  any  time  during  the  term  hereby 
leased,  lop  or  cut  any  of  the  trees  or  spring  wood 
belonging  to  the  said  premises,  but  such  pollard 
trees  and  spring  wood  as  have  been  usually 
Ibpped  and  cut  by  former  and  other  tenants,  and 
those  only  of  twelve  years'  growth,  and  the  same 
ihall  not  be  sold  or  disposed  of  in  any  other  viray 
^^hatsoever,  and  shall  not  nor  will,  at  any  time 
«ir  times  during  this  lease,  inordinately  burn  or 
«Vaste  any  of  the  firewood  which  is  so  allowed, 
i  nd  shall  keep  the  said  pollard  trees,  as  also  all 
the  fruit  trees  and  spring  wood,  from  all  wilful  or 
L«gligent  hurt  or  waste. 

licase — Honse  17nfint$ilied. 

This  Cagreement,  conveyance,  indenture,  or)  lease, 

made  this day  of ,  between  A.  B.,  of , 

tf  the  one  part,  and  C.  D.,of ,  of  the  other 

f lart,  witnesseth : 

That,  in  consideration  of  the  rent  and  cove- 
nants, hereinafter  reserved  and  contained  on  the 
(lart  of  said  C.  D.,  his  executors,  administrators, 
t  nd  assigns,  the  said  A.  B.  does  lease  unto  the 
said  C.  D.,  all  that  parcel  of  ground,  situate  on 

the  south  side  of street,  in,  etc., etc.,  together 

>with  the  buildings  erected  thereon,  being  the 

house  from  ,  exclusive  of  the  corner  house  ; 

which  said  premises,  with  the  dimensions  and 
abuttals  thereof,  are  particularly  described  in  the 
ground  plot  thereof,  drawn  in  the  margin  hereof; 
together  with  all  the  privileges  and  appurte- 
nances to  the  said  premises  belonging  (except, 
«tc.) 

To  have  and  to  hold  the  said  premises  unto  the 

said  C.  D.,his  executors,  etc.,  from  the -of  day 

last,  for  the  term  of years,  thence  next 

ensuing  ; 

Yielding  and  paying  therefor  yearly,  di>ring  the 
said  term,  unto  the  said  A.  B.,  his  heir?,  execu- 
tors, etc.,  the  rent  of dollars,  by  equal  quar- 
terly payments,  on  the day  of  ■— --,  etc.,  etc., 

in  every  year,  without  any  deduction  whatsoever 
for  taxes,  assessments,  etc. 

VARIOUS  CLAUSES. 

Assign — Not  to,  Without  Giving  Notice. 

That  the  said  C.  D.,  his  executors,  etc.,  will 

not  assign  the  said  premises  or  any  part  thereof, 

l^r  the  said  term,  without  giving  notice  in  writ- 


ing \within  fourteen  days  then  next,  to  the  said 
A.  B.,  his  executors,  etc.,  and  will  not,  during  the 
last  seven  years  of  the  said  term,  assign  or  make 
over  the  said  premises,  or  any  part  thereof,  for 
all  or  any  part  of  the  residue  of  the  said  term, 
without  the  consent  in  writing  of  the  said  A.  B., 
his  executors,  etc. 

Drains,  Fences,  Party  Walls,  and  Sewers,  etc., 
etc. — To  Contribute  to. 

That  said  C.  D.  will,  during  the  said  term,  con- 
tribute a  reasonable  proportion  towards  the  ex- 
pense of  making,  repairing  and  cleansing  all  party 
and  fence  walls,  sewers,  drains,  watercourses, 
ways  and  other  easements,  used  or  to  be  used  in 
common,  by  the  occupier  of  the  said  premises, 
and  the  occupiers  of  the  adjoining  premises  be- 
longing to  the  said  A.  B. 

Finish  House — Lessee  Covenants  to,  etc. 

That  said  C.  D.,  his  executors,  administrators, 
or  assigns,  will,  at  his  or  their  own  expense,  before 

the  day  of next,  finish  and  make  fit  for 

habitation  the  said  tenements,  with  the  appurte- 
nances, to  the  approbation  of  the  said  A.  B.,  his 
heirs,  executors,  etc.,  or  his  or  their  surveyor. 

That  said  C.  D.  will  pave  a  footway  in  front  of 
the  said  dwelling,  with  a  stone  curb,  etc.,  etc. 

Insure — Lessee  Will,  etc. 

That  said  C.  D.  will  forthwith  insure  the  build- 
ings erected  and  hereafter  to  be  erected  on  the 
ground  hereby  demised,  to  the  full  value  thereof, 

in   the  insurance   office,  etc.,  and  keep  the 

same  continually  so  insured  during  the  said  term  ; 
and  will,  upon  request  of  the  said  A.  B.,  his  ex- 
ecutors, etc.,  show  the  receipt  for  the  premium 
paid  for  such  insurance,  for  every  current  year. 
Paint — Lessee  to,  etc. 

That  the  said  C.  D.,  his  executors,  etc.,  will,  in 
every  fourth  year  of  the  said  term,  paint  all  the 
outside  wood  work  and  iron  work  belonging  to 
the  said  premises,  with  two  coats  of  proper  oil 
colors,  in  a  workmanlike  manner. 

Repair — Lessee  to  Keep  Premises  in. 

That  said  C.  D.  will,  as  occasion  shall  require, 
during  the  said  term,  well  and  sufficiently  repair, 
maintain  and  keep  the  said  premises,  with  the 
appurtenances,  in  such  good  and  substantial  re- 
pair as  is  necessary  for  the  occupation  of  a  tenant 
at  rack-rent. 
Repairs — That  Lessor  may  Enter  to  Inspect,  etc. 

Said  A.  B. ,  his  executors,  etc. ,  at  all  seasonable 
times,  during  such  term,  may  enter  the  said 
premises,  and  take  a  schedule  of  the  same  fix- 
tures and  things. 

Rebuild,  Repair,  etc.,  in  Case  of  Fire,  Lessee 
Will,  etc. 

That  said  C.  D.  will,  as  often  as  the  buildings 
already  erected  on  the  ground  hereby  demised 
shall  be  burnt  down  or  datnaged  by  fire,  forth- 
with reinstate  the  same  under  the  direction  of  the 
surveyor  of  the  said  A.  B. ,  his  executors,  etc. 

That  it  shall  be  lawful  for  the  said  A.  B.,  his 
executors,  etc., at  all  seasonable  times  during  the 
said  term,  to  enter  the  said  premises,  to  take 
plans  and  examine  the  condition  thereof; 

That  all  wants  of  reparation,  which  upon  such 
views  shall  be  found,  and  for  the  amendment  of 
which  notice  in  writing  shall  be  left  at  the  said 
premises,  the  said  C.  D.,  his  executors,  etc.,  will 
within  three  calendar  months  next  after  every 
such  notice,  well  and  sufficiently  repair  and  make 
good  accordingly. 

That  the  said  C.  D.,  his  executors,  etc.,  will  not 
alter  or  injure  any  of  the  principal  timbers,  roofs, 
or  walls  of  the  said  premises,  nor  use  or  occupy 
the  said  premises,  or  any  part  thereof,  for  any 
other  purpose  than  as  a  private  dwelling  house, 
without  the  consent  in  writing  of  the  said  A.  B., 
his  executors,  etc.,  nor  by  building  or  otherwise 
obstruct  any  light  belonging  to  any  building  on 
the  ground  adjoining  or  contiguous,  or  suffer  to 
be  done  anything  which  may  tend  to  the  annoy- 
ance or  damage  of  the  said  A.  B.,  his  executors, 
etc.,  or  any  of  his  or  their  tenants. 


I<eas« — Iii«leiitnr«. 

This  indenture  {or  lease),  made  this  • 


•  day  of 


CONVEYANCES. 


3^9 


,  between  A.  B.,  of ,  of  the  first  part,  and 

C.  D.,  of ,  of  the  second  part,  witnesseth  : 

That  said  party  of  the  first  part,  for  and  in  con- 
sideration of  the  rents,  covenants,  and  agree- 
ments hereinafter  mentioned,  reserved  and  con- 
tained, on  the  part  and  behalf  of  the  party  of  the 
second  part,  his  executors,  administrators,  and 
assigns,  to  be  paid,  kept  and  performed,  hath 
granted,  demised,  and  to  farm  letten,  and  by 
these  presents  doth  grant,  demise,  and  to  farm 
let,  unto  the  said  party  of  the  second  part,  his  ex- 
ecutors, administrators,  and  assigns,  all  (^ive  {In- 
scription of  premises)  : 

To  have  and  to  hold  the  said  above-mentioned 
and  described  premises,  with  the  appurtenances, 
unto  the  said  party  of  the  second  part,  his  execu- 
tors, administrators,  and   assigns,  from  the 

day  of ,  for  and  during,  and  until  the  full  end 

and  term  of  ten  years  thence  next  ensuing,  and 
fully  to  be  complete  and  ended  {or,  for  and  during 
the  natural  life  of  E    F  ) 

Yielding  and  paying  therefor,  unto  the  said 
party  of  the  first  part,  his  heirs  or  assigns,  yearly, 
and   every  year    during    the    said    term   hereby 

granted,  the  yearly  rent  or  sum  of  dollars, 

lawful  money  of  the  United  States  of  America,  in 
equal  quarter  (or  half)  yearly  payments,  to  wit: 
on  the  first  day  of  May,  August,  November,  and 
February,  in  each  and  every  year  during  the  said 
term : 

Provided  always,  nevertheless,  that  if  the 
yearly  rent  above  reserved,  or  any  part  thereof, 
shall  be  behind  or  unpaid,  on  any  day  of  pay- 
ment whereon  the  same  ought  to  be  paid  as  afore- 
said ;  or  if  default  shall  be  made  in  any  of  the 
covenants  herein  contained,  on  the  part  and  be- 
half of  the  said  party  of  the  second  part,  his  ex- 
ecutors, administrators,  and  assigns,  to  be  paid, 
kept,  and  performed,  then  and  from  thenceforth 
it  shall  and  may  be  lawful  for  the  said  paity  of 
the  first  part,  his  heirs  or  assigns,  into  and  upon 
the  said  demised  premises,  and  every  part  there- 
of, wholly  to  re-enter,  and  the  same  to  have 
again,  re-possess  and  enjoy,  as  in  his  or  their 
first  and  former  estate,  or  to  distrain  for  any  rent 
that  may  remain  due  thereon,  anything  hereinbe- 
fore contained  to  the  contrary  thereof  in  anywise 
notwithstanding. 

And  the  said  party  of  the  second  part,  for  him- 
self and  his  heirs,  executors,  and  administrators, 
doth  covenant  and  agree,  to  and  with  the  said 
party  of  the  first  part,  his  heirs  and  assigns,  by 
these  presents,  that  the  said  party  of  the  second 
part,  his  executors,  administrators,  or  assigns, 
shall  and  will  yearly,  and  every  year  during  the 
term  hereby  granted,  well  and  truly  pay,  or  cause 
to  be  paid,  unto  the  said  party  of  the  first  part, 
his  heirs  or  assigns,  the  said  yearly  rent  above 
reserved,  on  the  days  and  in  the  manner  limited 
and  prescribed  as  aforesaid  for  the  payment 
thereof,  without  any  dednction,  fraud,  or  delay, 
according  to  the  true  intent  and  meaning  of  these 
presents.  (If  necessary,  insert :  and  that  the  said 
party  of  the  second  part,  his  executors,  administralors, 
or  assigns,  shall  and  will,  at  their  own  proper  costs  and 
charges,  bear,  pay  and  discharge  all  snch  taxes,  duties 
and  assessments  whatsoever,  as  shall  or  may,  dnnng 
the  said  term  hereby  granted,  be  charged,  assessed,  or 
imposed  upon  the  said  described  premises.) 

And  that  on  the  last  day  of  the  said  term,  or 
other  sooner  determination  of  the  estate  hereby 
granted,  the  said  party  of  the  second  part,  his  ex- 
ecutors, administrators,  or  assigns,  shall  and  will 
peaceably  and  quietly  leave,  surrender,  and  yield 
up  unto  the  said  party  of  the  first  part,  his  heirs 
or  assigns,  all  and  singular  the  said  demised 
premises. 

And  the  said  party  of  the  first  part,  for  himself, 
his  heirs  and  assigns,  doth  covenant  and  agree 
by  these  presents,  that  the  said  party  of  the  sec- 
ond part,  his  executors,  administrators,  or  as- 
signs, paying  the  said  yearly  rent  above  reserved, 
and  performing  the  covenants  and  agreements 
aforesaid  on  his  and  their  part,  the  said  party  of 
the  second  part,  his  executors,  administrators, 
and  assigns,  shall  and  may  at  all  times  during  the 
said  term  hereby  granted,  peaceably  and  quietly 
have,  hold,  and  enjoy  the  sai4  demised  premises, 


without  any  manner  of  let,  suit,  trouble,  or  hin- 
drance, of  or  from  the  said  party  of  the  first  part, 
his  heirs  or  assigns,  or  any  other  person  or  per- 
sons whomsoever. 

In  witness  whereof,  the  parties  to  these  pres- 
ents have  hereunto  set  their  hands  and  seals,  the 
day  and  year  above  written.  A.  B.     Tl.  s.j 

Sealed,  signed,  and  delivered  )  C.  D.     [l.  s.j 

in  presence  of  G.  H.  J 

I^ifUHO— Life  I^ease. 
This  (agreement,  conveyance,  indenture,  or)  lease, 

made  this day  of ,  by  and  between  A.  B., 

of ,  of  the  one  part,  and  C.  D.,  of ,  of  th( 

other  part,  witnesseth : 

That  said  A.  B.,  in  consideration  of  the  rente 
and  covenants  hereinafter  contained,  on  the  part 
of  the  said  C.  D.,  to  be  paid  and  performed,  does 
hereby  lease  and  convey  unto  the  said  C.  D.,  his 
executors,  administrators,  and  assigns,  all  the 
following  described  real  estate,  etc.  \here  describ- 
ing the  premises),  (being  the  same  which  were,  together 
wilh  certain  other  parcels  of  real  estate, etc.),  assigned 
to  the  said  A.  B.,  as  her  dower  in  the  estate  of 
her  late  husband,  H.  B..  deceased; 

To  have  and  to  hold  said  leased  premises,  to 

him,  the  said  C.  D.,  his  executors,  etc.,  from  the 

day  of  the  date  hereof,  for  and  during  the  natural 

hfe  of  the  said  A.  B.  ; 

Yielding  and  paying  therefor  the  yearly  rent  of 

,  in  quarterly  payments,  every  year  during  the 

life  of  the  said  A.   B.  ;   the  first  payment  to  be 

made  on  the day  of next : 

And  the  said  C.  D.,  for  himself,  his  executors, 
etc.,  does  hereby  covenant  with  the  said  A.  B., 
her  executors,  administrators,  and  assigns  : 

That  he,  his  executors,  etc.,  shall  and  will  pay 
to  the  said  A.  B.,her  heirs,  executors,  etc.,  the 
said  yearly  sum  of ,  at  the  several  times  here- 
inbefore limited  for  the  payment  thereof,  during 
the  continuance  of  this  lease  ; 

That  he,  the  said  C.  D.,  his  executors,  etc.,  shall 
and  will,  from  time  to  time,  and  at  all  times  dur- 
ing the  continuance  of  the  said  lease,  at  his  and 
their  own  charges,  well  and  sufficiently  repair, 
support  and  amend  said  leased  premises  and  every 
part  thereof,  with  all  manner  of  needful  repairs 
and  amendments,  as  often  as  occasion  shall  re- 
quire ; 

That  he  will  not,  and  his  executors,  etc.,  shall 
not,  do,  commit,  or  suffer  any  waste  upon  the  de- 
mised premises  during  the  said  term  ; 

That  on  the  decease  of  the  said  A.  B.,  will  and 
shall,  yield  and  deliver  up  the  said  premises  to 
the  legal  owner,  or  proprietor  thereof,  in  as  good 
condition  as  they  are  now  in,  reasonable  use  and 
wear  thereof,  and  also  damage  or  destruction  by 
fire,  excepted  ; 

That  he,  the  said  C.  D. ,  his  executors,  etc. ,  shall 
and  will  pay  and  discharge  all  the  rates  and 
taxes,  whether  city,  county,  or  State,  or  of  the 
United  States,  which  shall,  from  time  to  time,  or 
at  any  time  during  the  said  lease,  be  lawfully  as- 
sessed or  imposed  on  the  leased  premises; 
Provided  always,  nevertheless : 
That,  if  it  shall  happen  that  the  said  rent  of 

,  or  any  part  thereof,  shall  be  in  arrear  and 

unpaid,  by  the  space  of  days,  next  after  the 

same  shall  become  due,  respectively,  as  before 
limited  for  the  payment  thereof;  or,  if  the  said 
premises  shall  not  be  sufficiently  repaired  and 
amended  within  four  months  after  notice  given  to 
or  left  with  the  tenant  of  the  same  for  the  time 
being,  of  any  deficiency  or  want  of  repairs  of  the 
same;  or,  if  all  or  any  such  rates  or  taxes  afore- 
said, which  shall  be  lawfully  assessed  on  the 
leased  premises,  shall  not  be  discharged  in  the 
manner,  and  by  the  times  respectively  limited 
and  appointed  for  the  payment  thereof;  then, 
and  in  any  or  either  of  the  said  cases,  it  shall  and 
may  be  lawful  for  the  said  A.  B.,  or  her  assigns, 
into  the  leased  premises,  or  any  part  thereof,  in 
the  name  of  the  whole,  to  re-enter,  and  the  same 
to  have  again,  and  enjoy,  as  in  her  first  and 
former  estate,  and  the  said  C.  D.,  his,  etc.,  and 
all  other  tenants  and  occupiers  of  the  said  prem- 
ises thereout,  and  from  thence  to  expel,  eject,  and 
remove,  anything  hereinbefore  contained  to  the 
contrary  notwithstanding. 


COiWEVANCES. 


And  the  said  A.  B.  does  hereby  covenant  and 
agree,  to  and  with  the  said  C.  D.,  his  executors, 
etc.,  that  he  and  they,  paying  the  said  yearly 
rent,  hereby  reserved,  at  the  times  hereinbefore 
appointed  for  the  payment  thereof,  and  perform- 
ing all  and  singular  the  covenants  and  conditions 
herein  contained,  on  his  and  their  part  to  be  per- 
formed and  kept,  shall  and  lawfully  may,  peace- 
ably and  quietly,  hold  and  enjoy  the  leased  prem- 
ises for  and  during  the  term  aforesaid,  free  from 
the  lawful  hindrance  or  interruption  of  any  per- 
son or  persons  whatsoever. 

Provided  always,  and  it  is  hereby  mutually 
agreed  between  the  said  parties,  that  if  the  said 
messuage,  parcel  of  the  said  leased  premises, 
daring  the  said  term,  should  accidentally  be 
burned  down,  or  destroyed  by  fire,  this  indenture 
,pf  lease,  and  every  clause,  article,  and  covenant 
herein  contained,  shall  thereafter  cease  and  de- 
termine ;  and  neither  the  said  A.  B.,  her,  etc.,  nor 
the  said  C.  D.,  his,  etc.,  shall  be  obliged  to  re- 
build the  said  house,  but  he,  the  said  C.  D.,  his, 
etc.,  shall  yield  and  deliver  up,  to  the  said  A.  B., 
or  her  assigns,  possession  of  the  land  on  which 
the  said  messuage  stood,  together  with  the  resi- 
due of  the  leased  premises,  and  he  and  they 
shall  be  acquitted  and  discharged,  from  thence- 
forward, from  the  payment  of  rent  therefor,  and 
from  the  performance  of  the  other  covenants 
hereinbefore  contained. 

In  witness  whereof,  etc. 

I^ease— Mannlaelory. 

This  ("agreement,  conveyance,   indenture,  or)  lease, 

made  this day  of ,  between  A.  B.,  of , 

of  the  first  part,  and  C.  D.,  of ,  of  the  second 

part,  witnesseth  : 

That  in  consideration  of  the  rent  and  royalties 
hereinafter  reserved,  and  of  the  covenants  here- 
inafter contained,  and  on  the  part  of  the  said  C. 
D.,  his  executors,  administrators,  and  assigns,  to 
be  observed  and  performed,  said  A.  B.  hereby 
grants  and  leases  unto  the  said  C.  D.,  his  execu- 
tors, administrators  and  assigns,  as  follows: 

First.  All  that  tenement  chiefly  used  as  an  en- 
gine-house, situate  in  and  fronting  street  in 

the  city  of  ,  which  said  premises  are  more 

particularly  delineated  in  the  map  or  plan  hereto 

annexed,  and  therein  marked   ,  and  the  use 

and  enjoyment  of  all  the  machinery,  fixtures, 
implements,  utensils,  and  things  which  now  are 
in  or  upon  the  said  premises. 

Second.  All  and  singular  the  manufactories, 
buildings,  boiler-houses,  kilns,  erections,  offices, 

buildings  and  premises  situate  between street 

and quay  in  the  said  city  of ,  which  said 

premises  secondly  hereinbefore  described  are 
more  particularly  delineated  in  the  said  map  or 

plan,  and  therein  marked  ,  and  the  use  and 

enjoyment  of  all  the  machinery,  fixtures,  imple- 
ments, utensils,  and  things  which  now  are  in  or 
upon  the  said  premises  secondly  hereinbefore  de- 
scribed (excepting,  nevertheless,  and  reserving  unto  the 
persons  in  favor  ot  or  to  wliom  the  same  have  previously 
to  the  date  of  these  presents  been  excepted  and  reserved, 
their  executors,  administrators,  and  assigns,  all  the 
rooms  which  form  the  upper  story  of  the  several  build- 
ings hereby  demised,  and  the  absolute  use  ai>d  enjoy- 
ment thereof,  whether  for  the  purposes  of  business,  or 
otherwise,  and  unto  the  same  persons,  their  executors, 
administrators  and  assigns,  and  unto  their  servants, 
workmen,  or  any  other  persons  on  their  behalf), 

Thtkd  All  that  tract  and  parcel  of  ground 
bounded  and  described  as  follows  {descrihing  it): 
the  same  to  occupy  and  use,  either  on  foot  or  by 
means  of  carts  or  other  vehicles,  horses,  or  other 
animals,  full  and  free  right  and  liberty  of  ingress, 
egress,  regress,  passage    and   way  at  all  times 

oi'er  the  said   piece  of  land  colored   on  the 

said  plan  from  the  point  at  which  the  said  piece 
of  land  adjoins  the  wharf,  and  by  all  the  Other 
internal  and  external  passages  and  ways  by 
which  the  said  rooms  respectively  are  or  can  be 
now  approached  from  the  said  street  from  the 
point  aforesaid  : 

To  have  and  to  hold  all  the  said  premises  here- 
by leased,  or  expressed  so  to  be,  unto  th«  said 
C   0-,  his  executors,  administratbrs,  and  assigns. 


for  the  term  of years  from  the day  of 

next : 

Yielding  and  paying  in  respect  of  the  premises 
hereby  demised  every  year  during  the  said  term 

of years  the  clear  yearly  rent  of dollars, 

and   yielding   and   paying  every  year  during  the 

said  term  a  royalty  of per ,  in  respect  of 

all which  shall  be  made  or  manufactured  and 

sold  by  the  said  C.  D.,  his  executors,  administra- 
tors or  assigns,  or  any  person  or  persons  on  his 
or  their  behalf,  either  on  the  premises  hereby  de- 
mised or  on  any  part  thereof,  or  on  any  other 
premises  or  in  any  other  place  or  places  whatso- 
ever, such  rent  and  royalties  to  be  paid  by  equal 

quarterly  payments  on  the day  of ,  the 

oay  of ,  the  day  of ,  and  the day 

of ,  clear  of  all  deductions,  the  first  quarterly 

payment  of  the  said  rent  and  royalties  respec- 
tively to  be  made  on  the day  of next. 

And  the  said  C.  D.  hereby,  for  himself,  his  heirs, 
executors,  administrators,  and  assigns,  cove- 
nants with  the  said  A.  B.,  his  executors,  admin- 
istrators and  assigns,  that  the  said  C.  D.,  his  ex- 
ecutors, administrators,  and  assigns,  shall  and 
%vill,  during  the  said  term,  pay  the  said  rent  and 
royalties  respectively  on  the  said  days  of  pay- 
ment whereon  the  same  respectively  are  herein- 
before made  payable,  without  any  deduction,  and 
also  pay  and  discharge  all  present  and  future 
taxes,  charges,  rates  and  assessments  upon  the 
said  premises  hereby  leased,  or  on  the  occupier 
or  occupiers  thereof  in  respect  of  the  same,  and 
will  at  a-U  times  keep  indemnified  the  said  A.  B., 
his  heirs,  executors,  administrators  and  assigns, 
fiom  the  payment  thereof  respectively; 

And  further,  that  the  said  C.  D.,  his  executors, 
administrators  and  assigns,  shall  and  will,  at  ;iH 

tuTies  during  the   said  term  of years,  carry 

on,  within  the  said  city  of  ,  the  business  of 

making  or  manufacturing  ,  and  selling   the 

same  there  and  elsewhere  to  the  best  possible 
advantage  ;  and  shall  and  will  at  all  times  during 
the  said  term  keep  proper  books  of  account  on 
the  said  premises  hereby  leased,  or  on  some  part 
thereof,  and  shall  from  time  to  time  make  such 
entries  therein  as  shall  clearly  show  the  quantity 
of which  shall  from  time  to  time  be  manu- 
factured and  sold  by  him  or  them,  or  any  person 
or  persons  on  his  or  their  behalf,  and  also  the 
amount  of  royalties  which  shall  from  time  to 
time  become  payable  in  respect  thereof,  and  also 
all  other  matters  which  ought  to  be  entered  in 
such  books  in  relation  to  the  said  business;  and 
shall  and  will  on  the  first  day  of  every  month 
during  the  said  term,  at  his  or  their  own  expense, 
supply  the  said  A.  B. ,  his  executors,  administra" 
tors  and  assigns,  with  a  proper  and  faithful  ac- 
count, in  writing,  of  all  the which  shall  have 

been  manufactured  or  sold  as  aforesaid  during 
the  then  preceding  month,  together  with  all 
vouchers  and  such  other  evidence  as  may  be  re- 
quired in  order  clearly  to  show  the  accuracy  of 
such  account;  and  shall  and  will,  if  and  when 
required  so  to  do  by  the  said  A.  B. ,  his  executors, 
administrators,  or  assigns,  further  evidence  the 
accuracy  of  every  such  account  by  the  oath  oi 
affirmation  of  the  said  C.  D.,  his  executors,  ad- 
ministrators or  assigns;  and  shall  and  will  on 
every  quarter-day  during  the  said  term  during 
which  the  royalties  hereby  reserved  are  made 
payable  by  these  presents,  pay  the  full  amount 
of  the  royalties  which  shall  have  become  payable 

in  respect  of  all  the  which  shall  have  been 

manufactured  or  sold  during  tiie  then  preceding 
quarter  of  a  year. 

And  further,  that  in  case  the  said  rent  and  roy- 
alties hereby  reserved,  or  any  of  them,  or  any 
part  thereof  respectively,  shall  at  any  time  or 
times  during  the  said  term,  fail  to  be  paid  at  the 
times  and  in  the  manner  hereinbefore  provided 
for  this  purpose,  then  (in  addition  to  the  powers  of 
disire,s  and  tniiy  which  he  or  they  may  possess  inde- 
pendently of  any  special  clause  to  this  effect)  it  shall 
be  lawful  for  the  said  A.  B.,  his  executors,  ad- 
ministrators or  assigns,  into  or  upon  the  said 
premises  hereby  leased,  or  expressed  so  to  be, 
or  any  part  thereof,  or  any  other  premises  where- 
in or  whereupon  th?  said  business  may  for  the 


CONVEYANCES. 


331 


time  being  be  carried  on,  to  enter  and  distrain 
for  the  same  rent  and  royalties  so  in  arrear,  and 
the  distress  or  distresses  there  found  to  impound 
and  detain,  sell  and  dispose  of  in  such  manner  as 
landlords  are  by  law  authorized  to  do  in  respect 
of  arrears  of  rent  reserved  upon  common  lease, 
to  the  intent  that  the  said  A.  B.,  his  executors, 
administrators,  or  assigns,  may  by  such  distress 
or  distresses  be  from  time  to  time  satisfied,  all 
such  rent  and  royalties  as  may  be  so  unpaid  as 
aforesaid,  and  all  costs  and  expenses  occasioned 
by  non-payment  or  default  ip  payment  thereof. 
In  witness  whereof,  etc. 

pyith  Proviso. 

This  (agreement,  conveyance,  indenture,  or)  lease, 

made  this day  of ,  between  A.  B.,  of , 

in county,  and  State  of ,  of  the  first  part, 

and  C.   D.,  of  ,  in  county,  and  State  of 

,  of  the  second  part,  witnesselh  : 

That  the  said  party  of  the  first  part,  for  and  in 
consideration  of^  the  rents,  covenants,  and  agree- 
ments heremafter  mentioned,  reserved  and  con- 
tained, on  the  part  and  behalf  of  the  party  of 
the  second  part,  his  executors,  administrators 
and   assigns,  to   be   paid,   kept  and   performed, 

the  mill  property  of  the  party  of  the  first 

part,  now  run  by  R.  &  R.,  which  is stories 

high, feet  in  length,  and  contains looms, 

being  one  of  the  mills  known  and  designated  as 

the  R.  &  R.  Mills,  in  the  city  of  ;  together 

with  all  the  machinery  now  in  the  same  belong- 
ing to  the  said  party  of  the  first  part,  and  all 
stoves,  boilers,  fixtures,  heaters,  and  machinery, 
and  every  article  now  in  the  said  miH  which  ap- 
pertains to  the  same,  and  is  necessary  to  its  suc- 
cessful operation  ;  and  also  all  the  dwellings  and 
storehouses  used  in  connection  with  said  mill, 
which  now  belong  to  said  party  of  the  first 
part. 

And  the  said  party  of  the  first  part  further 
agrees  to  pay  all  taxes  and  insurances  on  said 
premises,  and  to  furnish  water-power,  water- 
wheels,  main-shafting  and  gearing  sufficient  at 
all  times  to  keep  in  constant  and  full  operation 
said  mill,  and  all  the  running  works  of  the  same, 
and  all  machinery  driven  by  water-power  now  in 
said  mill. 

And  the  said  party  of  the  first  part  further 
agrees  to  secure  to  the  said  party  of  the  second 
part  the  quiet  and  peaceable  possession  of  all 
and  every  part  of  said  premises,  machinery  and 
tools,  and  all  grounds  appertaining  to  said  mill, 
and  all  passage-ways  to  and  from  the  same 
which  are  nov/  used  and  may  be  necessary  for 

the  accommodation  of  the  same,  for years 

from  the  first  day  of next. 

It  in  mutually  understood  and  agreed  between 
the  parties  hereto,  that  in  case  said  mill  should 
be  necessarily  stopped  from  casualty,  or  in  case 
there  shall  be  a  want  of  or  failure  of  water- 
power,  the  rent  above  mentioned  to  be  paid  shall 
cease,  and  not  be  chargeable  during  the  continu- 
ation of  such  stoppage,  want,  or  failure. 

In  witness  whereof,  etc. 

Incase— Mini ngr.  Etc. 

This  (agreement,  conveyance,  indenture,  or]  lease, 

made  this day  of ,  between  A.  B.,  of , 

in county,  and  State  of ,  of  the  first  part, 

and  C.  D.,  of  ,  in  county,  and  State  of 

,  of  the  second  part,  witnesseth  : 

That  the  said  party  of  the  first  part,  for  and  in 
consideration  of  the  rents,  covenants  and  agree- 
ments hereinafter  mentioned,  reserved  and  con- 
tained, on  the  part  and  behalf  of  the  party  of  the 
second  part,  his  executors,  administrators,  and 
assigns,  to  be  paid,  kept,  and  performed,  do 
lease  and  convey  to  said  party  of  the  second  part, 
his  heini,  executors,  administrators  and  assigns, 
the  right  of  entering  in  and  upon  the  following 
descriV/ed  lands,  situated  (here  insert  description), 
for  the  purpose  of  searching  for  mineral  and  fos- 
sil substances,  and  of  conducting  mining  and 
quarrying  operations  to  any  extent  he  may 
deem  advisable. 

For  the  term   of years,  from  the  day 

of ,  A.  D.  (but  not  to  hold  possession  of  any 

part  uf  said  lands  for  any  other  purpose  whatsoever;, 


paying  for  the  site  of  buildings  (or  designate  other 
luorlxs)  necessaiy  thereto,  a  reasonable  rent. 

And  said  party  of  the  second  part  hereby  agrees 
that  he,  his  heirs,  executors,  administrators,  or 
assigns,  will  pay  or  cause  to  be  paid  to  said  party 
of  the  first  part,  his  heirs  or  assigns,  as  follows  : 
{here  state  puyiiients). 

And  said  party  of  the  second  part  covenants 
that  no  damage  shall  be  done  to  or  upon  said 
lands  and  premises  other  than  may  be  necessary 
in  conducting  said  operations. 

And  said  parties  of  the  first  and  second  part, 
each  for  themselves,  their  heirs,  executors,  ad- 
ministrators, and  assigns,  covenant  and  agree, 
and  this  indenture  is  made  with  this  express  pro- 
viso, that  if  no  mineral  or  fossil  substance  be 
mined  or  quarried,  as  now  contemplated  by  said 
parties,  within  the  period  of years  from  the 

day  of ,  then  these  presents,  and  every- 
thing contained  herein,  shall  cease,  and  be  for- 
ever null  and  void. 

In  witness  whereof,  etc. 

IrOase— Oil,  Mineral,  or  Salt  fyan(l<4. 

This   (agreement,  conveyance,   indenture,  or)  lease, 

made  and  concluded  this day  of ,  between 

A.  B.,  of of ,  county  of ,  and  State  of 

,  party  of  the  first  part,  and  C.  D.,  of  , 

party  of  the  second  part,  witnesseth  : 

That  the  said  party  of  the  first  part,  for  himself 
and  his  heirs,  executors,  administrators,  and  as- 
signs, for  and  in  consideration  of  the  sum  of  one 
dollar,  the  receipt  of  which  is  hereby  acknowl- 
edged, and  for  the  further  consideration  herein- 
after mentioned,  and  on  account  of  covenants 
hereinafter  contained,  hereby  leases  to  the  said 
party  of  the  second  part,  his  heirs,  executors,  ad- 
ministrators, and  assigns,  the  following-described 
piece  or  parcel  of  land,  situated  in township, 

county,  and  State  of ,  bounded  and  de- 
scribed as  follows  :  (describe  the  previises). 

The  said  land  more  fully  described  in  deed  of 
conveyance  by  C.  D.  to  said  party  of  the  first  part, 
containing  acres,  more  or  less,  for  the  pur- 
pose of  boring,  mining,  and  operating  for  oil, 
salt,  and  other  minerals  on  said  land,  for  the  term 
of years. 

Said  second  parties  shall  have  the  exclusive 
right  to  mine  for  oil,  salt,  and  other  minerals,  on 
said  land,  during  the  continuance  of  said  term; 
shall  have  the  privilege  of  taking  sufficient  coal 
and  wood  for  conducting  said  boring  and  min- 
ing operations,  and  timber  for  derricks  and 
mill-frames  and  for  refineries,  and  the  right  to 
erect  all  necessary  buildings  upon  said  prem- 
ises for  carrying  on  the  business  of  boring  for  oil, 
and  mining,  refining  and  storing  away  oil  and 
other  minerals  ;  shall  have  the  necessary  roads 
to  and  from  any  well  or  wells  that  may  be  bored, 
or  any  mines  ;  and  shall  have  possession  when- 
ever they  shall  be  ready  to  commence  operations. 

In  case  successful  in  obtaining  oil  or  other 
minerals,  agree  to  deliver  to  the  said  party  of  the 
first  part  (state  the  part  or  proportion  to  be  given 
to  the  lessor)  of  all  oil,  salt,  or  other  minerals  ob- 
tained. 

Said  party  of  the  first  part  shall  find  his  own 
barrels,  and  remove  the  oil  and  other  minerals 
belonging  to  him  as  often  as  required  by  the  sec- 
ond parties. 

In  case  said  second  parties  should  not  be  suc- 
cessful in  obtaining  oil  or  other  minerals,  they 
shall  have  the  right  to  remove  all  engines,  tools, 
machinery,  and  buildings. 

And  furtner,  it  is  agreed  that  the  parties  of  the 
second  part  shall  have  the  right  to  sub-lease  said 
land  for  the  purpose  of  boring  for  oil  or  other 
minerals,  and  the  said  lessee  or  lessees  shall  have 
all  the  rights  and  privileges  herein  granted  to  the 
said  party  of  the  second  part. 

Witness  our  hands  (and  seals),  this day  of 

.  A.  B.     [Seal.-] 

{Witness.)  C.  D.     \SeaL\ 

For  form  of  Acknowledgment,  see  that  title. 

I^ease— Pew. 

This  (agreement,  conveyance,  indenture,  #r)  lease, 

made  this day  of ,  between  A.  B.,  of , 

of  the  one  part,  and  C.  D.,  of ,  of  the  other 

part,  witnesseth  ; 


33« 


CONVEYANCES. 


That  !n  consideration  of  the  rents  and  cove- 
nants hereirafter  reserved  and  contained,  and 
>vhich  on  the  part  of  the  said  CD.,  his  executors, 
administrators  and  assigns,  are  to  be  paid  and 
performed,  the  said  A.  B.  does  lease,  etc.,  to  the 
said   C.  D.,  his  executors,  etc.,  all  that  pew  or 

seat  in  the meeting-house,  situate  in  said  S., 

numbered  ,  with  free  liberty  of  ingress  and 

egress  into  and  from  the  same  at  alt  times  of 
divine  service,  and  at  all  seasonable  times  what- 
soever ; 

To  hold  the  said  pe^v  or  seat  to  the  said  C.  D., 
his  executors,  etc.,  from  the  day  of  the  date  here- 
of,  for  and   during  the   full   term   of  years 

thence  next  ensuing; 

Yielding  and  paying  therefor,  on  every  first  day 

of during  the  said  term,  unto  the  said  A.  B. , 

his  heirs    or    assigns,  the    yearly   rent   of  

dollars. 

Provided  always,  nevertheless,  that  if  it  shall 
happen  that  the  said  yearly  rent  hereby  reserved , 
or  any  part  thereof,  shall  be  behind  and  unpaid 
by  the  space  of  twenty  days  next  after  it  shall 
become  due  as  aforesaid,  then  this  lease  and 
every  article  and  thing  herein  contained,  on  the 
part  of  the  said  A.  B.  to  be  done  and  performed, 
shall  determine  and  be  utterly  void. 

Covenant  to  Pay  Taxes,  etc. 

That  said  C.  D.,  his  executors,  etc.,  at  all  times 
hereafter  during  the  term  aforesaid,  shall  and 
will  pay  and  discharge  all  taxes  and  parish 
duties,  which  shall  be  duly  and  legally  assessed 
on  the  said  pew  or  seat. 

See  other  covenants,  above  and  below. 

I^ease— Renewal,  etc. 

This  (agreement,  conveyance,  indenture,  or)  lease, 
made  this  day  of ,  between  the  within- 
named  A.  B.,  of  the  one  part,  and  the  within- 
mmed  C.  D.,  of  the  other  part,  witnesseth  : 

That  for  and  in  consideration  of  the  covenants 
aild  agreements,  hereinafter  contained,  which  on 
tie  part  and  behalf  of  the  said  C.  D.,  his  execu- 
te rs,  administrators,  and  assigns,  are  to  be  done 
and  performed,  the  said  A.  B.  by  these  presents 
d.^th  lease,  etc.,  unto  the  said  C.  D.,  his,  etc.,  all 
the  following  described  real  estate  {describing  it), 
a  id  all  and  singular  other  the  premises  respec- 
tively comprised  in  the  within-written  lease,  and 
tl  lereby  leased  to  the  said  C.  D.  (except  as  therein 
is  excepted). 

To  have  and  to  hold  the  said  piece  or  parcel  of 
gi'ound,  messuage  or  tenement,  and  all  and  sin- 
gular other  the  premises  hereby  leased  (except  as 
aforesaid)  unto  the  said  C.  D.,  his  executors,  etc., 

from  the  day  of ,  which  will  be  in  the 

y  ear . 

And  when  the  said  within-written  lease  will 
ekpire,  for  and  during  and  unto  the  full  end  and 
t  Irm  of years  longer,  from  thence  next  ensu- 
ing, subject  to  the  like  rent,  and  payable  in  like 
manner  as  within  mentioned,  and  subject  to  the 
like  power  of  entry,  as  well  on  non-payment  of 
rent  as  on  the  happening  of  any  other  of  the  inci- 
dents mentioned  in  the  within-written  proviso, 
or  condition  of  re-entry. 

And  it  is  hereby  declared  and  agreed  by  and  be- 
tween the  said  parties  to  these  presents,  that 
they  and  their  respective  heirs,  executors,  ad- 
ministrators, and  assigns,  shall  and  will  by  these 

presents,  during  the  additional  term  of years 

hereby  granted,  stand  and  be  bound,  for  the  said 
premises,  with  the  appurtenances,  in  the  same 
covenants,  conditions,  and  agreements  respec- 
tively, as  they,  the  said  parties,  and  their  respec- 
tive heirs,  executors,  administrators,  and  assigns, 
do  now  stand  bound,  in  and  by  the  said  within 
lease  ;  it  being  the  intent  and  meaning  hereof, 
that  this  present  indorsed  lease,  and  the  addi- 
tional term  hereby  granted,  shall  be  upon  the 
same  footing,  and  all  the  covenants,  conditions, 
and  agreements,  respectively  therein  contained, 
be  equally  available,  and  have  the  like  force  and 
effect,  to  all  intents  and  purposes,  as  if  every 
article,  matter,  and  thing,  contained  in  the  said 
within  lease,  wrere  inserted  and  contained  in  this 
present  indenture. 

In  ^vitness  whereof,  etf . 


Ijoante— Snre<y. 

Suretyship  Agreement. 

In  consideration  of  the  letting  of  the  premisA 
above  described,  and  for  the  sum  of  one  dollar 
I,  the  undersigned,  do  hereby  become  surety  for 
the  punctual  payment  of  the  rent,  and  perform- 
ance of  the  covenants  in  the  within-written 
agreement  mentioned,  to  be  paid  and  performed 
by  the  within-named  tenant;  and  if  any  default 
shall  be  made  therein  I  do  hereby  promise  and 
agree  to  pay  on  demand,  unto  the  within-named 
la.ndlord,  such  sum  or  sums  of  money  as  will  be 
sufhcient  to  make  up  such  deficiency,  and  fully 
satisfy  the  conditions  of  the  said  agreement, 
without  requiring  any  notice  of  non-payment,  or 
proof  of  demand  being  made. 

Given  under  my  hand,  this day  of ,  A. 

D. .  E.  F. 

Lease — Surrender  of  a  Term  of  Years. 
To  the  Person  Having  the  Reversion. 

This  (agreement,  conveyance,  indenture,  or)  lease, 

made  this day  of ,  between  A.  B.,  of , 

of  the  one  part,  and  C.  D.,of ,  of  the  other 

part,  witnesseth  : 

Whereas,  the  said  C.  D.,  by  his  indenture  of 
lease,  bearing  date,  etc.,  did  lease,  etc.  {recite  the 
property  and  term  as  in  the  lease). 

Now  these  presents  witness  : 

That  for  and  in  consideration  of dollars,  to 

the  said  A.  B.  in  hand  paid  at  the  sealing  and  de- 
livery of  these  presents  by  the  said  C.  D.,  and  to 
the  intent  and  purpose  that  the  said  term  in  the 
said  lands  and  premises  may  be  wholly  merged 
and  extinguished,  he,  the  said  A.  B.,  hath  given, 
granted,  and  surrendered,  and  by  these  presents 
doth  give,  grant,  and  surrender  unto  the  said  C. 
D.,  and  his  heirs,  all  the  said  lands  and  premises 
in  the  said  indenture  of  lease  contained  and  de- 
mised as  aforesaid,  and  all  the  estate,  right,  title, 
interest,  term  of  years,  property,  claim,  and  de- 
mand whatsoever,  of  him,  the  said  A.  B.,  of,  in, 
to,  or  out  of  the  same,  or  any  part  or  parcel 
thereof: 

To  have  and  to  hold  the  said  lands  and  prem- 
ises to  the  said  C.  D.,  his  heirs  and  assigns,  and 
to  their  own  proper  use  and  behoof. 

And  the  said  A.  B.  does  hereby,  for  himself,  his 
heirs,  executors,  and  administrators,  covenant 
and  agree,  to  and  with  the  said  C.  D.,  his  heirs 
and  assigns,  that  he,  the  said  A.  B.,  hath  not,  at 
any  time  heretofore,  made,  done,  committed,  ex' 
ecuted,  permitted,  or  suffered  any  act.  deed,  mat- 
ter or  thing  whatsoever,  whereby,  or  wherewith, 
or  by  reason  or  means  whereof,  the  said  lands 
and  premises  hereby  assigned  or  surrendered,  or 
any  part  or  parcel  thereof,  are,  or  is,  or  may,  can, 
or  shall  be,  in  anyv^ise  impeached,  charged,  af- 
fected, or  incumbered. 

In  witness  whereof,  etc. 

Lease— Surreiuler— By  Indorsement. 

Know  all  men  by  these  presents  : 

That  I,  the  within-named  A.  B.,  in  considera- 
tion of dollars,  to  me  in  hand  paid  at  and  be- 
fore the  ensealing  and  delivery  of  these  presents, 
do,  for  myself,  my  executors  and  administrators, 
bargain,  sell,  surrender,  and  yield  up,  from  the 
day  of  the  date  hereof,  unto  the  within-named  C. 
D. ,  and  his  heirs  {or  his  executors  and  administrators), 
as  well  the  within  indenture  of  lease,  as  the 
lands  and  premises  therein  mentioned,  and  the 
term  of  years  therein  yet  to  come,  with  all  my 
right,  title,  and  interest,  thereto  ;  and  I  do  here- 
by  povenant  that  the  same  are  free  and  clear  of 
all  incumbrances  of  what  kind  soever,  at  any 
time  by  me,  or  by  my  privity,  consent,  or  pro- 
curement, done,  committed,  or  suffered. 

Given  under  my  hand,  etc. 

Lease— Tenendum. 

See  Habendum,  above. 

Lease— Underlease. 

This  (agreement,  conveyance,  indenture,  or)  lease, 

made  this day  of ,  between  A.  B.,  of , 

of  the  one  part,  and  C.  D.,  of ,  of  the  other 

part,  witnesseth  : 

That,  in  consideration  of  the  covenants  and 
conditions  herein  contained,  on  the  part  of  the 
said  C.  O.,  his  executors,  etc.,  to  be  respectively 


CONVEVANCES. 


observed  and  performed,  the  said  A  B.  does  lease 
unto  the  said  C.  D.,  his  executors,  etc.,  all  real 
estate  and  buildings  (which  are  now  held  by  the  said 
A.  B.  under  a  lease  granted  to  him  by  E.  F.,  by  inden- 
ture bearing  date,  etc  ) 

For  a  term  of years,  from  the day  of 

then  last  past,  together  with  all  easements 

and  appurtenances  whatsoever,  to  the  said  prem- 
ises belonging,  or  in  anywise  appertaining  ; 

To  have  and  to  hold  the  said  premises,  with 
their  appurtenances,  to  the  said  C.  D,,  his  exec- 
utors, administ^ato^s,  and  assigns,  from  the 

day  of now  last  past,  for  the  full  term  of 

vears  and  three-quarters  of  another  year,  want- 
ing two  days ; 

Yielding  and  paying  therefor  yearly,  and  every 
year,  durmg  the  said  term  hereby  granted,  ex- 
cept the  three  last  quarters  of  a  year,  wanting 
two  days,  unto  the  said  A.  B.,  his  executors,  etc., 

the  rent  or  sum  of dollars,  in  even  portions 

quarterly,  beginning  on  the day  of  the  pres- 
ent month,  clear  of  all  deductions  for  taxes  or  on 
any  other  account ;  And  for  the  last  three  quar- 
ters of  a  year,  wanting  two  days,  of  the  said 
term,  the  rent  or  sum  of dollars,  to  be  pay- 
able, clear  of  all  deductions  as  aforesaid,  on  the 
days  and  in  the  manner  as  follows:  the  sum  of 

dollars  on,  etc.,  the  sum  of dollars  on, 

etc.,  and  the  remaining  sum  of dollars  on 

the  last  day  but  one  of  the  said  term  hereby 
granted. 

Covenant  to  Pay  the  Rent  Reserved  by  the 
Original  Lease. 

That  said  A.  B.,  his  executors,  etc.,  ^will  pay  or 
cause  to  be  paid  the  yearly  rent  reserved  by  the 
said  lease  so  granted  to  him  by  the  said  E.  F.  as 
aforesaid,  and  observe  and  perform  the  cove- 
nants, conditions  and  agreements  therein  con- 
tained, and  will  keep  the  said  C.  D.,  his  executors, 
administrators  and  assigns,  indemnified  against 
the  payment  of  the  same  rent,  and  the  perform- 
ance of  the  same  covenants,  conditions  and  agree- 
ments, except  so  far  as  such  covenants,  conditions 
and  agreements  are  conformable  to  the  covenants, 
conditions  and  agreements  hereinbefore  con- 
tained, and  ought  to  be  observed  and  performed 
by  the  said  C.  D.,  his  executors,  administrators, 
and  assigns. 
Covenant  to  Produce  the  Originai,  Lease,  etc. 

That  said  A.  B.,  his  executors,  etc.,  shall  and 
v^ill  from  time  to  time,  during  the  term  hereby 
granted,  upon  every  reasonable  request  and  no- 
tice thereof  in  writing,  for  that  purpose  given  to 
him  by  the  said  C.  D.,his  executors,  etc.,  pro- 
duce or  cause  to  be  produced  and  shown,  to  the 
said  C.  D.,  his  executors,  etc.,  or  to  such  person 
or  persons  as  they  shall  desire  or  require,  the  said 
lease,  bearing  date,  etc.,  as  aforesaid  and  herein- 
before referred  to,  unless  the  said  A.  B.,  his  heirs, 
executors,  etc.,  shall  be  prevented  or  hindered 
from  so  doing  by  fire  or  other  inevitable  accident. 

In  witness  whereof,  etc. 

I^icase— ^Vliarf,  Machinery,  Etc. 

This  (agreement,  conveyance,  indenture,  or)  lease, 

made  this day  of ,  between  A.  B.,  of , 

lessor  of  one  undivided  half  of  the  premises,  of 

the  first  part,  C.  D.,  of  ,  lessor  of  other  tmdi- 

vided  half  of  premises,  of  the  second  part,  and 
E.  F.,  of ,  lessee,  of  the  third  part. 

Whereas,  the  said  A.  B.  and  C.  D.  are  seized 
of  and  absolutely  entitled  to  the  dwelling-house, 
ground,  warehouses,  offices,  erections,  wharf,  fix- 
tures, machinery,  and  things  hereinafter  men- 
tioned, and  intended  to  be  hereby  demised,  as 
tenants  in  common  in  equal  shares; 

And  whereas,  the  said  A.  B.  and  C.  D.  have 
agreed  to  grant  to  the  said  E.  F.  a  lease  of  the 
said  premises,  upon  the  terms  and  in  the  man- 
ner hereinafter  expressed  : 

Now  this  indenture  witnesseth  : 

That  in  consideration  of  the  rent  hereinafter  re- 
served, and  of  the  covenants  hereinafter  con- 
tained, and  on  the  part  of  the  said  E.  F.,  his 
executors,  administrators  and  assigns,  to  be  ob- 
served and  performed,  they,  the  said  A.  B.  and  C. 
D.  (according  to  their  respective  shares  in  the  property 
iatcnded  to  be  hereby  demised),  do,  and  each  of  themi 


does,  hereby  grant  and  demise  unto  the  *aid  E. 
F.,  his  executors,  administrators  and  assigns,  all 
that  messuage  or  dwelling-house,  etc.,  and  also 
all  that  piece  or  parcel  of  ground,  etc.,  with  the 
warehouses,  offices  or  buildings,  and  other  erec- 
tions now  standing  and  being  thereon  ;  and  also 
all  that  wharf  adjoining  thereto,  now  called  and 

known  by  the  name  of wharf,  situate,  lying, 

and  being  in  ,  in  the  county  of  ,  and 

bounded  (here  follows  the  description),  and  now  in 
the  occupation  of ,  and  all  which  said  heredi- 
taments and  premises  are  more  particularly  de- 
scribed or  delineated  in  the  map  or  plan  drawn 
in  the  margin  of  {or  annexed  to)  these  presents. 
And  also  the  use  and  enjoyment  of  all  the  ma- 
chinery, cranes,  fixtures,  implements,  utensils 
and  things  which  now  are  in  or  upon  the  said 
premises,  and  the  particulars  whereof  are  speci- 
fied in  the  schedule  hereto  annexed  : 

To  have  and  to  hold  the  said  premises  herein- 
before demised  or  expressed  so  to  be,  unto  the 
said  E.  F.,  his  executors,  administrators  and  as- 
signs, from  the  day  of ,  for  the  term  of 

years  thenceforth. 

Yielding  and  paying  therefor  yearly,  and  every 

year  during  the  said  term  of years,  the  rent 

of dollars,  by  equal  half-yearly  payments,  on 

the day  of and  the day  of^ . 

And  the  said  E.  F.  hereby  for  himself,  his  hein  \ 
executors,  administrators  and  assigns,  covenant  8 
in  manner  following  : 

That  the  said  E.  F.,  his  executors,  administrti- 
tors  and  assigns,  shall  and  will  (here  follows  a 
covenant  to  pay  rent  and  taxes,  etc.) 

That  said  E.  F.  shall  and  will  at  all  times,  dur- 
ing the  said  term,  at  his  and  their  own  costs,  as 
often  as  occasion  shall  require,  well  and  suii- 
ciently  repair,  support,  maintain  and  keep  in 
good  and  substantial  repair  and  condition  tde 
dwellings,  wharf,  machinery,  and  premises  het  e- 
by  leased  or  expressed  so  to  be,  and  also  all  oth  (r 
the  erections  and  buildings  which  shall  at  ai  y 
time  during  the  said  term  be  erected  and  s:t  up  n 
or  upon  the  said  leased  premises,  and  the  same  n 
such  good  and  substantial  repair  and  conditio  i, 
shall  and  will,  at  the  expiration  or  other  sooni  ir 

determination   of   the   said   term   of  years, 

peaceably  and  quietly  surrender  and  give  up  uni  o 
the  said  A.  B.  and  C.  D.,  their  heirs  and  assigt>{, 
the  reasonable  use  and  wear  thereof  in  the  meaji- 
time  only  excepted. 

Provided  always,  and  it  is  hereby  agreed  and 
declared,  that  if  the  said  E.  F.,  his  executors,  ad- 
ministrators or  assigns,  shall  be  desirous  of  de- 
termining the  said  term  of ,  at  the  expiration 

of  their  first years  of  the  said  term,  and  of 

such  his  or  their  desire  shall  for  that  purpose  de* 
liver  to  the  said  A.  B.  and  C.  D.,  respectively,  or 

their   respective   heirs  or  assigns,  months' 

previous  notice  in  writing,  and  shall  pay  and  dis- 
charge all  arrerrs  of  rent,  and  perform  all  the 
covenants  hereinbefore  contained,  and  on  his 
and  their  part  tc  be  observed  and  performed, 
then  and  in  such  case,  at  the  expiration  of  the 

said  term  of  years,  this  present  lease,  and 

everything  herein  contained,  shall  absolutely 
cease  and  determine  to  all  intents  and  purposes. 

In  witness  whereof,  Rtc. 

T^ease  -Tears. 

Lease  ft  ••   Years. 

This  (agreement,  cimveyynce,  indenture,  or)  lease, 

made  this day  of ,  between  A.  B.,  of , 

and  C.  D.,  of ,  witnesseth : 

That  the  said  A.  B.  does  hcrtby  lease  and  con- 
vey  unto  the  said  C.  D.  all  that,  etc.  {describe  the 
premises^. 

To  hold  for  the  term  of j'ears  from  the  date 

hereof; 

Yielding  and  paying  therefor  yearly  on  every 

first  day  of during  the  said  term  unto  the 

said  A.  B.,  or  his  assigns,  the  yearly  rent  of  -^— 
{or  tlitis  :  yielding  and  payinp;  therefor,  during  the  said 
term  the  yearly  rent  of dollars,  in  two  equal  semi- 
annual payments  ;  or  thus  :  yielding  and  paying  there- 
for during  the  said  term  the  yearly  rent  of dollar^ 

in  four  equal  payments  quarter-yearly). 

And  the  said  C.  D.  covenants: 


iU 


CONVEYANCES. 


That  he  will  pay  the  said  rent  in  manner  afore- 
said ; 

That  he  will  deliver  up  the  premises  to  the  said 
A.  B.,  or  his  attorney,  peaceably  and  fjuietly  at 
the  end  of  the  said  term,  in  as  good  condition  as 
the  same  now  are,  or  may  be  put  into  by  the  said 
A.  B. ,  reasonable  use  and  wear  and  tear  thereof 
and  fire  and  other  casualty  excepted  ; 

That  he  will  pay  all  taxes  and  duties  lawfully 
levied  and  imposed  on  the  premises  demised 
during  the  said  term  ; 

That  he  will  not  do  or  suffer  any  waste  in  the 
demised  premises; 

That  he  will  not  underlet  the  same  or  any  part 
thereof,  nor  permit  any  other  person  or  persons 
to  occupy  the  same  or  any  part  thereof,  nor 
make  or  suffer  to  be  made  any  alteration  therein, 
vvithout  the  consent  of  the  said  A.  B.,  or  his  as- 
signs, for  that  purpose  in  writing  first  had  and 
obtained; 

That  the  said  A.  B.,  or  his  attorney  or  agent, 
may  enter  the  premises  for  the  purposes  of  view- 
ing or  making  improvements  at  reasonable  times 
in  the  daytime.  (Otiier  clauses  may  be  inserted 
according  to  circumstances.) 

MORTGAGES  are  conditional  convey- 
ances; conveyances  of  estates  or  property  by 
way  of  pledge,  for  the  security  of  debt,  and  lo 
become  void  on  payment  of  it."  It  is  an 
estate  created  by  a  conveyance  absolute  in 
form,  but  intended  to  secure  the  performance 
of  some  act  (generally  specified  in  the  convey- 
ance as  the  condition,  etc.),  such  as  the  jwy- 
ment  of  money,  and  the  like,  by  the  grantor 
or  some  other  person,  and  to  become  void  if 
the  act  is  performed  agreeably  to  the  terms 
prescribed  (in  the  conveyance  or)  at  the  time 
of  making  such  conveyance." 

All  kinds  of  property,  real  or  personal, 
which  are  capable  of  an  absolute  sale,  may  be 
the  subject  of  a  mortgage;  rights  in  remainder 
and  reversion,  franchises  and  choses  in  action, 
may,  therefore,  be  mortgaged.  But  a  mere 
possibility  or  expectancy,  as  that  of  an  heir, 
cannot." 

Both  real  and  personal  property  may  be 
mortgaged,  and  in  substantially  the  same  man- 
ner, except  that  a  mortgage  being  in  its  nature 
a  transfer  of  title,  the  laws  respecting  the  ne- 
cessity of  possession  of  personal  property  and 
the  nature  of  instruments  of  transfer  being 
difterent,  require  the  transfer  and  conveyance 
to  be  made  differently  in  the  two  cases. 

Mortgages  are  to  be  distinguished  from  sales 
with  q  contract  for  repurchase;  the  distinction 
is  important,?  but  turns  rather  upon  the  evi- 
dence in  each  case  than  upon  any  general  rule 
of  distinction."! 

A  mortgage  differs  from  a  pledge ;  the  gen- 
eral property  passes  by  a  mortgage,  whilst  by 
a  pledge  only  the  possession,  or  at  most,  a  spe- 
cial property  passes.     Possession  is  inseparable 

in-4  Kent.  Comm.  136.  n-i  Washb.  R.  Prop.  475. 
0-2  Story  Eq.  Jur.  \  1012  ;  4  Kent.  Comm.  144  ;  i  Pow- 
ell Mortg.  17,  23;  3  Mer.  Ch.  667.  |»-2  Call.  428;  7 
Watts,  401.  q-6  Blackf.  113;  15  Johns.  205;  4  Pick. 
349.  r-3  Mo.  516;  5  Johns.  258;  10  Id.  741;  12  Id. 
146  ;  2  Pick.  610  ;  2  N.  H.  13  ;  5  Vt.  532  ;  26  Me.  499. 
S-8  Johns.  96;  2  Port.  (Ala.)  433;  18  Me.  132  ;  7  Mo. 
566  ;  12  S.  &  M.  306;  34  Me.  208.  t-5  Greenl.  96;  10 
S.  &  M.  527;  13  Ala.  246;  20  Pick.  399  ;  10  Mo.  506. 
U-12  N.  H.  205 ;  7  Met.  244  ;  ii  E.  L.  &  E.  584,  S.  C; 
7  Exch.  581.  V-15  Me.  48;  12  Met.  308;  20  Vt.  78. 
W-4  Blackf.  435.     x-3  Fairf.  282  ;  16  Pick.  462  ;  25  Me.    | 


from  the  nature  f)f  a  pledge,  but  is  not  neces- 
sary to  a  mortgage.' 

Tkanskkr  of  personal  property  by  way 
of  mortgage  is  a  common  class  of  transfers  on 
condition,  and  is  regulated  by  statute.  A  mort- 
gage of  personal  property,  like  that  of  real 
estate,  may  (in  the  absence  of  a  statute  other- 
wise) consist  of  an  absolute  bill  of  sale;  and  a 
separate  instrument  of  defejtsance  given  at  the 
same  time."  And  although  the  bill  of  sale  is 
absolute,  and  no  writing  of  defeasance  is  given^ 
back,  parol  testimony  is  still  admissible  to 
prove  that  it  was  intended  only  as  collateral 
security.'  It  is  well  settled  that  mortgages  of 
jicrsonal  property  need  not  be  under  seal."  In 
the  absence  of  stipulations  to  the  contrary,  the 
mortgagee  of  personal  property  has  the  legal 
title  thereto,  and  the  right  of  possession ;  and 
he  may  have  an  action  against  any  one  taking 
them  from  the  mortgagor.''  And  parol  proof 
is  not  admissible  to  show  an  agreement  that  the 
mortgagor  should  remain  in  possession,  the 
mortgage  itself  being  silent  upon  the  subject.*^ 
And  although  the  mortgage  contains  an  express 
stipulation  that  the  mortgagor  shall  remain  in 
possession  until  default  of  payment,  and  with 
a  ]-)ower  to  sell  for  the  mortgage  debt,  the  mort- 
gagee may  nevertheless  sustain  trover  against 
an  officer  attaching  the  goods  as  the  property 
of  the  mortgagor."  As  between  the  mortgagor 
and  mortgagee,  a  mortgage  is  valid,  although 
there  be  no  delivery  of  the  property,  and  no 
possession  by  the  mortgagee,  or  deposit  of  the 
mortgage  in  the  proper  office  for  record.^  But 
as  to  creditors,  subsequent  purchasers  and 
mortgagees  in  good  faith,  the  mortgagee  must 
have  and  retain  the  possession  of  the  mort- 
gaged property,  or  the  mortgage  acknowledged, 
must  be  recorded  in  the  proper  office  in  the 
county  in  which  the  property  conveyed,  or 
a  greater  part  thereof,  shall  be.  Such  record 
is  equivalent  to  actual  delivery  and  continued 
possession  of  the  property. 

A  mortgage  must  be  in  writing  when  it  is 
intended  to  convey  the  legal  title.*  It  must  be 
in  one  single  deed  which  contains  the  whole 
contract.  In  the  absence  of  a  statute  to  the 
contraiy  it  may  be  in  two  separate  instruments 
— the  one  containing  an  absolute  conveyance 
and  the  other  a  defeasance;*  and  generally 
whenever  it  is  proved  that  a  conveyance  was 
made  for  the  purposes  of  security,  it  will  be 
treated  as  a  mortgage,  and  all  the  incidents 
thereof  attached  thereto. ''  The  defea.sance 
must  be  of  as  high  a  nature  as  the  conveyance 
to  be  defeated.*     The  rule  as  to  the  admission 

86:  26  Id.  499.  y-ii  N.  H.  55  ;  2  Story,  492  ;  2 Green. 
(N.  J.)  i8.  z-i  Penn.  240.  a-2  Johns.  Ch.  189;  15 
Johns.  555;  3  Wend.  208;  7  Id.  248;  2  Me.  152;  11  Id. 
346;  12  Mass.  456;  7  Pick.  157;  3  Watts,  188;  6  Jd.  405. 
l»-9  Wheat.  489;  i  How.  n8;  12  Id.  139;  2  Des.  Eq. 
564;  I  Hardin,  6;  2  Cow.  246;  9  N.  Y.  416;  25  Vt. 
273;  I  Md.  Ch.536;  3  Id.  508;  I  Murphy,  116;  10 
Yerg.  376;  3  J.  J.  Marsh,  353;  5  111.  156;  4  Ind.  loi : 
2  Pick.  211 ;  20  Ohio,  464;  36  Me.  115;  iCal.  303;  i 
Wis.  527;  9  S.  &  R.  434.  c-i'N.  H.  39;  13  Pick. 
411;  22  Id.  526;  43  Me.  206;  2  Johns.  Ch.  191;  7 
Watts,  361. 


CONVEYANCES. 


335 


t>i  parol  evidence  to  establish  the  character  of 
a  conveyance  varies.* 

Assignment  of  mortgages  must  be  made  in 
accordance  with  the  requirements  of  the 
statutes  of  frauds. 

Satisfaction  of  mortgages  upon  real  or  per- 
sonal property  may  be  either : 

1.  By  an  entry  upon  the  margin  of  the 
record  thereof,  signed  by  the  mortgagee  or  his 
attorney,  assignee,  or  personal  representative, 
acknowledging  the  satisfaction  of  the  mortgage, 
in  the  presence  of  the  recording  officer ;  or 

2.  By  a  receipt  indorsed  upon  the  mortgage, 
signed  by  the  mortgagee,  his  agent  or  attorney, 
which  receipt  may  be  entered  upon  the  margin 
of  the  record ;  or 

3.  It  may  be  discharged  upon  the  record 
thereof  whenever  there  is  presented  to  the 
proper  officer  an  instrument  acknowledging  the 
satisfaction  of  such  mortgage,  executed  by  the 
mortgagee,  his  duly  authorized  attorney-in- 
fact,  assignee,  or  personal  representative,  and 
acknowledged  in  the  same  manner  as  other 
instruments  affecting  real  estate. 

See  Mortgage  Forms,  below. 

AliABAlWA. 

Mortgages  of  real  and  personal  property  are  usually 
executed  with  powers  of  sale  in  event  of  a  breach  of 
condition.  The  power  of  sale  may  be  executed  by  an 
assignee  or  personal  representative,  or  person  who  be- 
comes entitled  by  assignment  or  otherwise  to  the  money 
secured. f 

Mortjfajros  of  Real  Property.^ 

Acknowledgment.     Same  as  DiiEds,  above. 

Execution.     Same  as  Deeds,  above. 

Foreclosure  without  the  intervention  of  a  court,  by 
publication  of  notice,  is  usually  provided  for  by  a  power 
of  sale  in  the  mortgage  authorizing  such  proceedings. 
If  the  mortgage  provides  for  foreclosure  upon  a  breach 
of  any  of  the  conditions,  the  courts  will  foreclose.  They 
may  be  foreclosed  by  bill  in  equity. 

Married  women  cannot  mortgage  their  statutory 
separate  estate  for  the  purpose  of  subjecting  it  to  sale 
for  the  payment  of  the  husband's  debt. 

Recording.     See  Deeds,  above. 

Redemption  may  be  etfected  within  two  years. 

Sale.     See  Foreclosure,  above. 

See  General  Forms,  post. 
Mortgaares  of  Personal  Properly. 

Chattel  mortgages  to  secure  debt,  or  provide  in- 
demnity, are  executed  in  the  same  manner  as  any  other 
simple  agreement  of  conditional  sale,  with  the  addition 
of  registering— or  in  certain  cases  recording. 

Registering.  They  must  be  registered  in  the  proper 
office  within  four  months. 

Recording.  If  the  property  is  removed  to  a  differ- 
ent county  from  that  in  which  the  gmntor  resides,  the 
conveyance  or  mortgage  must  be  recorded  within  six 
months  from  such  removal. 

See  General  Forms,  post. 

ARKANSAS. 

Mortgragres  of  Real  Property. 

Acknowledgrrient.     Same  as  Deeds,  above. 

Execution.     Same  as  Deeds,  above. 

Foreclosure  is  by  complaint  in  equity  in  which  no 
interlocuting  orders  or  day  of  payment  need  be  given. 

A  personal  decree  is  also  given  for  the  amount  due 
on  the  mortgage. 

Lien  attaches  when  filed  for  record. 

d-See  26  Ala.  (N.  S.)  312 :  29  Id.  254 ;  7  Ark.  505  ;  18 
Id.  34  :  8  Cal.  424;  9  Id.  538  :  8  Conn.  186  ;  15  111.  519, 
S28 ;  4  Blackf  67 ;  2  B.  Mon.  72  :  9  Dana,  log  ;  :!6  Me. 
562  :  43  Id.  206:  6  Harr.  &  J.  138,  435  :  3  Md.  Ch.  Dec. 
^08  :  13  Pick.  411  ;  22  Id.  526;  3  Mich.  645;  23  Miss. 
375;  10  Mo.  483;  22  Id.  77;  It  N.  H.  571 ;  Saxt.  (N. 
j.)  Ch.  534;  10  Barb.  582;  i  Johns.  Ch.  425,  594;  5 
Paige  Ch.  9 ;  9  N.  Y.  416;  2  Jones  Eq.  172,  256;  33 
Penn.  St.  158;  i  R.  I.  30;  3  Rich.  153;  10  Verg.  373; 


Married  women  may  execute  a  mortgage  as  though 
single. 

Recording.     Same  as  Deeds,  abore. 

Sales  of  land  are  not  on  less  than  three  nor  more 
than  six  months'  credit,  the  purchaser  giving  bond  with 
surety. 

See  General  Forms,  post. 
Mortgra^es  of  Personal  Property. 

Sales  of  personal  property  imder  a  decree  are  made 
on  a  credit  of  three  months. 

See  General  Forms,  post. 

CAIilFORXIA. 

Mortdraffes  of  Real  Property. 

Acknowledgment.     Same  as  Deeds,  above. 

Execution.     Same  as  Deeds,  above. 

Foreclosure  must  be  by  action  or  suit  for  that  pur. 
pose  in  the  superior  court. 

Married  Woman  need  not  sign  except  when  prop- 
erty mortgaged  is  the  homestead,  or  is  her  separate 
property,  unless  she  is  named  as  a  mortgagee. 

Recording.    See  Deeds,  above. 

Redemption  may  be  made  within  six  months  after 
sale  ;  the  same  right  exists  as  in  execution. 

Satisfaction  is  entered  on  the  margin  of  the  record, 
signed  by  the  mortgagee,  and  witnessed  by  the  recorder. 
See  General  Forms,  post. 
Mortg^ag^es  of  Personal  Property. 

Chattel  morlgages  may  be  given  upon  locomotives* 
engines,  and  other  stock  of  a  railroad ;  steamboat  ma" 
chinery,  machinery  used  by  machinists,  foundrymen 
and  mechanics  ;  steam  engines  and  boilers  ;  mining  ma- 
chinery ;  printing  presses  and  material ;  professional 
libraries  ;  instruments  of  surveyors,  physicians,  or  den- 
tists ;  upholstery  and  furniture  used  in  hotels  and  lodg- 
ing houses ;  oil  paintings,  pictures  and  works  of  art ; 
all  growing  crops,  including  grapes  and  fruit ;  vessels 
of  more  than  five  tons  burden;  instruments,  negatives, 
furniture,  and  fixtures  of  a  photograph  gallery  ;  machin- 
ery, casks,  pipes,  tubes  and  utensils  used  in  the  manu- 
facture or  storage  of  wine,  fruit  brandy,  fruit  syrups  or 
sugar;  also,  wines,  fruit  brandy,  fruit  syrup,  or  sugar, 
■with  the  cooperage  in  which  the  same  is  contained ; 
pianos  and  organs;  iron  and  steel  safes;  neat  cattle, 
horses,  mules,  swine,  sheep,  and  the  increase  thereof. 

Chattel  mortgages  must  show  on  their  faces  :  i.  The 
residence  of  the  mortgagor  and  mortgagee.  2  Their 
occupation,  profession,  or  trade.  3.  The  rate  of  interest, 
and  when  and  where  the  same  is  payable.  4.  The 
affidavit  of  both  mortgagor  and  mortgagee  that  the 
mortgage  is  bona  fide,  and  made  without  any  design  to 
hinder,  defraud  or  delay  creditors.  5.  It  must  be  re- 
corded to  be  valid  against  creditors,  etc. 

Chattel   mortgages   may  be  foreclosed  by  action  or 

suit  after  the  debt  secured  becomes  due. 

See  General  Forms,  post. 

rOI.ORA1>0. 

Mortg-ag-es  of  Real  Property. 

See  Deeds,  above ;  General  Forms,  below. 

Morlg-asres  of  Personal  Property. 

Acknowledgment  must  be  before  a  justice  of  the 
peace  of  the  precinct  in  which  the  mortgagor  resides  m 
order  to  affect  third  parties. 

Possession  may  be  retained  by  the  mortgagor  if  so 
stipulated  by  the  mortg.igee. 

Recording  in  the  office  of  the  recorder  of  the  county 
is  neccssp.iy  to  be  valid  against  creditors,  etc. 

Two  years  is  the  longest  period  for  which  a  chattel 
mortgage  can  be  given. 

See  General  Forms,  post. 

COXXFXTICUT. 

3f ortaases  of  Real  Property. 

Acknowledgments.     Same  as  Deeds,  above. 

Execution.     Same  as  Deeds,  above. 

Foreclosure  is  effected  by  bill  in  equity. 

Satisfaction,  release,  or  discharge  is  by  a  quit-claim 
deed  from  the  mortgagee. 

Mort|i^as:es  of  Personal  Property. 

Machinery,  engines,  and  implements  used  and  being 
in  any  manufacturing  or  mechanical  establishment; 
presses  and  material  pertaining  to  a  piinting  establish- 
ment;  household  furniture  used  for  housekeeping,  etc.; 

II  Humph.  587;  3  Texas,  i  ;  14  Id.  142;  9  Vt.  279;  19 
Id.  9 ;  2  Call.   421;  2   Munf.  40;  i  Wis.  527;  4   Kent, 
i  Comm.  143;  I  Washb.  R.  Prop.  48s. 


?« 


336 


CONVEYANCES. 


hay  in  a  building,  etc.,  may  be  mortgaged  by  the  owner 
lliereof. 

Possession  may  be  retained  by  the  mortgagor. 

Foreclosure  may  be  effected  at  any  time,  and  the 
property  sold  by  order  of  the  court. 
DEI.  A  WARE. 
MortKHfre^  of  Keal  Property. 

Acknowledgment.     Same  as  Deeds,  above. 

Execution.  Same  as  Deeds,  above.  A  de&ult 
clause  is  generally  inserted. 

Foreclosure  is  effected  by  proceedings  in  the  supe- 
rior court  by  writ  oi  scire  facias . 

Lien  of  purchase-money  mortgjage  duly  recorded  ha.s 
preference  to  any  judgment  against  the  mortgagor  or 
other  lien  of  a  date  prior  to  such  mortgage. 

Recording  must  be  within  sixty  days  after  the  mort- 
gage is  executed. 

Sale  after  judgment  is  made  of  the  premises  under  a 
writ  oi  levari  facias. 

Chattel  Mortgages  may  be  made  to  run  three  years, 
must  be  recorded  within  ten    days  after  execution,  and 
endorsed  bona  fide  for  debt  or  indemnity.     Can  be  fore- 
closed in  sixty  days  after   default.     Otherwise  same  as 
real  property  mortgages.      (March  23d,  1877.) 
DISTRICT  OF  COI.ITWBIA. 
Trust  Deeds  oT  Real  aii«l  I*er«ional 
Projverty. 

Security  for  debts  and  loans  are  made  uniformly  by 
deeds  of  trust. 

Acknowledgment,  where  real  property  is  trans- 
ferred, same  as  Deeds,  above. 

Execution.  Same  as  Deeds  of  Trust,  above  ;  and 
in  addition  confer  power  upon  the  trustee  to  sell  upon 
default  in  payment  of  the  debt,  note,  or  interest,  after 
giving  notice  by  advertisement. 

Release  is  by  deed  of  release  from  the  trustee. 

Sale.     After  a  sale  under  a  deed  ot  trust  there  is  no 

redemption ;   and  such  sale  is  avoided  by  suit  in  equity 

upon  special  grounds  which  justify  setting  aside  such  sale. 

See  Trust  Deeds,  above. 

FLiORIDA. 

Mortgages  of  Real  Property. 

Acknowledgment.     Same  as  Deeds,  above. 

Execution.     Same  as  Deeds,  above. 

Foreclosure  is  elTected  by  bill  in  equity,  or  by  peti- 
tion to  the  circuit  court  of  the  county  in  which  the  prop- 
erty is  situated. 

Married  women  need  not  join  unless  named  as  a 
mortgagor,  or  unless  it  is  her  separate  property. 

Recording  is  necessary  in  order  to  be  effectual 
•jgainst  creditors  or  subsequent  purchasers,  etc. 

Satisfaction.  Mortgages  may  be  discharged  by  ac- 
Jtnowledging  satisfaction  thereof  before  the  clerl<  of  the 
circuit  court  where  recorded,  and  proper  entry  upon  the 
record,  or  by  a  satisfaction  piece  either  indorsed  upon 
the  mortgage  or  separate  therefrom,  duly  proved  or  ac- 
knowledged as  a  deed,  etc.,  is  aclcnowledged. 
See  General  Forms,  post. 

Mortjsrages  of  Personal  Property. 

Chattel  mortg.^ges  are  in  the  usual  form. 

Foreclosure  is  same  as  of  a  mortgage  of  real  prop- 
erty, and  must  be  in  the  county  in  which  the  mortgaged 
property  may  be.     It  may  be  foreclosed  at  any  time. 

Recording  is  necessary  to  its  validity,  and  must  be 
in  the  county  in  which  the  mortgaged  properly  shall  be 
at  the  time  of  the  execution  of  the  mortgage,  unless  the 
mortgaged  property  be  delivered  at  the  time  of  the  ex- 
ecution of  the  murtgage,  or  within  twenty  days  there- 
after, to  the  mortgagee,  and  shall  continue  to  remain 
truly  and  bona  fide  in  his  possession. 

They  are  admitted  to  record  upon  the  same  proof  as 
real  property,  or  by  proof  being  made  upon  oath  by  at 
least  one  credible  person,  before  the  recording  officer, 
of  the  handwriting  of  the  mortgagor,  in  cases  in  which 
there  is  no  attesting  witness. 

See  General  Forms,  post. 

GEOR«IA. 

Hfortsrages  of  Real  Property. 

Acknowledgment.     Same  as  Deeds,  above. 

Execution.  Same  as  Deeds,  above,  in  presence  of 
a  witness. 

Foreclosure  is  effected  by  petition  to  the  superior 
court  of  the  county  in  which  the  property  is  situated. 

Recording  must  be  within  one  month  from  date. 

Sales  are  made  by  the  sheriff  under  the  same  regula- 
tions as  govern  sheriff's  sales  under  execution. 
See  General  Forms,  post. 


iWortgageM  of  Personal  Property. 

No  particular  form  is  necessary,  so  the  general  rt^ 
quisites  are  embraced. 

Foreclosure  is  effected  by  the  proper  affidavit  of  the 
mortgagee  (or  his  assignee),  his  agent  or  attorney,  be- 
fore any  officer  of  the  State  authorized  to  administer 
oaths,  etc.,  stating  the  amount  of  principal  and  interest 
due.  And  the  mortgage  and  such  affidavit  annexed  be- 
ing produced  before  a  judge  of  the  superior  court  of  the 
circuit  embracing  the  county  in  which  the  mortgagor 
resides,  etc.,  whereupon  an  order  is  granted  declaring 
the  mortgage  foreclosed,  and  the  cleric  is  directed  to 
issue  execution. 

See  General  Forms,  below. 

II.I^KI«01S. 

]Mlortsra8:es  of  Real  I»roperty, 

Acknowledgment  &  Recording  same  as  L'keds. 

"Sec.  II.  Mortgages  of  lands  may  be  ir. 
the  following  form,  substantially: 

The  mortgagor  (here  insert  name  or  names),  mort- 
gages and  warrants  to  (here  insert  name  or  iiamis 
of  mortgagee  or  mortgagees),  to  secure  the  pay- 
ment of  (here  recite  the  nature  and  amount  of  indebt- 
edness, showing  when  due,  and  rate  of  infrest,  and 
whether  secured  by  note  or  otherwise)  the  following 
described  real  estate  (here  insert  descripi ion  there- 
of), situated  in  the  Ccunty  of ,  and  State  of 

Illinois.*  A.  B.  [L.  S.] 

Dated  this  —  day  c, ,  A.  D. ." 

"Every  such  mortgage,  when  otherwise  properly 
executed,  shall  be  deemed  and  held  a  good  and  suffi- 
cient mortgage  in  fee  to  secure  the  payment  of  moneys 
therein  specified;  and  if  the  same  contains  the  words 
"and  warrants"  the  same  shall  be  construed  the  same 
as  if  full  covenants  of  seizin,  good  rTght  to  convey 
against  incumbrances,  of  quiet  enjoyment  and  general 
warranty,  as  expressed  in  Section  nine  (9)  of  this  Act, 
were  fully  written  therein  ;  but  if  the  words  "and  war- 
rants" are  omitted,  no  such  covenants  shall  be  im- 
plied."    R.  S.  1877,  Ch.  33,  p.  271. 

*See  title  Deeds,  p.  276,  Seen.  .  .  ante. 

In  addition,  the  mortgage  may  contain  a  power  of 
sale,  authorizing  the  mortgagee  to  foreclose  by  publi- 
cation of  notice,  and  may  also  contain  a  provision  au- 
thorizing the  Sheriff  to  execute  the  power  of  sale. 

Foreclosure  is  by  scire  facias  or  bill  in  equity. 

Redemption  must  be  within  one  year  of  sale. 

Satisfaction  is  by  entry  on  the  margin  of  the  recon^ 
or  any  instrument  of  release  by  the  mortgagee. 

Trust  Deeds  are  preferred  generally. 
Mortgages  of  Personal  Property, 

Are  in  the  usual  form,  and  are  limited  to  2  years. 
Acknowledgment  is  required.       Foreclosure  is 
effected  on  default;  delay  invalidat^rs  mortgagees  lien. 

ijrDiABrA. 

Mortgages  of  Real  Property. 

Acknowledgment.     Same  as  Deeds,  above. 

Execution.     Same  as  Deeds,  above. 

Foreclosure  is  effected  upon  any  breach  of  condi- 
tion, or  default.  If  the  property  is  not  divisible,  judg- 
ment may  be  rendered  for  the  whole  debt,  both  for  the. 
amount  due  and  the  instalments  subsequently  to  fall 
due,  rebating  interest. 

Any  mortgage  of  lands  worded  in  substance  as 
follows :» 

"A.  B.  mortgages  and  \varrants  to  C.  D."  {here 
desc7-ibe  the  premis-es),  "  to  secure  the  repayment 
of"  {here  recite  the  sunt /or  luhich  the  niortguge  is 
granted,  or  the  notes  or  other  evidences  0/  debt,  or  de- 
scription thereof,  sought  to  be  secured ;  also  the  date 
of  repayment). 

The  said  mortgage  being  dated,  and  duly  signed, 
sealed,  and  acknowledged  by  the  grantor,  shall  be 
deemed  and  held  a  good  and  sufficient  mortgage  to  the 
grantee,  his  heirs,  assigns,  executors,  and  administra- 
tors, with  warranty  from  the  grantor  and  his  legal  rep- 
resentatives, of  a  perfect  title  in  the  grantor  and  against 
all  previous  incumbrances.  If  in  the  above  form  the 
words,  "  and  warrant  "  be  omitted,  the  mortgage  shall 
be  good,  but  without  warranty.* 

Recording.     See  Deeds,  above. 

Satisfaction,  where  the  mortgage  is  foreclosed  and 
judgment  paid  or  satisfied,  is  immediately  entered  by 
the  clerk  of  the  circuit  court  on  the  record  in  the  re 
corder's  office  where  the  mortgage  is  recorded. 
a-R.  S.  1881,  I  2930. 


CONVEYANCES. 


337 


When  satisfied  without  foreclosure  the  mortgagee  en- 
ters satisfaction  either  on  the  margin  of  the  record,  or  by 
separate  instrument  duly  acknowledged  and  recorded. 
See  Gbnfkal  Forms,  btlow. 
Mortgrag^es  of  Personal  Property. 
Chattel  mortgages  are  in  the  usual  form.     To  be  vaUd 
they  must  be  accompanied  by  immediate  delivery  and 
changed  possession  of  the   mortgaged  goods  unless  the 
mortgage   is  recorded    in   recorder  s    office  of   county 
where  mortgagor  resides  within  ten  days  from  the  time 
it  is  executed. 

IOWA. 
Mortgages  of  Real  Property. 

Acknowledgment.     Same  as  Deeds,  above. 

Execution.     Same  as  Deeds,  above. 

Foreclosure  is  effected  by  a  civil  action  or  suit  for 
th  it  purpose. 

Married  women  need  not  join  unless  named  as  a 
mortgagor,  or  unless  the  property  belongs  to  her. 

Possession  is  retained  by  the  mortgagor  unless  other- 
wise agreed. 

Recording.     See  Deeds,  above. 

Redemption  may  be  effected  within  one  year  after 
sale. 

Satisfaction,  in  case  of  foreclosure,  is  entered  by  the 
clerk  of  the  court.  In  other  cases  it  must  be  entered 
upon  the  margin  of  the  record,  or  by  a  satisfaction  piece 
duly  acknowledged  and  recorded. 

See  General  Forms,  below. 
Mort$;a^e!«  of  Personal  Property. 

Chattel  mortgages  are  in  the  usual  forms. 

Foreclosure  is  effected  at  any  time.  Due  notice 
thereof  must  be  served  upon  the  mortgagor  and  upon 
all  purchasers  from  him  subsequent  to  the  execution  of 
the  mortgage,  and  upon  all  persons  having  recorded 
liens  upon  the  same  property  which  are  prior  to  the 
mortgage. 

Possession,  in  the  absence  of  stipulations  to  the  con- 
trary, is  and  remains  in  the  mortgagee. 

Sale.  After  notice  has  been  served  upon  the  parties, 
it  must  be  published  in  the  same  manner  and  for  the 
same  length  of  time  as  is  required  in  ca,ses  of  the  .sale 
of  like  property  on  execution,  and  the  sale  is  concluded 
in  the  same  manner.  The  sheriff  conducting  the  sale 
executes  to  the  purchaser  a  bill  of  sale  of  the  property, 
which  effectually  transfers  to  the  purchaser  all  the  title 
and  interest  on  which  the  mortgage  operated  as  a  lien. 

Recording.  Necessary  immediately  against  third 
persons.  KANSAS. 

Morteraffes  of  Real  Property. 

Acknowledgment.     Same  as  Deeds,  above. 

Execution.     Same  as  Deeds,  above. 

Foreclosure  may  be  effected  at  any  time  after  de- 
fault, by  action  or  suit  for  that  purpose  in  the  district 
court. 

Possession  remains  in  the  mortgagor  in  the  absence 
of  stipulations  to  the  contrary. 

Recording.     Same  as  Deeds,  above. 

Redemption  may  be  had  within  18  months  after  sale. 

Satisfaction  may  be  by  :  1.  Receipt  indorsed  on  the 
mortgage  ;    2.  Entry  upon  the  margin  of  the  record  in 
presence  of  the  register  of  deeds  ;  or,  3.  By  an  instru- 
ment duly  acknowledged  and  recorded. 
Trn!<)t  Deeds. 

Trust  deeds  are  in  use,  but  do  not  substitute  mort- 
gages in  general  practice. 

See  General  Forms,  below. 
Mortssagres  of  Personal  Property. 

Acknowledgment  is  unnecessary. 

After  condition  broken,  the  mortgagee  or  his  assigns 
may  proceed  to  sell  the  mortgaged  property,  or  so  much 
thereof  as  may  be  necessary  to  satisfy  the  mortgage  and 
costs  of  sale,  having  first  given  notice  of  time  and  place 
of  sale,  by  written  or  printed  hand-bills,  posted  up  in  at 
least  four  public  places  in  the  township  or  city  in  which 
the  property  is  to  be  sold,  at  least  ten  days  previous  to 
the  sale.' 

A  chattel  mortgage  which  is  not  accompanied  by  an 
immediate  delivery  and  followed  by  an  actual  and  con- 
tinued possession  of  the  things  mortgaged  is  void  unless 
such  mortgage  is  forthwith  deposited  in  the  office  of  the 
register  of  deeds  in  the  county  in  which  the  property  is 
then  situated,  or  the  mortgagor  resident,  etc. 

Chattel  mortgages  are  renewable,  yearly. 
See  General  Forms,  below. 

a-G.  S.  1868,  Ch.  68,  ?  17.  b-R.  S.  Ch.  90,  §g  1-5 ; 
Laws  1872,  Ch.  27.    c-Id.  Ch.  91,  §g  1-6. 


KI5Wri*UCKY. 
^lortsragres  of  Real  Property. 

Acknowledgment,  execution,  (addmg  clause  for 
defeasance)  ana  Recording.  Same  as  Deeds.  Fore- 
closure is  by  decree  in  equity.  Homestead  exemp- 
tion may  be  waived.  Married  women  must  join  m 
the  mortgage  to  bardower.  See  Deeds  Etc.,  below. 

9lorttrag:es  of  Personal  Property. 

And  the  usual  form  Acknowledged  and  Re- 
corded.        See  General  Forms,  post. 

I^OtriSIANA. 

IttortKagres  of  Real  Property. 

Acknowledgment,  Execution  and  Recording. 
Same  as  Deeds.  Foreclosure  is  by  suit. 
See  General  Forms,  post. 

mAiBiE. 

SfortKa^es  of  R^eal  Property. 

Acknowledgment,  Execution  and  Recording. 

Same  as  Deeds. 

"Sec.  5.  If,  after  breach  of  the  conditions,  the 
mortgagee  or  any  person  claiming  under  him  is  not 
desirous  of  taking  and  holding  possession  of  the  prem- 
ises, he  may  proceed  for  the  purpose  of  foreclosure  in 
either  of  the  following  modes:     R.  S.  1871,  Ch.  90. 

"First,  he  may  give  public  notice  in  a  new.paper 
printed  in  the  County  where  the  premises  are  situated, 
if  any,  or  if  not,  in  the  State  paper,  three  weeks  suc- 
cessively, of  his  claim  by  mortgage  on  such  real  es- 
tate, describing  the  premises  intelligibly,  and  naming 
the  date  of  the  mortgage,  and  that  the  condition  in  it 
is  broken,  by  reason  whereof  he  claims  a  foreclosure  ; 
and  cause  a  copy  of  such  printed  notice,  and  the  name 
and  date  of  the  newspaper  in  which  it  was  last  pub- 
lished, to  be  recorded  in  each  registry  of  deeds  in 
which  the  mortgage  deed  is  or  by  law  ought  to  be  re- 
corded, within  thirty  days  after  such  last  publication. 

"Second,  he  may  cause  an  attested  copy  of  such 
notice  to  be  served  on  the  mortgager  or  his  assignee, 
If  he  lives  in  this  State,  by  the  Sheriff  or  his  Deputy 
of  the  same  County,  by  delivering  it  to  him  in  hand, 
or  leaving  it  at  his  last  and  usual  abode;  and  cause 
this  original  notice  and  the  Sheriff's  return  thereon  to 
be  recorded  within  thirty  days  after  such  service  as 
aforesaid.  And  in  all  cases  the  certificate  of  the  Reg- 
ister of  Deeds  shall  be  prima  facie  evidence  of  the 
fact  of  such  entry,  notice,  publication  of  foreclosure, 
and  of  the  Sheriff's  return." 

"Sec.  6.  The  mortgagor,  or  person  claiming  un- 
der him,  may  redeem  the  mortgaged  premises  within 
three  years  next  after  the  first  publication  or  service 
of  the  notice  mentioned  in  the  preceding  Section,  and 
if  not  so  redeemed  the  right  of  redemption  shall  be  for- 
ever foreclosed." 

"Sec.  26.  In  all  cases  the  mortgage  may  be 
discharged  by  the  deed  of  release  from  the  person  au- 
thorized to  discharge  it,  or  by  causing  satisfaction  and 
payment  under  his  hand  to  be  entered  in  the  margin 
of  the  record  of  each  mortgage  in  the  Register's 
office."  But  the  practice  is  to  make  the  time  of  fore- 
closure one  year  by  agreement  of  parties  in  the  instru- 
.  ment. 

Mortgagees  of  Personal  Property .° 

Chattel  mortgages  are  void  against  third  parties  un- 
less recorded  in  the  clerk's  office  of  the  town  where  the 
mortgagor  lives,  or  possession  is  taken  and  retained  by 
the  mortgagee. 

The  right  of  redemption  is  lost  after  sixty  days'  no- 
tice of  foreclosure.  A  bill  of  sale  gives  absolute  title  to 
the  grantee  and  must  be  recorded. 

See  General  Forms,  below. 

MARYI^AND. 

]»fort8fages  of  Real  Property. 

Acknowledgment.     Same  as  Deeds,  above. 

Executed  same  as  Deeds,  above,  containing  f 
power  authorizing  sale  on  nonfulfilment  of  conditions  , 

Foreclosure  in  Baltimore  is  effected  by  a  decree  of 
sale  from  the  court  of  equity  ;  a  trustee  is  appointed  by 
the  court,  who  gives  bond,  advertises  the  property, 
makes  sale  thereof,  and  reports  to  said  court  for  con- 
firmation, etc. 

In  the  various  counties  the  mortgagee,  or  his  legal 
representative,  sells  under  the  power  in  the  mortgage, 
after  due  notice,  and  giving  bond,  makes  sale,  and  re- 
ports the  same  to  the  court  of  equity  for  confirmation. 

Recording.     Same  as  Deeds,  above. 
See  General  Forms,  below. 


«8 


CONVEYANCES. 


9Iort(;n}i:e«i  of  Personal  Properly. 

Chattel  mortgages  are   in  use,   but   in   practice  are 
tquivalent  only  to  bills  of  sale.     Sec  title  Sale. 
MASSACHUSETTS. 

Hort^cngeM  ttf  Ileal  Property. 

Acknowledgment,  Execution  and  Recording. 
Same  as  Dbeos,  above. 

Execution.  Same  as  Deeds,  above ;  with  the  in- 
sertion of  the  condition,  with  provisions  authorizing  a 
sale  of  the  premises  in  case  of  failure  by  the  mortgagor 
to  perform  the  condition. 

Foreclosure  is  effected  either  by  an  action  at  law, 
or  by  entry  and  possession  continued  peaceably  for 
three  years,  or  else  by  a  sale  in  accordance  with  the 
provisions  of  the  power  in  the  mortgage. 

Redemption  cannot  be  made  after  a  valid  sale. 
Satisfaction,  release,  or  discharge  of  a  mortgage 
may  be  on  the  margin  of  the  record,  as  follows : 

I,  C.  D.,  acknowledge  to  have  received  full  pay- 
ment and  satisfaction  for  the  debt  secured  by  the 
within  deed  of  mortgage  here  recorded,  given  to 
me  by  A.  B.,  and  do  hereby  cancel  and  discharge 
the  same.  Witness  my  hand.  C.  D. 

See  General  Fokms,  below. 
Mortga^eM  of  Personal  Property,  etc. 
Chattel  mortgages  need  not  be  acknowledged  nor  un- 
der seal.  Foreclosure  may  be  effected  at  any  time 
within  the  statutes  of  limitation.  Recording.  Abso- 
lute bills  of  sale,  intended  to  operate  as  mortgages,  must 
be  recorded.  Chattel  mortgages  must  be  recorded  on 
the  records  of  the  city  or  town  where  the  mortgagor 
resides  when  tiie  mortgage  is  made,  and  on  the  records 
of  the  city  or  town  in  wh'ch  he  principally  transacts  his 
business.  If  the  mortgagor  is  a  non-resident  of  the  State, 
then  the  recording  must  be  in  the  city  or  town  where 
the  property  then  is.  Unless  so  recorded  the  mortgage 
is  not  valid  except  between  parties,  unless  the  mortgagor 
has  and  continues  actual  possession  of  the  mortgaged 
goods.  Vessels  and  goods  at  sea,  mortgages  or  transfers 
»hereof  need  n  )t  be  recorded. 

MICHIGAN. 
9Iortsag'e»«  of  Real  Property. 
Acknowledgment.  Same  as  Deeds,  above.  Ex- 
ecution. Same  as  Deeds,  above;  with  power  of  sale 
on  breach  of  condition,  etc.  Foreclosure  is  eifected 
either  in  chancery,  or  by  advertisement  under  a  power 
of  sale.  Recording.  Same  as  Deeds,  above.  Sale 
may  be  had  one  year  after  foreclosure  by  a  court  of  chan- 
cery, and  fifteen  months  when  sold  under  the  power 
contained  in  the  mortgage. 

Satisfaction  or  discharge  may  be  by  the  mortgagee 
or  his  personal  representative,  acknowledging  vhe  same 
in  writing  on  the  margin  of  the  record  in  presence  of 
the  register,  or  by  a  written  certificate,  duly  acknowl- 
edged and  recorded  at  length  in  the  same  manner  as  the 
original  mortgage.  See  General  Forms,  below. 
Mort^jfag'e.s  of  Personal  Property. 
Chattel  mortgages  are  in  the  usual  form  ;  they  are  ab- 
solutely void  unless  accompanied  by  an  immediate  de- 
livery of  the  goods  and  chattels  mortgaged,  and  a  con- 
tinued possession  of  the  same  by  the  mortgagee,  imless 
the  mortgage,  or  a  true  copy  thereof,  shall  be  filed  in 
the  olhce  of  the  township  clerk  of  the  township,  or  city 
clerk  of  the  city,  where  the  mortgagor  resides. 

Concealment,  disposition,  embezzlement,  or  removal 
of  property  thus  mortgaged  is  a  mi.^demeanor. 

Renewal.     Chattel  mortgages  extend  and  are  valid 
for  one  year  only,  but  may  be  extended  from  year  to 
year  upon  the  mortgagee's  affidavit  annexed  to  a  copy 
•"if  the  mortgage,  stating  the  mortgagee's  interest. 
See  General  Forms,  below. 
MIXNKSOTA. 
Mortg'as:e«4  of  K«>nl  Property. 
Acknowledgment,  Execution  and  Recording. 
Same  as  Deeds,  above.     They  usually  contain  a  power 
of  sale  authorizing  foreclosure  by  advertisement,  in  which 
case,  upon  six  weeks'  publication  of  the  notice  of  sale 
prescribed  by  law,  the  premises  may  be  sold  to  satisfy 
the  mortgage  debt.     An  absolute  conveyance  in  form, 
if  intended  as  security,  will  be  deemed  a  mortgage. 

Foreclosure  may  be  effected  by  an  action  at  law, 
«nd  a  personal  decree  obtained  in  the  same  action 
against  the  mortgagor  for  any  deficiency  from  the  debt 
and  costs  arising  on  the  sale  of  the  mortgaged  premises. a 
The  mortgagee  has  his  action  for  a  strict  foreclosure,  but 
t.  final  decree  cannot  be  renderad  imtil  one  year  after 
judgment  for  the  amount  due  on  the  mortgage.b 


Redemption,  where  the  mortgage  is  foreclosed  ky 
publication,  can  be  made  within  one  year  from  the  date 
of  sale.  If  foreclosed  by  action  at  law  and  sale  of 
premises,  the  right  of  redemption  expires  one  year  from 
the  date  of  confirmation,  at  which  tune  the  purchaser  is 
entitled  to  a  final  decree. c 

Satisfaction  or  discharge  of  a  mortgage  is  made  by 
an  entry  on  the  margin  of  the  record  tlicreof,  signed  by 
the  mortgagee  or  his  legal  representative,  acknowl- 
edging sati.sfaction,  etc.  ;  also  by  a  separate  instrument 
in  the  usual  form,  duly  executed,  acknowledged,  and 
recorded  in  the  same  manner  as  the  original  mortgage. 
See  General  Forms,  below. 

Mortg:a$;:es  of  Personal  Property. 

Acknowledgment  before  some  officer  authorized  to 
take  acknowledgments  or  a  town  clerk  is  necessary. 
They  inu.st  be  hied  in  the  office  of  the  town  or  city  clerk, 
both  where  the  property  is  situated  and  where  the  mort- 
gagor resides  at  the  tiiie  of  the  execution  thereof. 

They  arc  valid  only  for  two  years  after  date. 
See  General  Forms,  below. 

MISSISSIPPI. 

Mort^as'es  of  Keal  Property. 

Acknowledgment  and  Executions.  Same  as 
Deeds,  above.  Foreclosure  is  effected  by  bill  in  equity 
in  the  chancery  court,  which  may  be  filed  at  any  time 
after  the  debt  secured  becomes  due.  Lien  of  the  mort- 
gage attaches  only  from  the  date  of  delivery  to  the  clerk 
for  record.  Recording  must  be  within  three  months 
from  execution.  Satisfaction.  Upon  receiving  sat- 
isfaction the  mortgagor  shall  enter  the  same  upon  the 
margin  of  the  record  of  the  mortgage,  upon  which  the 
title  invests  in  the  mortgagor.  Deeds  of  trust  are  in 
frequent  use  instead  of  mortgages.  They  save  foreclos- 
ure proceedings. 

S-e  General  Forms,  below. 

MISSOURI. 

Mortsfases  of  Real  Property. 

Acknowledgment,  Execution  and  Recording. 
Same  as  DeiiDs,  above.  Foreclosure  by  action  al 
law.     Sale  after  foreclosure.     General  Forms,  below. 

Trnst  Deeds. 

Trust  deeds  are  the  common  form  of  security. 

Acknowledginent  and  Execution.  Same  as 
Deeds,  above.  '1  he  property  is  conveyed  to  a  trustee 
with  power  to  sell  and  to  convey  the  property  absolutely 
if  the  debt  i^  not  paid.  Foreclosure  or  suit.  These 
transactions  are  without  foreclosure  or  suit.  Releases 
are  made  by  deed.  I'rustees  must  be  joined  by  the 
creditors  in  order  to  give  a  valid  relea.se. 

Mort{(ag^es  of  Personal  Property. 

Chattel  mortgages  and  deed  of  trust  upon  personal 
property  are  void  as  against  third  persons  unless  the 
property  is  delivered  to  and  possession  retained  by  the 
mortgagee,  or  beneficiary,  or  trustee,  unless  the  instru- 
ment is  recorded  in  the  county  wherein  the  grantof 
resides. 

MONTANA. 
Mort^ag^es  of  Real  Property 

Are  executed  and  acknowledged  in  tne  usual  form. 

Foreclosure  is  effected  by  suit  for  that  purpose. 

Discharge  or  release  may  be,  i,  by  entry  in  the 
margin  of  the  record  signed  by  the  mortgagee  or  his 
personal  representative  or  assignee,  acknowledging 
satisfaction  thereof  in  presence  of  the  recorder  or  his 
deputy,  who  subscribes  the  same  as  a  witness  ;  also,  2, 
by  a  certificate  acknowledged  or  proved,  same  as  the 
original  mortgage. 

Satisfaction  must  be  entered  within  seven  days  under 
$100  penalty  and  actual  damages,  etc. 

NEBRASKA. 

Mortsrasres  of  Real  Property. 

Acknowledgment,  Execution  and  Recording. 
Same  as  Deeds,  above.  Kvery  deed,  though  absolute^ 
shown  by  any  other  instrument  of  writing  to  be  intended 
as  a  security  in  the  nature  of  a  mortgage,  is  deemed  a 
mortgage.  Foreclosure  may  be  effected  after  any  de- 
linquency or  default  of  condition  or  payment,  and  sale 
may  be  made  by  decree  of  court.  Possession  remains 
in  the  mortgagor. 

a-G.  S  Ch.  81,  3  24,  et  sea.  b-Laws,  187,  p.  Iia 
C-G.  S.  Ch.  81,  §g  13,  31.  '    r     -y 


CONVEYANCES. 


23S 


Redemption  is  not  allowed. 

Satisfaction  is  entered  by  the  mortgagee,  his  as- 
signs, or  personal  representative,  by  entry  on  the  mar- 
gin of  the  record,  signed  by  such  person  in  presence  of 
and  attested  by  the  clerk  or  his  deputy ,  or  by  such  entry 
made  and  signed  by  the  clerk  on  presentation  to  him  of 
a  certificate  that  such  mortgage  has  been  satisfied, 
signed  by  the  mortgagee,  and  acknowledged  or  proved 
in  the  same  manner  as  a  deed. 

See  General  Forms,  below. 

MorteaisreH  of  Personal  Property. 

Chattel  mortgages,  unless  followed  by  an  immediate 
ail  I  continued  change  of  possession,  is  void  as  against 
C! editors,  subsequent  purchasers,  etc.,  unless  the  mort- 
gage itself  or  a  true  copy  thereof  is  filed  and  recorded 
ii\  the  office  of  the  county  court. 

Chattel  mortgages  are  valid  five  years  only  after  the 
filing  thereof,  against  creditors,  purchasers  or  mort- 
gagees m  good  faith. 

Foreclosure  may  be  effected  at  any  time. 

Removal  of  property  mortgaged  out  of  the  jurisdic- 
tion of  the  district  court  of  the  county  where  the  goods 
are  mortgaged  is  a  felony. 

See  General  Forms,  below. 

NEVADA. 

niortg'niS'eN  of  Real  Property. 

Acknowledgment.     Same  as  Deeds,  above. 

Execution.     Same  as  Deeds,  above. 

Foreclosure  is  effected  by  an  action  at  law  for  that 
purpose. 

Recording.     Same  as  Deeds,  above. 

Satisfaction  is  made  in  any  of  the  usual  forms. 
See  General  Forms,  below. 
JWortgrajjes  of  Personal  Property. 

Chattel  mortgages  are  void  as  against  third  parties, 
etc.,  unless  possession  of  the  property  mortgaged  is  de- 
livered to  and  retained  by  the  mortgagee.  The  excep- 
tion to  the  rule  is  growing  crops,  in  case  of  which  the 
mortgage  must  be  executed,  acknowledged,  and  recorded 
in  the  proper  office.     See  Deeds. 

See  General  Forms,  below. 

BfEW  HAlWPSHIRi:. 

W ortjfases  of  Real  Property. 

Acknowledgment.     Same  as  Deeds,  above. 

Executed  same  as  Deeds,  above,  with  conditions  ex- 
pressed and  stating  distinctly  the  sum  of  money  secured, 
etc.,  or  thing  to  be  done. 

Foreclosure  is  effected  :  i.  By  entry  and  possession 
for  one  year  under  process  of  law.  2.  By  peaceable  en- 
try upon  the  premises  and  unbroken,  actual  possession 
thereof  for  one  year,  and  a  publication  in  a  newspaper 
in  the  county  three  weeks,  stating  the  names  of  the  par- 
ties, the  date  of  the  mortgage,  a  description  of  the  prem- 
ises, the  time  of  taking  possession,  an'!  the  object 
thereof;  such  publication  must  be  more  than  six  months 
before  the  time  of  redemption  is  expired.  3.  By  publi- 
cation as  aforesaid,  by  the  mortgagee  in  actual  posses- 
sion, giving  notice  that  after  a  certain  specified  day,  not 
more  than  twenty-eight  days  after  the  last  publication, 
possession  is  to  be  holden  for  the  purpose  of  foreclosure, 
and  by  retaining  actual  possession  of  the  premises  for 
one  year  from  and  after  the  day  specified  in  the  notice 
or  publication.* 

Recording.     Same  as  Deeds,  above. 

Satisfaction  may  be  indorsed  on  the  mortgage,  thus: 
"I  discharge  the  within  mortgage."  {Signed)  ^^  C. 
D."  The  wife  need  not  join  ;  such  discharge  should  be 
entered  on  the  margin  of  the  record  of  the  mortgage  by 
the  register  of  deeds  of  the  county. 

See  General  Forms,  below. 
Mortjrng'es  of  Personal  Property. 

Chattel  mortgages  are  absolutely  void  as  to  third  par- 
ties, unless  the  property  or  goods  mortgaged  are  deliv- 
ered to  and  possession  had  and  retained  by  the  mort- 
gagee, or  unless  the  mortgage  is  recorded  in  the  office 
of  ihe  clerk  of  the  town  where  the  mortgagor  resides. 

If  a  firm  is  a  party,  any  partner  may  make  and  sub- 
scribe the  .iffidavit.  If  a  corporation  is  a  party,  it  may 
be  done  by  a  director  or  other  person  duly  qualified  and 
authorized.  Both  parties  must  make  and  subscribe  the 
following  affidavit,  which  must  be  indorsed  upon  or  an- 
nexed to  the  mortgage  and  recorded  therewith  : 

tt-G.  S.  853.    b-Nixon's  Digest,  611,  Ch.  557.    c-ld. 


State  of  New  Hampshire, county,  ss. 

We  severally  swear  that  the  foregoing  (above  or 
within)  mortgage  is  made  for  the  purpose  of  se- 
curing the  debt  {or  securing  the  indemnity,  or  per- 
formance, etc.)  specified  in  the  condition  thereof 
and  for  no  other  purpose  whatever,  and  that  said 
debt  {or  obligation,  etc.)  was  not  created  for  the 
purpose  of  enabling  the  mortgagor  to  execute 
said  mortgage,  but  is  a  just  debt  (or  obligation, 
etc.)  honestly  due  and  owing  from  the  mortgagor 
to  the  mortgagee.    So  help  us  God. 

Subscribed  and  sworn  to  before  me,  this  

day  of .  J.  P.,  Justice  0/  the  Peace. 

Foreclosure  is  effected  by  a  sale  of  the  property 

mortgaged  at  public  auction   at  any  time   after  thirty 

days  from  condition  broken.     Upon  notice,  in  writing, 

to  the  mortgagor^  at  least  four  days  prior  to  sale,  and 

pasting  notices  01^  sale  in  two  public  places  in  the  town. 

See  General  Forms,  below. 

NEW  JERSEY. 

Mortgages  of  Real  Property. 

Acknowledgment.     Same  as  Deeds,  above. 

Executed  same  as  Deeds,  above,  pursuing  the  com- 
mon law  form. 

Foreclosure  must  be  by  suit  in  equity. 

Married  women  must  join  in  the  mortgage. 

Recording.     Same  as  Deeds,  above. 

Redemption  cannot  be  effected  after  sale  under  a 
decree. 

Satisfaction  is  entered  by  the  clerk  of  the  county 
upon  application  of  the  mortgagor  or  person  satisfying 
the  mortgage  and  producing  the  mortgage  cancelled,  or 
a  receipt  thereon  duly  signed  and  acknowledged,  or  a 
separate  instrument  acknowledging  satisfaction,  duly 
executed  and  acknowledged. •> 

See  General  Forms,  below. 
Mortgages  of  Personal  Property. 

Chiittel  mortgages,  unless  accompanied  by  immediate 
delivery  and  followed  by  a  continued  possession  of  the 
property  mortgaged,  are  absolutely  void  as  against  cred- 
itors, subsequent  purchasers,  etc.,  unless  said  mortgage 
duly  acknowledged  as  deeds  are,  with  affidavit  of  con- 
sideration and  amount  due,  and  to  grow  due,  is  filed  in 
the  office  of  the  clerk  or  register,  if  any.  of  the  county 
where  the  mortgagor  resides,  or,  if  non-resident,  then 
where  the  property  is  at  the  time  of  its  execution  So 
recorded  it  remains  a  lien  until  cancelled  of  record. 

Foreclosed  at  any  time  after  breach  of  conditions. 

Chattel  mortgages  under  the  old  law  have  ceased  X» 
be  valid  against  creditors,  etc.,  unless  within  one  yeal 
from  March  25th,  1881,  the  mortgage  or  a  true  copy 
has  been  recorded  as  above.  If  so  recorded  it  remains  a 
lien  until  paid.  Wife  must  join  in  chattel  mortgage  on 
household  goods. 

NEW  YORK. 
Hfortsrases  of  Real  Property. 

Acknowledgment.     Same  as  Deeds,  above. 

Executed  same  as  Deeds,  above.  Absolute  convey 
ances,  which  by  any  other  instrument  appear  to  have 
been  intended  as  a  mortgage,  is  so  considered,  and  the 
recording  of  such  conveyance  has  no  effect  unless  such 
other  written  instrument  is  executed  therewith  and  at 
the  same  time.* 

Foreclosure.  Mortgages  containing  a  power  of  sale 
may  be  foreclosed  by  publication  and  service  of  notices 
without  the  intervention  of  the  court,  and  the  premises 
sold  at  public  auction  to  satisfy  the  mortgage  debt.' 
Mortgages  may  be  foreclosed  by  action  and  a  personal 
decree  obtained  in  such  action  against  the  mortgagor 
for  any  deficiency  of  the  debt  upon  sale  of  the  mortgaged 
premises. 

Married  women  arc  not  entitled  to  dower  as  against 
the  mortgagee  'for  purchase-money,  although  she  did 
not  unite  in  the  morigage.  But  where  such  lands  are 
sold  by  the  mortgagee  after  the  death  of  the  husband, 
the  widow  takes  her  interest  in  the  surplus.* 

Recording.     Same  as  Deeds, above. 

Redemption  is  not  allowed  after  a  mortgage  sale. 

Satisfaction  is  entered  in  any  of  the  usual  forms. 
Trnst  Deeds. 

Express  trusts  are  created  as  follows  :» 

1.  To  sell  lands  for  the  benefit  of  creditors. 

2.  To  sell,  mortgage,  or  lease  lands  for  the  benefit  of 
legatees,  or  for  the  purpose  of  satisfying  any  chars* 
thereon. 


p.  613.    d-i  R.  S.  746.     e-4  Id.  Ch. 
g'-See  Id.  723,  726, 


f-\'\  74* 


340 


CONVEYANCES. 


3.  To  teceive  the  rents  and  profits  of  lands,  and  ap- 
ply them  to  the  u&e  of  any  person  during  the  life  of  such 
person. 

4.  To  receive  the  rents  and  profits  of  lands,  and  to 
accumulate  them  for  the  benefit  of  minors. 

See  General  Forms,  below. 
9Iort|caK'e<«  of  Personal  Property. 

Chattel  mortgages  are  void  as  to  third  parties  unless 
they  are  accompanied  with  an  immediate  delivery  and 
a  continued  possession  of  the  property  or  goods  mort- 
gaged ;  or  unless  such  mortgage  is  filed  in  the  office  of 
the  town  clerk  where  the  mortgagor  resides  ;  or,  if  non- 
resident, then  in  the  town  the  property  so  mortgaged  is 
when  the  mortgage  is  executed. 

Chattel  mortgages  are  not  valid  after  one  year  unless 
within  thirty  days  preceding  the  expiration  of  each  year 
a  copy  of  such  mortgage  is  refiled,  together  with  a  state- 
ment of  the  amount  due  on  such  mortgage  at  the  date  of 
refiling.'' 

See  General  Forms,  below. 

NORTH  CAROMXA. 

Mort^Rg'e!*  ami  TruHt  Deeds  of  Real 
Property. 

Acknowledgment.     Same  as  Deeds,  above. 

Executed  same  as  Deeds;  Trust  Deeds,  above 

Foreclosure  is  effected  in  case  of  mortgage. 

Re-conveyance  is  made  in  case  of  trust  deeds. 

Recording.     Same  as  Deeds,  above. 

Satisfaction.  In  case  of  mortgage,  by  receipt  in- 
dorsed upon  the  mortgage  and  duly  recorded  ;  marginal 
entry  on  the  record  of  satisfaction  in  the  presence  of  the 
register;  or  by  separate  instrument  of  release  or  satis- 
faction duly  executed,  acknowledged,  and  recorded.  In 
case  of  tnist  deed,  by  a  reconveyance  of  the  property. 
See  Genek.\l  Forms,  below  ;  Thustees,  above. 

Mort^AK'^!*  of  Personal  Property. 

Chattel  cheap  mortgages  not  exceeding  three  hundred 
dollars  are  executed  in  the  usual  form.' 

Chattel  mortgages  must  be  recorded  in  the  county 
where  the  donor,  bargainer,  or  mortgagor  resides.  In 
case  he  is  a  non-resident  of  the  State,  then  in  the  county 
where  the  personal  estate,  or  a  part  of  the  same,  is  sit- 
uate ;  in  case  of  choses  in  action,  where  the  donor,  bar- 
gainer, or  mortgagor  resides. 

Chattel  mortgages  may  be  foreclosed  by  sale  of  the 
property  when  the  note  or  obligation  becomes  due,  or  at 
any  time  afterward. 

OHIO. 
Mortfcagre*'  of  Real  Property. 
Acknowledgment.     Same  as  Deeds,  above. 
Executed  same  as  Deeds,  above. 
Foreclosure  by  action  for  that  purpose  in  the  com- 
mon pleas  court. 

Married  women  need  not  join  with  their  husbands,  or 
vice  versa,  in  mortgages  of  their  separate  estate,  unless 
rclinquishraent  of  dower  is  sought. 

Lien  attaches  from  presentment  for  record,  and  in  the 
order  presented  to  the  recorder  of  deeds  for  record. 
Recording.  Same  as  Deeds,  above. 
Satisfaction  may  be  entered  on  the  mortgage  or  re- 
cord of  the  mortgage.  No  acknowledgment,  witness, 
or  seal  is  necessary.  When  entered  on  the  mortgage,  the 
recorder  should  enter  the  same  on  the  record  of  the 
mortgage  as  satisfied. 

See  General  Forms,  below. 
]N[ortg:(*s'es  of  Personal  Property. 
Chattel  mortgages  are  absolutely  void  as  to  third  par- 
ties unless  accompanied  by  immediate  delivery  and  con- 
tinued possession  of  the  property  mortgaged,  unless 
such  mortg.ige  is  deposited  with  the  clerk  of  the  town- 
ship where  the  mortgagor  resides  :  if  he  is  a  non-resident, 
ien  with  the  clerk  of  the  township  in  which  the  prop- 
erty was  when  mortgaged.  In  townships  where  the 
affice  of  recorder  of  the  county  is  kept,  the  mortgage 
must  be  deposited  with  him. 

OREGOTV. 

Morteai^es  of  Real  Property. 

Acknow^ledgment.     San>.-;  as  Deeds,  above. 

Executed  same  as  Dbei>a,  above  An  absolute  con- 
Teyance  intended  as  security  is  deemed  a  mortgage. 

Foreclosure  is  effected  by  suit  for  that  purpose  in 
equity,  in  which  the  plaintiff  obtains  personal  judgntent 
for  any  balance  due  after  the  property  is  sold. 

Recording.     Same  as  Deeds,  above. 

ll-Laws  1833,  Ch.  279  -Laws  1873,  Ch.  501.  i-Laws 
1870-71,  Ch.  277-  J-G.S.651,652.  k-Jd.;866,p.39,g6». 


Redemption.  A  decree  of  foreclosure  bars  tka 
equity  of  redemption. 

Satisfaction  or  discharge  may  be  by  entry  of  the  mort- 
gagee, his  assignee,  or  personal  representative  on  the  mar- 
gin of  the  record  of  the  mortgage,  acknowledging  satisfac- 
tion of  the  mortg.igc,  in  presence  of  the  county  clerk,  or 
his  deputy,  who  must  subscribe  the  same  as  a  witness. 
Such  entry  has  the  same  effect  as  a  deed  of  release  duly 
executed,  acknowledged,  and  recordedj 

See  General  Forms,  below. 

mortiera^'es  of  Personal  Property. 

Chattel  mortgages  or  copies  thereof  must  be  filed  with 
the  county  clerk. 

Chattel  mortgages  are  valid  for  one  year  from  date, 
but  may  be  renewed  and  extended  upon  the  mortgagee, 
hisagent,  or  attorney,  making  and  affixing  to  the  instru- 
ment, or  copy,  on  file,  an  affidavit  setting  forth  the 
mortgagee's  interest,  within  thirty  days  next  preceding 
the  expiration  of  the  year  from  the  filing  of  the  same. 

When  the  consideration  of  the  mortgage  is  less  than 
five  hundred  dollars,  the  mortgaged  property  may  be 
sold  by  the  sheriff  or  any  constable  of  any  county  in 
which  such  mortgage  has  been  filed,  upon  written  re- 
quest of  the  mortgagor,  his  agent  or  attorney.'' 

PENNSYI.VANIA. 

Mort(;a;;es  of  Real  Property. 

Acknowledgment.     Same  as  Deeds,  above. 

Executed  same  as  Deeds,  above.  An  absolute  con- 
veyance as  security  is  deemed  a  mortgage.  A  mortgage 
is  usually  accompanied  by  a  bond  and  warrant  to  con- 
fess judgment  thereon,  which  may  be  entered  in  any 
court  at  any  time  and  execution  issued  when  any  part 
of  the  debt  or  interest  is  due. 

Foreclosure  is  effected  by  writ  of  scire  yiacias,  SlO 
cording  to  statute.  This  cannot  be  sued  out  within  a 
year  after  the  mortgage  becomes  due,  unless  it  contains 
an  express  waiver  of  delay.  Ejectment  is  rarely  r» 
sorted  to  on  account  of  the  equity  of  redemption. 

Lien  of  a  mortgage  (except  for  purchase-money) 
dates  from  the  time  of  recording  it.  When  a  mortgage 
is  prior  in  time  to  all  other  liens  except  other  mortgages 
and  ground  rents,  the  lien  is  not  discharged  by  a  sale 
under  execution  upon  any  other  lien.  Otherwise,  it  is 
discharged  by  any  judicial  sale. 

Married  woman  need  not  join  in  a  mortgage  of  her 
husband's  property  unless  in  fraud  of  her  rights.  A 
sheriff's  sale  of  the  mortgaged  property  discharges  her 
dower. 

Recording.     Same  as  Deeds,  above. 

Redemption  need  not  be  provided  for  in  writing,  but 
may  be  proved  by  oral  testimony. 

Satisfaction  is  entered  by  record  in  the  usual  form. 
See  Chattel  Mortgages,  below. 

See  General  Forms,  below. 

nortg^ag'es  of  Personal  Property. 

Chattel  mortgages  are  little  used  in  Pennsylvania,  and 
to  be  valid  against  third  parties  must  be  accompanied 
by  delivery  of  mortgaged  goods  to  mortgagee. 

See  Acknowledgment,  Execution,  etc. 

The  following,  other  than  real  estate,  can  be  mort- 
gaged, under  act  of  .A.ssembly : — Leasehold  interests  in 
collieries,  mining  lands,  manufactories  or  other  prem- 
ises, with  buildings,  fixtures  and  machinery  belonging 
to  lesse;-s  ;  iron  ore  mined  and  prepared  for  use,  pig- 
iron,  rolled  or  hammered  iron  or  steel  tn  sheets,  bars  or 
plates,  nails,  boilers,  engines,  oil,  gas  and  artesian  well 
supplies,  steel  and  iron  castings  not  in  place,  petroleum 
crude  or  refined  in  barrels,  tanks  or  reservoirs,  roofing 
and  manufactured  slate,  quarried  slate  unmanufactured, 
asphaltum  blocks  and  all  m.iterials  used  in  manufacture 
thereof,  cement  in  bags,  barrels,  or  other  form,  an  i  all 
materials  usi.d  in  the  manufacture  thereof;  in  the  fol- 
lowing form  duly  acknowledged  : — 

To  all  to  whom  these  presents  shall  come, 
greeting : 

Know  ye  that  M.  R.  is  indebted  to  M.  E.  in  the 
sum  of dollars  and cents. 

Now  for  securing  the  payment  of  the  said  debt 
and  the  interest  from  the  date  hereof,  the  said 
M.  R.  does  hereby  sell,  assign,  and  transfer  to 
the  said  M.  E.  all  the  goods,  chattels,  and  prop- 
erty described  in  the  following  schedule,  viz. : 

Said  property  now  being  and  remaining  in  th» 
possession  of  M.  R.  {or  M.  E.,  as  agreed  upon). 

Provided  always,  and  this  mortgage  is  on  the 

express  condition  that  if  tbc  S4td  M.  %-  «h^l  pay 


CONVEYANCES. 


34' 


to  said  M.  E.  the  sum  of ,  with  interest,  as 

follows,  viz., ,  which  said  sum  and  interest 

the  said  M.  R.  hereby  covenants  to  pay,  then  this 
transfer  to  be  void  and  of  no  effect ; 

But  in  case  of  non-payment  of  said  sum,  at  the 
time  or  times  above   mentioned,   together  with 

iiterest, ,  the  said  M.  E.  may  give  to  the  said 

M.  R.,  or  to  the  person  in  possession  of  the  prop- 
erty, claiming  the  same,  written  notice  as  required 
by  law  of  his  intention  to  foreclose  the  mortgage 
for  breach  of  condition  thereof,  and  if  the  said 
sum  is  not  then  paid,  the  said  M.  E.  shall  have 
full  power  and  authority  to  enter  the  premises 
of  M^  R.,  and  any  other  place  or  places  where 
the  goods  and  chattels  aforesaid  may  be,  and 
take  possession  of  said  property,  and  sell  the 
same  according  to  law,  and  the  avails,  after  de- 
ducting all  expenses  of  the  sale  and  keeping  of 
the  said  property,  to  apply  in  payment  of  the 
above  debt ; 

If  from  any  cause  said  property  shall  fail  to 
satisfy  said  debt,  interest,  costs,  and  charges,  the 
said  M.  R.  covenants  and  agrees  to  pay  the  de- 
riciency  ; 

In  witness  whereof,  M.  R.  has  hereunto  set  his 

hand  and  seal  the day  of ,  in  the  year  of 

our  Lord  one  thousand  eight  hundred  and , 

»tc.  {Signed)    M.  R.     [AVa/.J 

>aled  and  delivered     ) 

in  presence  of  W.  S.  J 

Parties  may  include  in  the  mortgage  covenants  not 
inconsistent  with  the  provisions  of  the  act. 

Assignments  and  releases  may  be  by  instrument 
in  writing,  signed  by  the  mortgagee,  or  his  agent,  and 
recorded. 

Foreclosure  is  efrected  after  bre.^ch  upon  thirty  days' 
notice,  either  personally  or  by  public  advertisement  in- 
serted weekly  four  times,  CiC,  and  sale  of  the  mort- 
gaged property  at  public  sale. 

Where  goods  remain  in  possession  of  the  mortgagor, 
the  mortgage  must  be  recorded  in  the  recorder's  office  of 
the  county  where  goods  are. 

Lien  takes  effect  from  the  time  of  filing  and  indexing 
the  mortgage. 

Mortgagor  must  disclose  to  any  person  or  corpora- 
lion  about  to  purchase  the  fact  of  property  being  so 
mortgaged,  the  amount  of  mortgage,  pl.ice  of  recording, 
and  time  of  its  maturity,  under  penalty. 

Redemption  may  be  at  any  time  before  foreclosure, 
on  payment  of  the  debt. 

Renewal.  Such  mortgages  are  good  for  only  three 
months  after  maturity  of  the  obligation  they  secure  ;  but 
time  may  be  extended  one  year,  by  mortgagee  filing  a 
statement  of  his  interest  within  those  tliree  months. 

Satisfaction  is  entered  in  like  manner  as  mortgages 
«f  real  estate. 

RHOnE  ISLAND. 

Mortsraeres  of  Real  Property. 

Acknowledgment.     Same  as  Deeds,  above. 

Executed  same  as  Deeds,  above. 

Foreclosure  is  effected  by  sale  under  a  power  given 
in  the  mortgage  after  ten  or  twenty  fas  stipulated  there- 
in) (lays'  notice  by  advertisement  in  a  public  newspaper, 
twenty  days  after  default.  In  the  absence  of  such  power 
the  mortgagee  must  foreclose  by  bill  in  equity,  usually 
within  a  year  :  or  he  may  obtain  possession  of  the  real 
estate  by  suit  at  law  in  six  or  nine  months.  Possession 
of  real  estate  may  also  be  taken  by  the  mortgagee  by 
peaceable  and  open  entry  in  the  presence  of  two  wit- 
nesses, whose  certificate  thereof  must  be  recorded. 

Recorded  in  the  town  clerk's  office  of  the  town 
wherein  the  real  estate  is  situated. 

Redemption.  When  foreclosed  by  action  or  suit, 
or  possession  obtained,  it  may  be  had  within  three  years. 

Satisfaction  or  discharge  may  be  made  on  the 
face  of  the  record  by  the  mortgagee,  or  by  a  separate 
instrument  of  satisfaction  or  release. 

See  General  Forms,  below. 


Vfort^^acoM  of  Pcr<«onaI  Property. 

Chattel  mortgages  are  executed,  acknowledged,  anA 
recorded  same  as  mortgages  of  real  property.  If  the 
mortgagee  takes  possession  of  the  chattels,  that  will  dis- 
pense with  recording. 

Foreclosure,  redemption,  and  satisfaction.  Samr 
as  other  mortgages. 

See  General  Forms,  below. 
SOUTH  CAROLINA. 
IWorts'asroM  of  Real  Property. 
Acknowledgment.     Same  as  Deeds,  above. 
Executed  same  as  Deeds,  above. 
Foreclosure  is  effected  by  an  ordinary  suit  for  that 
purpose. 

Recording  must  be  within  forty  days  after  exe- 
cution. 

Satisfaction  is  made  and  entered  of  record  in  any 
of  the  usual  forms. 

See  General  Forms,  below. 
Wlortsrases  of  Per!«oiial  Property. 
Chattel  mortgages  may  be  in  the  usual  form. 
They  are  enforced  by  the  mortgagee  taking  possession 
of  the  chattels  and  selling  the  same  subject  to  the  terras 
of  the  mortgage,  and  returning  any  surplus  proceeds  to 
the  mortgagor. 

See  General  Forms,  below. 

TENNESSKE. 

Mortg'ag'es  of  Real  Property. 

Acknowledgment.     Same  as  Deeds,  above. 
Execution.     Same  as  Deeds,  above. 
Foreclosure  by  suit  and  decree  in  accordance  witk 
the  terms  of  the  instrument. 
Registration.     Same  as  Deeds,  above. 
Satisfaction  is  entered  in  any  of  the  usual  forms. 
See  General  Forms,  below. 
Ittortg'ag'es  of  Personal  Property. 
Chattel  mortgages  are  made  in  the  usual  form  and 
registered  in  the  county  where  the  mortgagor  resides; 
if  a  non-resident  of  the  State,  then  registered    in  the 
county  where  the  chattels  are  situated  at  the  time  of 
executing  the  mortgage. 

See  General  Forms,  below. 

TEXAS. 

Morts:ag:eM  of  Real  Property. 

Acknowledgment.     Same  as  Deeds,  above. 

Executed  same  as  Deeds,  above. 

Foreclosure  is  effected  by  suit  in  the  district  court, 
with  prayer  for  judgment  and  sale. 

Fraudulently  dealing  with  the  mortgaged  personalty 
so  as  to  delcat  the  lieu  is  a  penal  offence. 

Recording.     Same  as  Deeds,  above. 

Redemption  may  be  effected  before  foreclosure  and 
sale,  but  not  after. 

See  General  Forms,  below. 

Mortjfag-eH  of  Personal  Property. 

See  General  Forms,  below. 

VERMONT. 

Mortfrajjes  of  Real  Property. 

Acknowledgments.     Same  as  Deeds,  above.' 

Executed  same  as  Deeds,  above. 

Foreclosure  is  effected  by  proceedings  in  the  chan- 
cery court,  or  by  action  in  ejectment  on  application  ol 
defendant.  Title  passes  to  mortgagee,  if  land  is  not  re- 
deemed within  time  fixed  in  decree — one  year  wliere 
security  is  sufficient,  less  time,  when  not  so,  at  discretion 
of  court. 

Recording.     Same  as  Deeds,  above 

Redemption.     See  Foreclosure,  above. 

Satisfaction,  release,  or  discharge  may  be  mads 
by  the  mortgagee,  his  assignee  or  personal  represent.i- 
tive,  indorsing  an  acknowledgment  thereof  on  the 
mortgage  under  his  hand  and  seal,  or  by  entry  of  satis- 
faction, etc.,  on  the  margin  of  the  record,  or  by  sepa- 
rate instrument,  duly  acknowledged  and  recorded,  or  by 
a  quit-claim  deed  of  the  mortgaged  premises. 
See  General  Forms,  below. 

Dlortsraeres  of  Personal  Property. 

Chattel  mortgages  are  absolutely  void  as  against 
creditors,  subsequent  purchasers,  and  incumbrances, 
etc.,  unless  accompanied  by  an  immediate  delivery  and 
continued  change  of  possession  of  the  property  mort- 


34* 


CONVEYANCES. 


gaged,  or  excqot  in  case  of  machinery  attached  to  and 
used  in  any  shop,  mill,  printing  office,  or  factory,  in 
which  case  the  mortgage  must  be  executed,  acknowl- 
edged and  recorded  in  the  same  manner  as  mortgages  of 
real  property,  and  foreclosed,  assigned,  and  discharged 
«n  the  same  manner. 

They  must  be  recorded  in  the  office  of  the  clerk  of  the 
town  where  the  property  is  situated,  etc. 

Recording  is  equivalent  to  a  continued  change  of  pos- 
session. 

See  General  Forms,  below. 
VIROIXIA. 
IHort^agref*  and  Trust  UeedH  of  Real  and 
I  Personal  Property. 

'     Mortgages  are  superceded  in  general  practice  by  deeds 
f  trust.     See  Wbst  Virginia,  below. 

See  Deeds  ;  Deeds  of  Trust,  above. 

West  Virgrinfa. 

'Mortg:a§re!<»  and  Deeds  oT  Trnst  or  Real 

and  Personal  Property. 

Acknowledgment.     Same  as  Deeds,  above. 

Executed  same  as  Deeds,  above,  but  contain  a  clause 
of  defeasance. 

Foreclosed  or  enforced  by  a  decree  of  a  court  of 
equity.  No  time  is  specified  for  such  foreclosure  or  en- 
forcement. 

Married  women  should  be  joined  in  the  convey- 
ance in  order  to  bar  their  dower  and  homestead  exemp- 
tion, except  when  the  conveyance  is  given  to  secure 
purchase-money. 

Recording.     Same  as  Deeds,  above. 

Release  or  satisfaction  is  effected  by  a  short  deed 
©f  release,  executed  and  acknowledged  in  the  following 
form  :J 

I,  C.  D.,  hereby  release  a  mortgage  {or  deed  of 
trust)  made  by  A.  B.  to  me  {or  E.  F.,  trustee,  or  G. 

H.,  and  assigned  to  me),  dated  the  day  of , 

and  recorded  in  the  clerk's  office  of  the  county 

court  of county,  ^Vest  Virginia,  in  deed  book 

,  page .  {Signed )      C.  D.     {Seal.l 

Acknowledged  before  the  subscriber,  this 

day  of .  J.  P.,  7uitice  of  the  Peace. 

{Or  N.  P.,  Notary  Public,  etc.) 

Mortgages  or  trust-deeds  of  personal  property  are 
the  s.ime  as  those  in  real  estate,  where  possession  is  not 
transferred. 

WISCOXSIW. 
Mortffajres  of  Real  Property. 

Acknowledgment.     Same  as  Deeds,  above. 

Executed  same  as  Deeds,  above,  except  the  addi- 
tion of  conditions,  etc.  Any  conveyance  intended  as  a 
security  is  deemed  a  mortgage. 

Foreclosure.     Strict  foreclosure  is  not  allowed. 

Married  ^vome^  need  not  join  in  a  purchase-money 
mortgage  m  order  to  bar  dower.  No  mortgage  of  a 
homestead  is  valid  unless  the  wife  joins  in  its  execution. 

Recording,     Same  as  Dkeds,  above. 

Redemption  may  be  effected  within  one  year  after 
judgment. 

Satisfaction,  release,  or  discharge  of  the  mortgage 
may  be  by  cancellation,  by  receipt  indorsed  thereon,  by 
an  entry  on  the  margin  of  the  record,  signed  by  the 
mortgagee,  his  assignee,  or  personal  representative,  etc., 
in  presence  of  the  register  of  deeds. 

On  proof  of  payment,  the  circuit  court  may  order  the 
mortgage  discharged,  and  order  a  record  of  such  dis- 
charge to  be  made  by  the  register  of  deeds. 
See  General  Forms,  below. 
Mortsragres  of  Personal  Property. 

Chattel  mortgages  are  executed  in  the  ordinary  form, 
nnd  will  be  void  as  against  third  parties  unless  accom- 
panied by  the  immediate  delivery  and  continued  change  of 
|iosse.ssion  of  the  mortgaged  property,  or  unless  the  mort- 
gage or  a  true  copy  thereof  be  filed  with  the  clerk  of  the 
town  where  the  mortgagor  resides  ;  if  the  mortgagor  is 
a  non-resident,  then  such  mortgage  or  copy  must  be  filed 
m  the  town  where  the  property  was  when  it  was  ex- 
ecuted. Chattel  mortgage  of  exempt  property  must  be 
signed  by  the  wife,  in  presence  of  two  witnesses. 

Such  filing  ceases  to  be  notice  at  the  expiration  of  two 
years,  unless  within  thirty  days  next  preceding  the  ex- 
piration of  the  .second  year  the  mortgagee,  or  his  agent, 
annexes  to  such  mortgage  or  copy  an  affidavit  setting 
forth  the  mortgagor's  interest  in  the  properly  mortgaged. 
It  may  thus  be  renewed  every  two  years  afterwards. 

There  is  no  time  specified  in  which  to  sell  the  prop- 
erty after  breach  of  condition  to  satisfy  the  debt  secured. 


HORTGAGES  OF  REAI.  PROPERTY-. 
VARIOUS  DETAILS. 

Introductions  In  Mort((^ases  of  Real 
Property. 

See  Deeds,  above. 

The  introduction  to  a  conveyance,  deed,  lease,  mort- 
gage, etc.,  is  called  the  "  Testatum"  clause.  See  the 
text  preceding  Deed  Forms,  above. 

A.  B.  {or  A.  B.  and  W.  B.  his  wife  [conveys,  orj| 
mortgages,  etc.  

I  {or  we,  A.  B.,  of ,  and  W.  B.  his  wife),  for  a 

consideration,  etc.  (convey,  or)  mortgage,  etc. 

This  (conveyance,  or  indenture,  or  mortgage,  bipar- 
tite, tripartite,  quadripartite,  etc.),  witnesseth  : 
That,  etc.  

This  Cconveyance,  or  indenture,  or  mortgage,  etc.), 

made  this day  of ,  witnesseth : 

That,  etc.  

This  (conveyance,  or  mortgage,  etc.),  made    this 

day  of ,  by  A.  B.,  of ,  to  C.  D.,  of , 

witnesseth  : 

That,  etc.  

This  ^conveyance,  or  indenture,  or  mortgage,  etc.), 

made  this  day  of ,  in  ,  by  A.  B. ,  of 

county.in  the  State  ((jr  Commonwealth:  of , 

farmer,  to  C.  D.,  of county,  in  the  State  {or 

Commonwealth)  of ,  merchant,  witnesseth  : 

That,  etc.  

Know  all  men  by  these  presents: 
That  this  (conveyance,  or  indenture,  or  mortgage, 
etc.,  as  aioz'e).  

Know  all  men  by  these  presents  : 

That  A.    B.,   of  ,   for    a   consideration   or 

,  etc.,  the  receipt  of  which,  etc.,  has  con- 
veyed and  mortgaged,  and  does  by  these  pres- 
ents convey  and  mortgage  unto  C.  D.,  of ,  etc. 

This  (conveyance,  or  indenture,  or  mortgage,  etc  ), 

made  and  entered  into  this day  of ,  by  and 

between  A.  B.,  of county,  and  the  State  of 

,  party  of  the  first  part,  and  C.   D.,  of  — 

county,  in  the  State  of ,  of  the  second  part. 

witnesseth : 

That,  etc. 

Saving  and  excepting,  etc. 


To  all  to  whom  these  presents  may  come,  greet- 
ing tor  To  all  whom  it  may  concern) : 

Know  ye : 

That  this  (conveyance,  or  indenture,  or  mortgage, 
etc.),  by  and  between  the ,  a  corporation  exist- 
ing under  the  laws  of  the  State  (or  Commonwealth) 

of ,  of  the  first  part,  and  C.  D.,  E.  F.,  and  G. 

H.,  a  company  doing  business  under  the  firm- 
name  and  style  of  the  D.,  F.,  H. manufac- 
turing company,  of  the  second  part,  witnesseth  . 

That,  etc. 

Premises  in  Itlort^agres  of  Real 
Property. 

See  other  Conveyances. 

I.  Statement  of  Parties. 

See  Deeds,  ante,  p.  299,  above. 

2.  Recitals  for  Explanation. 

See  Deeds,  ante,  p.  299,  above. 

3.  Descriptions  of  Property  Mortgaged,  etc., 

with  Exceptions,  etc. 

See  Deeds,  ante,  p.  300,  above. 

Habendum  in  Mort^ag^es  of  Real 
Propert.y. 

See  Deeds,  above. 
The  habendum  limits  and  defines  what  estate  th» 
grantee  is  to  have  in  the  premises  conveyed,  as,  a^ 
estate  for  lives,  years,  or  a  less  period ;  an  absolute  or 
conditional,  joint  or  several,  restricted,  or  limited  estate, 
etc.,  etc.  In  mortgagee  the  estate  of  the  mortgagee  «!•• 
pcnds  upon  some  condition  or  default,  etc. 
See  Conditions,  etc.,  below, 

j-Codc  Ch.  76,  §§i,  s. 


CONVEYANCES. 


3Al 


Habrndum — In  Fee  StMPLK,  etc. 
To  have  and  to  hold  the  same  forever. 
Provided  always,  etc. 

Another. 
To  have  and  to  hold  the  same,  together  with 
the   appurtenances  and   every  part  thereof,  for- 
ever. 
Upon  the  following  conditions,  etc. 

Another. 
To  have  and  to  hold  the  same,  with  the  appur- 
tenances, unto  the  said  C.  D.,  his  heirs  and  as- 
signs, in  fee  simple,  forever. 

Provided,  however.  That,  etc. 
■  •  Another. 

To  have  and  to  hold  the  same,  together  with 
All  and  singular  the  tenements,  hereditaments 
and  appurtenances  thereunto  belonging  or  in 
anywise  appertaining,  unto  the  said  party  of  the 
second  part,  his  heirs  and  assigns,  forever. 

Now  if  said  [or  party  of  the part)  shall, 

etc. 

Another. 
To  have  and  to  hold  the  said  messuage  or  tene- 
ment and  tract  of acres  of  land,  heredita- 
ments and  premises  hereby  granted  or  mentioned 
or  intended  so  to  be,  with  the  appurtenances  and 
every  part  thereof,  unto  the  said  C.  D.,  his  heirs 
and  assigns,  to  the  only  proper  use  and  behoof 
of  the  said  C.  D.,  his  heirs  and  assigns  forever. 

Provided  always,  and  these  presents  are  upon 
these  express  conditions,  that,  etc. 
Redflendnm  or  Reservation  In  Mort> 
Snges  of  Keal  I*ro|)crty. 
See  other  Conveyances. 
The  reddendum  (or  reservation)  is  that  clause  in  a 
conveyance,  deed,  lease,  mortgage,  etc.,  by  which  the 
grantor  reserves  something  new  to  himself  out  of  that 
which  he  granted  before.     It  usually  follows  the  haben- 
dum. 

See  Reddendum  in  Deeds,  p.  300,  above,  and  Red- 
dendum IN  Leases,  p.  314,  above. 
Conditions  and  Provisos  in  Mortgrajsres 
of  Real  Property. 
See  Deeds,  above. 
The  condition  in  a  conveyance  or  deed,  deed  of  trust, 
lease,  mortg.ige,  etc.,  is  a  qualification  or  restriction  an- 
nexed to  the  conveyance,  whereby  it  is  provided  that  in 
case  a  particular  event  does  or  does  not  happen,  or  in  case 
the  grantor  or  grantee  does  or  omits  to  do  a  particular 
act,  an  estate  shall  commence,  be  enlarged,  or  be  de- 
feated. "Subject  to,"  or  "  Subject,  nevertheless,  to," 
or  "On  condition,"  "Provided,"  "  Provided  always," 
"  Provided  nevertheless,"  etc.  Thus  the  property  con- 
veyed may  be  subject  to  the  payment  of  an  annuity,  an 
easement,  an  incumbrance,  a  mortgage,  or  other  condi- 
tion, qualification,  restriction,  etc. 

See  Description,  etc.,  with  Exceptions,  and  Ha- 
bendum and  Reddendum,  above  ;  Mortgages,  Trust 
Deeds,  bdow ;  and  Conditions  and  Provisos  in 
Leases,  ante. 

Covenants  in  IWortsragres  of  Real 
Property. 
See  Deeds,  above. 
Covenant — Assignment. 
See  Assignment — Power  to  Assign,  below. 
Cnvr.NANT — Assurance,  etc. 
That  after  default  shall  be  made  in  payment  of 
said  sum  and  interest,  or  any  part  thereof,  said 
A.  B.  ,his  heirs,  and   every  other  person  having 
or  claiming  any  right,  title,  or  interest  in  said 
pre.nises,  or  any  part  thereof,  shall,  at  the  costs 
and  charges  of  said  A.   B.,  make,   execute,  and 
deliver  unto  said  C.  D.,  his  heirs,  executors,  ad- 
ministrators,  or   assigns,   upon    lawful   demand 
therefor,  all  and  every  further  conveyance,  deed, 
and   assurance   whatsoever    for   the   better  and 
more  perfect  assuring  and  confirming  said  prem- 
ises unto  him,  them,  or  any  of  them  (freed  and 
discharged  from  any  .^nd   all  conditions  and   provisos 
hereinbefore  contained  for  the  redemption  of  said  prem- 
ises, and  all  other  equity  of  redemption  whatsoever.) 
Covenant — Default. 
See  Entrv,  Sale,  etc.,  below. 
Covenant — Receipt,  Good,  etc. 
See  CovBNANT— Recbipt,  etc.,  below. 


Covenant — Enjoyment  op  Premises  Untii. 
Default. 
That  until  default  shall  be  made  in  the  pay- 
ment of  said  sum  of dollars,  and  interest  ion. 

the  same,  as  aforesaid,  or  some  part  thereof,  con- 
trary to  the  true  intent  and  meaning  of  these 
presents,  it  shall  and  may  be  lawful  for  said  A. 
B.,his  heirs  and  assigns,peaceably  and  quietly  to 
hold  and  enjoy  said  premises,  with  their  appur- 
tenances, and  receive  the  rents  and  profits  there- 
of, to  his  (and  iheir)  own  use  and  benefit,  without 
any  interruption  or  hindrance  whatever  by  said 
C.  D.,  his  heirs  or  assigns,  or  any  other  person  or 
persons  whomsoever,  lawfully  claiming  from  or 
under  hitn  or  them. 

Another. 
That  said  A.  B.,  his  heirs,  etc.,  shall  peaceably 
and  quietly  hold  and  enjoy  said  premises,  with 
the  appurtenances,  and  collect  and  receive  the 
rents,  issues,  and  profits  thereof,  to  his  and  their 
own  proper  use  and  behoof,  without  any  account 
to  be  made  or  given  touching  or  concerning  the 
same,  and  without  disturbance  or  hindrance  of  or 
by  said  C.  D.,  his  heirs,  executors,  administra- 
tors, or  assigns,  or  either  or  any  of  them,  until 
default  shall  be  made  in  payment  of  said  sum  of 
dollars,  and  interest,  or  some  part  thereof. 

Another. 

That  until  default  in  the  payment  of  said  sum 
or  interest,  or  other  default  herein  provided,  said 
mortgagee  shall  have  no  right  to  enter  and  take 
possession  of  said  premises. 

Covenant — Entrv  on  Default. 

That  in  case  default  shall  be  made  in  the  pay- 
ment of  said  sum  of dollars  or  interest,  or 

any  part  thereof,  contrary  to  the  conditions,  cov- 
enants, or  provisions  herein,  for  the  payment 
thereof,  then  and  from  thenceforth  it  shall  and 
may  be  lawful  to  and  for  said  C.  D.,  his  heirs  and 
assigns,  to  enter  said  premises,  and  the  same 
thenceforth  quietly  to  hold  and  enjoy,  and  to  re- 
ceive and  take  all  the  rents,  issues,  and  profits 
thereof,  to  his  and  their  own  use  and  benefit, 
without  any  disturbance  or  interruption  what- 
ever by  or  from  said  A.  B.,  his  heirs,  or  assigns, 
or  any  other  person  or  persons  whomsoever;  and 
that  fraely  acquitted  and  discharged  from  and 
against  all  incumbrances  whatsoever. 

Another — (Mortgage  of  Leased  Premises). 

That  it  shall  and  may  be  lawful  for  said  C.  D., 
his  heirs,  executors,  etc.,  or  any  of  them,  imme- 
diately from  and  after  any  breach  or  default  made 
in  the  conditions  or  provisos  aforesaid,  to  entei 
into  and  upon  said  premises,  and  every  part 
thereof,  with  the  appurtenances,  and  the  same 
from  thenceforth  (under  the  rents,  covenants,  condi- 
tion>  and  agreements  in  said  lease  reserved  and  con- 
'.nincd),  to  have,  hold,  and  enjoy,  and  the  rents, 
issues  and  profits  thereof,  and  every  part  and 
parcel  thereof,  to  have,  receive,  and  take  (for  and 
during  all  the  residue  and  remainder  of  said  term  of 
by  said  lease  granted,  and  then  to  come  and  unex- 
pired), without  any  disturbance,  hindrance,  mo 
lestation,  or  obstruction  whatsoever,  by  said  A. 
B.,his  heirs,  executors,  administrators  or  assigns, 
or  any  of  thern,  or  any  other  person  or  persons 
whomsoever. 

Covenant — Fire  Clause. 

That  said  party  of  the  first  part  shall  keep  the 
buildings  erected  and  to  be  erected  on  the  prem- 
ises above  conveyed  insured  against  loss  by  fire, 
and  assign  the  policy  and  certificates  thereof  to 
said  party  of  the  second  part,  his  executors,  ad- 
ministrators, or  assigns. 

That  in  default  thereof  said  party  of  the  second 
part,  his  executors,  administrators,  or  assigns, 
shall  effect  such  insurance,  and  the  premium  and 
premiums,  etc.,  paid  for  effecting  the  same,  shall 
be  a  lien  on  said  mortgaged  premises,  added  to 
the  amount  of  said  bond  or  obligation,  and  se- 
cured by  these  presents. 

Covenant — Incumbrances  Free  From. 

That  said  premises,  and  all  and  singular  the  ap- 
purtenances hereinbefore  mentioned  and  con- 
veyed, are  free  from  all  incwmbranccs  of  wh^t 
nature  or  kind  soever. 


344 


CONVEYANCES. 


Anothu — When  Lkasfd  Premises  are  Mort- 
ga(;hi>. 

That  said  premises,  and  all  and  singular  the 
sppurtenances  hereinbefore  mentioned  and  as- 
signed, now  are,  and  from  henceforth  during  the 

residue  of  said  term  of ,  by  said  lease  granted, 

shall  rrmain  and  continue  unto  said  C.  D.,  his  ex- 
ecutors, etc.,  discharged  and  free  from  all  charges 
and  incumbrances  of  all  and  every  kind  and  na- 
ture whatsoever. 

That  the  rents  and  covenants  in  said  lease  re- 
served and  contained,  which  from  any  such 
breach  or  default  in  the  payment  of  the  money 
according  to  the  condition  or  proviso  aforesaid, 
shall  grow  due  on  the  tenant's  and  lessee's  part 
and  behalf,  to  be  paid  and  performed,  and  also 

the  lease  bearing  date  the day  of ,  made 

by  said ,  of  the  hereby  mortgaged  premises, 

which  rent,  from  and  after  any  such  breach  or 
default  shall  happen  as  aforesaid,  shall  become 
due  and  payable  (and  be  forfeited)  unto  said  C.  D., 
his  executors,  administrators,  and  assigns. 

Covenant — Lease  Mortgacied  is  Valid. 

That  said  lease  at  the  time  of  the  (execution,  or) 
sealing  and  delivering  of  these  presents  is  a 
good,  sufficient,  valid  and  effectual  lease  in  law  : 
that  it  is  unforfeited  and  unsurrendered,  and  that 
said  C.  D.  shall  hold  and  enjoy  said  premises  for 
and  during  the  remainder  of  said  term  herein 
granted. 

Covenant — Payment  of  Money. 

That  said  A.  B  ,  for  himself,  his  heirs,  execu- 
tors, and  administrators,  does  covenant,  promise, 
and  agree,  to  and  with  said  C.  D.,  his  executors, 
administrators,  and  assigns,  that  he  shall  and 
will  vv^ell  and  truly  pay  or  cause  to  be  paid  said 

sum  of dollars,  with  interest  for  the  same, 

after  the  rate,  and  at  the  time  and  in  the  manner 
above  limited  for  the  payment  thereof,  and  ac- 
cording to  the  true  intent  and  meaning  of  the 
above-written  condition  and  proviso. 

Covenant — Payment  of  Taxes,  etc. 

That  said  A.  B.,his  heirs,  executors,  and  ad- 
ministrators, shall  and  will,  from  time  to  time, 
and  at  all  times  hereafter,  and  until  the  sum  of 

doUais,  and  interest  thereon,  shall  be  fully 

paid  unto  said  C.  D.  as  aforesaid,  pay  and  dis- 
charge all  ^nd  all  manner  of  taxes  and  assess- 
ments which  shall  be  laid  or  assessed  thereupon, 
or  upon  any  part  thereof,  or  upon  said  C.  D.,  his 
executors,  administrators,  or  assigns,  for  or  in 
respect  thereof,  or  any  part  of  the  same,  by  au- 
thority of  the  (Congress  of  the  United  States,  general 
as<iembly,  or  legislature,  or  court,  or  council,  etc.,  etc., 
of  the  commonwealth,  (^r  State,  or  municipality,  etc.) 

That  he  will  save  harmless  and  keep  indemni- 
fied said  C.  D.,his  executors,  etc.,  of  and  from 
all  actions,  charges,  and  damages  which  shall  or 
may  happen  in  anywise  howsoever,  by  reason 
of  the  non-payment  of  said  taxes  or  assessments. 
CovKNANr — Power  to  Assign. 
PoiKcr  to  Assign  the  Lense  Mortgaged. 

That  said  A.  B.  now  has  in  himself  full  power 
and  good  right  to  assign,  grant,  and  mortgage 
said  lease  and  the  premises  therein  demised  unto 
said  C.  D.,  his  executors,  etc.,  in  the  manner  and 
form  aforesaid. 

Covenant — Rf.assignment  Upon  Payment,  etc. 

That  upon  full  payment  and  discharge  of  said 

sum  of dollars   (and   all    taxes   and   assessments 

that  shall  be  set  upon  said  C.  D.,  Iiis  executors,  etc.,  in 
respect  thereof,  according  to  the  condition  or  ])roviso 
aforesaid,  and  the  true  intent  of  these  presents),  he,  the 
said  C.  D.,  his  executors,  etc  ,  shall  and  will  at 
any  time  after,  upon  the  lawful  request  and  at 
the  pt-oper  costs  and  charges  of  said  A.  B.,  his 
executors,  etc.,  deliver  up  this  present  conveyance 
{or  mortgage)  to  be  cancelled  and  made  void,  or 
otherwise  reassign  or  reconvey  all  the  right, 
title  and  interest  in  or  to  said  premises  therein 
conveyed  unto  said  A.  B.,  his  executors,  etc.,  or 
such  other  persons  as  he  or  they  shall,  by  writing, 
under  his  or  their  hands  fand  seals),  appoint  or 
direct,  by  writing,  under  his  or  their  hand  and 
8e".l  (and  likewise  to  d;;!iver  up  to  him  or  them  the  said 
kii'f  'Wade  J>y  ,  to  said  A-  U.),  freed  and  dis- 


charged of  and  from  all  incumbrances  of  what- 
ever nature  or  kind  soever. 
Covenant — Receipt  to  ns  A  Good  Disohargk. 

2'or  Purchase- Money. 

That  the  receipt  or  receipts  of  said  C.  D.,  or 
his  executors,  administrators  or  assigns,  shall  be 
a  good  and  sutiicient  discharge  to  the  purchasers 
of  said  premises,  or  any  part  thereof,  for  their 
purchase-money,  and  that  such  purchasers,  their 
heirs,  executors,  or  administrators,  shall  not  after 
payment  thereof,  and  having  such  receipt,  be 
liable  to  see  to  its  being  applied  upon  or  for  the 
trusts  or  purposes  of ,  in  these  presents  ex- 
pressed, or  by  the  same  intended,  or  in  any  man* 
ner  howsoever  unsuitable,  or  liable  for  any  loss, 
misapplication,  or  non-application  of  such  par- 
chase-money,  or  any  part  thereof  (or  be  in  anv 
manner  obliged  to  inquire  into  the  necessity,  expediency, 
or  authority  of  or  for  any  such  sale  or  sales). 
Covenant — Right  to  Convey. 

That  he,  the  said  A.  B.,  now  has  in  himself 
good  right  and  full  power  to  give,  grant,  sell  and 
convey  the  premises  above  (i?'- hereinbefore  [granted 
unto  and  to  the  use  of  said  C.  D.,  his  heirs  and 
assigns,  in  the  manner  aforesaid  and  according 
to  the  intent  of  these  presents. 

Covenant — Sale  on  Default,  etc. 

That  if  default  shall  be  made  in  the  payme.-t 
of  said  sum  of  money  above  mentioned,  or  an*) 
part  thereof,  or  of  the  interest  that  may  grow 
due  thereon,  or  of  any  part  thereof,  and  remain 

due  and    unpaid   at  the  expiration  of  days 

after  the  same  shall  become  due  and  payable  ac- 
cording to  the  condition  of  said  bond,  then,  and 
from  thenceforth  it  shall  be  lawful  for  said  party 
of  the  second  part,  his  executors,  administrators 
and  assigns,  to  consider  the  whole  of  said  princi- 
pal sum  and  sums  as  aforesaid,  as  immediately 
due  and  payable,  and  to  enter  into  and  upon  all 
and  singular  said  premises  hereby  granted,  and 
to  sell  and  dispose  of  the  same  (and  all  benefit  and 
equity  of  redemption  of  said  party  of  the  first  part,  his 
heirs,  executors,  administrators,  or  assigns  theiein)  at 
public  auction  according  to  law. 

That  the  attorney  of  said  party  of  the  first  part 
is  by  thise  presents  duly  authorized,  constituted, 
and  appointed  for  that  purpose  to  make  and  de- 
liver to  the  purchaser  or  purchasers  thereof  a 
good  and  sufficient  deed  or  deeds  of  conveyance 
in  law  for  the  same,  in  fee  simple  ;  and  out  of  the 
moneys  arising  from  such  sale  to  retain  the 
principal  and  interest  which  shall  then  be  due 
and  owing  on  said  bond  or  obligation,  together 
with  the  costs  and  charges  of  the  sale  of  said 
premises,  returning  the  overplus  of  said  purchase- 
moneyj  if  any  there  shall  be,  unto  said  party  of 
the  first  part,  his  heirs,  executors,  administrators 
or  assigns. 

That  said  sale  so  made  shall  forever  be  a  per- 
petual bar,  both  in  law  and  equity,  against  said 
party  of  the  first  part,  his  heirs  and  assigns,  and 
all  other  persons  claiming  or  to  claim  said  prem- 
ises, or  any  part  thereof,  by,  from,  or  under  him, 
them,  or  either  of  them. 

Covenant — Sale,  etc. — On  Default,  etc. 

Provided  always,  and  it  is  hereby  expressly 
agreed  between  the  parties  hereto  : 

That  if  default  shall  be  made  in  the  payment 

of  said  sum  of dollars,  and  interest,  or  any 

part  thereof,  then  and  in  such  case  it  shall  and 
may  be  lawful  for  the  said  C.  D.,  his  heirs  or  as- 
signs, immediately  on  or  at  any  time  thereafter, 
without  further  authority  from  said  A.  B. ,  his 
heirs  or  assigns,  for  that  purpose  than  is  herein 
contained,  either  to  foreclose  the  equity  of  re- 
demption of  said  A.  B.,  or  without  hindrance, 
molestation,  or  opposition,  to  make  sale  abso- 
lutely, or  otherwise  dispose  of  all  and  every  the 
said  mortgaged  premises,  or  any  or  either  of 
them,  or  any  part  thereof,  virith  their  appurte- 
nances; cither  together  or  in  separate  parcels, 
at  one  or  at  separate  times,  at  his  or  their  discre- 
tion, and  at  or  for  such  sum  or  sums  of  money 
as  he  or  they  shall  judge  sufficient  at  any  such 
sale  or  sales  to  buy  the  sam£  or  any  part  thereof, 
and  re-sell  the  same  without  being  answerable 
for  any  loss  hereby  to  be  sustained,  and  to  Q^nvey 


CONVEYANCES. 


345 


and  assuttitt  all  and  singular  the  premises  which 
shall  be  sold,  to  the  purchasers  thereof,  his  or 
their  heirs,  executors,  administrators,  appointees 
or  assigns,  or  otherwise,  as  he  or  they  shall  direct 
or  require,  freed  and  absolutely  discharged  of  and 
from  all  equity  and  right  of  redemption  whatso- 
ever. 

Another. 

That  said  C.  D.,  his  heirs,  etc.,  may,  at  the  ex- 
piration of from   this   date,  or  at  any  time 

thereafter,  at  his  or  their  option,  sell  and  dispose 
of  said  premises  at  public  auction,  giving  due  no- 
tice thereof,  and  shall  apply  the  proceeds  of  such 

sale  to  pay  said  sum  of dollars,  and  interest 

thereon,  and  to  defray  the  necessary  expenses  of 
such  sale  ;  and  if,  after  paying  said  sum  and  in- 
terest and  expenses,  there  should  remain  anybal- 
ance  or  surplus  of  said  proceeds,  then  to  pay  the 
same  to  said  A.  B. ,  or  his  legal  representative. 
Covenant — Sale — Notice  of,  etc. 

Provided  always,  nevertheless : 

That  no  sale,  or  public  notice  or  advertisement 
of  or  for  any  sale  of  said  premises,  or  any  part 
thereof,  shall  be  made  or  given  by  said  C.  D.,  his 
heirs,  etc.  (nor  any  means  by  him  or  them  taken  for 
obtaining  pos.session  of,  or  receiving  of  the  rents  of  said 
premises,  or  any  part  thereof),  until  the  expiration 

of calendar  months  after  notice  in  writing 

of  his  or  their  intention  to  sel' (obtain  possession, 
or  receive  the  rents  of)  said  premises  shall  have 
been  given,  said  A.  B. ,  his  heirs  or  assigns,  or  left 
at  his  or  their  last  or  usual  place  of  abode. 
For  other  Covenants,  see  Moktgaok  Forms,  below. 

Coiiclnsioiis  In  Mort^ag^e!«  of  Ileal 
Property. 

See  Deeds,  above. 
Signed  (and  sealed) ;  or, 


Signed,  sealed,  and  acknowledged  ;  or, 
V^itness  our  hands  (and  seals) ;  or, 


Given  under  our  hands  (and  seals) ;  or. 

In  \vitness  whereof,  we  hereunto  set  our  hands, 
etc. ;  or  

In  witness  whereof,  the  parties  to  these  pres- 
ents have  hereunto  set  their  hands,  etc.  ;  or, 

In  witness  whereof,  we  have  hereunto  set  our 

hiinds  (and  affixed  our  seals)  (at ),  this day 

oi ;  or,  

In  witness  whereof,  we  have  hereunto  set  our 
hands  {or  subscribed  our  names),  the  day  and  year 
first  {or  last)  above  written  ;  or. 


In  witness  whereof,  A.  B.,the  party  of  the  first 
part,  and  C.  D.,  the  party  of  the  second  part,  in 
their  own  proper  persons  have  hereunto  respec- 
tively and  severally  set  their  hands  and  seals,  this 

day  of {or  the  day  and  year  first,  or  last) 

above  written. 

>Sig:iiatnre  (aii«I  Keals). 
See  Deeds,  above. 

Attestation  or  'WiliieKS  €Ianse!«. 

See  Deeds,  above. 

Acknowledgment  or  Mortgag'eM  of  Real 
l*ro5>er(.v. 

All  instruments  for  the  conveyance,  or  incumbrance, 
or  in  anywise  affecting  real  estate  or  any  interest  there- 
in, must  be  recorded  in  the  proper  office  for  the  record- 
ing of  deeds,  etc.,  in  order  to  affect  judgment  creditors, 
subsequent  purchasers,  mortgagees,  etc.  See  General 
Statutes. 

SHORT  FOR9I  ]irORTCiAGE8  OF  REAI. 
PROPKUTY. 

Mortgage — Similar  to  Chancellor  Kent's  Deed. 
See  Shout  F'orm  Deeds,  p.  303,  ante. 

I,  A.  B.,  in  consideration  of ,  to  me  paid  by 

C.  D.,  do  mortgage  unto  C.  D.  (and  his  heirs)  the 
lot  of  land  (bounded  or  described),  etc. 

To  secure  the  repayment  («>- performance)  of  (f/a^? 
w/Mt,  auwunts,  J> laces,  times,  etc.,  etc) 


Witness  my  hand  and  seal,  this day  of 

A.  B.     [5fn/.J 
For  form  of  Acknowledgment,  see  that  title. 
Mortgage — Similar  to  California  Deed. 
I.  A.  B.,  grant  and  mortgage  to  C.  D.  all  that 

real  property,  situated  in county,  of  the  State 

of  California,  bounded  {or  described)  as  follows, 
etc. 
To  secure  the  repayment  {or  performance),  etc. 

Witness  my  hand,  this day  of . 

A.  B. 
For  form  of  Act<no\vleix;ment,  see  that  tide. 

Mortgage— Indiana  Form. 
See  Indiana,  above. 
A.  B.  mortgages  and  warrants  to  C.  D.  {tiescrw- 
ins  premises). 

To  secure  the  repayment  of  {state  ivhat,  lite 
amounts,  modes,  places,  time  or  times  o/" payment,  etc., 
etc.) 

Dated,  signed,  and  sealed,  this day  of . 

A.  B.     [S'rt/.] 

For  form  of  Acknowledgment,  set  that  tide. 

Mortgage — After  Virci.nia  and  Texas  Deed. 

A.  B.  doth  bargain,  sell,  and  mortgage  unto  C. 

D.  {here /olloius  a  description  0/  the  real  estate  mort- 

gaiced.') 

To   secure  the  repayment  {or  performance)  of, 
etc. 
Witness  the  following  signature  and  seal. 

A.  B.     {Seal.'X 
For  form  of  Acknowledgment,  see  that  title. 

Mortgrag'e  of  Real  Property — General 
Form. 

With  Covenant  to  Pay,  and  Power  to  Sell  on  Default. 

This  (conveyance,  or  indenture,  or  mortgage),  made 

this day  of ,  by  {or  between)  A.  B.,  of , 

of  the  first  part,  to  {or  and)  C.  D.,  of ,  of  the 

second  part,  witnesseth  : 

That  the  said  party  of  the  first  part,  for  and  in 

consideration   of  the   sum   of dollars,  does 

grant,  bargain,  sell  and  convey  unto  the  said 
party  of  the  second  part,  and  to  his  heirs  and  as- 
signs, all  {here  /olloius  the  description  of  the  prem- 
ises mortgaged )  ;  together  with  all  and  singular  the 
hereditaments  and  appurtenances  thereunto  be- 
longing, or  in  anywise  appertaining. 

This  conveyance  is  intended  as  a  mortgage,  to 

secure  the  payment  of  the  sum  of dollars,  in 

from  the  day  of  the  date  of  these  presents, 

with interest,  according  to  the  condition  of 

a  certain  bond,  dated  this  day,  executed  by  the 
said  A.  B.,  to  the  said  party  of  the  second  part ; 
and  these  presents  shall  be  void  if  such  payment 
be  made. 

But  in  case  default  shall  be  made  in  the  pay- 
ment of  the  principal,  or  interest,  as  above  pro- 
vided, then  the  party  of  the  second  part,  his  ex- 
ecutors, administrators  and  assigns,  are  hereby 
empowered  to  sell  the  premises  above  described, 
with  all  and  every  of  the  appurtenances,  or  any 
part  thereof,  in  the  manner  prescribed  by  law  ; 
and  out  of  the  money  arising  from  such  sale,  to 
retain  the  said  principal  and  interest,  together 
with  the  costs  and  charges  of  making  such  sale  ; 
and  the  overplus,  if  any  there  be,  shall  be  paid  by 
the  party  making  such  sale,  on  demand,  to  the 
party  of  the  first  part,  his  heirs  or  assigns,  etc. 

In  witness  whereof,  said  party  of  the  first  part 
has  hereunto  set  his  hand  i,and  seal;  the  day  and 
year  first  above  written. 

[Signature  {and  seal. )] 
Executed  in  presence  of 

For  form  of  Acknowledgment,  see  that  title. 

}IIort$;ag:e  of  Real  Property— General 
Form. 

To  all  people  to  whom  these  presents  shall 
come,  greeting  :  Know  ye  : 

That  I,  A.  B.,  of  ,  for  the  consideration  of 

dollars,  received  to  my  full  satisfaction,  do 

give,  grant,  bargain,  sell  and  confirm  unto  the 
said  C.  D.  (here  follows  the  description  of  the  prem- 
ises mortgaged^  : 

To  have  and  to  hold  the  above-granted  and  bar- 
gained premises,  with  the  appurtenances  thereof, 
unto  the  said  grantee,  his  heirs  and  assigns,  to 
his  and  their  proper  use  and  bebooft  forever* 


346 


CONVEYANCES. 


And  also  I,  the  said  grantor,  do,  for  myself,  my 
heirs,  executors  and  administrators,  covenant 
with  the  said  grantee,  his  heirs  and  assigns,  that 
at  and  until  the  ensealing  of  these  presents,  I  am 
well  seized  of  the  premises  in  a  good,  indefeasible 
estate  in  fee  simple,  and  have  good  right  to  bar- 
gain and  sell  the  same  in  manner  and  form  as 
above  written  ;  and  that  the  same  are  free  from 
all  incumbrances  whatsoever. 

And  I,  the  said  grantor,  do,  by  these  presents, 
bind  myself  and  my  heirs  forever,  to  warrant  and 
defend  the  above-granted  and  l^argained  premises 
to  him,  the  said  grantee,  and  his  heirs  and  as- 
signs, against  all  claims  and  demands  what- 
soever. 

In  witness  whereof,  I  have  hereunto  set  my 
hand  (and  seal)  this day  of . 

The  condition  of  this  deed  is  such,  that  where- 
as the  said  A.  B.  is  justly  indebted  to  the  said  C. 

D.  in  the  sum  of dollars,  as  evidenced  by  his 

promissory  note  for  said  sum,  of  even  date  here- 
with, payable  to  the  said  grantee  or  order  

after  date,  with  interest : 

Now,  therefore,  if  said  note  shall  be  well  and 
truly  paid,  according  to  its  tenor,  then  this  deed 
shall  be  void ;  otherwise,  to  remain  in  full  force 
and  effect.  | Signature  (and  seal.)] 

Signed,  sealed,  and  delivered  I 

in  presence  of  J 

For  form  of  Acknowledgment,  see  that  title. 
Idortg'ag'e  of  Real  Property — General 

Form. 

With  Covenants  against  Incumbrances  :  to  Insure ;  to 

Pay  ;  and  Warrant  and  Defend,  etc. 

Know  all  men  by  these  presents: 

That  I,  A.  B.,  of ,  in  consideration  of  the 

sum  of dollars,  to  me  paid  by  C.  D.,  of , 

the  receipt  whereof  I  do  hereby  acknowledge,  do 
hereby  give,  grant,  bargain,  sell,  and  convey  unto 
the  said  C.  D.,  his  heirs  and  assigns,  forever,  a 
certain  piece  or  parcel  of  land,  situate  (here/ol- 
U-Ms  the  description),  together  with  all  the  privi- 
leges and  appurtenances  to  the  same  in  anywise 
appertaining  and  belonging: 

To  have  and  to  hold  the  same  to  the  said  C.  D., 
his  heirs  and  assigns,  to  his  and  their  use  and  be- 
hoof forever : 

And  I,  the  said  A.  B. ,  for  myself,  my  heirs,  ex- 
ecutors, and  administrators,  do  covenant  with 
the  said  C.  D.,  his  heirs  and  assigns,  that  I  am 
lawfully  seized  in  fee  of  the  aforegranted  prem- 
ises; that  they  are  free  from  all  incumbrances  ; 
that  I  have  good  right  to  sell  and  convey  the 
same  to  the  said  C.  D.,  as  aforesaid  ;  and  that  I 
will,  and  my  heirs,  executors,  and  administrators 
shall,  warrant  and  defend  the  same  to  the  said  C. 
D.,  his  heirs  and  assigns  forever,  against  the 
lawful  claims  and  demands  of  all  persons. 

Provided  nevertheless,  that  if  the  said  A.  B., 
his  heirs,  executors,  or  administrators,  shall  pay 
unto  the  said  C.  D.,  his  executors,  administrators 
or  assigns,  the  said  sum  of ,  with  lawful  in- 
terest, on  or  before  the day  of ,  and  shall 

keep  the  premises  insured  against  fire  in  a  sum 

not  less  than  dollars,  for  the  benefit  of  the 

said  C.  D.,  his  executors,  etc.,  in  such  insurance 

office  in ,  as  the  said  C.  D.  shall  approve,  then 

this  deed,  as  also  (a  certain  promissory  note  bearing 
even  date  with  these  presents,  signed  by  the  said  A.  B., 
whereby  for  value  received  he  promises  to  pay  to  tlie 
said  C.  D  the  said  sum  and  interest  at  the  times  afore- 
paid,  shall  be  absolutely  void  to  all  intents  and  purposes  >, 
\nr  (a  certain  obligation  orbond,  bearing  even  date  wiih 
these  presents,  given  by  the  said  A.  B.  to  the  said  C. 

I),  in  the  penalty  of dollars,  conditioned  to  pay  the 

first  mentioned  sum  and  interest  at  the  time  aforesaid, 
shall  both  be  void). 

In  witness  whereof,  etc. 

For  form  of  Acknowledgment,  see  that  title. 

Mortgagre  of  Real  Property— General 
Form. 

This   (conveyance,   or  indenture,    or)    mortgage, 

made  this day  of ,  between  A.  B. ,  of 

county,  in  the  State  of ,  of  the  first  part,  and 

C.  D.,  of county,  in  the  State  of ,  of  the 

second  part,  ^vitnesseth  : 

That  said  party  of  the  first  part,  in  considera- 
tion of  the  sum  of dollars,  the  receipt  of  which 


is  hereby  acknowledged,  does  by  these  presents 
grant,  bargain,  sell,  and  convey  unto  said  party 
of  the  second  part,  his  heirs  and  assigns,  all  the 
foUov^ring  described  real  estate,  situated  in  the 

county  of ,  and  State  of ,  to  wit :  {describing 

it). 

To  have  and  to  hold  the  same,  together  with 
all  and  singular  the  tenements,  hereditaments, 
and  appurtenances  thereunto  belonging  or  in  any- 
wise appertaining,  forever. 

Provided  always,  and  these  presents  are  upon 
this  express  condition,  that  whereas,  said  A.  B. 
has  this  day  executed  and  delivered  his  certain 
promissory  note  in  writing  to  said  party  of  the 
second  part,  of  which  the  following  is  {or  arej 
copies  {setting  out  a  copy  or  abstract). 

Now,  if  said  party  of  the  first  part  shall  pay  or 
cause  to  be  paid  to  said  party  of  the  second  part, 
his  heirs  or  assigns,  said  sum  of  money  in  the 
above-described  note  mentioned,  together  with 
the  interest  thereon,  according  to  the  terms  and 
tenor  of  the  same;  then  these  presents  shall  be 
wholly  discharged  and  void  ;  and  otherwise  shall 
remain  in  full  force  and  effect. 

But  if  said  sum  or  sums  of  money,  or  any  part 
thereof,  or  any  interest  thereon,  is  not  paid  when 
the  same  is  due ;  and  if  the  taxes  and  assess- 
ments of  every  nature  which  are  or  may  be  as- 
sessed and  levied  against  said  premises  or  any 
part  thereof  are  not  paid  when  the  same  are  by 
law  made  due  and  payable,  then  the  whole  of 
said  sum  and  sums,  and  interest  thereon,  shall, 
by  these  presents,  become  due  and  payable,  and 
said  party  of  the  second  part  shall  be  entitled  to 
the  possession  of  said  premises. 

In  witness  whereof,  the  said  party  of  the  first 
part  has  hereunto  set  his  hand,  the  day  and  year 
first  above  written.  A.  B. 

Executed  in  presence  of 

For  form  of  Acknowledgment,  see  that  title. 

]N[ortg:aja^e  of  Real  Property— General 
Form. 

With  Waiver,  Attorney' s  Fees,  etc. 

This  ''conveyance,    or    indenture,    or)    mortgage, 

made  this day  of ,  between  A.  B.,  of 

county,  in  the  State  of ,  of  the  first  part,  and 

C.  D.,of county,  in   the  State  of ,  of  the 

second  part,  witnesseth  : 

That  said  party  of  the  first  part,  in  considera- 
tion of  tiie  sum  of dollars,  etc.  {this  paragraph 

is  the  same  as  in  the  form  above). 

To  have  and  to  hold  the  same,  together,  etc. 
{this  puragrufih  is  the  same  as  in  tlie  form  above). 

Provided  always,  and  these  presents,  etc.  {this 
pariigra/'h  is  the  same  as  in  the  form  a6o7/e). 

Now,  if  said  party  of  the  first  part  shall  pay  or 
cause  to  be  paid  to  said  party  of  the  second  part, 
his  heirs  or  assigns,  said  sum  of  money  in  the 
above-described  note  mentioned,  together  with 
the  interest  thereon,  according  to  the  terms  and 
tenor  of  the  same;  then  these  presents  shall  be 
wholly  discharged  and  void  ;  and  otherwise  shall 
rem:;in  in  full  force  and  effect. 

But  if  said  sum  or  sums  of  money,  or  any  part 
thereof,  or  any  interest  thereon,  is  not  paid  when 
the  same  is  due  ;  and  if  the  taxes  and  assess- 
iTients  of  every  nature,  ^vhich  are  or  may  be  as- 
sessed and  levied  against  said  premises,  or  any 
part  thereof,  are  not  paid  when  the  same  are 
by  law  made  due  and  payable,  then  the  whole 
of  said  sum  and  sums,  and  interest  thereon, 
shall  and  by  these  presents  become  due  and  pay- 
able, and  said  party  of  the  second  part  shall  be 
entitled  to  the  possession  of  said  premises. 

And  said  party  of  the  first  part  further  agree, 
upon  default  of  the  above  covenants  and  condi- 
tions, or  any  or  either  of  them,  to  pay  the  sum  of 
dollars,  for  mortgagee  or  his  assigns'  at- 
torney's fees  for  foreclosure  of  this  mortgage, 
which  sum  shall  be  a  lien  upon  said  premises, 
added  to  the  amount  of  said  obligation,  and  se- 
cured by  these  presents,  and  shall  be  included  in 
and  operate  as  a  part  of  the  judgment  upon  fore- 
closure of  this  mortgage. 

Appraisement,  exemption,  and  valuation  art 
waived. 

In  witness  whereof,  etc. 
For  fona  of  Acknuwlkogment,  see  that  title. 


CONVEYANCES. 


U7 


Vtitrtgafs^  of  Real  Property— General 
l-4>riii. 

H^/i/t  Inlcresl,  Tax,  Insurant  e.  Attorney' s  fees,  IVaiver 

of  A/>praiseinent,  Exemption  and  Valuation,  with 

PoT.uer  vf  Assignment,  Sale  Clauses,  etc. 

This  indenture,  made  this  day  of .be- 
tween A.  B.,  of county,  in  the  State  of , 

party  of  the  first  part,  and  C.  D.,  of county, 

in   the  State  of  ,  of  the   second   part,  wit- 

nesseth : 

That  said  party  of  the  first  part,  in  considera- 
tion of  the  sum  of dollars,  etc.  {this paragraph 

is  the  same  as  in  the  form  above). 

To  have  and  to  hold  the  same,  together,  etc. 
(this  paragraph  is  the  same  as  in  the  form  above). 

Provided  always,  and  these  presents  are  upon 
this  express  condition. 

That  whereas,  said  A.  B.  has  this  day  executed 
and  delivered  his  certain  promissory  note  in  writ- 
ing to  said  party  of  the  second  part,  of  which  the 
following  is  {or  are  i  copy  (here  copy  the  note  or  7iotes). 

Now,  if  said  party  of  the  first  part  shall  pay  or 
cause  to  be  paid  to  said  party  of  the  second  part, 
his  heirs  or  assigns,  said  sum  of  money  in  the 
above-described  note  mentioned,  together  with 
the  interest  thereon,  according  to  the  terms  and 
tenor  of  the  same  ;  and  keep  the  buildings  erected 
and  to  be  erected  upon  the  landsabove  conveyed, 
insured  against  loss  or  damage  by  fire,  in  at  least 

the   sum   of dollars,  and  by  insurers,  and  at 

some  insurance  office  to  be  approved  by  said 
party  of  the  second  part,  and  assign  the  policy 
and  certificates  thereof  to  the  said  party  of  the 
second  part  (and  iii  default  of  said  insuraiict;  it  shall  be 
lawful  for  said  party  of  the  second  part  to  effect  such 
insurance,  and  the  premium  or  premiums  pa'd  for  effect- 
ing the  same,  together  with  the  costs  and  charges  inci- 
dent thereto,  with  interest  thereon  at  the  rate  of per 

cent,  per  annum,  from  the  date  of  payment  thereof  luitil 
paid,  shall  be  alien  upon  said  mortgaged  premises,  added 
to  the  amount  of  said  obligation,  and  secured  by  these 
presents,  and  shall  be  included  in  and  operate  as  a  part 
of  the  judgment  upon  foreclosure  of  this  mortgage', 
then  these  presents  shall  be  wholly  discharged 
and  void  ;  and  othervtrise  shall  remain  in  full  force 
and  effect. 

But  if  said  sum  or  sums  of  money,  or  any  part 
thereof,  or  any  interest  thereon,  is  not  paid  when 
the  same  is  due  ;  and  if  the  taxes  and  assess- 
ments of  every  nature  which  are  or  may  be  as- 
sessed or  levied  against  said  premises  or  any  part 
thereof  are  not  paid  when  the  same  are  by  law 
made  due  and  payable;  and  if  said  insurance  is 
not  effected,  and  the  policy  and  certificates  are  not 
assigned,  as  aforesaid,  then,  and  upon  default  of 
these  provisions  and  covenants,  or  any  or  either 
of  them,  the  whole  of  said  sum  and  sums,  and 
interest  thereon,  shall  and  by  these  presents  be- 
come due  and  payable,  and  said  party  of  the  sec- 
ond part  shall  be  entitled  to  the  possession  of 
said  premises. 

And  the  said  party  of  the  first  part  further 
agree,  upon  default  of  the  above  covenants  and 
conditions,  or  any  or  either  of  them,  to  pay  the 
sum  of dollars,  for  the  mortgagee  or  his  as- 
signs' attorney's  fees  for  foreclosure  of  this  mort- 
gage, which  sum  shall  be  a  lien  upon  said  prem- 
ises, added  to  the  amount  of  said  obligation,  and 
secured  by  these  presents,  and  shall  be  included 
in  and  operate  as  a  part  of  the  judgment  upon 
foreclosure  of  this  mortgage. 

Appraisement,  exemption,  and  valuation  are 
".vaived. 

In  witness  whereof,  the  said  party,  etc. 
For  form  of  Acknowledgment,  see  that  title. 

9Iortg'ag^e  of  Real  Property— General 
Form. 

In  ivhich  the  mortgagor  luaives  his  right  under  the  act 
of  assembly  or  legislature,  so  that  on  his  default, 
for  thirty  days,  to  pay  any  interest  falling  due,  the 
■whole  debt  (principal and  interest)  shall  become  due 
»nd collectable  immediately,  and  the  mortgagee  shall 
have  the  right  to  issue  a  writ  of  scire  facias,  and  at 
once  proceed  to  collect  the  whole  sum  due. 
This    (conveyance,    or    indenture,  or)    mortgage, 

made  the day  of ,  in  the  year  of  our  Lord 

. ,  between  A.  B,,  of  (^ihe  city  of ),  in  — - 


county,  and  State  (or  Commonwealth)  of ,  of  the 

first  part,  and  C.  D.,  of  said  city,  county,  and 
State  (or  Commonwealth),  aforesaid,  of  the  other 
part,  witnesseth  : 

That  whereas  the  said  A.  B.,  in  and  by  a  certaii? 
obligation  or  writing  obligatory,  under  his  hand 
and  seal  duly  executed,  bearing  even  date  here- 
with, stands  bound  unto  the  said  C.  D.  in  the 
sum  of  (five  thousand)  dollars,  lawful  money  of  the 
U  nited  States  of  America ,  conditioned  for  the  pay- 
ment of  the  just  sum  of  (two  thousand  and  five  hun- 
dred) dollars,  like  lawful  money  as  aforesaid,  in 
(five)  years  from  the  date  thereof,  together  with 
lawful  interest  for  the  same,  the  first  payment  of 
interest  to  be  made  on  the day  of next  en- 
suing the  date  thereof,  and  thereafter  (half-yearly) 
from  that  day,  without  any  fraud  or  further  de- 
lay : 

Provided,  however,  and  it  is  thereby  expressly 
agreed : 

That  if  at  any  time  default  shall  be  made  in  the 
payment  of  interest  on  said  principal  for  the 
space  of  thirty  days  after  any  payment  thereof 
shall  fall  due,  then  and  in  such  case  the  whole 
principal  debt  aforesaid  shall,  at  the  option  of  the 
said  C.  D.,  or  his  executors,  administrators,  or 
assigns,  become  due  and  payable  immediately, 
and  payment  of  said  principal  and  all  interest 
thereon  may  be  enforced  and  recovered  at  once, 
anything  therein  contained  to  the  contrary  there- 
of notwithstanding,  as  in  and  by  the  said  in  part 
recited  obligation  and  the  condition  thereof,  re- 
lation being  thereunto  had,  may  more  fully  and 
at  large  appear : 

That  the  said  A.  B.,  as  well  for  and  in  consid- 
eration of  the  aforesaid  debt  or  sum  of  (two  thou- 
sand and  five  hundred)  dollars,  and  for  the  better  se- 
curing the  payment  of  the  same,  with  interest, 
unto  the  said  C.  D.,  his  heirs,  executors,  admin- 
istrators, and  assigns,  as  well  in  discharge  of  the 
said  in  part  recited  obligation,  as  for  and  in  con- 
sideration of  the  further  sum  of  one  dollar,  unto 
the  said  A.  B.  in  hand  well  and  truly  paid  by  the 
said  C.  D.,  at  and  before  the  sealing  and  delivery 
hereof,  the  receipt  whereof  is  hereby  acknowl- 
edged, hath  granted,  bargained,  sold,  aliened, 
enfeoffed,  released,  and  confirmed,  and  by  these 
presents  doth  grant,  bargain,  sell,  alien,  enfeoff, 
release,  and  confirm,  unto  the  said  C.  D.,  and  his 
heirs  and  assigns,  all  that  messuage,  piece  or 
parcel  of  land,  etc.  (here give  the  de:<.ription  of  the 
hiud co>i7ieycd\;  tog";ther  with  all  and  singular  the 
rights,  liberties,  privileges,  improvements,  heredi- 
taments, and  appurtenances  whatsoever,  there- 
unto belonging, "or  in  anywise  appertaining,  and 
the  reversions  and  remainders,  rents,  issues,  and 
profits  thereof. 

To  have  and  to  hold  the  said  messuage,  piece 
or  parcel  of  land  above  described,  hereditaments 
and  premises  hereby  granted,  or  mentioned  and 
intended  so  to  be,  with  the  appurtenances,  unto 
the  said  C.  D.,  his  heirs  and  assigns,  to  and  for 
the  only  proper  use  and  behoof  of  the  said  C.  D., 
his  heirs  and  assigns,  forever. 

Provided  always,  nevertheless,  that  if  the  said 
A.  B.,  his  heirs,  executors,  administrators,  or  as- 
signs, do  and  shall  well  and  truly  pay  or  cause 
to  be  paid  unto  the  said  C.  D.,  his  executors,  ad- 
ministrators, or  assigns,  the  aforesaid  debt  or 
sum  of  I  two  thousand  five  hundred)  dollars  on  the 
day  and  time  hereinbefore  mentioned  and  ap- 
pointed for  payment  of  the  same,  together  with 
lawful  interest  as  aforesaid,  without  any  fraud 
or  further  delay,  and  without  any  deduction,  de- 
falcation, or  abatement  to  be  made  of  anything 
for  or  in  respect  of  any  taxes,  charges,  or  assess- 
ments whatsoever,  that  then  and  from  thence- 
forth, as  well  this  present  indenture  and  the 
estate  hereby  granted,  as  the  said  in  part  recited 
obligation,  shall  cease,  determine,  and  become 
void,  anything  hereinbefore  contained  to  the  con- 
trary thereof  in  anywise  notwithstanding. 

Provided  further,  in  case  of  default  in  the  pay- 
ment of  the  interest  at  any  time  falling  due,  for 
the  space  of  thirty  days  as  aforesaid,  or  any  part 
thereof,  that  thereupon  it  shall  be  lawful  for  the 
said  C.  D.,  his  executors,  administrators,  or  as- 
signs, to  sue  out  forthwith  a  writ  of  scire  facias 


^ 


CONVEYANCES. 


upon  this  present  Indenture  of  mortgage,  and  to 
proceed,  at  once  thereon  to  recover  the  principal 
moneys  hereby  secured,  and  all  interest  thereon, 
according  to  law,  without  further  stay,  any  law 
or  usage  to  the  contrary  notwithstanding. 

And  further,  the  said  mortgagor  doth  hereby, 
for  himself,  his  heirs,  executois,  administrators, 
and  assigns,  expressly  waive,  relinquish,  and  dis- 
pense unto  C.  O.,  the  said  mottgagee,  his  heiis, 
executors,  administrators,  and  assigns,  all  and 
every  provision  and  provisions  in  the  act  of  as- 
sembly (,or  legislature)  of  tho  State  (or  Common- 
wealth) of (Approved  or)  parsed  on  the day 

of ,  entitled  "An  act,"  etc.,  so  far  as  the  same 

may  exempt  the  said  hereby  tnortgaged  lot  of 
land  and  appurtenances,  and  a.iy  part  thereof, 
from  levy  and  sale,  by  virtue  of  a.iy  writ  of  exe- 
cution that  may  be  issued  upon  uny  judgment 
that  may  be  obtained  or  entered  in  t.iy  action  for 
the  recovery  of  the  mortgage-money  rerein  men- 
tioned to  be  paid,  and  any  interest  dee  thereon, 
and  of  the  costs  ot  such  action  and  execution  :  so 
that  it  shall  be  lawful  for  C.  D.,the  S'iJd  mort- 
gagee, his  heiis, executors,  administrators,  or  as- 
signs, to  proceed  by  execution  to  levy  upon  and 
sell  the  said  hereby  mortgaged  lot  of  ground, 
and  every  part  thereof,  with  the  appurtenances 
as  aforesaid,  in  the  same  manner,  and  to.  the 
same  extent,  and  to  the  same  effect,  to  all  intents 
and  purposes,  as  if  the  said  act  of  assembly  (or 
legislaiure)  had  not  been  ^approved  or)  passed. 

In  witness  whereof,  the  said  parties  to  these 
presents  have  interchangeably  set  their  hands 
and  seals  hereunto.  Dated  the  day  and  year  first 
above  written. 

[  Witnesses.'^  {Signatures  and Sea/s.) 

Bond  to  Accompany  the  Above  Mortgage. 

Know  all  men  by  <hese  presents : 

That  I,  A.  B.,  of  (the  city  of) ,  in county, 

and  the  State  (or  Comnlon\v■e.^Ith)  of ,  am  held 

and  firmly  bound  unto  C.  D.,  of  the  same  city 
and  State  aforesaid,  in  the  sum  of  (five  thou'iand  i 
dollars,  lawful  money  of  the  United  States  of 
America,  to  be  paid  to  the  said  C.  D.,  or  his  cer- 
tain attorney,  executors,  administrators,  or  as- 
signs; to  which  payment,  well  and  truly  to  be 
made,  I  do  bind  myself,  my  heirs,  executors,  and 
administrators,  and  every  of  them,  firmly  by 
these  presents.  Sealed  with  my  seal,  and  dated 
the day  of ,  in  the  year  of  our  Lord . 

The  condition  of  this  obligation  is  such,  that 
if  the  abovebounden  A.  B.,or  his  heirs,  execu- 
tors, administrators,  or  any  of  them,  shall  and 
d  >  well  and  truly  pay  or  cause  to  be  paid  unto 
the  above-named  C.  D.,or  his  certain  attorney, 
executors,  administrators,  or  a!;signs,  the  just 
sum  of  (two  thousand  aud  five  hundred)  dollars,  like 
lawful  money  as  aforesaid,  in  (five)  years  from  the 
date  hereof,  together  with  lawful  interest  for  the 
same,  the  first  payment  of  interest  to  be  made 

on   the  day  of  next   ensuing  the   date 

hereof,  and  thereafter  (half-yeaily)  from  that  day, 
without  any  fraud  or  further  delay,  then  the 
above  obligation  to  be  void,  or  else  to  be  and  re- 
main in  full  force  and  virtue  : 

Provided,  however,  and  it  is  hereby  expressly 
agreed,  that  if  at  any  time  default  shall  be  made 
in  the  payment  of  interest  on  the  said  principal 
for  the  space  of  thirty  days  after  any  payment 
thereof  shall  fall  due,  then  and  in  such  case  the 
Whole  principal  debt  aforesaid  shall,  at  the  option 
of  the  said  C.  D. ,  or  his  administrators  or  assigns, 
become  due  and  payable  immediately,  and  pay- 
ment of  said  principal  and  all  interest  thereon 
may  b;  enforced  and  recovered  at  once,  anything 
herein  contained  to  th«  contrary  thereof  not- 
withstanding. A.  B.  [Sen/.] 
Signed,  sealed,  and  delivered) 

in  presence  of  j 

Warrant  op  Attorney  to  Accompany  the  Above 

KoNn,  WHERE  ir  13  Designed  to  Auihokize  the 

Entering  op  Judgment. 

To  A.  A.,  Esq.,  attorney  of  the  court,  at 

,  in  the  county  of ,  in  the  State  r^r  Com- 
monwealth) of ,  or  to  any  other  attorney  of  the 

said  court,  or  of  any  other  court,  there  or  else- 
where : 

Wl  ereas  A.  B. ,  in  and  by  a  certain  obligation 


bearing  even  date  herewith,  does  stand  bounA 
unto  C.  D.  in  the  sum  of  (five  thousand)  dollars 
lawful  money  of  the  United  States  of  America, 
conditioned  lor  the  payment  of  the  just  sum  of 
(two  tliuu>iaiid  and  five  nundred)  dollars,  like  lawfuV 
money  as  aforesaid,  in  five  years  from  the  date 
thereof,  together  with  lawful  interest  for  the 
same,  the  first  payment  of  interest  to  be  made  on 

the day  of next  ensuing  the  date  thereof, 

and  thereafter  (half-yearly)  from  that  day;  pro- 
vided, however,  and  it  IS  hereby  expressly  agreed, 
that  if  at  any  time  default  shall  be  made  in  the 
payment  of  interest  on  the  said  principal  for  the 
space  of  thirty  days  after  any  payment  thereof 
shall  fall  due,  then  and  in  such  case  the  whole  prin- 
cipal debt  aforesaid  shall,  at  the  option  of  the  said 
C.  D.,  his  executors,  administrators,  or  assigns, 
become  due  and  payable  immediately,  and  pay- 
ment of  said  principal  and  all  interest  thereon 
maybe  enforced  and  recovered  at  once,  anything 
therein  contained  to  the  contrary  thereof  not- 
withstanding: 

These  are  to  desire  and  authorise  you,  or  any 
of  you,  to  appear  for  me,  my  heirs,  executors, 
or  administrators,  in  the  said  court  or  elsewhere, 
in  an  action  of  debt  there  or  elsewhere  brought  or 
to  be  brought  against  me,  the  said  A.  B.,  my  heirs, 
executors  or  administrators,  at  the  suit  of  the  said 
C.  D.,  his  executors,  administrators  or  assigns,  on 
the  said  obligation,  as  of  any  term  or  time  past, 
present,  or  any  other  subsequent  term  or  time 
there  or  elsewhere  to  be  held, and  to  confess  judg- 
ment thereupon  against  me,  the  said  A.  B.,  my 
heirs,  executors,  or  administrators,  for  the  sum  of 
(five thousand)  dollars,  lawful  money  of  the  United 
States  of  America,  debt,  besides  costs  of  suit,  by 
tion  suiiT  hi/crjira/us,  nihil rticit ,  or  othei\vise,  as  to 
you  shall  seem  meet :  and  for  your  or  any  of  your 
so  doing,  this  shail  be  your  sufficient  warrant. 

And  I  do  hereby,  for  myself,  my  heirs,  execu- 
tors, and  administrators,  remise,  release, and  for- 
ever quit-claim  unto  the  said  C.  D.,  his  certain 
attorney,  executors,  administrators,  and  assigns, 
all  and  all  mannerof  errorand  errors,  misprisions, 
misentries,  defects,  and  imperfections  whatever 
in  the  entering  of  the  said  judgment,  or  any  pro- 
cess or  proceedings  thereon  or  thereto,  or  any- 
wise touching  or  concerning  the  same. 

In   witness  whereof,  I  have  hereunto  set   my 

hand  and  seal,  the day  of ,  in  the  year  of 

our  Lord .  A.  B.     \Seal.\ 

Signed,  sealed,  and  delivered) 

in  presence  of  j 

Klorteag-e  of  Real  Property— Asslg^n* 
meiit. 

Know  all  men  by  these  presents  : 

That  I,  C.  D.,  of  ,  in  county.  State  of 

,the  mortgagee  named  in  a  certain  mortgage 

given  by  A.  B..  of ,  in  county.  State  of 

,  to  said  C.  D.,  to  secure  the  payment  of 

dollars  and  interest,  dated  the day  of ,  re- 
corded in  the  volume  ,  on  page  ,  of  the 

registry  of  deeds  for  the  county  of ,  in  consid- 
eration of  the  sum  of dollars  to  me  paid  by 

E.  F.,  of ,  in county.  State  of ,  the  re- 
ceipt of  which  is  hereby  acknowledged,  do  here- 
by sell,  assign,  transfer,  set  over  and  convey  unto 
said  E.  F.,  his  heirs  and  assigns,  said  mortgage 
and  the  real  estate  thereby  conveyed,  together 
with  the  promissory  note,  debt  and  claim  thereby 
secured,  and  the  covenants  therein  contained. 

To  have  and  to  hold  the  same  to  him,  the  said 
E  F.,  and  his  heirs  and  assigns,  to  his  and  their 
use  and  behoof  forever :  subject,  nevertheless,  to 
the  conditions  therein  contained  (and  to  redemp- 
t  on  according  to  liw). 

In  witness  whereof,  I  have  hereunto  set  my 

hand  fand  seal),  this day  of . 

[Signature^    \Seal.\ 
Executed  and  delivered) 

in  presence  of  j 

Tor  form  of  Acknowledgment,  see  that  title 

Morlg^ag:e  of  Real  Property— AsHlgrn- 

liieiil. 

With  Power  of  Attorney. 

Kno\w  all  men  by  these  presents; 

That  I,  C   D.,  of county,  and  State  of , 

party  of  the  first  part,  in  consideration  of  the 


COKVEVANCES. 


34« 


■um  of dollars,  to  me  in  hand  paid  by  E.  F., 

of county,  and  State  of ,  of  the  second 

part,  the  receipt  whereof  is  hereby  acknowl- 
edged, has  and  by  these  presents  does  grant,  bar- 
gain, sell,  assign,  transfer,  and  set  over  unto  the 
said  party  of  tne  second  part,  his  executors,  ad- 
ministrators, and  assigns,  a  certain    mortgage, 

bearing  date  the day  of ,  made  by  A.  B., 

of county,  and  State  of (here  describe  the 

mortgage ,  and  stnie  the  volume  and  f<ageivhere  il  is  reg- 
istered) ,10  ^N^^'^ti  reference  maybe  made,  together 
with  all  the  right,  title,  interest,  and  estate  of  said 
party  of  the  first  part,  in  and  to  the  premises  de- 
scribed and  conveyed  in  and  by  said  mortgage. 

Together  with  the  bond  {or  note)  therein  de- 
scribed and  the  money  due  and  to  grow  due 
tnereon,  with  the  interest  accruing  or  accrued. 

To  have  and  to  hold  the  same,  unto  the  said 
party  of  the  second  part,  his  executors,  adminis- 
trators, and  assigns,  for  his  and  their  use,  subject 
only  to  the  proviso  in  the  said  mortgage  men- 
tioned : 

And  I  do  hereby  make,  constitute,  and  appoint 
the  said  party  of  the  second  part,  my  true  and 
lawful  attorney,  irrevocably  in  my  name  or  other- 
wise, but  at  his  own  proper  costs  and  charges,  to 
have,  use,  and  take  all  lawful  ways  and  means 
for  the  recovery  of  the  said  money  and  interest ; 
and  in  case  of  payment,  to  discharge  the  same  as 
fully  as  I  might  or  could  do  if  these  presents  were 
not  made. 

In  witness  whereof,  etc. 

For  form  of  Acknowledgment,  see  that  title. 

Mortgrag^e  of  Real  Property— Assigrn- 
nient. 

By  a  Corporation. 

Know  all  men  by  these  presents: 

That  the {give  legal  name  of  the  corporation 

assigning),  existing  as  a  corporate  body,  by  and 

under  the  laws  of  the  State  or  of ,  of  the  first 

part,  for  and  in  consideration  of  the  sum  of , 

lawful  money  of  the  United  States,  to  the  said 
corporation  paid  by  E.  F.,  of , etc., of  the  sec- 
ond part,  the  receipt  of  which  is  hereby  acknowl- 
edged, has  and  by  these  presents  does  grant,  bar- 
gain, sell,  assign,  transfer,  and  set  over  unto  the 
said  party  of  the  second  part,  a  certain  mortgage, 

bearing  date  the day  of ,  made  by  A.  B., 

of ,  etc.  (here  briejly  describe  the  mortgage),  the 

same  being  duly  registered  in  the  office  of  the  re- 
corder (or  register)  of  deeds  for  the  county  of , 

and  State  of  ,  to  which  mortgage  reference 

may  be  had. 

Together  with  the  (note  or)  bond  or  obligation 
therein  described,  and  the  moneys  due,  and  to 
grow  due  thereon,  with  the  interest: 

To  have  and  to  hold  the  same  unto  the  said 
party  of  the  second  part,  his  heirs  and  assigns, 
for  his  and  their  own  use,  subject  only  t^o  the  pro- 
viso in  the  said  indenture  of  mortgage  mentioned. 

And  the  said  parties  of  the  first  part  do  hereby 
make,  constitute,  and  appoint  the  said  party  of 
the  second  part  their  true  and  lawful  attorney, 
irrevocable,  in  the  name  of  the  said  parties  of  the 
first  part,  or  otherwise,  but  at  the  proper  costs 
and  charges  of  the  said  party  of  the  second  part, 
to  have,  use,  and  take  all  lawful  ways  and  means 
for  the  recovery  of  the  said  money  and  interest, 
and  in  case  of  payment  to  discharge  the  same  as 
fully  as  the  said  parties  of  the  first  part  might  or 
could  do  if  these  presents  were  not  made. 

In  witness  whereof,  the  said  parties  of  the  first 
part  have  caused  their  common  seal  to  be  affixed 
to  these  presents,  and  the  same  to  be  signed  by 
their  president  and  aecT&X.9.Ty {or  other  officer \,  this 
day  of .  (Signature  of  cj[f.  ens.) 

[Seal  of  corporation. '\ 
Signed, sealed,  and  delivered) 

in  presence  of  ) 

For  form  of  Acknowledgment,  see  that  title. 

Mortg'as'e,  Ktc— Bond. 

Secured  by  a  Mortgage. 

Know  all  men  by  these  presents: 

That  I,  A.  B.,  of ,  in  county,  and  State 

a ,  am  held  and  firmly  bound  unto  C.  D.,  of 

of  ,  in  county,  and  State  of  ,  in  the 

sum  of  {insert  the  amount  of  the  penalty,  Uiually 
tjvice  *s  tttmrh  as  th*  actual  debt),  to  be  paid  to  th* 


said  C.  D.,his  heirs,  executors,  administrators  or 
assigns,  and  to  this  payment  I  hereby  bind  my- 
self, my  heirs,  executors,  and  administratois, 
firmly  by  these  presents. 

Sealed  with  my  seal,  this day  of . 

The  condition  of  the  above  obligation  is: 

That  if  I,  the  said  A.  B.,  or  my  heirs,  executors, 
or  administrators,  shall  pay  or  cause  to  be  paid 

unto  the  said  C.  D.,the  sum  of (here  uiwit 

the  aitual  amount  o/  tite  debt  or  ium  to  be  iei  ured), 

on  the  day  of ,  with  interest  at  the  rate 

of per  cent,  per  annum,  payable  six  month* 

from   the    date    hereof,  and   every  months 

afterwards,  until  the  said  sum  is  paid,  then  the 
above  obligation  shall  be  void  and  of  no  eHect ; 
and  otherwise  it  shall  remain  in  full  force. 

And  I  further  agree  and  covenant,  that  if  any 
payment  of  interest  be  withheld  or  delayed  for 

days  after  such  payment  shall  fall  due,  the 

said  principal  sum  and  all  arrearage  of  interest 
thereon,  shall  be  and   become  due  immediately 

on  the  expiration  of  days,  at  the  option  of 

said  C.  0.,his  executors,  administrators,  or  as- 
signs. A.  B.     [Seal. ) 
Executed  and  delivered  ) 

in  presence  of  > 

Mortgagre  of  Real  Properly— Dower  and 
HonieMtea«l  Exeiiiplioii  ReleaMetl. 

Without  Power  o/  Sale  and  luithoui  IVarranty. 

This  (cons-eyance,    or    indenture,    or)    mortgage, 

made  this day  of ,  between  A.  B.,  of 

county,  State  of ,  and  W.,  wife  of  said  A.  B., 

parties  of  the  first  part,  and  C.  D.,  of county. 

State  of ,  party  of  the  second  part,  witnesseth  . 

That  whereas,  the  said  party  of  the  first  part 
is  justly  indebted  to  the  said  party  of  the  second 

part  in  the  sum  of ,  secured  to  be  paid  by  a 

certain  promissory  note  ior  bond,  describing  it) 

That  the  said  parties  of  the  first  part,  for  the 
better  securing  the  payment  of  the  money  afore- 
said, with  interest  thereon,  according  to  the  tenor 
and  effect  of  the  said  note  (or  bond)  above  men- 
tioned ;  and  also  in  consideration  of  the  further 
sum  of  one  dollar,  to  them  in  hand  paid  by  the  said 
party  of  the  second  part,  at  the  delivery  of  these 
presents,  the  receipt  of  which  is  hereby  acknowl- 
edged, have  and  by  these  presents  do  grant, 
bargain,  sell  and  convey  unto  the  said  party  of 
the  second  part,  his  heirs  and  assigns,  forever, 
all  that  (here  describe  iLc  /•remises  lomeyed) 

To  have  and  to  hold  the  same,  together  with 
all  and  singular  the  tenements,  hereditaments, 
privileges  and  appurtenances  thereunto  belong- 
ing or  in  anywise  appertaining.  And  also  all  the 
estate,  interest  and  claim  whatsoever  in  law  as 
well  as  in  equity,  which  the  parties  of  the  first 
part  have  in  and  to  the  premises  hereby  conveyed 
unto  the  said  party  of  the  second  part,  and  his 
heirs  and  assigns,  and  to  their  only  proper  use, 
benefit  and  behoof. 

And  the  said  parties  of  the  first  part  hereby 
expressly  waive,  release,  relinquish  and  convey 
unto  the  said  party  of  the  second  part,  and  his 
heirs,  executors,  administrators,  and  assigns,  alt 
right,  title,  claim,  interest  and  benefit  whatever, 
in  and  to  the  above-described  premises,  and  each 
and  every  part  thereof,  which  is  given  by  or  re- 
sults from  all  laws  of  this  State  relating  to  the 
exemption  of  homesteads. 

Provided  always,  and  these  presents  are  upon 
this  express  condition  . 

That  if  the  said  party  of  the  first  part,  or  his 
heirs,  executors,  or  administrators  shall  well  and 
truly  pay  or  cause  to  be  paid  to  the  said  party  of 
the  second  part,  or  his  heirs,  executors,  adminis- 
trators, or  assigns,  the  aforesaid  sum  of  money, 
with  such  interest  thereon,  at  the  time  and  in  the 
manner  specified  in  the  above-mentioned  note  (or 
bonil)  according  to  the  true  intent  and  meanmc 
thereof,  then  in  that  case  these  presents  and 
everything  herein  expressed  shall  be  absolutely 
void  and  of  no  effect. 

In  witness  whereof,  the  said  parties  of  the  ntst 
part  hereunto  set  their  hands  (and  ■r.cjX'^)  the  day 
and  year  first  above  written.  A.  B.     {Seal ^, 

Signed,  sealed,  and  delivered  I        W.  B.  \Seal  ] 

in  presence  of  / 

S"or  fnrn'  yf  VxNowLED'.MKNi,  »ee  that  title. 


3$o 


CONVEVANCES 


M[or(ff:n8:e  of  Rcnl  Property— Dower  not 
KelcaNed. 

JVitA  Poiuer  of  Sale  to  Secure  a  Bond. 

This    (conveyance,    or   indenture,   or)    mortgagCi 

made  this day  of ,  between  A.  B.,  of , 

etc.,  party  of  the  first  part,  and  C.    D.,  of  , 

etc.,  party  of  the  second  part,  witnesseth  : 

Whereas,  the  said  A.  B.  is  justly  indebted  to 
the  said  party  of  the  second  part,  in  the  sum  of 

dollars,  secured  to  be  paid  by  a  certain  bond 

or  obligation  bearing  even  date  with  these  pres- 
ents, in  the  penal  sum  of dollars,  conditioned 

for  the  payment  of  the  said  first-mentioned  sum 

of dollars,  as  by  the  said  bond  cr  obligation, 

and  the  condition  thereof,  reference  being  there- 
unto had,  may  more  fully  appear. 

That  the  said  party  of  the  first  part,  for  the  bet- 
ter securing  the  payment  of  the  said  sum  of 
money  mentioned  in  the  condition  of  the  said  bond 
or  obligation,  with  interest  thereon,  according  to 
the  true  intent  and  meaning  thereof,  and  also  for 
and  in  consideration  of  the  sum  of  one  dollar  to 
him  in  hand  paid  by  the  said  party  of  the  second 
part,  the  receipt  whereof  is  hereby  acknowl- 
edged,has  and  by  these  presents  does  grant,  bar- 
gam,  sell,  alien,  release,  convey,  and  confirm  unto 
the  said  party  of  the  second  part,  and  to  his  heirs 
and  assigns  forever,  all  (here  describe  the  premises). 
Together  with  all  and  singular  the  tenements, 
hereditaments,  and  appurtenances  thereunto  be- 
longing or  in  anywise  appertaining,  and  the  re- 
version and  reversions,  remainder  and  remain- 
ders, rents,  issues,  and  profits  thereof:  and  also 
all  the  estate,  right,  title,  interest,  property,  pos- 
session, claim,  and  demand  whatsoever,  as  well 
in  law  as  in  equity,  of  the  said  party  of  the  first 
part,  of,  in,  and  to  the  same,  and  every  part  and 
parcel  thereof,  with  the  appurtenances: 

To  have  and  to  hold  the  above-granted,  bar- 
gained, and  described  premises,  with  the  appur- 
tenances, unto  the  said  party  of  the  second  part, 
and  his  heirs  and  assigns,  to  his  and  their  own 
proper  use,  benefit  and  behoof,  forever. 

Provided  always,  and  these  presents  are  upon 
this  express  condition  : 

That  if  the  said  party  of  the  first  part,  or  his 
heirs,  executors,  or  administrators,  shall  well  and 
truly  pay  u.ito  the  said  party  of  the  second  part, 
or  his  executors,  administrators,  or  assigns,  the 
said  sum  of  money  mentioned  in  the  condition 
of  the  said  bond  or  obligation,  and  the  interest 
thereon,  at  the  time  and  in  the  manner  men- 
tioned in  the  said  condition  according  to  the  true 
intent  and  meaning  thereof,  that  then  these  pres- 
ents, and  the  estate  hereby  granted,  shall  cease, 
determine,  and  be  void. 

And  the  said  A.  B. ,  for  himself  and  his  heirs,  ex- 
ecutors, and  administrators,  does  covenant  and 
agree,  to  pay  unto  the  said  party  of  the  second 
part,  or  his  executors,  administrators,  or  assigns, 
the  said  sum  of  money  and  interest  as  mentioned 
above  and  expressed  in  the  condition  of  the  said 
bond  ; 

And  if  default  shall  be  made  in  the  payment  of 
the  said  sum  of  money  above  mentioned,  or  the 
interest  that  may  grow  due  thereon,  or  of  any 
part  thereof,  that  then  and  from  thenceforth  it 
shall  be  lawful  for  the  said  p^rty  of  the  second 
part,  or  his  executors,  administrators,  or  assigns, 
to  enter  into  and  upon  all  and  singular  the  prem- 
ises hereby  granted  or  intended  so  to  be,  and  to 
sell  and  dispose  of  the  same,  and  all  benefit  and 
equity  of  redemption  of  the  said  party  of  the  first 
part,  or  his  heirs,  executors,  administrators,  or 
assigns  therein,  at  public  auction  ; 

And  out  of  the  money  arising  from  such  sale, 
to  retain  the  principal  and  interest,  vi/hich  shall 
then  be  due  on  the  said  bond  or  obligation,  to- 
gether with  the  costs  and  charges  of  advertise- 
ment and  sale  of  the  same  premises,  rendering 
the  overplus  of  the  purchase-money  (if  any  there 
shall  be)  unto  the  said  A.  B.,  party  of  the  first 
part,  or  his  heirs,  executors,  administrators,  or 
assigns,  which  sale,  so  to  be  made,  shall  forever 
be  a  perpetual  bar,  both  in  law  and  equity,  against 
the  said  party  of  the  first  part,  and  his  heirs  and 
ossigns,  and  all  other  persons  claiming  or  to  claim 


the  premises,  or  any  part  thereof,  by,  from,  or 
under  him  or  them,  or  any  of  them. 

In  witness  whereof,  the  parties  to  these  pres- 
ents have  hereunto  set  their  hands  (and  seals),  the 
day  and  year  first  above  written. 

A.  B.     \SeaL\ 
Sealed  and  delivered  in)  CD.    \SeaL\ 

the  presence  of  j 

For  form  of  Acknowledgment,  see  that  title. 

Slortgaj^e  of  Real  Property— By  Cor- 
poration. 

This    (conveyance,    or    indenture,  or)   mortgage, 

made  this day  of ,  between  A.  B.,  E.  F., 

L.  M.,  etc.,  the  trustees  of  the society  of  the 

church  in  the  town  of,  etc.,  of  the  first  part^ 

and  C.  D.,  of ,  etc.,  of  the  second  part,  wit- 
nesseth : 

That  the  said  party  of  the  first  part,  for  and  in 

consideration   of  the  sum    of  dollars,   does 

grant,  bargain,  sell,  and  convey  unto  the  said 
party  of  the  second  part,  and  to  his  heirs  and  as- 
signs, all  {here  follows  the  desrriptioni :  together 
with  all  and  singular  the  hereditaments  and  ap- 
purtenances thereunto  belonging,  or  in  anywise 
appertaining. 

This  conveyance  is  intended  ( a';  a  mortgage)  to  se- 
cure the  payment  of  the  sum  of dollars,  in 

from  the  day  of  the  date  of  these  presents, 

with annual  interest;  according  to  the  con- 
dition of  a  certain  bond  bearing  even  date  here- 
with,executed  by  the  said  party  of  the  first  part  to 
the  said  party  of  the  second  part;  and  the  said  trus- 
tees oi' the  society  of  the church  in,  etc., 

for  themselves  and  their  successors,  do  covenant 
and  agree  to  pay  unto  the  said  party  of  the  sec- 
ond part,  his  executors  and  administrators,  or 
assigns,  the  said  sum  of  money,  and  interest,  as 
above  mentioned,  and  as  expressed  in  the  con- 
dition of  the  said  bond  : 

And  if  default  shall  be  made  in  the  payment 
of  the  said  sum  of  money  as  above  mentioned, 
or  the  interest  that  may  grow  due  thereon,  or  of 
any  part  of  either  the  said  principal  or  interest, 
that  then,  and  from  thenceforth,  it  shall  be  law- 
ful for  the  said  party  of  the  second  part,  his  ex- 
ecutors, administrators,  and  assigns,  to  enter  into 
and  upon  all  and  singular  the  premises  hereby 
granted  or  intended  so  to  be  and  to  sell  and  dispose 
of  the  same,  and  all  benefit  and  equity  of  redemp- 
tion of  the  said  party  of  the  first  part,  their  suc- 
cessors, or  assigns  therein,  at  public  auction,  ac- 
cording to  the  act  in  such  case  made  and  pro- 
vided: 

And  as  the  attorney  of  the  said  party  of  the 
first  part,  for  that  purpose  by  these  presents  duly 
authorized,  constituted,  and  appointed,  to  make 
and  deliver  to  the  purchaser  or  purchasers  there- 
of, a  good  and  sufficient  deed  or  deeds  of  convey- 
ance in  the  law  for  the  same,  in  fee  simple  ;  and 
out  of  thfi  money  arising  from  such  sale,  to  re- 
tain the  principal  and  interest  which  shall  then 
be  due  on  the  said  bond  or  obligation,  together 
with  the  costs  and  charges  of  the  sale  of  the  said 
premises,  rendering  the  overplus  of  the  purchase- 
money  (if  aiiy  there  <.hall  be)  unto  the  said  party  of 
the  first  part,  their  successors  or  assigns  :  which 
sales,  so  to  be  made,  shall  forever  be  a  perpetual 
bar,  both  in  law  and  equity,  against  the  said  party 
of  the  first  part,  their  successors  and  assigns,  and 
against  all  other  persons  claiming,  or  to  claim, 
the  premises,  or  any  part  thereof,  by,  from,  or 
under  them,  or  any  of  them. 

In  witness  whereof,  the  said  parties  of  the  first 
part  have  hereunto  set  their  hands  and  affixed 
their  corporate  seal,  the  day  and  year  first  above 
written.  A.  B.  ~. 

E.  F.   I  Tritstees  OF, 
L.  M.  f     ETC.  {Seal.\ 

etc.    •' 
Sealed  and  delivered  I 

in  presence  of  | 

For  form  of  Acknowledgment,  see  that  title. 

MortKaj^e  of  Real  Property— To  Cor- 
poration. 

This    (conveyance,    or   indenture,   or)    mortgage, 

made  this day  of ,  between  A.  B.,  of , 

etc.,  of  the  first  part,  and  the  mayor  (<»■  aldermen. 


CONVEYANCES. 


3St 


«nd  council?   »f  jKe  :ity  of ,  eic),  of  the  second 

part,  witnccsetn  . 

That  the  said  party  of  the  first  part,  for  and  in 

consideration  of  ihe  sum  of dollars,  to  him 

in  hand  paid  by  the  said  party  of  the  second  part, 
.  the  receipt  whereof  is  hereby  acknowledged,  has 
and  by  these  presents  does  grant,  bargain,  sell, 
alien,  release,  convey,  and  confirm  unto  the  said 
party  of  the  second  part,  their  successors  and  as- 
signs, forever,  all  {Jttrt  follows  the  description  of  the 
premises  conveyed) ;  together  >vith  the  tenements, 
hereditaments,  and  appurtenances  thereunto  be- 
longing, or  in  anywise  appertaining;  and  also, 
all  the  estate,  right,  title,  interest,  property,  pos- 
session, claim,  and  demand  >vhatsoever,  of  the 
said  party  of  the  first  part,  of,  in  and  to  the  same  ; 
and  the  reversion  and  reversions,  remainder  and 
remainders,  rents,  issues,  and  profits  thereof: 

To  have  and  to  hold  the  hereinbefore  granted 
and  described  premises,  with  the  appurtenances, 
unto  the  said  party  of  the  second  part,  their  suc- 
cessors and  assigns,  to  their  only  proper  use, 
bencnt,  and  behoof,  forever. 

This  conveyance  is  intended  as  a  mortgage  to 

secure  the  payment  of  the  sum  of dollars,  in 

manner  following,  to  wit :  etc. ;  according  to  the 
condition  of  a  certain  bond  bearing  even  date 
herewith,  executed  by  the  said  party  of  the  first 
part  to  the  party  of  the  second  part,  and  these 
presents  shall  be  void  if  such  payment  be  made. 

But  in  case  default  shall  be  made  in  the  pay- 
ment of  the  principal  or  interest  aforesaid,  as 
above  provided,  then  the  party  of  the  second  part, 
their  successors  and  assigns  are  hereby  empow- 
ered to  sell  the  premises  above  described,  with 
all  and  every  of  the  appurtenances,  or  any  part 
thereof,  in  the  manner  prescribed  by  law  ;  and 
out  of  the  money  arising  from  such  sale,  to  re- 
tain the  said  principal  and  interest,  together  with 
the  costs  and  charges  of  making  such  sale;  and 
the  overplus,  if  any  there  be,  shall  be  paid  by  the 
party  making  such  sale,  on  demand,  to  the  party 
ef  the  first  part,  his  heirs  or  assigns. 

And  the  said  party  of  the  first  part  does  cove- 
nant, promise,  and  agree,  to  and  with  the  said 
party  of  the  second  part,  their  successors  and  as- 
signs, that  he,  the  said  party  of  the  first  part, 
shall  and  will,  well  and  truly  pay  to  the  said 
party  of  the  second  part,  their  successors  and  as- 
signs, the  said  sum  of  money,  with  the  interest 
thereon,  at  the  time,  and  in  the  manner  hereinbe- 
fore mentioned,  according  to  the  condition  of  the 
said  bond. 

In  witness  whereof,  etc. 
For  form  of  Acknowledgment,  see  that  title. 

9Ior<g:a;;e  of  Real  Property— Discbarg^e 
or  Release. 

See  Release,  etc.,  Satisfaction,  etc.,  below. 
The  debt  secured  by  the  mortgage  dated  the 

•         day  of  ,  and  recorded  with deeds, 

book ,  page ,  has  been  paid  to  me  by  A. 

B.,  and  in  consideration  thereof  I  do  discharge 
the  mortgage  and  release  the  mortgaged  prem- 
ises to  said  A.  B.,  and  his  heirs. 

Witness  my  hand  (.a"d  seal},  this day  of . 

C.  D.     lSeal.\ 
Executed  and  delivered ) 
in  presence  of  J 

Vox  form  of  Acknowledgment,  see  that  title. 

]IIort{cagre  of  Roal  Properly— DiscliarKe 
or  Release. 

See  Release,  etc..  Satisfaction,  etc.,  below. 

State  of ,  county  of ,  ss. 

I,  C.  D.,  of ,  in county.  State  of ,  do 

hereby  certify  that  a  certain  mortgage,  bearing 

date  the day  of ,  made  and  executed  by 

A.  B.,of ,  in county.  State  of ,  of  and 

upon  the  following  described  premises,  to  wit : 
{describing  them),   and   recorded   in  the  office  of 

,  in county,  State  of ,  in  book  of 

mortgages,  page ,  on  the day  of ,  at 

o'clock,  in  the  —  M.,  is  paid.  And  I  do  hereby 
consent  that  the  same  be  discharged  of  record. 

Dated  the day  of . 

Executed  in  presence  of)  C.  D.    [SealA 

w.  s.  ; 

F«r  form  of  Acknowledgment,  see  that  litlc. 


MortgTRire  of  Real  Property— niftcharir* 
an«l  HatiNfartioii. 

By  a  Corporation. 
See  Rblbase,  etc.,  Satisfaction,  etc.,  below. 

We, (give  the  legal  name  of  the  corporation), 

a  corporate  body  existing  under  and  by  virtue 
of  the  laws  of  the  State  {or  Commonwealth)  of 
,  do  hereby  certify: 

That  a  certain  mortgage,  bearing  date  the 

day  of ,  in  the  year ,  made  and  executed 

by  A.  B.,  of  and  upon  the  following  described 
premises,  to  wit :  (des<r Mug  them),  and  recorded 
in  the  office  of  the  register  {or  recorder)  of,  in,  and 

for  the  county  of ,  in  book of  mortgages, 

page ,  on  the day  of ,  is  paid.  . 

In  witness  whereof,  the  said  corporation  has- 
caused  its  corporate  seal  to  be  hereunto  affixed, 
this day  of .  ( Oncer's  signature.) 

[  Corporate  seal.  ] 
Executed  in  presence  of) 
W.  S.  / 

For  form  of  Acknowlebgment,  see  that  title. 

Mortgrasc  of  Real  Property— To  Exee- 
II  tors. 

This    (conveyance,    or    indenture,  or)   mortgage, 

made  this day  of ,  between  A.  B.,  of , 

etc.,  of  the  first  part,  and  E.  X.  and  T.  R.,  both 
of ,  etc.,  executors  of  the  last  will  and  testa- 
ment of  D.  D.,  deceased,  of  the  second  part,  wit- 
nesseth : 

That  the  said  party  of  the  first  part,  for  and  in 

consideration  of  the  sum  of dollars,  to  him 

in  hand  paid  by  the  party  of  the  second  part,  at 
or  before  the  ensealing  and  delivery  of  these 
presents,  the  receipt  whereof  is  hereby  acknowl- 
edged, has  and  by  these  presents  does  grant,  bar- 
gain, sell,  alien,  release,  convey,  and  confirm  unto 
the  said  party  of  the  second  part,  and  the  survi- 
vors and  survivor,  and  his  and  their  assigns,  for- 
ever, all  {here  follows  a  description  of  the  premises 
mortgaged);  together  with  all  and  singular  the 
tenements,  hereditaments,  and  appurtenances 
thereunto  belonging  or  in  anywise  appertaining, 
and  the  reversion  and  reversions,  remainder  and 
remainders,  rents,  issues,  and  profits  thereof; 
and  also  all  the  estate,  right,  title,  interest,  prop- 
erty, possession,  claim,  and  demand  ^vhatsoever, 
as  well  in  law  as  in  equity,  of  the  said  party  of 
the  first  part,  of,  in  and  to  the  same,  and  every 
part  and  parcel  thereof,  with  the  appurtenances: 

To  have  and  to  hold  the  above-granted,  bar- 
gained, and  described  premises,  with  the  appur- 
tenances, unto  the  said  party  of  the  second  part, 
the  survivors  and  survivor,  and  his  and  their  as- 
signs, to  their  only  proper  use,  benefit,  and  be- 
hoof, forever. 

This  conveyance  is  intended  (as  a  mortgage)  to 

secure  the  payment  of  the  sum  of dollars,  in 

manner  following,  to  wit :  (give  amounts,  places, 
times,  etc.,  etc.,  of  payment),  according  to  the  con- 
dition of  a  certain  bond,  bearing  even  date  here- 
with, executed  by  the  said  party  of  the  first  part 
to  the  party  of  the  second  part ;  and  these  pre*> 
ents  shall  be  void  if  such  payment  be  made. 

And  the  said  party  of  the  first  part,  for  himself 
and  his  heirs,  executors,  and  administrators,  doth 
covenant  and  agree  to  pay  unto  the  said  partv 
of  the  second  part,  and  the  survivors  and  survi- 
vor, or  his  or  their  assigns,  the  said  sum  of  money, 
and  interest,  as  above  mentioned,  and  as  ex- 
pressed in  the  condition  of  the  said  bond ; 

And  if  default  shall  be  made  in  the  payment  of 
the  said  sum  of  money  above  mentioned,  or  the 
interest  that  may  grow  due  thereon,  or  of  any 
part  thereof,  that  then,  and  from  thenceforth,  it 
shall  be  lawful  for  the  said  party  of  the  second 
part,  the  survivors  or  survivor,  and  his  or  their 
assigns,  to  enter  into  and  upon  all  and  singular 
the  premises  hereby  granted,  or  intended  so  to 
be,  and  to  sell  and  dispose  of  the  same,  and  all 
benefit  and  equity  of  redem  ption  of  the  said  party 
of  the  first  part,  his  heirs,  executors,  administra- 
tors or  assigns  therein,  at  public  auction,  accord- 
ing to  the  act  in  such  case  made  and  provided. 

And  as  the  attorney,  or  attorneys,  of  the  said 
party  of  the  first  part,  for  that  purpose  by  these 
presents  duly  authorized,  constituted,  and  ap- 
pointed, to  make  and  deliver  to  the  purcha**r  or 


23 


55* 


CONVEYANCES. 


purchaaerm  thereof,  a  good  and  sufficient  deed  or 
deeds  of  conveyance  in  the  law  for  the  same,  in 
fee  simple,  and  out  of  the  money  arising  from 
such  sale,  to  retain  the  principal  and  interest 
which  shall  then  be  due  on  the  said  bond  or  obli- 
gation, together  with  the  costs  and  charges  of 
advertisement  and  sale  of  the  said  premises,  ren- 
dering the  overplus  of  the  purchase-money  (if  any 
there  shall  be)  unto  the  said  party  of  the  first  part, 
his  heirs,  executors,  administrators,  or  assigns  ; 
which  sale  so  to  be  made,  shall  forever  be  a  per- 
petual bar,  both  in  lawr  and  in  equity,  against  the 
said  party  of  the  first  part,  his  heirs  and  assigns, 
and  all  other  persons  claiming  or  to  claim  the 
premises  or  any  part  thereof,  by,  from  or  under 
him,  them,  or  any  of  them. 

In  witness  \vhereof,  etc. 
For  form  of  Acknowledgment,  see  that  title. 
Xortg:ag'e  of  Real  Property— Extendin;^ 
a  yiortgage. 

This  (conveyance,   or    indenture,    or)    mortgage, 

made  this day  of ,  by  and  between  C.  D., 

of .  in  county.  State  of ,  the  owner 

and  holder  of  a  certain  promissory  note  {or  bond) 

for  the  principal  sum  of dollars,  given  by  A. 

B.,  of ,  in  county.  State  of ,  and  se- 
cured by  a  mortgage  of  certain  real  estate  in , 

in  county,  and  State  of ,  dated day 

,  and  recorded  in  book ,  page ,  in  mort- 
gage record  No.   ,  for  said  county  of  , 

party  of  the  first  part,  and  the  said  A.  B.,  party 
of  the  second  part,  witnesseth  : 

That  the  said  parties,  for  themselves  and  their 
representatives,  hereby  mutually  agree  that  the 
time  for  the  payment  of  the  principal  of  said  note 
and  mortgage  debt  shall  be  and  the    same    is 

hereby  extended  for  the  term  of years  from 

the day  of ,  and  that  the  same  is  to  bear 

interest  from  said  date  at  the  rate  of per  cent. 

per  annum,  payable  on  the  day  of and 

the day  of ,  in  every  year,  until  said  prin- 
cipal sum  shall  be  fully  paid. 

And  the  said  party  of  the  second  part  hereby 
covenants  and  agrees : 

That  he  will  not  require  the  holders  of  said  note 
and  mortgage  to  receive  payment  of  said  mort- 
gage debt  during  said  extended  term  ; 

That  he  will  punctually  pay  the  interest  now 
due,  and  to  grow  due  thereon,  at  the  times  and 
at  the  rate  aforesaid  ; 

That  he  will  keep  the  mortgaged  premises  in 
good  repair,  and  insured  against  fire,  and  the 
taxes  thereon  duly  paid,  according  to  the  provi- 
sions of  said  mortgage ; 

And  that  atthe  expiration  of  said  extended  term 
he  will  pay  the  said  mortgage  debt,  with  all  in- 
terest then  due  thereon. 

It  is  expressly  understood  and  agreed  that  no- 
thing herein  contained  shall  be  construed  to 
impair  the  security  of  said  party  of  the  first  part, 
or  his  executors,  administrators,  or  assigns,  un- 
der said  mortgage,  or  to  affect  or  impair  the  lien 
on  the  real  estate  therein  described  which  he  has 
by  virtue  of  said  mortgage,  nor  affect  or  impair  any 
rights  or  powers  which  he  may  have  under  the  said 
note  and  mortgage  for  the  recovery  of  the  mort- 
gage debt,  with  interest,  in  case  of  non-fulfilment 
of  this  agreement,  or  of  any  of  the  provisions 
hereof,  by  said  party  of  the  second  part. 

In  witness  whereof,  the  said  parties  havs  here- 
unto set  their  hands  (and  seals),  the  day  and  year 
first  above  written.  CD.     [Sea/.] 

Signed,  sealed,  and  delivered  )        A.  B.     [.Scra/.J 

in  presence  of  W.  T.,  N.  S.  j 

For  form  of  Acknowledgment,  see  that  title. 

Mortgrag^e  of  Real  Property— Farther 
Cbartpe  on  ^lortj^a^ed  Premises. 

By  Indorsement. 

To  all  persons  to  whom  these  presents  shall 
come: 

Whereas  the  within-named  A.  B.  has  advanced 
and  lent  unto  the  within-named  C.  D.  the  further 
sum  of dollars,  the  receipt  of  which  is  here- 
by acknowledged,  and  thereupon  the  said  C.  D. 
has  entered  into  a  bond  or  obligation  of  even 
date  with  these  presents,  to  the  said  A.  B.,  in  the 

penal  sum  of ,  with  a  condition  thereunder 

Written  for  making  void  the  same,  upon  payment 


by  the  said  C.  D.,  his  heirs,  etc.,  unto  the  said 

A.  B.,  his  executors,  etc.,  of  the  sum  of ,  ^vith 

interest  for  the  same  at  the  rate  of per  cent. 

per  annum,  on  the day. 

Nowr  know  ye: 

That  for  better  securing  unto  the  said  A.  B., 
his  executors,  etc.,  the  payment  of  the  said  fun 

thersumof ,  and  the  interest  thereof,  on  thk 

said  day,  according  to  the  condition  therein 

expressed,  he,  the  said  C.  D.,  does  hereby,  for 
himself,  his  heirs,  executors,  administrators, 
and  assigns,  covenant,  promise,  and  agree 
to  and  with  the  said  A.  B.,  his  executors,  etc., 
that  all  and  singular  the  premises  \vithin 
mentioned  to  be  mortgaged  (use  the  words  of  th* 
mortgage  deed)  to  the  said  A.  B.  and  his  heirs 
with  their  appurtenances,  shall  stand  charged 
with,  and  be  a  security  unto  him,  the  said  A.  B. 
his  executors,  etc.,  as  well  for  the  payment  of 

the  sum  of ,  within  mentioned,  and  the  inters 

est  thereof,  as  also  for  the  payment  of  the  said 

further  sum  of ,  now  lent  and  advanced  as 

aforesaid,  and  the  interest  thereof,  and  that  the 
said  premises  shall  not  be  redeemed  or  redeem-, 
able,  either  in  law  or  equity,  until  not  only  the 

said  sum   of  before  lent,  and  the  interest 

thereof,  but  also  the  said  further  sum  of now 

lent,  and  the  interest  thereof,  shall  be  fully  paid 
and  satisfied  unto  the  said  A.  B.,his  executois, 
etc.,  according  to  the  true  intent  and  meaning  of 
the  said  bond  or  obligation,  and  of  these  presents. 

In  witness  whereof,  etc. 

For  form  of  Acknowledgment,  see  that  title. 

Mortgagre  of  Real  Property— Indemnity 
to  MCortgagree. 

Kno\v  all  men  by  these  presents : 

That  I,  A.  B.,  of ,  etc.,  as  a  collateral  se^ 

curity  to  C.  D.,  for  my  full  performance  of 
the  covenant  of  indemnification  hereinafter  ex. 
pressed,  and  according  to  the  condition  of  thi» 
conveyance,  and  in  further  consideration  of  the 
sum  of to  me  paid  by  the  said  C.  D.,  the  re- 
ceipt whereof  I  do  hereby  acknowledge,  have 
given,  granted,  bargained,  sold,  and  conveyed 
unto  the  said  C.  D.,  his  heirs  and  assigns,  forever, 
a  certain  piece  or  parcel  of  land,  situate  (here/ol- 
lotus  the  description),  together  with  all  the  privi- 
leges and  appurtenances  to  the  same  in  anywise 
appertaining  and  belonging : 

To  have  and  to  hold  the  same  to  the  said  C.  D., 
his  heirs  and  assigns,  to  his  and  their  use  and  beu 
hoof  forever: 

And  I,  the  said  A.  B.,  for  myself,  my  heirs,  ex- 
ecutors, and  administrators,  do  covenant  with 
the  said  C.  D.,  his  heirs  and  assigns,  that  I  am 
lawfully  seized  in  fee  of  the  aforegranted  prem- 
ises ;  that  they  are  free  from  all  incumbrances ; 
that  I  have  good  right  to  sell  and  convey  the 
same  to  the  said  C.  D.,  as  aforesaid;  and  that  I 
will,  and  my  heirs,  executors,  and  administrators 
shall  warrant  and  defend  the  same  to  the  said 
C.  D.,  his  heirs  and  assigns,  forever,  against  the 
lawful  claims  and  demands  of  all  persons. 

Provided  always,  nevertheless : 

Whereas  A.  R.,  of ,  etc.,  as  administratoi- 

de  bonis  non,  of  the  goods  and  estate  of  D.  D., 

late  of ,  etc.,  has  recovered  judgment  against 

the  said  C.  D.,  as  administrator  de  bonis  non,  of 

the  goods  and  estate  of  D.  X.,  late  of ,  etc., 

for  the  sum  of dollars ; 

And  whereas,  pursuant  to  a  certain  bond,  here- 
tofore given  by  me  to  E.  X.,  executrix  of  the  last 
will  and  testament  of  the  said  D.  X.,  I,  the  said 
A.  B. ,  among  other  things,  am  holden  and  obliged 
for  the  payment  of  all  and  any  debts  which 
should  appear  against  the  said  D.  X.'s  estate. 

And  whereas,  at  my  request,  and  for  my  de- 
fence against  the  said  D.  D.'s  demand  and  judg- 
ment, he,  the  said  C.  D.,  has  undertaken  to 
review  the  said  judgment,  and  to  prosecute  a 
writ  of  review  of  the  said  D.  D.'s  action  for  that 
purpose,  at  the  next  term  of  the  supreme  court, 
to  be  holden  at ,  etc.,  and,  to  prevent  execu- 
tion upon  the  said  judgment,  has  given  bond  to 
the  said  D.  D.,  wherein  he^  the  said  C.  D.,  is 
principal,  and  I,  the  said  A.  B.,  and  £.  X.  are 
sureties. 

These  presents  are  on  this  condition 


CONVEYANCES. 


353 


That  If  the  said  A.  B.,  his  heirs,  executors,  or 
administrators,  shall  indemnify  and  save  harm- 
less the  said  C.  D.,  his  heirs,  executors,  and  ad- 
ministrators, against  the  said  judgment,  and 
against  every  judgment,  which  shall  be  rendered 
upon  any  v/rit  of  review,  which  shall  be  prose- 
cuted as  aforesaid,  then  this  deed  shall  be  void, 
otherwise  shall  remain  in  full  force: 

And  further,  I,  the  said  A.  B.,  for  myself,  my 
heirs,  etc.,  hereby  covenant  with  the  said  C.  D., 
his  heirs,  etc.,  that  I,  my  heirs,  etc.,  shall  and 
will  indemnify  the  said  C.  D.,  his  heirs,  etc., 
against  the  said  bond  of  review,  and  any  judg- 
ment (as  well  the  debt  or  dam.iges,  as  tlie  costs  there- 
•n).  which  has  been,  or  which  shall  be  recovered 
■gainst  him  by  the  said  D.  D.  as  aforesaid,  and 
Will  save  the  said  C.  D.,  his  heirs,  etc.,  harmless 
therefrom. 

In  witness  whereof,  etc. 

For  form  of  Acknowledgment,  s«e  that  title. 

BKortgrag^e  of  Real  Property— I<ease. 

By  an  Assignee. 

This  (conveyance,    or    indenture,    or)    mortgage, 

made  this day  of ,  between  A.  B. ,  of , 

etc.,  of  the  first  part,  and  C.  D.,  of ,  etc.,  of 

the  second  part: 

Whereas,  E.  F.  by  a  certain  indenture  of  lease 

bearing  date  the  day  of  ,  did  demise, 

release,  and  to  farm  let,  unto  G.  H.,  and  to  his 
executors,  administrators,  and  assigns,  all  and 
lingular  the  premises  hereinafter  mentioned  and 
described,  together  with  the  appurtenances,  unto 
the  said  G.  H.,  and  to  his  executors,  administra- 
tors, and  assigns,  for  and  during  and  until  the 

full  end  and  term  of years,  from  the day 

of ,  and  fully  to  be  complete  and  ended,  yield- 
ing and  paying  therefor  unto  the  said  E.  F.,  and 
to  his  executors,  or  assigns,  the  yearly  rent  or 

•um  of dollars  ;  which  said  indenture  of  lease 

and  term  of  years  therein  mentioned  and  de- 
mised, have  been  duly  assigned  to  the  said  A.  B. 

And  whereas,  the  said  party  of  the  first  part  is 
justly  indebted  unto  the  said  party  of  the  second 

part,  in  the  sum  of dollars,  secured  to  be  paid 

by  his  certain  bond  or  obligation,  bearing  even 

date  with  these  presents,  in  the  penal  sum  of 

dollars,  lawful  money  as  aforesaid,  conditioned 
for  the  payment  of  the  said  first  mentioned  sum, 
with  interest : 

Now  this  indenture  witnesseth  . 

That  the  said  party  of  the  first  part,  for  the  bet- 
ter securing  the  payment  of  the  said  sum  of 
money  mentioned  in  the  condition  of  the  said 
bond,  or  obligation,  with  interest  thereon,  ac- 
cording to  the  true  intent  and  meaning  thereof, 
and  also  for  and  in  consideration  of  the  sum  of 
'—  dollars,  to  him  in  hand  paid  by  the  said  party 
of  the  second  part,  at  or  before  the  ensealing  and 
delivery  of  these  presents,  the  receipt  whereof  is 
hereby  acknowledged,  has  and  by  these  presents 
does  grant,  bargain,  sell,  assign,  transfer,  and  set 
over  unto  the  said  party  of  the  second  part,  all 
(here  follows  the  description  of  the  premises),  with 
all  and  singular  the  privileges  and  appurtenances 
thereunto  belonging  or  in  anywise  appertaining ; 
and  also  all  the  estate,  right,  title,  interest,  term 
of  years  to  come  and  unexpired,  property,  posses- 
sion, claim,  and  demand  whatsoever,  as  well  in 
law  as  in  equity,  of  the  said  party  of  the  first 
part,  of,  in,  and  to  the  said  leased  premises,  and 
every  part  and  parcel  thereof,  with  the  appurte- 
nances ;  and  also  the  said  indenture  of  lease,  and 
every  clause,  article,  and  condition  therein  ex- 
pressed and  contained : 

To  have  and  to  hold  the  said  indenture  of  lease 
and  other  hereby  granted  premises,  unto  the  said 
party  of  the  second  part,  his  executors,  adminis- 
trators, and  assigns,  to  his  and  their  only  proper 
use,  benefit  and  behoof,  for  and  during  all  the 
rest,  residue,  and  remainder  of  the  said  term  of 
years  yet  to  come  and  unexpired  ;  subject,  never- 
theless, to  the  rents,  covenants,  provisions,  and 
conditions  in  the  said  indenture  of  lease  men- 
tioned : 

Provided  always,  that  these  presents  are  upon 
this  express  condition  :  That  if  the  party  of  the 
first  part  shall  well  and  truly  pay  unto  the  said 
party  of  the  second  part,  the  said  sum  of  money 


mentioned  in  the  condition  of  the  said  bond  or 
obligation,  and  the  interest  thereon,  at  the  time 
and  manner  mentioned  in  the  said  condition,  ac- 
cording to  the  true  intent  and  meaning  thereof; 
that  then  and  from  thenceforth  these  presents, 
and  the  estate  hereby  granted,  shall  cease,  deter 
mine,  and  be  utterly  null  and  void  ;  anythin 
hereinbefore  contained  to  the  contrary  in  an^ 
\vise  notwithstanding. 

And  the  said  party  of  the  first  part  doth  hereoy 
covenant,  grant,  promise,  and  agree,  to  and  wit., 
the  said  party  of  the  second  part,  that  he  snait 
well  and  truly  pay  unto  the  said  party  of  the  sec- 
ond part  the  sum  of  money  mentioned  in  the  con  ■ 
dition  of  the  said  bond  or  obligation,  and  th-; 
interest  thereon,  according  to  the  condition 
thereof;  and  that  the  said  premises  hereby  con- 
veyed now  are  .ree  and  clear  of  all  incumbrance 
whatsoever,  and  w»-ia';  ne  has  good  right  and  law- 
ful authority  ;o  -^onvey  'cne  same  in  manner  anc" 
form  as  the  ::ame  are  nereby  conveyed.  And  ii 
default  shall  oe  ..lade  in  the  payment  of  the  saic 
sum  of  money  aoave  mentioned,  or  in  the  inter 
est  which  shall  accrue  thereon,  or  of  any  part  oi 
either,  that  then  and  from  thenceforth  it  shall  bo 
lawful  for  the  said  party  of  the  second  part-,  ami 
his  assigns,  to  sell,  transfer,  and  set  over  all  the 
rest,  residue,  and  remaining  term  o*'  years,  then 
yet  to  come,  and  all  other  the  right,  title  and  in- 
terest of  the  said  party  of  the  first  part,  of,  in, 
and  to  the  same,  at  public  auction,  according  to 
law. 

And  as  the  attorney,  or  attorneys,  of  the  ««id 
party  of  the  first  part,  for  that  purpose  by  these 
presents  duly  authorized,  constituted,  and  ap- 
pointed, to  make  and  deliver  to  the  purchaser  or 
purchasers  thereof,  a  good  and  sufficient  deed  or 
deeds  of  conveyance  in  the  law  for  the  same,  in 
fee  simple,  and  out  of  the  money  arising  from 
such  sale,  to  retain  the  principal  and  interest 
which  shall  then  be  due  on  the  said  bond  or  obli- 
gation, together  with  the  costs  and  charges  of 
advertisement  and  sale  of  the  said  premises,  ren« 
dering  the  overplus  of  the  purchase-money  (if  an:| 
there  shall  be)  unto  the  said  party  of  the  first  part, 
his  heirs,  executors,  administrators,  or  assigns; 
which  sale  so  to  be  made,  shall  forever  be  a  pei.- 
petual  bar,  both  in  law  and  in  equity,  against  th« 
said  party  of  the  first  part,  his  heirs  and  assignit, 
and  all  other  persons  claiming,  or  to  claim  tha 
premises,  or  any  part  thereof,  by,  from,  or  under 
him,  them,  or  any  of  them. 

In  w^itness  whereof,  etc. 
For  form  of  Acknowledgment,  see  that  title. 
Blortg^a^e  of  Real  Property— tife, 
Support  during',  etc. 

To  Secure  a  Support  to  the  Mortgagee  during  Life. 

This    (conveyance,    or    indenture,   or)   mortgage^ 

made  this day  of ,  between  A.  B.,or > 

etc.,  of  the  one  part,  and  C.  D.,  of ,  etc.,  of 

the  other  part,  witnesseth 

That  the  said  A.  B.,  in  consideration  of  the  sum 

of dollars,  to  him  paid  by  the  said  C.  D.,  the 

receipt  whereof  the  said  A.  B.  hereby  acknowl- 
edges, does  give,  grant,  bargain,  sell,  and  convey 
unto  the  said  C.  D.,  and  his  heirs  and  assigns,  aU 
that,  etc.  (describing  the  premises),  with  the  appur' 
tenances,  to  have  and  to  hold  to  the  said  C.  D., 
and  his  heirs  and  assigns,  to  his  and  their  soK 
use  and  benefit  forever. 

('And  the  said  A.  B.,  for  himself,  his  heirs,  executors, 
and  administrators,  doth  covenant  with  the  said  C.  D., 
his  heirs  and  assigns,  that  he,  the  said  A.  B.,  immedi* 
ately  before  the  sealing  and  delivery  hereof,  is  lawfully 
seized  in  fee  of  the  described  premises  ;  that  the  same 
are  free  from  all  incumbrances  ;  that  the  said  A.  B.  hath 
full  power  and  lawful  authority  to  convey  the  same  as 
aforesaid,  and  that  he,  the  said  A.  B.,  his  heirs,  execu- 
tors, and  administrators,  shall  and  will  warrant  and  de- 
fend the  same  to  the  said  C.  D.,  and  his  assigns,  free 
from  the  lawful  claims  and  demands  of  all  persons  what- 
soever.) 

Provided  always,  that  if  the  said  C.  D.,  his 
heirs,  executors,  administrators  or  assigns,  shall 
well  and  sufficiently  suppcrt  and  maintain  the 

R-Where  the  land  is  first  conveyed  from  the  mort- 
gagee, the  mortgagor  should  warrant  against  persons 
claiming  under  himself  only. 


3J4 


CONVEYANCES. 


•aid  A.  B.  from  the  date  of  these  presents,  as 
long  as  he  shall  live,  with  sufficient  and  conven- 
ient boarding,  lodging,  clothing,  washing,  fuel 
and  all  other  necessaries  and  conveniences  suit- 
able for  his  comfortable  support,  and  at  such 
place  or  places  within  this  State  {or  Common- 
wealth) as  the  said  A.  B.  shall  appoint,  and  give 
reasonable  notice  from  time  to  time,  but  the 
expenses  of  removal  to  be  borne  by  the  said 
A.  B.  after  the  first  time,  then  the  above  convey- 
ance or  grant  to  be  void,  otherwise  to  be  in  full 
force. 

And  the  said  C.  D.,  for  himself,  his  heirs,  etc., 
doth  hereby  covenant  with  the  said  A.  B.,  that 
he,  the  said  C.  D.,  his  heirs,  etc.,  or  some  of  them, 
shall  well  and  sufficiently  support  and  maintain 
the  said  A.  B.  from  the  date  of  these  presents, 
as  long  as  he  shall  live,  with  sufficient  and  con- 
venient boarding,  lodging,  clothing,  washing, 
fuel  and  other  necessaries  and  conveniences, 
suitable  for  his  comfortable  support,  and  at  such 
place  within  this  commonwealth,  as  the  said  A. 
a.  shall  from  time  to  time  appoint,  and  give 
reasonable  notice,  etc. 

And  the  said  A.  B.  covenants  with  the  said  C. 
D.,his  heirs,  executors,  administrato'-s,  and  as- 
signs, that  so  long  as  the  said  C.  D.,his  heirs, 
etc.,  or  any  or  either  of  them,  shall  faithfully  per- 
form, keep  and  observe  the  covenant  and  proviso 
before  mentioned,  on  the  part  of  them,  the  said 
C.  D.,  his  heirs,  etc.,  to  be  performed  and  kept, 
it  shall  be  lawful  for  the  said  C.  D.,  his  heirs, 
etc.,  peaceably  to  occupy  and  enjoy  the  premises 
^vith  the  appurtenances,  and  receive  the  rents 
and  profits  thereof,  to  his  and  their  own  use, 
without  the  lawful  interruption  or  disturbance  of 
the  said  A.  B. ,  or  any  persons  claiming  under  him. 

In  witness  whereof,  etc. 
For  form  of  Acknowledgmknt,  see  that  title. 

Hortg^agre,  etc.— Promissory  Xote. 

Secured  by  Mortgage. 
See  Bonds,  Notes,  and  Bills,  ante,  pp.  149, 150. 

$ .  Place .     Date . 

days  (iw  months,  etc.)  after  date  {or  on  the 

day  of ),  I  (pr  we,  etc.)  promise  to  pay  to  C. 

D. dollars,  at  ,  with  interest  at  the  rate 

of per  cent,  per  annum,  for  value  received. 

This  note  ia  secured  by  a  mortgage  {or  trust 
deed)  on  {give  tnetnorandum  0/ premises),  of  even 
date  herewith,  from  A.  B.  to  C.  D. 

{Signed)    A.  B. 

Mortgragre  of  Real  Property— Purchase 
Money. 

This  (conveyance,  or  indenture,  or  mortgage),  made 

this day  of ,  by  {or  between)  A.  B.,  of , 

of  the  first  part,  to  {or  and)  C.  D.,  of ,  of  the 

second  part,  witnesseth : 

That  the  said  party  of  the  first  part,  for  and  in 

consideration  of  the  sum  of  dollars,  does 

grant,  bargain,  sell  and  convey  unto  the  said 
party  of  the  second  part,  and  to  his  heirs  and  as- 
signs, all  {here  follows  the  description  0/  the  prem- 
ises mortgaged)  :  beingthe  same  premises  this  day 
conveyed  to  the  said  C.  D.  by  the  said  A.  B.  and 
W.,his  wife  ;  and  these  presents  are  given  to  se- 
cure the  payment  of  part  of  the  consideration 
money  of  the  said  premises,  together  with  all 
and  singular  the  hereditaments  and  appurte- 
nances thereunto  belonging,  or  in  anywise  apper- 
taining. 

This  conveyance  is  intended  (as  a  mortgage)  to 

secure  the  payment  of  the  sum  of dollars,  in 

— —  from  the  day  of  the  date  of  these  presents, 

with interest,  according  to  the  condition  of 

a  certain  bond,  dated  this  day,  executed  by  the 
said  A.  B.,  to  the  said  party  of  the  second  part ; 
and  these  presents  shall  be  void  if  such  payment 
b«  made. 

But  in  case  default  shall  be  made  in  the  pay- 
ment of  the  principal,  or  interest,  as  above  pro- 
vided, then  the  party  of  the  second  part,  his  ex- 
ecutors, administrators  and  assigns,  are  hereby 
empowered  to  sell  the  premises  above  described, 
with  all  and  every  of  the  appurtenances,  or  any 
part  thereof,  in  the  manner  prescribed  by  law  ; 
and  out  of  the  money  arising  from  such  sale,  to 
retain  the  said  principal  and  interest,  together 


with  the  costs  and  charges  of  making  Such  sste ; 
and  the  overplus,  if  any  there  be,  shall  be  paid 
by  the  party  making  such  sale,  on  demand,  to 
the  party  of  the  first  part,  his  heirs  or  assigns, 
etc. 

In  witness  whereof,  said  party  of  the  first  part 
has  hereunto  set  his  hand  (and  seal)  the  day  and 
year  first  above  written.      ^Signature  {and  tea/.)] 
Executed  in  presence  of 

For  form  of  Acknowlbdgmknt,  see  that  title. 

Morig^ag^e  of  Real  Property— Release 
of  a  Part. 

See  Discharge,  above ;  Satisfaction,  below. 

This  (conveyance,    or    indenture,    or)    mortgage, 

made  this day  of ,  between  C.  D.,of , 

in county.  State  of ,  party  of  the  first  part, 

and  A.  B.,  of ,  in  county,  State  of , 

party  of  the  second  part: 

Whereas,  the  said  party  of  the  second  part,  by 

indenture  of  mortgage,  bearing  date  the day 

of ,  for  the  consideration  therein  mentionecf, 

and  to  secure  the  payment  of  the  money  therein 
specified,  did  convey  certain  lands  and  tene- 
ments, of  which  the  lands  hereinafter  described 
are  part,  unto  the  said  party  of  the  nrst  part ; 

And  whereas,  the  said  party  of  the  first  part,  at 
the  request  of  the  said  party  of  the  second  part, 
has  agreed  to  give  up  and  surrender  the  lands 
hereinafter  described  unto  the  said  party  of  the 
second  part,  and  to  hold  and  retain  the  residue  of 
the  mortgaged  lands  as  security  for  the  money 
remaining  due  on  the  said  mortgage  : 

Now  this  indenture  witnesseth  : 

That  the  said  party  of  the  first  part,  in  pursu- 
ance of  the  said  agreement,  and  in  consideration 

of dollars  to  him  duly  paid  at  the  time  of  the 

execution  and  delivery  of  these  presents,  the  re- 
ceipt of  which  is  hereby  acknowledged,  has  and 
by  these  presents  does  grant,  release,  quit-claim, 
and  set  over  unto  the  said  party  of  the  second 
part,  all  that  part  of  the  said  mortgaged  land 
( describing  all  that  part  of  the  mortgaged  land  "which 
it  is  intended  to  release,  accurately  and  carefully,  dis- 
tinguishing it  from  that  which  is  retained).  To- 
gether with  the  hereditaments  and  appurte- 
nances thereto  belonging  ;  and  all  the  right,  title 
and  interest  of  the  said  party  of  the  first  part,  of, 
in,  and  to  the  same,  to  the  intent  that  the  lands 
hereby  conveyed  may  be  discharged  from  the 
said  mortgage,  and  that  the  rest  of  the  lands  in 
the  said  mortgage  specified  may  remain  to  the 
said  party  of  the  first  part  as  heretofore. 

To  have  and  to  hold  the  lands  and  premises  here- 
by released  and  conveyed  to  the  said  party  of  the 
second  part,  and  his  heirs  and  assigns,  to  his  and 
their  use  and  benefit  forever,  free,  clear,  and  dis- 
charged of  and  from  all  lien  and  claim  under  and 
by  virtue  of  the  indenture  of  mortgage  aforesaid. 

In  witness  whereof,  the  said  party  of  the  first 

part  has  hereunto  set  his  hand  (and  seal),  the 

day  of .  C.  D. 

Executed  and  delivered) 

in  presence  of  J 

For  form  of  Acknowledgment,  see  that  tide. 

Mortgages  of  Real  Property— Release 
and  Quit-Claim. 

See  Discharge,  above;  Satisfaction,  below. 

Know  all  men  by  these  presents: 

That  I,  C.  D.,  of county,  and  State  of , 

for  and  in  consideration  of  one  dollar,  to  me  in 
hand  paid,  and  for  other  good  and  valuable  con- 
siderations, the  receipt  whereof  is  hereby  con- 
fessed, do  hereby  grant,  bargain,  remise,  convey, 
release,  and  quit-claim  unto  A.  B.  i,or  E.  P.),  of 

county,  and  State  of ,  all  the  right,  titlej 

interest,  claim,  or  demand  whatsoever  I  may 
have  acquired  in,  through  or  by  a  certain  mort- 
gage, bearing  date  the  day  of ,  and  re- 
corded  in   the   recorder's  {or  register's)  office,  of 

, county,  in  book  of ,  page , 

to  the  premises  therein  described,  and  which  said 
mortgage  was  made  to  secure  a  certain  promis- 
sory note  {or  bond)  bearing  even  date  with  said 
mortgage,  for  the  sum  of dollars. 

^Vitness  my  hand   (and  seal),  this day  of 

.  C.  D.     {Seal.\ 

For  form  of  Acknowleugmemi,  see  that  titk. 


CONVEYANCES. 


355 


MortKtige  of  Real  Property— Satis* 
faction  of  Mort^cagre. 

B^  R4C€ipt  Indorsed  thereon. 

% .  Place .    Date . 

Received  of  C.  D.  {or  E.  F.,  the  assignee  of  C.  D.), 

the  within-named  mortgagee,  the  sum  of 

dollars,  in  full  satisfaction  of  the  within  mort- 
gage. A.  B. 
For  form  of  Acknowledgment,  see  that  title. 

MortgpaKe  of  Real  Property — Satis- 
faction of  9Iort|(ag:e. 

Upon  Real  or  Personal  Property. 

Know  all  men  by  these  presents: 

That  the  debt  secured  by  mortgage  upon  the 

following    described  property,  situated    in 

,  in county,  in  the  State  of ,  to  wit : 

\describing  it),  wherein  A.  B.  is  grantor,  and  C. 

D.  is  grantee,  and  dated ,  a of  which  is 

• in  volume ,  page ,  in  the  office  of  the 

(register  (7r  recorder)  of  deeds  of county, , 

has  been  fully  satisfied,  in  consideration  of  which 
•aid  mortgage  is  hereby  released. 

[  Witness'],  etc. 
For  form  of  Acknowledgment,  see  that  title. 
Mortgage  of  Real  Property— Security 
for  ludorser. 

This  (conveyance,    or    indenture,    or)    mortgage, 

made  the day  of ,  between  A.  B.,  of , 

in  the  county  of ,  and  State  of ,  of  the  first 

part,  and  C.  D.,  of ,  in  the  said  county,  of  the 

second  part,  witnesseth : 

That  the  said  party  of  the  first  part,  for  and  in 

consideration  of  the  sum  of dollars,  grants, 

bargains,  sells,  and  confirms  unto  the  said  party 
of  the  second  part,  and  to  his  heirs  and  assigns, 
all  (here  follows  the  description  of  the  premises)  ;  to- 
gether with  all  and  singular  the  hereditaments 
and  appurtenances  thereunto  belonging  or  in 
anywise  appertaining. 

Whereas  the  said  party  of  the  second  part,  at 
the  request,  and  for  the  benefit  of  the  said  party 
•f  the  first  part,  has,  on  the  day  of  the  date  of 
these  presents,  indorsed  a  certain  (note,  or  other 
security),  made  by  the  said  party  of  the  first  part, 

for  the  sum  of dollars,  bearing  date ,  and 

payable  days  after  ,  to  the  order  of , 

at . 

This  conveyance  is  intended  to  secure  the  party 
of  the  second  part  for  all  principal  and  interest 
money,  costs,  charges,  and  expenses  which  he 
may  be  compelled  to  pay  in  consequence  of  the 
failure  of  the  said  party  of  the  first  part  to  pay 

and  take  up  the  said  (note,  or  other  security) at 

maturity :  and  if  the  amount  of  the  said  (note  or 

other  security) ,  principal  and  interest,  shall  be 

paid  by  the  party  of  the  first  part  at  maturity, 
then  these  presents  shall  become  void,  and  the 
estate  hereby  granted  shall  cease  and  utterly 
determine ; 

But  if  default  shall  be  made  by  the  said  party 
of  the  first  part  in  the  payment  of  the  said  sum 
of  monejj,  or  the  interest,  or  of  any  part  thereof, 
at  the  tiine  hereinbefore  specified,  and  the  same 
be  paid  by  or  collected  of  the  party  of  the  second 
part,  the  said  party  of  the  first  part  hereby 
authorizes  and  empowers  the  party  of  the  second 
part,  his  heirs,  executors,  administrators  and  as- 
signs, to  sell  the  said  premises  hereby  granted 
at  public  auction,  and  convey  the  same  to  the 
purchaser  in  fee  simple,  agreeably  to  the  act  in 
such  case  made  and  provided ;  and  out  of  the 
money  arising  from  such  sale,  to  retain  such 
sum,  or  sums  of  money,  as  may  have  been  paid 
by  or  collected  of  the  said  party  of  the  second 
part,  as  above  mentioned,  together  with  all  costs 
and  charges,  and  pay  the  overplus  (if  any)  to  the 
said  party  of  the  first  part,  his  heirs,  executors, 
administrators,  or  assigns. 

In  witness  whereof,  etc. 
For  form  of  Acknowledgment,  see  that  title. 

Hortgaife  of  Real   Property— Security, 
Sale,  etc. 

With  Power  of  Sale. 
Thia    (conveyance,    or   indenture,  or)   mortgage, 

made  this day  of ,  between  A.  B.,  of , 

etc. ,  party  of  the  first  part,  and  C.  D. ,  of ,  etc. , 

party  of  thp  ye^ond  part,  witnesseth ; 


That  the  said  party  of  the  first  part,  in  consid^ 

eration  of  the  sum  of dollars  to  him  duly  paid 

before  the  delivery  hereof,  has  bargained  and 
sold,  and  by  these  presents  does  grant  and  con- 
vey to  the  said  party  of  the  second  part,  and  hia 
heirs  and  assigns  forever,  all  {here  describe  the 
premises),  with  the  appurtenances,  and  all  the 
estate,  right,  title,  and  mterest  of  the  said  party 
of  the  first  part  therein. 

This  conveyance  is  intended  as  a  security  for 

the  payment  of {state  what  the  amounts,  places, 

times,  etc.,  etc.,  of  payment),  in\\\c\i  payments,  if 
duly  made,  will  render  this  conveyance  void. 

And  if  default  shall  be  made  in  the  payment  of 
the  principal  or  interest  above  mentioned,  then 
the  said  party  of  the  second  part,  or  his  execu- 
tors, administrators,  or  assigns,  are  hereby  an- 
thorized  to  sell  the  premises  above  mortgaged,  or 
so  much  thereof  as  will  be  necessary  to  satisfy 
the  amount  then  due,  with  the  costs  and  expense** 
allowed  by  law. 

In  witness  whereof,  the  said  party  of  the  firs* 
part  has  hereunto  set  his  hand  and  seal,  the  day 
and  year  first  above  written.  A.  B.     [Seal.'\ 

Executed  and  delivered  in  the) 

presence  of  W.  S.  J 

For  form  of  Acknowledgment,  see  that  title. 

Mortg^ag^es  of  Real  Property — Security. 
Sale,  etc. 

With  Power  of  Sale. 

This  (conveyance,    or   indenture,    o^)    mortgage, 

made  this day  of ,  between  A-  B.,  of , 

party  of  the  first  part,  and  C.  D.,  of ,  party  of 

the  second  part: 

Whereas,  the  said  party  of  the  first  part  is 
justly  indebted  to  the  said  party  of  the  second 
part  m  {here  describe  the  amount  and  tertns  of  the 
debt,  or  note,  or  bond). 

Now  this  indenture  witnesseth: 

That  the  said  party  of  the  first  part,  for  the  bet- 
ter securing  the  debt  {or  note,  or  bond)  above  de- 
scribed, according  to  the  true  intent  and  meaning 
thereof,  and  also  for  and  in  consideration  of  the 
sum  of  one  dollar  to  him  in  hand  paid  by  said  party 
of  the  second  part,  at  or  before  tne  execution  and 
delivery  of  these  presents,  the  receipt  of  which  is 
hereby  acknowledged,  has  and  by  these  presents 
does  grant,  bargain,  sell,  alien,  remise,  release, 
convey,  and  confirm  unto  the  said  party  of  the 
second  part,  and  to  his  heirs  and  assigns,  forever, 
all  (here  describe  the  premises  vtortgaged).  Together 
with  all  and  singular  the  tenements,  heredita- 
ments and  appurtenances  thereunto  belonging  or 
in  anywise  appertaining,  and  the  reversion  and 
reversions,  remainder  and  remainders,  rents,  is- 
sues, and  profits  thereof.  And  also  all  the  estate, 
right,  title,  interest,  property,  possession,  claim, 
and  demand  whatsoever,  as  well  in  law  as  in 
equity,  of  the  said  party  of  the  first  part,  of,  in, 
and  to  the  same,  and  every  part  and  parcel  there- 
of, with  the  appurtenances: 

To  have  and  to  hold  the  above-granted,  bar- 
gained, and  described  premises,  with  the  appur- 
tenances, unto  the  said  party  of  the  second  part, 
and  his  heirs  and  assigns,  to  his  and  their  own 
proper  use,  benefit,  and  behoof  forever. 

Provided  always,  and  these  presents  are  up«n 
this  express  condition : 

That  if  the  said  party  of  the  first  part,  or  his 
heirs,  executors,  or  administrators,  shall  well  and 
truly  pay  to  the  said  party  of  the  second  part,  or 
his  heirs,  executors,  administrators,  or  assigns, 
the  above-described  debt  {or  note,  or  bond),  accord- 
ing to  terms  and  tenor  thereof,  then  this  deed 
(and  also  said  debt,  or  note,  or  bond)  shall  be  w/hoUy 
discharged  and  void  ;  and  other'wise  shall  remain 
in  full  force  and  effect. 

And  if  default  shall  be  made  in  the  payment  of 
the  said  sum  of  money  above  mentioned,  or  the 
interest  that  may  grow  due  thereon,  or  of  any 
part  thereof,  that  then  and  from  thenceforth  it 
shall  be  lawful  for  the  said  party  of  the  second 
part,  or  his  executors,  administrators,  and  as- 
signs, to  enter  into  and  upon  all  and  singular  the 
premises  hereby  granted,  or  intended  so  to  be, 
and  to  sell  and  dispose  of  the  same,  and  all  bene- 
fit and  equity  of  redemption  of  the  said  party  of 
the  first  part,  or  his  heirs,  executors,  ad  ministry- 


356 


CONVEYANCES. 


tors  or  aMigns,  therein,  at  public  auction,  accord- 
»£  to  the  act  in  such  case  made  and  provided. 

And  as  the  attorney  of  the  said  party  of  the 
first  part,  for  that  purpose  by  these  presents  duly 
authorized,  constituted,  and  appointed,  to  make 
and  deliver  to  the  purchaser  or  purchasers  there- 
of, a  good  and  sumcient  deed  or  deeds  of  convey- 
ance in  the  law  for  the  same,  in  fee  simple,  and 
out  of  the  money  arising  from  such  sale,  to  retain 
the  principal  and  interest  which  shall  then  be 
due  on  the  said  debt  {or  note,  t;r  bond i,  together 
with  the  costs  and  charges  of  advertisement  and 
sale  of  the  said  premises,  rendering  the  overplus 
of  the  purchase  money  (if  any  there  shall  be)  unto 
t  le  said  party  of  the  first  part,  or  his  heirs,  ex- 
e  :utors,  administrators,  or  assigns  ;  which  sale, 
so  to  be  made,  shall  forever  be  a  perpetual  bar, 
both  in  law  and  equity,  against  the  said  party  of 
the  first  part,  or  his  heirs  and  assigns,  and  all 
other  persons  claiming  or  to  claim  the  premises, 
or  any  part  thereof,  by,  from,  or  under  him,  them, 
or  either  of  them. 

In  witness  whereof,  the  parties  to  these  pres- 
ents have  hereunto  set  their  hands  (and  seals),  the 
day  and  year  first  above  written.  A.  B.     [Sua/.] 

C.  D.     [Sea/.] 
Signed,  sealed,  and  acknowledged  ) 
in  presence  of  W.  T.,  N.  S.        j 
For  form  of  Acknowledgment,  see  that  title. 

Mortg'Rg'e  of  Real  Property — Seenrity 
on  IJnliqnldateu  Amonnt. 

Use  General  Forms,  above. 

To  have  and  to  hold  the  above-described  prem- 
ises, with  the  appurtenances,  to  the  said  party  of 
the  second  part,  his  heirs  and  assigns,  forever. 

Provided  always,  and  these  presents  are  upon 
the  express  condition  that  if  the  said  A.  B.,  his 
heirs,  executors,  or  administrators,  shall  well 
and  truly  pay,  and  save  harmless  and  indemnify 
the  said  C.  D.  and  E.  F.,  and  each  of  them,  of 
and  from  all  liabilities  which  they  or  either  of 
them  may  have  at  any  time  contracted  to  or  for 
said  A.  B.j  either  as  surety,  indorser,  guarantor, 
or  otherwise,  whether  now  due  or  yet  to  grow 
due,  and  shall  save  harmless  the  said  C.  D.  and 
E.  F.,  and  each  of  them,  of  and  from  all  dam- 
ages, costs  and  charges,  on  account  of  the  same, 
according  to  the  conditions  of  a  certain  bond  or 
^writing  obligatory  bearing  even  date  herewith, 
executed  by  the  said  A.  B.  to  the  said  parties  of 
the  second  part,  then  these  presents  shall  cease 
and  become  of  no  effect ; 

But  in  case  default  shall  be  made  in  the  pay- 
ment of  all  or  any  part  of  the  said  liabilities  as 
the  same  shall  become  due,  at  the  time  or  times 
limited  for  the  payment  thereof,  then  in  such  case 
it  shall  be  lawful,  etc.  {as  in  other  forms,  above). 

Mortgrag^e  of  Real  Property— Term  of 

Years. 

Know  all  men  by  these  presents  : 

That  I,  A.  B.,  of ,  etc.,  in  consideration  of 

dollars,  to  me  paid  by  C.  D.,  of ,  the  re- 
ceipt of  which  is  hereby  acknowledged,  by  these 
presents  do  convey  and  mortgage  unto  the  said 
C.  D.,  his  executois,  administrators,  and  assigns, 
all  those  three  several  pastures,  etc.  {describing 
them). 

To  have  and  to  hold  the  premises,  with  their 
appurtenances,  unto  him,  the  said  C.  D.,  his  ex- 
ecutors, etc.,  from  the  date  hereof,  during  the 
full  term  of years,  next  ensuing. 

Yielding  and  paying  therefor  yearly  during  the 
said  term,  unto  the  said  A.  B.,  his  heirs,  execu- 
tors, administrators,  or  assigns,  one  pepper  corn, 
if  it  be  lawfully  demanded  on  the day  of . 

And  I,  the  said  A.  B.,  for  myself,  my  heirs,  etc. 
{insert  a  covenant  for  quiet  enjoyment  during  the 
term'),  etc.,  etc. 

Provided  nevertheless,  that  if  I,  the  said  A.  B., 
my  heirs,  executors,  administrators,  or  assigns, 
shall  well  and  truly  pay,  or  cause  to  be  paid, 
unto  the  said  C.  D.,  his  executors,  etc.,  the  sum 

of on  the  day  of  next  ensuing  the 

date  hereof,  then  this  present  demise  and  grant 
shall  be  void,  etc. 

In  witness  whereof,  etc. 

For  form  of  Acknowibwgmbkt,  see  that  tUle. 


9IORTGAOKN  OF  PERSON AI.  PROP. 
ERTY-CHATTEL  MORTUAOESU 

See  VARIOUS  CLAUSES,  post. 

For  forms  of  Acknowledgment,  see  that  title. 

Slortgpagre  of  Personal  Property  or 

Chattel  Mortg^affe. 

Know  all  men  by  these  presents  : 

That  I,  A.  B.,  hereby  sell  and  assign  to  C.  D.  all 
the  tools  and  materials  now  in  my  shop  at . 

This  sale  is  intended  as  a  security  for  the  pay- 
ment of dollars,  with  interest,  on  or  before 

the  expiration  of from  the  date  hereof;  which 

payment,  if  duly  made,  will  render  this  convey- 
ance void. 

Witness  my  hand,  this day  of . 

[Signature  of  witness.]  A.  B. 

Mortgag'e  of  Personal  Property  or 
Chattel  Mortg'ag^e. 

Know  all  men  by  these  presents  : 

That  I,  A.  B.,of .acknowledge  myself  to  b« 

indebted  to  C.  D.,  of  said ,  in  the  sum  of 

dollars,  with  interest  from  this  date  {or  from  the 

day  of ),  and  for  the  security  of  said  sum 

I  do  hereby  mortgage  and  sell  and  assign  to  the 
said  C.  D.  all  my  property  of  every  description, 
situate,  lying,  and  being  in  the  house,  corner  of 
street  and avenue,  in  the  city  of ; 

And  I  hereby  authorize  and  empower  the  said 

C.  D.  to  take  possession  of  said  property  and  ef- 
fects, he  to  sell  the  same,  and  appropriate  the 
proceeds  to  the  payment  of  said  debt  and  in- 
terest. 

Witness  my  hand  and  seal,  this  day  of 

.  A.  B.     [Sea/.] 

Mortgage  of  Personal  Property  or 
Chattel  mortgrag'e. 

Know  all  men  by  these  presents  : 

That  I,  A.  B.,  of  ,  in   consideration  of  the 

sum  of dollars,  to  me  paid  by  C.  D.,  of , 

by  these  presents  do  grant,  etc.,  unto  the  said  C. 

D.  all  the  goods  and  chattels,  wares,  effects,  and 
merchandise,  mentioned  and  specified  in  the 
schedule  hereunder  written : 

To  have  and  to  hold  all  and  singular  the  said 
goods,  etc.,  unto  the  said  C.  D.,  his  executors, 
administrators,  and  assigns,  forever. 

Provided,  nevertheless,  that  if  I,  the  «aid  A.  B., 
my  executors,  administrators,  or  assigns,  or  any 
of  them,  do  and  shall  well  and  truly  pay  unto  the 

said  C.  D.,  his  executors,  etc.,  the  sum  of , 

with  legal  interest  for  the  same,  on  or  before  the 

day  of ,  then  these  presents,  and  every 

clause,  article,  and  thing  herein  contained,  shall 
cease  and  be  void  ;  otherwise  to  be  in  f«Ul  force. 

In  witness  whereof,  etc. 

Mortg^agre  of  Personal  Property  or 
Chattel  ^lortg^ai^e. 

Know  all  men  by  these  presents : 

That  I,  A.  B.,  of  the  town  of ,  county  of 

,  and  State  of ,  for  and  in  considetationof 

dollars,  to  me  in  hand  paid  by  C.  D  .  of  the 

town  of ,  county  of ,  and  State  a^'t.resaid, 

do  sell  and  convey  to  the  said  C.  D.  the  following 
goods  and  chattels,  to  wit :  (giving  list  or  schedule 
of  the  articles,  specifying  them  with  such  di'iinctness 
that  a  stranger  might  distinguish  them),  warranted 
free  of  incumbrance,  and  against  any  adverse 
claims : 

Upon  condition  that  if  the  said  A.  B.  shall  pay 

to  the  said  C.  D. dollars  and  interest,  in 

from  date,  agreeably  to  a  promissory  note  of  this 
date,  for  that  sum,  payable  to  the  said  C.  D.,  or 
order,  on  demand,  writh  interest,  this  deed  shall 
be  void  ;  otherwise  in  full  force  and  effect. 

That,  until  the  condition  of  this  instrument  is 
broken,  the  said  property  may  remain  in  posses^ 
sion  of  the  said  A.  B.,  but  after  condition  broken 
the  said  C.  D.  may  at  his  pleasure  take  and  re- 
move the  same,  and  may  enter  into  any  building 
or  premises  of  the  said  A.  B.  for  that  purpose. 

Witness  our  hands  and  seals,  this  day  of 

.  A.  B.     \Seal.] 

C.  D.    [Seal.] 
Executed  and  delivered  in) 

presence  of  W.  S.  J 

This  mortgage  must  be  recor4«d. 


CONVEYANCES. 


357 


ll«rtj(ait:e  of  Personal  Property  or 
i/hattel  9Iortf;ng:e. 

This  agreement  (c>r  indenture,  or  mortgage),  made 

the day  of ,  between  A.  B.,  of  the  first 

part,  and  C.  D. ,  of  the  second  part,  witnesseth  : 

That  the  said  party  of  the  first  part,  in  consid- 
eration of  the  sum  of dollars,  has  sold  and  by 

these  presents  does  convey  unto  said  party  of  the 
second  part,  the  following  described  goods,  chat- 
tels, and  property  {describe  them  particularly,  or 
refer  to  them  in  the  schedule)  now  in  my  possession 
«t  the of aforesaid  ;  together  with  all  ac- 
cessories, and  all  the  estate,  title,  and  interest, 
of  the  said  party  of  the  first  part  therein. 

This  sale  is  intended  as  a  security  for  the  pay- 
ment of  one  hundred  and  ten  dollars,  with  inter- 
est, on  or  before  the  expiration  of  one  year  from 
the  date  hereof ;  and  the  additional  sum  of  one 
hundred  and  forty  dollars,  with  interest,  on  the 

day  of ;  which  payments,  if  duly  made, 

will  render  this  conveyance  void. 

And  if  default  shall  be  made  in  the  payment  of 
the  principal  or  interest  above  mentioned,  or  any 
part  thereof,  then  the  said  party  of  the  second 
part,  and  his  assigns,  are  hereby  authorized,  pur- 
suant to  statute,  to  sell  the  goods,  chattels,  and 
property,  above  granted,  or  so  much  thereof  as 
will  be  necessary  to  satisfy  the  amount  then  due, 
>vith  the  costs  and  expenses  incurred  by  the  said 

Earty  of  the  second  part,  and  his  assigns,  for  and 
y  reason  of  such  default. 

In  witness  whereof,  the  said  party  of  the  first 
part  has  hereunto  set  his  hand  and  seal,  the  day 
and  year  first  above  vvrritten.  A.  B.     \Seal.\ 

Sealed,  signed,  and  delivered  \ 
in  presence  of  W.  S.  J 

Mortgagre  of  Personal  Property  or 
Chattel  9Iortg:ag:e. 

Whereas,  I,  A.  B.,  of  the  town  of ,  in  the 

county  of ,  and  State  of ,  am  justly  in- 
debted unto  C.  D.,  of ,  in  the  said  county,  in 

the  sum  of dollars,  on  account,  to  be  paid  on 

demand  {or  on  the  day  of ),  with  interest 

from  this  date  - 

Now,  therefore,  in  consideration  of  such  in- 
debtedness, and  in  order  to  secure  the  payment 
of  the  satne,as  aforesaid,!  do  hereby  sell,  assign, 
transfer  and  set  over  unto  the  said  C.  D.,  his  ex- 
ecutors, administrators,  and  assigns  {here  describe 
the  property  or  refer  to  schedule). 

Provided,  however,  that  if  the  said  debt  and 
interest  be  paid,  as  above  specified,  this  sale  and 
transfer  shall  be  void ;  and  this  conveyance  is  also 
subject  to  the  following  conditions: 

The  property  hereby  sold  and  transferred  is  to 
remain  in  my  possession  until  default  be  made  in 
the  payment  of  the  debt  and  interest  aforesaid, 
or  some  part  thereof;  but  in  case  of  a  sale  or  dis- 
posal, or  attempt  to  sell  or  dispose  of  the  same,  or 
a  removal  of  or  attempt  to  remove  the  same  from 

,  or  an  unreasonable  depreciation  in  value  {or 

if  from  any  other  cause  the  security  shall  become  inad- 
aquate),  the  said  C.  D.  may  take  the  said  prop- 
erty, or  any  part  thereof,  into  his  own  possession. 

Upon  taking  said  property,  or  any  part  thereof, 
into  his  possession,  either  in  case  of  default,  or  as 
above  provided,  the  said  C.  D.  shall  sell  the  same 
at  public  or  private  sale  ;  and  after  satisfying  the 
aforesaid  debt  and  the  interest  thereon,  and  all 
necessary  and  reasonable  costs,  charges,  and  ex- 
penses incurred  by  him,  out  of  the  proceeds  of 
such  sale,  he  shall  return  the  surplus  to  me  or 
my  representatives. 

In  witness  whereof,  I  have  hereunto  set  my 

band  and  seal,  this day  of . 

Executed  in  presence  of )  A.  B.     [Seal^ 

W.  S.  / 

IWortgrag^e  of  Personal  Property  or 
Chattel  Morti^'asre. 

Kno\v  all  men  by  these  presents : 

That  A.  B.  (of ),  of  the  first  part,  is  indebted 

to  C.  D.  (of ),  of  the  second  part,  in  the  sum 

of dollars,  to  be  paid  as  follows :  {stating  time, 

place,  amount,  and  manner  of  payment'). 

Now,  therefore,  in  consideration  of  such  indebt- 
edness, and  to  secure  the  payment  of  the  same, 
as  aforesaid,  said  party  of  the  first  part  does 


hereby  sell,  assign,  transfer,  and  set  over  to  sairf 
party  of  the  second  part,  the  property  described 
in  the  following  schedule,  viz.:  {describing  it). 

Provided,  however,  that  if  said  debt  and  inter- 
est be  paid,  as  above  specified,  this  sale  and 
transfer  shall  be  void. 

The  property  sold  is  to  remain  in  possession 
of  said  party  of  the  first  part,  until  default  be 
made  in  the  payment  of  the  debt  and  interest 
aforesaid,  or  some  part  thereof;  but  in  case  of 
a  sale  or  disposal,  or  attempt  to  sell  or  dispose 
of  the  same,  or  a  removal  of  or  attempt  to  re- 
move the  same  from  {name  location  of  properly  tr 
place  7i<here  it  is  to  remain),  or  an  unreasonable 
depreciation  in  the  value;  or  if,  from  any  other 
cause,  the  security  shall  become  inadequate,  the 
said  party  of  the  second  part  may  take  such 
property,  or  any  part  thereof,  into  his  own  pos- 
session. 

And  upon  taking  said  property  into  his  posses- 
sion, either  in  case  of  default,  or  as  above  pro- 
vided, said  party  of  the  second  part  shall  sell  the 
same  at  public  or  private  sale  ;  and  after  satisfy- 
ing the  aforesaid  debt  and  interest  thereon,  and 
all  necessary  and  reasonable  costs,  charges,  and 
expenses  incurred,  out  of  the  proceeds  of  sale, 
he  shall  return  the  surplus  to  said  party  of  the 
first  part,  or  his  legal  representatives. 

And  if,  from  any  cause,  said  property  shall  fail 
to  satisfy  said  debt  and  interest  aforesaid,  said 
party  of  the  first  part  hereby  agrees  to  pay  the 
deficiency. 

In  witness  whereof,  the  said  party  of  the  first 

part  has  hereunto  set  his  hand,  this day  of 

.  A.  B. 

Executed  in  presence  of 

91ort)3^ase  of  Personal  Property  or  Bill 
of  iSale  an«l  Chattel  Mortgagre. 

Know  all  men  by  these  presents: 

That  I,  A.  B.,  in  consideration  of  one  dollar,  to 
me  in  hand  paid  by  C.  D.,  the  receipt  whereof  I 
hereby  acknowledge,  have,  and  by  these  presents 
do  grant,  bargain,  sell,  assign,  transfer,  and  set 
over  unto  the  said  C.  D.  and  his  assigns  forever, 
the  following  goods,  chattels,  and  property,  to 
wit :  {specify  the  articles,  or  refer  to  them  in  the 
schedule  annexed). 

Whereas,  I,  the  said  A.  B.,  am  justly  indebted 
to  the  said  C.  D.  in  the  sum  of  one  hundred  and 
ten  dollars  on  account,  for  money  had  and  re- 
ceived, and   goods  sold   and   delivered  (or  on  a 

promissory  note,  dated,  etc.,  and  due months  from 

date),  to  be  paid  to  the  said  C.  D.,  or  his  assigns, 

on  the  day  of ,  with  the  legal  interest 

thereon  from  the  day  of  the  date  hereof: 

Now  the  condition  of  the  above  sale  is  such, 
that  if  the  said  A.  B.  shall  well  and  truly  pay  to  the 
said  C.  D.,or  to  his  agent,  attorney,  or  assignee, 
the  above-mentioned  demand  (or  demands),  at  the 
time,  and  in  the  manner  and  form,  above  ex- 
pressed, and  shall  keep  and  perform  the  cove- 
nants and  agreements  above  contained,  on  his 
part  to  be  kept  and  performed,  according  to  the 
true  intent  and  meaning  thereof,  then  the  above 
bill  of  sale  shall  be  void  :  otherwise,  on  the  neg- 
lect and  failure  of  the  said  A.  B.  to  pay  the  said 
demand  {or  demands),  or  to  keep  and  perform  the 
said  covenants  and  agreements  as  above  ex- 
pressed, then,  and  in  that  case,  the  said  C.  D.  and 
his  assigns  are  hereby  authorized  and  empowered 
to  sell  the  above-described  goods,  chattels,  and 
property  (or  the  goods,  etc.,  described  in  the  .schedule 
hereto  annexed,  as  aforesaid),  or  any  part  thereof,  at 
public  or  private  sale,  at  his  or  their  option,  and 
to  retain  from  the  proceeds  of  such  sale,  in  his  or 
their  hands,  sufficient  to  pay  and  satisfy  the 
whole  amount  of  the  above-mentioned  demand 
{or  demands),  with  the  legal  interest  thereon  which 
shall  be  due  at  the  time  of  such  sale,  and  all 
costs,  charges,  and  expenses,  incurred  by  the 
said  C.  D.,  or  his  assigns,  in  consequence  of  the 
neglect  and  failure  of  the  said  A.  B.,  as  aforesaid ; 
rendering  the  overplus,  if  any,  to  the  said  A.  B., 
or  to  his  heirs,  executors,  administrators,  or  as- 
signs, on  demand. 

The  said  C.  D.  and  his  assigns  are  hereby 
authorized,  for  further  security,  to  take  the  said 
(oods,  chattels,  and  property.  in^Q  his  or  yixnt 


3S« 


CONVEYANCES. 


possession,  at  any  time  he  or  they  may  think 
proper. 
In  witness  whereof,  etc. 

NortitmKC  of  Personal  Property,  or. 
Chattel  :fIortfcait:e. 

This  agreement  (or  indenture,  or  mortgage),  made 

this day  of ,  between  A.  B. ,  of ,  of  the 

one  part,  and  C.  D.,  of  ,  of  the  other  part, 

^Aritnesseth  : 

That  the  said  A.  B.,  for  and  in  consideration  of 

,  to  him  paid  by  the  said  C.  D.,  the  receipt  of 

which  is  hereby  acknowledged,  by  these  pres- 
^ents  does  grant,  etc.,  unto  the  said  C.  D.,  his  ex- 
ecutors, etc.,  all  and  singular  the  goods,  furni- 
ture, and  household  stuff,  hereinafter  particularly 
mentioned  and  expressed,  that  is  to  say,  one,  etc. , 
etc.  {here  insert  /ully  an  account  of  all  the  goods 
mortgaged). 

To  have  and  to  hold  all  and  singular  the  said 
goods,  etc.,  hereinbefore  granted,  etc.,  unto  the 
said  C.  D.,  his  executors,  etc.,  to  the  only  proper 
use  and  behoof  of  the  said  C.  D.,  his  executors, 
etc.,  forever. 

Provided  always,  and  these  presents  are  upon 
this  condition:  That  if  the  said  A.  B.,  his  ex- 
ecutors or  administrators,  shall  and  do  well 
and  truly  pay  unto  the  said  C.  D.,  his  executors, 

etc.,  the  full  sum   of ,  with  interest   for  the 

same  after  the  date  of ,  on  or  before  the 

do/  of ,  then  these  presents  shall  cease,  de- 
termine,  and   be  utterly  void  ;    anything  herein 
contained  to  the  contrary  notwithstanding. 
Covenant — Mortgagor  to  Keep  Possession  of  the 
Goods  Until  the  Breach  op  the  Conmjition. 

And  it  is  covenanted  and  agreed,  between  the 
said  parties,  that  until  default  shall  be  made  in 

payment  of  the  said  sum  of ,  and  interest,  it 

shall  be  lawful  for  the  said  A.  B.,  and  his  assigns, 
to  hold,  enjoy,  and  use  the  goods  above  mort- 
gaged as  aforesaid,  without  the  hindrance  or  in- 
terruption of  the  said  C.  D.,  or  his  assigns. 

Covenant  to  Redeliver  the  Goods  Upon  Receipt 
OF  the  Mortgage  Money. 
And  the  said  C.  D.,  for  himself,  his  heirs,  exec- 
utors and  administrators,  doth  covenant  and  agree 
to  and  with  the  said  A.  B.,his  executors,  and  ad- 
ministrators, that  he,  the  said  CD.,  his  executors, 
administrators,  or  assigns,  shall  and  will,  immedi- 
ately upon  the  receipt  of  the  said  sum  of and 

interest  as  aforesaid,  at  the  day  and  time  above 
limited  for  the  payment  thereof,  deliver,  or  cause 
to  be  delivered,  unto  the  said  C.  D. ,  his  executors, 
etc.,  all  and  singular  the  goods,  etc.,  above 
granted,  and  \vhich  are  now,  at  the  time  of  the 
executing  of  these  presents,  received  by  the  said 
C.  D.,  of  and  from  the  said  A.  B. ,  in  as  good  case, 
plight,  and  condition  as  the  same  and  every  of 
them  now  are  at  this  present  time. 

Covenant  to  Warrant  the  Goods. 
And  the  said  A.  B.,  for  himself,  his  executors, 
and  administrators,  all  and  singular  the  said 
goods,  etc.,  by  these  presents  granted,  etc.,  unto 
the  said  C.  D.,  his  executors,  etc.,  against  him, 
the  said  A.  B. ,  his  executors  and  administrators, 
and  against  all  and  every  other  person  and  per- 
sons whatsoever,  shall  and  \viU  warrant  and  for- 
ever defend  by  these  presents. 

Adverse  Claim. 

See  Notice  of,  below. 

Morticaipe  of  Personal  Property,  or. 
Chattel  iWorticaKe. 

Covenants,  Descriptions,  Possession  Warranty,  etc. 

Kno>v  all  men  by  these  presents  : 

That  I,  A.  B.,  of'^ ,  in  the  county  of ,  and 

State  of ,  party  of  the  first  part,  for  securing 

the  payment  of  the  sum  of  money  hereinafter 
mentioned,  and  in  consideration  of  the  sum  of 

one  dollar,  to  me  paid  by  C.  D.,  of ,  aforesaid, 

party  of  the  second  part,  the  receipt  whereof  I 
do  hereby  acknowledge,  have  and  by  these  pres- 
ents do  bargain,  sell,  grant,  and  convey  unto  the 
said  party  of  the  second  part,  his  executors,  ad- 
ministrators, and  assigns,  as  follo\vs: 

All  the  ashes  now  being  in  the  ashety  in  the 
psssesyion  of  the  said  A.  B. ,  at ;* 


{Or  thus,  all  the  stock  of  books,  magazinoi,  periodi- 
cals, and  stationery  in  the  store  of  the  said  A.  B. 
at ):• 

( Or  thus,  all  the  household  goods  and  furniture,  an& 
other  articles  mentioned  in  a  schedule  annexed  here- 
to, and  contained   in  the  hoiue  of  the  said  A.  B.,al 

(Or  thus,  all  and  singular  the  goods  and  stock  of 
goods  and  merchandise,  consisting  of  whips,  lashes,  and 
materials  therefor,  now  in  the  store  of  the  party  of  the 

first  part,  at  No.  — , street,  in  the  city  of ,  and 

in  the  factory  of  the  said  party  of  the  first  part,  at , 

in  the  State  of . 

(Excepting  and  reserving  therefrom  all  goods  sold,  of 
agreed  to  be  sold  and  packed,  to  be  delivered  to  pur- 
chasers.) 

All  the  furniture  and  movable  fixtures  in  said 
store  belonging  to  the  party  of  the  first  part  (a 
schedule  of  said  goods  and  chattels  to  be  made  by  the 
party  of  the  first  part,  and  annexed  hereto,  with  all  con- 
venient speed) : 

To  have  and  to  hold  the  same  unto  the  said 
party  of  the  second  part,  his  executors,  adminia- 
trators,  and  assigns,  forever. 

(1/  the  mortgage  is  a  second  mortgage,  being  subject 
to  a  prior  one,  insert  here:  subject,  however,  to  a 

prior  mortgage  to  E.  F.,  dated  the day  of ,  to 

secure  (state  what). 

And  I,  for  myself,  my  heirs,  executors,  and  ad- 
ministrators, do  covenant  and  agree,  to  and  with 
the  said  party  of  the  second  part,  to  warrant  and 
defend  the  said  described  goods  hereby  sold,  unto 
the  said  party  of  the  second  part,  his  executors, 
administrators,  and  assigns,  against  all  and  every 
person  and  persons  whatsoever  (subject  as  afore- 
said;. 

Upon  condition,  that  if  the  said  party  of  the 
first  part  shall  and  do  well  and  truly  pay,  or 
cause  to  be  paid  unto  the  said  party  of  the  second 
part,  his  executors,  administrators,  or  assigns, 

the  sum  of dollars  and  interest  thereon,  on 

the day  of next  (or  otherwise),  then  this 

conveyance  shall  be  void;  otherwise  to  remain 
in  full  force. 

And  the  said  party  of  the  first  part,  for  himself, 
his  executors,  administrators,  and  assigns,  do^s 
covenant  and  agree  to  and  with  the  said  party  of 
the  second  part,  his  executors,  administrators, 
and  assigns,  to  make  punctual  payment  of  the 
money  hereby  secured. 

And  in  case  default  shall  be  made  in  payment 
of  the  said  sum  above  mentioned,  or  any  part 
thereof,  or  of  the  interest  thereon,  on  any  day 
when  the  same  ought  to  be  paid  (then  the  whole 
sum  shall  at  the  election  of  the  party  of  the  second  jiart 
become  immediately  due  and  payable  ;  and),  it  shall  be 
lawful  for  and  the  said  party  of  the  first  part 
does  hereby  authorize  and  empower  the  said 
party  of  the  second  part,  his  executors,  adminis- 
trators, and  assigns,  with  the  aid  and  assistance 
of  any  person  or  persons,  to  enter  and  come  into 
and  upon  the  dwelling-house  and  premises  of  the 
said  party  of  the  first  part,  and  such  other  place 
or  places  as  the  said  goods  and  chattels  are  or 
may  be  held  or  placed,  and  take  and  carry  away 
the  said  goods  and  chattels,  to  sell  and  dispose 
of  the  same,  or  so  much  as  shall  be  necessary, 
for  the  best  price  they  can  obtain,  and  out  of  the 
money  to  retain  and  pay  the  said  sum  above 
mentioned,  with  the  interest  and  all  expenses 
thereon,  rendering  the  overplus  (if  any)  unto  the 
said  party  of  the  first  part,  his  executors,  admin- 
istrators, and  assigns. 

And  until  default  be  made  in  the  payment  of 
the  aforesaid  sum  of  money  (or  some  part  thereof, 
or  interest  thereon),  the  said  party  of  the  first  part 
is  to  remain  and  continue  in  quiet  and  peaceable 
possession  of  the  said  goods  and  chattels,  and 
the  full  and  free  enjoyment  of  the  same,  unless 
the  said  party  of  the  second  part,  his  executors, 
administrators,  or  assigns,  shall  sooner  choose 
to  demand  the  same  ;  and  until  such  demand  be 
made,  the  possession  of  the  said  party  of  the  first 
part  shall  be  deemed  the  possession  of  an  agent 
or  servant,  for  the  sole  benefit  and  advantage  of 
his  principal,  the  said  party  of  the  second  part. 

a-This  is  a  sufficient  description ;  9  Barb.  630;  Gard- 
ner vs.  McEwen,  19  N.  Y.  (5  Smith)  laj. 


CONVEYANCES. 


350 


In  witness  whereof,  I  have  hereunto  set  my 

hand  (and  seal),  this day  of .  A.  B. 

Executed  and  delivered ) 

in  presence  of  W.  S.    j 

9Iortg:ag:e  of  Pcrsoiinl  Property,  or, 

€liat<ei  9Ioi'tg:a{jre-* 

Goods  and  Chattels,  etc. ,  in  and  aiout  the  Mortgagor' s 

Dwelling-House . 

This  (agreement,  or  indenture,  or  mortgage),  made 

this day  of ,  between  A.  B. ,  of ,  of  the 

one  part,  and  C.  D.,  of ,  of  the  other  part, 

witnesseth  : 

Wliereas  there  is  due  and  owing  from  the  said 

A.  B.  to  the  said  C.  D.  the  sum  of  $2oo : 

Now,  in  consideration  of  the  covenant  herein- 
after contained  on  the  part  of  the  said  C.  D.,  and 
for  better  securing  to  him  the  payment  of  the 
said  sum  of  $aoo  and  interest  thereon,  as  herein- 
after mentioned,  he,  the  said  A.  B.,  by  these 
presents,  does  bargain  and  sell  and  assign  unto 
the  said  C.  D.,  his  executors,  administrators,  and 
assigns,  all  and  every  the  goods,  utensils  and  im- 
plements which  are  now  belonging  to  the  dwell- 
ing-house, outhouses  and  estate  of  the  said  A.  B. , 

situate  and  being  in street,  in  said  B. ,  now  in 

the  occupation  of  the  said  A.  B.,  and  lArhich  are 
particularly  enumerated  and  described  in  the 
schedule  to  these  presents,  hereunder  written ; 
and  all  the  right,  title  and  interest  of  the  said  A. 

B.  in  and  to  the  said  goods  and  chattels  and  every 
part  and  parcel  thereof. 

To  have  and  to  hold  the  bargained  premises 
unto  the  said  C.  D.,  his  executors,  administrators 
and  assigns,  as  his  and  their  own  proper  goods 
and  chattels. 

Provided,  nevertheless,  that,  in  case  the  said 
A.  B.,  his  executors,  etc.,  shall  pay  to  the  said  C. 
D.,his  executors,  etc.,  the  sum  of  $2oo,  on  the 

day  of ,  or  at  such  earlier  day  or  time  as 

the  said  C.  D.,  his  executors,  etc.,  shall  appoint 
for  the  payment  thereof,  in  and  by  a  notice  in 
writing,  to  be  given  to  the  said  mortgagor,  his  ex- 
ecutors, or  administrators,  or  left  at  his  or  their 

last  and  usual  place  of  abode,  at  least months 

before  the  day  or  time  so  to  be  appointed  for  pay- 
ment as  aforesaid  ;  and  do  and  shall,  in  the  mean- 
time until  the  repayment  of  the  said  principal 
sum,  well  and  truly  pay  to  the  said  C.  D.,  his  ex- 
ecutors, etc.,  interest  thereon,  at  the  rate  of 

per  cent,  per  annum,  by  equal  half  yearly  pay- 
ments on ,  and  on ,  in  every  year,  and  also 

a  proportional  part  of  such  interest,  for  the  frac- 
tional period  of  a  half  year,  if  any,  which  shall 
elapse  between  the  last  half  yearly  day  of  pay- 
ment, and  the  expiration  of  the  notice  so  to  be 
given  by  said  C.  D.,  his,  etc.,  such  proportional 
part  to  be  paid  immediately  on  the  expiration 
of  such  notice,  and  such  several  payments  afore- 
said to  be  made  without  any  deduction  or  abate- 
ment whatsoever :  Then  these  presents  and  every- 
thing herein  contained  shall  cease  and  be  abso- 
lutely void  ;  anything  hereinbefore  contained  to 
the  contrary  notwithstanding. 

And  it  is  heraby  also  declared  and  agreed,  by 
and  between  the  said  parties  to  these  presents: 

That,  after  default  shall  be  made  by  the  said  A. 
B.,  his  executors,  or  administrators,  in  payment 
of  the  sum  of  $200,  and  interest,  then,  and  in  such 
case,  it  shall  be  lawful  for  the  said  C.  D.,  his,  etc., 
peaceably  and  quietly  to  take  possession  of  and 
thenceforth  to  hold  and  enjoy  all  and  every  the 
goods  and  chattels,  and  premises  hereby  as- 
signed : 

'And  also  to  sell  and  dispose  of  the  same,  and 
every  part  thereof,  for  such  price  or  prices  as  can 
be  reasonably  had  or  gotten  for  the  same  ; 

And  to  receive  and  take  the  moneys  to  arise  by 
such  sale  thereof,  and  therewith  retain  to  and  re- 
imburse himself  and  themselves,  the  said  C.  D., 
his  executors,  administrators,  or  assigns,  all 
costs,  charges,  and  expenses,  which  he  or  they 
may  incur  in  and  about  making  any  such  sale  or 
sales,  and  also  in  and  about  the  receipt  and  re- 
covery of  the  said  sum  of  $200,  and  interest,  re- 
spectively ; 

And,  in  the  next  place,  to  retain  and  reimburse 
himself  and  themselves,  the  said  C.  D. ,  his  execu- 
tors, etc.,  the  9">(4  i^utn  of  $300,  and  ^he  interest 


thereof,  or  so  much  thereof  as  shall  then  remain 
unsatisfied,  and  after  having  reimbursed  him- 
self and  themselves  respectively,  such  costs, 
charges,  and  expenses,  sum  and  sums  of  money, 
as  a^resaid,  to  render  to,  and  account  for  the 
surplus  of  the  money  arising  from  such  sale  as 
aforesaid  (if  any)  unto  the  said  A.  B.,  his  execu- 
tors, administrators,  or  assigns. 
Possession  UNriL  Default,  btc.  Mortgagor  to 
Rbtain. 

And  it  is  hereby  also  declared  and  agreed  by 
and  between  the  said  parties  to  these  presents: 

That  until  default  shall  happen  to  be  made  in 
payment  of  the  said  principal  sum  of  $200,  at 
the  day  or  time  hereinbefore  appointed  for  the 
payment  thereof,  contrary  to  the  tenor  and  effect 
of  the  proviso  hereinbefore  contained  ;  or  until 
default  shall  be  made  in  payment  of  the  interest 
of  the  said  principal  sum  or  some  part  thereof, 
on  some  or  one  of  the  days  or  times  hereinbefore 
appointed  for  payment  thereof,  contrary  to  the 
same  proviso ;  and  until,  in  respect  of  the  said 
interest,  notice  shall  be  given  by  the  said  C  D., 
his  executors,  administrators  or  assigns,  unto  the 
said  A.  B.,  his  executors  or  administrators,  or 
left  for  him  or  them,  at  his  or  their  usual  place  or 
places  of  abode,  requiring  the  payment  of  such 
interest,  it  shall  be  lawful  for  the  said  A.  B.,  his 
executors  or  administrators,  to  hold,  make  use 
of,  and  possess  the  said  goods  and  chattels,  here- 
by assigned,  without  any  manner  of  hindrance 
or  disturbance  of  or  by  him,  the  said  C.  D.,his 
executors,  administrators,  or  assigns. 
Not  to  Sue  Untii,  Defai'lt. 

That  he,  the  said  C.  D.,his  executors  or  ad- 
ministrators, shall  not,  nor  will,  until  default 
shall  be  made  in  payment  of  the  said  sum  of  $300 
and  interest,  or  some  part  thereof,  on  some  or 
one  of  the  days  or  times  limited  for  payment 
thereof  in  and  by  the  proviso  for  redemption 
hereinbefore  contained,  commence  or  institute 
any  action,  suit  or  process  against  the  said  A.  B., 
his  executors  or  administrators,  for  recovery  of 
the  said  debt  or  any  part  thereof. 

In  witness  whereof,  etc. 

aiortgrag'e  of  Pergonal  Property,  Chat* 
tel  Morfj^agre,  or  Bill  of  Sale. 

Maintenance  for  Life. 

This  (agreement,  or  indenture,  or)  mortgage,  made 

on  the day  of ,  between  A.  B.,of ,  etc., 

of  the  first  part,  and  C.  B.,  of  the  same  place,  of 
the  second  part,  witnesseth  : 

That  the  party  of  the  first  part,  in  considera- 
tion of  the  sum  of dollars,  to  him  in  hand 

paid  by  the  party  of  the  second  part,  the  receipt 
of  which  is  hereby  acknowledged,  and  for  other 
good  and  lawful  considerations  him  thereunto 
moving,  has  bargained  and  sold,  and  by  these 
presents  does  grant  and  convey;  etc. 

And  in  consideration  of  the  premises,  the  party 
of  the  second  part  does  hereby  covenant  and 
agree,  to  and  with  the  party  of  the  first  part,  his 
executors  and  administrators,  that  he  will  sup- 
port and  maintain,  and  comfortably  and  suffi- 
ciently clothe  the  party  of  the  first  part,  and  in 
all  respects  care  and  provide  for  him,  for  and 
during  the  rest,  residue,  and  remainder  of  his 
natural  life ;  and  that  he,  the  said  party  of  the 
second  part,  shall  and  will  pay  unto  the  said 

party  of  the  first  part  the  sum  of dollars  on 

the  first  day  of  January  in  each  and  every  year 
hereafter : 

Provided,  however,  that  the  said  party  of  the 
second  part  shall  be  forever  released  and  dis- 
charged from  the  covenants  above  contained,  on 
his  part  to  be  kept  and  performed,  if  the  said 
party  of  the  first  part  shall  refuse  to  reside  in  the 

county  of aforesaid,  except  such  refusal  be 

occasioned  by  inability  to  obtain  comfortable  and 
sufficient  board,  lodging,  and  maintenance  in  the 
said  county. 

In  witness  whereof,  the  said  parties  have  here- 

a- A  vessel  at  sea  may  be  mortgaged,  but  possession 
must  be  taken  as  soon  as  possible  to  render  the  mort- 
gage complete.     Portland   Bank  ff.  Stiibbs  tt  al.,  ( 

Mass.  ^32, 


S6o 


CONVEYANCES. 


unto  set  their  hands  and  seals  the  day  and  year 
first  above  written.  A.  B.    ISea/.\ 

Executed  and  delivered')  CD.    [Sea/.j 

In  presence  of  W.  S.    J 

Meinorandnm. 

See  Sale,  below. 

Ulnrtgage  of  Persoiinl  Property,  or. 
Chattel  Mort^ag-e. 

This  notice  should  be  posted  with  or  near  the  notice 
pven  of  the  sale,  as  well  as  notice  of  adverse  claim  read 
at  the  sale  in  order  to  warn  purchasers. 

To  whom  it  may  concern  : 

I,  C.  D.,  have  a  mortgage,  duly  filed,  on  the 
property  of  A.  B.  now  offered  for  sale,  which  is 
of  prior  date  to  the  mortgage  under  which  this 

sale   takes  place,  and  dollars,  with  interest 

thereon,  is  unpaid,  and  is  now  due  and  collecta- 
ble. Whosoever  buys  this  property  buys  it  sub- 
ject thereto.  C.  D. 

JToticc. 

See  Security,  below. 

9fort)grnjBre,  etc. — Sale— Memorandnm. 

(Srheduie  of  articles  purchased,  with  terms  of  pur - 
thaser. ) 
I  have  purchased  the  above  property  for  the 

sum  of dollars,  subject  to  the  terms  above. 

{Signed}       P.  R. 
Renewal— Aflifla\-it  for  Renewing^  and 
Continning;  Chattel  Mortgages.* 

State  of , county,  ss. 

I  do  solemnly  swear  that  I  am  one  of  the  within- 
named  mortgagees,  and  that  the  property  de- 
scribed in  the  within  mortgage  was,  on  the  

day  of ,  conveyed  to  to  secure  the  pay- 
ment of dollars,  of  which  sum  there  is  yet 

due  and  unpaid  the  sum  of .    So  help  me  God. 

C.  D. 

Sworn  to  before  me,  this day  of ,  A.  D. 

J.  P.,  Justice  of  the  Peace. 
Another. 

State  of , county,  ss. 

I  do  solemnly  swear  that  I  am  one  of  the  within- 
named  mortgagees,  and  that  the  property  de- 
scribed in  the  within  mortgage  was,  on  the 

day  of ,  conveyed  to  to  indemnify 

against  liability  as  surety  for  the  within-named 

mortgagor,  on  a  certain ,  on  which I  am 

surety;  and  that  the  within  mortgage  was  taken 

in  good  faith  to  indemnify against  any  loss 

that  may  result  thereof.    So  help  me  God. 

C.  D. 

S^vorn  to  before  me,  this day  of . 

J.  P.,  Justice  of  the  Peace. 
.Renewal— Annnal  Statement  of  Mort- 
gagee's Interest,  etc.*! 
I,  C.  D.,  the  mortgagee  mentioned  in  the  mort- 
gage of  which  the  annexed  (or  within)  is  a  true 
copy,  do  hereby  certify  that  the  sum  of dol- 
lars and  interest  thereon  from  the day  of , 

IB  still  due  on  said  mortgage.  C.  D. 

Dated ,  the day  of . 

Another 
I,  C.  D.,  the  mortgagee  named  in  the  mortgage 
of  vrhich  the  annexed  (or  within)  is  a  true  copy, 
do  hereby  certify  that  the  following  notes,  men- 
tioned in  said  mortgage,  all  dated  the day  of 

,  are    wholly    unpaid,  to   wit :    {enumerating 

them). 

And  I  further  claim  the  said  mortgaged  prop- 
erty as  security  to  me  against  any  liability  for  or 
on  account  of  my  having  indorsed  the  note  of 
E.  F.  therein  mentioned,  which  note  is  still  un- 
paid. C.  D. 

Dated ,  the day  of . 

Mortgage    of    Personal    Property,    or, 
Chattel  Mortgage,  with  Power  of  Sale. 
Know  all  men  by  these  presents : 

That  I,  A.  B.,  of ,  in  county,  and  State 

•f ,  in  consideration  of dollars  to  me  paid 

a-This  afTidavit  must  be  made  within  thirty  days  next 
preceding  the  expiration  of  one  year  from  the  filing  of 
ihi*  mortgage,  and  each  year  thereafter,  or  after  the  ex- 
piration of  one  year  from  such  filing,  will  be  void  as 
agaiast  subsequent  purchasers,  and  mortgagees  in  good 


by  C.  D.,  of ,  in county,  and  State  of , 

do  hereby  grant,  bargain,  and  sell  unto  the  said 
C.  D.,  and  his  assigns,  forever,  the  following 
goods  and  chattels,  to  wit :  {here  give  list  or  sche- 
dule). 

To  have  and  to  hold  all  and  singular  said  goods 
and  chattels  unto  the  mortgagee  herein,  and  his 
assigns,  forever. 

And  the  mortgagor  herein,  for  himself  and  for 
his  heirs,  executors,  and  administrators,  does 
hereby  covenant  to  and  with  the  said  mortgagee 
and  his  assigns,  that  said  mortgagor  is  lawfully 
possessed  of  the  said  goods  and  chattels,  as  of 
his  own  property  ;  that  the  same  are  free  from 
all  incumbrances,  and  that  he  will  warrant  and 
defend  the  same  to  him,  the  said  mortgagee  and 
his  assigns,  against  the  lawful  claims  and  de- 
mands of  all  persons. 

Provided,  nevertheless: 

That  if  the  said   mortgagor  shall  pay  to  the 

mortgagee   the   sum  of  dollars,  on  the  

day  of ,  at  ,  then  this  mortgage  is  to  be 

void,  otherwise  to  remain  in  full  force  and  effect. 

And  provided  further : 

That  until  default  be  made  by  the  said  mortga- 
gor in  the  performance  of  the  condition  afore- 
said, it  shall  and  may  be  lawful  for  him  to  retain 
the  possession  of  the  said  goods  and  chattels, 
and  to  use  and  enjoy  the  same;  but  if  the  same 
or  any  part  thereof  shall  be  attached  or  claimed 
by  any  other  person  or  persons  at  any  time  before 
payment,  or  the  said  mortgagor  or  any  person  or 
persons  whatever,  upon  any  pretence,  shall  at- 
tempt to  carry  off,  conceal,  make  way  with,  sell, 
or  in  any  manner  dispose  of  the  same  or  any 
part  thereof,  without  the  authority  and  per- 
mission of  the  said  mortgagee  or  his  executors, 
administrators  or  assigns,  in  writing  expressed, 
then  it  shall  and  may  be  lawful  for  the  said  mort- 
gagee, with  or  without  assistance,  or  his  agent 
or  attorney,  or  his  executors,  administrators,  or 
assigns,  to  take  possession  of  said  goods  and 
chattels,  by  entering  upon  any  premises  wher- 
ever the  same  may  be,  whether  in  this  county  or 
State,  or  elsewhere,  to  and  for  the  use  of  said 
mortgagee  or  his  assigns. 

And  if  the  moneys  hereby  secured,  or  the  mat- 
ters to  be  done  or  performed,  as  above  specified, 
are  not  duly  paid,  done  or  performed  at  the  time 
and  according  to  the  conditions  above  set  forth, 
then  the  said  mortgagee  or  his  attorney,  or  agent, 
or  his  executors,  administrators,  or  assigns,  may, 
by  virtue  hereof,  and  without  any  suit  or  process, 
immediately  enter  and  take  possession  of  said 
goods  and  chattels,  and  sell  and  dispose  of  the 
same  at  public  or  private  sale,  and  after  satisfying 
the  atnount  due,  and  all  expenses,  the  surplus,  if 
any  remain,  shall  be  paid  over  to  said  mortgagor 
or  his  assigns. 

That  the  exhibition  of  this  mortgage  shall  be 
sufficient  proof  that  any  person  claiming  to  act 
for  the  mortgagee  is  duly  made,  constituted,  and 
appointed  agent  and  attorney  to  do  whatever  is 
al30ve  authorized. 

In  witness  whereof,  the  said  mortgagor  has 

hereunto  set  his  hand  (and  seal),  this day  of 

.  A.  B.    iSeal.l 

Executed  and  delivered  ) 

in  presence  of  J 

Mortgage  of  Personal  Property,  or. 
Chattel  Mortgage,  with  Power  of  Sale. 

Another. 

Know  all  men  by  these  presents : 

That  I,  A.  B.,  of ,  etc.,  in  consideration  of 

the  sum  of dollars,  to  me  paid  by  C.  D.,  of 

,  etc.,  the  receipt  whereof  is  hereby  acknowl- 
edged, have  granted,  bargained,  and  sold,  and 
by  these  presents  do  grant,  bargain,  and  sell  unto 
the  said  C.  D.  the  following  named  and  de- 
scribed articles  of  personal  property ;  that  is  to 
say  {here  follows  the  list  or  schedule,  ■with  a  descrip- 
tion of  the  articles  ntorlgaged). 

faith.  See  various  States,  above.  b-It  is  not  a  suffi 
cient  statement  to  indorse  on  the  mortgage  already  on 
file,  that  it  is  refiled  and  renewed,  with  the  date.  There 
must  be  a  statement  exhibiting  the  interest  of  the  mort- 
gagee.    Fitch  vs.  Humphrey,  i  Den,  163. 


CONVEYANCES. 


361 


To  have  and  to  hold  all  and  singular  the  said 
<ood8  and  chattels  unto  the  said  C.  D.,and  his 
executors,  administrators,  and  assigns,  to  his  and 
their  sole  use  forever. 

And  I,  the  said  mortgagor,  for  myself  and  my 
executors  and  administrators,  do  covenant  to 
and  \vith  the  said  mortgagee  and  his  executors, 
administrators,  and  assigns,  that  I  am  lawfully 
possessed  of  the  said  goods  and  chattels,  as  of 
my  own  property:  that  the  same  are  free  from 
all  incumbrances;  and  that  I  will,  and  my  exec- 
utors and  administrators  shall,  warrant  and  de- 
fend the  same  to  the  said  mortgagee  and  his  ex- 
ecutors, administrators,  and  assigns,  against  the 
lawful  claims  and  demands  of  all  persons. 
Provided,  nevertheless: 

That  if  the  said  mortgagor,  or  his  executors  or 
administrators,  shall  well  and  truly  pay  unto  the 
said  mortgagee  or  his  executors,  administrators, 
or  assigns,  the  sum  of dollars,  then  this  con- 
veyance, as  also  a  certain  promissory  note  bear- 
ing even  date  herewith,  signed  by  the  said  mort- 
gagor, whereby  he  promises  to  pay  the  said 
mortgagee  the  said  sum  and  interest  at  the  time 
aforesaid,  shall  both  be  void  ;  and  otherwise  they 
shall  remain  in  full  force  and  virtue. 
And  provided  further : 

That  until  default  by  the  said  mortgagor,  or 
his  executors  and  administrators,  in  the  per- 
formance of  the  condition  aforesaid,  or  of  some 
part  thereof,  it  shall  and  may  be  lawful  for  him 
or  them  to  keep  possession  of  the  said  granted 
property,  and  to  use  and  enjoy  the  same  ;  but  in 
case  of  such  default,  or  if  the  same  or  any  part 
thereof  shall  be  attached  at  any  time  before  pay- 
ment as  aforesaid,  by  any  other  creditor  or  credi- 
tors of  the  said  mortgagor,  or  if  the  said  mort- 
gagor, his  executors  or  administrators,  shall 
attempt  to  sell  tht  same  or  any  part  thereof  with- 
out notice  to  the  said  mortgagee  or  his  executors, 
administrators,  or  assigns,  and  without  his  or 
their  assent  to  such  sale,  in  writing  expressed  ;  or 
shall  remove  the  same,  or  any  part  thereof,  from 
the  place  where  they  now  are,  without  such  no- 
tice and  a<<sent,  then  it  shall  be  lawful  for  the 
said  mortgagee,  his  executors,  administrators,  or 
assigns,  to  take  immediate  possession  of  the 
whole  of  said  granted  property  to  his  or  their 
•wn  use,  and  to  sell  and  dispose  of  the  whole,  or 
of  so  much  of  said  granted  property  at  public 
auction  as  shall  produce  a  sum  of  money  suffi- 
cient to  pay  and  discharge  the  above-mentioned 
debt  or  liability,  with  interest,  and  alt  costs  and 
charges  of  keeping  and  selling  the  same,  and  all 
just  and  equitable  liens  then  existing  thereon, 
without  further  notice  or  demand,  except  giving 

days'  notico  of  the  time  and  place  of  said 

sale  to  said  mortgagor  or  his  legal  representa- 
tives ;  and  after  the  said  debt  or  liability,  with 
interest,  costs,  charges,  and  liens,  shall  be  so  dis- 
charged and  satisfied,  the  surplus  of  the  money 
arising  from  said  sale,  and  the  residue  of  said 
granted  property,  shall  be  paid  and  restored  to 
■said  mortgagor  or  his  legal  representatives,  dis- 
charged from  all  claim  under  this  mortgage. 

In  witness  whereof,  the  said  A.  B.  has  here- 
unto set  his  hand  (and  seal),  this day  of . 

Executed  and  delivered  in  (  A.  B.    [Sea/.\ 

presence  of  j 

Mortgage  of  Pergonal  Property— Sale- 
Notice  or. 

9?  *^"  ^77  ^^y  °^ •  A-  °- .  at  —  o'clock 

—  M.,I  will  expose  for  sale,  at  public  auction, 

at [designating  the  plare  0/ sale),  the  property 

mortgaged   by  A.  B.  to  C.  D.,  consisting  of  — - 

horses,  cattle,  sheep, hogs, tons 

of  hay, bushels  of  corn, bushels  of  wheat. 

•tc,  etc. 

Terms  of  sale  to  be  made  known  on  day  of  sale, 

_         .  A.  ^..Auctioneer. 

Dated ,  xhis day  of . 

BIortKra^e  of  Personal  Property— 
Schetiule  '"A." 

If  the  property  conveyed  consists  of  a  great  number 
of  articles,  it  is  as  well  to  refer  to  ihein  as  "  all  the 
goods,  wares,  and  merchandise,  chattels  and  effects, 
mentioned  and  described  in  the  schedule  hereunto  an- 
>«xed,  marked  '  Schedule  A,' "  and  they  should  then  be 


particularly  enumerated  In  the  schedule.  The  delivery 
IS  essential  in  order  to  make  a  bill  of  sale  valid,  and  the 
subscribing  witness  should  be  able  to  testify  positively,  at 
well  in  relation  to  that  as  10  the  consideration  of  the  sale. 
Si;Hr;Dui.ii  "A." 
Schedule  of  all  the  furniture  and  household 
goods  mentioned  in  {or  other  property),  and  con- 
veyed by,  the  annexed  chattel  mortgage. 

One  parlor  set.        Value . 

"      library  table,        " 
"      book-case,  " 

Etc.,  etc. 

Annexed  and  signed,  this day  of .  » 

iiVitness\Vi.%.  A.B. 

Mort^agre  of  Personal  Property,  or. 
Chattel  BIortKai^e. 

To  Secure  Payment  0/ Notes,  etc. 

See  General  Forms,  and  continuing  thus : 

Upon  condition,  however : 

That  the  said  parties  of  the  first  part  shall  well 
and  truly  pay  unto  the  said  party  of  the  second 
part,  his   executors,  administrators,   or  assigns, 

the  just  and  full  sum  of dollars  and cents, 

with  interest,  being  the  amount  of promis- 
sory notes  made  by  them,  and  described  as  fol- 
lows, each  bearing  date  the day  of ,  pay- 
able as  follows : 

One  note  for dollars,  payable  at months 

from  date  ;  at ,  etc.,  etc. 

And  one  for dollars,  payable  at months 

from  date,  to ,  at ,  etc.,  etc. 

Etc.,  etc. 

And  upon  the  further  condition,  that  if  the  said 
parties  of  the  first  part  will  well  and  truly  indem- 
nify and  save  harmless  the  said  party  of  the  sec- 
ond part  of,  from  and  against  all  of  the  notes  re- 
maining unpaid,  which  were  given  by  said  party 
of  the  second  part  to  E.  F.  &  Co.  on  the  purchase 
oi  \ state  iuhat'),'w\\\z\i  notes  are  particularly  enu- 
merated in  schedule  B.  hereto  annexed  ; 

And  also  against  all  of  the  notes  and  debts, 
obligations  or  liabilities  mentioned  in  schedules 
C.  and  D.  hereto  annexed,  being  debts  of  the 
party  of  the  second  part,  which  have  been  as- 
sumed by  said  party  of  the  first  part,  then  this 
conveyance  shall  be  void  ;  otherwise,  to  remain 
in  full  force. 

And  the  said  parties  of  the  first  part,  for  them- 
selves, their  executors,  administrators,  and  as- 
signs, do  covenant,  promise,  and  agree,  to  and 
with  the  said  party  of  the  second  part,  his  exec- 
utors, administrators,  and  assigns : 

That  in  case  default  shall  be  made  in  the  pay- 
ment of  either  of  said  notes  hereinbtfore  men- 
tioned, given  by  said  parties  of  the  first  part  to 
the  said  party  of  the  second  part,  and  the  same 

shall  remain  due  and  unpaid  for  the  space  of 

days  thereafter,  then  the  sum  remaining  unpaid 
upon  all  of  said  notes  may,  at  the  option  of  the 
said  party  of  the  second  part,  his  executors,  ad- 
ministrators, and  assigns,  be  considered  due  and 
payable  immediately ; 
And  in  case  either  of  said  notes  shall  so  remain 

unpaid  for  the  space  of days,  or  in  case  any 

recovery  shall  be  had  against  said  party  of  the 
second  part,  for  or  by  reason  of  any  note  or  notes, 
or  debts  mentioned  in  schedules  B,  C,  and  D  ;  then 
in  that  case  it  shall  immediately  thereupon  be 
lawful  for,  and  the  said  parties  of  the  first  part 
hereby  authorize  and  empower  the  said  party  of 
the  second  part,  his  executors,  administrators,  or 
assigns,  with  the  aid  or  assistance  of  any  person 
or  persons,  to  enter  the  store,  stable,  dwelling- 
house  and  other  premises,  and  such  other  place  or 
places  as  the  said  goods,  chattels  and  property 
are  or  may  be  placed,  and  take  and  carry  away 
the  said  goods,  chattels  and  property,  and  to  sell 
and  dispose  of  the  same  for  the  best  price  or 
prices  he  can  obtain  for  the  same,  and  out  of 
the  money  arising  therefrom  to  retain,  take  up 
and  pay  the  amount  then  remaining  unpaid  on 
said  notes,  whether  the  said  notes  shall  have  ma- 
tured or  not,  and  all  charges  touching  the  same, 
and  also  all  moneys  which  may  be  recovered 
against  him,  the  said  party  of  the  second  part,  for 
or  on  account  of  any  of  the  notes  or  debts  men- 
tioned in  either  of  the  schedules  to  this  mort- 
gage, or  any  liability  or  charges  he  may  incur  dp 


36a 


CONVEYANCES. 


account  of  the  same,  or  any  part  thereof,  and 
also  the  expenses  of  such  sale,  and  then,  after 
retaining  sufficient  in  his  hands  to  pay  off  and 
discharge  any  of  the  said  debts  or  notes  men- 
tioned jn  either  of  the  schedules  which  may  re- 
main unpaid,  and  applying  the  said  moneys 
thereto,  rendering  the  overplus  (if  any)  unto  the 
said  parties  of  the  first  part,  or  to  their  executors, 
administrators  or  assigns;  and  in  case  of  such 
sale  and  disposition  of  said  goods,  chattels  and 
property,  it  shall  and  may  be  lawful  for  the  said 
party  of  the  second  part  to  sell  and  dispose  of 
the  said  property,  goods  and  chattels,  together 
•r  separately,  as  he  may  prefer. 

And  until  default  be  made  in  the  payment  of 
either  of  the  said  notes,  and  the  same  shall  re- 
main unpaid  for  ten  days,  or  in  any  of  the  stipu- 
lations hereinbefore  set  forth  on  the  pattof  the 
parties  of  the  first  part,  the  said  parties  of  the 
first  part  shall  remain  and  continue  in  the  quiet 
and  peaceable  possession  of  the  said  goods  and 
chattels  and  property,  and  the  full  and  free  enjoy- 
ment of  the  same. 

In  ^witness  whereof,  the  parties  of  the  first  part 

have  hereunto  set  their  hands  (and  seals),  this 

day  of .  A.  B.      [iVrt/ | 

Executed  in  presence  of )  W.  B.    [.bVa/.j 

W.  S.,  etc.  / 

MortKaire  of  Pergonal  Property,  or, 
Chattel  Mortj^ag'e— Stock. 

This  (conveyance,  or  indenture,  or)  mortgage, 
made,  etc.,  between  A.  B.,  of  the  one  part,  and 
C.  D.,  of  the  other  part,  witnesseth  : 

That  said  A.  B.  has  by  deed,  under  his  hand 
and  seal,  bearing  even  date  with  these  presents, 
assigned  and  transferred  unto  the  said  C.  D.  the 

said  shares  of  (describe  the  stock),  in  the 

company  (in  the  mode  pointed  out  m  the  act  of  in- 
corporation thereof),  upon  trust  for  securing  to  the 
said  C.  D.,  his  executors,  administrators,  or  as- 
signs, the  repayment  of  the  sum  of dollars 

on next  ensuing,  with  interest  for  the  same 

after  the  rate  of per  cent,  per  annum,  to  be 

computed  from  the  day  of  these  presents,  clear 
of  all  deductions  for  taxes,  or  on  any  other  ac- 
count whatsoever ; 

That  in  case  the  said  principal  sum  and  interest, 
or  any  part  of  the  same  respectively,  shall  remain 
unpaid  to  the  said  C.  D.,  his  executors,  adminis- 
trators, or  assigns,  after  the  day  or  time  afore- 
said, upon  trust  at  any  time  or  times  thereafter, 
in  the  discretion  of  the  said  C.  D.,  his  executors, 
administrators,  or  assigns  (without  the  necessity  of 
any  consent  or  concurrence  on  the  part  of  the  said  A. 
B.,  his  executors,  etc.),  to  make  sale  and  absolutely 
dispose  of  the  said  shares  in  the  said  com- 
pany so  assigned  to  the  said  C.  D.,  as  aforesaid, 
or  any  of  them,  either  together  or  separately, 
and  either  by  public  auction  or  by  private  con- 
tract; and  to  transfer  or  assure  the  same  when 
sold  unto  the  purchaser  or  purchasers  thereof  or 
as  he,  she,  or  they  shall  order  or  direct ; 

And  upon  further  trust  out  of  the  money  which 
shall  arise  as  well  from  the  sale  or  sales  afore- 
said, as  from  any  of  the  dividends  and  profits  of 
the  said  shares  accruing  in  the  meantime,  which 
shall  be  received  by  the  said  C.  D.,  his  executors, 
etc.,  to  payor  retain  the  said  principal  sum  of 

dollars,  with  interest  for  the  same,  after  the 

rate  and  from  the  time  aforesaid,  or  so  much  of 
the  said  sum  and  interest  as  shall  then  remain 
unpaid,  clear  of  all  deductions  as  aforesaid,  to- 
gether with  such  costs  and  expenses  as  shall  be 
incurred  by  the  said  C.  D.,  his  executors,  etc.,  in 
the  execution  of  these  trusts,  or  as  incidental 
thereto. 

And  in  case  after  paying  or  retaining  the  sum 
or  sums  of  money  and  interest,  costs  and  ex- 
penses aforesaid,  any  surplus  shall  remain  in  the 
hands  of  the  said  C.  D.,his  executors,  etc.,  un- 
applied to  any  of  the  purposes  aforesaid  ;  then 
upon  trust  to  pay  such  surplus  unto  the  said  A. 
B.,  his,  etc.,  for  his  or  their  absolute  use  and 
benefit;  and  also  in  case  after  such  payment  of 
the  sum  or  sums  of  money  and  interest,  costs 
and  expenses  aforesaid,  or  after  the  receipt  of  the 
same  from  the  said  A.  B.,  his  executors,  etc.,  the 
f«W  shares  (n  ^h^  s^id  company,  or  any  of 


them,  shall  remain  unsold,  then  upon  trust,  on 
the  request  and  at  the  costs  of  the  said  A.  B., 
his,  etc.,  to  transfer  the  same  unto  the  said  A. 
B.,  his  executors,  etc.,  or  as  he  or  they  shall 
direct,  free  from  all  incumbrances,  created  or  oc- 
casioned by  the  said  C.  D.,  his,  etc.,  in  the  mean- 
time. 
In  witness  whereof,  etc. 

VARIOUS  CliAUSES. 

Default — Possession  Until. 

That  until  default  shall  be  made,  in  payment  of 

the  said  sum  of dollars  and  interest,  the  said 

A.  B. ,  and  his  assigns,  may  hold,  enjoy,  and  use 
the  goods  above  mortgaged,  as  aforesaid,  with- 
out the  hindrance  or  interruption  of  the  said  C. 
D.,  or  his  assigns. 

Default — Mortgagee  Shall  Not  Sell  Until. 

That  until  default  shall  be  made,  in  payment 

of  the  said  sum  of dollars  and  interest,  oi 

some  part  thereof,  the  said  C.  D.,  his  executors, 
or  administrators,  will  not  sell  or  dispose  of  the 

said goods,  chattels  and  property  (or shares  of 

stock  in  the  said  company  so  transferred  to  him  as  afore, 
said,  and  will,  from  time  to  lime,  pay  over  unto  the  said 
A.  B.,  hit  executors,  or  administrators  or  assigns,  any 
dividend  or  dividends,  which  he,  the  said  C.  D.,  his  ex- 
ecutors, or  administrators,  shall,  in  the  meantime,  hav" 
received  on  account  thereof) 

Pav.ment — Future  Day,  With  Interest,  etc. 

Upon  condition  that  said  party  of  the  first  part 
shall  pay  or  cause  to  be  paid  unto  the  said  patty 
of  the  second  part,  his  executors,  administrators 

or  assigns,  the  sum    of  dollars  {t/ie  principal 

su»i  secured),  on  the  day  of ,  with  inter- 
est thereon  from  the  date  hereof  (or  from  the  

day  of ),  at  the  rate  of per  cent,  per  an- 
num {or  with  legal  interest  thereon),  payable  semi- 
annually (or  quarterly),  on  the day  of ,  and 

the  day  of ,  etc.  {designating  the  times  ^/ 

papiient),  in  each  year,  until  the  whole  of  said 
principal  sum  be  paid. 

Payment — .\nnual  Instalments,  With  Interest, 
etc. 

Upon  condition  that  said  party  of  the  first  part 
shall  pay  or  cause  to  be  paid  unto  the  said  party 
of  the  second  part,  his  executors,  administrators, 

or  assigns,  the  just  and  full  sum  of dollars 

{stating  the  principal  sutn  secured),  in equal  an- 
nual instalments,  from  the  date  hereof  (or  com- 
mencing on  the day  of ),  with  interest  there- 
on at  the  rate  of per  cent,  per  annum  (or  with 

legal  interest  thereon),  payable  annually  with  such 
instalments  {or  semi-annually,  or  quarterly,  on  the 

days  of [  naming  the  times  /or  payment  o/ 

interest]  in  each  year). 

Payment — Unequal  Instalments,  With  Interest, 
etc. 

Upon  condition  that  said  party  of  the  first  part 
shall  pay  or  cause  to  be  paid  unto  the  said  party 
of  the  second  part,  his  executors,  administrators, 

or  assigns,  the  just  and  full  sum  of dollars 

[stating  the  principal  sum  secured),  in  manner  fol- 
lowing, viz.  :  the  sum  of dollars  on  the  

day  of^ next ;  the  sum  of dollars  on  the 

day  of ;  and  the  remaining  sum  of dol- 
lars in from  the  said  last-mentioned  date,  to- 
gether with  the   interest  at  the   rate  of per 

cent,  per  annum  {or  with  legal  interest  on  the  whole 
sum  remaining  unpaid  at  the  time  of  each  payment). 

Possession. 
See  Default,  etc.,  above. 

Sale. 
See  Default,  above. 

SECtn^iTY — On  a  Note. 
Upon  condition,  however,  that  if  the  said  party 
of  the  first  part  shall  well  and  truly  pay  to  the 
said  party  of  the  second  part,  his  executors,  ad- 
ministrators, and  assigns,  a  certain  promissory 

note,  made  by ,  for dr'llars,  bearing  date 

the day  of ,  and  payaole after  date  to 

the  order  of  E.  F.  (or  his  promissory  note,  of  which 
the  following  is  a  copy,  setting  it  forth),  according  to 
the  tenor  thereof,  then  this  conveyance  shall  be 

void ;  otherwise,  to  remain  jn  full  force.    And  ip 


CONVEYANCES. 


363 


ease  default  shall  be  made  in  payment  of  said 
note,  etc.  («x  in  other  cases). 

Surety — In  a  Lease. 

Upon  condition,  however,  that  if  the  said  party 

of  the  first  part,  his  executors,  administrators 

pnd  assigns,  shall  well  and  truly  pay  the  rent  to 

accrue  on  a  lease  made  by  L.  R.  to  the  said  party 

of  the  first  part,  bearing  date  the day  of 

(and  shall  perform  all  the  covenants  on  his  part  therein 
conuined),  and  indemnify  and  save  harmless  the 
said  party  of  the  second  part  from  and  against 
all  damage,  costs  and  expenses  by  reason  of  his 
having  become  a  surety  thereon,  then  this  con- 
veyance shall  be  void ;  otherwise  to  remain  in 
full  force. 

And  in  case  default  shall  be  made  in  such  pay- 
ment (and  performance),  etc.  {as  in  other  cases). 
See  Leases,  ante. 
Covenant  to  Warrant  the  Goods. 
And  the  said  A.  B.,  lor  himself,  his  executors, 
and    administrators,  all  and    singular  the   said 
goods,  etc.,  by  these  presents  granted,  etc.,  unto 
the  said  C.  D.,hjs  executors,  etc.,  against  him, 
the  said  A.  B.,  his  executors  and  administrators, 
and  against  all  and  every  other  person  and  per- 
sons whatsoever,  shall  and  will  warrant  and  for- 
ever defend  by  these  presents. 
Warranty. 
And  I,  the  said  mortgagor,  for  myself  and  for 
my  executors  and  administrators,  do  covenant  to 
and  with  the  said  mortgagee,  and  with  his  exec- 
utors, administrators  and  assigns,  that  I  am  law- 
fully possessed  of  the  said  goods  and  chattels, 
as  of  my  own  property;  that  the  same  are  free 
from  all  incumbrances  (except,  stating-  what),  and 
that  1  will,  and  my  executors  and  administrators 
shall,  warrant  and  defend  the  same  to  the  said 
mortgagee,   his  executors,   administrators,   and 
assigns,  against  the  lawful  claims  and  demands 
of  all  persons. 

POWERS  OF  ATTORNEY.  See  title 
Agency,  subject  Attorneys  in  Fact,  ante, 
p.  72,  et  seq. 

WILLS  are  either  absolute  or  conditional 
conveyances  of  property. 

A  WILL  (last  will  and  testament)  is  the  dis- 
position of  one's  property,  to  take  effect  after 
death.* 

The  word  will  includes  codicils. 

Wills  are  unwritten  (or  nuncupative)  and  writ- 
ten. The  former  are  called  nuncupative  from 
nuncupate,  to  name,  declare,  or  make  a  sol- 
emn declaration ;  because  this  class  of  wills 
were  required  to  be  made  in  solemn  form  be- 
fore witnesses,  and  afterwards  reduced  to  writ- 
ing,»  and  by  the  appointment  and  naming  of  an 
executor.' 

The  practice  of  allowmg  the  owner  of  prop- 
erty to  direct  its  destination  after  his  death  is 
of  very  ancient  date,  coeval  with  civilization 
itself,8  and  with  rare  exceptions  has  existed 
always  and  everywhere. 

Bequeathing  is  the  giving  of  personal  prop- 

<1-Swineburne  Wills,  pt.  i,?2;  Godol.pt.  i,  c.  i,  J  2. 
e-4  Kent.  Comm.  576 :  z  Sharsw.  Bl.  Comm.  500;  i 
Jarman  Wills,  Perk.  Ed.  130-136,  and  General  Stat- 
WTES.  f-Swineburne  Wills,  pt.  j,  §  12,  pi.  i;  Godol- 
phin,  pt.  I,  c.  4,  9  6.  g-Genesis  xlviii.  22  ;  Gal.  iii.  15  ; 
Plutarch's  Life  of  Solon;  Roman  Laws  of  the  Twelve 
Tables.  I1-13  Barb.  106.  i-Wigram  Wills,  11.  j-3  B. 
&  Aid.  489;  2  W.  Bl.  1043;  4  Mass.  462  ;  2  Nott.  & 
M'C.  472;  5  Conn.  168;  4  S.  &  R.  567.  U-i  Greenl. 
Ev.  273 ;  I  Jarman  Wilts,  Perk.  Ed.  Ch.  7,  ^  2  n.  I-7 
Johns.  394  ;  4  Wend.  474,  485  ;  9  Mass.  307  ;  4  Conn. 
550 ;  5  Id.  262 ;  8  Vt.  373 ;  i  N.  H.  i  ;  4  Id.  191 ;  2 
Dall.  266 ;  4  S.  &  R.  297 :  3  H.  &  M.  502  :  i  Harr.  & 
M.  H.  162;  4  Kent.  Comm.  531.  iii-Ambl.  651;  2 
Saeed,  305.     11-33  Penn.  St.  9 ;  2  Sneed,  303 ;  4  Wheat. 


erty,  by  will,  to  another.*  The  word  may  be 
construed  "  devise."'  A  gift,  by  will,  of  per- 
sonal property,  is  called  a  "  bequest." 

Blini:)Ness.  See  Testator  —  Capacity, 
below. 

Cancellation  of  a  will,  with  an  intention 
to  revoke,  is  a  revocation,  and  the  destruction 
or  obliteration  need  not  be  complete.^  but  must 
be  by  the  testator  or  in  his  presence,  and  by  his 
direction  and  consent.''  It  must  be  done  with 
an  intention  to  revoke ;  and  evidence  is  admis- 
sible to  show  with  what  intention  the  act  is 
done.' 

Charities  are  gifts  to  general  public  uses, 
which  may  be  extended  to  the  rich  as  well  as 
the  poor."  They  embrace  gifts  to  the  poor 
of  every  class,  including  gifts  to  poor  relations, 
where  the  intention  is  manifest ;°  for  every  de- 
scription of  college  and  school,  and  their  in- 
structors and  pupils,  where  nothing  contrary 
to  the  fundamental  doctrine  of  Christianity  is 
taught ;  to  all  institutions  for  the  advancement 
of  the  Christian  religion;"  to  all  churches,^ 
chapels,  hospitals,  orphan  asylums,<>  dispensa- 
ries,' and  the  like  ;■  to  general  public  purposes,' 
as  supplying  water  or  light  to  towns,  building 
roads  and  bridges,  keeping  them  in  repair, 
etc.,"  and  to  other  charitable  purposes  general 
in  their  character.' 

A  CODICIL  is  an  addition  to,  or  qualification 
of,  a  last  will  and  testament. 

All  codicils  are  a  part  of  the  will,  and  are 
to  be  so  construed."  A  codicil  duly  executed, 
and  attached  or  referring  to  a  paper  defectively 
executed  as  a  will,  has  the  effect  to  give  operation 
to  the  whole  as  one  mstrument.*  There  may 
be  numerous  codicils  to  the  same  will;  in  such 
cases  the  later  ones  operate  to  revive  and  re- 
publish the  earlier  ones.^  But  in  order  to  set 
up  an  informally  executed  paper  by  means  of 
one  subsequently  executed  in  due  form,  refer- 
ring to  such  informal  paper,  the  reference  must 
be  such  as  clearly  to  identify  the  paper.* 

It  is  not  competent  to  provide  by  will  for  the 
disposition  of  property  to  such  persons  as  shall 
be  named  in  a  subsequent  codicil,  not  executed 
according  to  the  prescribed  formalities  in  regard 
to  wills;  since  all  papers  of  that  character,  in 
whatever  form,  if  intended  to  operate  only  in 
the  disposition  of  one's  property  after  death, 
are  of  a  testamentary  character,  and  must  be  so 
treated.* 

Cy  pres  (as  near  as)  is  the  rule  of  construc- 
tion applied  to  a  will  (but  not  to  a  deed)  by 

518;  1  Sumn.  C.  C.  276  ;  10  Penn.  St.  23  ;  35  N.  H. 
445;  28  Penn.  St.  23.  0-7  B.  Mon.  351,  481  ;  4  Ircd. 
Eq.  19;  30  Penn.  St.  425.  |»-io  Cash.  129;  7  S.  &  R. 
559;  4  Iowa,  180.  «I-33  Penn.  St.  9;  12  La.  An.  30J,- 
8  Rich.  190.  r-27  Barb.  260.  s-2  Sandf.  46.  t-30 
Penn.  St.  437.  u-24Conn.  350.  v-4  R.  L414:  12  La. 
An.  301  ;  5  Ohio  St.  237;  33  Penn.  St.  415;  5  Ind.  465. 
IV-4  Brown  Ch.  55 ;  i7Sim.  108;  16  Beav.  Rolls.  510; 
2  Ves.  Sr.  242;  3  Ves.  107,  no;  4  Id.  610;  7  Younge  & 
C.  j6o:    2  Russ.  &  M.  117;    8  Cow.  56;    3  Sandf.  Ch. 

11  ;  4  Kent.  Comm.  531.  x-3  B.  Mon.  390;  6  Johns. 
Ch.  374,  375;  14  Pick.  543:  16  Ves.  167;  7  Id.  98:  i 
Ad.  &  E.  423.  See  also  the  numerous  cases  cited  in  7 
Ves.  Ch.  (Sumner  Ed.)  98  ;  i  Cr.  &  M.  42.  y-3  Bingh. 
614  ;  12  J.  B.  Moore,  2.     x-4  N.  Y.  140.     a-2  Ves.  234; 

12  Id.  29;  2  Mylne  &  K   765;  i  Ves.  &  B.  422,  445. 


3^ 


CONVEYANCES. 


which,  where  the  testator  evinces  a  particular 
and  a  general  intention,  and  the  particular  inten- 
tion cannot  take  effect,  the  words  shall  be  so 
construed  as  to  give  effect  to  the  general  inten- 
tion.*»  The  principle  is  applied  to  sustain  wills 
in  which  perpetuities  are  created,  so  that,  if  it 
can  possibly  be  done,  the  devise  is  not  regarded 
as  utterly  void,  but  is  expounded  in  such  a 
manner  as  to  carry  the  testator's  intention  into 
effect,  as  far  as  the  law  respecting  perpetuities 
will  allow.  This  is  called  a  cy  pres  construc- 
tion. Its  rules  are  vague  and  depend  chiefly 
upon  judicial  discretion  applied  to  the  partic- 
ular case.*  It  is  also  applied  to  sustain  devises 
and  bequests  for  charity. 

Designation  is  the  expression  used  by  the 
testator  to  denote  a  person  or  thing  instead 
of  the  name  itself;  thus,  a  bequest  of  the  farm 
which  the  testator  bought  of  a  person  named, 
or  of  a  picture  which  he  owns,  painted  by  a  cer- 
tain artist,  would  be  a  designation  of  the  thing. 
So  a  legacy  "  to  the  eldest  son  "  of  A.  would 
be  a  designation  of  the  person."* 

Devise  is  a  gift  of  real  property  by  a  per- 
son's last  will  and  testament. 

A  person  to  whom  a  devise  is  made  is  called 
the  "  devisee."  A  person  to  whom  the  residue 
of  a  testator's  real  estate  is  devised,  after  satis- 
fying the  debts  and  bequests  and  devises,  is 
called  the  "  residuary  devisee."  All  persons 
having  an  existence,  and  even  embryos,  may 
be  devisees,  unless  excepted  by  some  positive 
law.  But  the  devisee  must  be  in  existence,  ex- 
cept in  cases  of  devises  to  charitable  uses.*  In 
general,  whosoever  can  acquire  property  by  his 
labor  and  industry  may  receive  a  devise.'  So, 
aliens,  married  women,  minors,  and  persons 
of  non-sane  memory,  may  be  devisees. » 

A  testator,  being  one  who  devises  real  estate, 
is  called  also  a  devisor.  Any  person  who  can 
sell  an  estate  may,  in  general,  devise  it ;  and 
there  are  some  disabilities  to  a  sale  which  are 
not  such  to  a  devise.*" 

The  term  devise  properly  and  technically 
applies  only  to  real  estate.  The  object  of  the 
devise  must  therefore  be  that  kind  of  property.' 
But  it  is  also  sometimes  improperly  applied  to 
a  bequest  or  legacy .J 

Devises  are  contingent  or  vested;  that  is, 
after  the  death  of  the  testator.  When  the 
vesting  of  any  estate  in  the  devisee  is  made  to 
de])end  upon  some  future  event,  it  is  contin- 
gent ;  if  the  event  never  occurs,  or  until  the 
event   does   occur,  no  estate  vests  under  the 

b-3  Hare  Ch.  12  ;  2  T.  R.  as4  ;  2  Bligh.  49  ;  Sugd. 
Pow.  60 ;  I  Spencc  Eq.  Jiir.  532.  c-Sedgw.  Const.  L. 
265;  Story  Eq.  Jur.  ^  1169,  tt  seq.  «I-See  Roper  Leg. 
Ch.  2.  e-Story  Eq.  Jur.  JJ  1146,  1:60;  2  Washb.  R. 
Prop.  68S;  2  How.  127;  4  Wheat,  33,  49.  f-Cam  & 
N.  353.  jr-4  Kent.  Comm.  506;  i  Harring,  524.  As 
to  corporations  see  2  Washb.  R.  Prop.  687.  ll-See  2 
Washb.  R.  Prop  685,  686.  l-i  Hill  Abr.  C.  36,  nn.  62- 
74.  j-4  Kent.  Comm.  489;  8  Vin  Abr.  41  ;  Com.  Dig. 
Estates  by  Dm.  k-i  Jarman  Wills,  Ch.  26,  and  nu- 
merous cases  cited.  I-21  Pick.  311;  i  W.  &  S.  205. 
111-21  Pick,  jti;  7  Met.  Mass.  171.  ii-t  Ves.  Sr.  44, 
50,  118;  4  Pick.  198;  7  Met.  Mass.  173.  See  Redf. 
WilU.  0-2  Vem.  Ch.  394;  15  Ves.  Ch.  589  ;  3  Whart. 
477;  4  Kent  Comm.  541,  J43,  and  cases  cited  in  notes. 


devise.  But  where  the  future  event  is  refenM 
to  merely  to  determine  the  time  at  which  the 
devisee  shall  come  into  the  use  of  the  estate, 
this  does  not  hinder  the  vesting  of  the  estate 
at  the  death  of  the  testator.*  The  law  favors 
the  construction  of  the  will  that  shall  vest  ihe 
estate ;'  but  this  construction  must  not  be  car- 
ried to  such  an  extent  as  to  defeat  the  manifest 
intent  of  the  testator."  Where  the  estate  is 
given  absolutely,  but  only  the  time  of  the  |X)s- 
session  is  deferred,  the  devisee  or  legatee  ac- 
quires a  transmissible  interest,  although  he 
never  arrive  at  the  age  to  take  possession." 

Where  the  devisee  dies  during  the  life  of  th<. 
testator,  and  the  devise  has  lapsed,  the  estate 
so  devised  will  go  to  the  heirs,  notwithstanding 
a  residuary  devise.  But  if  the  devise  be  void, 
as  where  the  devisee  is  dead  at  the  date  of  the 
will,  or  is  made  upon  a  condition  precedent 
which  never  happens,  the  estate  will  go  to  the 
residuary  devisee  if  the  words  are  sufficiently 
comprehensive.* 

Effects  denotes  "  property,"  and  this  in  a 
more  extensive  sense  than  "  goods. "p  In  a 
will  "effects"  will  carry  the  whole  personal 
estate,'  but  not  real  estate  unless  the  word 
"  real "  be  added.'  When  preceded  or  fol- 
lowed in  a  will  by  words  of  narrower  import, 
if  the  bequest  is  not  residuary,  it  will  be  con- 
fined to  species  of  property  of  the  same  kind 
with  those  previously  described.* 

P'arm.  In  a  will  the  word  "  farm "  may 
pass  a  freehold,  if  it  appears  that  such  was  the 
intention  of  the  testator.' 

Goods.  In  wills  "  goods  "  is  a  most  com- 
prehensive and  general  term,  and,  if  there  is 
nothing  to  limit  it,  it  will  comprehend  all  the 
personal  estate  of  the  testator,  as  bonds,  furni- 
ture, money,  notes,  stocks,  etc.,  etc. ;"  but  in 
general  it  will  be  limited  to  the  context  of  the 
will.'' 

Goods  and  Chattels.  In  wills  the  term 
"  goods  and  chattels,"  if  unrestrained,  will 
pass  all  personal  property.' 

Household  Furniture.  By  this  expres- 
sion, in  wills,  all  personal  chattels  will  pass 
that  may  contribute  to  the  use  or  convenience 
of  the  household,  or  the  ornament  of  the 
house :  as,  china,  linen,  pictures,  and  plate. 
But  goods  or  plate  in  the  hands  of  the  testator 
in  the  way  of  his  trade  will  not  pass ;  nor  will 
books  nor  wines." 

Goods.    This  expression,  in  wills,  will 

pass  everything  of  a  permanent  nature  (that  is, 

p.2  Sharsw.  Bl.  Comm.  284.  q-s  Madd.  Ch.  72  ;  6  Id. 
119;  Cowp.  299;  15  Ves.  Ch.  507.  r-2  Powell  Dev. 
Jarm  Ed.  167;  15  M.  &  W.  450.  »-i3  Ves.  Ch.  39; 
15  Id.  326;  Roper.  Leg.  210.  See  2  Sharsw.  Bl.  Comm. 
384,  n.  When  "  the  effects  "  passes  realty,  see  i  Jarman 
Wills,  Perk.  Ed.  585.  590,  591,  n.  t-6  T.  R.  34S;  9 
East.  448.  11-1  Atk.  Ch.  180-182  ;  2  Id.  62 ;  i  P.  Wms. 
267:  I  Brown  Ch.  128;  4  Russ.  Ch.  370:  Wms.  Ex. 
1014;  1  Roper.  Leg.  250.  V-See  2  Belt.  Suyp.  Ves. 
Ch.  287  :  I  Chitty  Pr.  89,  90:  1  Ves.  Ch.  63;  3  Id.  212; 
Hamm.  Parties,  182;  i  Veates,  101;  2  Dall.  142:  Ay- 
liffe  Pand.  296;  West.  Ins.  260;  Sugd.  Vend.  493,  497. 
W-See  Addis.  Contr.  31,  201,  912,  014.  x-i  Jarman 
Wills,  Perk.  Ed.  591,  596,  un.;  x  Ves.  Sr.  Ch.  97;  a 
Wms   Ex.  Am.  £d.  1017;  t  Johns.  Ch.  329. 


CONVEYANCES. 


36s 


Articles  of  household  which  are  not  consumed 
in  their  enjoyment)  that  were  used  or  pur- 
chased, or  otherwise  acquired  by  the  testator, 
for  his  house ;  but  not  goods  in  the  way  of  his 
trade.  Plate  will  pass  by  this  term,  but  not 
articles  of  consumption  found  in  the  house,  as 
malt,  hops,  or  victuals ;  nor  guns  or  pistols,  if 
used  in  hunting  or  sport,  and  not  for  defence 
of  the  house.  A  clock  in  the  house,  if  not 
fixed  to  it,  will  pass.^ 

Stuff.     These  words  are   sometimes 

used  in  a  will.  Plate  will  pass  under  this 
term,'  but  not  apparel,  books,  cattle,  victuals, 
nor  choses  in  action  which  do  not  fall  within 
the  natural  meaning  of  the  word,  unless  there 
be  an  intention  manifest  that  they  should  pass.* 
Goods,  as  seven  hundred  beds  in  possession  of 
testator  for  purposes  of  trade,  do  not  pass  un- 
der "  household  stuff."''  In  general,  "  house- 
hold stuff"  will  pass  all  articles  which  may  be 
used  for  the  convenience  of  the  house." 

In  Terrori;m.  When  a  legacy  is  given  to 
a  person  upon  condition  not  to  dispute  the 
validity  or  the  dispositions  in  wills  and  testa- 
ments, the  conditions  are  not,  in  general,  obli- 
gatory, but  only  in  terrorum  ;  that  is,  by  way 
of  terror,  threat,  or  warning;  if,  therefore, 
there  exists  a  reasonable  or  sufficient  cause  for 
litigation,  the  non-observance  of  the  conditions 
will  not  be  a  forfeiture.*  But  when  the  acqui- 
escence of  the  legatee  appears  to  be  a  material 
ingredient  in  the  gift,  the  bequest  is  only  such 
while  the  legatee  shall  refrain  from  disturbing 
the  will.* 

Inception.  In  the  making  of  a  will  the 
writing  is  the  inception.' 

Intention.  In  last  wills  and  testaments 
the  intention  of  the  testator  governs  unless  the 
thing  to  be  done  is  opposed  to  some  inflexible 
rule  of  law.«  This  intention  is  to  be  gathered 
fi'om  the  instrument,  and  from  every  part  of  it.'' 

Intestate.  An  intestate  is  one  who,  having 
lawful  power  to  make'a  will,  has  made  none, 
or  has  made  one  which  is  defective.  In  such 
case  the  deceased  is  said  to  die  intestate,  and 
his  estate  and  effects  descend  to  his  heirs  in  the 
manner  prescribed  by  law.  See  General  Stat- 
utes. One  who  cannot  lawfully  make  a  last 
will  and  testament  is  called  intestable.  An  in- 
fant, an  insane  person,  or  one  civilly  dead  can- 
not make  a  will  for  want  of  capacity  or  under- 
standnig;  and  in  the  absence  of  a  statute  to 
the  contrary  a  married  woman  cannot  make  a 
will  without  the  concurrence  of  her  husband, 
because  she  is  under  his  authority. 

Issue.  Descendants,  all  persons  who  have 
descended  from  a  common  ancestor.'  In  a 
will  the  word  "  issue  "  may  be  held  to  have  a 

y-i  Jarman  Wills,  Perk.  Ed.  589;  i  Rop.  Leg.  253. 
B-2  Frcem.  Ch.  64.  a-is  Ves.  Ch.  319.  b-2  P.  Wms. 
Ch.  30a.  c-Swinburne  Wills,  Pt.  7,  p.  484,?  10.  U-2 
V«rn.  Ch.  90;  1  Hill  Abr.  253;  3  P.  Wms.  Ch.  344;  i 
Atk.  Ch.  404.  e-3  P.  Wms.  Ch.  52 ;  2  Veiur.  Ch  352. 
f-3  Co.  31,  b;  Plowd.  343.  gf-6  Cruise  Dig.  295;  Jar- 
man  Wills,  Index  ;  6  Pet.  68.  I1-3  Ves.  Ch.  105 ;  4  Id. 
<io.  1-3  Ves.  Ch.  257  ;  17  Id  481  ;  19  N.  547  ;  i  Rop. 
Leg-  go.  J-7  Ves.  Ch.  522  ;  19  Id.  73  ;  j  Rop.  Leg.  90. 
S««  Jiacon  Abr.  Curtesy  (P)  Legatee,     k-i  Wms.  Ex. 


more  restricted  meaning  in  order  to  carry  out 

the  testator's  intention.1 

Last  will  is  a  disposition  of  real  estate  to 
take  effect  after  death.  It  is  strictly  distinguish- 
able from  "  testament,"  which  is  applied  to 
personal  estate ;"  but  the  words  are  generally 
used  together,  "  last  will  and  testament,"  in  a 
will,  whether  real  or  personal  estate  is  to  be 
disposed  of. 

Legacies  are  gifts  by  last  will.  The  term  is 
more  commonly  applied  to  money  or  personal 
property,  although  sometimes  used  with  refer- 
ence to  a  charge  upon  real  estate.'  An  abso- 
lute legacy  is  one  without  condition,  to  vest 
immediately."  An  additional  legacy  is  one 
given  to  a  legatee  to  whom  a  legacy  has  al- 
ready been  given;  it  may  be  either  by  an  in- 
crease in  a  codicil  of  a  prior  legacy  given  in 
the  will,  or  to  another  legacy  added  to  that  al- 
ready given  by  the  will."  An  alternative  legacy 
gives  two  or  more  things  without  designating 
which.  A  conditional  legacy  is  a  bequest 
whose  existence  depends  upon  the  happening 
or  not  of  some  uncertain  event,  by  which  it  is 
to  take  place  or  be  defeated."*  A  general  legacy 
is  one  so  given  as  not  to  amount  to  a  bequest 
of  a  particular  thing  or  money  of  the  testator, 
distinguished  from  all  others  of  the  same  kind.' 
An  indefinite  legacy  is  a  bequest  of  things 
w  hich  are  not  enumerated  or  ascertained  as  to 
numbers  or  quantities;  for  instance,  a  bequest 
by  a  testator  of  all  his  goods,  all  his  stocks  in 
the  funds.<>  A  lapsed  legacy  is  one  which,  in 
consequence  of  the  death  of  the  legatee  before 
the  testator,  or  before  the  period  for  vesting, 
has  never  vested ;  one  which,  on  account  of  the 
death  of  the  legatee  before  the  period  arrives 
for  the  payment  of  the  legacy,  lapses  or  devi- 
ates from  the  course  prescribed  by  the  testator 
and  falls  into  residuum.'  A  distinction  exists 
between  a  lapsed  devise  and  a  lapsed  legacy : 
a  legacy  which  lapses  does  not  fall  into  the 
residue  of  the  estate,  unless  so  provided  by  the 
will,  but  descends  to  the  heir-at-law ;  on  the 
contrary  personal  property  passes  by  the  residu. 
ary  clause  where  it  is  not  otherwise  disposed 
of.'  A  legacy  for  life  is  one  in  which  the 
legatee  is  to  enjoy  and  use  the  legacy  during 
life.  A  pecuniary  legacy  is  one  of  money; 
these  are  usually  general  legacies,  but  thert 
may  be  a  specific  pecuniary  legacy,  as,  of  the 
money  in  a  certain  bag.'  A  residuary  legacy 
is  a  bequest  of  all  the  testator's  personal  estate 
not  otherwise  effectually  disposed  of  by  his 
will."  A  specific  legacy  is  a  bequest  of  a  par- 
ticular thing,  or  a  bequest  of  a  specified  part 
of  a  testator's  personal  estate,  distinguished 
from  all  others  of  the  same  kind.»     A  specific 

Am.  Ed.  6,  n.  b.  I-2  Wms.  E».  947;  s  T.  R.  716:  x 
Burr.  768;  7  Ves.  Ch.  391,  522.  in-i  Vern.  Ch.  J'^^•, 
2  Id.  181 ;  5  Ves.  Ch.  461  ;  19  Id,  86;  Com  Dig.  Chan, 
eery  (L  4).  il-6  Mod.  31 ;  2  Ves.  Ch.  449;  3  Mer.  Ch. 
154.  o-i  Roper  Leg.  3d  Ed.  645.  p-Id.  170.  Q. 
Lowndes  Leg.  84  ;  Swinburne  Wills,  48s  ;  Amol.  Cn. 
641  ;  J  P.  Wms.  Ch.  697.  r-i  Wms.  Ex.  1036.  »-» 
Bouv.  Inst.  2154-2156.  t-i  Roper  Leg.  150,  n.  u- 
Lowndes  Leg ;  10  Bac.  Abr.  Legacut  (I).  T-3  B««t. 
Rolls,  349. 


3«6 


CONVEYANCES. 


legacy  may  be  of  animals  or  inanimate  things, 
provided  they  are  specified  and  separated  from 
all  other  things;  a  specific  legacy  may,  there- 
fore, be  of  money  in  a  bag,  or  of  money 
marked  and  so  described,  as,  "  I  give  two 
eagles  to  A.  B.  on  which  are  engraved  the 
initials  of  my  name."  A  specific  legacy  may 
also  be  given  out  of  a  general  fund.*  If  the 
specific  article  given  be  not  found  among  the 
assets  of  the  testator,  the  legatee  loses  his 
legacy;  but,  on  the  other  hand,  if  there  be  a 
deficiency  of  assets,  the  specific  legacy  will  not 
be  liable  to  abate  with  the  general  legacies.'' 

Most  persons  are  cnpible  of  becoming  lega- 
tees, unless  alien  enemies,  or  prohibited  by 
statute.  Legacies  to  subscribing  witnesses  to  a 
will  are  frequently  declared  void  by  statute.' 
Bequests  to  further  or  carry  into  effect  any  ille- 
gal purpose  which  the  law  regards  as  subver- 
sive to  sound  policy  or  good  morals,  would  be 
held  void,  and  the  executor  justified  in  not 
paying  them.*  But  bequests  to  charitable  uses 
are  favored,*  and  decisions  have  been  liberal  in 
upholding  bequests  for  the  most  diverse  objects, 
and  expressed  in  the  most  general  terms.** 

Abatement  is  a  reduction  of  a  legacy,  general 
or  specific,  on  account  of  the  insufficiency  of 
the  estate  of  the  testator  to  pay  his  debts  and 
legacies.  When  the  estate  of  a  testator  is  in- 
sufficient to  pay  both  debts  and  legacies,  it  is 
the  rule  that  the  general  legacies  must  abate 
proportionately  to  an  amount  sufficient  to  pay 
the  debts.  If  the  general  legacies  are  exhausted 
before  the  debts  are  paid,  then  the  specific  leg- 
acies abate,  and  proportionately.' 

Ademption  is  the  extinction  or  withholding 
of  a  legacy  in  consequence  of  some  act  of  the 
testator,  which,  though  not  directly  a  revocation 
of  the  bequest,  is  considered  in  law  as  equiva- 
lent thereto,  or  indicative  of  ai>  'ntention  to  re- 
voke. Republication  of  a  will  may  prevent 
the  effect  of  what  would  otherwise  cause  an 
ademption.* 

The  question  cf  ademption  of  a  specific  leg- 
acy depends  entirely  upon  the  intention  of  the 
testator,  as  inferred  from  his  acts  under  the  rules 
established  in  law.  Where  the  relations  of  the 
parties  are  such  that  the  iefacy  is,  in  law,  con- 
sidered as  a  portion,  an  advancement  during 

M'-Touchst.  433;  Ambl.  310;  5  Ves.  Ch.  565;  3  Ves. 
&  B.  Ch.  Jr.  5  X-i  Vern.  Ch  31  ;  i  P.  Wms.  422 ;  3 
Id.  365  ;  3  Brown  Ch.  160.  J  bee  2  Wms.  Ex.  4  Am. 
Ed.  906,  et  seq.  :  19  Ves.  Ch.  2>  i  ;  10  Sun.  Ch.  487 ;  3 
Russ.  Ch.  437:  I  Sharsw.  Bl.  00mm.  442.  z-2  Beav. 
KolU,  151 :  2  M    &  K.  Ch.  69?  :  1  Myhie  &  C.  Ch.  11  ; 

1  Salk.  162;  2  Vern.  Ch  266  A-The  cases  are  exten- 
sively collated  in  2  Wms.  Ex.  (  51,  n.  i  ;  4  Kent  Comm. 

508  ;  2  How.  U.  S.  127 ;  4  Wb.at.  i  ;  7  Johns.  Ch.  292 ; 
2o  Ohio,  283  ;  10  Penn.  St.  23  ;  iiVt.  296;  sCush.  336; 
12  Conn.  113;  Saxt.  Ch.  577  ;  3  Leigh,  450;  2  Ired.  Eq. 
2io:  5  Humph.  170;  11  Beav.  Rolls,  481  ;  14  Id.  357; 
10  Hare,  446.  b-17  S.  &  K.  88;  aired  Eq.  210:  i 
Gilm.  336,  7  Vt.  241 ;  2  Sandf.  Ch.  46  :  7  B.  Mon.  617, 
618-622;  I  How.  U.  S.  127;  9  Penn.  St.  433;  7  Johns. 
Oh.  292.  r-2  Sharsw.  Bl.  Comm.  513  and  note  :  Bac. 
A)>r.  Leg.  H.  ;    Roper  7..eg.  253,  284  :    2  Brown  Ch.  19  ; 

2  P.  Wms.  Ch.  283  ;  5  Mylne  &  C.  Ch.  29  ;  3  Hare  Ch. 

509  :  10  Ala.  N.  S.  72  ;  12  Leigh,  i.  d-Roper  Leg.  351. 
C»-i  Brown  Ch.  555;  i  Roper  Leg.  375.  f-2  Atk.  Ch. 
493  :  3  M.  &  C.  374.  gr-i  Ves.  Ch.  257.  I1-15  Ves.  Ch. 
$15;  4  Brown  Ch.  494.     1-2  Ves.  Sr.  38 ;  7  Ve».  516.  j- 


the  life  of  the  testator  will  be  presumed  an 
a(lem])tion,  at  least  to  the  extent  of  the  amount 
advanced ;  but  not  where  the  advancement  and 
portion  are  not  of  the  same  kind  ;•  or  where 
the  advancement  is  contingent  and  the  portion 
certain;'  or  where  the  advancement  is  ex- 
pressed to  be  in  lieu  of,  or  compensation  for,  an 
interest ;«  or  where  the  bequest  is  of  uncertain 
amount ;''  or  where  the  legacy  is  absolute,  and 
the  advancement  for  life  merely;'  or  where  the 
devise  is  of  real  estate.^  But  where  the  testator 
was  not  a  parent  of  the  legatee,  nor  standing 
in  loco parentes,  the  legacy  is  not  to  be  held  a 
portion,  and  the  rule  as  to  ademption  does  not 
apply,*  except  where  a  bequest  for  a  particular 
purpose,  and  money  is  advanced  by  the  testator 
lor  the  same  purpose.' 

The  ademption  of  a  specific  legacy  is  effected 
liy  the  extinction  of  the  thing  or  fund  without 
regard  to  the  testator's  intention ;™  but  not 
where  the  extinction  of  the  specific  thing  is  by 
act  of  law,  and  a  new  thing  takes  its  place;' 
or  where  a  breach  of  trust  has  been  com- 
mitted, or  any  trick  or  device  practised  with 
a  view  to  defeat  the  specific  legacy ;»  or  where 
the  fund  remains  the  same  in  substance,  with 
some  unimportant  alterations  ;P  or  where  the 
testator  lends  the  fund  on  condition  of  its  being 
replaced.' 

Construction.  I.  The  technical  import  of 
words  is  not  to  prevail  over  the  obvious  intent 
of  the  testator.''  2.  Where  technical  words  are 
used  by  the  testator,  or  words  of  art,  they  are  to 
have  their  technical  import,  unless  it  is  appa- 
rent that  they  were  not  intended  to  be  used  in 
that  sense.*  3.  The  intent  of  the  testator  is  to 
be  determined  from  the  whole  will.'  4.  Every 
word  shall  have  effect  if  it  can  be  done  with- 
out defeating  the  general  purpose  of  the  will, 
which  is  to  be  carried  into  effect  in  every  rea- 
sonable mode."  5.  Where  a  will  of  personalty 
is  made  abroad,  the  law^of  the  testator's  domi- 
cil  (lex  domicilii^  must  prevail,  unless  it  appear 
that  the  testator  had  a  different  intent." 

Cumulative  or  repeated.  Where  there  is  in- 
ternal evidence  of  the  intention  of  the  testator, 
that  intention  is  to  be  carried  out  ;*  and  evi- 
dence will  be  received  in  support  of  the  appa- 

3  Younge  &  C.  Exch.  397.  It -2  Hare  Ch.  424  :  2  Story 
Eq.  Jur.  ?  1117.  1-2  Brown  Ch.  166  ;  7  Ves.  Ch.  516;  i 
Ball.  &  B'.  Ch.  303.  111-3  Brown  Ch.  432,  2  Cox  Ch. 
182;  3  Watt's  Penn.  338;  1  Rop.  Leg.  329.  »l-Forr. 
Exch.  226  ;  Ambl.  Ch.  59.  0-2  Vern.  Ch.  Rathby  Ed. 
748,  n. ;  8  Sim.  Ch.  171.  |»-i  Cox  Ch.  427  ;  3  Browa 
Ch.  416;  3  Myl.  &  K.  Ch  296.  «|-2  Brown  Ch.  wx. 
r-3T.R.86:  n  East.  246  ;  16  Id.  221  ;  6  Ad.  &  R 
167;  7M.  &  W.  I,  481  ;  iM.  &K.  571;  2ld.  759:» 
Russ.  &  M.  546;  2  Ma.ss.  56;  11  Pick.  257,  375  :  13  Id. 
41,  44:  2  Met.  Mass.  191,  194.  1  Root,  332 ;  1  Nott  & 
M'C.  6g  ;  12  Johns.  389.  »-6  T.  R.  352  ;  3  Brown  Ch. 
68  ;  4  Russ.  Ch.  386,  387  ;  2  Sim.  Ch.  274  ;  i  Younge  & 
J.  512;  4  Ves.  329;  8  Id.  306:  Dougl.  341  ;  5  Mass. 
500:  8  Id.  3:  2  M'Cord;  $  Denio,  646.  t-i  Swanst 
28,  I  Coll.  Ch.  681  ;  8  T.  R.  122  ;  3  Pet.  377:  4  Rand. 
213;  8  Blackf.  387.  n-6  Ves.  102;  2  B.  &  Aid.  448;  3 
Bl.  Comm.  381;  3  Pick.  360:  7  Ired.  Eq.  267;  ip 
Humph.  368;  2Md.  82;  6  Pet.  68;  1  Jarman  Wills, 
404-412.  v-Story  Confl.  L.  §§  479  a.,  479  »«.,  490,  491. 
W-2  Beav.  Rolls,  215:7  Id.  107  ;  3  Hare,  620 ;  2  Dnir 
&  Warr.  Ch.  133  ;  3  Ves  Ch.  462  ;  5  Id.  369  ;  17  H 
462  ;  2  Sim.  &  S.  14s  :  4  Hare  Ch.  319. 


CONVEYANCES. 


367 


rent  intention,  but  not  against  it."  Where 
there  is  no  such  internal  evidence  the  following 
positions  of  law  appear  established  :  i.  If  the 
same  specific  thing  is  bequeathed  twice  to  the 
same  legatee,  in  the  same  will,  or  in  the  will 
and  again  in  the  codicil,  in  that  case  he  can 
claim  the  benefit  of  only  one  legacy .y  2.  Where 
two  legacies  of  a  quantity  of  equal  amount  are 
bequeathed  to  the  same  legatee  in  one  and  the 
same  instrument,  there  also  the  second  bequest 
is  considered  a  mere  repetition,  and  he  shall 
be  entitled  to  one  legacy  only.*  3.  Where  two 
legacies  of  unequal  amount  of  quantity  are 
given  to  the  same  person  in  the  same  instru- 
ment, the  one  is  not  merged  in  the  other,  but 
the  latter  shall  be  regarded  as  cumulative,  and 
the  legatee  entitled  to  both."  4.  Where  two 
legacies  are  given  to  the  same  legatee  by  dif- 
ferent instruments,  in  that  case  the  latter  shall 
be  cumulative,  whether  its  amount  be  equal^  or 
unequal  to  the  former.* 

Debt — Release  of  by  legacy.  If  one  leave  a 
legacy  to  his  debtor,  it  is  not  to  be  regarded  as 
a  release  of  the  debt,  unless  that  appears  to 
have  been  the  intention  of  the  testator."*  Where 
one  appoints  his  debtor  his  executor,  it  is  at  law 
regarded  as  a  release  of  the  debt;*  but  this 
is  in  general  regulated  by  statute.  But  in 
equity  it  is  considered  that  the  executor  is  still 
liable  for  the  amount  of  his  own  debt.'  Where 
one  appoints  his  creditor  executor,  and  he  has 
assets,  it  operates  to  discharge  the  debt,  but 
not  olherwise.8 

Satisfaction  of  by  legacy.     In  equity, 

if  a  legacy  equal  or  exceed  the  debt,  it  is  pre- 
sumed to  have  been  intended  to  go  in  satisfac- 
tion;'' but  if  the  legacy  be  less  than  the  debt,  it 
is  deemed  satisfaction  for  that  amount.'  Courts 
allow  very  slight  circumstances  to  rebut  this 
presumption  of  payment :  as  where  the  debt 
was  not  contracted  until  after  the  making  of 
the  will  ;J  where  the  debt  is  unliquidated  and 
the  amount  due  not  known ;''  where  the  debt 
was  due  upon  a  bill  or  note  negotiai^le  ;'  where 
the  legacy  is  made  payable  after  the  debt  falls 
due;™  where  the  legacy  appears  from  the  will 
to  have  been  given  witli  a  different  intention  ;" 
where  there  is  express  direction  in  the  will  for 
the  ])ayment  of  all  debts  and  legacies,  or  the 
legacy  is  expressed  to  be  for  some  other  reason." 

Legatee.  One  to  whom  a  legacy  is  be- 
queathed. A  residuary  legatee  is  one  to  whom 
the  residum  of  the  estate  is  bequeathed  or  de- 
vised by  will.P 

:r-2  Brown  Ch.  528;  4  Hare  Ch.  216;  i  Drur.  & 
M'arr.  Ch.  94,  113.  y-Taller  Ex.  335  ;  2  Hare  Ch.  432. 
jB-i  Brown  Ch.  30 :  4  Ves.  Ch.  75  ;  3  M  &  K.  Ch.  29  ; 
10  Johns.  156.  a-Finch,267;  2  Brown  Ch.  225  ;  3  Hare 
Ch.  620.  b-i  Cox  Ch.  392;  lyVes.  Ch.  34;  i  Coll. 
Ch.  495;  4  Hare  Ch.  216.  c-i  Chanc.  Cas.  301;  1  P. 
Wms,  Ch.  423 ;  5  Sim.  Ch.  431  ;  7  Id.  29 ;  1  M.  &  K. 
Ch.  589.  «i-4  Brown  Ch.  227;  15  Sim.  Ch.  554.  e-Co. 
Litt.  264 ;  8  Co.  136,  a.  f-i  1  Ves.  Ch.  90,  n.  n  i,  2,  3  ; 
13  Id.  262,  264.  jf-2  Wms.  Ex.  4th  Am.  Ed.  1118- 
1123.  h-Prec.  in  Ch.  240;  3  P.  Wms.  353:  4  Madd. 
325.  i-2  Salk.  508;  I  Ves.  Sr.  Ch.  263;  2  Ho.  Lds. 
Cas.  153.  j-2  P.  Wms.  Ch.  343.  k-i  P.  Wms.  299. 
1-3  Ves.  Ch.  SOI.  in-3  Alk.  Ch.  96.  11-2  Ves.  Sr.  Ch. 
'35-     O-i  P-  Wms.  410.     |»-Roper  Leg.  Index;   Powell 

24 


Children.     The  derxription  of  children 

as  legatees  may  have  reference  to  the  time  of 
testator's  death,  or  that  of  making  the  will ;  the 
former  is  the  presumed  intention,  unless  from 
the  connection  or  circumstances  the  latter  is  the 
apparent  intent,  in  which  case  it  must  prevail. 1 
This  term  will  include  a  child  unborn  ;"■  but  it 
will  sometimes  have  a  more  restricted  applica- 
tion, and  thus  be  confined  to  children  born  be- 
fore the  death  f)f  the  testator;  it  will  make  no 
difference  whether  the  bequest  be  to  children 
begotten  or  to  be  begotten,  or  which  "may  be 
born.""  "  Meirs"  maybe  construed  children.' 
and  "  children,"  when  used  to  designate  one's 
heirs,  may  include  grandchildren;"  but  if  the 
word  "  children  "  is  used,  and  there  are  person- 
to  answer  it,  then  grandchildren  cannot  be  com 
prehended  under  it.''  The  general  rule  is,  thai 
a  devise  to  a  man  and  his  children,  he  having 
children  living  at  the  time  when  the  will  takes 
effect,  creates  a  joint  estate  in  the  father  and 
children ;  but  if  he  has  no  children  he  takes  an 
estate  tail ;"  and  a  similar  legacy  of  personal 
estate  gives  the  father  a  life-estate  if  he  have 
no  children  at  the  time  the  will  takes  effect ;" 
but  if  there  are  children  living  they  take  jointly 
with  the  father.y 

The  term  "  children  "  will  not  include  illegiti- 
mate children,  if  there  are  legitimate  children 
to  answer  the  term  ;'  otherwise  it  may  or  may 
not,  according  to  circumstances.* 

Cousins.     The  term  "  cousins  "  will  be 

restricted  to  its  primary  signification  when  it  is 
before  used  in  the  same  will  in  that  sense. '' 
Upon  a  bequest  "  to  my  cousin  T.  S.,"  if  I  have 
two  cousins  of  that  name,"  evidence  may  be  ad- 
duced to  show  which  of  the  two  was  intended.** 

Heirs.     A  legacy  to  one  and  his  heirs, 

although  generally  conveying  an  absolute  fee  in 
real  estate,  and  the  entire  property  in  personalty, 
may  by  the  manner  of  its  expression  and  con- 
nection be  held  to  be  a  designation  of  such  per- 
sons as  are  the  legal  heirs  of  the  person  named, 
and  thus  they  take  as  purchasers  by  name.* 

Interest  in  property  beqtieathed  or  de- 
vised. Property  given  specifically  to  one  for 
life,  and  remainder  over,  must  be  enjoyed  spe- 
cifically during  the  life  of  the  first  donee,  al- 
though that  may  exhaust  it;'  but  where  the 
iiequest  is  not  specific,  as  where  personal  prop- 
erty is  limited  to  one  for  life,  remainder  over, 
it  is  presumed  that  the  testator  intended  the 
same  properly  to  go  over,  and  if  any  portion 

Mortg.  Index ;  see  Legacy,  above,  q-4  Brown  Ch. 
55;  Ambl.  Ch.  397;  2  Cox  Ch.  191, 192  ;  i  Sim.  Ch.  42  : 

2  Wms.  Ex.  4  Am.  Ed.  934.  r-2  H.  Bl.  399  ;  1  Sim. 
&  S.  Ch.  i8r  ;  2  Cox  Ch.  425  ;  i  Meigs,  149.  s-2  Mylnc 
&  K.  46;   14  Beav.  453;   1  Wms.  Ex.  982,  and  note.     I- 

3  Rich.  Eq.  543;  4  Pick.  198;  2  Hayw.  356.  u-12  1'. 
Men.  115,  121;  5  Barb.  190.  V-5  Ired.  421;  see  4 
Watts,  82  ;  3  Port.  (Ala.)  452  ;  5  Harr.  &  J.  135.  W-i 
Turn.  &  R.  Ch.  310;  12  Clark  &  F.  Ho.  Lds.  Cas.  161 
X-12  Sim.  Ch.  88.  y-5  Sim.  Ch.  458.  T.-\  Vounge  Ch. 
354 ;  2  Russ.  &  M.  Ch.  336;  see  1  Wms.  Ex.  992,  and 
note  (2).  H-See  5  Harr.  &  j.  10;  2  Paige  Ch.  11  ;  11 
Ves.  &  B.  Ch.  422  ;  1  Bail.  Eq.  251 ;  6  Ired.  Eq.  130  ;  i 
Roper  Leg.  80.     b-9  Sim.  Ch.  457.     C-i  W.  Bl.  50.     <l- 

4  Dow.  93.  e-i  Jac.  &  W.  Ch.  388.  f-4  My.  &  Cr. 
299;  2  My.  &  K.  403. 


368 


CONVEYANCES. 


of  it  be  perishable,  as  long  annuities,  it  shall  be 
sold  and  converted  into  personal  property,  for 
the  benefit  of  all  concerned/  In  personal  prop- 
erty there  cannot  be  a  remainder  in  the  strict 
sense  of  the  word,  and  therefore  every  future 
bequest  of  personal  property,  whether  it  be  pre- 
ceded or  not  by  any  particular  bequest,  or  lim- 
ited on  a  certain  or  uncertain  event,  is  an  ex- 
ecutory bequest,  and  falls  under  the  rules  by 
which  that  mode  of  limitation  is  regulated.8  An 
executory  bequest  cannot  be  prevented  or  de- 
stroyed by  any  alteration  whatsoever  in  the  estate 
out  of  which  or  after  which  it  is  limited  :^  and 
this  privilege  of  executory  bequests,  which  ex- 
empts them  from  being  barred  or  destroyed,  is 
.he  foundation  of  an  invariable  rule,  that  the 
event  on  which  an  interest  of  this  sort  is  per- 
mitted to  take  effect  is  such  as  must  happen 
within  a  life  or  lives  in  being,  and  twenty-one 
years  and  a  fraction  of  another  year,  allowing 
the  period  of  gestation  afterwards.'  Legacies 
may  be  made  conditional ;  in  such  case  the  con- 
dition may  be  either  precedent  or  subsequent ; 
in  the  former  case  no  interest  vests  in  the  legatee 
until  the  performance  of  the  condition,  and  in 
the  latter  it  is  liable  to  be  defeated  by  the  fail- 
ure or  non-performance  of  the  condition.! 

No  particular  form  of  words  is  requisite  to 
constitute  one  a  residuary  legatee.  It  must  ap- 
pear to  be  the  intention  of  the  testator  that  he 
shall  take  the  residue  of  the  estate,  after  pay- 
ment of  debts  and  meeting  all  the  appoint- 
ments of  the  will."  The  assent  of  the  executor 
to  a  specific  legacy  is  requisite  to  vest  the  title 
in  this  legatee.'  This  will  often  be  presumed 
where  the  legatee  was  in  possession  of  the  thing 
at  the  decease  of  the  testator  and  the  executor 
acquiesces  in  his  right." 

Names.  Mistakes  in  the  name  or  de- 
scription of  legatees  may  be  corrected  when- 
ever it  can  be  clearly  shown  by  the  will  itself 
what  was  intended."  The  only  instance  in 
which  parol  evidence  is  admissible  to  show  the 
intention  of  the  testator  as  to  a  legatee  imper- 
fectly described  is  that  of  a  strict  equivocation ; 
that  is,  where  it  appears  from  extraneous  evi- 
dence that  two  or  more  persons  answer  the  de- 
scription in  the  will."     See  Cousins,  above. 

Nephews  and  nieces  are  terms  which,  in 

the  description  of  a  legatee,  will  receive  their 
strict  import,  unless  there  is  something  in  the 
will  to  indicate  a  contrary  intention. p 

Wife.     A   bequest   to   "  my   beloved 

wife,"  not  mentioning  her  by  name,  applies  ex- 
clusively to  the  wife  at  the  date  of  the  will,  and 
is  not  to  be  extended  to  an  after-taken  wife.i 

f-2  M.  &  K.  699,  701,  702  ;  7  Ves.  137  ;  4  M.  &  C.  298. 
If -See  Feome  Cont.  Rem.  401,  n.  h-8  Co.  96,  a.;  10 
Id.  476.  i-FeomeCont.  Rem.  431.  J-2  Wi.is.  Ex.  1131 
et  seq.  k-2  Wms.  Ex.  1310  et  seq.  l-i  W.ash.  308  :  i 
Bail.  504;  I  Harr.  &  J.  138;  2  Ired.  Eq.  34  :  12  Ala. 
N.  S.  532  ;  4  Fla.  144  ;  11  Humphr.  559  ;  2  Md.  Ch. 
Dec.  162.  m-See  4  IDev.  267  ;  3  Leigh,  682  ;  6  Pick. 
•26  ;  I  Call,  55.  n-i  Phill.  Ch.  279,  288  :  2  Younge  & 
C.  Ch.  72;  10  Hare.  Ch.  345:  12  Sim.  Ch.  521  :  8  .Md. 
496  ;  9  Eng.  L.  &  Eq.  269  ;  15N.  H.317:  32  Id.  268  ; 
4  Johns.  Ch.  607;  33  Vt.  336;  7  Ired.  Ex.  201.  0-8 
Bingh.  244;  5  M.  &  W.  363;  2  Younge  &  C.  Exch.  72; 
II  Ad.  &  E.  4SI ;  Wig.  WjUs,  2  Ed.  78.    p-i4  Sim.  Ch. 


One  not  lawfully  married  may,  nevertheless, 
take  a  legacy  by  the  name  or  description  of  the 
wife  of  the  one  to  whom  she  is  reputed  to  lie 
married,'  but  not  if  the  reputed  relation  is  the 
motive  for  the  bequest." 

Payment.  A  legacy  given  generally,  if  no 
time  of  payment  be  named,  is  due  at  the  death 
of  the  testator,  although  not  payable  until  the 
executor  has  time  to  settle  the  estate  in  dus 
course  of  law.'  Legacies  are  not  by  common 
law  due  until  one  year  after  the  decease  of  the 
testator,  in  order  to  allow  the  executor  time  to 
dispose  of  the  estate  and  pay  debts ;  and  some- 
times, by  special  order  of  the  probate  court,  this 
is  extended,  from  time  to  time,  according  to 
circumstances."  Where  legatees  are  under  dis- 
abilities, as  infancy  or  coverture,  the  executor 
cannot  discharge  himself  by  payment,  except 
to  some  party  having  a  legal  right  to  receive 
the  same  on  the  part  of  the  legatee,  which  in 
the  case  of  an  infant  is  the  legally  appointed 
guardian,  and  in  the  case  of  a  married  woman 
is  her  husband ;  but  in  the  latter  case  the  ex- 
ecutor may  decline  to  pay  the  legacy  until  the 
husband  make  a  suitable  provision  out  of  it  fof 
his  wife  according  to  the  order  of  the  proper 
court. ^  The  proper  course  in  such  case  is  foi 
the  executor  to  deposit  the  money  on  interestj 
subject  to  the  order  of  the  court.'' 

Translation  is  the  bestowing  of  a  legacy 
which  has  been  given  to  one,  on  another;  this 
is  a  species  of  ademption ;  but  it  differs  from  it 
in  this, that  there  maybe  an  ademption  without 
a  translation,  but  there  can  be  no  translation 
without  an  ademption.* 

Mind  and  Memory.  See  Testator,  below. 

Moiety  is  the  half  of  anything :  as  if  a  testator 
bequeath  one  moiety  of  his  estate  to  A.,  and  the 
other  to  B.,  each  shall  take  an  equal  part.^ 

Movables.  In  a  will  "  movables  "  is  used 
in  its  largest  sense,  but  will  not  pass  a  growing 
crop,  nor  building  materials  on  the  ground.* 

Mystic  testament  is  a  will  under  seal.'  It 
is  a  form  of  making  a  will  which  consists 
principally  in  enclosing  it  in  an  envelope  and 
sealing  in  the  presence  of  witnesses. 

Nuncupative.  See  introduction  to  this 
subject,  above. 

Olograph  is  a  will  that  is  entirely  written, 
dated,  and  signed  by  the  hand  of  the  testator 
himself.'' 

Pencil  is  any  instrument  made  of  black 
lead,  red  chalk,  or  other  suitable  substance,  foi 
writing.  Any  instrument  for  writing  without 
ink.  A  will  written  with  a  pencil  cannot  on 
this  account  be  annulled." 

214 ;  I  Jac.  Ch.  207 ;  4  Mylne  &  C.  Ch.  60 :  8  Beav. 
Rolls.  247;  2  Yeates,  iv6 :  3  Barb.  466:  3  Halst.  462. 
q-i  P.  Wms.  992:  I  Russ.  &  M.  Ch.  629;  8  Hare  Ch. 
131.  r-i  Keen  Ch.  685:  9  Sim.  Ch.  615.  s»-4  Ves. 
Ch.  802  :  4  Brown  Ch.  90;  5  Mylne  &  C.  Ch.  145.  See 
1  Keen  Reg.  Cas.  685.  t-See  Devise,  above.  11-5 
Binn.  475;  5  Paige,  573:  1  Des.  112;  6  Beav.  Rolls, 
298.     v-See  I  P.  Wms.  285;   i  Johns.  Ch.  3;  9  Vi    41; 

1  Drewe,  71.  w-2  Wms.  Ex.  4,  Am.  Ed.  1206-1220  x- 
Bac.  Abr.  Legacies  (C).  y-Litt.  125  ;  3  C.  B.  274,  283. 
z-2  Wms.  Ex.  1014;  3  Ak.  Marih.  123  :   i  Yeates,  loi  ; 

2  Dall.  142.  n-5  Mart.  182;  5  La  396;  10  Id.  328:  15 
Id.  88.   b-Cal.  Code  \  1227.  c-i  Phill.  Eccl.  1 ;  2  Id.  173. 


CONVEYANCES. 


369 


Precatory  Words.    See  Wouds,  below. 

Probate  (or  proof )  of  a  Vi-ill  must  always  be 
made  in  the  probate  court,  or  the  court  having 
exclusive  jurisdiction  in  all  matters  pertaining 
to  the  settlement  of  estates."  The  probate  of 
a  will  has  no  eflfect  out  of  the  jurisdiction  of 
the  court  before  which  probate  is  made,  either 
as  to  persons  or  property  in  a  foreign  juris- 
diction.'* 

Any  person  interested  in  the  will  may  compel 
probate  of  it  by  application  to  the  probate 
ourt,  who  will  summon  the  executor  or  party 
Having  the  custody  of  it.*  The  judge  of  pro- 
liate  may  cite  the  executor  to  prove  the  will  at 
the  instance  of  any  one  claiming  an  interest.' 
The  attesting  witnesses  are  indispensable,  if  the 
contestants  so  insist,  as  proof  of  the  execution 
and  authenticity  of  the  will  and  the  compe 
tency  of  the  testator,  when  they  can  be  had.8 
But  if  all  or  part  of  the  subscribing  witnesses 
are  absent  from  the  State,  deceased,  or  dis- 
qualified, then  their  handwriting  must  be 
proved.''  It  will  be  presumed  that  the  requi- 
site formalities  were  complied  with  when  the 
attestation  is  formal,  unless  the  contrary  ap- 
pear.' 

Wills  over  thirty  years  old,  and  appearing 
regular  and  perfect,  and  coming  from  proper 
custody,  are  said  to  prove  themselves.J  Wills 
lost,  destroyed,  or  mislaid  at  the  time  of  the 
testator's  death  may  be  admitted  to  probate 
U]  on  proper  proof  of  the  loss  and  of  the  exe- 
cution." 

Recommendatory  Words.  See  Words, 
below. 

Republication  is  an  act  by  a  testator  from, 
which  it  can  be  concluded  that  he  intended 
that  an  instrument  which  had  been  revoked  by 
him  should  operate  as  his  will;  or  it  is  the 
re-execution  of  a  will  by  the  testator  with  a 
view  of  giving  it  full  force  and  effect.  The 
republication  is  "  express "  where  there  has 
been  an  actual  re-execution  of  it.'  It  is  "  im- 
plied" when,  for  example,  the  testator,  by  a 
codicil  executed  according  to  the  statute  of 
frauds,  reciting  that  he  had  made  his  will, 
added,  "  I  hereby  ratify  and  confirm  my  said 
will,  excepting  in  the  alterations  after  men- 
tioned;""" the  will  might  be  at  a  distance,  or  not 
in  the  power  of  the  testator,  and  it  may  be  thus 
republished."  The  republication  of  a  will  has 
the  effect :  i.  To  give  it  the  full  force  of  a  will 
made  at  the  time  of  the  republication;  if,  for 
example,  a  testator  by  his  will  devise  "  all  his 
lands  in  A,"  then  revokes  his  will,  and  after- 
wards buys  other  lands  in  A,  the  republication 
made  after  the  purchase  will  pass  all  the  testa- 

C-9  Co.  36,  38,  a;  Forbl.  F.q.  b.  4,  pt.  2,  c.  i,  ?  2;  4 
T.  R.26o:  I  J.Trman  Wills,  2i8:  8N.H.I24:  12  Met. 
(Mass  )42i  ;  8 Ohio,  5  ;  3  Gill.  198;  20 Miss.  134  :  23 Conn. 
1.  «l-8  Ves.  44:  I  Johns.  Ch.  153;  12  Vt.  589:  Story 
Conn.  L.  JJ  512-517.  e-4  Pick.  33  :  3  Bac.  Abr.  34  Ejr. 
f-4  Pick.  33;  I  Wms.  Ex.  201 ;  i  Jarman  Wills,  224.  Jf- 
3  Greenl.  Ev.  %  691,  692:  i  Jarman  Wills,  2i>6,  and 
note.  I1-9  Ves.  381  :  19  Johns.  186;  i  Jarman  Wills, 
226,  and  note:  and  see  g  17  Ga.  364;  9  Pick.  350;  6 
Rand.  33.  i-8  Md.  15  ;  1 1  N.  Y.  220  ;  30  Penn  St.  218 ; 
>  Jarnuui  Wills.  228,  and  notes;  but  see  19  lohns.  386. 


tor's  lands  in  A.*    2.  To  set  up  a  will  which 
has  been  r<;voked.P 

Residuk  is  that  which  remains  of  something 
after  taking  away  a  part  of  it ;  as,  the  residue 
of  an  estate,  a  part  which  has  not  been  par- 
ticularly devised  by  will.  A  will  bequeathing 
the  general  residue  of  personal  property  pa.sses 
to  the  residuary  legatee  everything  not  other- 
wise effectually  disposed  of;  and  it  makes  no 
difference  whether  a  legacy  falls  into  the  estate 
either  by  lapse  or  as  void  at  law,  the  next  of 
kin  is  equally  excluded.'' 

The  residuary  clause  is  that  clause  in  a  will 
by  which  the  part  of  the  property  is  disposed 
of  which  remains  after  satisfying  previous  be- 
quests and  devises. ■■  The  residuary  estate  is 
what  remains  of  the  testator's  estate  after  de- 
ducting the  debts  and  the  bequests  and  devises. 
See  Devisee  and  Legatee,  above. 

Singular  Number.  In  law  the  singular 
number  often  includes  the  plural.  A  bequest 
to  "  my  nearest  relation,"  for  example,  will  be 
considered  as  a  bequest  to  all  the  relations  in 
the  same  degree  who  are  nearest  to  the  testator.' 
A  bequest  made  to  "  my  heir  "  by  a  person  whc! 
had  three  heirs,  will  be  construed  in  the  plural. 

Terror.     See  In  Terrorum,  above. 

Testament.  A  testament  is  a  solemn,  au- 
thentic instrument  of  writing,  by  which  a  per- 
son declares  his  will  as  to  the  disposal  of  his 
estate  and  effects  after  his  death.  A  testament, 
to  be  valid,  must  be  made  when  the  testator  if. 
of  sound  mind;  and  it  must  be  subscribed, 
witnessed,  and  published  in  such  manner  a:? 
the  law  prescribes."  Testaments  are  nuncupa- 
tive or  written.  See  the  beginning  of  this 
article,  and  Last  Will,  above. 

Testate  is  the  having  made  a  valid  will. 
The  condition  of  one  who  leaves  a  valid  will  at 
his  death. 

Testator  is  a  person  who  makes  and  leaves 
a  testament  or  will  at  death.  In  general,  all 
persons  may  be  testators ;  but  to  this  rule  there 
are  various  exceptions :  I.  Persons  who  are  de- 
prived of  understanding  cannot  make  wills; 
idiots,  lunatics,  and  infants  are  among  this 
class.  2.  Persons  who  have  understanding, 
but  being  under  the  power  of  others  cannot 
freely  exercise  their  will ;  and  this  the  law  pre- 
sumes (in  the  absence  of  a  statute  to  the  con- 
trary) to  be  the  case  with  a  married  woman, 
and  therefore  she  cannot  make  a  will  without 
the  express  consent  of  her  husband  to  the  par- 
ticular will.  When  a  woman  makes  a  will 
under  some  general  agreement  on  the  part  of 
her  husband  that  she  shall  make  a  will,  the 
instrument  is  not  properly  a  will,  but  a  writing 

J-i  Greenl.  Ev.  g?  21,  570;  2  Kay  &  J.  Ch.  112;  see 
also  2  Nott.  &  M'C.  400.  fc-i  Phill.  Eccl.  149;  i 
Green.  Ch.  220;  i  Jarman  Wilis,  231,  note.  I-i  Ves. 
Ch.  440:  2  Rand.  192  ;  9  Johns.  ^12.  m-Com.  381  ;  3 
I  rown  Pari.  Cas.  85.  n-i  Ves.  §r.  Ch.  437;  3  Bineh. 
614:  I  Ves.  Ch.  486;  4  Brown  Ch.  2.  O-Cro.  Eliz. 
493  :  see  I  P.  Wms.  2Jr5.  p-2  Bouv.  Inst.  nn.  2162- 
2264.  q-15  Ves.  Ch.  4i#;  2  Mer.  Ch.  392.  r-4  Kent 
Comm.  541 ;  2  Wms.  Ex.  1014,  n.  2.  8-1  Ves.  St.  Ch. 
357:  I  Bro»vn  Ch.  293.  t-i  Russ.  Or.  Cas.  384.  u- 
Domat.  Book  i,  tit.  i,  J  i 


370 


CONVEYANCES. 


in  the  nature  of  a  will  or  testament.  3.  Per- 
sons who  are  deprived  of  their  free  will  cannot 
make  a  testament ;  as,  a  person  in  duress.* 

Agf.  A  testator  must  be  of  full  age.  See 
Dementia  Senile,  and  law  of  various  Stales, 
as  given  below. 

Blindness  is  so  far  an  incapacity  that  it  re- 
quires express  and  satisfactory  proof  that  the 
testator  understood  the  contents  of  the  will,  in 
addition  to  what  is  required  in  other  cases.' 

Deaf  and  dumb  persons  will  labor  under  a 
similar  inconvenience,  and  especially  in  com- 
municating with  the  witnesses,  unless  they 
have  been  educated  so  as  to  be  able  to  write. « 
But  the  witnesses  must  be  present  with  the  tes- 
tatot,  be  within  the  possible  cognizance  of  his 
remainmg  senses.'' 

Delirium  from  disease  or  stimulus,  while  the 
paroxysm  continues  to  such  an  extent  as  to  de- 
prive a  person  of  the  right  exercise  of  reason,  is 
a  sufficient  impediment  to  the  execution  of  a 
will.'  But  there  is  not  the  same  presumption 
of  the  continuance  of  this  species  of  menial 
perversion,  whether  it  proceed  from  the  intoxi- 
cation of  stimulus  or  the  delirium  of  fever,  as 
in  ordinary  insanity .•) 

Dementia  senile.  This  is  a  defect  of  capac- 
ity frequently  in  question  in  courts  of  justice  in 
testing  the  validity  of  wills.  If  the  testator 
has  sufficient  memory  remaining  to  be  able  to 
collect  the  elements  of  the  transaction,  viz. : 
the  amount  and  kinds  of  property  he  had, 
and  the  number  of  his  children,  or  other  per- 
sons entitled  to  his  bounty,  and  to  hold  them 
in  mind  sufficiently  to  form  an  understanding 
judgment  in  regard  to  them,  he  may  execute  a 
valid  will."  Age  itself  is  no  sure  test  of  inca- 
pacity.' But  when  one  becomes  a  child  again, 
he  is  subject  to  the  same  incapacities  as  in  his 
first  childhood." 

Idiots  are  wholly  incapable  of  executing  a 
will,  whether  the  defect  of  understanding  is 
congenital  or  accidental. 

Lunatics  are  incapable  of  executing  a  last 
will  and  testament,  except  during  such  lucid  in- 
terval as  allows  the  exercise  of  memory  and 
judgment.  It  must  be  an  absolute,  but  not 
necessarily  a  perfect,  restoration  of  reason 
and  reflection,  and  not  a  mere  temporary  remis- 
sion." 

Mind  and  memory.  A  testator  must  have  a 
sound  and  disposing  mind  and  memory.  In 
other  words  he  "  ought  to  be  capable  of  mak- 
ing his  will  with  an  understanding  of  the  nature 
/)f  the  business  in  which  he  is  engaged,  a  re- 
collection of  the  properly  he  means  to  dispose 

e-J  Bl.  Comm.  497;  2  Bouv.  Inst.  n.  2102,  ei  seq.  t- 
I  Rob.  EccI  278  ;  3  Strobh.  297  ;  i  Jarman  Wills,  49. 
fp-Wharton  &  btille.  Met.  Jur.  1 13.  h-Richardsoii,  J.  ; 
1  SpeerN,  256,257;  see  i  Wms  Ex.  17,18.  i-Ray 
las.  %  253,  254,  390  ;  Taylor  Med.  Jiir.  626;  Wharton 
&  Still'e,  ?iS  36,  235  ;  Rush.  Mind.  282  ;  18  Ves.  Ch.  12  ; 
73  Eng.  L.  &  Eq.  18 ;  17  lur.  1045 ;  i  Ves.  Sr.  Ch.  19 ; 
iee  also  2  Aik.  167;  1  Bibb.  168,  406;  4  Hen.  &  M.  70. 
J-3  HillfS.  C.)  68;  4  Met.  (Mass  )  545.  k-Ray  Ins.  ? 
243;  Taylor  Med.  Jur  650;  21  Vt.  168.  I-2  Phill.261, 
862.  in-i  Wins.  Ex.  35  ;  3  Madd.  Ch.  191  ;  2  Hagg. 
Ecd.  211  :  6  Ga.  324.  Il-Tayl.  Med  Jur.  642;  3 
Brown  Ch.  441;    Poth.  Ob.  (Evans'   Ed.)  App.   579; 


of,  of  the  persons  who  are  the  object  of  his 
bounty,  and  the  manner  in  which  it  is  to  be 
distributed  between  them."" 

Monomania  or  partial  insanity.  This  is  a 
mental  or  moral  perversion,  or  both,  in  regarrl 
to  a  particular  subject  or  class  of  subjects,  while 
in  regard  to  others  the  person  seems  to  liave  no 
such  morbid  affection. p  It  consists  in  the  be- 
lief of  facts  in  regard  to  the  particular  subjecl 
of  the  affection,  which  no  sane  person  would 
or  could  believe.i  When  it  appears  that  the 
will  is  the  direct  offspring  of  this  morbid  affec- 
tion it  should  be  held  invalid,  notwilhslandiiii; 
the  general  soundness  of  the  testator.'' 

Persuasion.  While  the  person  is  confine'' 
within  those  limits  which  leave  the  mind  frcr. 
persuasion  may  be  used  to  induce  another  in 
make  his  will,  or  even  to  make  it  in  one's  own 
favor.  But  if  such  persuasion  should  so  far 
operate  on  the  mind  of  the  testator  that  he 
would  be  deprived  of  a  perfectly  free  will,  it 
would  vitiate  the  instrument.* 

Threats.     See  In  Terrorum,  above. 

Translation  is  the  bestowing  of  a  legacy 
which  has  been  given  to  one,  on  another;  it  is 
a  species  of  ademption,  but  it  differs  from  it  in 
this,  that  there  may  be  an  ademption  without  a 
translation,  but  there  can  be  no  translation 
without  an  ademption.'  See  Ademption, 
above. 

Uncertainty.  See  Contracts,  Cer 
tainty,  ante. 

Unintelligible.     When  a  contract,  a  law, 
or  a  will  is  unintelligible,  it  has  no  force  or 
effect  whatever.     See  Contracts,  title  CoN- 
,  struction. 

Warning.     See  In  Terrorum,  above. 

"When,"  in  wills,  standing  by  itself,  is  a 
word  of  condition  denoting  the  time  at  which 
the  gift  is  to  commence."  The  context  of  a  will 
may  show  that  the  word  "  when  "  is  to  be  ap- 
plied to  the  possession  only,  not  to  the  vesting 
of  a  legacy ;  but  to  justify  this  construction  there 
must  be  circumstances,  or  other  expressions  in 
the  will  showing  such  to  have  been  the  testa- 
tor's intent.' 

Words.  It  is  a  general  rule  that  contracts 
and  wills  shall  be  construed  as  the  parlies  un- 
derstood them ;  every  person,  however,  is  pre- 
sumed to  understand  the  force  of  the  words  he 
uses,  and  therefore  technical  words  must  be 
taken  according  to  their  legal  import  even  in 
wills,  unless  the  testator  manifests  a  clear  in- 
tention to  the  contrary." 

Precatory  words  are  expressions  in  a  will 
praying   or   requesting   that  a  thing   shall    be 

Wharton  &  Stille  Med.  Jur.  255  ;  Rush  Mind,  162,  163  ; 
Ray  Med.  Jur.  \  279  ;  Combe  Ment  Der.  241  ;  9  Ves. 
Ch.  611;  11  Id.  10;  13  Id.  87.  0-3  Wash.  C.  C.  585, 
586;  4  Id.  262  :  I  Green  Ch.  82,  85  ;  2  Id.  S63,  60-4  ;  26 
Wend.  255,  306,  311,  312  ;  8  Conn.  265  .  9  Id.  105.  Il- 
Tayl.  Med.  Jur.  626.  «|-i  Add.  EccI.  ^79;  3  Id.  79.  r- 
6Ga.  324;  7  Gill.  10;  8  Watts,  70  :  see  also  6  Moore 
Priv.  Conn.  341,  349  ;  12  Jur.  947;  Whart.  &  Stille  Med. 
Jur.  18.  »-3  S.  &  R.  269;  5  Id.  207;  ij  Id.  323.  t- 
Bac.  Abr.  Legacies  (C).  U-6  Ves.  Ch.  243;  2  Merriv. 
Ch.  286.  v-7  Ves.  Ch.  422;  9  Id.  230;  11  Id.  489  ; 
Coop.  145  ;  3  Brown  Ch.  471.  w-i  Brown  Ch.  33-  3 
Id.  234  ;  5  Ves.  Ch.  401  ;  8  Id.  306. 


CONVEYANCES. 


371 


done.  Although  recommendatory  words  used 
by  a  testator,  of  themselves,  seem  to  leave  the 
devisee  to  act  as  he  may  deem  proper,  giving 
him  a  discretion,  as,  when  a  testator  gives  an 
estate  to  a  devisee,  and  adds  that  he  hopes, 
recommends,  has  confidence,  wish,  or  desire 
that  the  devisee  shall  do  certain  things  for  the 
benefit  of  another  person,  yet  courts  have  con- 
strued such  precatory  expressions  as  creating  a 
trust.*  But  this  construction  will  not  prevail 
where  either  the  objects  to  be  benefited  are 
imperfectly  described,  or  the  amount  of  prop- 
erty to  which  the  trust  should  attach  is  not 
sufficiently  defined.' 

ATiABAMA. 

CUmIicUm. 

See  text,  above,  and  Written  Wills,  btc,  below. 
Unwritten  or  Nuncupative  WillM 

May  be  made  during  the  last  illness,  of  personal  property 
not  exceeding  in  value  the  sum  of  five  hundred  dollars. 

Written  HVillH  and  Testaments. 

Every  will  must  be  in  writing,  unless  the  person  mak- 
ing the  same  is  prevented  by  the  extremity  of  his  last 
sickness,  when  personalty  only  can  be  willed. 

Age  and  Mind.  All  persons  of  the  age  of  twenty- 
one  years,  and  of  sound  mind,  may  devise  lands  and 
any  interest  therein,  by  their  last  will. 

AH  persons  of  the  age  of  eighteen  years  may  dispose 
of  all  their  personal  property  by  their  last  will. 

Revocation  and  repeal  may  be  by  burning,  cancel- 
ling, destroying,  or  obliterating  by  the  testator  himself 
with  intention  to  revoke,  or  by  some  one  in  his 
presence,  or  by  his  direction,  or  by  a  new  will  or  codicil, 
or  other  writing,  duly  executed  or  proved. 

Execution.  No  will  (excepting  nuncupative  wills,  of 
not  exceeding  five  hundred  dollars'  worth  of  personal 
property,  is  effectual  unless  the  same  is  in  writing,  signed 
Dy  the  testator,  or  some  person  in  his  presence,  and  by 
his  direction,  and  attested  by  at  least  two  witnesses,  who 
mu'st  subscribe  their  names  thereto,  in  the  presence  of 
the  testator. 

Probate  or  proof.     See  text,  above. 

Repeal.     See  Alteration,  etc.,  above. 

Signature.     See  Execution,  above. 

Witnesses.    See  Execution,  above. 
See  General  Forms,  below. 

ARKANSAS. 

Codicils. 

See  text,  above,  and  Written  Wills,  etc,  below. 
IJnwrittten  or  Nuncupative  Wills. 

Unwritten  or  nuncupative  wills  may  be  made  during 
the  last  illness,  and  may  bequeath  estate  not  exceeding 
in  value  five  hundred  dollars. 

Proof  must  be  by  two  witnesses. 

Written  Wills  and  Testaments. 

Age  and  mind.  All  persons  of  the  age  of  twenty- 
one  years,  and  of  sound  mind,  may  devise  lands  and  any 
interest  therein,  by  their  last  will. 

All  persons  of  the  age  of  eighteen  years  may  dispose 
of  all  their  personal  property  by  their  last  will 

Alteration  and  repeal  may  be  by  burning,  cancel- 
ling, destroying,  or  obliterating  by  the  testator  himself, 
or  oy  some  one  in  his  presence,  or  by  his  express  direc- 
tion, or  by  a  new  will  or  codicil,  or  other  writing,  duly 
executed  or  proved. 

Execution.  Every  will  must  be  in  writing,  etc. 
Ni)  will  (excepting  nuncupative  wills,  of  not  exceeding 
five  hundred  dollars'  worth  of  property)  is  effectual  un- 
less the  same  is  in  writmg,  signed  by  the  testator,  or 
some  person  in  his  presence,  and  by  his  direction,  and 
iittested  by  at  least  two  witnesses,  who  must  subscribe 
their  names  thereto,  in  the  presence  of  the  testator. 

No  informally  signed  and  attested  will  can  be  pleaded 
in  bar  of  one  subscribed  in  due  form. 

Probate  or  proof.     See  text,  above. 

Repeal.     See  Alteration,  etc.,  above. 

Signature.  It  must  be  subscribed  by  the  testator  at 
the  end  of  the  will,  or  by  some  person  for  him  at  his  re- 

T-8  Ves.  Ch.  380:  18  Id.  41 ;  Bac.  Abr.  Legacies  (B). 
y-i  Brown  Ch.  142  ;  i  Sim.  Ch.  54a,  546. 


quest.  Such  subscription  must  be  made  by  the  testator 
in  the  presence  of  each  attesting  witness,  or  acknowl- 
edged by  the  testator  10  each  of  the  attesting;  witnesses 
to  have  been  made  and  subscribed  as  aforesaid.  At  the 
time  of  such  subscription  and  acknowledgment  the  tes- 
tator must  declare  the  instrument  so  subscribed  to  be  his 
last  will  and  testament.     See  Witnesses,  below. 

Witnesses.  There  must  be  at  least  two  attesting 
witnesses,  each  of  whom  must  sign  his  name  as  a  wit- 
ness at  the  end  of  the  will,  at  the  request  of  the  testator. 

Where  the  entire  body  and  signature  of  the  will  is  in 
the  handwriting  of  the  testator,  it  may  be  established  by 
the  unimpeachable  evidence  of  at  least  three  disinter- 
ested witnesses  to  the  handwriting  and  signature  of  tlm 
testator,  without  subscribing  witnesses. 

See  General  I'ohms,  below. 

CALIFORNIA. 

Codicils. 

See  text,  above,  and  Written  Wills,  etc,  below. 
Unwritten  or  Nuncupative  Wills. 

No  nuncupative  will  shall  be  good  where  the  estate 
bequeathed  exceeds  the  value  of  one  thousand  dollars  ; 
nor  unless  the  same  be  proved  by  two  witnesses  who 
were  present  at  the  maKing  thereof,  nor  unless  it  be 
proved  that  the  testator  at  the  time  of  pronouncing  the 
same  did  bid  some  one  present  to  bear  witness  that  such 
was  his  will,  or  to  that  effect;  nor  unless  it  was  made  at 
the  time  when  the  decedent  was  in  actual  military  ser- 
vice in  the  field,  or  doing  duty  on  shipboard  at  sea,  and 
in  either  case  in  actual  contemplation,  fear,  or  peril  of 
death,  or  the  decedent  must  have  been  at  the  time  in 
expectation  of  immediate  death  from  an  injury  received 
the  same  day. 

A  nuncupative  will  must  be  reduced  to  writing  within 
thirty  days,  and  proved  within  six  months  after  the  same 
was  uttered. 

Written  Wills  and  Testaments. 

Age  and  mind.  Every  person  of  sound  mind,  and 
over  eighteen  years  of  age,  may  dispose  of  all  his  or  her 
estate,  real  or  personal. 

Alteration  and  repeal,  as  in  Alabama. 

Execution.  No  will  (except  such  nuncupative  will 
as  IS  above  mentioned)  is  valid,  unless  it  is  in  writing, 
duly  signed  and  attested,  or  proved  Must  be  executed 
at  least  thirty  days  before  the  death  of  the  testator  for 
charitable  purposes.  Charitable  bequests  cannot 
exceed  one-third  of  the  estate  of  one  leaving  legal 
heirs 

Probate  or  proof.    See  text,  above. 

Repeal.    See  Alteration,  etc.,  above. 

Signature  must  be  by  the  testator,  or  some  person  in 
his  presence,  and  by  his  express  direction.  See  Wit- 
nesses, below. 

Witnesses.     It  must  be  attested  by  two  or  more  wit- 
nesses, subscribing  their  names  to  the  will,  in  the  )irei- 
ence  of  the  testator,  and  in  the  presence  of  each  other. 
See  General  Forms,  below. 

CANABA. 

PROVINCE  OF  ONTARIO. 
Coilicils. 

See  text,  above,  and  Written  Wills,  etc.,  below. 

W>itten  Wills  and  Testaments. 

Age  and  mind.  Must  be  of  fuil  age  and  sound 
mind. 

Alteration  and  repeal  may  be  by  burning,  cancel- 
ling, destroying,  or  oljjiterating  by  the  testator  himself, 
or  by  some  one  in  his  presence,  or  by  his  express  direc- 
tion, or  by  a  new  will  or  codicil,  or  other  writing,  duly 
executed  or  proved. 

Execution  must  be  in  writing,  duly  signed  and  at- 
tested. 

Probate  or  proof.     See  text,  above. 

Repeal.     See  text,  above. 

Signature  must  be  by  the  testator,  or  some  other  per- 
son in  his  presence  and  by  his  direction,  in  the  presenc* 
of  two  witnesses,  both  being  present  at  the  same  time. 

Witnesses.    See  Signature,  above. 
See  General  Forms,  below. 
PROVINCE  OF  QUEBEC. 
Codicils. 

See  text,  above,  and  Written  Wills,  etc.,  below. 

Written  Wills  and  Testaments. 

Age  and  mind.     All  persons  twenty-one  years  of 
age,  and  of  sound  intellect,  may  make  a  last  will. 
Alteration  and  repeal  may  be  by  burning,  caiKel- 


372 


CONVEYANCES. 


ling,  destroying,  or  obliterating  by  the  testator  himself, 
or  by  some  one  in  his  presence,  or  by  his  express  direc- 
tion, or  by  a  new  will  or  codicil,  or  other  writing,  duly 
executed  or  proved. 
Execution.     Wills  are  of  three  kinds : 

1.  The  authentic  (or  French)  will,  made  before  two 
notaries,  or  a  notary  and  two  witnesses. 

2.  The  English  will,  made  in  the  presence  of  two  wit- 
nesses. 

3.  The  olographic  will,  which  must  be  entirely  written 
and  signed  by  the  testator,  and  requires  neither  notaries 
aor  witnesses. 

Probate  or  proof.  The  English  and  the  Olographic 
wills  nuist  be  probated. 

Repeal.    See  Alteration,  etc.,  above. 

Signature.  The  English  will  must  be  signed  at  the 
end  thereof,  with  the  signature  or  mark  of  the  testator, 
made  by  himself,  or  by  another  person  for  him,  in  his 
presence,  and  under  his  express  direction.  See  Wit- 
nesses, below. 

Witnesses.  The  signature  must  be  acknowledged 
by  the  testator,  as  having  been  subscribed  by  him  to  Ills 
will  then  produced,  in  llie  presence  of  at  least  two  com- 
petent witnesses  together,  who  must  attest  and  sign  the 
will  immediately,  in  the  presence  of  the  testator,  and  at 
his  request. 

Females  may  attest  as  witnesses  in  the  English  will, 
but  not  in  the  French. 

See  General  Forms,  below. 

COLORADO. 

Codicils. 

See  text,  above,  and  Written  Wills,  etc.,  below. 
ll'riUen  Wills  and  Testaments. 

Age  and  mind.  Males  aged  twenty-one  years,  fe- 
males aged  eighteen  years,  being  of  sound  mind  and 
memory,  may  dispose  of  their  real  and  personal  prop- 
erty by  will,  subject  to  the  payment  of  his  or  her  debts  ; 
except  that  a  married  man  cannot  deprive  his  wife  of 
over  one-half  of  his  property,  and  vice  versa,  without 
/he  consent  of  the  other  in  writing. 

Personal  estate  may  be  disposed  of  by  will  or  testa- 
ment by  any  one  of  sound  mind  and  memory,  at  the  age 
i.'f  seventeen. 

Alteration  and  repeal  may  be  by  burning,  cancelling, 
destroying,  or  obliterating  by  the  testator  himself,  or  by 
s.ome  one  in  his  presence,  or  by  his  express  direction,  or 
by  a  new  will  or  codicil,  or  other  writing,  duly  executed 
or  proved. 

Execution.  All  wills  dcvisinglands,  tenements,  and 
hereditaments,  annuities,  or  rents,  must  be  reduced  to 
ivriting,  and  duly  signed  and  attested. 

Probate  or  proof.    See  text,  above. 

Repeal.     See  Alteration,  etc  ,  above. 

Signature  must  be  by  the  testator  or  testatrix,  or  by 
some  one  in  his  or  her  presence,  and  by  his  or  her  direc- 
tum.    See  Witnesses,  below. 

Witnesses.     Two  or  more  credible  witnesses  to  the 
signature,  etc.,  of  the  wilt,  in  the  presence  of  the  testator 
or  testatrix,  are  necessary  to  the  validity  of  the  will. 
See  General  Forms,  below. 

CONWECTICIIT. 

Codicils. 

See  text,  above, and  Written  Wills,  etc.,  below. 
Written  Wills  and  Testaments. 

Age  and  mind.  All  persons  over  eighteen  years  of 
age,  and  of  sound  mind,  may  dispose  of  all  their  prop- 
erty, real  and  personal,  by  last  will  or  testament. 

Alteration  and  repeal  may  be  by  burning,  cancelling, 
destroying,  or  obliterating  by  the  testator  himself,  or  by 
some  one  in  his  presence,  or  by  his  express  direction,  or 
by  a  new  will  or  codicil,  or  other  writing,  duly  executed 
or  proved. 

Execution.  All  wills  must  be  in  writing,  duly  signed 
and  proved. 

Probate  must  be  effected  within  ten  years  from  the 
testator's  death. 

Repeal.    See  Alteration,  etc.,  above. 

Signature  must  be  by  the  testator.  Sec  Witnesses, 
below. 

Witnesses.     The  attestation  must  be  by  three  wit- 
nesses, all  of  them  subscribing  the  will  in  the  presence 
of  the  testator,  and  in  the  presence  of  each  other. 
See  General  Forms,  below. 
DAKOTA,  BrORTH  ABTD  SOUTH. 
<'odicll8. 

See  text  above,  and  Written  Wills,  etc.,  below. 


Written  Wills  and  Testaments. 

Alteration  and  repeal  may  be  by  burning,  cancel- 
line,  destroying,  or  obliterating  oy  the  testa'.or  himself, 
or  Dy  some  one  in  his  presence,  or  by  hi»  express  direc- 
tion, or  by  a  new  will  or  codicil,  or  other  writing,  duly 
executed  or  proved. 

Execution.  A  will  of  real  or  personal  property,  or 
both,  or  a  revocation  thereof,  by  a  person  not  domiciled 
here,  and  executed  according  to  the  place  of  the  testa- 
tor's domicile  elsewhere,  is  as  valid  as  though  executed 
according  to  the  laws  of  the  territory. 

Probate  or  proof.     Sec  text,  above. 

Repeal.     See  Alteration,  etc.,  above. 

Signature.  It  must  be  subscribed  at  the  end  thereof 
by  the  testator  himself,  or  by  some  person  in  his  pres- 
ence, and  by  his  direction.  The  subscription  must  be 
made  in  the  presence  of  each  of  the  attesting  witnesses, 
or  be  acknowledged  by  the  testator  to  each  of  them  to 
have  been  made  by  him,  or  by  his  express  authority. 
The  testator  must,  at  the  time  of  subscribing  or  acknowl- 
edging the  same,  declare  to  the  attesting  witnesses  that 
the  instrument  is  his  will. 

Witnesses.  There  must  be  two  attesting  witnesses, 
each  of  whom  must  sign  his  name  as  a  witness  at  the 
end  of  the  will,  at  the  testator's  request,  adding  hit 
place  of  residence. 

A  person  who  subscribes  the  testator's  name,  by  his 
direction,  must  write  his  own  name  as  a  witness  to  the 
will. 

See  General  Forms,  below. 

DELAWARE. 

Codicils. 

See  text,  above,  and  Written  Wills,  etc.,  below. 
Written  Wills  and  Testaments. 

Age  and  mind.  Any  person  at  the  age  of  twenty- 
on.,  years  and  upwards,  of  sound  and  disposing  mind, 
may  make  a  will. 

Alteration  and  repeal  may  be  by  burning,  cancel- 
ling, destroying,  or  obliterating  by  the  testator  himself, 
or  by  some  one  in  his  presence,  or  by  his  express  direc- 
tion, or  by  a  new  will  or  codicil,  or  other  writing,  duly 
executed  or  proved. 

Execution  must  be  in  writing,  duly  signed  and  at- 
tested. 

Married  women  cannot  deprive  their  husbands  of 
the  courtesy  of  their  life-interest  in  their  property. 

Probate  or  proof.     See  text,  above. 

Repeal.     See  Alteration,  etc.,  above. 

Signature  must  be  by  the  testator,  or  by  some  per- 
son subscribing  the  testator's  name  in  his  presence,  and 
by  his  express  direction. 

Witnesses.     It  must  be  attested  and  subscribed  ia 
his  presence  by  two  or  more  credible  witnesses. 
See  General  Forms,  below. 

DISTRICT  OF  COIiUMBIA. 

Codicils. 

See  text,  above,  and  Written  Wills,  etc.,  below. 
Written  Wills  and  Testaments.* 

Age  and  mind.  Males  must  be  of  the  full  age  of 
twenty-one  years  and  upwards.  Females  mast  be  of  the 
full  age  of  eighteen  years.  All  persons  must  be  of  sound 
and  disposing  mind,  and  capable  of  executing  a  valid 
contract  or  conveyance. 

Alteration  and  repeal  may  be  by  burning,  cancel- 
ling, destroying,  or  obliterating  by  the  testator  himself, 
or  by  some  one  in  his  presence,  or  by  his  express  direc- 
tion, or  by  a  new  will  or  codicil,  or  other  writing,  duly 
executed  or  proved. 

Execution.  All  devises  and  bequests  of  lands  or 
tenements  devisable  by  law  must  be  in  writing,  duly 
signed  and  attested. 

Probate  or  proof.     See  text,  above. 

Repeal.    See  Alteration,  etc.,  above. 

Signature  must  be  by  the  person  devising  or  making 
the  will,  or  by  some  other  person  in  his  presence,  and 
by  his  express  direction. 

Witnesses.  Such  signature,  etc.,  must  be  attested 
and  subscribed  in  presence  of  the  devisor  by  three  o( 
four  credible  witnesses. 

See  General  Forms,  below. 

FLORIDA. 

Codicils. 

See  text,  above,  and  Written  Wills,  btc.,  betow- 

»-Maryland  Act,  1798,  Ch.  tor,  C.  t< 


CONVEYANCES. 


37: 


TTnwritten  or  Nnncnpative  Wills. 

A.  nuncupative  will  must  be  made  in  the  time  of  the 
Im^l  sickness  of  the  deceased.  It  must  be  proved  by  the 
•Mth  of  three  witnesses  at  least,  that  were  present  at  the 
making  thereof;  and  it  must  be  proved  by  said  wit- 
nesses that  the  testator  or  testatrix,  at  the  time  of  pro- 
nouncing the  same,  did  desire  the  persons  present,  or 
some  of  them,  to  bear  witness  that  such  was  his  or  her 
will,  or  to  that  effect. 

Six  months  after  the  speaking  of  such  words  no  testi- 
mony shall  be  received  to  prove  any  nuncupative  will, 
unless  said  testimony,  or  the  substance  thereof,  was  re- 
duced to  writing  within  six  days  from  the  making  of 
said  will,  and  sworn  to  before  some  judicial  oflicer  of  the 
State  within  six  days. 

Written  Wills  and  Testaments. 

Age  and  mind.  Every  person  of  the  age  of  twenty- 
one  years  and  upwards,  of  sound  and  disposmg  mind, 
may  execute  a  last  will  and  testament. 

Alteration  and  repeal  may  be  by  burning,  cancel- 
ling, destroying,  or  obliterating  by  the  testator  himself, 
or  by  some  one  in  his  presence,  or  by  his  express  di- 
rection, or  by  a  new  will  or  codicil,  or  other  writing 
duly  executed  or  proved. 

Execution  must  be  in  writing,  duly  signed  and  at- 
tested. 

Foreign  wills  must  be  executed  according  to  the 
laws  of  this  State  in  order  to  be  of  effect  therein  and 
operate  as  a  devise  of  lands. 

Probate  or  proof.     See  text,  above. 

Repeal.     See  Alteration,  etc.,  above. 

Signature  must  be  by  the  testator,  or  some  other 
person  in  his  or  her  presence,  and  by  his  or  her  express 
direction. 

Witnesses.  Such  signature  must  be  attested  and 
lubscribed  in  the  presence  of  the  testator  or  testatrix  by 
lhre«  or  more  competent  witnesses. 

See  General  Forms,  above. 

GEOROIA. 

i'odicils. 

See  text,  above,  and  Written  Wills,  etc.,  below. 
Written  Wills  and  Testaments. 

Age  and  mind.  All  persons  must  be  of  lawful  age, 
wid  of  sound  and  disposing  mind. 

Alteration  and  repeal  may  be  by  burning,  cancel- 
line,  destroying,  or  obliterating  by  the  testator  himself, 
or  by  some  one  in  his  presence,  or  by  his  express  direc- 
tion, or  by  a  new  will  or  codicil,  or  other  writing  duly 
•'.xecuted  or  proved. 

Execution.  All  wills  Cexcept  nuncupative)  disposing 
of  real  or  personal  property  must  be  in  writing,  duly 
(iigned  and  attested. 

Probate  or  proof.     See  text,  above. 

Repeal.     See  Alteration,  etc.,  above. 

Signature  must  be  by  the  testator,  or  by  some  per- 
son tor  him,  in  his  presence  and  by  his  express  di- 
rections. 

AVitnesses.  It  must  be  attested  and  .subscribed  in 
the  presence  of  the  testator  by  three  or  more  competent 
witnesses. 

A  witness  may  attest  by  his  mark  provided  he  can 
swear  to  it. 

One  witness  cannot  subscribe  the  name  of  another 
Iven  in  his  presence  and  by  his  direction. 
See  General  Forms,  below. 

ILLINOIS. 

Codicils. 

See  text,  above,  and  Written  Wills,  etc.,  below. 
Written  Wills  and  Te.staments. 

Age  and  inind.  Every  male  person  twenty-one 
>t-ars  of  age,  and  every  female  person  eighteen  years 
of  age,  of  sound  mind,  may  make  a  will. 

Alteration  and  repeal,  same  as  Georgia  above,  to 
which  add,  "  and  by  subsequent  marriage  of  testator." 

Execution  must  be  in  writing,  duly  signed  and  at- 
tested. 

Probate  or  proof.  See  text  above.  Wills  executed 
out  of  this  State  may  be  admitted  to  probate  in  the 
manner  provided  for  the  probate  of  wills  in  this  Stale, 
whether  probated  here  or  elsewhere. 

Repeal.     See  Alteration,  etc.,  above. 

Signature  must  be  by  the  testator  or  by  some  person 
Vk  his  presence,  at  his  direction. 

I^G.  IkH.  Sii.titef.    C-G.  S.  1866,  nop,  ?/ *<fjr. 


Witnesses.  Such  signature,  etc.,  must  be  attested 
in  the  testator's  presence  by  two  or  more  subscribing 
witnesses. 

See  General  Forms,  below 

INOIANA. 

i'odicils. 

See  text,  above,  and  Written  Wills,  etc.,  below 
Written  Wills  and  Testanients.b 

Age  and  mind.  All  persons  of  sound  mind  who  ar« 
twenty-one  years  of  age  may  make  wills  devising  all 
their  estate,  of  every  kind  or  nature,  to  any  person  or 
corporation,  saving  only  the  legal  provision  for  the 
wifiow  and  widower. 

Alteration  and  repeal  may  be  by  burning,  cancel- 
ling, destroying,  or  obliterating  by  the  testator  him.self, 
or  by  some  one  in  his  presence,  by  his  express  direction, 
with  the  intention  to  revoke,  or  by  a  new  will  or  codicil, 
or  other  writing  duly  executed  or  proved. 

Execution  must  be  in  writing  (except  nuncupative, 
bequeathing  not  to  exceed  one  hundred  dollars),  duly 
signed  and  attested. 

Probate  or  proof.  See  text,  above.  Wills  may  be 
probated  by  the  circuit  court  of  any  county  where  the 
testator  resided,  or  in  which  he  shall  die  leaving  assetf., 
on  proof  of  execution  by  one  or  more  subscribing  wit- 
nesses, or  by  proof  of  the  handwriting  of  the  witnesses 
in  case  of  their  incompetency,  death,  or  absence.  Wills 
executed  without  the  State,  and  probated  in  another 
Slate  or  country  according  to  the  laws  there*/",  may  be 
recorded  and  shall  have  the  same  effect  as  if  executed 
in  this  State. 

Repeal.     See  Alteration,  etc.,  above. 

Signature  must  be  by  the  testator,  or  some  person  in 
his  presence  and  by  his  direction. 

Witnesses.  Such  signature  must  be  attested  by 
two  competent  persons  subscribing  as  witnesses  in  his 
presence.        Sfee  General  Forms,  below. 

IOWA. 

Codicils. 

See  text,  ante,  and  Written  Wills,  etc.,  below. 
Unwritten  or  Nnncnpative  Wills. 

Personal  property  to  the  value  of  three  hundred  dol- 
lars may  be  bequeathed  by  a  verbal  will  if  witnessed  by 
two  competent  witnesses. 

A  soldier  in  actual  service,  or  a  mariner  at  sea,  may 
dispose  of  all  his  personal  estate  by  a  nuncupative  will 
so  witnessed. 

Written  Wills  and  Testaments. 

After-acquired  property  may  be  devised  when  the 
intention  is  clear  and  explicit. 

Age  and  mind.  Any  person  of  full  age  and  sound 
mind  may  dispose  of  all  his  property  except  what  is 
sufF.cient  to  pay  his  debts,  or  what  is  allowed  .as  a  home- 
stead or  other  exemption  for  his  wife  and  family. 

Alteration  and  repeal  may  be  by  burning,  cancel- 
liiip;,  destroying,  or  obliterating  by  the  testator  himscir, 
<ir  by  some  one  in  his  presence,  or  by  his  express  direc- 
tion, or  by  a  new  will  or  codicil,  or  other  writing  duly 
executed  or  proved. 

Execution  must  be  in  writing,  duly  signed  and 
attested. 

Probate  or  proof.     See  text,  above. 

Repeal.     See  Alteration,  etc.,  above. 

Signature  must  be  by  the  testator,  or  by  some  per- 
son in  his  presence,  and  by  his  expre.ss  direction. 

Witnesses.  Two  disinterested  and  competent  wit- 
nesses are  necessary.  Unless  there  be  such  witnesses 
no  subscribing  witness  to  a  will  can  derive  any  benetit 
therefrom. 

See  General  Forms,  below. 

KAN»A8. 

Codicils. 

See  text,  above,  and  Written  Wills,  etc..  below 
WrJtten  Wills  and  Testaments." 

Age  and  mind.  Any  person  of  full  age  and  sound 
mind  and  memory  may  give  and  devise  his  property  of 
every  description  by  last  will  and  testament. 

Alteration  and  repeal,  same  as  Iowa  above. 

A  will  enclosed  in  an  endorsed  sealed  wrapper  may  be 
deposited  m  the  office  of  the  judge  of  the  proba:e  court, 
subject  only  to  the  order  of  the  testator  during  his  life, 
and  after  his  death  to  bedeliveied  to  the  person  named  on 
it,  or  in  absence  of  such  name  to  b*.  publicly  opened  in 
the  prolate  court,  within  two  mon^bs  after  notice  of 
dcaih  of  testator. 


3U 


CONVEYANCES. 


Execution  must  be  by  writing,  duly  signed  and  at- 
tested. 

Probate  or  proof.  See  text,  above.  A  will  exe- 
cuted, proved,  and  allowed  in  another  State,  may  be 
admitted  to  record  in  the  probate  court  of  the  county 
where  property  devised,  etc.,  is  situated,  by  producing 
An  authenticated  copy. 

Repeal.     See  Alteration,  etc.,  above. 

Signature  must  be  at  the  end  thereof  by  the  testator 
or  by  some  other  person  in  his  presence,  and  by  his  ex- 
pre.ss  direction. 

Witnesses.  It  must  be  attested  and  subscribed  in 
the  presence  of  the  testator  by  two  or  more  competent 
D'ltnesses  who  saw  the  'testator  subscribe  or  heard  him 
rknowledge  the  same. 

See  General  Forms,  post. 

KEXTrCKY. 

Coflicils. 

See  texts,  ante,  and  Written  Wills,  etc.,  below. 
Written  Wills  and  Testaments. 

Age  and  mind.  All  persons  twenty-one  years  of 
age  and  of  sound  mind  may  bequeath  and  devise  all  his 
property  by  last  will  and  testament. 

Alteration  and  repeal  may  be  by  burning,  cancel- 
ling, destroying,  or  obliterating  by  the  testator  himself, 
or  by  some  one  in  his  presence,  o  by  his  express  direc- 
tion, or  by  a  new  will  or  codicil,  or  other  writing,  duly 
executed  or  proved. 

Execution  must  be  by  writing,  duly  signed  and  at- 
tested. 

Probate  or  proof.  See  text,  above.  Wills  are 
proved  before  and  admitted  to  record  by  the  county 
court  of  the  county  of  testator's  residence,  or  where  the 
land  lies,  or  where  he  is  deceased. 

Repeal.     See  Alteration,  etc.,  above. 

Signature  must  be  by  the  testator  himself,  or  by 
some  other  person  in  his  presence,  and  by  his  direction. 
See  Witnesses,  below. 

Witnesses.  If  the  will  is  not  wholly  written  by  the 
testator  the  subscription  or  signature  must  be  macle,  or 
the  will  acknowledged  by  him  in  the  presence  of  two 
credible  witnesses,  who  shall  subscribe  their  names  to 
the  will  in  the  presence  of  the  testator. 

See  General  Forms,  below. 

i^orifmABTA. 

Mystic,  Nnncnpatlve,  and   Olog^raplilc 
Wills  and  Testaments. 

Execution,  form,  requisites,  etc.  Donations  inier 
vivos  or  mortis  causa,  cannot  exceed  two-thirds  of  the 
property  of  the  disposer,  if  he  leaves  at  his  decease  a 
legitimate  child :  one-half,  if  he  leaves  two  children,  and 
one-third,  if  he  leaves  three  or  a  greater  number.  The 
naxac  children  included  descendants  of  whatever»degree 
they  be,  it  being  understood  that  they  are  only  counted 
for  the  child  they  represent.* 

Donations  inter  vivos  or  tnortis  causa  cannot  ex- 
ceed two-thirds  of  the  disposer's  property,  if  the  dis- 
poser, having  no  children,  leaves  a  father,  mother,  or 
both.* 

Any  disposal  of  property,  whether  rw/^rwVoj  or  mor- 
tis causa,  exceeding  the  gttantum  of  which  a  person 
may  legally  dispose  to  the  prejudice  of  the  forced  heirs, 
is  not  null,  but  only  reducible  to  that  quantutnS 

In  all  dispositions  inter  7)ivos  or  tnortis  causa,  im. 
possible  conditions,  those  which  are  contrary  to  the  laws, 
or  to  morals,  are  considered  not  written.  Substitutions 
3.nA.fidei commissa  are  and  remain  prohibited. 

Every  disposition  by  which  the  donee,  the  heir,  or 
legatee  is  charged  to  preserve  for,  or  to  return  a  thing  to 
a  third  person  is  null,  even  with  regard  to  the  donee, 
the  instituted  heir,  or  the  legatee. 

The  disposition  by  which  a  third  person  is  called  to 
fake  the  gift,  the  inheritance,  or  the  legacy,  in  case  the 
donee,  the  heir,  or  the  legatee  does  not  take  it,  shall  not 
be  considered  a  substitution,  and  shall  be  valid.  The 
same  shall  be  observed  as  to  dispositions  inter  vivos 
and  mortis  causa,  by  which  the  usufruct  is  given  to  one, 
and  the  naked  ownership  to  another.8 

There  are  four  different  forms  of  wills : 

1.  Nuncupative  (or  open)  by  public  act. 

3.  Nuncupative  by  private  act. 

3.  Mystic  (or  sealed). 

4.  Olographic. 

A  nuncupative  testament,  under  private  signa- 
ture, must  DC  written  by  the  tesutor  himself,  or  by  any 

d-Civil  Code,  art.  1493.  e-Id.  art.  1494.  f-Id.  art. 
igm.    j-Id.  aru.  1519-1538.   h-Id.  aru.  1581-1583.   i- 


other  person  from  his  dictation,  or  even  by  one  of  the 
witnesses,  in  presence  of  five  witnesses  residing  in  the 
place  where  the  will  is  received,  or  of  seven  witnesses 
residing  out  of  that  place.  Or  it  will  suffice  if,  in  the 
presence  of  the  same  number  of  witnesses,  the  testator 
presents  the  paper  on  which  he  has  written  his  testa- 
ment, or  caused  it  to  be  written  out  of  their  presence, 
declaring  to  them  that  that  paper  contains  his  last  will. 
In  either  case,  the  testament  must  be  read  by  the  testa- 
tor to  the  witnesses,  or  by  one  of  the  witnesses  to  the 
rest,  in  the  presence  of  the  testator;  it  must  be  signed 
by  the  testator,  if  he  knows  how,  or  is  able  to  sign,  and 
by  the  witnesses,  or  at  least  two  of  them,  in  case  the 
others  know  not  how  to  sign,  and  those  of  the  witnesses 
who  know  not  how  to  sign  must  affix  their  mark. 

In  the  country,  it  suffices  for  the  validity  of  nuncupa- 
tive testaments  under  private  signature,  if  the  testament 
be  passed  in  the  presence  of  three  witnesses  residing  in 
the  place  where  the  testament  is  received,  or  of  fiv« 
witnesses  residing  out  of  that  place,  provided  a  greater 
number  of  witnesses  cannot  be  had.l" 

A  nuncupative  testament  by  public  act  must  be 
received  by  a  notary  public  in  the  presence  of  three 
witnesses,  residing  in  the  place  where  the  will  is  exe- 
cuted, or  of  five  witnesses  not  residing  in  the  place. 

This  testament  must  be  dictated  by  the  testator,  and 
written  by  the  notarj'  as  it  is  dictated. 

It  must  then  be  read  to  the  testator,  in  presence  of 
the  witnesses. 

Express  mention  is  made  of  the  whole,  observing  that 
all  these  formalities  must  be  fulfilled  at  one  time,  with- 
out interruption,  and  without  turning  aside  to  other  acts. 

This  testament  must  be  signed  by  the  testator ;  if  he 
declares  that  he  knows  not  how,  or  is  not  able  to  sign, 
express  mention  of  his  declaration,  as  also  of  the  cau.'ie 
that  hinders  him  from  signing,  must  be  made  in  the  act. 
This  testament  must  be  signed  by  the  witnesses,  or  at 
least  by  one  of  them  for  all,  if  the  others  cannot  write.' 

A  mystic,  or  secret  testament,  is  made  in  the  fol- 
lowing manner  :  the  testator  must  sign  his  dispositions, 
whether  he  has  written  them  himself,  01  has  caused  them 
to  be  written  by  another  person. 

The  paper  containing  these  dispositions,  or  the  paper 
serving  as  their  envelope,  must  be  closed  and  sealed. 

The  testator  shall  present  it  thus  closed  and  sealed  to 
the  notary,  and  to  seven  witnesses,  or  he  shall  cau.se  it 
to  be  closed  and  sealed  in  their  presence.  Then  he  shall 
declare  to  the  notary,  in  the  presence  of  the  witnesses, 
that  that  paper  contains  his  testament  written  by  him- 
self, or  by  another  by  his  direction,  and  signed  by  him, 
the  testator.  The  notary  shall  then  draw  up  the  act  of 
superscription,  which  shall  be  written  on  that  paper,  or 
on  the  sheet  that  serves  as  its  envelope,  and  that  act 
shall  be  signed  by  the  testator,  and  by  the  notary  and 
the  witnesses. 

All  that  is  above  prescribed  shall  be  done  without  in- 
terruption or  turning  aside  to  other  acts ;  and  in  case 
the  testator,  by  reason  of  any  hindrance  that  has  hap- 
pened since  the  signing  of  the  testament,  cannot  sign 
the  act  of  superscription,  mention  shall  be  made  of  the 
declaration  made  by  him  thereof,  without  its  being 
necessary,  in  that  case,  to  increase  the  number  of  wit- 
nesses. 

Those  who  know  not  how  or  are  not  able  to  write, 
and  those  who  know  not  how  or  are  not  able  to  sign 
their  names,  cannot  make  dispositions  in  the  form  of  the 
mystic  will. 

If  any  one  of  the  witnesses  to  the  act  of  superscrip- 
tion know  not  how  to  sign,  express  mention  shall  be 
made  thereof. 

In  all  cases  the  act  must  be  signed  by  at  least  two 
witnessesJ 

An  olographic  testament  is  that  which  is  written 
by  the  testator  himself.  In  order  to  be  valid  it  must  be 
entirely  written,  dated,  and  signed  by  the  hand  of  the 
testator.  It  is  subject  to  no  other  form,  and  may  be 
made  anywhere,  even  out  of  the  S^te. 

It  suffices,  for  the  validity  of  a  testament,  that  it  be 
valid  under  any  one  of  the  forms  prescribed  by  law, 
however  defective  it  may  be  in  the  form  under  which  the 
testator  may  have  intended  to  make  it. 

Testaments  made  in  foreign  countries,  or  the 
other  States  or  Territories  of  the  Union,  shall  take 
effect  in  this  State  if  they  be  clothed  with  all  the  for- 
malities prescribed  for  the  validity  of  wills.  In  the  place 
where  they  have  been  respectively  liiade.k 

arts.   1578-1580.     j-ld.  arts.   1584-1587.     k-Id.  artt 
X588-IS06. 


CONVEYANCES. 


375 


The  form  of  foreign  wills  is  regulated  by  law  of 
domicit. 

Testaments  of  persons  smployed  in  armies  in 
the  field,  or  in  a  military  expedition,  may  be  re- 
ceived by  a  commissioned  officer,  in  presence  of  two 
witnesses.  If  the  testator  is  sicl«  or  wounded  they  may 
be  received  by  the  physician  or  surgeon  attending  liiin, 
assisted  by  two  witnesses.  These  testaments  are  sub- 
ject to  no  other  formalities  than  that  of  being  reduced 
to  writing,  and  being  signed  by  the  testator,  if  he  can 
write,  by  the  person  receiving  them,  and  by  the  wit- 
nesses. The  testament  made  in  this  form  shall  be  null 
in  six  months  after  the  return  of  the  testator  to  a  place 
where  he  has  an  opportunity  to  employ  the  ordinary 
forms. 

Testaments  made  during  a  voyage  at  sea  may 
be  received  by  the  captain  or  master,  in  presence  of 
three  witnesses,  taken  by  preference  from  among  the 
passengers  :  in  default  ol  passengers,  from  among  the 
crew.  The  testament  made  at  sea  can  contain  no  dispo- 
sition in  f.<vor  of  any  person  employed  on  board  the 
vessel,  unless  they  be  relations  of  the  testator.  This 
testament  is  subject  to  the  same  formalities  as  the  pre- 
ceding one,  and  no  others,  and  is  not  valid  unless  the 
testator  dies  at  sea,  or  within  three  months  after  he  has 
landed,  in  a  place  where  he  is  able  to  make  it  in  the 
ordinary  forms.' 

Heirs.  Ascendants  and  descendants  are  called  forced 
heirs,  because  they  cannot  be  deprived  of  a  certain  por- 
tion of  the  estate  of  their  ascendants  or  descendants. 
The  portion  of  which  they  cannot  thus  be  deprived  is 
called  their  legitime,  and  that  portion  of  his  estate  of 
which  the  testator  may  dispose  is  called  the  disposable 
portion. 

Witnesses,  The  following  persons  are  absolutely 
incapable  of  being  witnesses  to  testaments  : 

1.  Women  of  what  age  soever. 

2.  Males  who  have  not  attained  the  age  of  sixteen 
years  complete. 

3.  Persons  insane,  deaf,  dumb,  or  blind. 

4.  Persons  whom  the  criminal  laws  declare  incapable 
of  exercising  civil  functions. 

5.  Persons  who  are  constituted  heirs  or  named  lega- 
tees, under  whatsoever  title  it  may  be.  Mystic  testa- 
ments are  excepted  from  this  provision. 

See  General  Forms,  below. 

MAINE. 

CodicilN. 

See  text,  above,  and  Written  Wills,  etc.,  below. 
I'imritlen  or  Kiinciipative  Willst  Etc. 

Must  be  reduced  to  writing  wiihm  six  days,  or  it  can- 
not be  proved  after  six  nioi.ihs.  and  cannot  dispose  of 
more  than  one  hundred  dollars,  with  but  three  witnesses 
requested  to  be  such. 

Written  Wills  and  Testamentsi. 

Age  and  mind.  All  persons  must  be  of  lawful  age 
and  of  sound  mind  to  execute  a  will. 

Alteration  and  repeal  may  be  by  burning,  cancel- 
ling, destroying,  or  obliterating  by  the  testator  himself, 
or  by  some  one  in  his  presence,  or  by  his  express  direc- 
tion, or  by  a  new  will  or  codicil,  or  other  writing,  duly 
executed  or  proved. 

Execution  must  be  in  writing,  duly  signed  and  at- 
tested. 

Probate  or  proof.     See  text,  above. 

Repeal.     See  Alteration,  etc.,  above. 

Signature  must  be  by  the  testator,  or  by  some  per- 
son in  his  presence,  and  by  his  express  direction. 

Witnesses.    Three  disinterested  witnesses  must  be 
present  at  execution  of  a  will  and  must  all  witness  signa- 
ture of  testator,  and  signatures  of  each  other. 
See  General  Forms,  below, 

MARYE.\ND. 

Codicils. 

\  See  text,  above,  and  Written  Wills,  etc.,  below. 

J        Written  Willis  and  Testaments.™ 

5  Ago  and  mind.  All  persons  must  be,  if  male, 
twenty-one  years  of  age  :  if  female,  eighteen  years  of 
age,  and  of  sound  and  disposing  mind,  and  capable  of 
executing  a  valid  deed  or  contract,  in  order  to  make  a 
valid  will. 

Alteration  and  repeal  may  be  by  burning,  cancel- 
ling, destroying,  or  obliterating  by  the  testator  himself, 
or  by  some  one  in  his  presence,  or  by  his  express  direc- 
tion, or  by  a  new  will  or  codicil,  or  other  writing,  duly 
executed  or  proved. 


Execution  must  be  In  writing  duly  signed  and  at- 
tested. 

Probate  or  proof.    See  text,  above. 

Repeal.     See  Alteration,  etc.,  above. 

Signature  must  be  by  the  testator,  or  by  some  othel 
perMiii  in  his  presence,  and  by  his  express  direction. 

Witnesses.  At  I  ast  two  witnesses  must  attest  and 
sub^cril).;  >uch  will  in  the  presence  of  the  testator. 

Wills  of  personal  properly  are  nut  valid  without 
witnesses. 

See  General  Forms,  below. 

MASSAmrSETTS. 

4'odicils. 

See  text,  above, and  Written  Wills,  etc.,  below. 
Written  Wills  and  Testaments. 

Age  and  mind.  Every  person  of  full  age  and  sound 
mind  may  dispose  of  his  or  her  real  and  personal  estate 
by  last  will. 

Alteration  and  repeal,  same  as  Maryland. 

A  bequest  to  a  subscribing  witness,  or  to  the  hus- 
band or  wife  of  such  witness,  unless  there  are  three 
others,  is  void. 

Execution  must  be  by  writing,  duly  signed  and  at' 
tested. 

Probate  or  proof.  See  text,  above.  A  will  made 
out  of  this  State,  which  might  be  proved  and  allowed 
according  to  the  laws  of  the  State  or  country  in  which 
it  was  made,  may  be  proved,  allowed,  and  recorded  in 
this  State,  and  have  the  same  effect  as  though  execufMl 
herein,  according  to  the  laws  of  this  Commonwealth. 

Repeal.     See  Alteration,  etc.,  above. 

Signature  must  be  by  the  testator  himself,  or  by 
some  person  in  his  presence,  and  by  his  express  direc- 
tion. 

\Vitnesses.  Tt- must  be  attested  and  subscribed  by 
three  or  more  competent  witnesses. 

See  General  Forms,  below. 

]III€HIOA?ir. 

Codicils. 

See  text,  above,  and  Written  Wili.5,  etc.,  below. 
Unwritten  or  Nnncnpative  Wills. 

Nuncupative  wills  are  valid  to  dispose  of  estate  not 
exceeding  three  hundred  dollars,  when  proved  by  two 
competent  witnesses.  Soldiers  in  actual  military  service, 
and  mariners  on  shipboard,  may  dispose  of  their  wages 
and  personal  estate  by  nuncupative  will. 

W^rittcn  W^lIls  and  TestAments. 

Age  and  mind.  F.very  person  of  full  age  and  sound 
mind  may  dispose  of  their  propeijty  by  will. 

Alteration  and  repeal,  same  as  Minnesota. 
A  living  person   may  probate  his  or  her  own  will, 
which  probate  is  secretly  kept  until  after  death. 

Execution.  No  will  (except  it  be  nuncupative)  is 
effectual  to  pass  any  estate,  real  or  personal,  unless  it 
be  in  writing,  duly  signed  and  attested. 

Probate  or  proof.     See  text,  above. 

Repeal.    See  Alteration,  etc.,  above. 

Signature  must  be  by  the  testator,  or  by  some  person 
in  his  presence,  and  by  his  express  direction. 

Witnesses.  It  must  be  attested  and  subscribed  in 
the  pre.sence  of  the  testator,  by  two  or  more  competent 
witnesses. 

Devisees  and  legatees  are  incompetent  subscribing 
witnesses,  unless  there  are  two  other  witnesses  who  ;>re 
competent.     See  General  Forms,  below. 

MINNESOTA. 

Codicils. 

See  text,  above,  and  Written  Wills,  etc.,  below. 
Unwritten  or  Nnncnpatlve  Wills. 

Soldiers  in  actual  military  service  and  mariners  while 
at  sea  may  execute  nuncupative  wills. 

Written  Wills  and  Testaments. 

Age  and  mind.  Every  person  of  full  age  and  sound 
mind  may  devise  real  and  personal  property  by  will. 
No  will  shall  be  effective  to  pass  real  estate  unless 
proved  and  allowed  in  Probate  Court.     Code  1889. 

Alteration  and  repeal  may  be  by  burning,  cancel- 
ling, destroying,  or  obliterating  by  the  testator  himself, 
or  ny  some  one  in  his  presence,  or  by  his  express  direc- 
tion, or  by  a  new  will  or  codicil,  or  other  writing,  duly 
executed  or  proved. 

1-Civil  Code,  Aru.  1 507-1604.     mi-Code,  Art.  91^ 


376 


CONVEYANCES. 


Execution  must  be  in  writing,  duly  signed  and  at- 
tested. 

Probate  or  proof.  See  text,  above.  When  executed 
according  to  the  laws  oftliis  State  ihcy  may,  in  the  first 
instance,  be  probaiecl  here.  It  Is  not  <;etlled  that  wills 
executed  according  to  the  laws  of  anotherState  or  coun- 
try (materially  varying  in  general  requisites)  can  be  law- 
fully proved  and  allowed  here. 

Repeal.    See  Alteration,  etc.,  above. 

Signature  must  be  at  the  end  thereof,  by  the  testator 
him-icif,  or  by  some  person  in  his  presence,  and  by  his 
cJirection. 

Witnesses.     It  must  be  attested  and  subscribed  in 
*lis  presence  by  two  or  more  competent  witnesses. 
Beneficiaries  are  not  competent  witnesses. 

MlSSIiitSIPPI. 

Codicil!!). 

See  text,  above,  and  Wkitten  Wills,  etc.,  below. 

'Written  Wills  and  TcNtamontK. 

Age  and  mind.  Any  person  twenty-one  years  of 
age,  .ind  of  sound  mind,  may  make  a  last  will. 

Alteration  and  repeal  may  be  by  burning,  cancelling, 
destroying,  or  obliterating  by  the  testator  himself,  or  by 
some  one  in  his  presence,  or  by  his  express  direction,  or 
by  a  new  will  or  codicil,  or  other  writing,  duly  executed 
or  proved. 

Execution  must  be  in  writing,  duly  signed  and  at- 
tested (except  for  nuncupative  wills). 

Probate  or  proof.  See  text,  above.  They  must  be 
proven  in  the  chancery  court  of  the  proper  county,  and 
there  recorded 

Repeal.     See  Alteration,  etc  ,  above. 

Signature  must  be  by  the  testator,  or  some  person  in 
'lis  presence,  and  by  his  express  direction. 

Witnesses.  Two  witnesses  are  necessary  when 
lands  are  devised,  and  two  also  are  necessary  when  per- 
ionalty  is  bequeathed. 

If  the  will  be  wholly  written  and  signed  by  the  testator 
lo  witnesses  are  required 

See  General  Forms  below. 

9IISSOIJRI. 

Codicils. 

See  text  above,  and  Written  Wills,  etc  ,  below. 
Written  Wills  and  Testaments. 

Age  and  mind.  All  males  over  twenty-one  years 
lif  age,  and  of  sound  mind,  may  devise  real  property, 
persons  over  the  age  of  eighteen  years  may  bequeath 
lierson.^hy.  anrl  females  may  bequeath  realty  also. 

Alteration  and  repeal  may  be  by  burning,  cancelling, 
destroying,  or  obliterating  by  the  testator  himself,  or  by 
some  one  in  his  presence,  or  by  his  express  direction,  or 
by  a  new  will  or  codicil,  or  other  writing,  duly  executed 
or  proved. 

Curtesy  or  dower  cannot  be  affected  by  will  unless 
accepted  by  non-rejection  of  the  provisions  of  the  will 
in  that  respect,  etc. 

Execution  must  be  by  writing,  duly  signed  and  at- 
teited.  Wills  of  non-residents  must  be  executed  accord- 
ing to  the  laws  of  this  State  to  be  effectual  here. 

Probate  or  proof.     See  text,  above.    ■ 

Repeal.     See  Alteration,  etc.,  above. 

Signature  must  be  by  the  testator. 

Witnesses.  It  must  be  attested  at  the  testator's  re- 
queat  by  two  witnesses. 

See  General  Forms,  below. 

MONTANA. 

Codicils. 

See  text,  above,  and  Written  Wills,  etc.,  below. 

Fiiwritten  or  Nnncnpative  Wills 

May  be  made  by  a  soldier  while  in  actual  service,  or  by 
a  mariner  at  sea. 

Written  Wills  and  Testaments. 

Age  and  mind.  Persons  over  eighteen  and  of  sound 
niind  may  dispone  of  their  property,  real  and  personal, 
by  l.ist  will 

Alteration  and  repeal  may  be  by  burning,  cancel- 
hiig,  destroying,  or  obliterating  by  the  testator  himself, 
or  by  some  one  in  his  presence,  or  by  his  express  direc- 
tion, or  by  a  new  will  or  codicil,  or  other  writing,  duly 
executed  or  proved. 

Execution  must  be  in  writing,  duly  signed  and  at- 
tested, and  witsessed  by  two  witnesses  who  must  sign 
their  names  and  write  their  places  of  residence,  in  the 
presence  of  testator  an^  of  each  other,  and  at  his  request. 

Probate  9*"  prpofi    i'se  text,  above. 


Repeal.     See  Alteration,  etc.,  above. 

Signature  must  be  at  the  end  thereof,  by  the  testator, 
or  by  some  person  in  his  presence,  and  by  his  express 
direction. 

Sec  General  Forms,  below. 

ni:rrvska. 

i'oiiicils. 

See  text,  above,  and  Written  Wills,  etc.,  below. 
I' II written  or  Nuncupative  Wills 

Are  allowed,  but  under  stringent  statutory  regulations. 
Written  Wills  an«l  Testaments.') 

Age  and  mind.  Persons  of  full  age  and  sound  mind 
may  devise  by  last  will. 

Alteration  and  repeal  may  be  by  burning,  cancel- 
ling, destroying,  or  obliterating  by  the  testator  him^el', 
or  by  some  one  in  his  presence,  or  by  his  express  direc- 
tion, or  by  a  new  will  or  codicil,  or  other  writing,  duly 
executed  or  proved. 

Execution  must  be  in  writing,  duly  signed  and  at- 
tested. 

Probate  or  proof.  All  wills,  duly  proved  and  al- 
lowed ill  any  of  the  United  States,  or  any  foreign  coun- 
try, according  to  the  laws  thereof,  may  be  admitted  to 
probate  here. 

Repeal.     See  Alteration,  etc.,  above. 

Signature  must  be  by  the  testator,  or  by  some  one  in 
his  presence,  and  by  his  express  direction. 

Witnesses.  It  must  be  attested  and  subscribed  in 
the  testator's  presence  by  two  or  more  competent  wit- 
nesses. 

See  General  Forms,  below. 

NEVADA. 
Coilicils. 

See  text,  above,  and  Writi  en  Wills,  etc.,  below. 
ITiiwritteii  or  Nnnenpative  Wills. 

No  nuncupative  will  is  valid  where  the  estate  exceeds 
one  thousand  dollars  in  value,  nor  unless  proved  by  tw« 
witnesses  within  three  months  after  the  testamentary 
words  were  spoken. 

Written  Wills  and  Testaments. 

Age  and  mind.  Every  person  over  eighteen  years 
of  age,  and  of  sound  mind,  may  dispose  of  his  or  her 
properly  by  will,  subject  to  the  payment  of  debts. 

Alteration  and  repeal  may  be  by  burning,  cancel- 
ling, destroying,  or  obliterating  by  the  testator  himself, 
or  by  some  one  in  his  presence,  or  by  his  express  direc- 
tion, or  by  a  new  will  or  codicil,  or  other  WTiting,  duly 
executed  or  proved. 

Execution  must  be  in  writing  (except  nuncupative), 
duly  signed  and  attested. 

Married  women  require  the  consent  of  their  hus- 
bands annexed  to  the  will. 

Probate  or  proof.     See  text,  above. 

Repeal.     See  Alteration,  etc.,  above. 

Signature  and  seal  must  be  by  the  testator  or  some 
other  person  in  his  presence,  and  by  his  direction. 

Witnesses.     It  must  be  attested  by  two  competent 
witnesses  in  the  presence  of  the  testator. 
Sec  General  Forms,  below. 

NEW  HAMP.SniRE. 

Codicils. 

See  text,  above, and  Written  Wilis,  etc.,  below. 
Fn written  or  Nnnenpative  Wills.<> 

Nuncupative  wills  of  personal  estate  not  exceeding 
one  hundred  dollars  in  value  are  valid  only  when  de- 
clared in  the  presence  of  three  witnesses  who  were  re- 
quested by  the  testator  to  bear  witness  thereto,  in  his 
List  sickness,  and  at  his  usual  dwelling,  excepting  when 
taken  sick  from  home  and  dies  before  nis  return 

A  memorandum  of  such  will  must  be  reduced  to  writ- 
ing within  six  days,  and  presented  for  probate  within 
six  months. 

Written  Wills  and  Testainents.<> 

Age  and  mind.  Persons  of  the  age  of  twenty-one 
years,  of  sound  mind,  may  execute  a  will. 

Alteration  and  repeal  may  be  by  burning,  cancel- 
ling, destroying,  or  obliterating  by  the  testator  himself, 
or  by  some  one  in  his  presence,  or  by  his  express  direc- 
tion, or  by  a  new  will  or  codicil,  or  other  writing,  duly 
executed  or  proved. 

Execution  must  be  in  writing,  duly  signed  and  at- 
tested. 

Probate  or  proof.     See  text,  above. 

b-Revised  Sututes,  p.  8i,  g  123,  */  tef.  c-G.  S.  35* 
d-G.  S.  357. 


CONVEYANCES, 


377 


Repeal.    See  Ai.teratioi«,  htc.,  above. 

Signature  and  Seal  must  be  by  the  testator,  or  by 
some  person  in  his  presence,  and  by  his  express  direction. 

Witnesses.  It  must  be  attested  and  subscribed  in  the 
testator's  presence  by  three  or  more  credible  witnesses. 

Legatees  or  relatives  ought  not  to  be  witnesses. 
See  General  Forms,  below. 
KEW  JERSEY. 
<'odicil<«. 

See  text  above,  and  Written  Wills,  etc.,  below. 
Vk'ritten  H'illsaii<l  Testaments. 

Age  and  mind.  Any  person  twenty-one  years  of 
age,  not  an  idict,  lunatic,  or  of  non-sane  memory,  may 
make  a  valid  will ;  but  married  women  cannot  affect 
their  husbands'  estates.  A  minor  may  make  a  will  ap- 
pointing guardian  for  infant  child. 

Alteration  and  repeal.  Wills  may  be  altered  or  re- 
pealed by  burning,  cancellation,  destroying  or  obliterat- 
ing by  testator  himself,  or  by  some  one  in  his  presence,  or 
by  his  express  direction,  or  by  s  new  will,  codicil,  or  other 
writing,  duly  executed  and  proved  as  wills  are  proved. 

Execution  must  be  in  writing  duly  signed,  staled  and 
attested.  Foreign  wills  must  be  executed  according  to 
the  laws  of  this  State. 

Probate.  A  written  will  may  be  proved  in  lo  days, 
and  a  verbal  will  in  14  days,  after  death  of  testator. 

Signature  and  Seal  must  be  by  testator's  own  hand 
(by  mark  at  least)  and  acknowledged  by  him.  He  must 
declare  the  will  and  signature  to  be  his  last  will  in  the 
presence  of  two  witnesses  (three  in  verbal  will) ,  present  at 
the  time,  who  must  subscribe  their  names  thereto  as  wit- 
nesses in  the  presence  of  the  testator  and  at  his  request. 

Devisees  or  legatees  acting  as  witnesses  void  their 
devises  and  legacies,  except  as  to  charges  on  the  estate 
•or  payment  of  debts. 

See  General  Forms,  below. 

KEW  lUEXICO. 

rodicilH. 

Sec  text,  above,  and  Written  Wills,  etc.,  below. 
l^iiwritieii  or  Nuncupative  Wills. 

Verbal  wills  must  be  proved  by  five  witnesses,  two  of 
ivhom  must  swear  that  the  testator  was,  at  the  time  of 
inaking  his  will,  in  possession  of  a  sound  mind  and  en- 
tire judgment.  The  witnesses  must  all  be  present,  see, 
and  hear  the  testator  speak,  and  each  and  every  one  of 
them  must  understand  clearly  and  distinctly  every  part 
of  the  will. 

Written  Wills  and  Testaments. 

Age,  mind,  etc.  Persons  of  either  sex  may  make  a 
,*alid  will,  excepting  only  :  i.  Males  under  fourteen  years 
iifage  and  females  under  twelve.  2.  Insane  persons  and 
tiersons  of  unsound  mind,  during  that  condition.  3. 
JVodigals  prohibited  the  administration  of  their  estate 
by  a  court  of  competent  jurisdiction.  4.  Deaf  and  dumb 
by  birth,  unless  they  can  write  such  wills  by  themselves. 

Execution.  Written  wills  are  irrevocable,  except  by 
f  pecially  mentioning  it  in  a  subsequent  will,  and  either 
letting  It  out  in  full  or  by  stating  that  he  would  have 
iitated  It  verbatim  could  he  have  remembered  it,  and  de- 
'  Jaring  that  he  thereby  revokes  the  same. 

Probate  or  proof.  Probate  judges  have  power  to 
qualify  and  approve  wills,  after  hearing  the  evidence  of 
tlie  attesting  witnesses,  etc. 

Signature  must  be  by  the  testator :  or,  if  he  is  unable 
to  write,  he  may  request  some  reliable  person  to  sign  for 
him. 

Witnesses.     Two  or  more  able  and  qualified  wit- 
nesses, competent  in  a  court  of  law,  are  necessary. 
See  General  Forms,  below. 
KEW  YORK. 
Codicils. 

See  text,  above,  and  Written  Wills,  etc.,  below. 
Written  Wills  an<I  Codicils. 

Age  and  mind.  All  persons  of  full  age  and  sound 
fliind  may  execute  a  valid  will.  Males  can  bequeath 
personal  property  at  eigliteen  ;  females  at  sixteen 

Alteration  and  repeal,  same  as  New  Jersey,  above. 

Execution.  In  writing,  duly  signed  and  attested. 
No  bequest  to  a  charitable  or  religious  corporation  by 
one  leaving  a  husband,  wife,  child,  or  parent,  is  valid 
|o  the  extent  of  more  than  one-half  the  clear  estate,  nor 
to  the  extent  of  more  than  one-quarter  the  clear  estate, 
unless  made  at  least  two  months  before  death. 

Probate  or  proof.     See  text,  above 

Signature  and  witnesses  li  must  be  subscribed 
#t  the  end  thereof,  and  must  be  subscribed  by  the  testa 


tor  in  the  presence  of  at  least  two  competent  witnesses ; 
or  it  must  be  acknowledged  to  each  of  such  attesting 
witnesses,  or  to  such  of  them  as  were  not  present  at  the 
in.iking  of  such  subscription,  by  the  testator,  to  have 
been  ao  made. 

The  testator,  at  the  time  of  making  such  subscription, 
or  at  the  time  of  acknowledging  the  same,  or  both,  if 
subscribed  in  the  presence  of  one,  and  acknowledged 
after  .subscription  to  the  other,  must  declare  in  the  pres- 
ence of  each  witness  that  the  instrument  is  his  will. 

Each  of  the  two  attesting  witnesses  must  sign  his 
name  as  a  witness  at  the  end  of  the  will,  at  the  request 
of  the  testator.  (The  residence  of  the  witnesses  should 
be  added.) 

See  General  Forms,  below. 

NORTH  r.4ROI<INA. 

Codicils. 

See  text,  above,  and  Written  Wills,  etc.,  below. 
Unwritten  or  Xnncupative  Wills. 

Nuncupative  wills  may  be  made  during  the  testator's 
last  sickness,  in  his  own  habitation,  or  where  he  hao 
been  previously  resident  for  at  least  ten  days,  unless  he 
died  on  a  journey,  or  from  home.  They  must  be  made 
in  the  presence  of  at  least  two  credible  wilnes.scs,  who 
must  stale  that  they  were  especially  required  to  bear 
witness  thereto.  The  estate  disposed  of  cannot  lawfully 
exceed  two  hundred  dollars  in  value. 

It  cannot  be  proved  after  six  months  from  the  making, 
unless  it  was  put  in  writing  within  ten  days  from  mak- 
ing, nor  until  notice  has  been  given  to  the  widow  and 
next  of  kin  to  contest  it  if  they  think  proper. 

Written  Wills  and  Testainents.o 

Age  and  mind.  All  persons  of  full  age  and  sound 
mind  may  execute  a  valid  will. 

Alteration  and  repeal  may  be  by  burning,  cancel- 
ling, destroying,  or  obliterating  by  the  testator  himself, 
or  by  some  one  in  his  presence,  or  by  his  express  direc- 
tion, or  by  a  new  will  or  codicil,  or  other  writing,  duly 
executed  or  proved. 

Execution  must  be  in  writing,  duly  signed  and  at- 
tested. Wills  made  out  of  this  State,  conveying  real 
property  therein,  must  be  executed  according  to  the  laws 
of  this  State. 

Holograph  wills  may  be  made,  but  must  be  written 
altogether  by  the  testator's  own  hand,  and  signed  by 
him. 

Probate  or  proof.     See  text,  above. 

Repeal.     See  Alteration,  etc.,  above. 

Signature  must  be  by  the  testator. 

Witnesses.  Two  or  more  subscribing  witnesses 
thereto  are  necessary. 

See  General  Forms,  below. 

OHIO. 

Codicils. 

See  text,  above,  and  Written  Wills,  etc.,  below. 
Unwritten  or  Nuncupative  Wills 

May  be  made  in  the  last  sickness,  and  are  valid  as  to 
personal  property  if  reduced  to  writing  and  subscribed 
by  two  competent,  disinterested  witnesses,  within  tea 
days  after  the  speaking  of  the  testamentary  words. 
Written  Wilis  and  Testaments. 

Age  and  mind.  Any  person  of  full  age  and  sound 
mind  and  memory  may  execute  a  valid  will. 

Alteration  and  repeal  may  be  by  burning,  cancel- 
ling, destroying,  or  obliterating  by  the  testator  himself, 
or  by  some  one  in  his  presence,  or  by  his  express  direc- 
tion, or  by  a  new  will  or  codicil,  or  other  writing,  duly 
executed  or  proved. 

Execution  must  be  in  writing,  duly  signed  and 
scaled.  As  against  children  and  their  legal  representa- 
tives all  bequests  to  any  benevolent,  religious,  educa- 
tional, or  charitable  purpose  arc  void,  unless  the  will  be 
executed  one  year  before  the  decease  of  the  testator,' 

Probate  or  proof.  See  text,  above.  If  no  person 
interested  shall,  within  two  years  after  probate,  appear 
and  contest  the  will,  the  probate  is  forever  binding, 
saving  against  the  rights  of  infants,  married  women, 
persons  absent  from  the  State,  etc. 

Repeal.     See  Alteration,  etc.,  above. 

Signature  must  be  at  the  end  thereof  by  the  testator, 
or  by  some  other  person  in  his  presence  and  by  his  ex- 
press direction. 

Witnesses.  It  must  be  attested  and  subscribed  in 
the  presence  of  the  testator  by  two  or  more  competent 

e-Battles  Rev.  Ch.  119.      f-Laws,  1874,  March  30. 


37« 


CXDNVEYANCES. 


witaeues,  who  saw  the  testator  subscribe,  or  heard  him 
adcnowledge  the  same. 

See  Gbnbral  Forms,  below. 

ORKGON. 

CodiclU. 

See  text,  above,  and  Written  Wills,  etc., below. 
Written  Wills  and  Testaments. 

Age  ar>d  mind.  Every  person  twenty-one  years  of 
»ge  and  upwards,  of  sound  mind,  may  execute  a  will 
devising  all  his  estate,  saving  to  the  widow  her  dower. 

Every  person  of  the  age  of  eighteen  years  may  dis- 
pose of  all  his  personal  property  by  will. 

Alteration  and  repeal  may  be  by  burning,  cancel- 
ling, destroying,  or  obliterating  by  the  testator  himself, 
or  by  some  one  in  his  presence,  or  by  his  express  direc- 
tion, or  by  a  new  will  or  codicil,  or  other  writing  duly 
executed  or  proved. 

Execution  must  be  in  writing,  duly  signed  and 
attested. 

Married  women  may  execute  a  valid  will  subject  to 
the  husband's  right  as  a  tenant  by  the  curtesy. 

Probate  or  proof.  See  text,  above.  Copies  of  the 
will,  when  duly  executed,  and  the  probate  thereof,  may 
be  recorded  in  the  same  manner  as  wills  executed  and 
proven  in  this  State,  and  will  be  admitted  in  evidence 
in  the  same  manner  and  with  like  effect. 

Repeal.     See  Alteration,  etc.,  above. 

Signature  must  be  by  the  testator,  or  by  some  other 
person  in  his  presence  and  under  his  express  direction, 
and  such  person  signing  the  testator's  name  must  sub- 
scribe his  own  name  as  a  witness,  and  state  that  he 
subscribed  the  testator's  name  at  his  request.  See  WiT- 
NESSBS,  below. 

Witnesses.  It  must  be  attested  by  two  or  more 
competent  witnesses  subscribing  their  names  to  the  will 
m  the  presence  of  the  testator.  See  Signature,  above. 
See  General  Forms,  below. 

PENNSTI^VAJTIA. 

Codicils. 

See  text,  above,  and  Written  Wills,  etc.,  below. 
Unwritten  or  Nnncnpative  "Wills. 

Unwritten  or  nuncupative  wills,  disposing  of  per- 
sonal property,  may  be  made  by  persons  during  their 
last  sickness,  at  their  own  dwelling,  or  while  travelling 
and  before  reaching  home,  and  by  mariners  at  sea,  and 
soldiers  in  actual  military  service. 

Proof  must  be  by  two  witnesses,  that  the  person  de- 
sired those  present  to  bear  witness  that  such  was  his 
will. 

W^ritten  Wills  and  Testaments. 

Every  will  must  be  in  writing,  unless  the  person 
making  the  same  is  prevented  by  the  extremity  of  his 
last  sickness. 

Age  and  mind.  Must  be  of  sound  mind,  and  over 
twenty-one  years  of  age. 

Alteration  and  repeal  may  be  by  burning,  cancel- 
line,  destroying,  or  obliterating  by  the  testator  himself, 
or  by  some  one  in  his  presence,  or  by  his  express  direc- 
tion, or  by  a  new  will  or  codicil,  or  other  writing  duly 
executed  or  proved. 

Execution  must  be  at  least  one  calendar  month  be- 
fore the  death  of  the  testator,  for  charitable  purposes. 

Heirs,  etc.  The  testator's  whole  estate  in  the  prem- 
ises devised  passes  without  words  of  inheritance,  unless 
■<  appear  from  the  will  that  he  intended  to  pass  a  less 
estate. 

Probate  or  proof.    Sec  text,  above. 

Realty  acquired  after  the  execution  of  the  will  passes 
with  a  gener.-il  devise  unless  a  contrary  intention  appears 
upon  the  face  of  the  will. 

Repeal.     See  Alteration,  etc.,  above. 

Signature  must  be  by  the  testator,  or  by  some  per- 
son in  his  presence,  and  by  his  express  direction,  at  the 
end  thereof.     A  mark  is  a  good  signature. 

Witnesses.     In  all   cases   two  or  more  competent 

witnesses  arc  necessarj',  otherwise  the  will  has  no  effect. 

See  General  Forms,  below. 

RHODE  ISI^ANB. 

Codicils. 

See  text,  above,  and  Written  Wills,  etc.,  below. 
Written  Wills  and  Testaments. 

Age  and  mind.  Every  person  of  twenty-one  years 
of  age,  and  of  sound  mind,  may  dispose  of  all  their 
property  by  will. 

Every  person  eighteen  years  of  age  and  upwards  may 
brqurath  all  their  personal  property  by  will. 


Alteration  and  repeal  may  be  by  burning,  cancel- 
line,  destroying,  or  obliterating  by  the  testator  himseIC 
or  Dy  some  one  in  his  presence,  or  by  his  express  direc- 
tion, or  by  a  new  will  or  codicil,  or  other  writing  duly 
executed  or  proved. 

Execution  must  be  in  writing,  duly  signed  and  at- 
tested. 

Married  woman  cannot  impair  the  rights  of  her 
husband  upon  her  death  as  tenant  by  the  curtesy." 

Probate  or  proof.     See  text,  above. 

Repeal.     See  Alteration,  etc.,  above. 

Signature  must  be  by  the  testator,  or  by  some  person 
in  his  presence  and  by  his  express  direction. 

Witnesses.     It  must  be  attested  and  subscribed  id 
the  presence  of  the  testator  by  two  or  more  witnesses, 
or  it  will  be  utterly  void  and  of  no  effect. 
See  General  Forms,  below. 

SOUTH  CAROI.INA. 

Codicils. 

Sec  text,  above,  and  Written  Wills,  etc.,  below. 
i;«>itten  Wills  and  Testaments. 

Age  and  mind.  All  persons  of  lawful  age  and  of 
sound  mind  may  execute  a  valid  will. 

Alteration  and  repeal  may  be  by  burning,  cancel- 
ling, destroying,  or  obliterating  by  the  testator  himself, 
or  by  some  one  in  his  presence,  or  by  his  express  di- 
rection, or  by  a  new  will  or  codicil,  or  other  writing 
duly  executed  or  proved. 

Execution  must  be  in  writing,  duly  signed  and  at- 
tested. 

Probate  or  proof.     See  text,  above. 

Repeal.     See  Alteration,  etc.,  above. 

Signature  must  be  by  the  testator. 

Witnesses.  It  must  be  attested  and  subscribed  by 
three  or  more  witnesses. 

See  General  Forms,  above. 

TENNESSEE. 

Codicils. 

See  text,  above,  and  Written  Wills,  etc.,  below. 
Unwritten  or  Nnncnpative  Wills. 

Nuncupative  wills,  disposing  of  estate  not  exceeding 
in  value  two  hundred  and  fifty  dollars,  may  be  made 
during  last  sickness,  in  the  testator's  own  habitation,  or 
where  he  has  been  previously  residing  ten  days  at  least, 
except  he  be  surprised  by  sickness  on  a  journey  to  or 
from  home,  and  dies  without  returning. 

Such  will  cannot  be  proved  after  six  months  from  its 

m.-xking  unless  it  were  put  in  writing  within  ten  days 

after  the  testamentary  words  were  uttered,  and  not  until 

the  widow  or  next  of^kin  are  called  to  contest  the  same. 

Written  Wills  and  Testaments.)) 

Age  and  mind.  Every  person  of  full  age  and  of 
sound  mind  may  execute  a  valid  will. 

Alteration  and  repeal  may  be  by  burning,  cancel- 
ling, destroying,  or  obliterating  by  the  testator  himself, 
or  by  some  one  in  his  presence,  or  by  his  express  direc- 
tion, or  by  a  new  will  or  codicil,  or  other  writing  duly 
executed  or  proved. 

Execution  must  be  in  writing,  duly  signed  and  at- 
tcsicd.  It  maybe  entirely  written  and  signed  by  the 
tcvtator,  but  his  handwriting  must  be  proved  by  at  least 
three  credible  witnesses. 

Married  women,  of  age,  may  dispose  of  any  estate 
in  l.iiids  or  person.-ilty,  by  will  in  writing,  subscrilied  by 
liot>clf,  or  by  some  other  person  in  her  presence  and  by 
her  direction,  and  the  subscription  must  be  made,  and 
the  will  acknowledged  by  her,  in  the  presence  of  at 
least  two  witnesses  subscribing  the  will  with  their 
names,  in  the  presence  of  the  testatrix.' 

Proijate  or  proof.  Wills  executed  in  other  States, 
Territories,  or  the  District  of  Columbia,  must  be  proved 
according  to  the  laws  of  this  State. 

Repeal.     See  Alteration,  etc.,  above. 

Signature  must  be  by  the  testator,  or  some  othei 
per<;oii,  in  his  presence  and  by  his  direction. 

Witnesses.  It  must  be  attested  and  subscribed  in 
the  testator's  presence  by  at  least  two  witnesses,  neither 
of  whom  must  be  interested  in  the  devise  of  the  testa- 
tor's lands.     None  necessary  to  wills  of  personalty. 

TEXAS. 

Codicils. 

See  text,  above,  and  Written  Wills,  etc.,  below 

a-G.  S.  Ch.  171.  I»  Code,  ?  2163.*/ j/f.  c-Code  J) 
2168,  2486  a,  2486/';  l-4w»,  1S70,  March  ». 


CONVEYANCES. 


379 


rnwrltt«n  or  Nunon|>»f ivo  t'*'I1«.'' 

Nuncupative  wills  may  be  mailc  iliiriiip  ;•  utirson's 
la«  sickness,  at  one's  own  habitation,  or  \Mi.rc:  ihey 
may  reside  for  ten  days  preceding  death,  or  wlicre  they 
»icl<en  and  die  from  home.  One  witness  must  take 
notice  and  bear  testimony  that  such  was  the  person's 
will  or  words  of  like  import.   Cannot  devise  realty. 

After  six  months  from  the  time  of  speaking  the  testa- 
mentary words  no  testimony  to  prove  such  a  will  can 
be  admitted,  unless  the  same  or  the  substance  thereof 
was  committed  to  writing  within  six  days  after  the  same 
was  spoken  by  the  deceased. 

Written  WIIIm  and  Te«itanicnts. 

Age  and  mind.  All  persons  twenty-one  years  of  age 
And  upwards  and  of  sound  mind  may  dispose  of  all  their 
property,  real  and  petsonal,  by  last  will  and  testament. 

Alteration  and  repeal  may  be  by  burning,  cancel- 
ling, destroying,  or  obliterating  by  the  testator  himself, 
or  by  some  one  in  his  presence,  or  by  his  express  direc- 
tion, or  by  a  new  will  or  codicil,  or  other  writing,  duly 
executed  or  proved. 

Execution  must  be  by  writing,  duly  signed  and  at- 
tested. 

Probate  or  proof  may  be  by  the  testimony  of  one 
of  the  subscribing  witnesses,  or  if  none  be  living,  are  of 
unsound  mind,  or  absent  from  the  State,  then  the  testi- 
mony of  two  witnesses  to  the  handwriting  of  the  sub- 
scribing witnesses,  and  of  the  testator,  or  that  he  was 
unable  to  write.  If  the  will  is  in  the  handwriting  of  the 
testator,  then  the  testimony  of  two  witnesses  is  necessary 
to  it. 

If  the  will  be  of  a  person  not  resident  of  the  State  at 
«he  time  of  his  death,  and  has  been  regularly  probated 
»ccording  to  the  laws  of  any  other  State,  Territory,  or 
country,  then  a  copy  of  such  will  and  probate,  attested 
by  the  clerk  of  the  court  in  which  the  same  was  ad- 
mitted to  probate,  under  the  seal  thereof,  if  there  be  a 
seal,  together  with  that  of  the  judge,  chief  justice,  or 
magistrate  of  the  court  in  which  the  will  was  probated, 
that  such  attestation  is  in  due  form,  it  is  sufficient  here. 

Repeal.     See  Alteration,  etc.,  above. 

Signature  must  be  by  the  testator. 

Witnesses.  Two  or  more  must  attest  and  subscribe 
their  names  thereto. 

See  General  Forms,  below. 

TERMOWT. 

Codicils. 

See  text,  above,  and  Written  Wills,  etc.,  below. 
Written  fTllls  and  Testaments. 

Age  and  mind.  All  persons,  including  married 
women,  of  full  age  and  sound  mind  may  execute  a 
valid  will.     Females  are  of  full  age  at  eighteen  years. 

Alteration  or  repeal.  "  No  will  shall  be  revoked 
except  by  implication  of  law,  otherwise  than  by  some 
will,  codicil,  or  other  writing  executed  as  provided  in 
the  case  of  wills,  or  by  burning,  tearing,  cancelling,  or 
obliterating  the  same  with  the  intention  of  revoking  it, 
by  the  testator  himself,  or  by  some  other  person  in  his 
presence,  or  by  his  express  direction."     R.  L.  §  2047. 

Execution  must  be  in  writing  and  signed  by  the 
testator,  or  by  testator's  name  written  by  some  other 
person  in  his  presence  and  by  his  express  direction, 
and  attested  and  subscribed  by  three  or  more  credible 
witnesses  in  the  presence  of  the  testator  and  of  each 
other.     R.  L.  g  2042. 

Probate  or  proof  must  be  made  in  the  probate 
court.  A  will  made  out  of  the  State  and  proved  or 
allowed  according  to  the  laws  of  the  State  or  country 
where  made,  may  be  proved,  allowed,  and  recorded  in 
this  State,  and  there\ipon  have  the  same  force  and  effect 
as  though  made  here.     See  General  Forms,  below. 

vinoixiA. 

Codicils. 

See  text,  above,  and  Written  Wills,  etc.,  below. 
Written  Wills  and  Testaments. 

Age  and  mind.  Every  person  of  twenty-one  years 
of  age  and  of  sound  mind  may  make  a  valid  will  of 
realty  and  personalty. 

Persons  eighteen  years  of  age  may  make  wills  of  per- 
sonalty. 

Alteration  and  repeal  may  be  by  burning,  cancel- 
ling, destroying,  or  obliterating  by  the  testator  himself, 
or  by  some  one  in  his  presence,  or  by  his  express  direc- 
tion, or  by  a  new  will  or  codicil,  or  other  writing,  duly 
executed  or  proved. 

Execution  must  be  by  writing,  duly  signed  and  at- 
tested. 


Married  ^vomen  may  dispose  of  their  separate 
estate  by  will. 

Probate  or  proof.  When  a  will  affecting  property 
within  this  State  is  proved  without  the  same, an  authen- 
ticated copy  thereof,  and  certificates  of  probate  thereof 
entitles  it  to  probate  here,  in  the  probate  court. 

Repeal.     See  Alteration,  etc.,  above. 

Signature  must  be  by  the  testator,  or  some  other 
person  in  his  presence,  and  by  his  direction.  See  Wit- 
nesses, below. 

Witnesses.     Unless  wholly  written  by  the  testator, 

the  signature  must  be  made  or  the  will  acknowledged  by 

the  testator  in  the  presence  of  at  least  two  competent 

witnesses,  present  at  the  same  time  :  and  such  witnesses 

must  subscribe  the  will  in  the  presence  of  the  testator. 

See  General  Forms,  below. 

WASHINGTON. 

<'odicils. 

See  text,  above,  and  Written  Wilu=.  etc.,  below. 
Written  Wills  and  Testaments. 

Age  and  mind.  Every  male  person  twenty-one 
years  of  age,  and  female  person  tifjhteen  years  of  age, 
of  sound  mind,  m.-^y  execute  a  valid  will,  devising  real 
and  personal  property,  or  either. 

Alteration  and  repeal  may  be  by  burning,  cancel- 
ling, tearing,  or  obliterating  by  the  testator  himself,  or 
by  some  one  in  his  presence,  or  by  his  express  direc- 
tion, or  by  a  subsequent  will  or  codicil,  or  other  writ- 
ing, duly  executed  or  proved. 

Execution  must  be  by  writing,  duly  signed  and  at- 
tested. 

Probate  or  proof.     See  text,  above. 

Repeal.     See  Alteration,  etc.,  above. 

Signature  must  be  by  the  testator,  or  some  person  in 
his  presence,  and  by  his  direction. 

Witnesses.  Two  or  more  must  attest  and  subscribe 
the  same  in  the  presence  of  the  testator. 

See  General  Forms,  below. 

WEST  VIRGINIA. 

Codicils. 

See  text, above, and  Written  Wills,  etc.,  below. 
W^ritten  Wills  and  Testaments. 

Age  and  mind.  Every  person  of  twenty-one  years 
of  age  and  upwards,  being  of  sound  mind,  may  dispose 
of  any  estate,  real  or  personal,  by  last  will. 

Alteration  and  repeal  may  be  by  burning,  cancel- 
ling, destroying,  or  obliterating  by  the  testator  himself, 
or  by  some  one  in  his  presence,  or  by  his  express  direc- 
tion, or  by  a  new  will  or  codicil,  or  other  writing,  duly 
executed  or  proved. 

Execution  must  be  in  writing,  duly  signed  and  at- 
tested. 

Probate  or  proof.     See  text,  above. 

Repeal.     See  Alteration,  etc.,  above. 

Signature  must  be  by  the  testator,  or  some  other 
person  in  his  presence,  and  by  his  direction,  in  such 
manner  as  to  make  it  manifest  that  the  name  is  intended 
as  a  signature.     See  Witnesses,  below. 

Witnesses.  Unless  the  will  is  wholly  written  by  the 
testator  the  signature  must  be  made  or  the  will  acknowl- 
edged by  the  testator  in  the  presence  of  at  least  two 
competent  witne.s.ses,  present  at  the  same  time;  and 
such  witnesses  must  subscribe  their  names  to  the  will  in 
the  presence  of  the  testator. 

See  General  Forms,  below. 

WISCONSIN. 

Codicils. 

See  text,  above,  and  Written  Wills,  etc.,  below. 
Written  Wills  and  Testaments.* 

Age  and  mind.  Every  person  of  full  age  and  sound 
mind  may  execute  a  valid  will. 

Alteration  and  repeal  may  be  by  burning,  cancel- 
ling, destroying,  or  obliterating  by  the  testator  himself, 
or  by  some  one  in  his  presence,  or  by  his  express  direc- 
tion, or  by  a  new  will  or  codicil,  or  other  writing,  duly 
executed  or  proved. 

Execution  must  be  by  writing,  duly  signed  and  at- 
tested. 

Probate  or  proof.  No  will  is  effectual  to  pass  real 
estate  unless  proved  and  allowed  in  the  county  court. 
The  copy  of  a  foreign  will,  duly  executed  and  probate 
thereof  duly  authenticated,  may  be  proved,  allowed,  and 
recorded  by  the  county  court  where  the  estate  affected  ia 
situated. 

d-Paschal  Dig.  Arts.  3868,  5361-5374,5536-5544.  •- 
R.  S.  Ch.  97 ;  Tay.  St.  1207. 


5«o 


CONVEYANCES. 


Repeal.    See  Altrration,  htc,  above. 

Signature  must  be  by  ilie  testator,  or  some  ether 
person  in  h's  presence,  and  by  b'S  express  direction. 

Witnesses.  It  must  be  attested  and  subscribed  in 
the  presence  of  the  testator  by  two  or  more  competent 
witnesses. 

See  General  Forms,  below. 

WRITTESr  WII.I.  FOR>IS-TARIOU» 
1>KTAIL.S. 

IntrodnclionM  in  Written  Wills  and 
TestanioiilM. 

The  will  of  A.  B. ,  of ,  merchant : 


I,  A.  B.,  of ,  farmer,  make  this,  my  last  will : 

The  last  will  and  testament  of  me,  A   B.,  of 
— ,  made  this day  of : 


1,  A.  B. ,  of ,  merchant,  declare  this  (cr  the 

following;  to  be  my  last  will  and  testament: 

I,  A.  B.,  of  the  town  of ,  in county,  and 

State  of ,  merchant,  declare  this  to  be  my  last 

will  and  testament : 


In  the  name  of  God.     Amen. 

I,  A.  B.,  of ,  mariner,  being  forthwith  to  de- 

Jiart  on  a  voyage,  do  make  this,  my  last  will,  as 
oUows :  

I,  A.  B.,  of  the of ,  grocer,  do  make  and 

publish  this,  my  last  will  and  testament,  hereby 
revoking  and  making  void  all  former  wills  by  me 
at  any  time  heretofore  made  : 

1,  A.  B.,  of  the  township  of ,  in  the  county 

of ,  and  State  of ,  do  make  and  publish 

this,  my  (first  as  we'.l  as)  last  will  and  testament, 
in  the  manner  following,  to  wit : 


I,  A.  B.,  of ,  in  the  county  of ,  and  State 

of ,  farmer,  being  of  sound  mind,  memory, 

and  understanding,  do  make  and  publish  this, 
my  last  will  and  testament  (hereby  revoking  and 
making  void  all  former  wills  by  me  at  any  time  hereto- 
fore made) :  

In  the  name  of  God.    Amen. 

1,  A.  B.,  of  the  county  of ,  in  the  State  {or 

Commonwealth)  of ,  farmer,  being  weak  in  body 

[or  in  perfect  health  ofbjdy),  and  of  sound  mind, 
memory,  and  understanding,  but  considering  the 
uncertainty  of  this  transitory  life,  do  make  and 
publish  this,  my  last  will  and  testament,  in  the 
manner  and  form  following,  to  wit: 

Know  all  men  by  these  presents: 

That  I ,  A.  B. ,  of ,  in  the  county  of ,  and 

State  {or  Commonwealth)  of ,  counsellor  at  law, 

being  in  good  health  (or  being  in  ill  health),  and  of 
sound  and  disposing  mind  and  memory,  do  make 
and  publish  this,  my  last  v^ill  and  testament, 
hereby  revoking  all  former  wills  by  me  at  any 
time  heretofore  made : 

In  the  name  of  God.     Amen. 

1,  A.  B.,  of ,  in  the  county  of ,  and  State 

{or  Commonwealth)  of ,  being  sick  and  weak  in 

body,  but  of  sound  mind,  memory,  and  under- 
standing, and  considering  the  certainty  of  death, 
and  the  uncertainty  of  the  time  thereof,  and  to 
the  end  that  1  may  be  better  prepared  to  leave 
this  world  whenever  it  shall  please  God  to  call 
me  hence,  do  therefore  make  and  declare  this, 
my  last  will  and  testament,  in  the  manner  fol- 
lowing, that  is  to  say  : 


In  the  name  of  God.    Amen. 

1,  A.  B.,  of ,  being  in  good  health  of  body, 

and  of  sound  and  disposing  mind  and  memory, 
and  bsing  desirous  to  settle  my  worldly  affairs 
while  I  have  strength  and  capacity,  do  make  and 
publish  this,  my  last  will  and  testament  (hereby 
revoking  and  making  void  all  former  wilU  by  me  at  any 
time  heretofore  made). 

And  first  and  principally  I  commit  my  soul  into 
the  hands  of  my  Creator  who  gave  it ;  and  my 


body  to  the  earth,  to  be  interred  at ,  In  — , 

at  the  direction   of    my  executors,  hereinafter 
named.    And  as  to  such  worldly  estate  where- 
with it  has  pleased  God  to  intrust  me,  I  dispose 
of  the  same  as  follows  : 
I,  etc.  

I,  W.  B.,  wife  of  A.  B.,  of ,  esq.,  do,  by  this, 

my  writing,  purporting  to  be  my  last  will  and 
testament,  dispose  of  my  estate,  pursuant  and 
according  to  the  authority  to  me  given  and  re- 
served in  and  by  a  deed  of  settlement,  made  on 
my  marriage  with  the  said  A.  B.,  bearing  date, 
etc.  (here  set  /orth  the  date  ami  parties  to  the  settle- 
went),  and  by  virtue  of  the  said  deed,  and  of  all 
other  powers  and  authorities  whatsoever  to  me 
given  or  reserved,  in  manner  as  follows,  viz. : 

TarioHN  Clanson.  rontiitions,  T>erlara- 
tioiiw.  1>i  reel  ions.  Powers,  Provision**, 
£ie..  Etc. 

Advancements  to  be  Deducted. 

I  declare  that  all  such  moneys  as  I  have  or  shall 
have  advanced  to  any  of  my  said  children,  or  as 
shall  be  owing  to  me  from  any  of  them  at  my  de- 
cease, shall  be  considered  as  part  of  my  residuary 
estate,  and  shall  be  deducted  from  his,  her,  or 
their  respective  shares. 

Advancements  Not  to  be  a  Satisfaction  of 
Debts. 

I  direct  that  no  legacy  or  gift  contained  in  my 
will  shall  (except  wliere  a  contrary  intention  is  ex- 
pressed) be  taken  to  be  in  satisfaction  of  any  debt 
owing  by  me 

Advancements  Not  to  bb  a  Satisfaction  of 
PoinioNS. 

I  declare  that  such  advancements  as  I  may  have 
made,  or  may  hereafter  make,  to  any  of  my  chil- 
dren (or  nephews  and  nieces,  etc.),  shall  be  in  addi- 
tion to,  and  not  in  satisfaction  of,  any  legacies, 
portions,  or  other  benefit  given  them  by  my  will. 
Annuity — Powek  to  Gkant  in  the  Nature  op  a 
joiniuke. 

Provided  also,  and  my  will  nevertheless  further 
is,  that  my  said  grandson,  G.  N.,  the  younger,  by 
any  deed  or  deeds  in  writing,  to  be  sealed  and 
delivered  by  him,  my  said  grandson,  in  presence 
of,  and  attested  by,  two  or  more  credible  wit- 
nesses, to  grant,  limit,  or  appoint  any  rent  or  an- 
nual sum  to  be  issuing  and  payable  out  of  all  or 
any  of  the  said  premises,  etc.,  which  are  herein- 
before given  or  limited  to  him  for  his  life,  re- 
mainder  as  aforesaid,  unto  and  to  the  use  of  any 
woman  or  women  he  shall  marry,  for  and  during 
the  life  or  lives  of  such  woman  or  women  re- 
spectively, for  or  in  nature  of  her  or  their  jointure 
or  jointures,  and  in  bar  of  dower,  such  rent  or 
annual  sum  to  take  effect  from  the  death  of  the 
survivor  of  my  said  daughter  and  grandson  G. 
N.,the  younger,  and  be  payable  half  yearly  or 
quarterly,  on  or  at  such  days  or  times  as  he  shall 
think  fit,  but  so  as  such  rent  or  annual  sum  do 
not  exceed per  annum  tax  free,  for  or  in  re- 
spect of  every ,  or  the  value  thereof  in  free- 
hold or  leasehold  estates,  which  my  grandson,  G. 
N.,  the  younger,  shall  actually  have  and  receive, 
or  become  and  be  entitled  to,  as  and  for  the  por- 
tion or  fortune  of  each  such  woman  respectively, 
and  so  in  proportion  for  any  greater  or  lesser  sum 
than  ,  which  he  shall  actually  have  and  re- 
ceive, or  become  or  be  entitled  to  as  aforesaid, 
and  by  the  same  deed  or  deeds,  to  give  and  grant 
to  such  woman  or  v/omen  respectively,  and  her 
or  their  assigns,  such  power  and  remedies,  by 
entry  and  receipts  of  the  rents  and  profits  of  the 
premises,  for  recovering  such  rent  or  annual  sum, 
when  in  arrear,  and  to  grant,  limit,  and  appoint 
the  hereditaments  and  premises  chargeable  there- 
Vkfith,  to  any  trustee  or  trustees,  for  any  term  or 
number  of  years,  as  to  my  said  grandson,  G.  N., 
the  younger,  shall  seem  meet,  to  commence  from 
the  death  of  the  survivor  of  my  said  grandson 
and  daughter,  for  the  better  securing  the  payment 
of  such  rent  or  annual  sum,  so  as  such  term  of 
years  be  made  determinable  or-defeasible  upon 
the  payment  of  the  said  rent  or  annual  sum  of 

dollars,    thereby   secured,    and    all    arrenr* 

thereof,  together  with  all  costs  and  charges  (u 


Conveyances. 


?8i 


My)  incident  thereto,  and  such  grants,  limitations, 
or  appointments  as  aforesaid  to  be  made  either 
before  or  after  such  marriage,  etc. 
Annuity — Preventing  Annijitant  from  Parting 

WITH    I  1. 

I  do  hereby  expressly  declare  and  direct,  that 
in  case  my  said  nephew  N.  W.  shall  alien,  sell, 
assign,  incumber,  or  transfer,  or  in  any  manner 
dispose  of  or  anticipate  the  said  annuity  or  yearly 

sum  of dollars,  or  any  part  thereof,  then  and 

in  such  case,  and  from  and  immediately  after 
such  alienation,  sale,  assignment,  or  transfer,  the 
said  bequest  so  made  thereof  as  aforesaid,  and 
Ihe  use  and  estate  so  given  to  him  therein,  shall 
fcease  and  be  void  to  all  intents  and  purposes  as 
,if  the  same  had  not  been  mentioned  in  this  my 
will,  or  as  if  the  said  N.  W.  were  naturally  dead. 
AnroiNTMENT — Guardian,  and  Substitutes,  etc. 

That  I  have  committed  and  disposed,  and  by 
these  presents  do  commit  and  dispose,  unto  Q. 
N..  of  the  said  borough,  the  custody,  tuition  and 
education  of  my  son,  S.  B.,  from  and  immediately 
after  my  decease,  until  my  said  son  shall  attain  the 
age  of  twenty-one  years.  And  if  it  shall  happen 
that  the  said  G.  N.  dies  before  me,  or  before  my 
said  son  attains  the  age  of  twenty-one  years, 
then  and  in  such  case,  I  do  commit  and  dispose 
unto  E.  F.,  of  the  borough  and  State  aforesaid, 
Bucli  custody,  tuition  and  education,  after  my  de- 
cease and  the  decease  of  the  said  G.  N.,  until  my 
said  son  shall  have  attained  the  age  of  twenty-one 
years,  and  desire  the  said  E.  F.  to  take  upon  him 
the  charge,  for  the  good  of  my  said  son. 
Another. 

In  case  I  shall  leave  any  child  or  children  living 
at  the  time  of  my  decease,  my  will  is,  and  I  do 
appoint,  that  my  said  beloved  wife  shall  have  the 
guardianship  and  tuition  of  them  during  their 
minority,  so  long  as  she  shall  continue  to  be  sole  ; 
and  in  case  of  her  death  or  marriage  during  the 
minority  of  such  my  children,  then  I  will  and  ap- 
point that  my  much  esteemed  friend,  F.  D.,  shall 
nave  the  tuition  and  guardianship  of  them  during 
such  their  minority ;  and  in  case  of  his  refusal, 
renunciation,  or  decease,  I  will  that  my  other 
executor,  E.  X.,  shall  exercise  the  said  guardian- 
ship. I  desire  that  the  utmost  care  may  be  given 
to  the  moral  training  and  education  of  my  chil- 
dren, if  any  such  shall  happen  to  survive  me  ;  and 
that  they  may  be  brought  up  and  instructed  in 

the  doctrines  and  religion  of  the Church. 

Appointment — Executors  and  Substitutes,  etc. 

I  do  hereby  nominate  and  appoint  my  sons,  S. 

B.  and  O.  B.  {or  my  friends,  E.  X.  and  T.  R. ),  to  be 

the  executors  of  this  my  last  will  and  testament, 

hereby  revoking  all  former  wills  by  me  made. 

Appointment — Executors. 

I  appoint  my  wife,  W.,  and  A.  B.  and  C.  D.  to 
be  executors  (and  trustees)  of  my  will:  (but  if  my 
wife  should  marry  again,  she  shall  thereupon  cease  tj 
be  an  executor  and  trustee  of  my  will,  which  sliall 
thenceforth  take  effect,  and  be  executed  in  the  same  or 
in  like  manner  as  if  the  said  A.  B.  and  C.  D.  had  been 
originally  appointed  the  sole  trustees  and  executors. 
Another. 

And  I  do  hereby  nominate,  constitute,  and 

appoint  my  said  wife,  together  with  the  said 
trustees,  to  be  my  executrix  and  executors  of  this 
my  will,  and  in  the  case  of  the  death  of  any  two 
or  more  of  them,  before  the  trusts  of  this  my 
will  shall  be  fully  executed  and  performed,  then 
I  do  nominate,  constitute,  and  appoint  my  two 
eldest  sons,  for  the  time  being,  when  they  shall 
respectively  have  attained  the  age  of  eighteen 
years,  to  be  executors  of  this  my  will,  in  the 
place  and  stead  of  such  two  or  more  of  them,  my 
said  wife  and  the  said  trustees,  as  shall  so  die 
before  the  trusts  of  my  said  will  shall  be  fully 
executed  and  performed,  and  with  all  the  same 
power  and  powers,  authority  and  authorities, 
to  all  intents  and  purposes  whatsoever,  as  such 
executrix  or  executors,  who  shall  so  happen  to 
die,  had  or  might  have  under  and  by  virtue  of 
this  my  will,  at  the  time  of  his  or  her  death. 
Arbitration,  etc. 

My  express  will  and  desire  is,  that  if  any  differ- 


ence or  dispute,  question  or  controversy,  shaU 
arise  or  happen  concerning  any  gift,  bequest, 
or  other  matter  or  thmg  in  this  my  ^vill,  the 
same  shall  be  referred  wholly  to  the  award, 
order,  and  determination  of  my  esteemed  neigh- 
bors, N.  R.  and  R.  S.,  with  power  for  them  to 
choose  an  umpire  ;  but  if  they  or  either  of  them 
should  not  be  able  or  willing  to  act  in  the  prem- 
ises, then  I  do  direct  that  my  eldest  son  and  el- 
dest daughter  shall  each  appoint  an  arbitrator  or 
arbitrators,  with  the  same  power  of  choosing  an 
umpire;  and  what  they  or  a  majority  of  them 
shall  order,  direct,  or  determine  therein,  shall  be 
binding  and  conclusive  to  and  on  all  and  every 
person  and  persons  therein  concerned. 

Arrangement  or  Compromise— Power  to. 

I  appoint  the  said  E.  X.  and  T.  R.  executors  of 
this  my  will ;  and  authorize  the  acting  executors 
or  executor  for  the  time  being  of  this  my  Avill  to 
satisfy  any  debts  claimed  to  be  owing  to  me  or 
my  estate,  and  any  liabilities  to  which  I  or  my 
estate  may  be  alleged  to  be  subject,  upon  any 
evidence  they  or  he  shall  think  proper,  and  to  ac- 
cept any  composition  or  security  for  any  debt, 
and  to  allow  such  time  for  payment  (either  with 
or  without  taking  security)  as  to  the  said  acting 
executors  or  executor  shall  seem  fit,  and  also  to 
compromise,  or  submit  to  arbitration,  and  settle 
all  accounts  and  matters  belonging  or  relating  to 
my  estate,  and  generally  to  act  in  regard  thereto 
as  they  or  he  shall  deem  expedient,  without  being 
responsible  for  any  loss  thereby  occasioned. 
Assignment  to  New  Trustee  to  Prevent  Trust 
Going  TO  Executor  or  Administrator. 

1  do  hereby  further  order  and  direct,  that  ■when 
and  so  often  as  either  of  my  said  trustees  shall 
happen  to  die,  that  then  the  survivor  o(  '^heni 
shall  and  do  forthwith  assign,  or  cause  to  be  as- 
signed, my  said  leasehold  houses,  etc.,  and  all 
his  estate,  term  and  interest  therein,  to  one  or 
more  new  trustee  or  trustees,  to  be  nominated 
by  the  person  or  persons,  who  for  the  time  being 
shall  be  entitled  to  the  rents  and  profits  thereof 
by  virtue  of  this  my  will,  in  such  manner  as  that 
the  legal  interest  thereof  may  be  revested  in  such 
survivor  and  the  person  or  persons  who  shall  be 
so  nominated  for  that  purpose  as  aforesaid,  upon 
the  trusts  aforesaid,  and  so  from  time  to  time, 
and  as  often  as  the  present  or  any  succeeding 
trustees  shall  be  reduced  by  death  to  one  ;  to  the 
end  that  the  same  trust  may  not  go  or  descend 
to  an  executor  or  administrator. 

Bequests.     See  Written  Wills,  etc.,  below. 

Children  Born  After  Death  op  Testator — Pro- 
visions for. 

I  give  and  bequeath  to  my  wife,  W.  B.,  the  sum 

cf ,  in  trust  for  any  child,  or  children,  by  me 

begotten,  which  may  be  born  of  her  subsequent 

to  the  time  of  my  decease,  which  said  sum  of 

money  is  to   be   paid   to   such  child,  or  divided 

equally  between  them,  when  he,  or  she,  or  they, 

shall    have   arrived   at    the   age   of  twenty-one 

years. 

Children — Born  After  the  Execution  op  a  Will. 

1  give,  bequeath,  and  devise,  all  the  rest,  resi- 
due and  remainder  of  my  real  and  personal 
estate,  to  my  children  now  living,  or  who  may 
be  living  at  the  time  of  my  decease,  to  be  divided 
equally  oetween  them,  share  and  share  alike. 
Another. 

I  give  and  bequeath  to  each  and  every  one  of 
my  children  born  subsequent  to  the  execution  of 

this  my  last  will  and  testament,  the  sum  of 

dollars,  to  be  paid  in  the  same  manner  as  the 
other  legacies  hereinbefore  mentioned. 

Children — Custody  and  Tuition  op. 
And  I  do  hereby  dispose  of  and  commit  the 
tuition  and  custody  of  my  children,  C.  B.,  L.  B., 
and  D.  B.,  and  every  one  of  them,  for  such  time 
as  they  or  any  of  them  respectively  continue  un- 
married and  under  the  age  of  twenty-one  years, 
unto  my  wife,  W.  B.,  provided  she  remains  my 
widow  ;  but  if  she  shall  die  or  marry  during  the 
single  life  and  nonage  of  any  of  my  said  children, 
I  hereby  dispose  of  and  commit  their  tuition  aod 


382 


CONVEYANCES. 


custody  to  my  executorn  hereinafter  nominated 
and  appointed. 

Debts  Dub  From  Relations — Rrlpasb  of,  etc. 

Whereas,  there  being  considerable  sums  of 
money  due  and  owing  to  me  upon  bonds,  bills, 
and  other^vise,  from  my  relations  hereinbefore 
named,  iKrhich  I  desire  to  release,  I  do  hereby 
direct  that  all  such  evidences  of  debt  shall  be 
cancelled  and  destroyed  by  my  executors  imme- 
diately after  my  death  ;  and  I  hereby  discharge 
my  relations  hereinbefore  named,  and  their  heirs, 
executors,  and  administrators,  from  the  payment 
of  any  debts  due  and  owing  to  me  or  my  estate, 
upon  any  account  whatsoever,  without  any  abate- 
ment of  the  legacies  hereinbefore  given  to  them 
respectively. 

Debts — Another  on  Condition  of  Will  being 
Unmolested. 

Whereas  my  brother,  B.  B.,  stands  justly  and 
duly  indebted  to  me  in  several  sums  of  money, 
which  I  have,  for  several  years  now  last  past,  paid, 
lent,  and  advanced  to  and  for  him  and  his  use, 

amounting  in  the  whole  to  the  sum  of dollars, 

and  upwards;  my  vt^ill  therefore  is,  that  in  case 
he  shall  give  no  trouble  or  molestation  to  my  ex- 
ecutors hereafter  named,  in  the  execution  and 
rerformance  of  this,  my  last  will  and  testament, 
do  hereafter  remit  and  release  unto  him  the  said 
debt  of dollars,  and  that  he  shall  not  be  an- 
swerable or  accountable  to  my  executors  for  the 
same  :  But  in  case  he  shall  give  any  trouble,  mo- 
lestation, or  disturbance  to  them,  or  either  of 
them,  for  or  on  account  of  anything  in  this,  my 

will  contained,  then  I  give  the  said dollars  to 

my  executors,  upon  the  trusts,  intents,  and  pur- 
poses in  this,  my  last  will   mentioned,  and  in  aid 
of  the  full  execution  and  performance  of  the  same. 
Disputes — Submission  to  Arbitration,  etc. 

1  hereby  order  and  appoint,  that  if  any  differ- 
ence shall  arise  or  happen,  concerning  any  gift, 
biiquest,  or  other  thing  in  this  will,  no  suit  shall 
be  brought  concerning  the  same,  but  the  same 
shall  be  referred   wholly  to  the  award   of   my 

friends  A.   R.  and  T.  S.,both  of ,  and  what 

they  shall  order,  direct,  or  determine  therein, 
shall  be  binding  and  conclusive  on  all  persons 
concerned. 

Another. 

And  I  do  hereby  order  and  appoint,  that  if  any 
difference,  dispute,  question  or  controversy,  shall 
be  moved,  arise  or  happen,  concerning  any  gift, 
bequest,  or  other  matter  or  thing  in  this,  my  will, 
given  and  bequeathed,  expressed  or  contained, 
that  then  no  suit  or  suits  in  law  or  equity,  or 
otherwise,  shall  be  brought,  commenced,  or 
prosecuted  for  and  concerning  the  same,  but  the 
same  shall  be  referred  wholly  to  the  award, 
order,  and  determination  of  my  loving  friends, 

A.  R.  and  T.  S.,both  of ,  and  what  they  shall 

order,  direct,  or  determine  therein  shall  be  bind- 
ing and  conclusive  to  all  and  every  person  and 
persons  therein  concerned. 

Disputes — Concerning  Validity  op  Will,  etc. 

Provided  always,  that  if  any  person  or  persons, 
to  whom  any  estate  or  interest  is  given  or  lim- 
ited, by  this,  my  will,  shall  in  any  court  of  law  or 
equity,  or  otherwise,  controvert  the  same,  or  dis- 
pute or  call  in  question  the  validity  thereof,  or  of 
any  of  the  estates,  limitations,  powers,  provisos, 
or  dispositions,  hereby  limited,  or  given,  or  made, 
or  herein  contained,  then,  and  in  such  case,  the 
estates,  interests,  limitations, etc., so  hereby  lim- 
ited, etc.,  to  or  in  favor  of  such  person  or  persons, 
so  controverting  my  said  will,  shall  cease,  deter- 
mine, and  be  absolutely  void,  to  all  intents  and 
purposes  whatsoever,  as  if  such  person  or  per- 
sons was  or  were  naturally  dead  :  And  then,  and 
fiom  thenceforth,  such  estates,  interests,  limita- 
tions, powers,  provisos, and  dispositions,  shall  go 
and  belong  to,  and  be  vested  in  the  person  or  per- 
sons who,  by  virtue  of  this,  my  will,  shall  be  next 
in  remainder,  after  the  person  or  persons  so  dis- 
puting as  aforesaid.  Provided,  he,  she,  or  they 
shall  not  controvert  or  dispute  the  validity  of  this, 
my  will,  or  of  any  of  the  devises,  limitations, 
powers,  provisos,  or  dispositions  herein  con- 
tained, or  hereby  made. 


DwELLiNG-HousH— Wipe  to  Resids  in  &uxmk: 

WlUOWHOOD,    ETC. 

Also,  I  further  give  and  devise  unto   my  said 
dear  wife  the  use  and  occupation  of  my  dv^relling- 

house  of ,  in  the  said  county  of ,  with  the 

gardens  and  offices  thereunto  belonging,  and  also 

acres  of  land  adjoining  thereto,  called  , 

to  be  enjoyed  by  her  so  long  as  she  shall  continue 
my  widow  and  shall  choose  to  reside  in  the  said 
dwelling-house  ;  and  I  do  direct  my  trustees  of 

the  said  term  of years  hereinafter  limited,  to 

permit  her  to  reside  in,  use,  and  occupy  the  same 
accordingly. 

Another. 

And  my  will  is,  that  my  said  wife  shall  and 

may  reside  in  the  house  wherein  I   now  dwell, 

situate  at  aforesaid,  in  case  she  shall  think 

proper  so  to  do,  and  shall  and  may  have  and  enjoy 
the  use  of  all  my  furniture,  plate,  linen,  china  and 
glass,  which  shall  be  therein  at  my  decease,  for 
and  during  her  life,  if  she  shall  so  long  continue 
my  widow  and  unmarried,  but  not  otherwise. 
And  in  case  she  shall  think  proper  to  quit  the  said 
house  at  any  time  after  my  decease,  then  I  give 
and  bequeath  unto  her,  my  said  wife,  the  sum  of 

dollars,  in  order  to  settle  her  in,  and  furnish 

for  her  any  other  habitation  she  may  choose  to 
reside  in. 

Investment  of  Personal  Estate,  for  Use  op 
Daughter. 

I  do  authorize,  empower,  and  direct  the  said 
E.  X.  and  T.  R.,  and  the  survivors  and  survivor 
of  them,  after  payment  of  my  just  debts  and  in- 
cidental charges  by  course  of  administration,  to 
retain  and  keep  in  their  own  hands,  during  the 
life  of  the  said  H.  D.,  all  my  personal  estate  then 
remaining,  and  the  same  to  invest  in  bank  or 
other  stock,  or  put  out  at  interest  on  good  secur- 
ity, and  the  interest  and  income  thereof  annually, 
at  such  times  and  places,  and  in  such  proportions 
as  they  shall  judge  expedient,  to  pay  to  my  said 
daughter  during  her  life,  for  her  sole  and  separate 
use.  And  if  my  said  daughter  shall  survive  the 
said  H.  D.,then,  on  his  decease, to  pay  the  whole 
of  said  personal  estate  to  her,  to  her  own  use  for- 
ever ;  but  if  she  shall  not  survive  the  said  H.  D., 
then  during  his  life,  after  her  decease,  to  appro- 
priate the  same  interest  and  income  thereof  to  the 
maintenance  and  education  of  her  children,  or 
any,  or  either  of  them,  as  they  shall  judge  expe- 
dient, and  after  the  death  of  the  said  H.  D.  to 
distribute  the  whole  of  said  personal  estate 
among  said  children,  to  their  respective  use  for- 
ever; and  the  legal  representatives  of  any  child 
who  may  have  deceased  to  be  entitled  to  the 
same  share  as  his  or  her  parent  would  have  been 
if  then  living.  And  I  do  further  authorize  and 
empower  the  said  E.  X.  and  T.  R.,  and  the  survi- 
vors and  survivor  of  them,  during  the  life  of  the 
said  H.  D.,  in  case  they  shall  judge  expedient,  to 
appropriate  the  whole,  or  any  part  of  the  princi 
pal  of  my  said  personal  estate,  either  to  the  sup- 
port and  maintenance  of  my  said  daughter  dur- 
ing her  life,  or  after  her  decease  to  the  education 
and  maintenance  of  all,  or  any,  or  either  of  her 
children. 

Marriage  of  Daughter  Without  Widow's  Con- 
sent. 
Provided  also,  that  in  case  my  said  daugh- 
ters shall,  before  their  respective  ages  of  twentyx 
one  years,  intermarry  with  any  person  or  per- 
sons, against  or  without  the  consent  of  my  said 
wife,  if  then  living,  but  if  dead,  without  the 
consent  or  approbation  of  my  said  executors,  op 
the  survivor  of  them  (such  con.sent  as  aforesaid  to  be 
testifiecl  by  writing  under  tlie  respective  hands  and  seals 
of  my  said  wife,  or  of  my  said  executors) ;  then,  and 
in  such  case,  the  interest  only,  after  the  rate  of 

per  cent,  on  the  portion  or  portions  of  such 

daughter  or  daughters  so  marrying  without  such 
consent  as  aforesaid,  shall  be  paid  to  her  or  them 
during  her  or  their  respective  life  or  lives,  for  her 
or  their  sole  and  separate  use  and  benefit,  exclu- 
sive of  any  husband  ;  and  that  upon  the  death 
of  such  daughter  or  daughters,  marrying  without 
such  consent  asaforesaid,  the  portion  or  portions, 
so  given  or  intended  for  such  daughter  or  daugb. 


CONVEYANCES. 


383 


ters,  shall  go  and  be  paid  to,  and  for  the  use  and 
benefit  of  all  and  ^veiy  the  child  or  children  of 
such  daughter  so  marrying  >vithout  such  consent 
as  aforesaid ;  the  same  to  be  divided  equally  to 
and  amongst  them,  share  and  share  alike  (if  more 
than  one),  and  to  be  paid  to  such  child  or  children, 
at  his,  her,  or  their  respective  age  or  ages  of 
twenty-one  years,  or  day  or  days  of  marriage, 
which  shaU  first  happen,  together  with  interest 
for  the  same  after  the  rate  aforesaid,  from  the 
time  of  their  respective  mother's  death  until  the 
same  become  payable  and  be  paid. 
Marriagk  of  Nieces  Without  Parents'  Consent. 
Provided  always,  and  my  will  and  meaning  is, 
that  if  any  or  either  of  my  said  three  nieces,  at 
any  time  hereafter  during  the  lifetime  of  their 
father  and  mother  and  the  said  T.  T.  (the  trustee  j, 
or  the  survivors  or  survivor  of  them,  do  and  shall 
marry  and  take  to  husband  any  person  or  per- 
sons, without  the  approbation  and  consent  of 
their  said  father  and  mother,  and  the  said  T.  T., 
or  of  two  of  the  survivors  of  them,  in  writing, 
under  his  or  their  hand  or  hands,  first  had  and 
obtained,  then,  and  in  such  case,  all  and  every 
\he  devises,  bequests,  and  legacies,  and  every  of 
them,  shall  cease,  determine,  and  become  abso- 
utely  void,  frustrated,  and  of  none  effect  in  lawr 
or  equity,  to  all  intents  and  purposes  whatsoever ; 
and  then  and  from  thenceforth,  and  after  such 
marriage  and  marriages  without  such  approba- 
tion as  aforesaid,  I  do  give,  devise,  and  bequeath 
ill  and  singular  the  messuages,  etc.,  money,  and 
ill  other  the  benefit  and  advantages  of  all  and 
tvery  the  matters  and  things  hereinbefore  given, 
ievised,  or  bequeathed,  or  which  by  virtue  of 
this,  my  v^ill,  might  have  been  had,  claimed,  or 
iemanded,  by  such  of  my  said  nieces  as  shall  so 
tnarry  and  take  husband  without  such  approba- 
tion and  consent  as  aforesaid,  in  case  she  had 
married,  etc.,  with  such  approbation,  etc.,  to  such 
of  my  said  nieces,  their  heirs,  etc.,  as  shall  not  then 
oe  married,  or  if  married,  to  her  or  them,  who  hath 
Dr  have  taken  and  married  a  husband  by  and  with 
tuch  approbation  and  consent  as  aforesaid. 
Name  of  Testator  to  bk  Taken  With  Estate. 

Provided  always,  and  my  will  nevertheless  is, 
ihat,  if  the  persons  to  whose  use  the  said  free- 
nold,  etc.,  etc.,  are  hereinbefore  devised  or  lim- 
ited, in  remainder  from  and  after  the  decease  of 
my  said  daughter,  D.  B.,  do  not  and  shall  not,  as 
and  when  they  shall  severally,  by  virtue  of  the 
devises  and  limitations  hereinbefore  contained, 
become  and  be  entitled  in  possession  to  the  said 
premises,  etc., respectively,  or  to  receive  and  take 
the  profits  thereof,  use,  assume,  and  take  upon 
themselves  respectively,  the  surname  of  B.,  and 
by  the  said  surname  of  B.  only,  and  no  other, 
from  thenceforth  forever,  thereafter  continue  to 
name,  style,  and  write  themselves,  in  all  deeds, 
instruments,  and  writings,  and  use  their  utmost 
endeavors  for  procuring  and  obtaining  his  majes- 
ty's license  and  authority  for  their  respective  as- 
saming  and  taking  the  said  surname  of  B.  only, 
or  shall  refuse,  decline,  or  neglect  so  to  do,  for  the 
space  of  six  calendar  months  after  they  shall  sev- 
erally become  and  be  so  entitled  as  aforesaid,  and 
be  of  the  age  of  twenty-one  years  or  upwards  : 
Then,  and  as  often  as  the  case  shall  so  happen, 
the  estate  and  interest  of  him,  her,  or  them  so 
refusing,  declining, or  neglecting  as  aforesaid,  of 
and  in  all  the  said  premises,  etc.,  hereinbefore 
given  and  devised,  shall  from  thenceforth  cease, 
determine,  and  be  void,  in  such  and  the  same 
manner  to  all  intents  and  purposes  whatsoever, 
as  if  he,  she,  or  they  so  refusing,  declining,  or 
neglecting  as  aforesaid,  was  or  were  actually 
dead  without  issue,  anything  hereinbefore  con- 
tained to  the  contrary  thereof  notwithstanding. 
Repayment  op  Loans  by  Children. 

It  is  my  will  that  whatever  sum  or  sums  of 
money  I  have  loaned  or  may  loan  to  any  or  either 
of  my  children,  and  which  may  remain  unpaid 
at  the  time  of  my  decease,  shall  be  considered  as 
a  part  of  my  said  residuary  estate. 
Revocation  of  Bequests  and  Legacies  if  Wife 
Sues  for  Dower,  or  Thiku,  etc. 

Provided  further,  that  in  case   my  said  wife 

25 


'W.  shall  not  accept  of  the  provisions  and  leg- 
acies hereinbefore  by  me  made  and  given  her 
as  aforesaid,  and  shall,  at  any  i;me  or  times  here- 
after, prosecute  any  action  or  suit  for  dower, 
thirds,  or  any  other  part  of  my  estates,  real  or 
personal,  other  than  what  I  have  so  hereinbefore 
devised  and  given  her,  then  and  in  that  case  the 

several  annuities  of ,  and  amounting  together 

to ,  and  each  of  them,  and  all  other  legacies 

and  bequests  hereby  by  me  before  given  or  in- 
tended to  be  given  to  her,  shall  cease  and  be  void 
to  all  intents  and  purposes,  anything  to  the  con- 
trary notwithstanding. 

Sale — Power  op,  etc..  To  Support  Daughter. 

I  do  hereby  authorize  and  empower  the  said  E. 
X.  and  T.  R.,  and  the  survivors  and  survivor  of 
them,  during  the  life  of  the  said  H.  D.,  if  thev 
shall  judge  expedient,  either  in  the  lifetime  of 
my  said  daughter,  for  her  support  and  mainte- 
nance, or  after  her  decease  in  the  lifetime  of  the 
said  H.  D.,  for  the  maintenance  and  education 
of  her  children,  or  any  or  either  of  them,  to  sell 
and  convey,  for  such  prices  as  they  shall  deem 
proper,  in  fee  simple,  or  for  any  less  estate,  all  or 
any  part  of  my  messuages,  lands,  and  tenements 
aforesaid,  and  the  whole  proceeds  of  such  sale 
or  sales,  or  any  part  thereof,  or  the  interest  and 
income  thereof,  from  time  to  time,  and  at  such 
times  and  places,  in  such  proportions  as  they 
may  judge  expedient,  to  appropriate  to  all  or  any 
of  the  purposes  aforesaid  ;  and  after  the  decease 
of  the  said  H.  D.  to  pay  the  whole  proceeds  of 
such  sales  then  remaining  unto  my  said  daughter, 
if  living,  for  her  own  use  forever ;  otherwise,  to 
distribute  the  same  among  her  children,  to  their 
respective  uses  forever,  as  tenants  in  common; 
and  the  legai  representatives  of  any  child,  vfho 
may  have  deceased,  to  be  entitled  to  the  same 
share  as  his  or  her  parent  would  have  been,  if 
then  living. 

Another. 

I  do  further  authorize  and  empower  the  said 
E.  X.  and  T.  R.,  and  the  survivors  and  survivor 
of  them,  in  case  my  personal  estate  shall  be  in- 
sufficient to  pay  my  just  debts  and  incidental 
charges,  to  sell  and  convey  in  fee  simple,  or  for  a 
less  estate,  and  for  such  prices  as  they  shall 
judge  expedient,  such  parts  of  my  messuages, 
lands,  and  tenements  aforesaid,  as  may  be  neces- 
sary for  that  purpose,  and  the  proceeds  of  such 
sale  or  sales  to  appropriate  thereto. 

And  further,  the  receipt  or  receipts  in  writin); 
of  my  said  daughter  to  the  said  E.  X.  and  T.  R., 
or  either  of  them,  for  any  sums  of  money  paid  to 
her  by  virtue  of  this  will  and  testament,  shall  be 
a  good  and  sufficient  discharge  unto  them,  and 
every  of  them,  therefor,  her  coverture  notwith- 
standing. 

Suit  by  Wife,  btc.    Sec  Revocation,  etc.,  aborc. 

Winding  Up  Testator's  Business,  etc. 

With  respect  to  my  share  and  interest  in  the 

business  of ,  now  carried  on  by  me  at ,  in 

partnership  with ,  under  the  firm  of and 

Co.,  I  empower  the  executors  or  executor  for  the 
time  being  of  this  my  will,  to  adjust  and  settle 
all  accounts  and  transactions  relating  to  the  said 
partnership  business,  and  to  %vind  up  the  affairs 
and  concerns  thereof  and  ascertain  the  amount 
of  my  share  and  interest  therein,  either  according 
to  the  provisions  of  the  articles  of  partnership 
under  which  the  said  business  shall  be  carried  on 
at  my  decease,  or  upon  such  other  terms  and  in 
such  other  manner  as  may  be  agreed  on  between 
them  or  him  and  my  surviving  partners  or  part- 
ner, with  power  for  the  said  executors  or  execu- 
tor to  refer  to  arbitration,  or  otherwise  to  rom- 
promise  or  settle  any  question  that  may  arise  in 
or  about  the  winding  up  of  the  said  concern,  in 
such  manner  as  they  or  he  may  think  ht,  and 
generally  to  do  and  execute  all  such  acts  and 
things  in  relation  to  the  premises  as  may  appear 
to  them  or  him  necessary  or  expedient,  without 
being  answerable  for  any  loss  which  may  arise 
thereby. 

And  I  authorize  the  said  executors  or  executor, 
if  they  or  he  shall  in  their  or  his  discretion  think 
fit,  to  permit  the  whole  or  any  part  of  the  amount 


384 


CONVEYANCES. 


which  on  taking  the  accounts  of  the  said  partner- 
ship shall  appear  to  be  due  to  my  estate,  as  and 
for  my  share  and  interest  in  the  said  business,  to 
remain  in  the  said  business  as  a  loan  for  any  pe- 
riod not  exceeding  seven  years  from  my  decease, 
but  so  that  the  repayment  thereof,  with  interest 

after  the  rate  of per  cent,  per  annum,  shall 

be  secured  by  the  joint  and  several  bond  of  the 
persons  or  person  for  the  time  being,  continuing 
to  carry  on  the  said  business  either  with  or 
without  any  other  security  for  the  same,  as  the 
said  executors  or  executor  shall  think  fit : 

And  subject  to  the  provisions  hereinbefore  con- 
tained as  to  the  said  business,  I  empower  my 
trustees  or  trustee  to  postpone  the  sale  and  con- 
version of  my  real  and  personal  estate  for  so  long 
as  they  or  he  shall  think  fit. 

Coiiolnslons  to  Written  Wills. 

In  witness  whereof,  I  have  hereunto  set  my 

hand  (and  seal),  this  day  of ,  in  the  year 

.  A.  B.     [Sea/.] 

(Add  witnesses'  attestation  here.) 

In  witness  whereof,  I,  the  said  A.  B.,  have 

hereunder  set  my  hand,  this day  of . 

(Add  zuitnesses'  attestation  here.)  A.  B. 

In  witness  whereof,  I  have  hereunto  subscribed 

Biy  name  (and  affixed  my  seall,  the day  of . 

(Add  luitnesses'  attestation  here.) 

In  witness  whereof,  I  have  signed  (and  sealed), 
and  published,  and  declared  this  instrument  my 

will,  at ,  in ,  this day  of . 

A.  B.     {Seal.] 

{Add  vntnesses'  attestation  here.) 


In  witness  whereof,  I,  A.  B.,  the  testator,  have 
to  this,  my  will,  written  on  one  sheet  of  paper, 
set  my  hand,  this day  of . 

(Add  witnesses'  attestation  here.) 

In  ^vitness  ^vhereof,  I,  A.  B.,  testator  aforesaid, 
have  to  this,  my  will,  consisting  (or  written  on) 

sheets  of  paper  (or  parchmentj,  set  my  hand 

and  seal  (at  the  bottom  of^each  sheet),  this day 

of .  A.  B.     {Seal.\ 

(Add  luitnesses'  attestation  here.) 

In  witness  whereof,  I,  the  said  A.  B.,  have  to 
this,  my  last  will  and  testament,  contained  in  this 
and  the  four  preceding  sheets,  set  my  hand  and 
seal  (to  wit):  my  hand  to  the  bottom  of  each  of 
said  four  sheets  and  my  hand  and  seal  to  this  last 
sheet,  and  my  seal  at  the  top  of  said  four  sheets, 

where  all  said  sheets  are  fixed  together,  this 

day  of .  A,  B.    \Seal.\ 

(Add  witnesses'  attestation  fiere.) 

In  witness  whereof,  I  have,  on  the  day  and  year 
hereinbefore  mentioned,  to  this,  my  last  will  and 

testament,  contained  in sheets  of  paper,  set 

my  hand  and  seal,  in  the  manner  following,  to 

wit :  to  the  first sheets  thereof  I  have  set  my 

hand,  by  subscribing  the  same  with  my  name ; 

and  to  the and  last  sheet  thereof  I  have  signed 

and  subscribed  my  name,  and  set  my  seal. 

(Add witmsses'  attestation  here.)     A.  B.     [Seai.'\ 

Attestations  of  Witnesses  to  Written 
Wilis. 

A  person  must  not  only  be  of  sound  mind  at  the  time 
of  making  bis  will,  but  also  at  the  attestation  of  it  by 
tlie  witnesses. » 

Signed  and  acknowledged  by  said  testator,  in 
the  presence  of  us,  who  hereunto  subscribe  our 
names,  in  the  presence  of  said  testator,  and  of 
each  other.  W.  I.,  T.  N.,  E.  S. 


Signed,  published,  and  declared  by  the  above- 
named  A.  B.,as  and  for  his  last  will  and  testa- 
ment, in  the  presence  of  us,  who,  at  his  request, 
have  signed  as  witnesses  to  the  same. 

W,  T.,N.  S. 

Signed,  sealed,  published,  and  declared  by  the 

■aid  A.  B.  as  his  last  will  and  testament,  in  the 

a-Dougl.  34. 


presence  of  us,  who,  in  his  presence,  and  at  his 
request,  have  hereunto  set  our  names  as  wit- 
nesses.    W.  T.,N.  S. 

The  said  A.  B.,  at ,  in  county,  on  said 

day  of ,  signed  and  sealed  this  instrument, 

and  published  and  declared  the  same  as  and  for 
his  last  will  and  testament ;  and  we,  at  his  re- 
quest, and  in  his  presence,  and  in  the  presence  of 
each  other,  have  hereunto  written  our  names  as 
subscribing  witnesses.  W.  I.,  T.  N.,  E.  S. 

Signed,  sealed,  published,  and  declared  by 

the  above-named  A.  B.,  as  and  for  his  last  will 
and  testament,  in  the  presence  of  us,  who,  at  his 
request,  and  in  his  presence,  have  subscribed  our 
names  as  witnesses  thereunto;  (i/ a  duplicate  is 
executed  at  the  same  time,  say)  as  we  have  likewise 
done  to  a  duplicate  of  the  above-written  will  at 

the  same  time.  W.  I.,  of . 

T.    " 


E, 


.  I.,  of .) 

N.,of .  y 

S.,  of .J 


The  above  instrument,  consisting  of  one  sheet 
(or  two  sheets),  was,  at  the  date  thereof,  signed, 
sealed,  published,  and  declared  by  the  said  A.  B., 
as  and  for  his  last  will  and  testament,  in  presence 
of  us,  who,  at  his  request  and  in  his  presence, 
and  in  the  presence  of  each  other,  have  subscribed 
our  names  as  witnesses  thereto. 

W.  T.,  residing  at ,  in county. 

N.  S.,  residing  at ,  in county. 

The  above  instrument,  consisting  of  one  sheet, 
was,  at  the  date  thereof,  declared  to  us  by  A.  B., 
the  testator  therein  mentioned,  to  be  his  last  will 
and  testament;  and  he  at  the  same  time  ac- 
knowledged to  us,  and  each  of  us,  that  he  had 
signed  and  sealed  the  same  ;  and  we  thereupon, 
at  his  request,  and  in  his  presence,  and  in  the 
presence  of  each  other,  signed  our  names  thereto 
as  attesting  witne^ses. 

W.  T.,  residing  at ,  in county. 

N.  S.,  resioing  at ,  in county. 

The  above-written  instrument  was  subscribed 
by  the  said  A.  B.,  in  our  presence,  and  acknowl- 
edged by  him  to  each  of  us:  and  he  at  the  same 
time  published  and  declared  the  above  instru- 
ment so  subscribed  to  be  his  last  will  and  testa- 
ment; and  we,  at  the  testator's  request,  and  in 
his  presence,  have  signed  our  names  as  wit- 
nesses hereto,  and  written  opposite  our  names 
our  respective  places  of  residence. 

W.  I..of ,  in . 

T.  N.,of ,  in . 

E.  S.,of ,  in . 

Conclusion  and  Attestation  under  the  Laws  op 
England. 
In  witness  whereof,  I,  the  said  A.  B.,  have  here- 
under set  my  hand,  this  day  of ,  A.  D. 

.  [Signature  0/ testator.] 

Signed  and  declared  by  the  said  A.  B.,  as  and 
for  his  last  will  and  testament,  in  the  presence  of 
us  (both  being  present  at  the  same  time),  'who,  at  his 
request,  in  his  presence  and  in  the  presence  of 
each  other,  have  hereunto  subscribed  our  names 
as  witnesses. 

^Signatures  of  luitnesses.) 
Conclusion  and  Attestation  under  the  Laws  of 
Massachusetts. 
See  Conclusions,  above. 
Signed,  sealed,  published,  and  declared  by  the 
above-named  A.  B.,  as  and  for  his  last  will  and 
testament,  in  the  presence  of  the  three  several 
persons,  whose  names  do  hereunder  appear  to  be 
tjy  them  subscribed  as  witnesses  to  the  signing, 
sealing,  and  publishing  the  same,  which  said 
several  persons  did  so  hereunder  subscribe  their 
names,  in  the  presence  of  the  testator,  and  in  the 
presence  of  each  other,  two  several  interline- 
ations being  first  made,  and  several  words  in  t>vo 
places  scored  through,  in  folio  14;  and  four  sev- 
eral interlineations,  being  first  made,  and  three 
words  scored  through  in  folio  30. 

.W.  I.,of- 
T.  N.,of- 
E.  S.,  of- 


::} 


CONVEYANCES. 


385 


CoMCLUStON  AND   ATTKSTATIrtN   IINftRR   THF   I.AWS  OF 

New  Yokk, 

In  >vitness  >vhereof,  I  (namf  0/  testator)  have  to 
this  my  last  vvilt  and  testament,  consisting  of 

sheets  of  paper,  subscribed  my  name  (and  set 

my  sealj  this day  of ,  A.  D.  — —. 

[Signature,  with  or  without  sral.'\ 

Subscribed  by  the  testator  in  the  presence  of 
each  of  us  {or,  Acknowledged  by  the  testator  lu  each 
of  us  to  have  been  subscribed  by  him),  and  at  the 
same  time  declared  by  him  to  us  to  be  his  last 
will  and  testament,  and  thereupon  we,  at  the  re- 
quest of  the  testator,  sign  our  names  hereto  as 
witnesses,  this day  of ,  A.  D. ,  at . 

[Signatures  and  addresses  0/  ivitnesses.^ 

Conclusion  and  Attestation  under  the  Laws  op 
Pennsylvania. 

In  >vitness  whereof,  I,  A.  B.,  the  testator,  have 
to  this,  my  will,  written  on  one  sheet  of  paper 

{or  parchment),  set  my  hand  and  seal,  this day 

of .  A.  B.     [Seal.] 

Signed,  sealed,  published,  and  declared  by  the 
above-named  A.  B.,  as  and  for  his  last  will  and 
testament,  in  the  presence  of  us,  who  have  here- 
unto subscribed  our  names  at  his  request  as  v/it- 
nesses  thereto,  in  the  presence  of  the  said  testa- 
tor, and  of  each  other.  W.  I. 

T.  N. 
E.  S. 
WRITTEN  WII.L,S  ANI)  TESTAMENTS. 
Trritten  Will— Short  Form. 

The  will  of  A.  B.  (of ,  farmer). 

z.  I  give,  devise  and  bequeath  all  my  propei^y, 
both  real  and  personal,  to  C.  D.  (revoking  all  former 
wUls). 

3.  I  appoint  E.  X.,  executor  of  this  will. 

Signed  and  acknowledged  this day  of . 

JJ^-gl"-  }  Witnesses.  ^-  ^• 

Written  Will— Short  Form. 

I,  A.  B.,  of ,  a ,  make  this,  my  last  will : 

I  give,  devise,  and  bequeath  my  estate  and  prop- 
erty, real  and  personal,  as  follovt^s,  that  is  to  say: 

I  appoint  E.  X.,  of ,  a  .  executor  {or  ex- 
ecutors^ of  this,  my  will. 

In  witness  whereof,  I  have  signed,  and  sealed, 
and  published,  and  declared  this  instrument  as 
my  will,  at ,  this day  of . 

A.  B.       \Sral.\ 

Attest  in  presence  of  said  testator  and  of  each 
other.  W.  T.,N.  S. 

Written  Will— Short  Form. 

In  the  name  of  God.    Amen. 

1,  A.  B.,  of  ,  mariner,  being  bound  to  sea, 

do  make  this  my  last  will  and  testament. 

First,  it  is  my  will  that  my  just  debts  and  all 
charges  be  paid  out  of  my  estate. 

Item.  I  give  and  devise  all  the  residue  of  my 
estate  to  W.,  my  wife,  to  be  to  her  and  her  heirs 
lorever. 

Item.  I  appoint  and  make  the  said  W.  execu- 
trix of  this  my  last  will  and  testament. 

Signed  and  sealed  the day  of . 

Signed,  sealed,  published,  etc.       A.  B.  [5fa/.] 

Written  Tl^ill- Short  Form. 

This  is  the  last  will  and  testament  of  me,  John 
Stiles,  of  Cheapside,  in  the  city  of  London,  linen- 
draper. 

I  give,  devise,  and  bequeath  all  my  real  estate 
and  personal  estate  whatsoever  and  whereso- 
ever, unto  my  wife,  Mary  Stiles,  her  heirs,  exec- 
utors, administrators,  and  assigns,  for  her  and 
their  own  use  and  benefit  forever. 

And  I  appoint  my  said  wife  sole  executrix  of 
this,  my  will ;  hereby  revoking  all  other  wills 
made  by  me  at  any  time  heretofore. 

In  witness  whereof,  I,  the  said  John  Stiles,  have 

hereunto  set  my  hand,  this day  of ,  in  the 

year  of  our  Lord  one  thousand  eight  hundred  and 
fifty .  JOHN  STILES.     [Seal.\ 

(Attestation  clause  here.) 

Written  W^lll— Genernl  Form. 

Devising  Real  Estate — Bequeathing  Personal  Prop- 
erty and  Appointing  a  Residuary  Legatee. 
I,  A.  B.,  of ,  in  the  county  of ,  and  State 


of ,  declare  this  to  be  my  last  will  and  testa- 
ment. 

1 .  I  give  and  bequeath  to  my  wife,  C.  B. ,  all  the 
fixtures,  prints,  books,  paintings,  linen,  china, 
household  goods,  furniture,  chattels,  and  effects 
(uih-jr  than  money  or  securities  for  money),  ^vhicl) 
shall,  at  my  death,  be  in  or  about  my  dwelling- 
house  at . 

2.  I  give  and  devise  to  my  said  wife,  her  heirs 
and  assigns,  all,  etc.  {describing  the  estate  demised), 
together  with  all  the  appurtenances  thereunto 
belonging  ;  to  have  and  to  hold  the  same  unto  the 
said  C.  B.,  her  heirs  and  assigns,  forever. 

3.  I  give  and  bequeath  to  my  said  wife  the  sum 

of dollars,  to  be  paid  to  her  within  one  month 

after  my  death,  without  interest. 

4.  I  also  give  and  bequeath  to  my  said  wife  the 
sum  of dollars. 

5.  I  give  and  devise  to  my  son,  D.  B.,  his  heirs 
and  assigns,  all,  etc.  {describing  the  estate  devised), 
together  with  all  the  hereditaments  and  appurte- 
nances thereunto  belonging,  or  in  anywise  apper- 
taining; to  have  and  to  hold  the  premises  above 
described  to  the  said  D.  B.,  his  heirs  and  assigns, 
forever. 

6.  I  give  and  bequeath  to  my  said  son,  D.  B., 
the  sum  of dollars. 

7.  I  also  bequeath  the  following  legacies  to  the 
several  persons  hereafter  named  :  To  my  nephew, 

A.  S.,  the  sum  of dollars:  to  my  cousin,  T.  S., 

the  sum   of dollars:  to  my  friend,  N.  S.,  the 

sum  of dollars. 

8.  I  also  bequeath  to  the  following  of  my  do- 
mestic servants  who  shall  be  living  with  me  at 
the  time  of  my  death,  as  {etc.,  describing  their  ca- 
pacity and  the  legacies  to  be  gii'en). 

9.  All  the  rest,  residue  and  remainder  of  my 
real  and  personal  estate  I  give,  devise  and  be- 
queath to  R.  S.,  his  heirs  and  assigns,  forever. 

10.  I  appoint  E.  X.  and  T.  R.  executors  of  this 
my  will. 

In  witness  whereof,  I,  A.  B.,  have  hereunto 

subscribed  my  name  this day  of . 

A-  B. 
Subscribed  by  the  testator  in  the  presence  of 
each  of  us  {or  acknowledged  by  the  testator  to  each 
of  us  to  have  been  subscribed  by  him)  and  at  the  same 
time  declared  by  him  to  us  to  be  his  last  wrill 
and  testament. 

AVitness  our  hands  this day  of ,  A.  D. 

.  W.  I. 

T.  N. 
E.  S. 
Written  Will— General  Form. 

With  Various  Bequests  and  Denises. 

I,  A.  B.,  of  the  township  of ,  in  the  county 

of  ,  and  State  of  ,  do  make  and  publish 

this  my  last  will  and   testament,  in  manner  and 
form  following,  that  is  to  say  : 

1.  It  is  my  v/ill  that  my  funeral  shall  be  con- 
ducted without  pomp,  unnecessary  parade  or 
ostentation,  and  that  the  expenses  thereof,  to- 
gether with  all  my  just  debts,  be  fully  paid. 

2.  I  give,  devise  and  bequeath  to  my  beloved 
wife,  W.  B.,  in  lieu  of  her  dower,  if  she  should 
so  elect,  the  plantation  on  which  we  now  reside, 
situated  in  the  township  aforesaid,  and  contain- 
ing two  hundred  and  ten  acres,  or  thereabouts, 
during  her  natural  life  :  And  all  the  live-stock, 
horses,  cattle,  sheep,  s>vine,  etc.,  by  me  now 
owned  and  kept  thereon:  Also,  all  the  household 
furniture  and  other  items,  not  particularly  named 
and  otherwise  disposed  of,  in  this  my  will,  during 
her  said  life  ;  she,  however,  first  disposing  of  a 
sufficiency  thereof  to  pay  my  just  debts,  as  afore- 
said. And,  that  at  the  cleath  of  my  said  wife,  all 
the  property  hereby  devised  or  bequeathed  to  her, 
as  aforesaid,  or  so  much  thereof  as  may  then  re- 
main uncx7>cnf!ed,  I  give  unto  my  three  sons,  S., 
0.,and  N.,  ar.d  to  their  heirs  and  assigns,  for- 
ever. 

3.  I  give  and  devise  to  my  eldest  son,  S.,  the 
farm  on  which  he  novi^  resides,  situated,  etc.,  and 
containing  one  hundred  and  fifty  acres,  or  there* 
abouts,  and  to  his  heirs  and  assigns,  forever. 

4.  I  give  and  devise  to  my  second  son,  O.,  the 
farm  now  in  the  occupancy  of  G.  H.,  situated, 
etc.,  and  containing  one  hundred  and  ten  acres. 


386 


CONVEYANCES. 


to  him,  the  said  O.,  his  heirs  and  assigns,  in  fee 
simple. 

y  I  give  and  devise  to  my  third  son.  N.,  the 

house  and  lot,  in  the of ,  in  the  county  and 

State  aforesaid,  now  in  the  occupancy  of  I.  K., 

known  and  designated  in  the  plan  of  said by 

No.  47,  to  him,  the  said  N.,  his  heirs  and  assigns 
forever. 

And,  last:  I  hereby  constitute  and  appoint  my 
said  wife,  W.,  and  my  said  son,  S.,  to  be  the  exec- 
utrix and  executor  of  this,  my  last  will  and  testa- 
ment, revoking  and  annulling  all  former  wills  by 
me  made,  and  ratifying  and  confirming  this,  and 
••  other,  to  be  my  last  will  and  testament. 

A.  B. 

Signed,  published,  and  declared  by  the  above- 
named  A.  B.,  as  and  for  his  last  will  and  testa- 
ment, in  presence  of  us,  who,  at  his  request,  have 
signed  as  witnesses  to  the  same.  W.  T. 

N.  S. 
Written  Will— General  Form. 
M'/VA  Variens  Bequests  and  Deziises. 

I,  A.  B.,  of,  etc.,  do  make  and  publish  this,  my 
first  as  well  as  last  will  and  testament : 

I  di'-ect,  that  my  body  be  decently  interred  in 
the  burial  ground  of church,  in ,  accord- 
ing to  the  rites  and  ceremonies  of  said  church, 
arni  that  my  funeral  be  conducted  in  a  manner 
corresponding  with  my  estate  and  situation  in 
life. 

And,  as  to  such  worldly  estate  as  it  hath  pleased 
God  to  intrust  me  with,  I  dispose  of  the  same  as 
follows : 

First :  I  direct  that  all  my  debts  and  funeral  ex- 
penses be  paid  as  soon  after  my  decease  as  possi- 
ble, out  of  the  first  moneys  that  shall  come  into 
the  hands  of  my  executors,  from  any  portion  ot 
my  estate,  real  or  personal. 

Also  :  I  direct  that  a  fair  valuation  or  appraise- 
ment be  made,  according  to  law,  of  all  my  estate, 
by  three  competent  and  impartial  neighbors. 

Also  :  I  direct  that  all  my  stock  in  trade  be  sold 
at  public  vendue,  or  outcry,  for  good  current 
money,  but  not  upon  credit ;  and  that  all  the  real 
estate  of  which  I  shall  die  seized,  or  possessed, 
shall  be  sold  by  my  executors,  for  its  reasonable 
value,  for  like  current  money,  or  on  such  credit, 
and  the  amount  thereof  be  secured,  in  such  a 
manner  as  is  usual  in  like  cases,  to  insure  the  full 
and  punctual  payment  thereof:  And  to  effect 
this,  my  intention,  I  do  hereby  vest  in  my  execu- 
tors full  power  and  autiiority  to  dispose  of  my 
real  estate,  in  fee  simple,  or  for  a  term  of  years, 
or  otherwise,  in  as  full  and  large  a  manner,  in 
every  respect,  as  I  could  myself  do,  if  living. 

Also  :  I  direct  that  the  whole  of  my  household 
furniture  shall  be  and  remain  the  absolute  prop- 
erty of  my  beloved  wife.if  she  shall  be  living  at  the 
time  of  my  decease  ;  but,  if  she  shall  not  survive 
me,  then  that  the  same  shall  be  given,  absolutely, 
to  my  daughters  then  unmarried,  as  shall  be  liv- 
ing, share  and  share  alike,  and  to  be  apportioned 
by  three  impartial  neighbors,  mutually  chosen  by 
my  said  daughters  for  that  purpose. 

Also:  I  do  direct  that  the  net  proceeds  of  my 
personal  estate,  heretofore  ordered  by  me  to  be 
disposed  of,  be  divided  equally  as  soon  as  it  can 
be  done,  share  and  share  alike,  amongst  my  said 
wife  and  my  several  children  who  shall  survive 
me;  and  that  the  proceeds  of  my  real  estate,  if 
sold  on  credit,  shall,be  divided  in  like  manner,  as 
soon  as  they  shall  come  into  the  hands  of  my  ex- 
ecutors. 

The  heirs  or  representatives  of  any  of  my  chil- 
dren, who  shall  have  died  between  the  time  of 
my  decease  and  the  time  of  such  division  or  dis- 
tribution, to  be  entitled  to  such  share  or  shares 
as  their  respective  ancestors  would  have  been 
entitled  to  receive  if  they  were  living. 

And,  the  share  of  my  real  and  personal  estate, 
herein  bequeathed  to  my  wife,  to  be  in  lieu  of  her 
dower,  at  common  law,  if  she  shall  so  elect. 

And,  I  do  hereby  appoint  and  nominate  my  es- 
teemed neighbors,  C.  D.  and  E.  F.,  executors  of 
this,  my  last  will  and  testament,  reposing  full 
conndence  in  their  integrity  to  perform  the  trust 
thus  committed  to  them. 

In  witneM  whereof,  I,  A.  B.,  the  testator,  have 


to  this,  my  will,  written  on  one  sheet  of  papei, 

set  my  hand,  this day  of ,  in  the  year . 

A.  B. 

Signed  and  delivered  in  the  presence  of  us,  who 
have  subscribed  in  the  presence  of  each  other. 

W.  T. 
N.  S. 
Written  Will— General  Form. 
IVilh  ynrious  Beguests  and  Devises. 

In  the  name  of  God.     Amen. 

I,  A.  B.,  of  the  county  of ,  in  the  State  of 

,  farmer,   being  weak   in   body  (or  in   perfect 

health  of  body,  as  the  rase  may  be),  and  of  sound 
mind,  memory,  and  understanding;  but,  consid- 
ering the  uncertainty  of  this  transitory  life,  do 
make  and  publish  this,  my  last  will  and  testa- 
ment,  in  manner  and  form  following,  to  wit : 

First :  It  is  my  will,  and  I  do  order,  that  all  my 
just  debts  and  funeral  expenses  be  duly  paid  and 
satisfied,  as  soon  as  conveniently  can  be,  after 
my  decease. 

Item  :  I  give  and  bequeath  unto  my  dear  wife, 
'W.,one  bed,  one  cow,  etc.,  etc.,  together  with 
such  of  my  household  furniture  and  kitchen  uten- 
sils as  she  may  choose  to  keep  for  her  own  use. 

Item  :  I  give  and  bequeath  unto  my  said  wife, 
the  use  and  occupation  ot  my  plantation,  etc., 
I  until  my  son,  S.,  shall  attain  the  age  of  twenty- 
one  years  (she  maintaining  and  educating  my  minor 
children  thereout;,  and  from  and  after  his  arrival  at 
such  age,  then  I  give  and  devise  the  said  planta- 
tion, etc.,  unto  my  son,  S.,  his  heirs  and  assigns, 
forever;  he  or  they  paying  thereout,  unto  my 
other  children  hereinafter  named,  the  several 
sums  of  money  to  them  respectively  bequeathed  ; 
and  also  paying  unto  my  said  wife  the  sum  of  one 
hundred  and  fifty  dollars  (which  sum  I  hereby  Ve- 
qiicath  to  her)  yearly,  and  every  year,  during  her 
natural  life,  for  her  maintenance  and  support ; 
tU  which  legacies  to  my  said  wife  I  do  hereby 
declare  to  be  in  lieu  and  stead  of  her  dower,  at 
common  law.  And,  in  case  of  the  death  of  my 
said  son,  S.,  before  his  arrival  to  the  age  afore- 
said, then  I  do  order  and  direct  that  my  execu- 
tors, hereinafter  named,  or  the  survivor  of  them, 
shall,  as  soon  as  conveniently  may  be,  after  his 
decease,  sell  and  dispose  of  my  said  plantation, 
etc.,  to  such  person  or  persons,  and  for  such  price 
or  prices,  as  may  be  reasonably  gotten  for  the 
same  ;  and  for  that  purpose  I  do  hereby  authorize 
and  empower  my  said  executors,  or  the  survivor 
of  them,  to  sign,  seal,  execute,  and  acknowledge 
all  such  deed  or  deeds  of  conveyance  as  may  be 
requisite  and  necessary  for  the  granting  and  as- 
suring the  same  to  the  purchaser  or  purchasers 
thereof,  in  fee  simple:  And  the  moneys  arising 
from  such  sale,  to  put  and  place  out  to  interest, 
on  good  security,  for  the  payment  of  the  said  an- 
nuity, hereby  bequeathed  to  my  said  wife;  the 
residue  of  the  interest  to  be  applied  to  the  main- 
tenance and  education  of  such  child,  or  children, 
as  shall  then  be  under  age. 

Item  :  I  give  and  bequeath  unto  my  son,  O.,  the 
sum  of  one  hundred  dollars,  to  be  paid  to  him  six 
months  after  my  decease. 

Item  :  I  give  and  bequeath  unto  my  daughter,  D., 
the  sum  of  one  hundred  dollars,  to  be  paid  to  heron 
her  arrival  at  the  age  of  twenty-one  years,  or  the 
day  of  her  marriage,  whichever  shall  first  happen. 

And,  as  touching  all  the  rest,  residue,  and  re- 
mainder of  my  estate,  real  and  personal,  of  what 
kind  or  nature  whatsoever  the  same  may  be,  in 

the  county  of aforesaid,  or  elsewhere,  I  give 

and  devise  the  same  unto  my  said  wife,  W.,  dur- 
ing her  natural  life,  and  from,  and  immediately 
after  her  decease,  I  give  and  devise  the  same  unto 
my  three  children,  S.,0.,  and  D.,  and  to  their 
heirs  and  assigns  forever,  to  be  equally  divided 
among  them. 

And,  lastly,  I  nominate,  constitute,  and  appoint 
my  said  wife  and  my  son  S.  to  be  the  executors 
of  this,  my  will,  hereby  revoking  all  other  wills, 
legacies,  and  bequests  by  me  heretofore  made, 
and  declaring  this,  and  no  other,  to  be  my  last 
will  and  testament. 

I n  witness  whereof,  1  have  hereunto  set  my  hand 
and  seal,  the day  of ,  in  the  vear . 

(Add attestation  o/ witnesses  here.)    A.  B.  ^S*iU.\ 


CONVEYANCES. 


3^7 


Written  Will— General  Form. 

^^^eintiTig  Residuary  Legatees,  Executors — Disposing 

of  Stock  in   Trade — Granting  Annuities,  Bequests, 

Devises — Power  to   Employ    Attorneys,    Prosecute 

Suits  Atroad,  etc. ,  etc. 

I,  A.  B.,  of ,  in  the  county  of ,  esq.,  being 

in  a  very  infirm  state  of  health,  and  sensible  of 
my  liability  to  sudden  death,  at  the  same  time 
being  in  my  own  apprehension  of  sound  mind, 
do  judge  it  best  to  make,  and  accordingly  do 
hereby  make  this  my  last  will  and  testament. 

It  is  my  will  that  all  my  just  debts  and  the 
charges  of  my  funeral  be  paid  and  discharged  by 
my  executors  hereinafter  named  and  appointed, 
out  of  my  estate,  as  soon  as  conveniently  may  be 
after  my  decease,  and  I  leave  the  charges  of  my 
funeral  to  the  direction  of  my  said  executors. 

I  give,  devise,  and  dispose  of  all  my  estate,  real 
and  personal  (s»ve  what  shall  be  necessary  for  tlie 
payment  of  my  just  debts  and  funeral  charges;,  in  the 
following  manner : 

I  give  to  my  daughter,  D.  R.,  and  to  her  heirs 
and  assigns,  seven  thousand  five  hundred  dollars 
lawful  money,  which  with  what  1  heretofore  ad- 
vanced to  and  for  her,  viz.,  before  her  intermar- 
riage with  H.  R.,  I  judge  to  make  at  least  ten 
thousand  dollars.  And  I  discharge  her  and  the 
heirs  of  her  late  husband,  L.  H.  K.,  and  alt  con- 
cerned, and  that  may  be  concerned  with  and  for 
her  and  them,  of  what  I  charged  him  with  in  my 
books. 

I  give  to  ^ny  daughter,  D.  U.,  and  to  her  heirs 
and' assigns,  ten  thousand  dollars  lawful  money. 

I  give  to  my  daughter,  D.  T.,  and  to  her  heirs 
and  assigns,  ten  thousand  dollars  lawful  money, 
to  be  paid  to  her  when  she  shall  arrive  at  the  age 
of  twenty-one  years,  if  she  shall  live  so  long  ;  if 
otherwise,  and  she  shall  leave  lawful  issue,  then 
I  give  the  same  sum  to  such  issue,  to  be  paid  to 
such  issue,  in  equal  shares,  when  and  as  each  of 
them  shall  arrive  at  twenty-one  years  of  age,  or 
at  the  time  of  his  or  her  marriage,  whichever 
shall  first  happen.  And  in  the  mean  time,  it  is 
my  will  that  the  same  sum  be  put  and  kept  at 
interest  for  the  benefit  of  the  said  D.  T.,  and 
such  issue,  and  I  empower  my  executors,  or 
whoever  shall  have  the  care  of  the  same,  ten 
thousand  dollars,  to  apply  as  much  of  the  interest 
and  income  of  the  same  sum,  as  they  shall  judge 
best  for  and  towards  her  and  their  support  and 
education. 

I  give  to  my  beloved  wife,  W.  B.,  sixteen  hun- 
dred and  seventy-five  dollars  lawful  money,  also 
the  value  of  five  hundred  dollars,  like  money, 
more,  in  such  of  my  household  goods  as  she  shall 
choose ;  also  the  household  goods  and  other 
things  which  belonged  to  her,  and  which  she 
brought  to  me  at  our  marriage,  and  all  the 
personal  estate  since  left  to  her  by  Madam  M.  M. 
by  her  will. 

I  also  give  to  my  said  w^ife,  W.  B.,  and  to  her 
heirs,  my  negro  boy,  named  Titus,  as  a  servant 
for  life,  with  the  apparel  he  shall  have  at  the  time 
of  my  decease. 

I  also  give  to  her  my  two-wheeled  chaise,  and 
what  belongs  to  it  of  tackling,  etc.,  and  one  of 
my  carriage  horses,  namely,  that  which  she  shall 
choose  of  them. 

I  also  give  to  my  said  wife,  W.  B.,  during  her 

residence    at  ,    the    right    of  sitting   in   my 

pew  below,  where  she  and  my  children  usually 
sit,  in  the  meeting-house  in  said,  etc.,  wherein 
the  Rev.  Mr.  P.  R.  usually  officiates  as  pastor, 
and  in  such  part  of  the  same  pew  as  she  shall 
think  proper,  she  paying  one  sixth  part  of  the 
taxes  which  shall  be  charged  or  laid  on  and  for 
said  pew  during  the  same  time. 

I  also  fCive  and  grant  to  my  said  wife,  \V.  B., 
during  her  life,  the  annuity  and  sum  yearly  of 
eight  hundred  dollars  lawful  money,  which, 
with  what  1  have  hereinbefore  given  to  her, 
I  mean  to  be,  and  that  she  accept  the  same  in 
full  of  her  right  of  dower  in  my  estate,  and  I 
give  to  her  as  above,  upon  condition,  that  she, 
my  said  wife,  shall  give  to  my  executors,  when 

a-Where  a  testator  in  his  will,  directed  his  executor 
to  support  a  person,  it  was  held  that  such  direction 
iiiTiou>^ted  to  a  legacy,  and  if  the  executor  (or  in  case 


demanded,  a  release  of  all  demands  and  claims 
of  dower  and  othenvise,  of  and  against  my  es- 
tate, save  what  I  have  herein  given  to  her. 

As  my  body  servant,  named  B.  S.,  has  gener- 
ally served  me  with  great  diligence  and  integrity 

I  give  to  the  same  B.  S. dollars  lawful  money, 

together  with  his  apparel,  agreeably  to  a  writing 
I  have  heretofore  executed  for  that  purpose  ;  and 
if  hereafter  he  be  unable  to  support  himself,  that 
he  be  'supported  by  my  sons,  S.  and  O.,  in  equal 
shares,  and  so  by  their  respective  heirs,  and  so  as 

to  free  the  town  of from  any  charge  for  the 

support  and  maintenance  of  the  said  B.  S.;  and 
I  charge  what  I  hereby  give  to  my  sons,  as  well 
as  themselves,  with  the  performance  hereof. 

I  give  and  grant  to  my  honored  mother,  M.  B., 
during  her  life,  the  annuity  and  sum  yearly  of  five 
hundred  dollars  lawful  money,  on  condition  that 
it  be  received  by  her  in  discharge  of  my  part  of  the 
yearly  payment,  to  be  made  to  her  by  myself  and 
others,  by  force  of  the  last  will  of  my  grandfather, 
Capt.  G.  R.,  deceased  :  yet  I  mean  that  this  pay- 
ment or  annuity  shall  not  be  so  made  or  under- 
stood, as  to  bar  my  said  mother  from  her  claim 
which  she  has  and  may  have  against  others,  by 
force  of  my  said  grandfather's  will. 

I  give  to  Mr.  M.  F.,  on  the  d&y  and  at  the  time 
of  my  decease,  dollars  lawful  money,  pro- 
vided and  on  condition  he  shall  then  be  employed 
or  engaged  in  my  business  in  like  manner  as  he 
now  is.  This  gift  I  so  make  him  in  testimony  of 
the  great  regard  I  have  for  him,  and  the  sense  I 
have  of  his  great  faithfulness  in  my  service. 

I  give  to  the  Rev.  Mr,  P.  R. dollars  lawful 

money. 

And  to  the  end  that  the  payment  of  the  annui- 
ties and  yearly  payments  aforesaid,  may  be  effec- 
tually secured,  and  the  same  duly  paid,  it  is  my 

v/ill  that thousand  and hundred  dollars 

lawful  money  of  my  personal  estate  shall  not  be 
received  by  or  for  my  children,  or  any  of  them, 
until  the  said  annuities  and  yearly  payments  be 
completed  and  cease  to  become  due;  but  that 
the  same  sum  of  my  personal  estate  shall,  until 
the  same  annuities  cease  to  become  due  as  afore- 
said, rest  in  the  hands,  and  be  under  the  manage- 
ment and  improvement  of  my  executors  herein- 
after named  and  appointed,  to  be  placed  and 
kept  at  interest  on  what  they  shall  judge  to  be 
good  security,  and  that  such  interest  shall  be  ap- 
plied and  used  as  by  this  my  will  is  directed. 
Except,  and  it  is  my  will,  that  if  there  be  any 
overplus  arising   from   the  interest  of  the  said 

thousand  and  hundred  dollars,  in  any 

year,  after  the  several  annuities,  in  this  my  wiU 
ordered,  are  fully  paid  for  the  same  year,  in  such 
case,  the  same  overplus,  as  it  shall  be  received, 
as  soon  as  conveniently  may  be  done,  shall  be 
placed  and  kept  at  interest  for  the  uses,  ends,  and 
purposes  in  this  my  will  mentioned.  But  in  case 
of  the  death  of  my  executors  before  the  said  an- 
nuities, and  each  of  them  shall  cease  to  become 
due,  or  their  refusing  or  neglecting  to  take  the 

care  of  the  said thousand  and  hundred 

dollars  and  the  income  thereof,  and  the  applica- 
tion and  payment  of  the  same,  then  it  is  my  will 

that  the  said  thousand    and  hundred 

dollars  of  my  estate,  and  what  may  have  arisen 
by  the  income  thereof,  if  any  be,  shall  be  deliv- 
ered over  and  put  into  the  hands  of  any  two 
gentlemen  (not  oeing  children),  the  judge  of  the 
probate  of  wills  for  said  county  for  the  time 
being,  shall  judge  fit  to  nominate  and  appoint  as 
agents  or  trustees  (which  I  empower  and  request 
him  to  do)  to  receive  the  same,  to  be  by  them 
managed,  let,  and  placed  at  interest  as  aforesaid, 
for  the  purposes  aforesaid,  and  the  interest  there- 
of annually  by  them  applied  in  payment  of  the 
said  annuities  and  agreeably  to  my  other  direc- 
tions about  the  same.  And  in  case  the  said  judge 
shall  refuse  or  neglect,  in  the  opinion  of  my  said 
wife,  seasonably  to  nominate,  appoint,  and  en- 
gage such  agents  or  trustees,  then  it  is  my  will, 

that  the  same  thousand   and  hundred 

dollars,  and  the  interest  thereof  unapplied,  if 
he  refused  the  trust,  the  administrator  cum  testament* 
annejco),  neglected  it,  an  action  would  well  lie,  wherv 
there  were  sufficient  ^sets.     4  Mass,  R.  634. 


388 


CONVEYANCES. 


any  be,  shall  be  delivered  over  and  paid  or  put 
into  the  hands  of  any  two  gentlemen  my  said 
wife,  W.  B.,  shall  please  to  nominate  and  ap- 
point to  receive  the  same,  and  these  persons  shall 
and  may  receive  the  same,  in  like  manner,  and 
for  the  uses,  intents,  and  purposes  aforesaid. 
But  it  is  to  be  understood,  that  into  whose  hands 

•oever  the  said  thousand  and  hundred 

dollars  and  the  interest  thereof,  shall  be  delivered 
as  aforesaid,  being  nominated  and  appointed  by 
the  said  judge  of  probate,  or  by  my  said  wife,  W. 
B.,  as  aforc:>aid,  the  same  shall  be  so  received  as 
that  such  receivers  shall,  at  the  time  of  the  re- 
ceipt of  the  same,  make  themselves  accountable 

for    the   said    thousand    and  hundred 

dollars  and  the  interest  thereof,  according  to  the 
intent  of  this,  my  will,  relative  thereto,  and  that 
the  gentlemen  into  whose  hands  the  said dol- 
lars and  any  interest  or  income  thereof  shall  be 
put  and  placed  as  aforesaid,  shall,  on  receipt 
thereof,  give  bond  to  the  said  judge  of  probate  to 
account  for  the  same  sum  and  the  interest  thereof, 
according  to  the  tenor  and  intent  of  this,  my  will, 
and  apply  the  interest  thereof  as  hereinbefore 
directed. 

And  it  is  my  will,  that  when  the  annuities 
aforesaid,  and  each  of  them,  shall  cease  to  be- 
come due,  the  said dollars,  with  the  overplus 

interest  thereof,  if  any  there  be,  shall  be  divided 
to  and  among  my  children  hereinafter  named,  to 
%vhom  I  give  the  same  accordingly,  as  followeth, 
videlicit :  To  my  daughter,  D.  R. ,  and  to  her  heirs, 

hundred   and  dollars  thereof.     To  my 

daughter,   D.   T.,   and    to    her    heirs,  other  

hundred  and dollars  thereof.  To  my  daugh- 
ter, D.  U.,  and  to  her  heirs,  other hundred 

and  dollars  thereof.     And  the  residue  and 

remainder  thereof  to  my  three  sons,  E.,  D.,  and 
O.,  in  equal  shares,  and  so  to  their  respective 
heirs. 

The  residue  and  remainder  of  all  my  estate, 
both  real  and  personal,  not  herein  otherwise  dis- 
posed of,  I  give  and  grant  to  my  sons,  E.,  D.,and 
0.,in  equal  shares  and  proportions,  and  so  to  their 
respective  heirs  forever.  The  share  of  my  son, 
O.,  of  the  same  residue  and  remainder  of  my  es- 
tate, to  be  paid  to  him  when  he  shall  come  to  the 
age  of  twenty-one  years,  but  until  then  the  same 
share  to  remain  and  be  in  the  hands  of  my  said 
executors,  the  personal  estate  to  be  let  and  placed 
at  interest,  and  the  real  estate  improved  or  let  to 
the  best  advantage,  foe  the  use  of  the  said  O., 
and  so  in  like  manner  his  share  of  all  surplusage 
of  interest  and  income,  which  I  would  have 
added  to  the  capital  stock,  and  let  at  interest  for 
his  benefit,  saving,  nevertheless,  that  the  same 
interest  and  income  may  be  used,  paid,  and  ap- 
plied, as  I  do  by  this  will  grant,  allow,  order,  and 
provide. 

If  my  estate  at ,  or  any  part  thereof,  should 

at  my  decease  remain  by  me  unsold,  and  my  ex- 
ecutors shall  think  it  best,  that  the  same,  or  any 
part  thereof,  should  be  sold  before  my  son,  O,  shall 
arrive  at  twenty-one  years  of  age,  in  such  case,  I 
give  and  grant  to  my  executors  full  power  to 
grant  and  sell  the  share  or  part  I  give  to  the  said 
O.  therein,  for  such  consideration  as  to  my  exec- 
utors shall  seem  reasonable,  and  to  make  and 
duly  execute  any  deed  or  instrument  they  shall 
judge  proper  for  the  purpose,  and  the  money 
arising  from  the  same  sale  to  remain  and  be  in 
the  hands  of  the  said  executors  during  said  O.'s 
minority,  and  by  them  be  let  at  interest  for  the 
use  of  the  said  O.  Provided,  nevertheless,  that 
my  sons,  E.  and  D.,  shall  at  the  same  time  sell 
their  respective  shares  in  the  same  estate. 

And  it  is  my  will  that  if  my  son,  O.,  shall  die 
before  he  shall  arrive  at  the  age  of  twenty-one 
years,  then  what  shall  remain  of  his  share  in  the 
whole  of  my  estate,  according  to  this,  my  will, 
•hall  go,  and  I  in  this  case  give  the  same  to  his 
surviving  brethren  aforenamed,  in  equal  shares, 
and  so  to  their  respective  heirs.  But  if  either  of 
these  brethren  shall  happen  to  die  without  legal 
issue  living,  and  this  while  the  said  O.  shall  be 
Kving,  then  I,  in  the  case  aforesaid,  give  the  same 
to  the  survivor  of  said  brethren  (namely,  £.  and 
p.),  and  th«  heir?  of  such  survivor. 


And  in  case  my  daughter,  D.  T. ,  shall  die  before 
she  shall  arrive  at  the  age  of  t\venty-one  years, 
leaving  no  lawful  issue  living,  then  what  shall  re- 
main of  the  share  of  the  said  D.  T.  of  my  estate 
and  the  interest  thereof,  unapplied,  shall  go,  and 
I  give  the  same  in  such  case  as  follows,  viz. : 
one-half  part  thereof  to  my  daughter,  D.  R.,  and 
to  her  heirs,  and  the  other  half  part  thereof  to  my 
daughter,  D.  U.,  and  to  her  heirs.  But  if  either 
the  said  D.  R.  or  D.  U.  shall  die  without  issue 
and  before  the  said  D.  T.  shall  arrive  at  twenty- 
one  years  of  age,  and  the  said  D.  T.  dying  as 
aforesaid,  then  I  give  the  whole  of  the  same  to 
the  survivor  of  the  said  D.  R.  and  D.  U.,  and  to 
the  heirs  of  such  survivor. 

In  case  my  executors  shall  judge  it  best  not  to 
sell  my  stock  in  trade,  or  any  part  thereof,  imme- 
diately after  my  decease,  but  to  continue  the 
same,  or  any  part  thereof,  in  trade,  for  the  bene- 
fit, but  at  the  risk  of  such  of  my  children  as  shall 
be  concerned  therein,  then  I  empower  my  execu- 
tors, for  any  term  not  exceeding  twelve  months 
next  after  my  decease,  to  employ  and  improve 
my  trading  stock,  or  any  part  thereof,  in  the  com- 
mon course  of  trade  as  they  shall  think  best  for 
the  benefit,  and  so  at  the  risk  of,  those,  to  whom, 
according  to  this  will,  this  part  of  my  estate  shall 
belong  ;  yet  I  mean  so  to  limit  the  time  of  such 
improvement,  that  if  any  of  this  interest  shall  be 
at  sea  at  the  expiration  of  said  twelve  months,  a 
further  reasonable  time  shall  be  allowed  to  com- 
plete the  voyage  and  voyages,  the  same  interest 
may  then  be  abroad  upon. 

And  it  is  my  will,  that  my  executors  may  pay 
the  sums  first  mentioned  to  be  given  to  my  said 
daughters  respectively,  in  good  bonds,  payable  to 
me  at  the  time  of  my  death,  or  thereabout,  ac- 
counting such  bonds  at  the  value  of  them  on  the 
day  of  my  death.  And  I  desire  my  executors,  if 
need  be,  to  lend  their  names  in  said  capacity  to 
my  daughters  respectively,  when  desired,  for  the 
recovery  and  receipts  of  what  shall  be  due  on 
such  bonds,  and  give  proper  power  therefor. 
But  if  my  executors  shall  not  think  fit  so  to  do, 
when  requested,  then  my  will  is  that  my  daugh- 
ters be  paid  in  money  equivalent. 

And  as  my  executors  must  necessarily  have 
much  trouble,  and  employ  a  great  deal  of  time  in 
executing  this,  my  will,  I  desire  and  empower 
them  to  employ  Mr.  A.  A.,  or  any  other  person 
they  shall  think  fit,  in  assisting  them  in  the  set- 
tlement of  my  accounts  and  affairs,  and  in  the 
improvement  of  my  trading  stock,  and  that  they 
agree  to  give  and  pay  to  him  and  them  such  sums 
of  money  out  of  my  estate  therefor,  as  they,  my 
said  executors,  shall  judge  reasonable. 

Although  it  is  my  will,  and  I  choose  that  the 
estates  I  have  given  to  my  son,  O.,  and  to  my 
daughter,  D.  T.,  respectively,  shall  remain  in  the 
hands  of  my  executors  as  af^oresaid  ;  yet,  if  my  ex- 
ecutors shall  choose  it,  I  consent  that  guardians 
be  legally  appointed  for  the  said  O.  and  D.  T.,  re- 
spectively, and  that  their  respective  shares  of  my 
estate  be  paid  to  their  respective  guardians  for 
the  uses  and  intents  in  this,  my  will,  limited, 
directed,  and  expressed. 

And  as  it  is  my  will,  that  so  much  of  the  income 
of  what  I  have  given  to  my  daughter,  D.  T. ,  as 
may  be  needful,  may  be  applied  for  her  support 
and  education,  so  I  will  that  the  income  of  the 
estate  I  have  given  to  my  son,  O.,  may  be  applied 
and  expended  for  his  support  and  education,  until 
he  shall  arrive  at  twenty-one  years  of  age,  so  far 
as  shall  be  thought  reasonable  and  best  by  such 
person  or  persons,  as,  during  his  minority,  shall 
have  the  care  of  his  share  of  my  estate. 

And  it  is  my  will,  that  my  executors  or  either 
of  them,  join  with  Messrs.  A.  A.  and  A.  Y.  in 
prosecuting  the  cause  now  or  late  depending  in 
England  for  the  recovery  of  the  schooner  J.  and 
cargo,  and  that  he  or  they  do  everything  which  I 
might  or  could  do  for  that  end,  so  far  as  he  or 
they  shall  think  fit  and  judge  best. 

And  I  hereby  nominate,  constitute,  and  appoint 
my  brother,  B.  B.,  and  my  friend,  Mr.  E.  F., 
jointly  and  severally,  to  be  executors  of  this  my 
last  will  and  testament,  and  so  as  that  in  case 
of  th»  death  of  one  of  them,  the  survivor  of 


CONVEYANCES. 


389 


Miem  shall  then  be  sole  executor  of  this  my  said 
will. 

And  I  give  such  survivor  all  the  power  and  di- 
rection I  have  given  my  said  executors. 

I  also  give  to  each  of  them  all  the  power,  and 
repose  in  each  of  them  all  and  every  trust  I  have 
given  to  them  jointly,  provided,  and  so  far  as  he 
v/ho  shall  act  have  the  consent  of  the  other  ex- 
ecutor, and  it  is  my  will  that  neither  of  my  exec- 
utors shall  be  answerable  for  any  of  my  estate 
received  or  to  be  received  by  the  other  executor. 

In  witness  \vhereof,  I  hereto  put  my  hand  and 
seal,  and  publish  and  declare  this  to  be  my  last 
will  and  testament,  etc. 

{Add  aitesiaiion  or  witness  clause.) 

Written  ITllI— IMlarried  Woman. 

Made  in  Virtue  of  a  Poiver  0/  Appointment  Made  at 
or  Be/ore  Marriage. 

1,  W.  B.,  wife  of  A.  B.,  of ,  do  by  this  my 

^vriting,  purporting  to  be  my  last  will  and  testa- 
ment, dispose  of  my  estate,  both  real  and  per- 
sonal, pursuant  and  according  to  the  authority  to 
me  given  and  reserved  in  and  by  a  deed  of  settle- 
ment (or  otherwise,  as  the  case  may  be),  made  and 
executed  on  my  marriage  {or,  in  contemplation  of 
my  marriage)  with  my  husband,  the  said  A.  B., 

and  bearing  date  the day  of ,  A.  D. , 

by  and  between  the  said  A.  B.,  and  E.  P.,  and  G. 
H.,  trustees,  etc.  {here  set  /ortk  the  date  and  parties 
to  the  settlement). 

And  by  virtue  of  the  said  deed,  and  of  all  other 
powers  and  authorities  whatsoever,  to  me  given 
and  reserved,  in  manner  as  follows,  viz.: 

I.  I  devise  to  my  son,  S.  B.,all  that  tract  of 

land,  called ,  being,  etc.  {here  describe  it),  and 

to  his  heirs  forever. 

a.  I  give,  bequeath,  and  devise  to  my  daughter, 
Mary  B.,  one  hundred  shares  of  stock  in  the  Bank 

of ,  now  standing  on  the  books  of  said  bank 

in  the  name  of  ,  to  my  use  and  benefit ;  to- 
gether with  all  dividends  which  may  be  due  and 
in  arrear  thereon  at  the  time  of  my  death. 

Also  to  my  said  daughter  the  house  and  lot  in 

which  I  now  reside  in  the  city  of ,  situated, 

etc.  (here  describe  it). 

3.  I  give  and  bequeath  to  my  said  husband,  A. 
B.  ,a  gold  ring  and  a  breastpin,  to  be  made  in 
such  manner  as  he  may  direct,  in  testimony  of 
my  respect  and  affection  for  him. 

In  witness  whereof,  etc. 

Written  Will-Of  Real  and  Personal 

Property. 

See  Various  Forms,  above. 

Know  all  men  by  these  presents  : 

That  I,  A.  B.,  of ,  in  the  county  of ,  and 

State   of ,  counsellor  at  law,  being  in  good 

health  (<>r  ill  health,  as  the  case  maybe),  and  of  sound 
and  disposing  mind  and  memory,  do  make  and 
publish  this  my  last  will  and  testament,  hereby 
revoking  all  former  wills  by  me  at  anytime  here- 
tofore made. 

And  as  to  my  worldly  estate,  and  all  the  prop- 
erty, real,  personal,  or  mixed,  of  which  I  shall 
die  seized  and  possessed,  or  to  v^rhich  I  shall  be 
entitled  at  the  time  of  my  decease,  I  devise,  be- 
queath, and  dispose  thereof  in  the  manner  fol- 
lowing, to  wit: 

I.  My  will  is,  that  all  my  just  debts  and  funeral 
expenses  shall,  by  my  executors  hereinafter 
named,  be  paid  out  of  my  estate,  as  soon  after 
«iy  dec-ase  as  shall  by  them  be  found  convenient. 

Item.  I  give,  devise,  and  bequeath  to  my  be- 
loved wife,  W.  B.,  all  my  household  furniture, 
my  library  in  my  mansion  or  d\velling-house,  my 
span  of  horses,  coach  and  chaise,  and  my  two 
horse  carriage  harness ;  and  also  twenty  thou- 
sand dollars  in  money,  to  be  paid  to  her  by  my 
executors,  hereinafter  named,  within  six  months 
after  my  decease;  to  have  and  to  hold  the  same 
to  her  and  her  executors,  administrators,  and  as- 
signs, forever. 

I  also  give  to  her  the  use,  improvement,  and  in- 
come of  my  d^velling-house,  land,  and  its  appur- 
tenances, situated  in,  etc.  (here  describe  it);  and 
my  land,  ^vharf,  and  flats,  situated  in,  etc.  (here 
describe  iy),and  its  appurtenances;  to  have  and  to 
bQld  the  same  to  her  for  and  during  ber  natural  life. 


I  give  and  bequeath  to  my  honored  mother,  M. 
B.,  five  thousand  dollars  in  money,  to  be  paid  to 
her  by  my  executors  hereinafter  mentioned 
within  six  months  after  my  decease  ;  to  be  for 
the  sole  use  of  herself,  her  heirs,  executors,  ad- 
ministrators, and  assigns. 

I  give  and  bequeath  to  my  daughter,  D.  B., 
my  fifty  shares  of  the  stock  of  the  President,  Di 

rectors,  and  Company  of  the  Bank,  which 

are  of  the  par  value  of  five  thousand  dollars; 
and  my  ten  shares  of  the  stock  of  the Manu- 
facturing Company,  which  are  of  the  par  value  of 
ten  thousand  dollars  ;  to  have  and  to  hold  the 
same,  together  with  all  the  profit  and  income 
thereof  to  her,  the  said  D.  B. ,  her  heirs,  executors 
administrators,  and  assigiis,  to  her  and  their  use 
and  benefit  forever. 

I  give,  devise,  and  bequeath  to  my  son,  S.  B., 
the  reversion  or  remainder  of  my  dwelling  or 
mansion  house,  land,  and  its  appurtenances, 
situated  in,  etc.  (describe  it),  and  alt  profit,  income, 
and  advantage  that  may  result  therefrom,  from 
and  after  the  decease  of  my  beloved  wife,  W.  B.; 
to  have  and  to  hold  the  same  to  him,  the  said  S. 
B. ,  his  heirs  and  assigns,  from  and  after  the  de- 
cease of  my  said  wife,  to  his  and  their  use  and 
behoof  forever. 

I  give,  devise,  and  bequeath  to  my  son,  O.  B., 
the  reversion  or  remainder  of  my  land,  wharf, 
flats,  situated  in (describe  it),  and  its  appurte- 
nances, and  all  the  profit,  income,  and  advantage 
that  may  result  therefrom,  from  and  after  the 
decease  of  my  beloved  wife,  W.  B.,  to  have  and 
to  hold  the  same  to  the  said  O.  B.,  his  heirs  and 
assigns,  from  and  after  the  decease  of  my  said 
wife,  to  his  and  their  use  and  behoof  forever. 

All  the  rest  and  residue  of  my  estate,  real,  per- 
sonal, and  mixed,  of  which  I  shall  die  seized  and 
possessed,  or  to  which  I  shall  be  entitled  at  my 
decease,  I  give,  devise,  and  bequeath  to  be  equally 
divided  to  and  among  my  said  sons,  S.,  O., 
and  N. 

And  lastly,  I  do  nominate  and  appoint  my  said 
sons,  S.  B.,  O.  B.,  and  N.  B.,  to  be  the  executors 
of  this,  my  last  will  and  testament. 

In  testimony  whereof,  I,  the  said  A.  B.,  have  to 
this,  my  last  will  and  testament,  contained  on 
two  sheets  of  paper  {or  other-wise,  as  the  case  may 
be),  and  to  every  sheet  thereof,  subscribed  my 
name,  and  to  this,  the  last  sheet  thereof,  I  have 

subscribed  my  name  and  affixed  my  seal,  this 

day  of ,  A.  D. . 

A.  B.     [Seal.^ 

Signed,  sealed,  published,  and  declared  by  the 
said  A.  B.,  as  and  for  his  last  will  and  testament, 
in  the  presence  of  us,  who,  at  his  request,  and  in 
his  presence,  and  in  the  presence  of  each  other, 
have  subscribed  our  names  as  witnesses  thereto. 

W.I. 
T.  N. 
E.  S. 

Written  Will— Of  Real  and  Personal 
Property,  in  Trust. 

Be  it  remembered,  that  I,  A.  B.,  of ,  in  the 

State  of ,  merchant,  being  of  sound,  dispos- 
ing mind  and  memory,  do  make  and  ordain  my 
last  will  and  testament,  in  manner  following, 
viz. : 

Imprimis.  I  direct  all  my  just  debts  and  fune- 
ral expenses  to  be  fully  paid  and  satisfied  by  my 
executors,  hereinafter  named,  as  soon  as  conven- 
iently may  be  after  my  decease. 

Item.  All  the  rest,  residue,  and  remainder  ef 
my  estate,  real,  personal,  and  mixed,  whatsoever 
and  wheresoever,  I  order  and  direct  to  be  con- 
verted into  mon»'y  as  soon  as  the  same  can  con- 
veniently be  done  after  my  decease  ;  and  for  that 
purpose,  I  do  hereby  authorize  and  empower  my 
said  executors,  hereinafter  named,  and  the  sur- 
vivor of  them,  to  sell  and  dispose  of  all  my  said 
real  estate,  either  by  public  or  private  sale  or 
sales,  for  the  best  price  or  prices  that  can  be  got- 
ten for  the  same,  and  by  proper  deed  or  deeds, 
conveyances,  or  assurances  in  the  law,  to  be  duly 
executed,  acknowledged, and  perfected,  to  grant, 
convey,  and  assure  the  same  to  the  purchaser  or 
purchasers  thereof,  in  fee  simple. 

And,  when  the  whole  of  my  said  residuary  es- 


39© 


CONVEYANCES. 


tate  shall  be  converted  into  money  as  aforesaid, 
then  I  will  and  direct  that  the  same  shall  be  divi- 
ded into  four  equal  parts  or  shares,  and  disposed 
of  as  follows,  to  wit : 

One  full,  equal  fourth  part  or  share  thereof  I 
pive,  devise,  and  bequeath  unio  my  said  execu- 
tors, hereinafter  named,  and  the  survivor  of  them, 
in  trust,  that  they  or  he  do  and  shall  put  and 
place  the  same  out  at  interest  on  good,  real  se- 
curity, or  in  the  funded  debts  of  the  United  States, 

the  State  of ,  or  the  city  of ,  and  pay  over 

the  interest  or  dividends  thereof  from  time  to 
i^ime,  when  and  as  the  same  shall  be  got  in  and 
fi  ceived,  unto  my  beloved  wife,  W.  B., during  all 
it.ie  term  of  her  natural  life  ;  ■which  is  to  be  in  lieu 
.pf  the  dower  to  which  she  is  entitled  by  law. 

And  from  and  immediately  after  the  death  of 
rrfy  said  wife,  'W.  B.,  I  give,  devise,  and  bequeath 
the  principal  of  the  said  one-fourth  part  or  share 
of  my  said  residuary  estate  to  be  equally  divided, 
share  and  share  alike,  between  my  daughters, 
D.  B.  and  R.  B.,  and  my  son,  S.  B, ,  and  any  other 
child  or  children  which  I  may  have  born  by  my 
present  marriage  ;  the  part  or  share  in  this  be- 
quest of  my  said  two  daughters,  D.  B.  and  R.  B., 
to  be  held,  however,  by  my  said  executors,  in 
trust,  in  the  same  manner  and  for  the  same  uses 
as  are  hereinafter  set  forth  and  declared  of  and 
concerning  the  parts  or  shares  of  my  said  resid- 
uary estate  bequeathed  to  them  for  the  use  of  my 
said  two  daughters,  D.  B.  and  R.  B. 

One  other  of  the  said  full,  equal  fourth  parts  or 
shares  of  the  proceeds  of  my  said  residuary  es- 
tate, I  give,  devise,  and  bequeath  unto  my  said 
executors,  hereinafter  named,  and  the  survivor  of 
them,  in  trust,that  they  or  he  shall  and  do  put  and 
place  the  same  out  at  interest  in  manner  afore- 
said, and  pay  over  the  interests  and  dividends 
aforesaid,  from  time  to  time,  when  and  as  the 
same  shall  be  got  in  and  received,  unto  my  said 
daughter,  D.  B. ,  for  and  during  all  the  term  of  her 
natural  life  ;  so,  nevertheless,  that  the  same  shall 
be  for  her  sole  and  separate  use,  notwithstanding 
any  coverture,  and  not  to  be  in  any  way  or  manner 
whatever  liable  to  the  contracts,  debts,  or  engage- 
ments of  any  husband  which  she  may  hereafter 
have  or  take,  and  not  to  be  in  anyway  or  manner 
w^hatever  subject  to  the  control  or  interference  of 
such  husband.  And  from  and  immediately  after 
the  decease  of  her,  my  said  daughter,  D.  B. ,  then, 
as  to  the  said  principal,  in  trust  to  and  for  the  only 
proper  use  and  benefit  of  all  and  every  the  child 
and  children  which  she,  my  said  daughter,  D., 
may  leave,  and  the  lawful  issue  of  any  of  them 
y^fho  may  then  be  deceased,  having  left  such  issue, 
to  be  equally  divided  between  them,  share  and 
share  alike,  such  issue  of  any  deceased  child  or 
children  of  my  said  daughter,  D.,  taking,  how- 
ever, only  such  part  or  share  thereof  as  his,  her, 
or  their  deceased  parent  or  parents  would  have 
had  and  taken,  had  he,  she,  or  they  been  living. 

One  other  of  the  said  full  equal  fourth  parts, 
etc.  {as  in  preceding  clause,  only  substituting  R.  B./or 
D.B.) 

And  the  remaining  one  full  equal  fourth  part 
or  share  of  the  proceeds  of  my  said  residuary 
estate,  I  give,  devise,  and  bequeath  unto  my 
said  executors,  hereinafter  named,  and  the  sur- 
vivor of  them,  in  trust,  that  they  or  he  do  and 
shall  put  and  place  the  same  out  at  interest  in 
manner  aforesaid,  and  pay  and  apply  such  inter- 
est, or  so  much  thereof^  as  shall  be  requisite,  to- 
v^ard  the  education  and  maintenance  of  my  said 
soa,  S.  B.,  until  he  attains  the  lawful  age  of 
twenty-one  years ;  and  when  and  as  soon  as  he, 
my  said  son,  arrives  at  the  age  aforesaid,  then  in 
trust  to  pay  over  the  principal  thereof,  together 
vrith  any  accumulation  of  interest  thereon  which 
may  be  in  their  hands  uninvested,  unto  him,  my 
said  son,  S.  B. 

Item.  In  case  of  the  decease  of  my  said  daugh- 
ters, D.  B.  and  R.  B.,  or  either  of  them,  without 
leaving  lawful  issue,  or  of  the  decease  of  my  said 
son,  S.  B.,  under  age,  and  without  leaving  law- 
ful issue,  then,  in  such  case,  I  give,  devise,  and 
bequeath  the  said  part  or  share,  hereinbefore 
riven,  devised,  and  bequeathed  to  such  child  so 
aying,  unto  my  said  executors,  hereinafter  named. 


and  the  survivor  Of  them,  in  trust,  to  hold  the 
same  for  my  surviving  child  or  children,  in  equal 
shares  and  proportions,  in  the  same  manner,  for 
the  same  uses,  intents,  and  purposes,  and  under 
the  trusts  and  limitations  as  are  hereinbefore  set 
forth  and  declared  of  and  concerning  the  parts  or 
shares  of  my  said  residuary  estate  hereinbefore 
given,  devised,  and  bequeathed  for  the  use,  bene- 
fit, and  behoof  of  my  said  children,  respectively. 

Item.  I  nominate,  constitute,  and  appoint  my 
friends,  E.  X.  and  T.  R.,  of  the  said  ,  mer- 
chants, executors  of  this  my  last  will  and  testa- 
ment, hereby  revoking  all  former  wills  and  testa- 
ments by  me  at  any  time  heretofore  made  :  and 
do  declare  these  presents  only  to  be  and  contain 
my  last  will  and  testament. 

In  witness,  etc. 

IVritten  Will— In  Trust  for  Certain 
Purposes. 

The  last  will  of  me,  A.  B.,  of  the  town  of •, 

in  the  county  (or  district,  or  parish)  of ,  and 

State  of ,  being  of  sound  mind  at  the  time  of 

making  and  publishing  this  my  last  will  and 
testament. 

I  give  and  devise  all  my  estate,  real  and  per- 
sonal, vt/hereof  I    may  die  seized  or   possessed, 

to  T.  T.,  of  the  said  town  of ,  and  E.  X.,  of 

the  same  place  :  to  have  and  to  hold  the  same  to 
themselves,  their  heirs  and  assigns  forever,  upon 
the  uses  and  trusts  following,  namely  : 

In  trust  first  to  pay  all  my  debts  and  funerai 
expenses: 

Second,  to  pay  to  my  wife,  W.,  upon  her  sole 
and  separate  receipts,  the  interest,  income,  and 
revenue,  of  all  my  said  estate,  during  the  term 
of  her  natural  life  : 

And  third,  upon  the  decease  of  my  said  wife,  to 
convert  all  my  said  estate  into  money,  if  such  a 
course  shall  be  thought  best  by  my  said  trustees, 
and  pay  to  my  daughter,  D.,  the  one  third  part 
thereof,  it  seeming  to  me  best  to  give  her  so  large 
a  share  on  account  of  her  bodily  infirmities  and 
inability  to  provide  for  herself,  and  the  remaining 
two-thirds  equally  to  divide  between  my  four 
sons,  F.,  S.,  O.,  and  N. 

If  either  of  my  children  shall,  before  such 
division,  have  died,  leaving  lawful  issue,  such 
issue  to  receive  the  parent's  share;  but  if  there 
be  no  issue,  then  such  share  to  fall  into  the  gen- 
eral fund,  to  be  divided  among  the  survivors  in 
the  manner  before  directed. 

And  I  hereby  give  to  my  said  trustees  full 
power  and  authority  to  sell  any  or  all  of  my  real 
estate  at  private  or  public  sale,  and  invest  the 
proceeds,  or  to  lease  the  same  as  they  may  deem 
best  for  the  interest  of  my  family. 

And  if  my  said  daughter,  D.,  shall  not  have 
attained  the  age  of  twenty-one  upon  the  decease 
of  her  mother,  I  hereby  nominate,  constitute,  and 
appoint  my  said  trustees  guardians  of  the  person 
and  estate  of  my  said  daughter,  D.,  during  the 
remainder  of  her  minority,  commending  her  to 
their  fatherly  care  and  protection. 

And  I  hereby  nominate,  constitute,  and  appoint 
my  said  trustees,  T.  T.  and  E.  X.,  executors  o' 
this  my  last  will  arid  testament. 

In  witness  whereof,  etc. 

Written  Will— Of  Widow,  Containingr 
Trusts. 

Be  it  remembered.  That  I,  W.  W.,  of  the  city 
of ,  widow,  being  of  sound  mind  and  mem- 
ory, have  thought  proper  to  make,  and  hereby 
do  make  my  last  will  and  testament  in  manner 
following,  that  is  to  say: 

z.  I  direct  all  my  just  debts  and  funeral  ex- 
penses to  be  fully  paid  and  satisfied  as  soon  as 
conveniently  may  be  after  my  decease. 

Item.  I  give  and  bequeath  to  my  niece,  N.  C.  E., 
all  my  household  goods,  kitchen  furniture,  silver 
plate,  and  wearing  apparel. 

Item.  I  give  and  devise  my  messuage  or  tene- 
ment. No. ,  on street,  in  the  city  of , 

and  the  lot  of  ground  and  appurtenances  there- 
unto belonging,  unto  my  neohew,  N.  H.  W.,  his 
heirs  and  assigns  forever,  in- trust  nevertheless 
to  pay  the  net  rents  and  income  thereof  unto  my 
said  niece,  N.  C-  E.,fur  h^r  $ole  and  separate  u^v 


CONVEYANCES. 


39« 


ilaring  the  term  of  her  natural  life,  without  being 
subject  or  liable  to  or  for  the  debts,  contracts,  or 
engagements  of  any  husband  she  may  have  or 
take,  and  from  and  after  her  decease  then  in  trust 
%vith  respect  to  one  moiety  or  half  part  thereof, 
for  such  person  or  persons,  and  such  uses  and 
purposes  as  my  said  niece,  by  any  instrument  of 
writing  in  the  nature  of  a  last  will  and  testament, 
may  direct,  limit,  and  appoint. 

And  for  want  of  such  direction,  limitation,  or 
appointment,  then  in  trust  to  grant  and  convey 
tne  said  moiety  to  such  person  or  persons  as 
would  have  been  entitled  to  the  same  in  case  the 
said  N.  C.  £.  had  departed  this  life  intestate,  seized 
of  said  moiety  in  fee  and  for  such  estate  and  es- 
tates, and  in  such  parts,  shares,  and  proportions 
tas  such  person  or  persons  would  in  such  case  be 

entitled  to  by  the  intestate  laws  of . 

And  from  and  immediately  after  the  decease  of 
my  said  niece,  then  with  respect  to  one  equal 
half  part  of  the  remaining  moiety  of  the  said 
premises,  to  hold  the  same  in  trust,  to  pay  the 
net  rents  and  income  thereof,  to  my  nephew,  N. 
£.  P.,  during  his  natural  life,  free  from  his  debts, 
contracts,  and  engagements,  and  from  and  after 
his  decease,  then  in  trust  to  hold  the  said  half 
part  of  said  remaining  moiety  for  such  person  or 
persons,  and  for  such  uses  and  purposes  as  my 
said  nephew,  N.  E.  P.,by  any  instrument  of  writ- 
ing in  the  nature  of  a  last  wiU  and  testament, 
may  direct,  limit,  and  appoint. 

And  for  want  of  such  direction,  limitation,  or 
appointment,  then  in  trust  to  grant  and  convey 
the  same  to  such  person  or  persons  as  would  have 
been  entitled  to  the  same  had  the  said  N.  E.  P.  de- 
parted this  life  intestate,  seized  of  said  half  part 
of  said  tnoiety  in  fee,  and  in  such  parts,  shares, 
and  proportions  as  such  person  or  persons  would 
in  such  case  be  entitled  to  by  the  intestate  laws 
of .  And  from  and  immediately  after  the  de- 
cease of  my  said  niece,  I  give  and  devise  the  re- 
maining full  equal  half  part  of  the  said  remaining 
moiety  of  said  premises  unto  my  said  nephew, 
N.  H.  W.,  his  heirs  and  assigns,  forever. 

Provided,  however,  and  I  do  hereby  direct  the 
said  trustee,  at  any  time  during  the  lifetime  of  my 
said  niece,  N.  C.  E.,  to  sell  and  dispose,  at  public 
or  private  sale,  of  the  whole  of  the  said  premises 
to  such  person  or  persons,  for  such  price  and  upon 
such  terms  and  conditions  as  she,  my  said  niece, 
may  in  writing  direct,  limit,  and  appoint,  if  my 
said  niece  shall  think  proper  to  direct  a  sale  of 
said  premises,  which  without  such  direction  shall 
not  be  made,  and  to  grant  and  convey  the  same 
to  the  purchaser  or  purchasers  thereof,  his,  her, 
or  their  heirs  and  assigns,  forever,  free  and  dis- 
charged from  all  trusts  whatsoever,  and  all  lia- 
bility to  see  to  the  application,  or  for  the  non- 
application  of  the  purchase-money. 

And  the  moneys  arising  from  such  sale  to  be 
invested  in  some  safe  securities  at  interest,  and 
to  be  held  in  trust  for  the  same  uses  and  purposes 
above  set  forth  with  respect  to  the  said  premises. 
Item.  I  direct  all  the  rest,  residue,  reversion, 
and  remainder  of  my  estate,  real,  personal,  and 
mixed,  whatsoever  and  wheresoever,  to  be  con- 
verted into  cash  as  soon  as  conveniently  may  be 
after  my  decease,  and  for  that  purpose  I  hereby 
authorize  and  empower  my  executors,  hereinafter 
named,  and  the  survivor  of  them,  to  sell  and  dis- 
pose of  all  or  any  part  of  the  residue  of  my  real 
estate,  at  public  or  private  sale  or  sales,  for  such 
price  or  prices,  and  upon  such  terms  and  condi- 
tions as  to  them  may  seem  best,  or  to  the  survi- 
vor of  them  ,  and  to  grant  and  convey  the  same 
to  the  purchaser  or  purchasers  thereof,  his,  her, 
or  their  heirs  and  assigns,  free  from  all  liability 
for  or  on  account  of  the  application  of  the  pur- 
chase-money. 

One  full  equal  third  part  of  the  net  proceeds  of 
tlie  said  rest  and  residue  of  my  estate  I  give  and 
bequeath  to  my  said  nephew,  N.  H.  W.,  his  ex- 
ecutors, administrators,  and  assigns,  in  trust,  to 
invest  the  same  in  safe  securities  at  interest,  and 
hold  the  same  in  trust  for  mysaid  niece,  N.  C.  E., 
as  above  set  forth  and  directed  with  respect  to  the 

said  premises  on street  devised  in  trust  for 

her-    Qne  othef  full  equal  third  part  I  give  and 


I  bequeath  to  mysaid  nephew,  N.  H.  W.,hi8  ex- 
[  ecutors,  administrators,  and  assigns,  in  trust,  to 
I  invest  the  same  in  safe  securities  at  interest,  and 
hold  the  same  in  trust  for  my  said  nephew,  N.  E. 
,   P.,  as  above  set  forth  and  directed  with  respect 

to  the  part  and  share  of  said  premises  on ' 

street,  devised  in  trust  for  him  after  the  decease 
of  my  said  niece.  And  the  remaining  full  equal 
third  part  thereof  I  give  and  bequeath  to  mysaid 
nephew,  N.  H.  W.,  absolutely. 

Item.  I  nominate  and  appoint  my  said  nephew, 
N.  H.  W.,  executor  of  this,  my  last  v/ill  and  tes- 
tament. 

Lastly,  I  revoke  all  former  Avills  by  me  made, 
and  declare  this  only  to  be  and  contain  my  last 
will  and  testament. 
In  witness  whereof,  I   have   hereunto  set  my 

hand  and  seal,  the  day  of ,  in  the  year 

.  W,  W.     [Sea/.l 

Signed,  sealed,  published,  and  declared  by  W. 
W.,  the  testatrix  above  named,  as  and  for  her 
last  will  and  testament,  in  the  presence  of  us, 
who,  in  her  presence,  at  her  request,  and  in  the 
presence  of  each  other,  have  hereunto  set  our 
names  as  witnesses.  W.  I. 

T.N. 
E.  S. 
BeqnoHtN  and  liegracles  of  Persoual 
Property. 
See  definition  of  these  term<;  in  text  above. 
Annuity — Payment  of,  etc. 
And  I  direct  that  the  said  annuity  of dol- 
lars shall  be  paid  clear  of  all  deductions,  except 
legacy  duty  or  tax,  by  equal  half-yearly  payments, 
the  first  payment  to  be  made  at  the  end  of  six 
calendar  months  from  my  death. 

Annuity— Purchase  of,  rrc. 

1  give  and  bequeath  an  annuity  of dollars 

to ,  for  her  life,  for  her  sole  and  separate  use  ; 

and  for  this  purpose  I  direct  my  executors,  within 
months  after  my  decease,  to  lay  out  a  suffi- 
cient portion  of  my  personal  estate,  in  the  pur- 
chase of  such  an  annuity  as  aforesaid,  in  her 
name,  from  some  incorporated  company ;  but 
neither  she  nor  any  person  claiming  under  her 
shall  be  entitled  to  claim  or  accept  in  lieu  or  satis- 
faction thereof  the  sum  which  may  be  required 
for  the  purchase  of  such  annuity. 

Annuity— To  Wipe  During  Widowhood. 

I  give  and  bequeath  unto  my  wife,  W.,  over 
and  above  the  estates  which  are  already  settled 
upon  her  (situate,  etc.),  one  annuity  or  yearly  sum 

of dollars,  for  and  during  the  term  of  her 

natural  life,  in  case  she  shall  so  long  continue  my 
widow  ;  and  I  do  hereby  direct  that  the  same  shall 
be  charged  upon  the  interest  to  arise,  accrue,  or  be 
paid,  as  hereinafter  is  mentioned,  from  or  by  the 
capital  to  be  employed  in  my  trade  or  business 
of ,  vrhich  is  to  be  carried  on  by  my  said  ex- 
ecutors, according  to  the  direction  hereinafter  for 
that  purpose  given  and  contained.     And  that  the 

said  annuity  or  yearly  sum  of dollars  shall  be 

paid  to  her,  my  said  wife,  by  four  equal  quarterly 

payments,  on ,  On ,  etc.  in  every  year,  the 

first  payment  to  begin  and  be  made  on  such  of 
the  said  days  as  shall  next  happen  after  my  de- 
cease. But  in  case  my  said  wife  shall  marry 
again  at  any  time  after  my  decease,  then  and  in 
such  case  I  revoke  the   said  bequest  of  the  said 

annuity  of dollars  hereinbefore  given  to  her, 

and  direct  that  the  same  shall  from  thenceforth 
cease  and  determine,  etc. 

Charitable  Rfqufst*;. 

I  order  and  direct  the  sum  of dollars  t» 

be  divided  as  my  wife  shall  think  proper,  or,  in 
case  of  her  death,  as  my  said  son  shall  think 
proper,  among  such  of  the  poor  persons  resident 

in  ,  where  I  now  live,  as  shall  happen  to  be 

upon  my  Christmas  list,  and  shall  have  received 
a  small  donation  by  my  order  at  the  Christmas 
next  preceding  my  death.     1  likewise  order  and 

direct  the  sum  of dollars  to  be  divided  or  given 

as  my  wife  shall  think  proper,  to  or  amongst  any 

poor  family  or  families  of^  the  aforesaid of 

and  of ,  %vhich  shall  seem  to  her  to  be 

most  deserving  of  such  reward  or  assistance, 


39* 


CONVEYANCES. 


I  give  to  the  said  J.  N.  the  sum  of dollars, 

upon  trust  to  place  out  the  same  on  government 
or  real  securities,  at  interest,  in  the  name  of  such 
persons  as  he,  his  executors  or  administrators, 
shall  think  proper,  with  liberty  to  the  trustees  or 
trustee  thereof^  for  the  time  being,  of  transposing 
the  same,  to  the  intent  that  such  trustees  or  trus- 
tee thereof  do  apply  the  interest  or  dividends 
arising  therefrom,  for  or  towards  the  education 

of  four  poor  boys,  at  or  in  the  said  school  at , 

aforesaid,  to  be  from  time  to  time  nominated  by 
such  trustee  or  trustees  for  the  time  being. 
Children — With  Dirbctions  for  Investment,  etc. 

I  bequeath  to  each  of  my  children,  C.  B.,  L.  B., 

and  D.  B.,  the  sum  of dollars,  with  interest 

at  the  rate  of per  cent,  per  annum,  from  my 

death  till  the  payment  thereof,  such  interest  to 
be  paid  half-yearly.  And  I  hereby  declare,  that 
if  my  said  daughter,  D.  B.,  shall  be  under  twenty- 
one  years  at  my  death,  and  shall  not  have  mar- 
ried, the  legacy  hereby  given  to  her  shall  be  re- 
tained by  my  trustees  hereinafter  named,  their 
executors  or  administrators,  upon  trust,  to  pay 
the  same  to  her  when  she  shall  attain  twenty- 
one  years  or  marry  ;  and  upon  trust  in  the  mean 
time  to  pay  the  interest  of  such  legacy  to  her, 
and  her  receipt,  notwithstanding  her  infancy,  to 
be  an  effectual  discharge  for  the  same;  and  if 
the  said  D.  B.  shall  not  attain  twenty-one  years 
or  marry,  the  same  legacy  shall,  upon  her  death, 
(ink  into  my  residuary  estate.* 

Conditional  Bequest. 

Whereas  the  directors  of  University  are 

now  engaged  in  an  effort  to  enlarge  its  sphere  of 
action,  and  give  it  greater  efficiency  in  promoting 
education,  and  being  desirous,  if  such  effort  shall 
pr-ve  successful,  of  still  further  enlarging  its 
sphere  and  efficiency  by  endowing  a  professor- 
ship of in  said  university:  therefore  I  give 

and  bequeath  to  said  (/lere  insert  full  name),  the 

sum  of dollars,  to  be  paid  within years 

after  my  death,  for  the  purpose  of  founding  and 

I  ermanently  endowing  a  professorship  of in 

said  university;  upon  condition,  however,  that 

the  sum  of  dollars  shall,  within  years 

from  the  time  of  my  death,  be  raised  for  the  pur- 
pose of  endowing  two  other  professorships,  and 
paying  the  indebtedness  of  said  university. 
Corporation — Bequest  to. 

I  give  And  \>e.i\\it9.\.h.  Xo  (stating  the  full  name  of 
Vie  corporation,  or,  if  not  certainly  known,  describing 

it),  at ,  the  sum  of dollars,  to  be  applied 

to  (state  -uJiat). 

Death  op  Legatee. 

And  if  any  legatee  be  now  dead,  or  die  before 
me,  I  give  the  legacy  intended  for  him  or  her  to 
his  or  her  executors  or  administrators,  to  be  ap- 
plied as  if  the  same  had  formed  part  of  the  per- 
sonal estate  of  such  legatee  at  his  or  her  decease. 
Debt. 

I  bequeath  to  E.  F.,  any  debt  which,  at  the 
time  of  my  decease,  shall  be  owing  from  him  to 
me,  together  with  any  interest  then  due  there- 
upon. 

Dfrts — Postponement  op  Collection,  etc. 

I  authorize  and  empower,  but  do  not  require, 
my  executors  to  defer  and  postpone  the  requiring 
payment  of  any  debt  (carrying  interest)  which  may 
be  owing  to  me  from  {name)  at  the  time  of  my 
decease,  for  such  period  as  my  executors  shall 
think  fit. 

Dower.     See  Devises,  below. 
Drfss  and  Ornaments. 

I  give  and  bequeath  to  my  wife,  W.,  absolutely 
•11  her  trousseau,  wearing  apparel  and  linen,  and 
the  watches,  rings,  trinkets,  jewels,  and  personal 
ornaments  usually  worn  by  her,  or  reputed  to 
belong  to  her. 

Furniture,  etc.,  To  Children. 

I  bequeath  to  my  children  who  shall  be  living 
•t  the  time  of  my  death  all  (etc. ,  as  /<r/,nc'\,  equally 
to  be  divided  oeWeen  them  ;  and  if  any  dispute 
should    arise    with    respect    to    the    division,   I 

«-ThU  is  a  convenient  proviso  in  the  case  of  legacies 
if  siimU  amount  to  infants. 


authorize  my  executors  to  distribute  the  said 
effects  equally  amongst  my  said  children. 

Furnitukh,  ktc,  To  Wife  During  Widowhood. 

I  give  and  bequeath  to  my  wife  during  her  life, 
and  so  long  as  she  shall  remain  a  widow,  the  use 
of  all  (state  7uhat).  And  after  her  decease  or  re- 
marriagp,  I  give  and  bequeath  the  same  to  (name) 
absolutely  if  he  {or  she)  should  be  living  at  the 
decease  or  remarriage  of  my  wife ;  but  if  he  {or 
she)  should  be  dead,  then  to  (several parties  may 
here  be  named  in  succession  ;  or,  in  case  the  tvill  has 
directed  the  testator's  property  to  be  sold,  and  the 
proceeds  held  in  trust,  say:  and  after  her  decease  or 
remarringe  I  direct  my  executors  and  trustees  to  sell  the 
same,  and  add  the  proceeds  to  the  trust-fund,  under 
this  my  will). 

Furniture,  Books,  Provisions,  etc.,  etc. 

I  give  and  bequeath  to  (state  who),  all  the  house- 
hold furniture,  books,  works  of  art,  and  other 
chattels  and  effects,  together  with  wines,  liquors, 
fuel,  housekeeping  provisions  and  other  consum- 
able stores,  which  shall  at  my  decease  be  in  or 

about  my  dwelling-house    at  ,  except  (state 

iv/tat). 

Good-will  of  Business,  etc. 

I  give  and  bequeath  the  good-will  and  benefit 

of  the  business  of ,  which  I  am  now  carrying 

on  at ,  and  also  all  my  capital  and  property 

which  shall  be  employed  therein  at  my  decease, 
and    also  the    leasehold    premises    situate   and 

being  No.  — -,  at ,  aforesaid,  wherein  the 

said  business  is  now  being  carried  on,  for  all  my 
term  and  interest  therein,  unto  my  ,  abso- 
lutely. 

Infant's  Legacy. 

I  bequeath  to  I.  I. ,  of ,  the  sum  of dol- 
lars: and  if  the  said  I.  I.  shall  be  under  twenty- 
one  years  when  the  same  legacy  shall  be  payable 
I  direct  the  same  legacy  to  be  paid  to  his  father, 
F.  L,  of,  etc.,  to  be  managed  by  him  at  his  dis- 
cretion, for  the  benefit  of  his  said  son,  till  he 
shall  attain  twenty-one  years  ;  in  such  case  the 
receipt  of  the  said  F.  I.  to  be  an  effectual  dis- 
charge for  the  same  legacy. 

Jewelry,  Plate,  and  Household  Effects,  Dotiing 
Widowhood. 

I  give  and  confirm  to  my  dear  wife  all  the 
jewels,  trinkets,  and  personal  ornaments  worn 
or  used  by  her  during  my  lifetime;  and  I  also 
give  to  her  all  my  wines,  liquors,  and  other  con- 
sumable stores,  and  all  my  horses  and  carriage% 
for  her  absolute  use  and  benefit. 

I  give  all  my  plate  and  plated  articles,  books, 
pictures  and  prints  unto  my  said  wife,  to  use  and 
erjoy  the  same  during  her  life,  if  she  shall  so 
long  continue  my  widow ;  and  from  and  after 
her  decease  or  second  marriage  (whichever  shall 
first  happen),  to  such  son  of  me  as  shall  first  attain 
the  age  of  twenty-one  years. 

I  give  my  leasehold  dwelling-house,  being  No. 

,  etc.  ' dacrihing  il  ,  and  all  my  furniture  and 

household  effects  being  in  or  about  or  appropri- 
ated or  belonging  to  the  said  dwelling-house, 
other  than  and  not  being  plate  or  plated  articles, 
books,  pictures,  or  prints,  unto  my  said  wife,  to 
occupy  the  said  dwelling-house,  and  to  use  and 
enjoy  the  said  furniture  and  household  effects 
during  her  life,  if  she  shall  so  long  continue  my 
widow,  she  paying  the  ground-rent,  and  all  taxes 
and  outgoings  payable  in  respect  of  the  said 
dwelling-house,  and  observing  and  performinp 
the  covenants  contained  in  the  lease  under  which 
the  same  is  or  at  my  decease  shall  be  held. 

And  I  declare  that  from  and  after  the  decease 
or  second  marriage  of  my  said  wife  (whicliev,  i 
shall  first  happen'*  the  said  dwelling-house,  furni- 
ture, and  household  effects  shall  sink  into  and 
form  part  of  my  residuary  estate. 

Payment  op  Legacies. 
I  direct  that  the  legacies  hereinbefore  given  to 
(naming  the  legatees)  shall  be  paid  in  priority  to 
any  other  legacy  given  by  my  will. 

Payment  of  Legacies  Free  F^om  Duty. 
I  direct  that  all  legacies  given  by  my  said  ^vill, 
or  any  codicil  thereto,  shall  be  paid  free  from 
legacy  duty  or  tax, 


CONVEYANCES. 


393 


Pkcukiarv  Lec.acv. 

I  bequeath  to  (name  the  Irgatfts)  the  aum  of 

collars  (to  be  paid  to  him,  or  ner,  within after  my 

death). 

Another. 

I  give  the  following  legacies  (thnt  is  to  say) : 

To  my  nephew,  N.  W., dollars,  to  be  paid 

to  him  at  his  age  of  twenty-one  ; 

To  N.  E. dollars  ;  to  my  niece,  N.  C, 

dollars,  at  and  when  she  shall  arrive  at  her  age 
of  twenty-one,  or  be  married  ;  to  my  nephew,  N. 

U., dollars,  at  his  age  of  twenty-one,  ^ith 

interest  in  the  mean  time  ; 

UntoC.  L.  andD.  N.,  children  of  m^  niece,  N.  S., 

dollars  each  ;  all  the  said  legacies  to  be  paid 

to  the  respective  legatees  within  twelve  months 
after  my  decease  (save  ami  except  those  given  to  my 
s.iid  wife,  my  said  trustees  and  executors,  and  my  ser- 
v:(nts,  which  are  to  be  puid  immediately  after  my 
death). 

I  give  unto  the  said  D.  R.,  the  daughter  of , 

the  sum  of on  the  day  of  her  marriage ; 

I  give  after  her  decease  the  said  sum  of 

dollars: 

Unto  such  child  or  children  of  the  said  D.  R.  as 
shall  attain  the  age  of  twenty-one  years,  to  be 
divided  among  them  (if  more  than  one)  in  equal 
shares,  and  if  but  one,  the  whole  to  go  to  such 
one  child  as  shall  attain  the  said  age.  The  por- 
tion or  portions  of  such  of  them  as  may  attain 
the  said  age  in  the  lifetime  of  the  said  O.  R.  to  be 
a  vested  interest  or  vested  interests,  though  not 
payable  till  after  her  death,  and  the  interest  of 
the  presumptive  portions  of  such  of  her  children 
as  may  be  under  the  said  age  at  the  time  of  her 
death,  or  so  much  thereof  as  shall  be  thought 
necessary,  to  be  applied  for  or  towards  the  main- 
tenance and  education  of  such  infant  child  or 
children,  until  he,  she,  or  they  shall  attain  the 
said  age ,  and  the  surplus  dividends  or  interest, 
which  may  not  be  applied  for  that  purpose,  to 
accumulate  and  go  along  with  the  original  share 
or  shares ;  or  in  case  there  shall  be  no  such  chil- 
dren ^vho  shall  attain  the  said  age,  such  accumu- 
lations to  fall  together  with  the  principal  sum 
into  my  residuary  personal  estate. 

I  give  unto  D.  W.,  daughter  of  my  nephew,  N. 

W., dollars,  but  the  same  not  to  be  vested  in, 

or  paid  to  her  till  she  shall  attain  the  age  of 
twenty-one  years,  and  not  to  bear  interest  in  the 
mean  time. 

I  give  after  the  decease  of  R.  S.  unto  such 
child  or  children  of  him,  the  said  R.  S.,  born 
in  his  lifetime  or  after  his  decease,  as  shall  at- 
tain the  age  of   twenty-one  years,  dollars, 

the  same  to  be  divided  among  them,  if  more  than 
one,  in  equal  shares,  and  if  but  one,  the  whole  to 
go  to  such  one  child  as  shall  attain  the  said  age, 
and  not  to  bear  interest ;  save  that,  in  case  of  the 
death  of  the  said  R.  S.,  having  a  child  or  children 
under  the  age  of  twenty-one  years,  my  will  is, 
that  my  said  trustees  or  trustee  for  the  time 
being  shall  and  may  pay  and  apply  any  sum  not 

exceeding  the  sum  of dollars  per  annum,  by 

equal  quarterly  payments,  for  and  towards  the 
maintenance  and  education  of  such  infant  child 
or  children,  until  he,  she,  or  they  shall  attain  the 
age  of  twenty-one  years.  And  I  will  that  the 
portions  of  such  children  of  the  said  R.  S.  as 
shall  attain  the  said  age  of  twenty-one  years  in 
her  lifetime,  shall  be  vested  interests,  though  not 
payable  till  after  his  death. 

Another — To  a  Makried  Woman. 

I  bequeath  to  W.,  wife  of  C.  D.,  the  sum  of 

dollars.     Said  sum  shall  be  for  her  sole  and 

separate  use  and  benefit,  and  that  her  receipt, 
notwithstanding  her  present  or  any  future  mar- 
riage, shall  be  a  valid  and  effectual  discharge  of 
the  same. 

Residue  op  Estate. 

And  all  the  rest,  residue,  and  remainder  of 
my  estate  and  effects,  whatsoever  and  whereso- 
ever, and  of  what  nature  and  kind  soever,  which 
at  the  time  of  my  decease  I,  or  any  person  or 
persons  in  trust  for  me,  am,  or  are  possessed 
of,  or  entitled  unto,  and  not  hereinbefore  dis- 
posed of,  I  give,  devise,  and  bequeath  unto  the 
•atd  A.  6.  aocl  Q.  D.,  th«ir  beirs,  executors,  ad- 


ministrators, and  assigns,  according  to  the  na- 
ture and  quality  thereof  respectively,  to  and  for 
their  o^vn  separate  use  and  benefit. 

Shakr  Under  Another  Will. 

And  whereas,  under  the  will  of  D.  D.,  I  am  en- 
titled to  a share  in  his  residuary  personal  es- 
tate, I  bequeath  the  said  share  to  L.  £. 
Shilling  to  Son. 

Whereas,  my  eldest  son,  S.  B.,  has  highly  of- 
fended and  disobeyed  me,  I  therefore  give  and 
bequeath  unto  my  said  son,  S.  B.,one  shilling, 
and  no  more. 

Stock — For  Si;pport  of  Wife  and  Children. 

I  give  and  bequeath  the  interest  and  income  of. 

dollars, per  cent,  loan  of ,  to  E.  X. 

and  T.  R.,  their  executors  and  administrators, 
for  the  separate  use  of  my  niece,  N.  P.,  wife  of 
H.  P.,  so  and  upon  this  express  trust  and  confi- 
dence, that  they,  the  said  trustees,  do  and  shall 
receive  the  interest  and  income  to  arise  there- 
from, from  and  after  the  day  of  my  decease,  and 
apply  the  same  to  and  for  the  maintenance  and 
support  of  the  said  T.  R.,  and  to  the  maintenance, 
support,  and  education  of  her  children,  born  and 
to  be  born. 

And  if  the  said  stock  shall  be  redeemed  or  paid 
off,  then  my  said  trustees  shall  reinvest  the  pro- 
ceeds in  such  other  stocks  as  they  shall  think 
best,  in  their  names  in  trust,  and  receive  and  ap- 
ply the  interest  and  income  thence  to  arise  to  the 
like  uses  and  purposes  aforesaid,  and  so  on  as 
often  as  any  stock  held  or  to  be  held  under 
this  trust  shall  be  paid  off,  and  after  the  death 
of  the  said  N.  P.,  then  in  trust  to  pay  over  and 
divide  the  principal  and  all  unapplied  interest  to 
and  amongst  all  and  every  her  children,  born  and 
to  be  born,  that  shall  be  alive  at  the  time  of  her 
death,  in  equal  parts,  and  if  either  of  her  children, 
born  or  to  be  born,  shall  be  then  dead,  leaving  is- 
sue, then  such  issue  shall  take  in  equal  parts  the 
share  that  his,  her,  or  their  parent  would  have 
taken  if  then  living. 

Trust  for  Unincorporated  Society. 

I  give  and  bequeath  to  A.  B.  and  C.  D.,  and  to 

their  successors  forever,  the  sum  of dollars, 

in  trust,  for  the  benefit  of  such  undergraduate 
students  of   the    collegiate   department    of   the 

University  of ,  as  shall  be,  or  shall  from  time 

to  time  become,  members  of  a  literary  association 
or  society  now  organized  among  said  students, 

and  known  as  the Society,  of  which  society 

I  am  a  graduate  member,  to  be  applied  by  the 
said  trustees  to  educational  purposes  for  their 
benefit,  in  manner  following  (stuting  the  appli- 
cation). 

Devises  of  Real  Property. 

See  definition  of  this  term  in  the  text  above. 

Dower — Devise  in  Lieu  op,  etc. 

I  give  and  devise  unto  my  beloved  wife,  V^.  B., 
all  that,  my  lands  or  tenement  and  parcels  of 
ground,  situate  ( giving  the  teitator' s  precise  ivords, 
etc.),  together  with  the  appurtenances,  to  hold  to 
her,  my  said  beloved  wife,  W.  B.,  and  her  as- 
signs, for  and  during  all  the  term  of  her  natural 
life,  she  paying  the  taxes  thereof  and  keeping  the 
buildings  in  tenantable  repair. 

And  I  do,  moreover,  give  to  my  said  wife,  to  her 

absolute  use,  the  sum  of dollars,  lawful  money 

of  the  United  States,  to  be  paid  to  her  in  three 
months  next  after  my  decease. 

And  it  is  my  will  and  meaning,  that  the  provi- 
sion hereinbefore  made  for  my  said  wife,  in  man- 
ner and  form  as  aforesaid,  shall  be  and  shall  be 
deemed  adjudged  and  taken  to  be  in  lieu  and  bar 
of  her  dower  or  thirds  or  other  portion  of  and  in 
all  my  estate. 

Devise  to  Executors  in  Trust — With   Power  to 
Sell,  etc. 

I  give  and  devise  all  my  real  and  personal  es- 
tate, of  what  nature  or  kind  soever,  to  E.  X.  and 
T.  R.,  the  executors  of  this,  my  last  will  and  tes- 
tament, hereinafter  nominated  and  appointed,  in 
trust,  for  the  payment  of  my  just  det3ts  and  the 
legacies  above  specified,  with  po>ver  to  sell  and 
dispose  of  the  same,  at  public  or  private  sale,  at 
such  time  or  times,  and  upon  such  terms,  and  in 
»uch  manner  as  to  thena  shall  seero  meet.    Pro- 


394 


CONVEYANCES. 


vided,  however,  that  no  part  of  my  real  estate  as 
aforesaid  shall  be  sold  at  public  auction   until 

after  the  expiration  of years  from  the  time 

of  my  decease. 

Friend — Dbvisk  to. 

In  consideration  of  the  love  and  friendship 
%vhich  I  have  and  bear  for  and  towards  him,  the 
said  E.  X.,and  also  in  consideration  of  the  many 
faithful  services  he  has  for  many  years  last  past 
done  and  performed  for  me  in  and  about  my 
affairs,  and  likewise  in  recompense  for  the  great 
care  and  pains  he  may  be  at  and  put  unto  in  the 
faithful  execution  of  this  my  last  will  and  testa- 
ment, I  give  and  devise  unto  him,  the  said  E.  X., 
and  his  heirs,  all  the  rest,  residue,  and  remainder 
•f  my  real  and  personal  estates  whatsoever, 
goods  and  chattels,  lands,  tenements,  and  heredi- 
taments, both  in  possession  and  in  reversion,  that 
I  shall  be  possessed  of,  or  any  way  entitled  unto, 
at  the  time  of  my  decease  (after  all  my  debts  and 
legacies  are  first  paid  and  satisfied  thereout,  as  afore- 
said), to  hold  and  enjoy  the  same  to  his  own 
proper  use  and  behoof,  and  to  his  heirs  and  as- 
signs, forever. 

Grandchildren — Devise. 

I  give  and  devise  unto  my  grandchildren,  A.  B., 
C.  D.,  the  children  of  my  daughter,  D.,  and  such 
other  child  or  children  of  my  said  daughter,  as 
maybe  born  of  her  in  lawful  wedlock,  all  my, 
etc.,  together  with  all  my  land,  etc.,  and  all  the 
buildings  thereon,  etc.,  to  hold  the  same  to  them 
my  aforementioned  grandchildren,  the  children 
of  my  aforesaid  daughter,  D.,  and  their  heirs  and 
assigns,  forever,  as  tenants  in  common  and  not 
as  joint  tenants;  and  I  appoint  my  son,  S.  B., 
and  his  said  wife,  and  the  survivor  of  them,  to 
be  my  trustees  of  the  said  estate,  hereby  enj- 
powering  them  and  the  survivor  of  them,  imme- 
diately after  my  decease,  to  enter  upon  and  man- 
age the  same  to  the  best  advantage  of  their  said 
children  during  the  life  of  my  said  son  and 
daughter,  or  the  survivor  of  them. 

And  in  order  to  preserve  that  dependence  which 
children  ever  ought  to  have  upon  their  parents, 
I  do  further  order  that  my  said  son  and  daughter, 
or  the  survivor  of  them,  shall  not  be  compelled 
to  account  to  their  said  children  for  the  profits 
of  said  estate  during  the  lives  of  my  said  son  and 
daughter;  but  said  trustees  shall  account  to  their 
children,  or  to  such  guardian  as  shall  be  ap- 
pointed to  them,  at  such  time  as  they  the  said 
trustees  shall  think  proper.  And  if  either  of  their 
said  children  shall  dispute  the  account  so  by  their 
said  parents  made,  then  I  give  and  devise  such 
part  of  said  child's  estate  to  my  said  daughter 
and  her  heirs  forever,  together  with  all  the  rents, 
issues,  and  prohts  that  may  have  been  made 
therefrom. 

Houses  and  Lands,  etc. 

I  give  and  devise  all  my  houses  or  tene- 
ments,  lands    and    hereditaments,  situate    and 

being  at ,  in  the  township  of ,  in  the  said 

county  of ,  which  I  purchased  of  G.  R.,  unto 

and  to  the  use  of  my  son-in-law,  S.  L.,  the  elder, 
his  heirs  and  assigns  forever. 

Houses  and  Lands,  to  go  With  Other  Lands,  etc. 

And  I  give  and  devise  all  the  lands,  tenements, 
and   hereditaments,  lying  and   being   at  or  near 

,  in  the  county  of ,  which  I  purchased  of 

G.  R.,  and  the  devisees  in  the  last  will  and  testa- 
ment of  D.  D.,  deceased,  with  the  appurtenances, 
to  such  and  the  same  person  and  persons,  and 
for  such  and  the  same  estate  and  estates,  as  the 
tenements,   farm,  and   lands,  commonly    called 

farm,  situate,  lying  and  being,  at  or  near , 

aforesaid,  which  belonged  to  my  late  uncle,  U. 
D.,  deceased,  are  by  his  v/ill  given,  devised,  di- 
rected, limited,  or  appointed. 

To  the  end  and  intent  that  the  said  lands  and 
hereditaments  so  purchased  by  me  as  aforesaid 
may  go  along  with  said  messuage,  farm,  and 
lands,  called  the  farm,  and  be  held  and  en- 
joyed therewith,  by  such  and  the  same  person 
and  persons,  for  such  and  the  same  estate  and 
estates,  as  the  said  messuage,  farm,  and  lands, 

called farm,  are  by  my  said  late  uncle's  will 

given,  devised,  directed,  limited,  or  appointed. 


Lapse  op  Devise,  etc. — Provision  to  Prevent. 

Provided  always,  and  I  do  hereby  direct,  that 
if  any  of  the  devisees  or  legatees  in  this,  my  will, 
named  shall  die  before  me,  then  the  said  devises 
and  bequests  shall  not  lapse,  but  in  the  case  of 
real  estate  such  person  and  persons  as  shall  be 
the  heirs  of  the  devisee  shall  take  as  the  devisee 
would  have  taken  if  such  devisee  had  survived 
and  outlived  me;  and  in  case  of  a  bequest  of  per- 
sonal estate,  I  will  and  direct  that  the  same  shah 
pass  and  go  to  the  children  of  the  legatee,  and  for 
want  of  a  child  or  children  of  the  legatee,  then 
to  the  next  akin  of  such  legatee  in  the  same  man- 
ner that  such  legatee  vkrould  have  taken  if  such 
legatee  had  survived  and  outlived  me. 

Dkvise  for  Life  to  One  Person,  and  Reversion 
TO  Another. 
I  give  and  devise  all  my  real  sctate,  of  what  na- 
ture or  kind  soever,  to  my  wife,  W.  B.  {or  lo  my 
friend,  F.  F.),  to  be  used  and  enjoyed  by  her  lo>- 
him),  during  the  term  of  her  (or  his)  natural  life  ; 
and  from  and  immediately  after  her  (or  his)  de- 
cease, I  give  and  devise  the  same  to  my  friend,  F. 
D.,  his  heirs  and  assigns,  forever. 

Residue  of  Estate — Ufon  Trust,  etc. 

I  give  all  the  rest  and  residue  of  my  personal 
estate,  which  shall  remain  after  payment  of  my 

debts  and  funeral  expenses,  unto  the  said and 

,  their  executors,  etc.,  upon  and  for  the  trusts, 

etc.,  hereinafter  mentioned  (that  is  to  say)  ; 

Upon  trust  that  they,  the  said and ,  or 

the  survivor,  etc.,  do  and  shall,  as  soon  after  my 
decease  as  conveniently  may  be,  with  the  con- 
sent and  approbation  of  my  said  daughter  during 
her  life,  and  after  her  death,  then  of  the  proper 
authority  of  the  said  trustee  or  trustees  for  the 
time  being,  lay  out  and  invest  all  the  said  rest  and 
residue  of  my  personal  estate  in  the  purchase  of 
lands  and  tenements  situate,  lying,  and  being  in 

,  and  convey  and  settle  the  said  lands  and 

tenements,  so  to  be  purchased  as  aforesaid,  or 
cause  and  procure  the  same  to  be  conveyed  and 
settled,  to  such  uses,  and  for  such  estates,  and 
with  and  subject  to  such  powers  and  provisos,  as 
are  hereinbefore  limited,  created,  and  expressed, 
of  and  concerning  the  said  messuages,  etc.,  which 
are  situate,  lying,  and  being  in  the  parish  of  A. 
aforesaid  (other  than  and  except  the  estates  for  life 
hereinbefore  given,  or  limited  to  my  said  wife  and  son 
successively,  and  the  aforesaid  term  of  ninety-nine  years, 
and  the  trusts  thereof),  or  as  near  thereto  as  the 
death  of  persons,  and  other  circumstances,  will 
then  permit. 

And,  in  the  meantime,  and  until  the  said  rest 
and  residue  of  my  personal  estate  shall  be  laid 
out  and  invested  in  such  purchase  or  purchases 
as  aforesaid,  do,  and  shall  from  time  to  time,  in- 
vest and  lay  out  the  same,  or  such  part  or  parts 
thereof  as  he  or  they  shall  think  fit,  in  the  public 
stocks  or  funds,  or  on  real  securities  at  interest, 
etc. 

And  my  will  is,  and  I  do  hereby  direct,  that  all 
the  interest,  dividends,  and  annual  produce  of  the 
said  rest  and  residue  of  my  personal  estate,  and 
of  the  stocks,  funds,  and  securities,  wherein  or 
upon  which  the  same  or  any  part  thereof  is  or 
shall  be  invested  or  placed,  shall  belong  and  be 
paid  and  payable  to  such  person  or  persons  as 
would,  for  the  time  being,  be  entitled  to  the  rents 
and  profits  of  the  lands  and  tenements  so  to  be 
purchased  as  aforesaid,  in  case  the  same  were 
actually  purchased  and  settled  as  hereinbefore  is 
directed. 

School  or  College. 

I  give,  etc.,  unto  the  said  M.  A.,  and  to  his 
heirs  and  assigns  forever,  all  that,  etc.  Upon 
this  special  trust  and  confidence,  nevertheless, 
that  he,  the  said  M.  A.,  and  his  heirs,  shall,  from 
time  to  time,  and  at  all  times  hereafter,  permit 

and  suffer  the  directors  {or  trustees)  of school 

(or  college),  etc.,  for  the  time  being,  and  their  suc- 
cessors forever,  to  receive  and  take  the  rents,  is- 
sues, and  profits  thereof,  which  I  direct  and  ap- 
point, shall,  from  time  to  time,  and  at  all  times 
hereafter,  be  paid  and  allowed  for  and  towards 
the  maintenance  and  education  of  a  poor  scholar 
Qf  the  said  schoQl  {or  college),  for  and  during  and 


CONVEYANCES. 


395 


until  Buch  scholar  shall  be  Bachelor  of  Arts,  or 
elected  Fellow  of  the  house  ;  and  then  to  another 
poor  scholar  to  be  elected  and  chosen,  which 
scholar  shall,  from  time  to  time,  be  nominated, 
elected,  and  chosen  by  the  directors  (or  trustcesj 
uf  the  said  college. 

Devise  to  Tri'steks,  During  a  Life,  or  Livks. 

I  give,  bequeath,  and  devise  all  my  real  and  per- 
sonal estate,  of  what  nature  or  kind  soever,  to  E. 
X.  and  T.  R.,  the  executors  of  this,  my  last  will 
and  testament,  hereinafter  nominated  and  ap- 
pointed, in  trust,  for  the  payment  of  my  just 
debts,  and  the  legacies  and  charges  upon  the  said 
estate  hereinafter  specified,  to  be  held  and  pos- 
sessed by  them,  for  the  purposes  aforesaid,  for  and 
during  the  natural  life  of  F.  M.,  of  the  town  of 

— ,  and  State  of ,  and  for  and   during  the 

natural  life  of  S.  M.,  infant  son  of  the  said  F.  M. ; 
and  after  their  decease,  and  the  decease  of  each 
of  them, 

I  give,  bequeath,  and  devise  my  said  estate  to 
my  son,  S.  B.,  his  heirs  and  assigns:  And  I  do 
hereby  order  and  direct,  that  during  the  continu- 
ance of  the  said  trust  estate,  as  aforesaid,  there 
shall  be  annually  paid  out  of  the  net  income  and 

profits  of  the  said  estate,  the  sum  of to  my 

wife,  W.   B.,  in   lieu  of  all   dower  or  right   of 

dower  in  and  to  my  said  estate;  the  sum  of 

dollars  to  my  son,  S.  B.  ;  and  the  sum  of dol- 
lars to  my  daughter,  D.  B.  ;  and  that  the  rest,  resi- 
due, and  remainder  of  the  said  net  income  and 
profits  shall  be  divided  equally  between  my  said 
executors,  in  lieu  of  compensation  for  their  ser- 
vices in  the  execution  of  the  said  trust. 

CODICII.S  TO  WRITTEX  WII.I.S. 

See  Various  Clauses,  etc.,  etc.,  above. 

Codicil  to  Will— General  Form. 

I, ,  of ,  a ,  do  make  this,  my  codicil, 

hereby  confirming  my  last  will,  made  on  the 

day  of ,  and  all  my  former  codicils  {if  there  be 

any\,^o  far  as  this  codicil  is  consistent  therewith  ; 
and  do  hereby  {itale  what). 

Codicil  to  Will— General  Form. 

Additioital  Legacies  Given. 

■Whereas  I,  A.  B.,  of ,  have  made  and  duly 

executed  my  last  will  and  testament,  in  writing, 
bearing  date,  etc.  Now,  I  do  hereby  declare  this 
present  writing  to  be  a  codicil  to  my  said  will, 
and  direct  the  same  to  be  annexed  thereto  and 
taken  as  part  thereof; 

And  I  do  hereby  give,  bequeath,  etc. 

In  witness,  etc. 

Codicil  to  Will— General  Form. 

Whereas  I,  A.  B. ,  of ,  have  made,  published, 

and  declared  my  last  will  and  testament,  in  writ- 
ing, dated,  etc. 

Now  I,  the  said  A.  B.,  do  by  this  present  codi- 
cil, to  my  last  will  and  testament  annexed,  con- 
firnn  and  ratify  my  said  last  will  and  testament, 
and  every  clause,  bequest,  and  devise  therein  con- 
tained, etc. 

Codicil  to  Will— General  Form. 

I,  A.  B.,  of ,  having  made  my  last  will  and 

testament,  bearing  date  the  day  of ,  do 

now  make  this  codicil,  to  be  taken  as  a  part  of 
the  same  : 

J'irU.  I  do  hereby  ratify  and  confirm  said  will 
in  every  respect,  except  so  far  as  any  part  of  it  is 
inconsistent  with  this  codicil. 

Second .  'Ex.c  (adding  ne-.u  provisions;  revoking 
appointment  of  executor  ;  substituting  another  execu- 
tor /or  executor  deceased;  appointing  additional  ex- 
ecutor ;  making  additional  bequests,  etc.,  etc.) 

A.  B. 

In  witness  whereof,  etc.  {as  in  form  of  1X1111, 
above). 

Codicil  to  Will— General  Form. 

I,  A.  B.,  the  within-named  testator,  do  hereby 
make  and  publish  this  codicil,  to  be  added  to  my 
last  will  and  testament  in  manner  following,  to 
wit ; 

I  give  and  bequeath,  etc. 

And  whereas,  in  my  said  will,  I  have  given  and 
bequeathed  unto  my  son,S,  (who  is  since  deceasud), 
the  sum  of  oae  hundred  dollars,  to  be  paid  to  him 


six  months  after  my  decease  ;  I  do  hereby  declare 
that  my  will  is,  that  the  same  be  paid  unto  my 
daughter,  E.,  immediately  after  my  decease. 

And  lastly,  it  is  my  will  and  desire,  that  this, 
my  present  codicil,  be  annexed  to  and  made  a 
part  of  my  last  will  and  testament  aforesaid. 

In  witness,  etc. 

Codicil  to  Will- General  Form. 

This  is  a  codicil,  to  be  added  to  and  taken  as 
part  of  the  last  will  and  testament  of  me,  A.  B., 

which  bears  date  the  day  of ,  whereby 

I  do  revoke  the  devise  in  my  said  will  contained, 
to  my  son,  S.,  of  all  that  farm,  situated,  etc.,  and 
containing  one  hundred  and  fifty  acres,  and  do 
give  and  devise  the  same  to  my  daughter,  D.,  her 
heirs  and  assigns  forever. 

I  give  and  bequeath  to  my  said  son,  S.,  in  lieu 
of  the  said  farm  the  sum  of  four  thousand  dol- 
lars ;  and  do  hereby  ratify  and  confirm  my  said 
will  in  all  other  respects. 

In  witness  whereof,  I  have  hereunto  set  my 

hand  and  seal,  this day  of ,  A.  D. . 

A.  B. 

Signed,  sealed,  published  and  declared  by  the 
said  A.  B.  as  and  for  a  codicil  to  his  last  will  and 
testament,  in  the  presence  of  us,  who  in  his 
presence,  and  in  the  presence  of  each  other,  have, 
at  his  request,  subscribed  our  names  as  witnesses 
thereto.  W.  T. 

N.  S. 
Codicil  to  Will— General  Form. 
Appointing  a  Trustee  and  Executor  in  the  Place  of  a 

./'>eci'ased   Trustee  and  Executor  Appointed  by  the 

Testator's  Will. 

Codicil  to  the  last  will  and  testament  of  me,  A. 
B.,  of ,  which  bears  date  the day  of : 

Whereas,  by  my  said  will  I  have  appointed  T. 
X.  to  be  one  of  the  trustees  and  executors  there- 
of (and  also  one  of  the  guardians  of  my  infant  children 
after  the  decease  of  my  wife) : 

And  whereas  the  said  T.  X.  having  lately  died, 
I  am  desirous  that  E.  F.,  of ,  shall  be  substi- 
tuted as  a  trustee  and  executor  of  my  said  will 
(and  a  guardian  of  my  infant  children)  in  the  place 
of  the  said  T.  X.,  deceased. 

I  do  hereby  declare  that  my  said  ^vill  shall  be 
construed  and  take  effect  as  if  the  name  of  the 
said  E.  F.  were  inserted  in  my  said  will  through* 
out  instead  of  the  name  of  the  said  T.  X. 

And  in  all  other  respects  I  do  confirm  my  said 
will. 

In  witness,  etc. 

Codicil  to  Will— General  Form. 

Revoking  Several  Legacies. 

■Whereas  I,  A.  B.,  of ,  have  by  my  last  wrill 

and  testament  in  writing,  duly  executed,  bearing 
date,  etc.,  given  and  bequeathed  to,  etc. 

Now,  I,  the  said  A.  B.,  being  desirous  of  alter- 
ing my  said  will  in  respect  to  the  said  legacies, 
do  therefore  make  this  present  writing,  ^vhich  I 
will  and  direct  to  be  annexed  as  a  codicil  to  my 
said  will,  and  taken  as  part  thereof;  and  I  do 
hereby  revoke  the  said  legacies  by  my  said  will 

given  to  ,  and  I  do  give  to  each  of  them  the 

said  ,  and ,  the  sum  of dollars  only; 

and  I  give  unto ,  etc.,  etc. 

And  I  do  ratify  and  confirm  my  said  will  in 
everything,  except  where  the  same  is  hereby  re- 
voked and  altered  as  aforesaid. 

In  witness,  etc. 

Codicil  to  Will— General  Form. 

Indorsed  Upon  the  Back  of  a  Will. 

I,  the  within-named  J.  H.,  of ,  do  make  this 

present  codicil,  which  I  order  and  direct  shall  be 
taken  as  and  for  part  of  my  within-^vritten  last 
will  and  testament,  and  which  will  as  to  all  and 
every  the  uses,  limitations,  trusts,  gifts,  condi- 
tions, legacies,  bequests,  directions,  and  appoint- 
ments, therein  mentioned,  devised,  given  and 
contained,  of  and  concerning  my  real  and  per- 
sonal estates  therein  mentioned,  I  do,  by  this  my 
codicil,  establish,  ratify,  and  confirm  (save  and  ex- 
cept such  devises,  uses,  dispositions,  and  bequests 
thLrein  mentioned,  as  are  by  me  hereinalter  revoked 
ai;i!  made  vuid). 

Whereas  since  the  making  of  my  said  will,  any 


39« 


CONVEYANCES. 


eldest  son,  S.,  is  dead,  havine  left  issue  a  third 
son,  named  O.,  now  living,  and  the  within-named 
N.  is  also  dead  ;  Now  I  hereby  give  and  devise 
all,  etc.,  unto  my  said  grandson,  Q.  S.,  etc. 

Codicil  to  Will— General  Form. 

RevocalioH. 

Whereas  I,  A.  B.,  of ,  have  made  my  last 

will  and  testament  in  writing,  bearing  data,  etc., 
and  have  thereby  made,  ordained,  constituted 
and  appointed,  my  brother-in-law,  B.  L.,  and  my 
cousin,  C.  N.,  executors  of  my  said  will: 

Now  I  do  by  this  my  writing  (which  I  declare  to 
be  a  codicil  to  my  said  will,  and  direct  to  be  taken  as 
part  thereof)  \vill  and  direct  that  my  said  brother- 
in-la^^r,  B.  L.,  shall  not  be  an  executor  of  my  said 
will,  and  do  hereby  revoke  my  appointment  of 
him  as  such  ;  but  that  in  his  room  and  stead  my 
cousin,  D.M.,  of ,  shall  be  one  of  the  execu- 
tors of  my  said  will,  jointly  and  together  v^ith 
my  said  cousin,  C.  N. 

And  I  do  hereby  accordingly  make,  ordain, 
co.^stitute,  and  appoint  them,  the  said  D.M.  and 
C.  N.,  joint  and  sole  executors  of  my  said  will, 
as  fully  and  effectually,  to  all  intents  and  pur- 
poses, and  in  all  respects,  as  if  they  only  and  no 
other  person  or  persons  had  been  by  me  origin- 
ally, in  and  by  my  said  will,  constituted  and  ap- 
pointed executors  thereof,  etc. 

In  witness  whereof,  I,  the  said  A.  B.,  have  this 

day  of hereunto  set  my  hand  (and  seal) 

unto  this,  v«^hich  I  declare  to  be  a  codicil,  and  de- 
sire the  same  added  to  my  last  will  and  testa- 
ment aforesaid. 

Signed,  etc. 

Codicil  to  TTill— General  Form. 
Ratification,  etc. 

This  is  a  codicil  to  be  added  to  the  last  will  and 

testament  of  me,  A.  B.,  of ,  which  will  bears 

date  on  or  about,  etc. 

First,  I  do  hereby  ratify  and  confirm  my  said 
will  in  all  respects,  save  so  far  as  any  part  there- 
ef  shall  be  revoked  or  altered  by  this  present 
codicil,  and  in  particular,  save  so  far  as  the  same 
relates  to  the  disposition  thereby  made  of  my 
residuary  personal  estate,  in  favor  of  my  eldest 
son,  S.,  as  to  which  particular  I  do  hereby  re- 
voke and  alter  my  said  will ; 

And  all  the  rest  and  residue  of  my  personal 
estate  and  effects,  by  my  said  will  given  and  be- 
queathed unto  my  said  son,  S.,  I  do  hereby  give 
and  bequeath  unto,  etc. 

And  I  give  and  bequeath  unto  my  brother,  B. 
B.,  the  sum  of,  etc.,  etc. 

And  I  do  hereby  revoke  all  former  and  other 
codicils  by  me  at  any  time  heretofore  made. 

In  witness  \vhereof,  to  this  present  writing, 
which  I  hereby  declare  to  be  a  codicil  to  my  last 
will  and  testament,  and  which  I  direct  to  be 
added  thereto,  and  to  be  taken  as  part  thereof,  I 

have  set  my  hand  and  seal  this day  of , 

in  the  year . 

Signed,  sealed,  published,  and  declared  by  the 
said  A.  B.,  as  and  for  a  codicil  to  his  last  will  and 
testament,  and  to  be  taken  as  part  thereof,  in  the 
presence  of  three  several  persons,  whose  names 
are  hereunder  subscribed  as  witnesses  to  the 
signing,  sealing,  and  publishing  the  same,  which 
said  three  persons  did  so  hereunder  subscribe 
their  names  at  the  request  and  in  the  presence 
of  the  said  A.  B.,  and  in  the  presence  of  each 
other.  W.  I. 

T.  N. 
E.  S. 

UNWRITTEJr.  TERBAL.,  OR  WrNCU- 
PATIVE  WI1.I.S. 

Unwritten  or  Verbal  Will— l^Iemoran- 
duni  Made  and  Sifirned  by  Witne*«Ne<4. 

1.  The  will  of  A.  B.,  of ,  made  and  declared 

by  him  on ,  in  the  presence  of  us,  who  have 

hereunto    subscribed    our   names    as    ^vitnesse8 

hereto,  "  My  will  is,"  etc.  {reciting-  the  very  words). 

Another. 

A.  B.,his  %vill  by  ^vord  of  mouth,  made  and  de- 
clared by  him,  on  the day  of ,  in  the  pres- 
ence of  us,  who  have  hereunto  subscribed  our 
names  as  witnesses  hereto  :  My  will  is  th£>t,  etc. 


Anotk4r. 
Memorandum:  That  on  the day  of ,  A. 

D. ,  A.  B.,  of,  etc.,  being  sick,  of  the  sickness 

whereof  he  died  on  the  same  day  (or  on  or  about 

the day  of following,  as  the  case  may  be),  at 

his  dwelling-house  in,  etc.  [or  at ,  where  he  had 

been  for  his  health  and  was  taken  suddenly  ill),  did 
make  and  declare  his  last  will  and  testament, 
nuncupative,  in  these  or  the  like  words  following, 
that  is  to  say  :  "  I  give,"  etc. 

These  w^ords,  or  to  the  like  effect,  the  said  A.  B. 
declared  in  the  presence  of  the  subscribers,  with 
intention  that  the  same  should  be  his  last  wilt 
and  testament,  whereof  he  desired  them,  or 
some  of  them,  to  bear  witness. 

Another. 

Nuncupative  >vill  of  A.  B.,  deceased  : 

On  the  day  of ,  A.  D. ,  A.  B.,  being 

in  the  extremity  in  his  last  sickness,  in  his  habi- 
tation or  dwelling,  situated  in street,  in , 

where  he  had  resided  for  more  than  ten  days  next 
before  the  making  of  his  will  (or  at  the  residence  or 

dwelling  of  A.  B.,  situated  in  street,  No. ,  in 

,  where  said  A.  B.  was  surprised  by  sickness,  being 

from  his  own  house  in ,  and  died  before  returning 

thereto  ;  or  on  board  the  ship ,  said  A.  B.  being  a 

mariner  at  sea  ;  or  at ,  said  A.  B.  being  a  soldier  in 

actual  military  service),  in  the  presence  of  the  sub- 
scribers, did  declare  his  last  will  and  testament 
in  the  following  words,  or  to  that  effect,  viz. : 

"  He  mentioned  that  he  had  about hundred 

dollars  in  the  Savings  Fund,  and  hun- 
dred dollars  in  the  hands  of  E.  F." 

He  then  said  that  "  I  want  E.  F.  to  act  as  trustee 
and  executor  and  put  it  out  at  interest  for  the  sole 
use  of  my  mother  during  her  life,  and,  after  her 
death,  to  go  to  her  children.  My  household  goods 
and  other  property  I  wish  to  be  left  in  my  mother's 
possession  for  her  sole  use." 

At  the  time  the  said  A.  B.  pronounced  the  fore- 
going will  he  was  of  sound  and  disposing  mind, 
memory,  and  understanding,  and  did  bid  us,  who 
were  present,  to  bear  witness  that  such  was  his 
will. 

Reduced  to  writing,  this day  of ,  A.  D. 

.  W.  T. 

N.  S. 

Unwritten  or  Terbal  Will— Affidavit 
of  W^ltiiesses. 

State      ,  county  of ,  ss. 

Personally  appeared  before  me,  the  undersigned, 
■W.  T.  and  N.  S.,  who,  being  duly  sworn  (or  af- 
firmed), according  to  law,  did  depose  and  say,  that 

they  were  present,  on  the day  of ,  at  the 

habitation  or   dwelling  of  A.  B.  (situated  in  

street,  in ,  or  otherwise ,  as  the  case  may  be),  in  the 

time  of  his  last  illness,  and  did  then  and  there 
hear  the  said  A.  B.  utter  what  is  contained  in  the 
above  writing  ;  that  he  did  bid  them  bear  wit- 
ness that  it  was  his  last  will ;  and  that  at  the  time 
of  so  doing  he  was  of  sound  mind,  memory,  and 
understanding,  to  the  best  of  their  knowledge 
and  belief. 

(  The  paragraph  following  should  be  omitted  in  the 
case  of  a  mariner  or.  soldier  or  person  dying  from. 
home): 

Also,  that  he  had  resided  for  more  than  ten 
days,  next  before  the  making  of  his  will,  at  the 
above  residence.  W.  T. 

N.  S. 

Sworn  {or  alBrined)  and  subscribed  before  me, 

this day  of . 

{Probate  officer's  signature  and  titU.) 

Convict.  See  Criminal  Law. 
Conviction.  See  Oiminal  Law. 
Convoy.  See  Maritime  Law. 
Co-Obligor.  See  Contracts.  ■ 
Cool  Blood.  See  Criminal  Law. 
Cooling'  Time.  See  Criminal  Law. 
«"oparcenary-  See  Estates. 
Coparceners.  See  Dkscbnt. 
Copartner.  See  Partnkhship. 
CopartneriUiip.  See  Partnexship. 
Copy.  See  Evidrncb. 
Copyhold.  See  Estatks. 
Copy  bolder.  See  Estatbs. 


COPYRIGHT. 


397 


€OPTftIGBT.  See  Assignmbmts;  Contracts, 

■TC. 

Copyright  is  the  sole  liberty  of  printing, 
reprinting,  publishing,  completing,  copying,  ex- 
ecuting, finishing,  and  vending  any  original 
book,  map,  chart,  dramatic  or  musical  compo- 
sition, engraving,  cut,  print,  photograph  or 
negative  thereof,  or  of  a  painting,  drawing, 
chromo,  statue,  statuary,  and  of  models  or  de- 
signs intended  to  be  perfected  as  works  of  the 
fine  arts,  upon  complying  with  the  provisions 
of  the  law  of  copyright ;  and  in  case  of  a  dra- 
matic composition  of  publicly  performing  or 
representing  it,  or  causing  it  to  be  performed  or 
represented  by  others.  Also,  the  right  to  drama- 
tize or  translate  one's  own  work.' 

Copyright  is  not  of  a  simple,  but  a  complex 
nature,  involving  two  conditions :  one  of  pub- 
lication, the  other  of  exclusion.'' 

Statutes  of  copyright  do  not  grant  monopo- 
lies ;  they  are  only  protective  legislation  against 
trespass  on  the  rights  of  authors.  Not  that 
writers  are  a  more  important  body  than  many 
others,  but  because  it  gives  the  State  more 
trouble  to  keep  thieves  oft  their  productions 
than  of  those  of  other  skilled  laborers,  and  also 
because  it  needs  superior  intelligence  to  see 
that  ideas  and  woven  words  can  be  made  prop- 
erty, and  that  they  must  be,  or  else  their  authors 
outlawed,  degraded,  and  starved,  and  the  com- 
munity suffer  in  the  end." 

In  order  to  acquire  a  valid  copyright  in  a 
work  it  is  necessary  that  it  should  be  original. 
If  any  part  of  the  composition  is  copied  or 
adopted  by  the  writer  from  a  prior  existing 
work,  of  course  the  title  fails  with  respect  to 
this,  as  the  writer  cannot  be  the  author  of  what 
he  has  adopted  from  another."!  The  law  does 
not  require  that  the  subject  of  a  book  should 
be  new,  but  that  the  method  of  treating  should 
have  some  degree  of  originality.  Copyright 
may  exist  in  a  novel  arrangement,  as  well  as  in 
recent  corrections  and  additions  to  an  old  work 
not  the  property  of  the  compiler." 

The  law  rests  upon  no  code  of  comparative  crit- 
icism. It  protects  alike  the  humblest  efforts  at 
instruction  or  amusement,  the  dull  productions 
of  plodding  mediocrity,  and  the  most  original 
and  imposing  displays  of  intellectual  power.' 
It  will  secure  to  every  person  the  property 
in  every  genuine  product  of  their  own  mental 
labor,  whether  that  product  take  the  form  of 
compilation,  abridgment,  new  arrangement,  or 
a  wholly  original  work,  if  indeed  there  can  be 
(iny  such  thing  as  a  wholly  original  work. 

The  law  will  be  liberally  construed  in  favor 
ibf  authors;  and,  leaving  their  comparative  mer- 
its to  be  settled  by  critics  at  the  tribunal  of  pub- 
lic opinion,  it  will  protect  .ind  encourage  their 
labors ;  the  fruits  of  their  literary  toil  are  secured 
to  them  by  the  highest  title,  in  order  that  they 

«-Laws  U.  S.  1870,  July  8,  Vol.  16,  p.  an,  Ch.  230,  2 
85;  R.  S.  1873-4,  Title  LX.,Ch.3,p.  965,  §4948;  14  M- 
&  W.  318.  b-3  DeG.  &  Sm.  674.  c-i  Morgan,  19.  d- 
Copinger  on  Copyright,  ao.  e-i  East.  358,  361 ;  3 
Swanst.  67a  ;  i  W.  Bl.  3JI,  331 ;  5  Ves.  24  ;  8  Id.  223,  n. 
215;  16  la.  269;  2  Beav.  6;  7C.  B.  4;  4  Bingh.  234;  a 
Sim.  &  Stu.  X ;  3  K.  &  J.  708 ;  3  Story,  768;  2  Blatdif. 


may  keep  open  the  springs  of  thought   and 
feed  the  intellectual  life  of  the  nation.* 

Abridgments.  Writers  of  abridgments 
have  in  general  been  favorably  regarded  by 
both  the  courts  of  law  and  equity .••  "Abridg- 
ments may  with  great  propriety  be  called  a  new 
book,  because  not  only  the  paper  and  print,  but 
the  invention,  learning,  and  judgment  of  the 
author  is  shown  in  them,  and  in  many  cases  are 
extremely  useful,  though  in  some  instances 
prejudicial,  by  mistaking  and  curtailing  the 
sense  of  the  author."  A  fair  abridgment  is 
always  entitled  to  protection.'  To  constitute  a 
true  and  proper  abridgment  of  a  work  the 
whole  must  be  preserved  in  its  sense,  and  then 
the  act  of  abridgment  is  an  act  of  the  under- 
standing, employed  in  copying  a  large  work 
into  a  smaller  compass,  and  rendering  it  less 
expensive  and  more  convenient,  both  to  the  time 
and  use  of  the  reader,  which  make  an  abridg- 
ment in  the  nature,  of  a  new  and  meritorious 
work.  An  abridgment,  when  the  understand- 
ing is  employed  in  retrenching  unnecessary  and 
uninteresting  circumstances,  which  rather 
deaden  the  narration,  is  not  an  act  of  plagiarism 
upon  the  original  work,  nor  against  any  prop- 
erty of  the  author  in  it,  but  an  allowable  and 
meritorious  work.i 

A  mere  selection  or  different  arrangement  of 
parts  of  the  original  work,  so  as  to  bring  it  into 
smaller  compass,  will  not  be  held  a  iona  Jide 
abridgment.  There  must  be  a  real,  substantial 
condensation  of  the  materials,  and  intellectual 
labor  and  judgment  bestowed  thereon,  and  not 
merely  the  facile  use  of  the  scissors,  or  extracts 
of  the  essential  parts  constituting  the  chief  value 
of  the  original  work.''  The  abridgment  must 
not  only  contain  the  arrangement  of  the  book 
abridged :  the  ideas  must  also  be  taken  from  its 
pages.  It  must  be  in  good  faith  an  abridgment, 
not  a  treatise  interlarded  with  citations.  To 
copy  certain  passages  from  a  book,  omitting 
others,  is  in  no  sense  a  just  abridgment ;  the 
judgment  is  not  exercised  in  condensing  the 
views  of  the  author  not  condensed.'  Between 
a  compilation  and  an  abridgment  there  is  a 
clear  distinction  :  a  compilation  consists  of 
selected  extracts  from  different  authors ;  an 
abridgment  is  a  condensation  of  the  views  of 
the  author.  The  former  cannot  be  extended  so 
as  to  convey  the  same  knowledge  as  the  origi- 
nal work;  the  latter  contains  an  epitome  of 
the  work  abridged,  and  consequently  con- 
veys substantially  the  same  knowledge.  The 
former  cannot  adopt  the  arrangement  of  th« 
works  cited ;  the  latter  must  adopt  the  arrange- 
ment of  the  work  abridged.  The  former  in- 
fringes the  copyright  if  the  matter  transcribed 
when  published  shall  impair  the  value  of  the 
original  work ;  a  fair  abridgment,  though  it 
may  injure  the  original,  is  lawful." 

46;  5  McLean,  32.  As  to  musical  coinposition.<t  s«e  I 
Law  R.  (6, 8).  4"  :  i  Y.  &  Col.  288.  f-5  Blatchf.  87.  jf- 
See  Id.  h-Butsee  II  W.  877;  1  H.  &  M.  747 ;  4  Mc. 
Lean,  308,  309  ;  Curtis  Copyright,  272,  273.  1-a  Atk. 
143.  J-Lofft.  775.  li-2  Story,  107.  I-4  &lcl.ean,  311. 
in-Id.  314 ;  see  2  Story,  100;  8  Jtir.  183;  4  £sp.  109; 
17  Ves.  426. 


398 


COPYRIGHT. 


Accessions  are  those  productions  and  com- 
positions of  a  kind  for  which  in  the  course  of 
a  literary  production  an  author  employs  others 
to  assist  him.  In  such  cases  the  product  of 
iheir  individual  labor  belongs  to  him  who  is 
ihe  author  and  proprietor  of  the  whole."  To 
constitute  a  bona  fide  accession  an  author  must 
!iy  his  own  intellectual  labor,  applied  to  the 
iinterials  of  his  composition,  produce  an  ar- 
rangement, combination,  or  performance  new 
in  himself." 

Accounts  between  authors  and  publishers.p 

Acquiescence.  Even  where  the  statutory 
requisites  to  copyright  have  been  duly  observed, 
the  conduct  of  the  proprietor  of  a  periodical 
may  be  of  such  a  nature  as  to  disentitle  him  to 
.aid  from  a  court  of  equity  by  means  of  inter- 
locutory injunction;  for  example,  if  one  lie 
idly  by  and  knowingly  allow  another  person  to 
incur  the  expense  of  bringing  out  a  work, 
which  is  an  infringement  of  his  strict  legal 
right.' 

Additions.  See  introduction  to  this  subject, 
pbove. 

Acts  of  Congress.  See  Assignment,  Con- 
struction, Infringements,  Librarian  ok 
Congress,  Remedies,  Requisites,  etc.,  etc., 
below. 

Additions.  Copyright  may  exist  in  a  novel 
arrangement  as  well  as  in  recent  corrections  and 
additions  to  an  old  work  not  the  property  of 
the  compiler.' 

Aliens.  Any  citizen  of  the  United  States, 
or  resident  therein,  is  entitled  to  copyright.* 

Amendment.  See  Name  and  Date,  be- 
low. 

Alterations,  by  a  publisher  who  is  pro- 
prietor of  a  work,  made  in  a  new  edition  under 
the  author's  name,  so  incorrect  as  to  be  injurious 
to  the  author's  reputation,  renders  the  publisher 
liable  in  an  action  for  damages.'  When,  how- 
ever, a  portion  of  a  work  is  written  to  be  pub- 
lished under  the  name  of  another,  the  author 
would  have  no  remedy  in  case  of  its  alteration 
or  variation." 

ASSIGNMENT  OF  COPYRIOHT. 

Sec.  4955.  Copyrights  shall  be  assign- 
able in  law  by  any  instrument  of  writing, 
and  such  assignment  shall  be  recorded  in  the 
office  of  the  librarian  of  Congress  within 
sixty  days  after  its  execution ;  in  default 
of  which  it  shall  be  void  as  against  any  subse- 
quent purchaser  or  mortgagee  for  a  valuable 
consideration,  without  notice. '^ 

Fees.  "  Sec.  4958.  The  Librarian  of 

Congress  shall  receive  from  the  persons 

11-Poth.  Prop.  170-175;  7  C.  B.  268;  29  L.  J.  20,  C. 
P.;  1   L.  T.  (N.  S.)  10;  9  Am.  L.  Reg.  33.     See  Code 


Napol.  566,  567.  0-2  Blatch.  46;  3  Story,  782;  1  Id. 
11;  2  Woodb.  &  M.  46.  p-See  31  Beav.  258;  2  Jur. 
;N.  S.)  348.    q-12  L.  T.  (N.  S.)  540;  II  Jur.  (N.  S.) 


540;  T3  \Vood,  804.  r-i  Kast,  358,  360,  361 ;  3  Swanst. 
672;  I  W.  Bl.  321,  331 ;  5  Ves.  24  ;  18  Id.  223,  n.:  8  Id. 
215 ;  16  Id.  269 ;  2  Beav.  6 ;  7  C.  B.  4  ;  2  Sim.  &  Stu. 
I  ;  3  K.  &  J.  708 ;  3  Story,  768 ;  2  Blatchf.  46 ;  5  McLean, 
12;  8  L.  Rep.  (C.  S.)4ii.  8-Laws  U.S.  1870,  July  8, 
VoL  16,  p.  212,  Ch.  230,  ^  85,  Rev.  1873-74,  Title  I.X., 
Ch.  3.  2  4048.  t-Scei  Slao.  &  R.  162 ;  5  Carr  &  P. 
sip;  II   Hare,   118;  11   Beav.  iia.     u-ii  Hare,  118; 


to  whom  the  services  designated  are  retl- 
dered,  the  following  fees  :* 

"  I.  For  recording  the  title  or  description  of 
any  copyright  book  or  other  article,  fifty  cents. 

"  2.  For  every  copy  under  seal  of  such  record 
actually  given  to  the  person  claiming  the  copy- 
right, or  his  assigns,  fifty  cents. 

"  3.  For  recording  and  certifymg  any  instru- 
ment of  writing  for  the  assignment  of  a  copy- 
right, one  dollar. 

"  4.  For  every  copy  of  an  assignment,  o<i9 
dollar. 

"All  fees  so  received  shall  be  paid  into  th 
treasury  of  the  United  States." 

Copyright  is  personal  property,  and  may  be 
assigned.  It  must,  however,  be  in  existence 
to  be  assigned  at  law."  An  execution  pur- 
chaser, however,  does  not  acquire  the  rights 
of  an  assignee  in  the  article  sold  on  execution; 
and  a  seizure  and  sale  on  execution  of  plates 
for  which  the  debtor  has  obtained  a  copyright 
does  not  transfer  the  copyright  to  the  pur- 
chaser; the  debtor  is  entitled,  without  reim- 
bursing the  purchaser  for  money  paid  on 
such  sale,  to  an  injunction  to  restrain  the  pur- 
chaser from  striking  off  and  selling  copies 
therefrom. y  The  assignees  under  a  commission 
in  bankruptcy  are  not  entitled  to  the  manu- 
scripts of  an  author,  although  the  copyright  of 
a  book  which  has  been  printed  and  published 
will  legally  pass  for  the  benefit  of  creditors,' 
and  the  price  paid  by  the  bookseller  is  as  com- 
pletely open  to  the  diligence  of  creditors  as  the 
price  of  another  commodity  or  merchandi.se. 
The  reason  assigned  for  this  distinction  is  that 
the  author's  right  of  withholding  the  publication 
continues  till  the  very  moment  his  book  is  ac- 
tually given  out  to  the  public ;  even  the  printer 
of  the  book  would  not  be  entitled  to  sell  it  for 
his  payment,  although  there  was  not  the  small- 
est doubt  that  he  has  a  complete  lien  over  it 
till  delivery,  to  prevent  the  author  or  his  credi- 
tors J"rom  taking  advantage  of  the  publication 
till  he  shall  have  been  paid.* 

The  assignment  of  a  copyright  in  general 
terms  will  be  referred  to  what  was  in  existence 
at  the  date  of  the  assignment,  and  not  to  any 
future  contingency.**  It  should  not  by  con- 
struction be  extended  beyond  the  first  term,  un- 
less it  seems  to  be  actually  meant  by  the  author 
to  be  transferred  forever,  and  including  any  fu- 
ture contingency.'  Where,  however,  it  is  clear 
that  the  author  intends  to  transfer  all  his  interest 
in  the  copyright,  as  well  as  his  right  in  the 
continuance  or  extension  of  the  term,  a  court 
of  equity  will  enforce  a  reformation  of  the  con 
tract  so  as  to  include  all  the  assignees'  interest  ** 

see  II  Beav.  112.  "v-Laws  U.  S.  1870,  July  8,  Vol.  16, 
Ch.  230,  \  89,  p.  213;  citing  8  Pet.  591 ;  18  How.  165; 
2  Woodb.  &  Al.;  42  Id.  497.  w-Laws  U.  S.  1870,  July 
8,  Vol.  16,  Ch.  230, 1  92,  p.  213,  Rev.  1873-74,  Title  LX., 
Ch.  3,  I  4958;  Laws  U.  S.  1874,  Tune  18,  Vol.  18,  Ch. 
30T,  2  2,  p.  79.  at -8  L.  J.  (N.  S.)  Ch.  216 ;  3  Jur.  217; 
9  Sim.  151.  y-2  Hilliard  Torts.  58  n.;  14  How.  528; 
17  Id.  447.  «-2  Bos.  &  P.  67;  see  4  Burr.  231T  ;  Ambl. 
695;  14  How.  528;  17  Id.  447;  4  B.  Men.  594,  596:  10 
Mod.  518.  «-i  Bell  Comm.  68;  Kerr  Inj.  186.  h-30 
Mo.  L.  Rep.  101.  c-2  Woodb.  &  M.  44.  d-S  Wend 
563 ;  3  Woodb.  &  M.  sio. 


COPYRIGHT. 


399 


The  assignment  of  an  interest  in  a  copyright 
must  be  in  writing,  though  an  agreement  to 
assign  may  be  by  parol ;  and  such  assignment 
ihoujjh  unrecorded  will  be  valid  as  between 
the  parties,  and  as  to  all  persons  not  claiming 
under  the  assignees.* 

An  assignment  of  the  copyright  of  a  work 
must  have  been  in  writing,  and  attested  by  two 
witnesses,  in  order  to  entitle  the  assignee  to 
maintain  an  action  for  pirating  it,"  for  the  stat- 
ute requires  two  witnesses  to  a  consent  to  pub- 
lication, and  it  is  naturally  inferred  that  an 
assignment  which  is  of  a  higher  nature  than 
a  mere  consent  must  have  at  least  the  same 
solemnity/ 

In  the  absence  of  a  special  contract,  the 
assignor  of  a  copyright  is  entitled  after  assign- 
ment to  continue  selling  such  stock  of  the  work 
as  remains  on  hand  at  the  date  of  the  assign- 
ment.* 

An  agreement  to  assign  will  be  treated  in 
equity  as  a  valid  a.ssignment,  upon  the  maxim 
that  equity  considers  done  that  which  ought  to 
have  been  done.' 

An  assignment  made  by  parol  may  be  valid 
if  registered  in  the  office  where  the  copyright 
was  entered,  and  certainly  so  if  afterwards 
acted  upon  by  the  parties.* 

An  author  or  proprietor  may  assign  a  dis- 
tinct portion  of  his  copyright.J 

See  Construction;  Infringements;  Li- 
brarian OF  Congress;  Remedies;  Requi- 
sites, ETC.,  ETC.,  below. 

ASSIGNMENT  FORMS. 

These  assignments    are  void  unless  recorded  in  the 
office  of  the  librarian  of  Congress  within  sixty  days 
after  their  execution. 
Copyrig^ht— AKSi^nment — Short  Forms. 

See  title  Assignments,  ante. 

Copyright  No.  ,  A.,  is  (hereby)  assigned  to 

C.  D.  A.  B. 

Dated .  

I  (hereby)  assign  copyright  No. ,  D.,  to  C. 

D..of .  A.  B. 

Dated .  

For  value  received  I  hereby  assign  copyright 

No. ,  C,  to  C.  D.,  of . 

Dated .  (Signed)    A.  B. 

For  a  consideration  of I  hereby  assign  unto 

C.  D.  one-half  of  the  undivided  interest  in  copy- 
right No. ,  F.,  for  a  term  of years. 

Dated .  {Signed)    A.  B. 

Copyrlglit—Asslg'ninent— General 
Form. 

For  the  consideration  hereinafter  mentioned,  I, 
the  undersigned  A.  B.,  hereby  sell,  assign,  trans- 
fer and  set  over  unto  C.  D.  all  my  title  and  inter- 
est in  and  rights  under  copyright  No. ,   E. 

{/or,  trive  title  or  description  of  copyright) 

In  consideration  of  which  said  C.  D.  shall  pay 
unto  {or  perform  for)  said  A.  B.  the  following  sums 

(or  the  following  things)  to  wit : {setting  forth  the 

amounts,  conditions,  terms,  and  places  ofpay>nent  or 
performance,  etc.  (Signed)    A.  B. 

Dated .  C.  D. 

Copyright— Assignment— General 
Form. 

For  a  consideration  of dollars,  the  receipt 

d-2  Morgan,  228,  257.  e-4  Campb.  8,  S.  C. ;  3  M.  & 
S.  7 ;    I  Jac.  &  W.  481 ;  2  B.  &  C.  861 ;  6  C.  B.  456 ;   12 

{ur.922;    18L.T.  (C.  P.)i4;    7  C.  B.  4;  4  Ho.  L.  Cas. 
15:  31  L.  J.  (Exch.)  80.     f-As  to  the  distinction  be- 


of  which  is  hereby  acknowledged  (<>r  for  value  rr- 
ceivccl;,  I  hereby  assign,  transfer,  and  set  over  tc 
C.  D.  all  my  title  and  interest  in  and  rights 
under   a  certain  copyright,  and  the  certificate 

thereof  bearing  date  the  day  of ,  the 

title  {or  description)  of  which  is  in  the  following 
words,  to  ^vit:  (copying from  the  certificate);  the 
right  whereof  I  claim  as  author  (or  proprietor). 

To  have  and  to  hold  the  same  unto  the  said  C. 
D.,  and  his  legal  representatives  forever. 

In  witness  whereof,  I  have  hereunto  set  my 
hand,  this day  of .  A.  B. 

Assig:nment — Commnnlcation  Enclo«- 
ins  ANMigrnment  to  lilbrarian  of  Con* 
grresM,  for  Recordlnir. 

Place ,  Date 

Librarian  of  Congress, 

Washington,  District  of  Columbia: 
Enclosed  please  find  an  instrument  of  writing 

for  the  assignment  of  copyright  No. C,  from 

A.  B.  (of ,  author  or  proprietor)  to  C.  D.  (of , 

publisher),  to  be  recorded  in  your  office  in  con- 
formity with  the  laws  of  the  United  States  re- 
specting copyrights. 

Find  also  [post  office  order  {or  draft)  No. ,  for] 

dollars,  fee  for  recording  and  certifying  said 

instrument.  Very  respectfully, 

C.  D. 
Assignment — €ertificat«   of  the  lilbra* 
rlan  of  Congrews  of  Recording. 
[l.  S.J  Library  of  Congress. 

■Washington, . 

The  within  assignment  of  copyright  is  this  day 

recorded  in  the  office  of  the  librarian  of  Congress, 

in  conformity  with  the  laws  of  the  United  States 

respecting  copyrights. 

Witness  my  hand  and  the  seal  of  said  office, 

this day  of ,  A.  D. . 

L.  C,  Librarian  of  Congress. 
Another. 
fi..  s.]  Library  of  Congress. 

Washington,  District  of  Columbia. 
An  (instrument  of  writing  for  the)  assignment  of 

copyright  No. C,  by  A.  B.,  of ,  to  C.  D., 

of ,  \was  recorded  in  book  {or  assignment  record 

No.) ,  folio ,  this day  of . 

L.  C. ,  Librarian  of  Congress. 
Another. 
.   [i,.  s.]  Library  of  Congress. 

Washington,  District  of  Columbia. 
The  within  (instrument  of  writing  for  the)  assign- 
ment of  copyright  No.  E.  was  recorded  in 

(book  ,  or)  assignment  record  No. ,  folio 

{or  page) ,  the day  of . 

Date .  L.  C,  Librarian  of  Congress. 

Arrangement.  See  introduction  to  this 
chapter,  and  Abridgments,  above. 

Articles.  In  order  to  give  the  proprietor 
of  an  encyclopaedia,  magazine,  periodical,  re- 
view, or  serial,  a  copyright  in  articles  com- 
posed for  him  by  others,  it  is  not  necessary  that 
there  should  be  any  express  contract  that  he 
should  have  the  property  in  the  copyright :  the 
fact  of  the  author  being  paid  by  the  proprietor 
for  articles  supplied  expressly  for  the  period- 
ical raises  the  presumption  that  the  copyright  is 
intended  to  be  the  property  of  the  proprietoi  1 
otherwise,  the  articles  might  be  published  hi 
the  writer  simultaneously,  or  shortly  afterwards, 
possibly  to  the  detriment  and  injury  of  such  pro- 
prietor. But  any  author  may  reserve  to  him- 
self the  right  to  publish  any  such  composition 
in  a  separate  form,  and  he  will  be  entitled  to 
the  copyright  therein  when  published  separately, 

tween  a  license  to  publish  and  an  assignment  see  27  L. 
J.  Ch.  2S4;  15  L-  T.  (N.  S.)  5"-  S-Law  Rep.  7  Eq. 
418.  h-Shortl.  158,*/  sea.:  a  Burr.  2400;  1  Sac. 315. 
1-See  Scotch  Sess.  Cas.  (N.  S.)8:  x8  Id.  (N.  S.)9o6. 
J-13  Mo.  L.  Rep.  4«i. 


400 


COPYRIGHT. 


without  prejudice  to  the  right  of  the  proprietor 
of  the  publication  in  which  such  article  may 
have  firet  appeared. 

A  person  may  be  the  proprietor  of  a  copy- 
right in  the  separate  parts  of  a  periodical,  etc., 
simply  by  reason  of  his  employment  of  the 
writers.*     See  Author,  below. 

An  AiTTHOR  is  one  who,  by  his  own  intel- 
lectual labor,  applied  to  the  materials  of  his 
composition,  produces  an  arrangement  or  com- 
pilation new  in  itself.' 

Authors  maybe  considered  as:  I.  Origina- 
tors; 2.  Compilers;  and  3.  Translators." 

1.  /in  originator  has  choice  of  his  own 
ihoughts  and  words,  and  his  work  is  an  entirely 
new  and  original  one  composed  of  such  words 
and  thoughts. 

2.  A  compiler,  abridger,  arranger,  or  editor, 
is  one  who,  by  his  own  intellectual  labor  and 
judgment,  arranges,  composes,  frames,  or  makes 
a  composition  of  literary  or  scientific  matter 
from  various  sources,  and  not  originally  pro- 
duced by  him. 

3.  A  translator  or  interpreter  is  one  who  ren- 
ders or  interprets  literary  matter  from  one  lan- 
guage to  another,  retaining  the  idea  and  the  sense 
which  are  not  his,  and  clothing  them  in  words 
of  his  own  selection.  He  is  not  a  mere  para- 
phraser,  since  a  creditable  paraphrase  may  be 
produced  without  the  slightest  familiarity  with, 
knowledge  of,  or  reference  to  the  language  of 
the  original  work,  by  a  mere  reference  to  a  pre- 
vious translation  and  a  book  of  synonyms.  The 
labor  of  a  conscientious  and  faithful  translator 
must  be  much  more  original  and  primary. 

Where  a  person  employs  another  to  compile 
a  book,  and  gives  him  some  suggestions  as  to 
its  character  and  form,  and  agrees  to  pay  for 
such  compilation,  and  thereupon  the  author 
conveys  the  copyright  to  the  employer,  such 
conveyance  relates  only  to  the  original  or  first 
term  of  the  copyright.  The  author  has  the  sole 
interest  in  the  additional  term  allowed  to  au- 
thors, and  may  renew  the  copyright  and  enjoy 
the  benefit  of  such  renewal." 

"When,  in  the  course  of  the  composition  or 
production  of  a  literary  or  scientific  work,  an 
author  employs  another  or  others  to  assist  him, 
the  product  of  their  individual  labor  will  belong 
to  him  who  is  the  author  and  proprietor  of  the 
whole." 

Where  a  person  is  employed,  for  a  reward 
paid  to  him,  to  write  a  musical  composition  to 
be  used  as  part  of  the  representation  of  a  dra- 
matic piece,  and  as  a  mere  accessory  to  such 
dramatic  piece,  the  composer  of  the  musical 
accessory  has  no  copyright  therein :  the  prop- 
erty in  music  so  composed  becomes  vested  in 
thft  employer,  and  he  does  not  require  the  con- 
sent of  the  composer  in  order  to  represent  it.P 

fc-SeeasL.  J.  (C.  P.)  127  ;  17  C.  B.  427  ;  it  Jur.  77:  16 
L.  J.  (N.  S.)Ch.  140.  1-2  Blatchf.  46.  m-Morgan  Law 
of  Literature,  vol.  i,  p.  318,2  151,  et  seq.  ,  Id.  \  156,  et 
teg.  11-2  W.  &  M.  23.  O-Poth.  Propr.  170,  175  ;  7  C. 
B.(N.S.)268;  29L.  j.(C.P.):  i  L.T.  (N.  S.)  to:  9  Am. 
L.  Reg.  33;  Code  Nap.  566.  567.  p-7  C.  B.  (N.  S.) 
268;  29  L.  J.  2D,  C.  P. ;  1  L.  T.  (N.  S.)  10;  see  16  L. 
T.  (N.  S.)  4S3 ;  15  Wood,  838  ;  9  Am.  L.  Reg.  47.     q- 


Unknmon  author.  Where  an  author  is  un- 
known, the  copyright  of  a  book  belongs  to  its 
publisher.' 

Bankruptcy.  The  assignees  under  a  com- 
mission of  bankruptcy  are  not  entitled  to  the 
manuscripts  of  an  author,  although  the  copy- 
right of  a  book  which  has  been  printed  and 
published  will  legally  pass  for  the  benefit  of  the 
creditors.'  And  the  price  paid  by  the  book- 
seller is  as  completely  open  to  the  diligence  of 
creditors  as  the  price  of  any  other  commodity 
or  merchandise.* 

Bequest.  Copyright  may  be  the  subject  of 
a  bequest,  and  on  the  death  of  the  person  to 
whom  it  belongs,  without  any  such  bequest, 
will  devolve  on  his  personal  representatives.' 

Book.  A  "book"  within  the  meaning  ot 
the  act  may  consist  of  a  single  sheet,  as  the 
words  of  a  song  or  the  music  accompanying 
it."  But  a  newspaper  or  price  current  is  not  a 
book  within  the  meaning  of  the  act.* 

A  label  used  in  the  sale  of  any  article  is  not 
a  book  within  the  provisions  of  the  copyright 
act." 

Busts,  See  Sculpture,  Models,  and 
Busts,  below. 

Blasphemy  and  profanity  are  offences  not 
only  against  morals  and  the  public  weal,  but 
is  in  many  States  made  a  penal  offence.  They 
tend  to  undermine  not  only  Christianity,  which 
is  a  part  of  our  law,  but  also  disturb  the  peace 
and  corrupt  the  morals  of  the  community.  If 
these  offences  in  the  shape  of  publications  can- 
not be  dealt  with  criminally,  as  in  most  cases 
they  can,  they  are  beyond  the  reach  of  any  pro- 
tection in  law  or  equity;  and  while  they  are 
without  relief  from  invasion  by  others,  they  will 
be  restrained  where  any  positive  injury  results 
from  their  publication. 

Calendars,  Court  Guides,  Dictionaries, 
Directories,  and  works  of  this  descrip- 
tion, ETC.  The  difficulty  as  to  this  class  of 
cases  is,  that  they  do  not  only  relate  to  a  sub- 
ject common  to  all  mankind,  but  the  mode  of 
expression  and  language  is  necessarily  so  com- 
mon that  two  persons  must,  to  a  very  great  ex- 
tent, express  themselves  in  identical  terms  in 
conveying  the  instruction  or  information  to 
society  wiiich  they  intend.*  In  all  cases  where 
the  sources  from  which  materials  for  composi- 
tion are  to  be  derived  are  of  a  common  or  gen- 
eral nature,  they  are  open  to  any  one  to  gain  a 
copyright  in  any  arrangement  of  them  which  he 
chooses  to  make.y  But  although  a  person  may 
thus  acquire  a  copyright  in  his  own  arrange- 
ment of  common  materials,  the  materials  them 
selves  are  equally  open  to  every  one  else  who 
chooses  to  have  recourse  to  them,  and  different 
copyrights  may  be  acquired  in  different  arrange- 
ments of  the  same  common  materials.     These 

I  Morgan,  209,  \  250.  r-2  B.  &  P.  67  ;  4  Burr.  2311 ; 
Ambl.  695:  14  How.  258:  17  hi.  447  ;  4  B.  Mon.  5y4, 
596;  10  Klod.  518.  »-i  Bell  Comm.  68;  Kerr  on  In- 
junction, 186.  t-AmW.  737.  H-2  PaincC.  C.  38^,  597. 
V-ld.  w-4  McLean,  516.  x-6  W.  R.  3^2;  2  W.  & 
^'-  497-  y-9  Sc.  Sess.  Cas. '2(1  Ser.)  758 ;  2  Paine, 
395  ;  3  Story,  781 ;  Law  R.  i  Eq.  697;  35  L.  J.  423;  14 

L.  T.  (N.  S.)  232. 


COPYRIGHT. 


401 


arrangements  must,  however,  be  independent ; 
a  later  arrangement  must  not  be  a  servile  imi- 
tation or  reproduction  of  an  earlier  one ;  other- 
wise it  subjects  its  author  to  the  charge  of 
piracy." 

Of  the  whole  class  of  works  embracing  tables 
of  figures,  dictionaries,  calendars,  court  guides, 
etc.,  etc.,  the  only  mode  of  arriving  at  the  amount 
of  labor  bestowed  is  by  the  common  test  resorted 
to  of  discovering  the  copy  of  errors  and  misprints 
indicating  a  servile  copying.' 

A  CHATTEL  MORTGAGE  on  the  Copyright  of  a 
work  is  not  a  mortgage  on  the  profits  arising 
from  a  use  of  the  copyright.** 

Common  Materials,  etc.  See  Calendars, 
Court  Guides,  etc.,  etc.,  above;  Diction- 
aries, Directories,  etc.,  below. 

Compilation.  "  It  is  a  great  mistake  to  sup- 
pose because  all  the  materials  of  a  work,  or  some 
parts  of  its  plan  and  arrangements  and  modes 
of  illustration,  may  be  found  separately,  or  in  a 
different  form,  or  in  a  different  arrangement  in 
other  distinct  works,  that,  therefore,  if  the  plan, 
or  arrangement,  or  combination  in  another 
work  is  new,  or  for  the  first  time  made,  the  au- 
thor, compiler,  or  framer  of  it  is  not  entitled  to 
a  copyright.  The  reverse  is  the  truth  in  law," 
etc.*  No  person  has  a  right  to  borrow  another's 
plan  and  arrangement  and  illustrations,  and  ser- 
vilely copy  them  into  any  other  work.^ 

The  preparation  and  collection  of  notes  from 
various  sources  is  a  work  of  no  small  labor 
and  intellectual  exertion :  the  plan,  the  arrange- 
ment, and  the  combination  of  these  notes  belong 
exclusively  to  the  person  collecting  and  ar- 
ranging them.  He  is  justly  deemed  the  author 
of  them  in  their  actual  form  and  combination, 
and  is  entitled  to  a  copyright  accordingly.  If 
no  work  could  be  considered  by  our  law  as  en- 
titled to  the  privilege  of  a  copyright,  which  is 
composed  of  materials  drawn  from  many  differ- 
ent sources,  and  for  the  first  time  brought  to- 
gether in  the  same  plan  and  arrangement,  and 
combination,  simply  because  those  materials 
might  be  found  scattered  up  and  down  in  a 
great  variety  of  volumes,  perhaps  in  hundreds, 
and  even  thousands  of  volumes,  and  might 
have  been  brought  together  in  the  same  way 
and  by  the  same  researches  of  another  mind 
equally  skilful  and  diligent,  then  what  would 
become  of  the  elaborate  commentaries  of  mod- 
ern scholars  upon  the  classics,  etc.,  treatises  upon 
astronomy,  mathematics,  natural  philosophy  and 
chemistry,  legal  treatises,  digests  and  text  books, 
the  materials  of  which  must  essentially  depend 
upon  faithful  abstracts,  formulae,  and  illustra- 
tions?* 

Construction  of  Copyright — Importa- 
tion, Printing,  AND  Publishing  of  Foreign 
Works,  etc.,  etc. 

Sec.  4971.  Nothing  in  this  chapter  shall  be 
construed  to  prohibit  the  printing,  publishing, 

«-L.  Rep.  I  Eq.  697 ;  35  I-.  J.  423.  Ch. ;  14  L.  T.  fN. 
S.)322;  I  East. 361. "•  «-6Wood,3-2;  L.  Rep.  9  Eq. 
324.  b-3L.  Rep.  aCh.  App.  703;  38  L.  J.917,  Ch. :  L. 
T.  (N.  S.)  223.  0-3  Story,  782.  d-Ifl.  c-SeeiStory, 
M  ;  7  C.  B.  4.     f-Laws  U.  S.  1870,  July  8,  Vol.  16.  Ch. 


importation,  or  sale  of  any  book,  map,  chart, 
dramatic  or  musical  composition,  print,  cut,  en- 
graving,  or  photograph,  written,  composed,  ot 
made  by  any  person  not  a  citizen  of  the  United 
States  nor  resident  therein.' 

See  Requisites  of  a  Valid  Copyright, 
below. 

Contracts  Between  Authors  and  Pub- 
lishers,  etc. 

In  all  agreements  between  authors  and  pub- 
lishers the  terms  should  be  distinctly  stated, 
and  the  respective  rights  of  the  parlies  clearly 
defined.  The  number  of  copies  of  which  the 
edition  is  to  consist  should  be  declared;  other- 
wise the  publisher  might,  if  so  disposed,  print 
20,000  as  one  edition.* 

Agreements  between  authors  and  publishers 
should  express  beyond  a  doubt  whether  they 
are  to  operate  as  assignments  of  the  copyright 
in  the  work,  or  merely  as  licenses  to  publish.* 
If  the  author  sell  and  dispose  of  his  manuscript 
in  specie  to  a  publisher,  with  the  express  un- 
derstanding that  the  latter  is  to  publish  it,  he 
cannot  afterwards  copyright  in  his  own  name^ 
the  copyright  belongs  to  the  publisher.* 

Wiiere  an  agreement  between  author  and 
publisher  is  that  the  publisher  shall  take  the 
whole  charge,  risk,  and  duty  of  bringing  out 
the  work  (as  he  thinks  best  for  the  interest  of 
both  parties),  such  publisher  has  the  right  o\ 
fixing  the  price  of  such  work  when  brought  out  ,i 

When  an  agreement  between  author  and 
publisher  states  that  after  payment  of  the  ex- 
penses of  publication,  etc., "  the  profits  remain, 
ing  in  every  edition  that  should  be  printed  of 
the  work  are  to  be  divided  into  two  equal 
parts,  one  moiety  to  go  to  the  author,  and  the 
other  to  the  publisher,"  this  points  out  certain 
definite  times  for  the  adjustment  of  the  ac- 
counts, and  at  which  the  author  becomes  en- 
titled to  terminate  his  agreement  with  the 
publisher.  Nor  can  the  publisher  by  stereo- 
tyjMng  the  work  deprive  the  author  of  this 
riglit.k 

Under  a  contract  between  author  and  pub- 
lisher, where  the  publisher  agrees  to  publish 
the  work  and  pay  the  author  for  copyright 
seven  and  a  half  cents  for  every  copy  of  tha 
book  published,  the  publisher  does  not  obtain 
the  exclusive  right  to  publish  the  work.' 

If  an  author  agree  in  writing  to  supply  a 
bookseller  or  publisher  with  a  manuscript  of  a 
work  to  be  printed  by  the  latter,  an  action  for 
damages  can  be  maintained  for  refusing  to 
furnish  the  same,™  provided  the  work  be  one 
which,  if  published,  would  not  subject  the 
author  to  punishment." 

Where,  however,  the  author  is  engaged  for 
a  certain  sum  to  write  an  article  to  appear, 
among  others,  in  a  work  which  is  discontinued 
before  any  of  it  had  been  published,  the  pub- 

230,  ?  103,  p.  215;  Rev.  1873-4,  title  60,  Ch.  3,  \  4071. 
Sr-4  K.  &  J.  656,  669.  h-6  De  G.  M.  &  G.  223 ;  3  K. 
&  J.  276.  I-See  7  Blatchf.  152.  j-See  3  K.  &  J.  276J 
Shortl.  271  ;  24  K.  &  J.  276.  k-2  Morgan,  635,  \  43a 
and  note.  I-33  N.  Y.  Superior  Ct.2i9.  lu-2  Stark.  N. 
P.  C.  107 ;  Sec  3  WiU.  C.  C.  157.     M-Id. 


4A2 


COPYRIGHT. 


lishers  are  not  entitled  to  claim  the  completion 
of  the  article  in  order  ihat  it  may  be  published 
in  a  separate  form  for  general  readers,  but  are 
bound  to  pay  the  author  a  reasonable  sum  for 
the  part  which  he  has  prepared."* 

An  author  may  bind  himself  not  to  write 
upon  a  particular  subject,  or  only  for  a  particu- 
lar person. P 

CONTRACT  FOR^IS. 

See  Assignments,  above,  Licenses,  below. 

See  title  Contracts,  ante. 

Airreement.  Contract,  or  MemoraiKlnm. 

Reservation  by  Ariist  of  Copyright  in  a  Drawing, 
Painting,  or  Photograph,  etc. 

It  is  hereby  agreed  between  A.  B.,  of ,  and 

C.  D.,  of ,  that  the  copyright  No. ,  C,  of 

the  drawing  {painting,  or  photography,  entitled , 

representing  ,  made  (,or  produced)  by  said  A. 

B.,  and  now  (sold,  assigned,  and  disposed  of,  or  now 
executed  on  my  behalf),  is  reserved  to  said  A.  B. 
Dated .  {.Signed)    C.  D. 

Witnesses,  ^V.  T.,N.  S. 

Ae'reement.  Contract,  or  IWenioranflnni. 

Assignment  of  Copyright  in  Drmving,  Painting,  or 
Photograph  to  Purchaser,  etc. 

It  is  hereby  agreed  between  A.  B.,  of ,  and 

C.  D.,  of ,  in  consideration  of  the  sum  of , 

over  and  above  the  price  of  the  work  hereinafter 
described,  paid  by  said  C.  Di  to  said  A.  B.,  that 
the  said  C.  D.  is  entitled  to  the  copyright  in  the 
(drawing,  painting,  or  photograph),  made  {or  pro- 
duced) by  said  A.  B.,  entrtled ,  and  represent- 
ing   ,  now  first  sold  and  disposed  of  to  said 

C.  D.  A.  B. 

{or  A.  B.  by  A.  A  , 

Witnesses,  W.  T.,N.  S.  his  agent.) 

Agpreeinent.  Contract,  or  Sfemorandnm. 

P'or  Pubiication  of  a  Limited  Edition. 

It  is  agreed : 

That  C.  D.,  of ,  publisher,  at  his  own  cost 

and  expense,  upon  the  conditions  and  for  the 
consideration  hereinafter  mentioned,  shall  pub- 
lish   copies  of  (Jiere  copy  the  title  of  the  loorl;). 

That  said  work  shall  be  printed  in  type  and 
page  corresponding  with  . 

That  said  work  shall  be  divided  into vol- 
umes of pages  ior  sheets)  each. 

That  said  work  shall  be  sold  (in  boards,  etc.,  etc.) 

at  the  retail  price  of ,  and  wholesale  price  of 

,  but  should  said  work  exceed pages  (or 

sheets)  a  proportionate  increase  shall  be  made  in 
said  charges,  as  well  as  the  consideration  herein- 
after named. 

That  in  consideration  of  the  premises  said  C. 

D.  shall  pay  said  A.  B.  the  sum  of dollars  (or 

percent,  of  the  retail  (<?r  wholesale]  selling  price 

of  said  work  as  follows,  to  wit) : 

That  said  C.  D.  shall  present  said  A.  B.  vtrith 
•.^—  copies  of  said  work,  free  of  charge,  upon 
publication  thereof. 

In  witness  whereof,  said  parties  have  hereunto 
set  their  hands  this day  of .  C.  D. 

Witnesses,  W.  T.,  N.  S.  A.  B. 

Agrreemont,  Contract,  or  ^lemorandnm. 

Compilation,  etc.,  and  Sale  of  a  Work. 
This  agreement  (contract,  or  memorandum),  made 
this day  of ,  between  A.  B.,  author  (or  in- 
ventor, etc. ),  of ,  of  the  one  part,  and  C.  D.  and 

E.  F.  (hereinafter  called  D.  &  F.;,  publishers  of , 

of  the  other  part,  witnesseth  : 

That  said  A.  B.  shall,  on  or  before  the  day 

of next,  compile,  edit,  and  write  a  work,  to 

be  entitled  ,  together  with  a  comprehensive 

and  full  index  and  table  of  cases  thereto,  and  cor- 
rect and  revise  the  proof-sheets  of  the  same. 

That  said  A.  B.  shall  sell,  assign,  transfer,  and 
set  over  unto  said  D.  &  P.  his  copyright,  and  all 
his  title  and  interest  in  and  rights  under  the  same 
unto  said  D.  &.  F.  for  the  sum  hereinafter  men- 
tioned. 

That  said  A.  B.  shall  have copies  of  said 

work  free  of  charge. 

That  said  D.  &  F.,  and  their  legal  representa- 
tives, shall  print  and  publish,  and  bear  all  the 


charges  and  expenses  of  printing,  publlshine,  ad. 
vertising,  and  selling  said  work,  and  pay  to  said 
A.  B.  for  his  said  copyright,  interest,  title,  and 
right  the  sum  of dollars,  on  the  day  of  publi- 
cation of  the  same. 

In  witness  whereof,  said  parties  have  hereunto 
set  their  hands  the day  of .  A.  B. 

Witnesses,  W.  T.  N.  S.  D.  &  F. 

Airreement,  Contract,  or  Hfemorandnm. 

Publication  and  Sale  Upon  Half  Pro/il. 

This  agreement  (contract,  or  memorandum),  made 

this  day  of ,  between  A.  B.,  of ,  and 

CD.,  of ,  witnesseth  : 

That  said  C.  D.  shall,  at  his  own  expense  and 
risk,  publish  a  work  entitled . 

That  said  C.  D.,  after  deducting  from  the  pro- 
duce of  the  sale  thereof  the  charges  for  plates, 
printing,  paper,  advertisements,  embellishments, 
cuts,  etc.,  and  other  incidental  expenses,  including 

the  allowance  of per  cent,  of  the  gross  amount 

of  sale,  for  commission  and  risk  of  bad  debts, 
shall  divide  the  profits  remaining  of  each  and 
every  edition  that  shall  be  printed  of  the  work 
into  two  equal  parts,  one  moiety  to  be  paid  to  said 
A.  B.  and  the  other  moiety  to  be  retained  by  said 
C.  D. 

That  all  books  sold  shall  be  accounted  for  at  the 
wholesale  (or  retail)  trade  price,  unless  it  be  advi- 
sable to  dispose  of  any  at  a  less  price,  which  shall 
be  left  to  the  judgment  and  discretion  of  said  C. 
D.,  on  due  notice  to  said  A.  B. 

That copies  of  said  work  shall  be  presented 

to  said  A.  B.  upon  publication,  free  of  charge.<i 

In  witness  whereof,  said  parties  have  hereunto 
set  their  hands,  the  day  and  year  above  written. 

A    B 

Witnesses,  W.  T.,  N.  S.  C.  d! 

Ag'reenient.  Contract,  or  IWetnorandnm. 

To  Correct,  Enlarge,  and  Revise  a  Work. 

This  agreement  (contract,  or  memorandum),  be- 
tween A.  B.,  of ,  and  C.  D.,  publisher,  of , 

witnesseth : 

That  A.  B.,  in  consideration  of  the  sum  of 

dollars,  to  be  paid  as  soon  as  the  last  proof  sheets 
of  the  work  hereinafter  mentioned  are  corrected 
for  press,  agrees  to  examine,  correct,  enlarge,  p.nd 
revise  the  work  known  as ,  and  to  furnish  ad- 
ditional manuscript  matter  for  a  new  edition  of 
said  work,  and  to  examine,  correct,  enlarge,  and 
revise  the  index  of  the  same. 

That  the  new  edition  of  said  work  shall  be  of 
the  same  pages  as  the  present  work,  and  contain 
an  equal  amount  of  matter  on  each  page. 

That  the  additional  matter  furnished  shall  en- 
large said  work  not  less  than pages. 

That  said  matter  shall  be  furnished  to  C.  D.  at 

not  less  than pages  per  day,  commencing  on 

the instant. 

That  said  A.  B.  shall  examine  and  correct  all 
proof  sheets  as  soon  as  they  shall  be  furnished. 

That  said  C.  D.  shall  complete  the  index  within 

a   reasonable  time  (not  to  exceed  )  after  the 

whole  signatures  of  the  text  shall  be  ready  for 
him  for  that  purpose. 

That  said  C.  D.  shall  print  said  work  as  the 
matter  shall  be  supplied,  and  provide  said  A.  B. 
with  proofs  of  the  same  by  signatures  as  each 
signature  shall  be  vtrorked  off,  for  the  purpose  of 
arranging  said  index. 

That  said  C.  D.  shall  furnish  said  A.  B.  with 
bound  copies  of  said  work  as  soon  as  conve- 
nient after  publication.  i 

In  witness  whereof,  said  parties  have  hereunto 
set  their  hands,  this day  of .  A.  B. 

W^jtnesses,  W^.  T.,  N.  S.  C.  D. 

A&rreemont.  Contract,  or  Meniorandnin. 

This  agreement  (contract,  or  memorandum),  made 

this day  of ,  between  A.  B.,  of .author 

of ,  of  the  one  part,  and  C.  D.  and  E.  F.  there- 
inafter called  D.  &  F.),  publishers,  of  the  other 
part,  witnesseth : 

That  said  A.  B.  shall  fully  prepa:e  the  whole 

of  said  work  for  the  press  on  or  before  the 

day  of ,  and  shall  correct  the  proof  sheets,  and 

superintend  the  printing  thereof. 

0-5  C.  &  P.  i;8.  |»-t8  Ves.  437 ;  see  2  Cooper's  Cas. 
216.     q-See  3  K.  &  J.  271. 


COPYRIGHT. 


40J 


That  the  alterations  and  corrections  of  the 
^oof  sheets  and  revises  which  shall  exceed  the 

charge  of per  sheet  {or  page)  shall  be  borne 

and  paid  by  said  A.  B.,  and  shall  be  deducted  out 
of  his  share  of  the  profits. 

That  in  case  all  the  copies  of  said  books  shall 
have  been  sold  off,  and  a  second  or  any  subse- 
quent  edition  of  said  book  shall  be  required  by 
the  public,  the  said  A.  B.  shall  make  all  the  ne- 
cessary alterations  and  additions  thereto,  and 
said  D.  &  F.  shall  print  and  publish  said  second 
and  every  subsequent  edition  of  said  book  upon 
the  conditions  herein  contained. 

That  said  D.  &  F.  shall  direct  the  mode  of  print- 
ing said  book,  and  shall  bear  and  pay  all  the 
charges  thereof,  and  of  publishing  the  same  (ex- 
cept as  herein  otherwise  provided),  and  shall  take  all 
the  risk  of  the  publication  upon  themselves. 

That  said  D.  &  F.  shall,  out  of  the  proceeds  of 
the  sale  of  said  book  in  the  first  instance,  be  re- 
funded all  the  costs  and  expenses  which  they 
shall  have  incurred  respecting  said  book,  after 
which  the  profits  shall  be  equally  divided  be- 
tween said  A.  B.  and  D.  &  F. 

That  accounts  shall  be  made  up  at  the  end  of 
every  quarter  (or  six  months, »/- year),  and  the  prof- 
its, if  any,  be  then  divided. 

That  said  D.  &  F.  shall  account  for  all  the 
copies  of  said  book  which  they  shall  sell,  at  the 
wholesale  (orretail)  bookseller's  price   deducting 

therefrom  a  commission  of ,  they  taking  the 

risk  of  the  credit  they  shall  give  on  the  same. 

That  in  case  all  the  copies  of  any  edition  of  said 

work  shall  not  be  sold  within years  after  the 

time  of  their  publication,  the  said  D.  &  F.  shall 
be  at  full  liberty  to  dispose  of  the  remaining 
copies  so  unsold,  either  by  public  auction  or  pri- 
vate contract,  or  in  such  manner  as  they  may 
deem  most  advisable,  so  that  the  account  may  be 
finally  settled  and  closed. p 

In  witness,  etc. 

Copy — Definition  of,  etc.  A  copy  (of  an 
engraving,  cut,  print,  photograph,  painting, 
drawing,  chroino,  etc.,  etc.)  is  that  which  comes 
so  near  to  the  original  as  to  give  every  person 
seeing  it  the  idea  created  by  the  original. 1 
Trifling  variations  are  not  material,''  wliether 
reduced  to  the  size  of  an  engraving,  or  still 
more  diminished  in  a  photograph,'  or  enlarged 
to  a  painted  dioramic  copy.'  It  is  for  the  jury 
to  consider  whether  the  main  design  of  the 
plaintiff's  engraving  had  been  copied,  and 
whether  the  defendant's  engraving  was  sub- 
stantially a  copy  of  the  plaintiff's. 

Copyists.  The  mere  copyist,  or  the  slavish 
imitator,  who  produces  old  materials  substan- 
tially in  their  own  forms,  without  new  combina- 
tion,is  entitled  to  noprotection  under  the  statute." 

Criminal  Publications.  "  No  author  or 
printer  who  fairly  and  conscientiously  promul- 
gates opinions,  with  whose  truth  he  is  im- 
jiressed,  for  the  benefit  o(  others,  is  ansvvrerahle 
as  a  criminal.  A  malicious  and  mischievous 
i'ltention  is,  in  such  a  case,  the  broad  boundary 
l)etvveen  right  and  wrong:  it  is  to  be  collecteil 
from  the  offensive  levity,  scurrilous  and  oppro- 
brious language,  and  other  circumstances, 
w  iiether  the  act  of  the  party  was  malicious."* 

Delay.  If  any  delay  occurs  in  the  assertion 
"f  tlie  title  to  copyright  infringed,  the  delay 
must  be  accounted  for  to  the  satisfaction  of  the 
court;  otherwise,  no  assistance  will  be  given.* 

p-See6D.  M.  &G  221  qs  B.  &  Aid.  743  r-14 
C.  B  (N.  S  )3t7:  9M  Sr  W.  692.  8-14  C.  B.  (N.  S.) 
742,743.  <-6Sim.?o7  r-5  Blatchf.  87  v-iiS  &  R. 
394.  w-See  I  R.  Tv  ."!.  -6:  TamI  293;  2  Russ.  385, 
i93;    jBeav.  ijj,    -i   id   6;    5  DeG.  &  S.  80,  84 ;    11 


Dictionaries.  In  dictionaries  there  may 
be  a  certain  degree  of  skill  exhibited  as  to  or- 
der and  arrangement,  or  ingenuity  exhibited  in 
the  selection  of  phrases  and  illustrations,  which 
are  the  best  exponents  of  the  sense  in  which  a 
word  is  to  be  used ;  there  may  also  be  great  la- 
bor in  the  logical  deduction  and  arrangement 
of  the  word  in  its  different  senses,  when  the  sense 
of  the  word  departed  from  its  primary  signifi- 
cation. On  the  other  hand  there  is  a  large 
mass  of  words  that  admit  of  only  one  accepta- 
tion, and  can  be  translated  only  one  way,  and 
the  large  mass  of  dictionaries  are  composed  of 
words  of  that  description ;  hence  the  new  dic- 
tionary must,  of  necessity,  contain  much  of  the 
information  and  the  results  obtained  from  its 
predecessors.*  Where  words  are  of  such  a 
nature  that  the  information  contained  in  them 
must  of  necessity,  if  it  be  correct,  be  exactly 
the  same  in  both,  the  test  frequently  applied  by 
the  courts  to  determine  whether  the  second  is  a 
mere  unlaborious  production  of  the  first,  or  has 
been  compiled  by  original  effort  from  common 
sources,  is  this : — to  examine  the  inaccuracies 
which  appear  in  both  works,  and  see  whether 
they  are  identical ;  if  so,  the  inference  of  piracy 
is  almost  invariably  drawn.y 

See  Calendars,  Court  Guides,  etc.,  etc. 
above;  DIRECTORIES,  below. 

Digests,  etc  The  digest  of  a  report  usually 
included  in  and  known  as  the  head  note  is  a 
species  of  property  that  will  receive  protection. 
The  head  note,  or  the  side  or  marginal  note  of 
a  report  is  a  thing  upon  which  much  skill  and 
exercise  of  thought  is  required  :  it  may  be  con- 
sidered in  itself  a  species  of  brief  and  condensed 
report — an  abstract  of  the  decision  conveying 
the  principle  upon  which  it  is  founded,  and  the 
pith  and  substance  of  the  case.* 

The  right  of  selecting  passages  from  books 
of  reports  (including  entire  judgments)  in  trsa- 
tises  upon  particular  subjects  is  not  disputed. 
Had  it  been,  the  greater  part  of  our  law  libra- 
ries would  be  much  thinned,  and  we  deprived 
of  many  valuable  works,  as  a  great  portion 
consists  of  mere  transcripts  from  books  of  re- 
ports."    See  Compilation,  etc.,  above. 

Digests  of  legal  decisions  are  somewhat  of 
the  nature  of  abridgments.  They  give,  under 
headings  arranged  alphabetically,  a  summary 
of  the  legal  points  decided  in  each  case  referred 
to,  and  if  such  arrangement  and  summary  are 
tlie  product  of  skill  and  mental  labor  on  the 
])art  of  the  compiler,  and  the  compiler  is  guilty 
of  no  infringement  of  the  copyright  in  the  pub- 
lished reports,  he  is  entitled  to  a  copyright;  but 
if  the  compiler's  labor  is  purely  mechanical,  and 
he  only  arranges  in  alphabetical  order  the  mar- 
ginal or  head  notes  of  cases  contained  in  pub- 
lished reports,  he  is  guilty  of  infringing  the 
copyright  in  such  reports. •• 

Wood,  877;  32  L  J  539,  Ch.,  and  anaIogou.<!  patent 
cases  ;  12  Beav.  3  :  4  L  J  26  Ch  ;  i  Kay,  416,  417  :  L. 
R  18,  Eq  444-  X-PerVice-ChancellorWood,6W  R. 
352.  y-i6  Ves.  271,  277  :  6  W  R  352;  Lnw  R  9  Eq 
3;^4  «-i6  C.  B  49'  :  I  lur.  (N.  S.)  443  ;  »  Y.  &  C.  301. 
a-5  Ves.  709.    1»-j6  C.  B.  484. 


4<H 


COPYRIGHT. 


"A  digest,  undoubtedly,  may  be  made  from 
the  published  reports  without  necessarily  sub- 
jecting the  compiler  to  the  charge  of  piracy ; 
for  instance,  where  the  party  applies  the  exer- 
tion and  skill  of  his  own  brain  in  extracting 
the  principal  or  the  substance  of  the  decisions 
before  him,  dressing  it  up  in  his  own  language, 
so  as  to  produce  an  original  work,  not  a  mere 
stringing  together  of  marginal  or  side  notes 
which  the  labor  and  intelligence  of  the  authors 
have  fashioned  ready  to  the  compiler's  hand."' 

Directories,  Guide  Books,  Maps,  etc. 
In  the  case  of  a  directory,  dictionary,  guide- 
book, map,  or  the  like,  where  there  are  certain 
common  objects  of  information,  which  must,  if 
described  correctly,  be  described  in  the  same 
words,  a  subsequent  compiler  is  bound  to  set 
about  doing  for  himself  that  which  the  first 
compiler  has  done.  The  compiler  may  not  cut 
out  slips  from  the  former  work  and  go  and  see 
whether  they  are  accurate,  and  if  so,  copy  them 
verbatim  into  his  own  work,  but  he  is  quite 
justified  in  referring  to  the  former  book  in 
order  to  guide  himself  to  persons  on  whom  it 
would  be  worth  while  to  call.^ 

Divisibility,  etc.,  of  Copyright.  Copy- 
right is  not  divisible,*  though  the  term'  may 
be  divided.' 

Engravings,  etc.  "Where  the  subject  from 
which  the  engraving  is  taken  is  common  and 
open  to  all,  the  first  engraver  of  a  print  of  it  is 
not  entitled  to  restrain  any  one  else  from  mak- 
ing an  engraving  of  the  same  subject,  provided 
it  be  made  from  the  original  subject  and  is  not 
a  copy  of  the  first  engraving ;  but  he  can  pre- 
vent another  from  copying  his  own  engraving.'' 

EXECI/TION.  Copyright  in  a  published  print 
is  not  the  subject  of  seizure  or  sale  by  execu- 
tion, although  it  may  be  reached  by  creditors' 
bill,  and  applied  to  the  payment  of  the  debts 
of  the  author.'  But  in  case  of  such  a  remedy 
it  would  be  necessary  for  the  court  to  enforce 
a  transfer  to  the  purchaser  in  conformity  with 
the  requirements  of  the  copyright  act  in  order 
to  invest  such  purchaser  with  a  complete  title 
to  the  property.J 

Whether  this  right  extends  to  the  publishing 
an  unpublished  work  of  an  author,  or  other- 
wise making  the  same  available,  is  very  doubt- 
ful.» 

A  manuscript'  in  the  author's  hands,  or  a 
book  half-printe<l,  or  in  the  process  of  publica- 
tion," cannot  be  taken  in  assignment  or  exe- 
cution. 

See  Assignment,  above. 

Gratuitous  Distribution.  A  multiplica- 
tion of  copies  for  the  purpose  of  gratuitous 
distribution  is  as  much  an  infringement  of  the 
proprietor's  copyright  as  if  the  multiplication 
had  been  made  for  the  purpose  of  pecuniary 
profit." 

C-S  Ves.  7C39.  d-Law  Rep.  5  Ch.  App.  279  ;  as  L.  T. 
(N.  S.)  78 .  see  *  Am.  L  Reg.  229  ;  Law  R.  7  Eq.  34 ; 
19  L.  T.  (N  S.)  550  e-4  Ho  L.  Cas.  815.  f-6  C.  B. 
458.  tf-3  Bliss.  208.  fa-4  Bingh.  246;  3  Ves  &  B.  78. 
J-14  How.  U.  S.  528.  j-17  How.  U.  S.  447-  k-See4 
Burr.  2311;  Ambl.  695;  10  Mod.  518.  IBell  Comin. 
c38;  4  Burr.  331 1,  3396,  3397;  Oodsoa  Pat.  &  Cop.  (a 


Ignorance.  Copyright  is  like  patent  in  tWi 
respect,  that  if  it  is  infringed  ignorance  will  not 
avail  as  a  defence  in  the  one  case  any  more 
than  in  the  other." 

Immoral  or  Libellous  Works.  The 
law  will  not  assist  one  in  the  recovery  of  le- 
muneration  for  his  labor  on  such  works. p 

Importation.  Copyright  may  be  infringed 
by  the  importation  for  sale  or  hire  of  copies 
printed  abroad. 

INFRINOESIENTS  OF  COPYRIGHT. 

Copyright  may  be  invaded  :i 

1.  By  reprinting  the  whole  work  verbatim. 

2.  By  reprinting  a  part  of  a  work  verbatim. 

3.  By  imitating  the  whole  or  a  part,  or  by 
reproducing  the  whole  or  a  part  with  colorable 
alterations. 

4.  By  reproducing  the  whole  or  a  part  under 
an  abridged  form. 

5.  By  reproducing  the  whole  or  a  part  under 
the  form  of  a  translation. 

Copying,  Engraving,  Etching,  Import- 
ing, Printing,  Publishing,  Selling,  Vary- 
ing, Working,  etc,  ok  Copyright  Matter, 
without  Consent  op-  Proprietor  in  Writ- 
ing signed  in  Presence  ok  two  or  more 
Witnesses. 

Sec.  4965.  If  any  person,  after  the  re- 
cording of  the  title  of  any  map,  chart, 
musical  composition,  print,  cut,  engrav- 
ing, photograph,  or  chromo,  or  of  the  de- 
scription of  any  painting,  drawing,  statue, 
statuary,  or  model  or  design  intended  to 
be  perfected  and  executed  as  a  work  of 
the  fine  arts,  as  provided  by  this  chapter, 
shall,  within  the  term  limited,  and  without 
the  consent  of  the  proprietor  of  the  copy- 
right first  obtained  in  writing,  signed  in 
presence  of  two  or  more  witnesses,  en- 
grave, etch,  work,  copy,  print,  publish,  or 
import,  either  in  whole  or  in  part,  or  by 
varying  the  main  design  with  intent  to  evade 
the  law,  or,  knowing  the  same  to  be  so  printed, 
published,  or  imported,  shall  sell  or  expose 
to  sale  any  copy  of  such  map  or  other 
article,  as  aforesaid,  he  shall  forfeit  to  the 
proprietor  all  the  plates  upon  which  the 
same  shall  be  copied,  and  every  sheet 
thereof,  either  copied  or  printed,  and  shall 
further  forfeit  one  dollar  for  every  sheet  of 
the  same  found  in  his  possession,  either 
printing,  printed,  copied,  published,  imixirted, 
or  exposed  for  sale;  and  in  case  of  a  paint- 
ing, statue,  or  statuary,  he  shall  forfeit 
ten  dollars  for  every  copy  of  the  same  in 
his  possession,  or  by  him  sold  or  exposed  for 
sale ;  one-half  thereof  to  the  proprietor  and  the 
other  half  to  the  use  of  the  United  States.' 

The  forfeiture  or  penalty  provided  for  by  this 
section  may  be  enforced  by  action  under  this 
section  in  the  circuit  or  district  court  under  the 

Ed)  430:  Curtis  Copyright,  85,  218.  m-Maugham 
Literary  Property,  177,  n.  4.  n-ti  C.  B.  177;  0  Sc. 
Sess.  Cas.(2dSer.)748.  O-1J.&H.S27.  p-Ry.  &M. 
337.  <i-Shortl.  95 ;  Curtis,  Ch.  9.  -  r-Laws  U.  S.  1870, 
July  8,  Vol.  16,  Ch  230,  g  loo,  p.  214.  Rev.  1873-74; 
citing  I  Story,  19;  z  Id,  II5;  3  Blatchf.  39;  Id.  Iji  ^ 
McLean,  306. 


COPYRIGHT. 


405 


mles  of  practice  of  the  State  wherein  the  for- 
feiture or  jienalty  is  sought  to  be  enforced. 

The  penalty  for  an  infringement  of  copyright 
in  engravings,  maps,  charts,  and  other -suiijects 
set  forth  in  this  section,  is  only  recoverable 
within  two  years. •  But  every  distmct  act  of 
printmg  for  sale  is  a  new  infraction  for  the  pur- 
pose of  the  limitation. 

Importing,  Printing.  Publishing,  Skll- 
ING,  ETC.,  OF  Copyright  Matter,  without 

I  HE  COiNSENT   OK    PROPRIEIOR,    IN   WrITIVU 

SIGNED  IN  Presence  ok  two  or  more  Wi  v- 

N  ESSES. 

Sec.  4964.  Every  person  who,  after  th-a 
recording  of  the  title  of  any  book  as  pro^ 
vided  by  this  chapter,  shall  wiihin  the  te-m 
limiied,  and  without  the  consent  of  the 
proprietor  of  the  copyright  first  obtained 
in  writing,  signed  in  presence  01  two  or 
more  witnesses,  print,  publish,  or  import, 
or,  knowing  the  same  to  be  so  p'inted,  puli- 
lished,  or  imported,  shall  seU  or  expose  to 
sale  any  copy  of  sucb  book,  shall  forfeit 
every  copy  thereof  to  such  proprietor,  and 
shall  also  forfeit  and  pay  such  damages 
as  may  be  recovered  in  a  civil  action  by 
such  proprietor  in  any  court  of  competent 
jurisdiction.* 

"Any  copy  of  such  book  "  under  this  section 
may  be  understo<xl  to  mean  a  transcript  or  co])y 
of  the  entire  hook,  and  no  less,"  and  courts 
will  only  adjudge  such  penalty  for  the  copies 
found  in  the  possession  of  the  defendant.^ 

Where  any  wrong  has  been  committed  in  re- 
spect to  a  literary  work,  and  the  complainant 
does  not  ask  for  an  injunction  to  protect  his 
common  law  rights,  or  the  violation  of  his  copy- 
right, but  only  prays  for  an  accounting,  the  re- 
dress must  be  sought  at  law  for  damages,  and 
not  in  equity.  The  asking  of  an  injunction  is 
what  constitutes  the  process  equitable.' 

Publicly  Performing  or  Representing 
Dramatic  Composition,  etc.,  without  Con- 
sent OK  Proprietor. 

Sec.  4966.  Any  person  publicly  per- 
forming or  representing  any  dramatic 
composition  for  which  a  copyright  has 
been  obtained,  without  the  consent  of  the 
proprietor  thereof,  or  his  heirs  or  assif;ns, 
shall  be  liable  for  damages  therefor; 
such  damages  in  all  cases  to  be  assessed  at  such 
sum,  not  less  than  one  hundred  dollars  for  the 
first,  and  fifty  dollars  for  every  subsequent  per- 
formance, as  to  the  court  shall  appear  to  be 
just.» 

A  previous  acting  or  representing  a  play  will 
not  deprive  the  author  of  the  right  afterward  to 
take  out  a  copyright.J^ 

An  action  may  be  maintained  by  the  author, 
although  he  or  his  assignee  has  only  filed  his 

»-('See  §  104-4968,  post  ■);  8  Law  Rep.  412;  i  W  L 
Jour  240.  t-Id  i  99,  Rev.  1873;  4  Id  §  4964;  citing 
I  Story.  19  ;  2  Id  115;  2  Blatchf.  39;  Id.  85;  4  McLean, 
306;  2  Woodb.  &  Min.  497.  n-12  Monthly  L.  Rep. 
340.  ■v-7  How.  811  ;  I  N.  Y.  Leg.  Obs.  198.  w-3  Edw. 
ijh.  uo-iii.  x-Id.  2  101,  Rev.  1873;  4  Id.  §  4966; 
citing  5  Blatchf.  87;  6  Id.  256.  y-13  Monthly  L.  Rep. 
IN.  S.)  401.    c-Id.    a-Id.    b-9  Ain.  h-  ^cf.  .^i; 


title-page,  and  has  not  published  the  work  or 

play." 

An  assignee  of  an  exclusive  right  of  per- 
forming a  dramatic  comjxKition  within  certain 
limits  may  maintain  an  action  for  injunction 
to  restrain  its  representation  and  performance 
within  such  limits,*  if  he  has  complied  with  all 
the  acts  required  by  law  to  secure  a  copyright.* 

Printing  or  Publishing  Manuscript 
without  Author's  or  Proprietor's  Con 
sent. 

Sec.  4967.  Every  person  who  shall 
print  or  publish  any  manuscript  whatever, 
without  the  consent  of  the  author  or  pro- 
prietor first  obtained  (if  such  author  or  pro- 
prietor is  a  citizen  of  the  United  States,  or 
resident  therein),  shall  be  liable  to  the  author 
or  proprietor  for  all  damages  occasioned  by 
such  injury." 

An  author  has  a  common  law  right  in  his 
manuscript  until  he  relinquishes  it  by  contract 
or  some  other  equivocal  act.*  And  a  surrep- 
titious publication  of  an  important  part  of  a 
manuscript  is  as  much  within  the  statute  as  if 
the  manuscript  were  complete.  Indeed  the 
whole  of  a  manuscript  need  not  be  printed." 

Intention  to  Pirate.  The  existence  of 
an  animus  furandi  (intention  to  steal)  is 
deemed  essential  to  piracy.'  This  animus  fu- 
randi must  not  be  understood  to  mean  a  de- 
liberate design  to  steal  the  product  of  another's 
labor  and  surreptitiously  appropriate  it  to  one's 
own  use  and  credit;  the  offence  of  piracy  may 
he  commilled  bona ^de,  with  no  dishonest  in- 
tention, and  without  any  idea  on  the  part  of 
him  who  commits  it  that  he  is  infringing  a 
copyright.  "  It  is  enough  that  the  publication 
complained  of  is  in  sulistance  a  copy  whereby 
the  work  vested  in  another  is  prejudiced.'  In 
a  book  of  avowed  extracts  from  the  poetical 
writings  of  others,"  if  A.  takes  the  property  of 
B.  the  animus  furandi  is  inferred  from  the 
act."* 

The  cases  in  which  the  animus  furandi  \cs,t 
properly  applies  is  that  difficult  class  relating 
to  dictionaries,  road  books,  and  the  like,  where 
a  certain  umount  of  common  material  is  used  by 
difTertr.t  persons,  and  the  matter  at  issue  is 
"piracy  or  no  piracy."' 

Intestacy.  Where  the  owner  of  copyright 
in  any  published  or  unpublished  production 
dies  intestate,  the  copyright  in  such  production 
devolves  by  operation  of  law  ujx)n  his  executor 
or  administrator,  who,  as  such,  possesses  all  the 
rights  that  the  original  owner  enjoyed.J 

Joint  Owners  ok  a  Copyright  may  make 
a  contract  between  themselves  as  to  the  print- 
ing and  publishing  of  a  work,  and  neither  will 
be  permitted  to  set  up  against  the  other  his 

covirit  13  Monthly  L.  Rep.  CN.  S.)4oi.  e-Id.  Jioa: 
Rev.  1873-74;  citing  8  Pet.  657;  4  McLean,  300;  23 
How.  Pr.  207.  d-5  McLean,  36,  38;  8  Pet.  957;  i  N. 
Y.  Leg.  Obs.  409  ;  18  How.  170;  32  How.  Pr.  198.  e- 
5  McLean,  39-40;  see  9  Am.  L.  Reg.  45.  f-4  Esp. 
169;  but  see  i  I.  &  H.  527.  g-i  Campb.  98.  h-ii 
Sim.  38;  see  i  W.  L.  Jour.  240;  i  Ciff.  98;  similai 
cases,  16  L.  T.  (N.  S.)  51 ;  U  Rep.  3  E<j.  718.  i-J.  Ir 
li.  527-   j-Sbortl.  149. 


4o6 


COPYRIGHT. 


original  rights  as  a  joint  owner  in  violation  of 
such  contract.* 

Legal  Forms.  A  person  is  entitled  to  copy- 
right in  practical  forms  and  styles  of  writs  and 
instruments  introduced  by  acts  of  the  general 
asseml)ly  or  legislature,  those  acts  giving  only 
general  descriptions  of  the  forms  to  be  used. 
"  It  is  said  that  owing  to  the  particular  nature 
of  the  styles  they  cannot  be  the  subject  of  copy- 
right, because  they  are  drawn  up  precisely  after 
the  form  prescribed  in  the  statute,  and  because 
any  styles  relating  to  the  same  subjects  as  those 
given  by  the  complainer  must,  if  the  directions 
of  the  statutes  and  phraseology  of  conveyancers 
were  used,  be  expressed  in  the  same  manner 
exactly  as  those  proposed  by  the  complainer. 
Now  it  may  be  quite  true,  that  if  the  statute 
had  supplied  certain  forms  by  which  the  opera- 
tions intended  to  be  thereby  regulated  were  to 
be  done,  if  the  statute  had  contained,  as  stat- 
utes sometimes  do,  an  appendix  exhibiting  cer- 
tain schedules  of  forms  which  it  was  only  ne- 
cessary for  any  one  to  copy  in  order  to  avail 
himself  of  the  provisions  of  the  act,  then  I  hold 
that  the  reprinting  of  such  forms  in  a  separate 
publication  would  not  give  him  a  copyright  in 
those  forms;  but  in  the  case  here  it  is  different, 
for  the  statute  only  gives  very  general  diieclu)ns 
and  descriptions  of  the  styles  that  are  to  be 
used.  The  schedules  are  very  general  in  their 
terms,  and  it  is  no  doubt  of  great  practical  im- 
portance to  suit  these  general  directions  to  each 
case  falling  under  the  statute  as  it  may  arise. 
The  preparing  and  adjusting  of  such  writings 
require  much  care  and  exertion  of  mind.  As 
to  invention,  that  is  a  different  thing :  it  does 
not  require  the  exercise  of  original  or  creative 
genius,  but  it  requires  industry  and  knowl- 
edge."* 

Letters — Private.  The  copyright  of  pri- 
vate letters  forming  literary  compositions  is  in 
the  composer  and  not  in  the  receiver,  who  has 
only  a  special  property  in  them.  "  Possibly  the 
property  of  the  paper  may  belong  to  him,  but 
this  does  not  give  a  license  to  any  person  what- 
ever to  publish  them  to  the  world,  for  at  most 
the  receiver  has  but  a  joint  property  with  the 
writer."'' 

Letters  and  communications  sent  expressly  or 
impliedly  for  publication  to  editors  or  proprie- 
tors of  legal  publications  become  the  property 
of  such  editor  or  proprietors,  and  cannot  law- 
fully be  published  by  any  other  person  obtain- 
ing possession  of  them." 

L.1BRARIAN  OF  COXORE8S. 

See  Assignment,  above;  Requisites,  etc., 
^elow. 

Sec.  4948.  All  records  and  other  things 
relating  to  copyrights  and  required  by  law 

*-8  Wend.  568.  a- Per  Lord  FuUerton,  9  Scotch  Sess. 
Cas.  (2d  Ser.)  754,  755,  Feb.  27,  1847.  On  the  question  of 
industry  and  knowledge,  time  and  labor,  see  i  East.  363  ; 
17  Ves.  425;  II  W.  R.  934  ;  3  Story,  768  ;  i  Tamlyn.sos; 
5  S.  C.  Sess.  Cas.  (2d  Ser.)  416:  i  Story,  17;  12  Ves. 
276.  b-Per  Lord  Hardwicl<e,  2  Atk.  342;  2  V.  &  B. 
19;  4  Burr.  2331,  2330,  2303  ;  Ambl.694;  2Eden.329; 
1  Bro.  lag;  11  C.  B.  (N.  S.)  139;  Mor.  Diet,  of  Dec 
Vols.  19,  ao;  App.  Lit.  Prop.  13;  j  Coll.  565;  s  Story, 


to  be  preserved,  shall  be  under  the  control 
of  the  librarian  of  Congress,  and  kept  and 
preserved  in  the  library  of  Congress  ;  and 

the  librarian  of  Congress  shall  have  the  im- 
mediate care  and  supervision  thereof,  and, 
under  the  supervision  of  the  joint  committee 
of  Congress  on  the  library,  shall  perform  all 
acts  and  duties  required  by  law  touching  copy- 
rights.'' 

Sec.  4949.  The  seal  provided  for  the  of- 
fice of  the  librarian  of  Congress  shall  be 
the  seal  thereof,  nnd  by  it  all  records  and  papets 
issued  from  the  office,  and  to  be  used  m  evi- 
dence, shall  be  authenticated." 

Sec.  4950.  The  librarian  of  Congress  shall 
give  a  bond,  with  sureties,  to  the  treasurer  of 
the  United  States,  in  the  sum  of  five  thousand 
dollars,  with  the  condition  that  he  will  render 
to  the  proper  officers  of  the  tieasury  a  true  ac- 
count of  all  moneys  teceived  by  virtue  of  his 
office.' 

Sec.  495X.  The  librarian  of  Congress  shall 
make  an  annual  report  to  Congress  of  the  num- 
ber and  description  of  copyright  publications 
for  which  entries  have  been  made  during  the 
year.* 

Sec.  4956.  No  person  shall  be  entitled 
to  a  copyright  unless  he  shall,  i,  before 
publication  deliver  at  the  office  of  the  librarian 
of  Congress,  or  deposit  in  the  mail  addressed 
to  the  librarian  of  Congress,  at  Washington, 
District  of  Columbia,  a  pnnted  copy  of  the 
title  of  the  book  or  other  article,  or  a  descrip- 
tion of  the  painting,  drawing,  chromo,  statue, 
statuary,  or  model  or  design  for  a  work  of  the 
fine  arts,  for  which  he  desires  a  copyright ;  nor 
unless  he  shall  also,  2,  within  ten  days 
from  the  publication  thereof,  deliver  ai  the 
office  of  the  librarian  of  Congress,  or  deposit 
in  the  mail  addressed  to  the  librarian  of  Con- 
gress, at  Washington,  District  of  Columbia, 
two  copies  of  such  copyright  book  or  other 
article,  or,  in  case  of  a  painting,  drawing,  statue, 
statuary,  model,  or  design  for  a  work  of  the 
fine  arts,  a  photograph  of  the  same.*" 

Sec.  4957.  The  librarian  of  Congress  shall 
record  the  name  of  such  copyright  book,  or 
other  article,  forthwith  in  a  book  to  be  kept  for 
that  purpose,  in  the  words  following:  "  Libraiy 
of  Congress,   to  wit:    Be  it  remembered  that 

on  the day  of , ,  A.  B„  of . 

hath  deposited  in  this  office  the  title  of  a  book 
(map,  chart,  or  otherwise,  as  the  case  may 
be,  or  description  of  the  article),  the  title  or 
description  of  which  is  in  the  following 
words,  to  wit :  (here  insert  the  title  or  descrip 
tion),  the  right  whereof  he  claims  as  author 
(originator,  or  proprietor,  as  the  case  may  be), 

100  ;  6  Exch .  583 ;  See  32  Bea v  462  ;  2  N .  R  256 ;  AmbI . 
342  ;  I  Ball  &  B.  207 .  2  V.  &  B  i.) ;  3  Edw.  Ch.  515 .  3 
Barb.  Ch  320,  4  Duer,  37.^ :  35  Barb.  502  ;  3  Id  320. 
C-Copinger  Copyright,  32.  d-Laws  1870,  Juiv  8,  Vol  16, 
Ch  230,  a  85,  p.  212  :  Rev.  1873-4,  Title  LX,  Ch.  3,  j 
4948.  e-ld  Rev.  1873-4;  Id.  ^4949;  f-Id.  Rev.  1873- 
4  :  Id.  ?4950  g-Id.  Rev.  i873r4  ;  Id.?  4951.  ll-Id.  Jgo; 
see  g  86 ;  Rev.  1873-4  :  \  4952  :  see  Id.  ?  4956  ;  citing  J 
Pet  591  ;  14  How.  528-  •  Blatchf.  625  ;  5  Id.  87:  Id.  335' 
Id  362  ,  6  Id.  356 


COPYRIGHT. 


407 


in  conformity  with  the  laws  of  the  United  States 
respecting  copyrights.  C.  D.,  Librarian  of 
Congress."  And  he  shall  give  a  copy  of'  the 
title  or  description,  under  the  seal  of  the  libra- 
rian of  Congress,  to  the  proprietor  whenever  he 
shall  require  it.' 

"  Sec.  4958.  The  Librarian  of  Congress 
shall  receive  from  the  persons  to  whom 
the  services  designated  are  rendered,  the 
following  fees  :J 

"  I.  For  recording  the  title  or  description  of 
_*any  copyright  book  or  other  article,  fifty  cents. 

"  2.  For  every  copy  under  seal  of  such  record 
actually  given  to  the  i)erson  claiming  the  copy- 
right, or  his  assigns,  fifty  cents. 

"  3.  For  recording  and  certifying  any  instru- 
ment of  writing  for  the  assignment  of  a  copy- 
right, one  dollar. 

"  4.  F3r  every  copy  of  an  assignment,  one 
dollar. 

"All  fees  so  received  shall  be  paid  into  the 
treasury  of  the  United  States." 

Sec.  4959.  The  proprietor  of  every  copy- 
right book  or  other  article  shall  deliver  at 
the  office  of  the  Librarian  of  Congress,  or 
deposit  in  the  mail  addressed  to  the 
Librarian  of  Congress,  at  Washington, 
District  of  Columbia,  within  ten  days  after 
its  publication,  two  complete  printed 
copies  thereof,  of  the  best  eduion  issued,  or 
description  or  photograph  of  such  article 
as  hereinbefore  required,  and  a  copy  of  every 
subsequent  edition  wherein  any  substan- 
tial changes  shall  be  made.'' 

Sec.  4960.  For  every  failure  on  the  part 
of  the  proprietor  of  any  copyright  to  de- 
liver, or  deposit  in  the  mail,  either  of  the 
published  copies,  or  description,  or  pho- 
tograph, required  by  Sections  4956  and  4Qcg, 
the  proprietor  of  the  coiwri<jht  shall  be  liable 
to  a  penalty  of  twenty-five  dollars,  to  be 
recovered  by  the  Librarian  of  Congress,  in  the 
name  of  the  United  States,  in  an  action  in  the 
nature  of  an  action  of  debt,  in  any  district 
court  of  the  United  States  within  the  jurisdic- 
tion of  which  the  delinquent  may  reside  or  be 
found.' 

Directions  iNMneil  by  the  l>1brartan  of 
ConsrreMH  for  SeoiirlnsT  C'opyriarlitH, 
Under  the  Revised  Act  of  CongrreiiH, 
which  tooii  effect.  An$;n!«t  1,  1874. 

Office  of  the  Librarian  of  Congress, 
H'ashington,  1877. 

Entry  of  Title  or  I>eRcri|»tion.  etc. 

I.  A  printed  copy  of  the  title  of  the  book,  map, 
chart,  dramatic  or  musical  composition,  eiiKraving,  cut, 
print,  photograph,  or  a  description  of  the  painting, 
drawing,  chromo,  statue,  statuary,  or  model  or  design 
for  a  work  of  the  fine  arts,  for  which  copyright  is  de- 
sired, must  be  sent  by  mail  or  otherwise,  prepaid, 
addressed, 

LIBRARIAN  OF  CONGRESS. 

Washington,  D.  C. 

This  must  be  done  before  publication  of  the  book  or 
other  article. 

a.  A  fee  of  fifty  cents,  for  recording  the  title  of 
eacii  book  or  other  article,  must  be  inclosed  with  the 
title  as  above,  and  fifty  cents  in  addition  (or  one 

l-Id.  Zai  ■  Rev.  1873-4;  Id.  J  4957-  j-U-  ?  Q2.  Rev. 
'873-4;  Id.  ?  4958.    k-Id.293;  Rev.  1873-4  ;  Id.  §4959. 


dollar  in  all)  for  each  certificate  of  copyright  under 
seal  of  the  librarian  of  Congress,  which  will  be  trans- 
mitted by  return  mail. 

Sending^  two  rouipieie  CopieM,  Penalty, 
elc. 

3.  'Within  ten  days  after  publication  of  each  book 
or  other  anicle,  two  complete  copies  of  the  best 
edition  issued  must  be  sent  to  perfect  the  copyright, 
with  the  address, 

LIBRARIAN  OF  CONGRESS. 

Washington,  D.  C. 
It  is  optional  with  those  sending  books  and  other  artU 
cles  to  perfect  copyright,  to  send  them  by  mail  or  ex- 
press ;  but,  ill  either  case,  the  charges  are  to  be  prepaid 
by  the  senders.     Without  the   deposit   of   copies 
above  required  the  copyright  is  void,  and  a  penalty  of 
twenty-five  dollars  is  incurred. 
No  copy  is  required  to  be  deposited  elsewhere. 
Notice  of  Copyright  to  be  Given  by 
Imprint. 

4.  No  copyright  is  valid  unless  notice  is  given 
by  inserting  in  every  copy  published,  on  the  title  page 
or  the  page  following,  if  it  be  a  book ;  or,  if  a  map, 
chart,  musical  composition,  print,  cut,  engraving,  pho- 
tograph, painting,  drawing,  cliromo,  statue,  statuary, 
or  model  or  design  intended  to  be  perfected  as  a  work 
of  the  fine  arts,  by  inscribing  upon  some  portion 
thereof,  or  on  the  substance  on  which  the  same  is 
mounted,  the  following  words,  viz.  :  "  Entered  ac- 
cording to  act  of  Congress,  in  the  year ,  by 

,  in  the  office  of  the  librarian  of  Congress,  at 

Washington  ;  "  or  at  the  option  of  the  person  entering 
thecopyright,  the  words:  "  Copyright,  18 — ,  by ." 

The  law  imposes  a  penalty  of  one  hundred  dol- 
lars upon  any  person  who  has  not  obtained  copy- 
right who  shall  insert  the  notice,  "  Entered  ac- 
cording to  act  of  Congress,"  or  "  Copyright,"  etc., 
or  words  of  the  same  import,  in  or  upon  any  book  01 
other  article. 

Translation*),  etc. 

5.  Any  author  may  reserve  the  right  to  trans. 
late  or  to  dramatize  his  own  Vi'ork.  In  this  case, 
notice  should  be  given  by  printing  the  words,  "  Right 
of  Translation  reserved,"  or,  "All  rights  re- 
served," below  the  notice  of  copyright  entry,  and  no- 
lifying  the  librarian  of  Congress  of  such  reservation,  to 
be  entered  upon  the  record. 

T>nration  of  roi»yrigrht. 

6.  Each  copyright  secures  the  exclusive  right 
of  publishing  the  book  or  article  copyrighted  for 
the  term  of  twenty-eight  years.  Six  months  be- 
fore the  end  of  that  time,  the  author  or  designer, 
or  his  widow  or  children,  may  secure  a  rene>vai 
for  the  further  term  of  fourteen  years,  making 
forty-two  years  in  all. 

Renewal  of  Copyrisrht. 
Applications  for  renewal  must  be  accompanied 
by  explicit  statements  of  ownership,  in  the  case  of 
the  author,  or  of  relationship,  in  the  case  of  his  heirs, 
and  must  state  definitely  the  date  and  place  of  entry  of 
the  original  copyright. 

Time  of  Pnblication. 

7.  The  time  within  which  any  wrork  copy- 
righted may  be  issued  from  the  press  is  not  limited 
by  any  law  or  regulation,  but  depends  upon  the  discre- 
tion of  the  proprietor.  A  copyright  may  be  secured 
for  a  projected  ^vork  as  well  as  for  a  completed 
one. 

AHHig'nineiit«<. 

8.  Any  copyright  is  assignable  in  law  by  any  in- 
strument of  writing,  but  such  assignment  must  be 
recorded  in  the  office  of  the  librarian  of  Congress, 
within  sixty  days  from  its  date.  The  fee  for  this 
record  and  certificate  is  one  dollar,  and  for  a  certified 
copy  of  any  record  of  assignment  one  dollar. 

CopicM.  or  Dn|»licate  OrtiflcateA. 

g.  A  copy  of  the  record  (or  duplicate  certificated  of 
any  copyright  entry  will  be  furnished,  under  seal,  at  the 
rate  of  fifty  cents  each. 

SerialN  or  Separate  Publications  to  be 
Copy  risrli  led. 

10.  In  the  case  of  books  published  in  more  than 
one  volume,"  or  of  periodicals  published  in  num- 

1-Id.  2  04 ;  Rev.  1873-4  ;  Id.  J  4960.  niCopyright  notict 
in  the  first  volume  is  sufficient.    1  N.  Y.  Leg.  Obs.  \^ 


COPYRIGHT. 


bers,  or  of  engravings,  photographs,  or  other  ar- 
ticles published  with  variations,  a  copyright  is  to 
be  taken  out  for  each  vohime  or  part  of  a  book,  or  num' 
ber  of  a  periodical,  or  variety,  as  to  size-,  title,  or  in- 
scription, of  any  other  article. 

Copyright  for  Works  of  Art. 

IX.  To  secure  a  copyright  for  a  painting,  statue, 
Dr  model  or  design  intended  to  be  perfected  as  a 
work  of  the  fine  arts,  so  as  to  prevent  infringement 
by  copying,  engraving,  or  vending  such  design,  a  defi- 
nite description  must  accompany  the  application  for 
copyright,  and  a  photograph  of  the  same,  at  least  as 
large  as  "  cabinet  size,"  must  be  mailed  to  the  Librarian 
of  Congress  within  ten  days  from  the  completion  of  the 
work. 

TKo  Isabels  Copyriirlit. 

xa.  Copyrights  cannot  be  granted  upon  trade- 
marks, nor  upon  labels  intended  to  be  used  with 
any  article  of  manufacture.  If  protection  for  such 
prints  or  labels  is  desired,  application  must  be  to  the 
patent  office,  where  they  are  registered  at  a  fee  of  six 
dollars  for  labels,  and  twenty-five  dollars  for  trade-marks. 

Fnll  TTame  ofProprietor  Required. 

X3.  Every  applicant  for  a  copyright  must  state 
distinctly  the  name  and  residence  of  the  claimant,  and 
whether  the  right  is  claimed  as  author,  designer,  or  pro- 
prietor. No  affidavit  or  formal  application  is 
required. 

Lien.  Electro  or  stereotype  printers  have 
not  a  general  lien  on  plates  not  manufactured 
by  themselves,  but  only  put  into  their  hands 
for  the  purpose  of  printing  from  them."  To 
establish  a.  genera/  /ten  such  printer  must  show 
such  a  custom  of  trade  that  the  other  party  to 
the  transaction  contracted  with  reference  to 
such  custom ;  "  nothing  short  of  this  will  dis- 
pense with  an  express  contract,"  etc." 

A  printer  who  is  employed  to  print  certain 
numbers,  but  not  all  consecutive  numbers,  of 
an  entire  work,  has  a  general  lien  upon  the 
copies  not  delivered  for  his  balance  due  for 
printing  the  whole  of  those  numbers." 

A  printer  of  a  book  in  process  of  publica- 
tion is  not  entitled  to  sell  it  for  his  payment,? 
although  he  has  a  lien  upon  it  against  the 
author  or  his  creditors  until  delivery. 

See  title  Bailments,  ante. 

Local  or  State  Copyright.  Although  a 
particular  State  cannot  take  away  from  an  indi- 
vidual the  property  given  him  by  act  of  Con- 
gress, and  though  the  laws  of  such  State  are 
imperative  as  against  the  laws  of  the  United 
States  with  which  they  may  come  in  collision,"! 
yet  if  an  author  or  inventor  instead  of  resort- 
ing to  the  act  of  Congress  should  apply  to  the 
general  assembly  or  legislature  of  a  particular 
State  for  an  exclusive  right  to  his  production, 
there  is  nothing  to  hinder  that  State  granting 
it,  though  the  operation  of  such  grant  would 
be  confined  to  the  limits  of  the  State,'  and  the 
use  of  the  property  is  of  exclusively  local  char- 
acter; like  all  other  property  it  must  be  used 
and  enjoyed  within  each  State  according  to  the 
laws  of  such  State." 

m-M.  &  M.  456,  46s:  4  C.  R  P.  151.  w-Id.,  Id. 
0-3  M.  &  S.  167.  p-Maugham  Literary  Property, 
177,  n.  4.  q-See  9  Wheat.  186.  r-9  Johns.  581.  S-ld. 
t-See  opinions  of^  Cockbtirn,  C.  J.,  and  Pilackburn,  J., 
in  L.  Rep:  I  Q  B.  350,354:  7  B.  &S  869;  15  L.  T.  (N. 
S.)  530:  36  L.  J.  loj,  Q.  B.:  and  Kelly,  C.  B.  on  Ap- 

ral,  L.  Rep.;  3Q.  B.723:9  B.  &  S.  175;  37  L.  J.  84:9 
;  jP   L.  T.   (N.  S.^  los:  Shortl.  118.     n-i  Y.  &  C. 
)Di,    v-ld.    w-i  C.  B.  CN.  S.)  j8*.    x-7  C  B.  4.   y- 


Manuscripts.  See  Infringement,  above; 
Remedies,  etc.  ;  Unpublished,  below. 

Musical  Compositions.  Although  the 
score  of  an  opera  or  piece  of  concerted  music 
is  so  far  an  independent  work  as  to  be  copy- 
righted in  the  name  of  the  compiler,  it  seems 
that  one  may  not  compile  such  score  without 
the  consent  of  the  composer  of  the  opera  or 
piece.* 

Piracy  may  be  of  part  of  an  air  as  well  as  of 
the  whole."  To  publish  in  the  form  of  quad- 
rilles and  waltzes  the  airs  of  an  opera,  of  which 
there  exists  an  exclusive  copyright  is  an  instance 
of  piracy.' 

The  addition  of  words,  prelude,  and  accom- 
paniment to  an  old  air  gave  the  adapter  a  copy- 
right in  the  whole  composition,''  and  where  a 
person  adapted  words  to  an  old  air  and  pro- 
cured a  friend  to  compose  an  accompaniment, 
his  assignee  was  entitled  to  describe  himself 
in  an  action  for  piracy  as  proprietor  of  the  copy- 
right in  the  entire  composition.*  As  to  how 
far  an  arrangement  for  the  pianoforte  of  the 
score  of  an  opera  is  an  original  work.^ 

Name  and  Date,  etc.  Errors  in  the  name 
of  a  person  copyrighting,  or  of  the  date  of 
copyright,  prevent  the  author  or  proprietor  from 
proceeding  by  action,  suit,  or  otherwise,  until 
such  errors  have  been  amended;  or  invalidate 
a  subsequent  assignment  under  the  act.*  The 
name  of  a  firm  will  be  sufficient  without  the 
names  of  all  its  members.*  A  change  in  the 
style  of  printing  an  author's  or  publisher's 
name,  or  a  change  of  publishers  will  not  affect 
the  copyrighted  title  of  a  book. 

See  Record,  etc.,  below. 

Name  or  Title.  The  name  or  title  of  a 
work  may  be  considered  as  a  kind  of  a  trade- 
mark which  no  other  person  than  the  proprietor 
of  the  work  can  use  so  as  to  damage  him  in  his 
property  in  it.*"  Cases  of  this  kind  depend 
rather  upon  the  question  whether  the  defend- 
ant has  a  right  to  sell  as  his  own  that  in  which 
another  has  acquired  a  description  of  property 
than  on  the  question  of  copyright." 

Notes — Bona  Fide  The  work  or  part  of 
the  work  of  another  may  be  made  the  founda- 
tion of  iona  fide  notes  and  observations,  and 
may  be  published  with  such  notes  or  observa- 
tions without  infringing  the  copyright  in  the 
original  work.  "Any  person  may  copy  and 
publish  the  whole  of  a  literary  composition, 
provided  he  writes  notes  upon  it  so  as  to  pre- 
sent it  to  the  public  connected  with  matter 
of  his  own.*  if  a  man  took  "Paley's  Philoso- 
phy and  copied  a  whole  essay,  with  observa- 
tions and  notes,  or  additions  at  the  end  of  it,  it 
would  depend  on  the  facts  of  whether  the 
publication  of  that  essay  was  to  convey  to  the 

See  7  B.  &  S.  869 ;  9  Id.  175  ;  L.  Rep.  2  Q.  B.  340 ;  L 
Rep.  3  Q.  B.  223 ;  18  L.  T.  (N.  S.)  105.  «-This  is  th« 
English  rule,  33  T.  J.  717,  Ch.  10;  L.  T.  (N.  S.)  838; 
lo  jur.  (N.  S.)  922 ;  12  W.  R.  1069;  L.  R.  7  Eij.  270; 
T5  Id.  104.  a-L.  R.  7  Eq.  270;  15  Id.  104.  b-See  11 
Sim.  582;  «  Phil.  154.  C-2  K.  &  J-,  126;  8  Ves.  215; 
16  Ves.  271 ;  a  Jur.  (N.  S.)  414;  4  Wood.  519;  i  Giff 
98  :  5  Jur.  (N.  S.)947;  »  K.  &  J.  123;  3  B.  *  C.  y,\ 
A-f)  Sim.  sgS. 


COPYRIGHT. 


409 


public  the  notes  and  observations  fairly,  or 
only  to  color  the  publication  of  the  original 
essay  and  make  that  a  pretext  for  pirating  it ; 
if  the  latter  il  could  not  be  sustained.* 

The  quantity  as  well  as  the  character  of 
critical  notes  added  to  the  woric  of  another  is 
an  important  element  in  determining  the  ques- 
tion of  dona  fide  notes.* 

Notice.  Where  the  title-page  of  a  book 
was  deposited  in  1846,  and  the  notice  of  the 
entering  inserted  in  the  volume  stated  it  to 
have  been  deposited  in  1847,  even  though  the 
error  arose  from  a  mistake,  it  was  nevertheless 
held  fatal  to  the  copyright.' 

Obscene,  Immoral,  or  Libellous  Works. 
The  author  or  publisher  of  a  work  of  libellous 
or  an  immoral  tendency  can  have  no  property 
in  it.  Such  a  work  is  not  the  subject  of  copy- 
right. They  are  entitled  to  no  protection 
whatever,  and  no  action  can  be  maintained  for 
pirating  them.* 

Obscene,  Immoral,  and  Indecent  Publi- 
cations, ETC.  "  Every  person  who,  within  llie 
District  of  Columbia,  or  any  of  the  territories 
of  the  United  States,  or  other  place  within  the 
exclusive  jurisdiction  of  the  United  States, 
sells,  or  lends,  or  gives  away,  or  in  any  man- 
ner exhibits,  or  offers  to  sell,  or  to  lend,  or  to 
give  away,  or  in  any  manner  to  exhibit,  or 
otherwise  publishes  or  offers  to  publish  in  any 
manner,  or  has  in  his  possession  for  any  such 
purpose,  any  obscene  book,  pamphlet,  paper, 
writing,  advertisement,  circular,  print,  picture, 
drawing,  or  other  representation,  figure,  or 
image,  on  or  of  paper  or  other  material,  or 
any  cast,  instrument,  or  other  article  of  an 
immoral  nature,  or  any  drug  or  medicine,  or 
any  article  whatever  for  the  prevention  of 
conception,  or  for  causing  unlawful  abortion, 
or  who  advertises  the  same  for  sale,  or  writes 
or  prints,  or  causes  to  be  written  or  printed, 
any  card,  circular,  book,  pamphlet,  advertise- 
ment or  notice  of  any  kind,  stating  when, 
where,  how,  or  of  whom,  or  by  what  means 
any  of  the  articles  in  this  section  hereinbefore 
mentioned  can  be  purchased  or  obtained,  or 
manufactures,  draws  or  prints,  or  in  any  wise 
makes  any  of  such  articles,  shall  be  imprisoned  at 
hard  labor  in  the  penitentiary  for  not  less  tlian 
six  months,  nor  more  than  five  years  for  each 
offence,  or  fined  not  less  than  one  hundred 
dollars,  nor  more  than  two  thousand  dollars, 
with  costs  of  court. '■■> 

"No  obscene,  lewd,  or  lascivious  book,  pam- 
phlet, paper,  picture,  print,  or  other  ])ublication 
of  an  indecent  character,  or  any  article  or  thing 
designed  or  intended  for  the  prevention  of 
/•onception  or  procuring  of  abortion,  nor  any 
article  or  thing  intended  or  adapted  for  any 
indecent  or  immoral    use   or  nature,  nor  any 

4k-^  E«p.  ifig:  see  3  M.  &  Cr.  711,  728.  e-ii  Sim.  31. 
r-2  Blatchf.  82.  s:-7  D.  &  R.  625  :  5  B.  &  C.  173  :  «  C. 
&  P.  16^ :  7  Ves.  I  ;  2  Merriv.  435 :  11  Beav.  117,  119  ; 
L.  R.  2"Ch  App.  ^10;  16  L.  T.  (N.  S.)  130;  36  L.  J. 
438  Ch.  :  L.  R.  6  Eq.  561  :  19  L.  T.  (N.  S.)  6s  :  37  L. 
J  889  Ch,  :  Jacob  471.  h-Laws  U.  S.  1873,  March  3, 
Vol.    »7,  Ch.  258,  \  \,  p.    598;    Rev.   1873-4,  \  5389. 


written  or  printed  card,  circular,  book,  pam 
phlet,  advertisement,  or  notice  of  any  kind 
giving  information,  directly  or  indirectly,  when 
or  how,  or  of  whom,  or  by  what  means,  either 
of  the  things  before  mentioned  may  be  obtained 
or  made ;  nor  any  letter  upon  the  envelope 
of  which,  or  postal  card  upon  which  indecent 
or  scurrilous  epithets  may  be  written  or  printed 
shall  be  carried  in  the  mail ;  and  any  person 
who  shall  knowingly  deposit,  or  cause  to  be 
deposited  for  mailing  or  delivery,  any  of  the 
hereinbefore  mentioned  articles  or  things,  or 
any  notice  or  paper  containing  any  advertise- 
ment relating  to  the  aforesaid  articles  or  things, 
and  any  person  who,  in  pursuance  of  any  plan 
or  scheme  for  disposing  of  any  of  the  herein- 
before mentioned  articles  or  things,  shall  take 
or  cause  to  be  taken  from  the  mail  any  such 
letter  or  package,  shall  be  deemed  guilty  of  a 
misdemeanor,  and  shall,  for  eveiy  offence,  be 
fined  not  less  than  one  hundred  dollars,  nor 
more  than  five  thousand  dollars,  or  imprisoned 
at  hard  labor  not  less  than  one  year,  nor  more 
than  ten  years,  or  both."  ' 

"  All  persons  are  prohibited  from  importing 
into  the  United  States  from  any  foreign  coun- 
try any  obscene  book,  pamphlet,  paper,  writing, 
advertisement,  circular,  print,  picture,  drawing, 
or  other  representation,  figure,  or  image,  on  or 
of  paper  or  other  material,  or  any  cast,  instru- 
ment, or  other  article  of  an  immoral  nature,  or 
any  drug  or  medicine,  or  any  article  whatever 
for  the  prevention  of  conception,  or  for  causing 
unlawful  abortion,"  etc.  (providing  mode  of 
proceedings  against,  for  seizure,  forfeiture,  and 
destruction  of  same,  etc.)J 

"  Whoever,  being  an  officer,  agent,  or  em- 
p]oy6  of  the  government  of  the  United  States 
shall  knowingly  aid  or  abet  any  person  engaged 
in  any  violation  of  any  of  the  provisions  of  law 
prohibiting  importing,  advertising,  dealing  in, 
exhibiting,  or  sending  or  receiving  by  mail, 
obscene  or  indecent  publications  or  representa- 
tions, or  means  for  preventing  conception  or 
jirocuring  abortion,  or  other  articles  of  indecent 
or  immoral  use  or  tendency,  shall  be  deemed 
guilty  of  a  misdemeanor,  and  shall,  for  every 
offence  be  punishable  by  a  fine  of  not  less  than 
one  hundred  dollars,  and  not  more  than  five 
thousand,  or  by  imprisonment  at  hard  labor  for 
not  less  than  one  year,  nor  more  than  ten,  or 
both."  k 

The  test  of  obscenity  is,  "  Whether  the  in- 
tention and  tendency  of  the  matter  charged  as 
obscenity  is  to  deprave  and  corrupt  those  whose 
minds  are  open  to  such  immoral  influences, 
and  into  those  whose  hands  a  publication  of 
the  sort  may  fall.'  This  lest  unmodified  would 
sweep  away  such  works  as  Shakespeare,  Jon- 
son,   Beaumont,    Fletcher,    Chaucer,    Dryden, 

Modified  by  last  Congress.  1-Laws  U.  S.  1873,  March 
3,  Vol  17.  Ch.  158,  ?  2,  p.  599:  Rev.  1873-4,  I  3893. 
j-Laws  U.  S.  1857,  March  2,  Vol.  11,  Ch.  63,  p.  168: 
l^ws  1873,  Vol.  17,  Ch.  258,  §§  1,  3,  5,  pp.  598,  599; 
Rev.  1873-4,  title  33,  ??  2491,  2492;  Sprague,  467. 
k-Laws  U.  S.  1873,  Mirch  3,  Vol.  7,  Ch.  258,  ?  4, 
p.  ';q9  ;  Rev.  1873-4,  title  19,  g  1785.  1-L.  Rep, 
32,  B.  371 ;  »8  L.  T.  (N.  S.)  398 ;  36  L-  J-  9.  8  M.  C 


4IO 


COPYRIGHT. 


Byron,  D»  Foe,  Smollett,  Fielding,  and  others, 
in  whose  works  such  tares  are  accessories 
which  form  the  great  contrasts  and  effects  in- 
tended by  these  writers,  and  which,  separated 
by  themselves,  could  not  be  tolerated. 

Originality.  The  law  will  secure  to  a 
man  the  property  in  every  genuine  product  of 
his  own  mental  labor,  whether  that  product 
takes  the  form  of  a  compilation,  abridgment, 
new  arrangement,  or  wholly  original  work — if 
indeed  there  can  be  any  such  thing  as  a  wholly 
original  work.  "  In  truth,  in  literature,  in 
science,  and  in  art  there  are  and  can  be  few, 
if  any,  things  which  in  an  abstract  sense  are 
strictly  new  and  original  throughout.  Every 
book  in  literature,  science,  and  art  borrows, 
and  must  necessarily  borrow  and  use  much 
which  was  well  known  and  used  before;  no 
man  creates  a  new  language  for  himself,  at 
least  if  he  be  a  wise  man,  m  writing  a  book ; 
he  contents  himself  with  the  use  of  language 
already  known,  and  used  and  understood  by 
others.  The  thoughts  of  every  man  are  more 
or  less  a  combination  of  what  other  men  have 
thought  and  expressed,  although  they  may  be 
modified,  excelled,  or  improved  by  his  own 
genius  or  reflection.  If  no  book  could  be  the 
subject  of  copyright  which  was  not  new  and 
original  in  the  elements  of  which  it  is  com- 
posed, there  could  be  no  ground  for  copyright 
in  modern  times ;  and  we  should  be  obliged  to 
ascend  very  high  even  in  antiquity  to  find  a 
work  entitled  to  such  eminence."" 

The  test  of  originality  is  "  whether  the 
claimant's  book  contains  any  substantive  pro- 
duct of  his  own  labor."" 

To  constitute  one  an  author  he  must,  by  his 
own  intellectual  labor,  applied  to  the  materials 
of  his  composition,  produce  an  arrangement  or 
compilation  new  in  itself."  In  the  case  of  sub- 
jects ojjen  to  all,  the  work  of  the  author  must 
not  be  copied,  but  recourse  must  be  had  to  the 
original  sources.?  One  who  gets  another,  or 
others,  to  compile  a  work  or  engrave  a  print  is 
not  entitled  to  copyright."! 

The  utmost  that  the  law  can  do  is  to  require 
and  insist  that  the  secondary  author  shall  have 
exercised  original  labor  in  devising  the  plan, 
selection,  arrangement,  and  presentation  of  the 
materials  which  he  has  found  in  medio  (com- 
mon to  all)  and  oj>en  to  all.  It  will  not  be 
sufficient  on  the  one  hand  that  he  has  bestowed 
upon  his  work  the  manual  labor  of  copying  or 
clipping  the  material ;  nor  will  it  be  necessary 
on  the  other,  that  he  has  used  such  judgment 
in  discovering  the  wants  of  the  public,  and 
such  skill  as  to  have  produced  a  really  valu- 
able book ;  the  product  of  actual  mental  labor, 
whether  valuable  or  worthless,  will  be  jwo- 
tected  by  law.' 

A  judicious,  careful,  and  useful  arrangement 

in-3  Story,  770.  See  also  1  Id.  16.  n-Curtis  Copy- 
right, 171,  172;  5  Ves.  23,   I  East.  358  ;  8  Ves.  221 ;  \( 


Id  269:  L.  R.  lEq.  702;  14  L.  T.  (N.  S. )  222 ;  35  L.  J. 
423;  14  W.  496;  3  K..  &  J.  708.  0-2  Blatchr.  46;  see 
above.  |»-2  Paine  C.  C.  400,  401 ;  3  Story,  781 ;  i  Id.  17. 
q-t  Woodb.  &  Min.  46 ;  2  BUtchf.  46.  r-i  Morgan,  316, 


of  old  and  well-known  material  may  be  pra 
duced  by  original  labor,  and,  if  so,  will  be  en- 
titled to  protection.*  But  though  any  pei-son 
may  thus  acquire  a  copyright  in  his  own  ar- 
rangement of  common  materials,  the  materials 
themselves  remain,  as  always,  open  to  the  next 
comer  who  chooses  to  have  recourse  to  them, 
and  different  copyrights  may  be  acquired  in 
different  arrangements  of  the  same  common 
materials.  These  difierent  arrangements  must, 
however,  be  independent.  A  later  arrange- 
ment must  not  be  a  servile  imitation  or  repro- 
duction of  an  earlier  one.* 

Parts  of  Works.  Where  the  parts  of  a 
work  can  be  separated,  there  may  be  a  copy- 
right in  any  distinct  part  of  it." 

Parts  and  Extracts  of  a  Work.  That 
part  of  the  work  of  one  author  is  found  in 
another  is  not  of  itself  piracy,  or  sufficient  to 
support  an  action ;  but  the  extracts  may  be  too 
many,  or  contain  too  large  or  important  a  por- 
tion of  the  work  from  which  they  are  made ; 
then  they  will  amount  to  piracy,  even  though 
they  were  published  in  the  form  of  quotations, 
and  the  source  from  which  they  were  taken  is 
expressly  declared.^ 

See  Quotations,  below. 

Periodicals.  Copyright  in  periodical  pub- 
lications may  be  infringed  in  the  same  manner 
as  in  the  case  of  other  literary  works ;  but  this 
species  of  property  may  also  be  infringed  in  a 
manner  peculiar  to  itself.  Even  when  the 
copyright  in  contributions  to  encyclopaedias, 
reviews,  magazines,  and  other  periodicals  is 
vested  in  the  proprietors  of  such  encyclojiaedias, 
etc.,  the  right  of  publishing  his  contribution  in 
a  separate  form  reverts  to  the  author  twenty- 
eight  years  from  the  first  publication,  and  the 
proprietor  cannot,  during  the  term  of  his  own 
copyright,  publish  it  in  a  separate  form  without 
the  previous  consent  of  the  author  or  his  a!»- 
signs.''  A  republication  in  supplemental  num- 
bers of  a  selection  of  various  tales  previously 
published  in  that  periodical  is  an  infringe- 
ment.'' 

The  author  has  a  modified  property  in  pos- 
session, and  the  sole  property  in  reversion. 

Photographing.  Making  an  unauthorized 
photograph  of  the  engraving  of  a  picture  is  a 
photographing  or  copying  of  the  picture  itself. 
If  the  design  is  copied,  it  is  immaterial  whether 
it  'is  done  directly  from  the  original,  or  indi- 
rectly through  the  medium  of  a  copy.'  It 
would  be  otherwise  if  the  owner  had  parted 
with  the  right  to  multiply  engravings.' 

Piano  Scores  of  operas  are  independent 
musical  compositions,  specific,  separate,  and 
distinct  from  operas  themselves.  It  requires 
time,  reflection,  skill,  and  mind,  so  to  con- 
dense the  opera  score  as  to  compose  the  piano- 

3150,  citing  Curtis  Copyright,  172.  s-2  Blatchf.  39.  t-i 
Morgan,  344,  g  169,  and  notes.  n-L.  Rep.  6  Eq.  41S. 
V-See  10  Jur.  420;  L  Rep.  ?  Eq.  718;  16L.  T.  (N.S., 
51.  W-See  16  Sim.  190 ;  i  J.  &  H .  312  ;  3  L.  T.  fN. 
S.)  466;  9  Sc.  Sess.  Cas.  1026;  13  Id  zio.  x-4  Giff. 
632;  6L.  T.  (N.S.)437;  33  L- /■  i37,  Ch.  y-v  B.  & 
S-  395>  401  •    z-Id. 


COPYRIGHT. 


411 


forte  accompaniment.*  Whether  a  piano-forte 
arrangement  of  the  score  of  an  opera,  executed 
without  the  consent  of  the  composer  of  the 
opera,  would  be  an  infringement  of  his  copy- 
right therein  has  not  been  expressly  decided. •> 

Piracy  in  General.  If  so  much  is  taken 
as  to  impair  the  value  of  the  original  work,  or 
so  that  the  labors  of  the  original  author  are 
substantially  appropriated,  this  will  constitute 
a  piracy."  But  the  question  of  piracy  does  not 
idepend  solely  upon  quantity.^  Intention  is 
not  a  necessary  element  in  the  offence  of  piracy. 
3f  a  copyrii^ht  has  been  invaded,  whether  the 
party  knew  the  work  was  copyrighted  or  not, 
he  is  liable  to  the  penalty  for  violation  there- 
of.* 

The  inquiry  in  most  cases  is  not  whether 
the  defendant  has  used  thoughts,  conception, 
information,  and  discoveries  promulgated  by 
the  original,  but  whether  his  composition  may 
be  considered  a  new  work,  requiring  inven- 
tion, learning,  and  judgment,  or  only  a  mere 
transcript  of  the  whole  or  parts  of  the  original, 
with  mere  colorable  variations.' 

Plan  or  Method.  There  can  be  no  copy- 
right of  a  mere  plan  or  method  of  a  work,  dis- 
tinct from  the  work  itself,  any  more  than  there 
can  be  copyright  of  an  abstract  idea.* 

"  Quotation  is  necessary  for  reviewing ; 
the  quotation  for  such  a  purpose  is  not  to  have 
the  appellation  of  piracy  affixed  to  it,  but  quo- 
tation may  be  carried  to  the  extent  of  mani- 
festing piratical  intention." ''  "A  reviewer 
may  fairly  cite  largely  from  the  original  work, 
if  his  design  be  really  and  truly  to  use  the 
passages  for  the  purposes  of  fair  and  reason- 
able criticism.  On  the  other  hand,  it  is  as 
clear  that  if  he  thus  cites  the  most  important 
jiarts  of  the  work  with  a  view  not  to  criticise, 
Init  to  supersede  the  use  of  the  original  work, 
and  substitute  the  review  for  it,  such  a  use  will 
be  deemed  in  law  a  piracy.  A  wide  interval 
might,  of  course,  exist  between  these  two  ex- 
tremes, calling  for  great  caution  and  involving 
j:reat  difficulty."' 

See  Parts  and  Extracts,  etc.,  above. 

Receipt  Books.  The  composing  receipts, 
or  arranging  them  in  a  book,  will  give  a  cojiy- 
right  to  the  compiler.  But  the  mere  collecting 
them  and  handing  them  over  to  the  publisher 
will  not.  Nor  will  the  mere  copying  that 
which  is  public  property.  But  if  there  be 
some  new  arrangement  or  classification  of  the 
subject,  or  the  copy  be  not  identical,  and  not 
a  mere  colorable  variation.^  then  a  copyright 
may  exist  for  it.^ 

Record.  Care  should  be  taken  that  the 
copyright  record  is  accurate,  for  an  error  in  it 
will  be  a  fatal  defect  in  the  author  or  proprie- 
tor's copyright. 

a-L.  Rep.  2  Q.  B.  358  :  15  L.  T.  (N.  S.)  530 ;  36  L. 
J.  103,  Q.  B.  ;  15  Wood.  300.  b-L.  Rep.  1  Q.  B.  350, 
354  ;  I  Y.  &  C.  288 :  18  L.  T.  (N.  S.)  108;  L.  Rep.  3 
Q.  B.  223:  37  L.  J.  84,  Q.  B. ;  16  Wood.  485.  c-2 
Story,  115  <l-4  McLean,  309,  310.  e-i  West.  L.  J. 
240.  f-2  Wall.  C.  C.  547;  S.  C.  2  Am.  L.  Reg.  231. 
p^-4  McLean,   316.     I1-2  Russ.  393;  i  Campb.  97;  3 


REMEDIES  UWDER  THE  COPYRIGHT 
ACT. 

JnrlHtliction. 

Sec.  4970.  The  circuit  courts,  and  district 
courts  having  the  jurisdiction  of  circuit  courts, 
shall  have  power,  upon  bill  in  equity,  filed  by 
any  party  aggrieved,  to  grant  injunctions  to  pre- 
vent the  violation  of  any  right  secured  by  the 
laws  respecting  copyrights,  according  to  the 
course  and  principles  of  courts  of  equity,  on 
such  terms  as  the  court  may  deem  reasonable.' 

The  jurisdiction  given  the  federal  court  by 
the  acts  of  Congress  has  not  taken  away  or 
diminished  the  original  jurisdiction  which  be- 
fore such  acts  "  the  state  courts  exercised ;  ex- 
cept when  the  jurisdiction  was  made  exclusive 
in  express  terms,  or  by  the  necessary  construc- 
tion of  the  constitution." 

I.iiinitation. 

Sec.  4968.  No  action  shall  be  main- 
tained in  any  case  of  forfeiture  or  penalty 
under  the  copyright  laws,  unless  the  same  is 
commenced  within  two  years  after  the 
cause  of  action  has  arisen." 

Pleading:  and  Evidence. 

Sec.  4g6g.  In  all  actions  arising  under  the 
laws  respecting  copyrights,  the  defendant  may 
plead  the  general  issue,  and  give  the  special 
matter  in  evidence  p 

COPTRIGHT  PI>EADINGS 

Under  the  Statute. 
Title  of  Action  or  Suit. 

In  the  Circuit  Court  of  the  United  States. 
Fifth  Circuit,  Southern  District  of  Alabama. 

A         R      \ 

■^       I    Complaint  (declaration,  or  petition). 
c"^D   (    Infringement  of  copyright. 
Said  A.  B.  (in  person,  or  by  A.  A.,  his  attorney) 
respectfully  represents  (t^r  alleges,  and  complains)  aa 
follows: 

Another. 
In  the  Circuit  {or  District  )  Court  of  the  United 
States. 
For  the  Middle  District  of  Tennessee. 

\     '  (Complaint  (declaration,  or  petition) 
C^'^D   f  Infringement  of  copyright. 
Said  A.  B.,  etc  (as  above). 

Another. 
United  States  Circuit  Court. 
■Western  District  of  Virginia. 
Etc.,  etc.  (as  above). 

Complaint,  Declaration,  or  Petition. 

For  Infringement — General  /■'itrnt. 
(Title,  as  above.) 

I.  Said  A.  B.,  etc.  (as  above). 

II.  That  said  A.  B.  is  a  citizen  of  the  United 
States. 

Or, 
That  said  A.  B    is  a  tesident  of  the  United 
States. 

III.  That  he  is  the  (author,  or  designer  or)  pro- 
prietor of  a  book  (or  other  article,  describing  it)  en- 
titled (here  copy  the  title  or  description  as  coniainfU 
in  the  book,  etc.,  and  ceriificate  of  copyright). 

Or, 

That  he  is  the  (author,  or  designer  and)  proprietor 

of  a  map,  —  chart,  —  dramatic  or  musical  com- 


4ta 


COPYRIGHT. 


position,  —  engravingr,  —  cut,  —  print,  —  photo- 
graph or  negative  thereof,  ot —  painting,  —  draw- 
ing, —  chromo,  —  statue,  —  statuary,  o' model 

or  design  intended  to  be  perfected  as  work  of  the 
fine  arts),  described  as  follows:  [here  copy  the  de- 
i(  ription  as  contained  in  the  certificate  of  copyright  \ 
and  further  described  by  a  photograph  thereof, 
which  is  hereunto  attached,  marked  "  Exhibit 
A,"  and  made  a  part  hereof. 

IV.  That  on  the  day  of ,  and  before 

publication,  said  A.  B.  did  deliver  at  the  office  of 
the  librarian  of  Congress  {or  deposit  in  the  mail  ad- 
dressed to  the  librarian  of  Congress,  at  Washington, 
District  of  Columbia),  a  printed  copy  of  the  title  of 
said  book  [or  other  article,  describing  it),  or  a  de- 
scription of  said  painting,  (drawing,  chromo, 
statue,  statuary,  or  model,  or  design  for  a  work 
of  the  flne  arts). 

V.  That  on  the day  of ,  and  within  ten 

days  from  the  publication  thereof,  said  A.  B.  did 
deliver  at  the  office  of  the  librarian  of  Congress 
(or  deposit  in  the  mail  addressed  to  the  librarian  of 
Congress,  at  Washington,  District  of  Columbia),  t'xvo 
copies  of  such  copyright  book  (or  other  article,  de- 
scribing it,  as  ahove),  (or  in  case  of  a  painting,  draw- 
ing, statue,  statuary,  model  or  design  for  a  "work  of 
the  fine  arts,  a  photograph  of  the  same). 

VI.  That  on  the day  of the  librarian  of 

Congress  did  record  the  name,  description,  and 
title  of  said  copyright  book  (or  other  article,  nnin- 
ing  it),  in  conformity  with  the  laws  of  the  United 
States  respecting  copyrights,  a  certificate  of 
which  recording  is  hereunto  attached,  marked 
"Exhibit  B,"  and  made  a  part  hereof. 

VII.  That  on  the day  of ,and  thereafter, 

he  did  give  notice  of  his  said  copyright  (if  it  he 
a  took,  say,  by  inserting  in  the  several  copies  of  every 
edition  published,  on  (the  page  immediately  following]) 
the  title-page  thereof  the  following  words,  viz.: 

(If  a  map,  chart,  tnusical'^  composition,  print,  cut, 
tngraving,  photograph,  painting,  drawing,  chromo, 
statue,  statuary,  or  model  or  design  intended  to  be 
perfected  and  completed  as  a  work  of  the  fine  arts, 
tay)  by  inscribing  upon  some  visible  portion 
thereof,  or  of  the  substance  on  which  the  same 
shall  be  mounted,  the  following  words,  viz.: 

"  Entered  according  to  act  of  Congress,  in  the 
year ,  by  A.  B.,  in  the  office  of  th-  Li- 
brarian of  Congress,  at  Washington;  "  (or"  Copy- 
right, i8— ,  by  A.  B.") 

IVhen  the  Infrlnsrement  Is  by  Import- 
ine,  Printinsr,  or  Piiblislilng^  a  Book, 
Continue  bm  follows : 

VIII.  That  said  C.  D.,  on  the day  of , 

and  after  the  recording  of  the  title  of  said  book 
as  aforesaid,  did,  within  the  term  limited  by 
Ia^w,  and  without  the  consent  of  the  proprietor 
of  the  copyright  first  obtained  in  writing,  signed 
in  presence  of  two  or  more  witnesses,  print,  pub- 
lish (cr  import),  C(7>- knowing  the  same  to  be  so  printed, 
published,  or  imported),  sell  and  expose  to  sale 
copies  of  such  book. 

That  by  reason  of  the  premises  said  A.  B.  has 

been  prevented  selling copies  of  said  book, 

and  his  profits  in  said  copyright  has  been  dimin- 
ished   dollars. 

IX.  Said  A.  B.  therefore  prays  judgment: 
That  said  C.  D.  shall  render  an  account  of  all 

printing,  publishing,  and  importation  of  said 
book  from unto ,  etc.,  etc. 

That  said  C.  D.  shall  forfeit  and  deliver  forth- 
with every  copy  thereof,  so  printed,  published, 
and  imported,  etc.,  unto  him,  the  said  A.  B. 

That  said  C.  D.  shall  also  forfeit  and  pay  unto 
him,  the  said  A.  B., dollars  damages. 

That  said  C.  D.  be  henceforth  enjoined  and  re- 
strained from  printing,  publishing,  and  import- 
ing said  book,  and  from  committing  any  further, 
or  other  similar,  injuries  relating  to  said  ropy- 
right. 

That  said  C.  D.  be  awarded  his  costs  herein 
taxed  at dollars,  etc. 

(And  any  further  relief.)  (Signed)    A.  B. 

/J.  A., 
Plaintiff' s  (Declarant' s  or 
Petitioner' t)  Attorney. 


Wlien  tliA  Tnfrlnirenient  ia  by  Cn« 
%rn.\\nK,  Etching,  Worklne,  Copying;, 
Printing;:,  PuttliMbliigr,  or  Importing;, 
Eitli<>r  in  Wliole  or  in  Part,  or  by 
Varying:,  ete.,  Sellinjsr  and  Exposing:  to 
Sale,  etc.,  etc.,  continue  as  follows, 
according:  to  the  facts: 

VIII.  That  said  C.  D.,  on  the day  of , 

and  after  the  recording  of  the  title  of  said  map 
(chart,  musical  composition,  print,  cut,  engraving,  photo- 
graph, or  chromo  ;  ^^rdescriptiorkof  any  painting,  draw- 
ing, statue,  statuary;  or  model  or  design  intended  to 
be  perfected  and  executed  as  a  work  of  the  fine  arts), 
as  provided  by  law,  did,  within  the  term  limited, 
and  without  the  consent  of  said  proprietor  of 
said  copyright  first  obtained  in  writing, signed  in 
presence  of  two  or  more  witnesses,  engrave, 
(etch,  work,  copy,  print,  publish,  or  import  , 
(eiiher  in  whole  or  in  part,  or  by  varying  the  mam 
design  with  intent  to  evade  the  law) — or,  kno'wing 
the  same  to  be  so  printed,  published,  (or  im- 
ported), sell  and   expose  to  sale  copies  of 

such  map  (or  other  article),  as  aforesaid. 

That sheets  of  said  map  (etc.)  was,  on  the 

day  of ,  found  in  the  possession  of  said 

C.  D.,  of  which 

was  printing. 

was  printed. 

was  copied. 

was  published. 

was  imported. 

was  exposed  for  sale. 

(In  case  of  a  painting,  statue,  or  statuary,  say  •) 

That copies  of  said was  found  in  the 

possession  of  said  C.  D. 

That copies  of  said was  sold  by  said 

C.  D. 

That  copies  of  said  was  exposed  for 

sale  by  said  C.  D. 

IX.  Said  A.  B.  therefore  prays  judgment: 
That  said  C.  D.  shall  forfeit  unto  him,  the  said 

A.  B.,  all  the  plates  upon  which  said  map  shall 
be  copied,  and  every  sheet  thereof,  either  copied 
or  printed. 

That  said  CD.  shall  further  forfeit  unto  him,  the 
said  A.  B.,  one  dollar  for  every  sheet  of  the  same 
found  in  his  possession,  printing,  printed,  copied, 
published,  imported,  and  exposed  for  sale,  as 
aforesaid. 

(In  case  of  a  painting,  statue,  or  statuary,  say  .•) 

That  said  C.  D.  shall  forfeit  ten  dollars  for  every 
copy  of  the  same  in  his  possession,  and  by  him 
sold  and  exposed  for  sale  ;  one-half  thereof  to  said 
A.  B.,  and  the  other  half  to  the  use  of  the  United 
States.  (Signed)    A.  B. 

A.  A.,  Plaintiff's  (Declarant's  or 

Petitioner' s)  Attorney. 
Complaint,  Declaration,  or  Petition. 
hfringement  Upon  Dramatic  Composition. 

(  Title  and  introduction  as  above.) 

That  A.  B.  is  a  citizen  ((>r  resident)  of  the  United 
States. 

That  A.  B.  ^vas,on  the day  of ,ha8  ever 

since  been,  and  now  is,  proprietor  of  a  subsisting 
copyright  of  a  dramatic  composition  entitled 
(describe  title  as  in  the  certificate  cf  copyright),  a  cer- 
tificate of  which  is  hereunto  attached,  marked 
exhibit  "A.,"  and  made  a  part  hereof. 

That  on  the  iay  of C.  D.  did  publicly 

perform  and  reprf  :nt  said  dramatic  composition 
without  the  cons  t  of  said  proprietor  thereof,  or 
his  heirs  or  assig    ;. 

That  said  A.  was  thereby  deprived  of  the 
profits  and  bene  :s  of  said  performance  and  rep- 
resentation, to  '    a  damage dollars. 

Wherefore  sa     A.  B.  demands  judgment  in  the 

sum  of dol'    .'s  damages,  etc. 

Complaint    Declaration,  or  Petition. 
Infringement  Upon  Manuscript. 

(  Title  and  introduction  as  abo-'e.) 

That  A.  B.  is  a  citizen  (or  a  resident)  of  the 
United  States. 

That  said  A.  B.  is  the  author  (or  proprietor)  of 
the  following  manuscript  (describing  tt),  of  tha 
value  of dollars. 

a- Dramatic  compositions  are  not  Included  in  this  se«> 
tioa. 


COPYRIGHT. 


4U 


That  C.  D. .  on  the  —  day  of  — ,  did  print  and 
publish  said  manuscript  without  the  consent  of 

said  author  (or  proprietor)  first  obtained. 

That  by  reason  o''  the  premises  said  A.  B.  has 
been  prevented  from  the  puhlicati;.n  And  sale  of 
said  work,  and  his  profits  in  the  same  have  been 
entirely  destroyed. 

Wherefore  he  prays  judgment  for  the  sum  of 

dollars,  etc. 

For  other  precedents  in  copyright  pleading,  .see 
Shortt.  App.  723,  et  seo.,  citing,  in  relation  to  Books — 
Copies  of,  Bullen  and  Leake's  Precedents,  297  ;  Books 
— Selling  Copies  of.  Id.  Id.  :  Song,  4  D.  &  L.  147:  18 
C.  B.  194  :  25.  L.  J.  22,  C  P. ;  portions  of  periodicals, 
16  C.  R.  159;  musical  composition,  4  Ho.  L.  Cas.  815; 
•4  L.  J.,8i  Exch  ;  5C  B.  860:  4Exch.  145;  2  B.  & 
C.  861 :  12  C.  B.  177  ,  18  C.  B.  197 ;  prints  by  photog- 
raphy, lO  L.  T.  (N.S.)98;  L.  Rep.  2  C.  P.  410 ;  36 
L.  J.  »39,  C.  P.  ;  prints  from  spurious  plates,  29  L.  /., 
98  Exch.;  5H.  &N.  5. 

Plea— General  Issue. 

( Ti't/e  as  aiove.) 

A- B)  Plea. 

P  j|)   I  General  Issue. 

Said  C.  D.  (in  person,  or  by  A.  Y.,  his  attorney) 
says  that  he  is  not  guilty. 

Under  the  general  issue  the  defendant  may 
prove : 

"  That ,  and  not  the  plaintiff,  was  author 

of  said  book." 

"  That  the  plaintiff  was  not  the  proprietor  of 
the  said  copyright,  as  alleged." 

"That  said  copyright  was  not  a  subsisting 
copyright,  as  alleged  (at  the  time  of  the  alleged 
grievances)." 

"  That  the  plaintiff  did  not  give  notice  of  his 
copyright  in  said  book,  by  inserting  in  the  several 
copies  of  every  edition  published  the  notice  re- 
quired by  lavv-." 

"  That  said  plaintiff  did  not  give  notice  of  his 
copyright  in  said  map,  etc.,  by  inscribing  upon 
some  visible  portion  thereof,  or  of  the  substance 
on  which  the  same  was  mounted,  the  notice  re- 
quired by  law." 

"  That  the  plaintiff  v/sa  not  the  proprietor  of, 
nor  had  he  tne  sole  liberty  of  representing  (and 
perfcrming)  or  causing  to  be  represented  (and  per- 
formed) the  dramatic  (or  musical;  composition,  as 
alleged." 

"  That  the  alleged   musical  composition  ^vas 

part  of  a  dramatic  piece,  to  wit: ,  adapted  to 

the  stage  by  the  defendant,  with  the  aid  of  sce- 
nery, dresses,  and  alleged  composition, and  other 
music  and  accompaniments,  the  general  design 
of  whicn  representation  was  formed  by  the  de- 
fendant." 

"  That  the  defendant  employed  the  plaintiff,  for 
a  reward,  to  compose  said  musical  composition, 
as  a  part  of  the  said  representation  and  dramatic 
piece,  and  as  a  mere  accessory  to  the  same,  on 
the  terms:  that  iti  consideration  of  said  reward, 
said  musical  composition  should  become  part  of 
said  dramatic  piece,  as  designed  and  adapted  for 
representation  by  said  defendant,  and  that  said  de- 
fendant should  have  the  sole  liberty  of  represent- 
ing and  performing,  and  causing  and  permitting 
to  be  represented  and  performed,  the  said  musical 
composition  with  said  dramatic  piece,  and  as  an 
accessory  thereto,  and  a  part  thereof." 

For  other  and  similar  precedents  in  pleas  see  Shortt. 
App.  730,  et  seq.,  citing  in  relation  to  musical  composi- 
tions &!>  accessories, 29  L.  J. 20,  C.  P. ;  7  C.  B.  (N.  S.) 
368. 

REQUISITES     OF     A     TALID     COPT- 

RIOHT. 

1.  Parties  Entitled  to  C'opyrij^ht. 

Sec.  4952.  Any  citizen  of  the  United 
States,  or  resident  therein,  who  shall  be 
the  author,  inventor,  designer  or  proprie- 
tor of  any  (1)  book,  (2)  map,  (3)  chart, 

r-Laws  U.S.  1870,  July  8,  Vol.  16,  Ch.  230,  \  8«,  p. 
212;  Rev.  1873-4, Title  60,  Ch.  3,  §  4952,  citing  8  Pet. 
S9<  ;  14  How.  528;  I  Biatchf.  625;  5  Id.  87,  ^25, 362  ;  6 


(4-5)  dramatic  or  musical  composition, 
(6)  engraving,  (7)  cut,  (8)  print,  (9-10) 
photograph  or  negative  thereof,  or  of  a 

(II)  painting,  (12)  drawing,  (13)  rhromo, 
(14)  statue,  (15)  statuary,  and  of  (i6| 
models,  or  (17)  designs  intended  to  be 
perfected  as  works  of  the  fine  arts,  and 
the  executors,  administrators,  or  assigns 
of  any  such  person,  shall,  upon  comply- 
ing with  the  provisions  of  this  chapter, 
have  the  sole  liberty  of  printing,  reprint- 
ing, publishing,  completing,  copying,  ex- 
ecuting, finishing,  and  vending  the  same  ; 
and,  in  the  case  of  a  dramatic  composi 
tion,  of  publicly  peiTorming  or  representing  it, 
or  causing  it  to  be  performed  or  represented  by 
others.'' 

And  authors  may  reserve  the  right  to 
drannatize  or  translate  their  own  works.* 

In  the  construction  of  this  act,  the  words 
"  ENGRAVING,"  "  CUT,"  and  "  PRINT,"  shall 
be  applied  only  to  pictorial  illustrations  or 
works  connected  with  the  fine  arts,  and  no 
prints  or  labels  designed  to  be  used  for  any 
other  articles  of  manufacture  shall  be  entered 
under  the  copyright  law,  but  may  be  regis- 
tered in  the  Patent  Office.  And  the  commis- 
sioner of  patents  is  hereby  charged  wifh  the 
supervision  and  control  of  tiie  entry  or  registry 
of  such  prints  or  labels,  in  conformity  with  the 
regulations  provided  by  law  as  to  copyright  of 
prints,  except  that  there  shall  be  paid  for  re- 
cording the  title  of  any  ])rint  or  label,  not  a 
trade-mark,  six  dollars,  wliich  shall  cover  the 
expense  of  furnishing  a  co]iy  of  the  record, 
under  the  seal  of  the  commissioner  of  patents, 
to  the  party  entering  the  same.' 

Assignee.     See  PRorRiETORS, below. 

Author,  Designer,  Inventor.  See  AlTTHOR, 
ante. 

An  American  author  residing  abroad  is  en- 
titled to  copyright. 

See  Inventor,  below. 

Book.  A  "  book,"  within  the  statute,  need 
not  be  a  volume  made  up  of  many  sheets 
bound  together.  It  may  consist  of  a  single 
sheet  or  page  of  character,  as,  for  instance, 
the  words  of  a  song,  or  the  music  accompany- 
ing a  song." 

"  Book  "  is  a  general  name  given  to  every 
literary  composition  which  is  printed. 

Citizens  are  those  under  the  constitution  and 
laws  of  the  United  St.ites  who  have  a  right  to 
vote  for  representatives  in  Congress  and  other 
public  officers,  and  who  are  qualified  to  fill 
offices  in  the  gift  of  the  people.  Any  person  born 
in  the  United  States,  or  naturalized  person  born 
out  of  the  same,  who  has  not  lost  his  right  as 
such — including  men,  women,  and  children. 

The  citizens  of  each  State  shall  be  entitled  to 
all  the  privileges  and  immunities  of  citizens  of 
the  several  States.' 

A  citizen  of  the  United  States  residing  in 

Td  256.  s-Id.  t-Laws  U.S.  i8f4, app.  June  1 8,  took 
effect  August  i.  Vol.  i8,  Ch.  301,?  3,  p.  79;  Strive  vt. 
Schwedler,  4  Biatchf  1857  ;  2  Icl.  83 :  5  Id.  323,  362, 
U-i  Morgan,  222,  \  255.     v-Const.  U.  S.  Art.  4,  |  a. 


414 


COPYRIGHT. 


«ny  of  the  States  of  the  Union  is  a  citizen  of 
that  State." 

As  to  citizenship  of  children  born  in  foreign 
lands  to  citizens.* 

ConUruction  is  not  "  Shape." 

"  Design,"  when  used  as  a  term  of  art, 
means  the  giving  of  a  visible  form  to  the  con- 
ceptions of  the  mind,  or,  in  other  words,  to  the 
invention.' 

See  Patents,  etc.,  post. 

"Invenior"  is  one  who  finds  out  some- 
thing new.  One  who  contrives,  or  discovers, 
or  produces  a  thing  which  did  not  before 
exist. 

See  Author,  above. 

"Map,"  "Chart."  The  words  "Map" 
and  "Chart "  are  to  be  understood  as  applying 
to  a  particular  map  or  chart  copyrighted,  since 
the  natural  objectsfrom  which  maps  and  charts 
are  made  are  open  to  ail.' 

Proprietors  are  owners.  Under  derivation 
of  title  from  non-resident  auiliors,  or  tlie  as- 
signee of  a  work  composed  by  a  non-resident 
alien,  they  cannot  obtain  a  copyright  thLrefor." 
The  legal  assignee  of  the  resident  author  may 
take  out  the  copyright,  and  it  will  make  no 
difference  whether  he  holds  it  as  trustee  for  the 
benefit  of  another  or  not.** 

Resident  is  one  who  has  his  residence  in  a 
place.  Residence  is  personal  presence  in  a 
fixed  and  permanent  abode."  Residence  dif- 
fers from  domicil,  although  it  is  a  great  mat- 
ter of  importance  in  determining  the  place  of 
domicil.* 

A  person,  to  be  entitled  to  copyrignt  as  a 
"resident"  under  the  corresponding  sections 
of  previous  copyright  laws,  and  by  inference 
under  the  present,  must  be  a  permanent  resi- 
dent of  this  country.  One  temporarily  resid- 
ing here,  it  seems,  even  though  he  has  declared 
his  intention  of  becoming  a  citizen,  cannot  take 
or  hold  a  copyright.* 

See  Assignees. 

Trustee.    See  Proprietor,  above. 
2.  How  to  Obtain  <'o]>yri;;lils. 

Sec.  4956.  No  person  shall  be  entitled 
to  a  copyright  unless  he  shall,  i,  before 
publication,  deliver  at  the  office  of  the  libra- 
rian of  Congress,  or  deposit  in  the  mail  ad- 
dressed to  the  librarian  of  Congress,  at  Wash- 
ington, District  of  Columbia,  a  printed  copy 
of  the  title  of  the  book  or  other  article.  The 
title-page  must  be  deposited  before  publication 
of  the  book,  in  order  to  entitle  the  copyright  to 
protection,'  and  the  record  from  the  proper 
office,  made  in  the  prescribed  form,  is  prima 
facie  evidence  of  the  deposit.^  Or  a  descrip- 
tion of  the  painting,  drawing,  chromo,  statue, 
statuary,  or  model  or  design  for  a  work  of  the 
fine  arts.     In  case  of  a  painting,  statue,  model, 

W-6  Pet.  761  :  Paine  C.  C.  594 :  '  Brock.  C.  C. 
391  ;  I  Paige,  Ch.  183.  X-Sec  lo  Rich.  Eq.  38  :  and 
»ee  26  Barb.  383 ;  0  Md.  74 :  3  Story  Const.  1687 :  2 
Kent  Comm.  258  :  Bouv.  Inst.  Vattel,  I,  1  C.  19,  J  212. 
»-4  Wash.  52  «-2  Paine  C.  C.  400,401.  «-9  Am.  L. 
Ktg.  4S.  b-2  Blatchf.  \fA.  C-io  Johns.  308  ;  1  Met. 
Man.  251.    <1-See  13  Idass.  %qi;  5  Pick.  370;  x  Met. 


or  design  intended  to  be  protected  as  a  work  of 
the  fine  arts,  the  description  provided  for  in  this 
section  must  be  definite  and  complete,  and  the 
photograph  must  be  at  least  as  large  as  what  is 
technically  known  as  cabinet  size,""  for  which 
he  desires  a  copyright.  (By  taking  this  incipient 
step  a  right  is  acquired  which  chancery  will 
protect  until  the  other  acts  may  be  done.*  And 
if  the  title-page  has  been  duly  entered,  the  au- 
thor may  maintain  an  action  for  infringement  if 
the  jirinted  copies  were  never  deposited,  and 
even  if  the  work  was  never  published  at  all.'') 
Nor  unless  he  shall  also,  2,  within  ten 
days  from  the  publication  thereof,  deliver 
at  the  office  of  the  librarian  of  Congress, 
or  deposit  in  the  mail  addressed  to  the  libra- 
rian of  Congress,  at  Washington,  District  of 
Columbia,  two  copies  of  such  copyright  book 
or  other  article,  or,  in  case  of  a  painting, 
drawing,  statue,  statuary,  model,  or  design  for 
a  work  of  the  fine  arts,  a  photograph  of  the 
same.'' 

The  process  of  copyrightmg  must  be  gone 
through  with  in  the  case  of  every  volume  of  a 
work  separately.' 

Cominiinicatioii  to  liibrarian  of  Con- 
gress, Accompanying'  Titles  or  l>e- 
scrii>tionM. 

Place ,  Date . 

Librarian  of  Congress,  at  'Washington,  District 
of  Columbia: 

Enclosed  find  for  deposit  in  your  office  a  printed 
copy  (each)  of  the  title  {or  description)  of  a  book 
(miip,  chart,  or  other  ivork),  the  right  whereof  A.  B. 
claiins  as  author  (originator,  or  proprietor),  in  con- 
formity with  the  laws  of  the  United  States  re- 
specting copyrights. 

Also  find  dollars  and  cents,  the  same 

being  50c.  each  for  recording  the  same. 

Also  find dollars  and cents,  for  a  copy  of 

the  following  of  said  titles  {or  descriptions),  under 
your  official  seal,  viz. : 

No. .  A.  B., 

Author  (or  Proprietor). 

Postmaster's  Receipt  for  Titles. 

Sec.  4961.  The  postmaster  to  whom 
such  copyright  book,  title,  or  other  article 
is  delivered,  shall,  if  requested,  give  a 
receipt  therefor ;  and  when  so  delivered  he 

shall  mail  it  to  its  destination.™ 

Post  Office. 

Date . 

Received  this  day,  from ,  one  package  copy- 
right matter  for  transmission  by  mail,  addressed 
to  Librarian  of  Congress,  Washington,  D.  C. 

,  P.  M. 

Mr. .  Per  D.  Y. 

Another 

No. .  Post  Office. 

On  this day  of .  | 

A  printed  copy  (each)  of  the  title  of  a  book  (maiv 
chart,  or  other  -n-'ork),  the  title  of  which  is  in  the  fcH 
lowing  words  :  {settingout  the  title  f>age  in/ult),  and 

dollars  and cents,  fees  of  the  librarian  of 

Congress,  for  recording  the  same,  were  deposited 

in  the M.  mail,  in  a  package,  on  the  outside 

of  which  the  words  "copyright  matter"  were 

(Mass.)  251;  2  Gray,  490;  19  Wend.  11;  11  La.  175;  5 
Me.  143.  See  2  Kent  Comm.  loth  ed.  574  n.,  576;  19 
Me.  293.  O-i  Morgan,  245,  ?  245  ,  citing  26  Niles  Reg. 
262.  1-2  Blatchf.  84.  K-3  Monthly  L.  Rep  401 ;  a 
niatchf.  84.  ll-a  Morgan  233,  \  258.  1-5  McLean, 
132  j-13  M.  L.  Rep.  401  ;  contra,  i  Am.  L.  Reg.  33. 
k-Id.  J  90;  Rev.  1873-4:  Id.  24956.  1-2  Morgan,  232, 
2  258.     m-Id.  §96,  Rev.  1873-4 ;  Id.  \  4961. 


COPYRIGHT. 


4t5 


fclalnly  Written,  and  which  wa3  addressed,  "  Li- 
brarian of  Congress,  at  Washington,  District  of 
Columbia."  P.  M., 

No. .  Postmaster. 

lilbrarian  of  Congress'  Receipt  of 
TltleM,  Etc. 

[i„  ».]  Library  of  Congress. 

Washington, . 

Sir:  In  reply  to  your  communication  of ,  I 

have  to  advise  you  that  $ in  copyright  fees  is 

received,  and  titles  accompanying  duly  en- 
tered.              Very  respectfully, 

L.  C. ,  Librarian  of  Congress. 

Sec.  4959.  The  proprietor  of  every  copy- 
right book  or  other  article  shall  deliver  at 
the  office  of  the  librarian  of  Congress,  or 
deposit  in  the  mail  addressed  to  the 
librarian  of  Congress,  at  Washington, 
District  of  Columbia,  within  ten  days  after 
its  publication,  two  complete  printed 
copies  thereof,  of  the  best  edition  issued,  or 
description  or  photograph  of  such  article 
as  hereinbefore  required,  and  a  copy  of  every 
subsequent  edition  wherein  any  substan- 
tial changes  shall  be  made.™ 

Sec.  4960.  For  every  failure  on  the  part 
of  the  proprietor  of  any  copyright  to  de- 
liver, or  deposit  in  the  mail,  either  of  the 
published  copies,  or  description,  or  pho- 
tograph, required  by  Seciions  4956  and  49  "9, 
the  proprietor  of  the  copyright  shall  be  liable 
to  a  penalty  of  twenty-five  dollars,  to  be 
recovered  by  the  librarian  of  Congress,  in  the 
name  of  the  United  Slates,  in  an  action  in  the 
nature  of  an  action  of  debt,  in  any  district 
cou'-tof  the  United  States  within  the  jurisdiction 
of  which  the  delinquent  may  reside  or  be  found." 

Commanlcation  to  liibrnrian  of  Con- 
ercK»i,  Aceoiupauyiug'  Two  Complete 
Coj>ies,  etc. 

Librarian  of  Congress,  at  Washington,  Dis- 
trict of  Columbia: 

Enclosed  please  find  for  deposit  in  your  ofiice 
two  complete  copies  of  the  best  edition  of  a  book 
(map,  chart,  or  other  wiir,^),  the  right  whereof  A. 
B.  claims  as  author  (originator,  or  proprietor),  in 
conformity  with  the  laws  of  the  United  States 
respecting  copyrights. 

Also  find dollars  and cents  for  a  copy 

of  the  following  of  the  titles  {or  descriptions)  of 
said  book  (map,  chart,  or  ot/ter  work),  under  your 
official  seal,  viz.  A.  B., 

Author  (or  Proprietor). 

Postmaster*H  Receipt  for  Two  Com- 
plete Copies,  etc. 

No. .  Post  Office. 

On  the  day  of ,  two  complete  copies 

each  of  said  book  (map,  chart,  or  other  luork)  Of^the 

best  edition  issued  were  deposited  in  the M. 

mail,  in  a  package,  on  the  outside  of  which  the 
words  "  copyright  matter  "  were  plainly  written, 
and  which  was  addressed,  "  Librarian  of  Con- 
gress, at  Washington,  District  of  Columbia." 
P.  M.,  Postmaster, 

iSiibrarlan  of  Congress*  Receipt  of  Two 
Complete  Copies,  etc. 

[l.  S.J  Library  of  Congress. 

Washington, . 

A.  B. . 

The  undersigned  hereby  acknowledges  the  re- 
ceipt of  two  copies  of ,  transmitted  to  the 

Library  of  Congress  in  conformity  with  the  lawa 
8f  the  United  States  respecting  copyrights. 
Very  respectfully, 

L.  C,  Librarian  of  Congress 

ni'Id.  ?  93 ;  Rev.  1873-4;  Id.  ?  4959.  n-Id.  \  94,  Rev. 
t87i~4 ;    Id.   j  4960.     O-ld.  \  Q2  ;   Rev.    1873-4 ;   Id.  \ 

27 


"  Sec.  4958.  The  Librarian  of  Congress 
shall  receive  from  the  persons  to  whom 
the  services  designated  are  rendered  the 
following  fees  :<• 

"  I.  For  recording  the  title  or  description  of 
any  copyright  book  or  other  article,  fifty  cents. 

"  2.  For  every  copy  under  seal  of  such  record 
actually  given  to  the  person  claiming  the  copy- 
right, or  his  assigns,  fifty  cents. 

"  3.  For  recording  and  certifying  any  instru- 
ment of  writing  for  the  assignment  of  a  copy- 
right, one  dollar. 

"  4.  For  every  copy  of  an  assignment,  one 
dollar. 

"All  fees  so  received  shall  be  paid  into  the 
treasury  of  the  United  Stales." 

Sec.  4957.  The  librarian  of  Congress  shall 
record  the  name  of  such  copyright  book,  or 
other  article,  forthwith  in  a  book  to  be  kept  for 
that  purpose,  in  the  words  following:  "  Library 
of  Congress,  to  wit:    Be  it  remembered  that 

on  the day  of , ,  A.  B.,  of , 

hath  deposited  in  this  office  the  title  of  a  book 
(map,  chart,  or  otherwise,  as  the  case  may 
be,  or  description  of  the  article),  the  title  or 
description  of  which  is  in  the  following 
words,  to  wit :  (here  insert  the  title  or  descrip* 
tion),  the  right  whereof  he  claims  as  author 
(originator,  or  proprietor,  as  the  case  may  be), 
in  conformity  with  the  laws  of  the  United  States 
respecting  copyrights.  C.  D.,  Librarian  of 
Congress."  And  he  shall  give  a  copy  of  the 
title  or  description,  under  the  seal  of  the  libra- 
rian of  Congress,  to  the  proprietor  whenever  he 
shall  require  it.' 

The  requirements  of  sections  4956,  4957, 
4958,  must  be  strictly  complied  with  to  secure 
a  copyright.' 

Certified  Copy  of  Title  or  Description 
L'ntler  Seal,  etc. 

[l.  s.]  Library  of  Congress. 

No. C.  Copyright  Office,  Washington. 

To  wit :  Be  it  remembered  : 

That  on  the  dajr  of ,  A.  D. ,  A.  B., 

of ,  hath  deposited  in  this  office  the  title  of  • 

book  (map,  chart,  or  otherwise ,  as  the  case  may  be,  or 
description  of  the  article),  the  title  or  description 
of  which  is  in  the  following  words,  to  wit :  {here 
insert  title  or  description),  the  right  \vhereof  ho 
claims  as  author  (originator,  or  proprietor,  as  tht 
case  may  be),  in  conformity  with  the  la^v>  of  the 
United  States  respecting  copyrights. 

L.  C,  Librarian  of  Congrttt. 

3.  Notice  of  Copyrig:ht. 

Sec.  4962.  No  person  shall  maintain  an 
action  for  the  infringement  of  his  copy- 
right unless  he  shall  give  notice  thereof 
by  inserting  in  the  several  copies  of  evory 
edition  published  on  the  title-page  or  the 
page  immediately  following,  if  it  be  a  book; 
or  if  a  map,  chart,  musical  composition,  print, 
cut,  engraving,  photograph,  painting,  drawing, 
chromo,  statue,  statuary,  or  model  or  design  in- 
tended to  be  perfected  and  completed  as  a 
work  of  the  fine  arts,  by  inscribing  upon 
some  visible  portion  thereof,  or  of  the  sub- 
stance on  which  the  same  shall  be  mounted, 

4738.  p-Id.  S  91;  Rev.  1873-4;  Id.  291.  q-i  BlatchC 
630. 


4*6 


COPYRIGHT. 


the  following  words,  viz. :  "  Entered  ac- 
cording to  act  of  Congress,  in  the  year 

,  by  A.  B.,  in  the  office  of  the 

Librarian  of  Congress,  at  Washington ; " 
or,  at  his  option  the  word  "Copyright,"  to- 
gether with  the  year  the  copyright  was  entered, 
and  the  name  of  the  party  by  whom  it  was  taken 
out,  thus :  "  Copyright,  18 — ,  by  A.  B." ' 

Where  a  work  consists  of  a  number  of  vol- 
umes, the  insertion  of  the  notice  on  the  page 
next  following  the  title-page  of  the  first  volume 
of  the  work  is  a  sufficient  compliance  with  the 
statute.'  The  author  may  insert  the  same  no- 
tice in  another  edition  without  impairing  the 
copyright." 

The  record  or  notice  must  be  accurate  in 
point  of  date,  for  an  error  in  this  would  be  a 
fatal  defect  in  the  author's  or  proprietor's  copy- 
right.» 

Sec.  4963.  Every  person  who  shall  in- 
sert or  impress  such  notice,  or  words  of 
the  same  purport,  in  or  upon  any  book,  map, 
chart,  musical  composition,  print,  cut,  enjrrav- 
ing,  or  photograph,  or  other  article,  for  which 
he  has  not  obtained  a  copyright,  shall  be 
liable  to  a  penalty  of  one  hundred  dollars, 
recoverable  one-half  for  the  person  who  shall 
sue  for  such  penalty,  and  one-half  to  the  use 
of  the  United  States.^ 

Sale  of  Copyright.  "Where  an  author 
sells  the  copyright  of  a  work  published  under 
his  own  name,  and  covenants  with  the  pur- 
chaser not  to  publish  any  other  work  to  preju- 
dice the  sale  of  it,  another  publisher  (who  has 
no  notice  of  this  covenant)  may  be  restrained 
from  publishing  a  work  subsequently  purchased 
by  him  from  the  same  author,  and  published 
under  his  name  on  the  same  subject,  but 
under  a  different  title,  and  though  there  be  no 
piracy  of  the  first  book.' 

Where  no  such  covenant  has  been  entered 
into,  and  the  publisher  has  agreed  with  the 
author  for  an  edition  of  history  or  the  like,  and 
the  work  is  completed,  a  continuation  of  such 
work  by  the  author,  independently  or  with 
another  publisher,  is  no  violation  of  the  pre- 
vious contract.' 

If  an  author  sells  his  copyright  in  a  work 
for  a  limited  term,  the  publisher  may,  except 
in  case  of  actual  fraud,  continue,  after  the 
expiration  of  the  term,  to  sell  copies  of  the 
work  printed  during  its  continuance.* 

A  contract  for  the  sale  of  a  copyright  is  en- 
forceable in  equity.' 

See  Transfer  of  Copyright,  below. 

Sale  of  Edition,  etc.  Where  an  author 
has  sold  an  edition  of  a  given  number  of  copies 
to  one  publisher,  he  is  not  at  liberty  before  they 
are  sold  to  publish  the  same  work  himself  or 
through  another  publisher  in  such  a  manner  as 

h-Lkws  1874,  June  18,  Vol.  18,  Ch.  301,  it,  p.  78;  5 
Blatchf.  362.  t-i  N.  Y.  Leg.  Obs.  198.  a-ld.  199.  V- 
■  Blaichf  8a.  w-I.aws  1870,  July  8.  Vol.  16,  Ch.  230, 
£58,  p.  214;  Rev.  1873-4,  Title  LX.,Ch.  3.  ?  4063,  citing 
1  Matchf.  154.  x-2  Sim  &  Stu.  i ;  i  L.  J.  (Ch.)  90;  10 
BfcM.  133.  y-Seea  Sess.  Cas.  719;  (N.  E.)  671.  z- 
—  Wood.  381 ;  6  L.  T.  (N.  S.)  348.    »-i  Jur.  198.    b- 


to  compete  with  the  edition  he  has  sold,  bat  is 
bound  to  afford  the  publisher  a  full  opportu- 
nity of  realizing  the  benefit  of  his  contracL* 

The  statute  of  frauds  applies  to  con- 
tracts between  authors  and  publishers  in  the 
preparation  or  publication  of  literary  matter." 

TERM  OF  COPYRIGHT,  28  TEARS. 

Sec.  4953.  Copyrights  shall  be  granted 
for  the  term  of  twenty-eight  years  from 
the  time  of  recording  the  title  thereo*"  in  the 
manner  hereinafter  directed.* 

Contlnnance  ori4  Tenrs. 

Sec.  4954.  The  author,  inventor,  or  de- 
signer, if  he  be  still  living  and  a  citizen  of 
the  United  States  or  resident  therein,  01 
his  widow  or  children  if  he  be  dead,  shall 
have  the  same  exclusive  right  continued 
for  the  further  term  of  fourteen  years, 
upon  recording  the  title  of  the  work  or  de- 
scription of  the  article  so  secured  a  second 
time,  and  complying  with  all  other  regulations 
in  regard  to  original  copyrights,  within  six 
months  before  the  expiration  of  the  first  term. 
And  such  persons  shall,  within  two  months 
from  the  date  of  said  renewal,  cause  a  copy  of 
the  record  thereof  to  be  published  in  one  o* 
more  newspapers,  printed  in  the  United  States, 
for  the  space  of  four  weeks." 

The  taking  out  of  a  second  terra  of  a  copy- 
right is  not  like  the  strengthening  of  a  defec- 
tive title,  but  rather  like  a  new  interest  ob- 
tained after  the  general  interest  has  expired.* 
The  extension  provided  for  applies  exclusively 
to  the  author,  his  widow  or  children.^ 

An  assignee  alone  cannot  take  out  a  second 
or  extended  term  unless  he  has  clearly  and 
unequivocally  contracted  and  paid  for  it,  and 
is  entitled  to  be  protected  in  it  in  equity  rather 
than  according  to  any  mere  technical  rule  of 
law.'' 

Title.  There  cannot  be  what  is  termed 
copyright  in  a  single  word,  although  the  word 
should  be  used  as  a  fitting  title  for  a  book.' 
The  copyright  contemplated  by  the  act  must 
be,  not  in  a  single  word,  but  in  some  words  in 
the  shape  of  a  volume,  or  part  of  a  volume 
which  is  communicated  to  the  public,  by  which 
the  public  are  benefited,  and  in  return  for 
which  a  certain  protection  is  given  to  the 
author  of  the  work.  Nor  will  any  amount  of 
expenditure  incurred  upon  a  work  not  yet 
given  to  the  world,  or  any  outlay  in  advertise- 
ments of  the  title  of  the  work,  give  a  right  to 
an  injunction  restraining  another  person  from 
using  the  same  title.J  But  though  two  period- 
icals  or  books  may  have  a  simdar  title,  the 
form,  title,  and  mode  of  publication  of  one 
cannot  be  imitated  by  another  in  such  a  man- 
ner as  would  necessarily  mislead  the  public 

5  Jur.  68;  it  Sim.  573.  C-4  Scotts.  X  R.  77;  3  M.  fit 
Gr.  452;  I  Bingh.  9:  1  Campb.  S13:  -  -^^  «•  W.  633; 
II  East.  142.  d-Laws  U.  S.  1870,  July  b,  VoL  16,  Ch. 
230.  'i  87,  p.  212 ;  Kev.  1873-4,  Title  LX,  Ch.  3,  {  495> 
■  ■   ■  "       Rev.  1873-4,  Id.  §  4054,  citing  8  Pet.  591; 


c-ld.  ? 

2  Woodb.  &  M.  42.     f-2  W 


i>l.  46.     gr-Id.  23.     Il- 


M    44.     1-1  Dlaichf.  627,  i;.    J-L.  Rep.  a  Ch.  Apf» 
jo7 ;  16  L.  T.  tN.  S.)  J31 ;  36  L.  J.  433  Ch. 


COPVRKJl  IT— CORPORATIONS. 


417 


and  induce  them  to  purchase  the  latter  work 
as  continuing  parts  of  the  former  one.* 

False  and  Pretentious  Titles.  Publica- 
tions whose  titles,  advertisements,  and  preten- 
sions are  calculated  to  deceive  the  public  are 
not  entitled  to  any  protection.  By  this  is 
meant  works  which  are  subversive  of  good 
order,  morality,  or  religion.  Indeed,  it  would 
be  unjust,  where  literary  productions  are  en- 
tirely innocent,  harmless,  and  permissible,  to 
deprive  the  author  of  a  notn- de-plume  whereby 
to  conceal  his  name,  if  he  from  modesty  or  for 
the  success  of  his  work  desired  to  do  so.  In 
'  such  a  case  there  is  no  serious  design  to  de- 
ceive the  purchaser  or  prevent  an  interposition  to 
suppress  any  evil  tendency  the  work  may  effect. 

Transfer  of  Copyright. 

Copyright  may  be  transferred  by  writing  or 
parol  in  the  same  manner  as  other  personal 
property.  In  the  latter  case,  in  order  to  he 
binding  in  law,  it  must  be  recorded  iu  the 
office  from  whence  the  copyright  issues.' 

Translations  into  English,  German,  or 
any  other  tongue,  of  works  published  in  other 
languages,  if  original,  are  entitled  to  copyright. 
If  a  foreign  work  is  not  protected  by  inter- 
national copyright  it  is  open  to  any  one  to 
translate  it,  but  a  translation  already  existing 
is  the  product  of  the  translator's  mental  labor, 
and  his  property  in  it  must  not  be  infringed. 
Independent  recourse  must  be  had  by  subse- 
quent translators  (0  the  common  original  source. 
"A  man  has  a  right  to  a  copyright  in  a  transla- 
tion upon  which  he  has  bestowed  his  time  and 
labor.  To  be  sure  another  man  has  an  equal 
right  to  translate  the  original  work,  and  to 
publish  his  translation,  but  then  it  must  be  his 
own  translation,  by  his  own  skill  and  labor, 
and  not  the  mere  use  and  publication  of  the 
translation  made  by  another."" 

If  a  foreigner  translates  an  English  copyright 
work,  and  then  a  subject  or  resident  retrans- 
lates that  foreign  work  into  English,  this  last 
would  be  an  infringement  of  the  original  copy- 
right, and  ft  would  be  no  defence  that  the  re- 
translator  was  not  aware  that  the  work  he 
translated  was  itself  a  translation  from  an  Eng- 
lish work." 

A  translation  is  not  a  copy  of  a  book  within  * 
the  meaning  of  the  statute."    The  words  "  copy 
of  a  book"  mean  a  transcript  or  copy  of  the 
entire  book.P 

Unpublishf.d  Works,  Every  new  and  in- 
nocent product  of  mental  labor  which  has  been 
'embodied  in  writing  or  some  other  material  form 
becomes  the  exclusive  property  of  its  author. 
"Whether  the  ideas  thus  published  take  the 
shape  of  written  manuscripts  of  literary,  dra- 
matic, or  musical  composition,  or  designs  for 
works  of  ornament  or  utility  planned  by  the 

k-8  Ves.  215.  1-4  Campb.  8;3M.  &S  7:2  B.  & 
C  861  ;  6  C.  B.  456 ;  i  J.  &  N.  481  :  Sc.  Sess.  Cas.  (N. 
S.)8;  18  Id.  906.  in-3  Story,  780.  Il-i  Drew,  353; 
mL.  J.  4}7,  Ch.  o-2Am.  L.  Keg.  230.  p-12  Monthly 
L.  Rep.  340,  341.  q-4  Burr.  2378;  13  J"r-  "z ;  i 
Moc.  &  Gr.  42  ;  18  L.  J.  126  Ch.  ;  4  McLean,  301  ;  3 
Barb.  Ch.  323;  8  Pet.  657.  See  2  DeG.  &  S.  696;  13 
Jmt.  sS  ;  1  M.  &  U.  43 ;  i3  L.  J.  126  Ch. ;  13  Jur.  112  ; 


mind  of  the  artist,  they  are  equally  inviolable 
while  they  remain  unpublished,  and  the  author 
ix)ssesses  an  absolute  right  to  publish  them  or 
not  as  he  thinks  fit,  and  to  hinder  their  publi- 
cation, either  in  whole  or  in  part,  by  any  one 
else.i  For  this  exclusive  property  in  the  un- 
published products  of  his  mental  labors,  the 
author  is  not  indebted  to  the  copyright  laws ; 
his  right  is  independent  of  statute,  and  depends 
entirely  on  the  common  law  right  of  property. 

The  sale  by  the  author  of  several  thousand 
copies  of  a  musical  comixjsition  in  the  manu- 
script did  not  defeat  the  author's  right  to  a 
copyright."" 

The  mere  parting  with  the  possession  of 
manuscript,  or  intrusting  its  possession  to  an- 
other person,  or  a  permission  to  another  to  take 
and  keep  a  copy  of  the  manuscript,  does  not 
authorize  its  publication  by  that  other  person,* 

An  author's  rights  concerning  unpublished 
manuscripts  do  not  depend  wholly  upon  the 
common  law.  They  are  the  subject  of  stat- 
utory regulation. 

See  Infringement,  etc. 

Will.  The  proprietor  of  a  copyright  may 
transfer  it  by  last  will  and  testament.  In  the 
absence  of  such  will  it  passes  in  the  same 
manner  as  other  personal  property.' 

Corn.  See  Emblfments. 

Coroner.  See  Office  and  Officers. 

<'orpornl.  See  Military  Law. 

Corporal  Oath.  See  Practice. 

Corporal  Tonch.  See  Practice;  Arrest. 

CORJ'ORATIONS.  See  UUes  Bailments; 
Bonds;  Notes  and  Bills. 

A  corporation  is  a  body  consisting  of  one 
or  more  natural  persons,  established  by  law, 
usually  for  some  specific  purpose,  and  con- 
tinued by  a  succession  of  members.  It  is  this 
last  characteristic  of  a  corporation,  prolonging 
its  existence  beyond  the  term  of  natural  life, 
and  thereby  enabling  a  long  continued  effort 
and  concentration  of  means  to  the  end  which 
it  was  designed  to  answer,  that  constitutes  its 
principal  utility.  A  corporation  is  modelled 
upon  a  state  or  nation,  and  to  this  day  is  called 
a  body  politic  as  well  as  corporate — thereby  in- 
dicating its  origin  and  derivation. 

Aggregate  corporations  are  those  which  are 
composed  of  two  or  more  members  at  the  same 
time.  Sole  corporations  are  those  which  by  law 
consist  of  but  one  member  at  any  one  time. 
Civil  corporations  are  those  which  are  created 
to  facilitate  the  transaction  of  business.  Ec- 
clesia.stical  corporations  are  those  which  are 
created  to  secure  the  public  worship  of  God." 
Eleemosynary  corporations  are  those  which  are 
created  for  the  purpose  of  charities ;  as  schools, 
hospitals,  for  the  relief  of  the  impotent,  sick, 
deaf  and  dumb,  and  the  like.'  Lay  corpora- 
tions are  those  which  exist  for  secular  purposes.* 

4  Burr.  2329,  2330,  2386  ;  i  Jac.  &  W.  481  :  Ambl.  694  j 
2  B.  &  C.  861.  r-3  "B.  &  Aid.  298.  8-Story  Eq.  Jur. 
943;  4  McLean,  300, 303;  s  Id.  41  ;  4  Burr.  2330;  2  Eden. 
329 ;  2  Merriv.  435.  I-Goason,  168.  u-Ang.  &  A.  Corp. 
^  36,  37 ;  I  Bl.  Comm.  470;  2  Kent  Comm.  274.  v- 
Ang.  &  K   Corp.  30  ;  i  Kv  '    "  '         "  " 

niund.  Ch    401  ;   i  Ld 
681.  ivAng.  &A.Corp 


4i8 


COR  PCJR  ATIONS. 


Moneyed  corporations  arethosehaving  the  power 
to  make  loans  upon  pledges  or  deposits,  etc.,  in- 
surance and  the  like.*  Municipal  corporations 
are  public  corporations  created  by  government 
for  political  purjwses,  and  having  subordinate 
and  local  jwwers  of  legislation  ;  for  example : 
boroughs,  cities,  counties,  districts,  parishes, 
towns,  townships,  etc.*  It  is  an  incorporation 
of  persons,  inhabitants  of  a  particular  place,  or 
connected  with  a  particular  district,  enabling 
them  to  conduct  its  local  civil  government.' 
Private  corporations  are  those  which  are  created 
wholly,  or  in  part,  for  purposes  of  private  emol- 
ument.' Public  corporations  are  those  which 
are  exclusively  instruments  of  the  public  inter- 
est."* 

By  both  civil  and  common  law,  the  sovereign 
authority  only  can  crerate  a  corporation ;  a  cor- 
poration by  prescriiN:ion,  or  so  old  that  the 
license  or  charter  which  created  it  is  lost,  being 
presumed,  from  the  long-continued  exercise  of 
corporate  powers,  to  have  been  entitled  to  their 
sovereign  grant.  Corporations  are  created  by 
legislative  enactment  of  a  State,  or  the  Con- 
gress of  the  United  States.'  All  corporations, 
of  whatever  kind,  are  moulded  and  controlled, 
both  as  to  what  they  may  do  and  the  manner 
in  which  they  may  do  it ;  by  their  charters,  or 
acts  of  incorporation,  which  to  them  are  the 
laws  of  their  being,  which  they  can  neither  dis- 
pense with  nor  alter.  Subject,  however,  to  such 
limitations  as  these,  or  general  statute  or  con- 
stitutional law,  may  impose,  every  corporation 
aggregate  has,  by  virtue  of  incorporation  and  as 
incidental  thereto : 

1.  The  power  of  perpetual  succession,  in- 
cluding the  admission,  and,  except  in  the  case 
of  mere  stock  corporations,  the  removal,  for 
cause,  of  members. 

2.  The  power  to  sue  and  be  sued,  to  grant 
and  receive  grants,  and  to  do  all  acts  which  it 
may  do  at  all  in  its  corporate  name. 

3.  To  purchase,  receive,  and  hold  lands  and 
other  property,  and  to  transmit  them  in  succes- 
sion. 

4.  To  have  a  common  seal ;  to  make,  break, 
alter,  and  renew  it  at  pleasure. 

5.  To  make  by-laws  for  its  government,  so 
that  they  may  be  consistent  with  its  charter  and 
the  law.  Indeed  a  corporation  may,  within 
the  limits  of  its  charter,  or  act  of  incorporation, 
express  or  implied,  lawfully  do  all  acts  and  en- 
ter into  all  contracts  that  a  natural  or  individual 
]>erson  may  do,  or  enter  into,  so  that  the  same 
be  appropriate  as  means  to  the  end  for  which 
the  corporation  was  created. 

A  corporation  may  be  dissolved,  if  of  limited 
duration,  by  the  expiration  of  the  term  of  its 
existence  fixed  by  charter  or  general  law ;  by 
the  loss  of  all  its  members,  or  of  an  integral 

<l-3  N.  Y.  479.  0-2  Kent  Comm.  275  .  Ang.  &  A. 
Corp.  9,  29  ;  I  Baldw.  C.  C.  222.  f-Glover  Munic.  Corp. 
J-  s:-4  Whieat.  668;  9  Id.  007.  Ii-See  Ml'nicm-al  Cor- 
roKATiONS,  above,  i-4  Wheat.  424.  j-Coiist  V .  S. 
Art.  I,  J  10;  4  Wheat.  518.  Under  this  clause  of  the 
conttitution  it  has  been  settled  that  the  charter  of  a  pri- 
rane  corporation,  whether  civil  or  eleemosynary,  is  an 
executed  contract,  between  the  government  and  the  cor- 


part  of  the  corporation,  by  death  or  other\vise, 
if  the  charter  or  act  of  incorporation  provide 
no  mode  by  which  such  loss  may  be  supplied; 
by  the  surrender  of  its  corporate  franchise  to, 
and  the  acceptance  of  the  surrender  by  the  sov- 
ereign authority ;  and,  lastly,  by  the  forfeiture 
of  its  charter  by  the  neglect  of  the  duties  im- 
posed, or  a])use  of  the  privileges  conferred  by 
it ;  and  forfeiture  being  enforced  by  proper  legal 
process. 

Although  the  charter  of  a  public  corporation 
may  be  altered  or  repealed  at  pleasure,  the 
charter  of  a  private  corporation,  whether  granted/ 
by  the  king  previous  to  the  revolution,  or  by  the 
legislature  of  any  of  the  States  since,  is,  unless 
in  the  latter  case  express  power  be  for  that  pur- 
pose reserved,  within  the  protection  of  that 
clause  of  the  constitution  of  the  United  States 
which  among  other  things  forbids  a  State  from 
passing  any  "  law  impairing  the  obligation  of 
contracts. "J  A  corporate  franchise,  however, 
as  to  build  and  maintain  a  toll  bridge,  may,  by 
virtue  of  the  power  of  eminent  domain,  be  con- 
demned by  a  State  to  public  uses,  upon  just 
compensation,  like  any  other  private  prop- 
erty."      ' 

ADMISSION.  In  trading  and  joint  stock 
corporations  no  vote  of  admission  is  requisite, 
for  any  person  who  owns  stock  therein,  either 
by  original  subscription  or  by  conveyance,  is  in 
general  entitled  to,  and  cannot  be  refused,  the 
rights  and  privileges  of  a  member.'  All  that 
can  be  required  of  the  person  demanding  a 
transfer  on  the  books  is  to  prove  to  the  corpora- 
tion his  right  to  the  property."  In  a  mutual 
insurance  company  a  person  may  become  a 
member  by  insuring  his  property,  paying  the 
premium  and  deposit  money,  and  rendering 
himself  liable  to  be  assessed  according  to  the 
rules  of  the  corporation." 

AMOTION  (the  removal  of  an  official 
agent  of  a  corporation  before  the  expiration  of 
the  term  for  which  he  was  appointed,  from  a 
station  assigned  to  him")  may  be  exercised 
with  or  without  an  express  reservation  for  just 
cause  ;P  and  in  the  case  of  mere  ministerial 
officers  appointed  during  the  mere  pleasure  of 
those  appointing  them.i  Mere  acts  which  are 
^  a  cause  for  amotion  do  not  create  a  vacancy 
till  the  amotion  takes  place.'  The  causes  for 
amotion  may  be:  I.  Such  as  have  no  immedi- 
ate relation  to  the  office,  but  are  in  themselves 
of  so  infamous  a  nature  as  to  render  the  of- 
fender unfit  to  execute  any  public  franchise,  but 
indictment  and  conviction  must  precede  amo-^ 
tion  for  such  causes.  2.  Such  as  are  ony. 
against  his  oath  and  the  duty  of  his  office  as»' 
corporator,  and  amount  to  breaches  of  the, 
tacit  condition  annexed  to  his  office.     3.  Such 

poration,  and  that  the  legislature  cannot  repeal,  impair, 
or  alter  it  against  the  consent,  or  without  the  default  of 
the  corporation  ;  judicially  ascertained  and  declared.  Id. 
U-6  How.  507.  I-3  Mass.  364  ;  Dougl.  524;  i  M.  &  R. 
529.  Ill-See  8  Pick.  90.  n-2  Mass.  315.  0-8  T.  R. 
356:  1  East.  562  :  6 Conn.  532.  -p-i  Burr.  ^39;  Dougl. 
149.  «|-Willcock  Munic.  Corp.  253;  23  Mo.  22;  see  1 
Ventr.  77;  a  Show.  70;  11  Mod.  403;  9  Wend.  394.  r- 
2  Green.  333. 


CORPORATIONS. 


419 


as  are  an  oflfence,  not  only  against  the  duty  of 
his  office,  but  also  a  matter  indictable.' 

See  DiSFRANCHISEMKNT,  below. 

BODY  CORPORATE  OR  POLITIC. 

These  terms  are  undoubtedly  correct  though 
very  early  terms  apyjlied  to  corporations. ■ 

BY-LAWS,  ORDINANCES,  OR 
RULES.  The  jiower  to  make  by-laws  is 
usually  conferred  by  express  terms  of  the  char- 
ter creating  the  corporation ;  though,  when  not 
expressly  granted,  it  is  given  by  implication ; 
it  is  incideni  to  the  very  existence  of  a  corpora- 
tion. Where  there  is  an  express  grant,  limited 
to  certain  cases  and  for  certain  purposes,  the 
corporate  power  of  legislation  is  confined  to 
the  objects  specified,  all  others  being  excluded 
by  implication.*  The  power  of  making  by- 
laws is  to  be  exercised  by  those  persons  in 
whom  it  is  vested  by  the  charter ;  but  if  thnt 
instrument  is  silent,  it  resides  in  the  members 
of  the  corporation  at  large." 

The  Constitution  of  the  United  States  and 
Acts  of  Congress  enacted  in  conformity  thereto, 
the  constitution  of  the  State  in  which  a  cor- 
poration is  located,  and  acts  of  the  legislature 
tnacted  in  conformity  thereto,  together  with 
the  common  law  as  therein  accepted,  are  of 
'.uperior  force  to  any  by-law ;  and  any  by-law 
contrary  to  either  of  them  is  void,  whether  the 
L barter  authorizes  the  making  of  such  by-law 
or  not,  for  no  legislature  can  grant  power 
greater  than  they  themselves  possess.' 

CAPITAL  STOCK  is  not  only  the  sum 
divided  into  shares  and  raised  by  mutual  sub- 
.^.criplion  of  the  members  of  a  corporation,  but 
.".'.so  the  sum  upon  which  calls  may  be  made 
up^n  the  stockholders  and  dividends  are  to  be 
paid.*  It  is  the  capital  of  the  corpoiation. 
It  is  entered  in  the  proper  books  in  the  name 
of  the  person  owning  it,  and  can  only  be  trans- 
ferred by  such  person  or  his  attorney.  Certifi- 
cates are  issued  to  the  person  to  whom  it  is 
tr.insferred ;  and  when  a  new  transfer  is  effected, 
such  certificate  surrendered  and  cancelled,  a 
new  one  being  issued  to  the  transferree.  Some- 
times it  is  sold  by  delivering  the  certificate  ac- 
companied by  a  power  of  attorney  to  transfer 
it,  but  such  a  sale  is  merely  an  equitable 
assignment.*  Bonds  are  transferable  by  de- 
livery, and  are  payable  to  bearer.  Stock  held 
by  individuals  in  coqxjration,  whether  States, 
municipal,  or  private,  is  j)ersonal  property .' 

Stock  issued  by  an  agent  of  a  company  tran- 
scending his  authority,  as  in  case  of  over  issue, 
is  not  binding  on  a  corjx)ration  or  company.* 

Carriers;  Common  Carriers;  Common 
Carriers  ok  rASSENGERS.  See  title  Bail- 
ments, ante. 

Charter.  Alteration  and  Repeal.  See 
iNTRonurTioN,  above. 

COMMON     SEAL.      The    ancient    and 

r-Dougl.  149;  2  Binn.  448.  s-Co.  L'tt.  rw  a:  Ay- 
liffe  P.nrtn.  196;  Angell  Corp.  J  6.  t-2  Kyrl  Corp.  lo? ; 
J  P.  Wms.  207;  Angell  Corp.  177.  n-i  Harris  &  J. 
519;  4  Durr.  2515,  2S2I  :  6  Brown  Part.  Cas.  519.  v-7 
Cow.  585,604;  5  Id.  538.  w-i  Sandf.  Ch.  280;  W.1I- 
ford  Rlys.  2';2  .  4  Zabr.  195 -Angell  &  A.  Corp.  ?§  151, 
$^    X.-*  WiWat.  393;  \  Pm.  309;  xo  Id.  $i4;  se« 


technical  rule  of  the  common  law  that  a  cor- 
poration cannot  manifest  its  intention  by  any 
personal  act  or  oral  discourse,  and  that  it  acts 
and  speaks  only  by  its  common  seal,  is  no 
longer  law  in  the  United  States.* 

COMPANY  properly  is  an  association  of  a 
number  of  individuals  for  the  purpose  of  carry- 
ing on  some  legitimate  business.  Company  is 
not  partnership,  usage  reserving  the  term  to 
associations  whose  members  are  in  greater 
number,  with  greater  capital  and  greater  enter- 
prise. When  such  a  company  is  authorized  by 
the  State  or  general  government  it  becomes  a 
corporation. 

DIRECTORS  are  appointed  or  elected 
according  to  law  to  direct  and  manage  the 
affairs  of  a  corporation  or  company.  Collec- 
tively they  form  a  board  of  directors.  To 
make  a  legal  board  of  directors  they  must  meet 
at  a  time  when  and  a  place  where  every  other 
director  has  the  opportunity  of  attending  to 
consult  and  be  consulted  with;  and  there  must 
be  a  sufficient  number  present  to  constitute  a 
quorum.''  The  acts  of  such  a  board  evidenced 
by  a  legal  vote  are  as  binding  upon  the  corpora- 
tion, and  as  complete  authority  to  their  agents, 
as  the  most  solemn  acts  done  under  their  cor- 
porate seal." 

Directors  are  generally  invested  with  certain 
powers  by  the  acts  of  the  legislature  to  which 
ihey  owe  their  existence.  In  corporations 
created  by  statutes  it  is  generally  contemplated 
by  the  charter  that  the  business  of  the  corpora- 
tion shall  be  transacted  exclusively  by  the 
directors.^ 

Directors  of  a  corporation  are  trustees,  and 
as  such  are  required  to  use  due  diligence  and 
attention  to  its  concerns,  and  are  bound  to  a 
f..iihful  discharge  of  the  duty  which  the  situ- 
aiion  imposes.  They  are  liable  to  the  stock- 
holders whenever  there  has  been  gross  negli- 
gence or  fraud,  but  not  for  unintentional 
errors.* 

See  General  Statutes. 

DISFRANCHISEMENT  is  the  depriv- 
ing a  member  of  a  corporation  of  his  right  as 
such,  by  expulsion.'  It  difliere  from  amotion, 
wliich  aj^plies  to  the  removal  of  an  officer  from 
office,  leaving  him  his  rights  as  a  member.* 

Dissolution.     See  Introduction,  above. 

DIVIDEND  is  that  part  of  the  principal 
or  profits  divided  among  the  members  o\ 
stockholders  of  a  corporation,  or  to  its  creditors 
upon  bankruptcy,  dissolution,  or  insolvency. 

EXPULSION.  Corporations  have  an  in- 
herent right  of  expulsion  :  I.  Where  an  offence 
has  been  committed  which  has  no  immediate 
relation  to  a  member's  corporate  duty,  but  is  of 
so  infamous  a  nature  as  to  render  him  unfit  fot 
the  society  of  honest  men,  as  perjury,  forgery, 

■\  NT onr.  126.  y-4  Dane  Abr.  670 ;  6  Cush.  282 ;  Ang. 
&  A.  Corp.  g  560.  «-i3  N.  Y.  599;  17  Id.  592.  »-? 
Cranch.  299;  9  Paige  Ch.  188;  21  Vt.  343;  21  Mis*. 
408;  I  Smith  (Ind.)  98;  6  Ga.  166:  2  Kent  Comm.  289. 
l»-3  La.  574;  6  Id.  759;  13  Id.  527.  c-8  Wheat.  357, 
3=8.  d-2  Caines,  3B1.  e-i  Edw.  Ch.  513;  8  Martin 
(N.  S.>  80;  3  La.  575.  f-i  Bouv.  Inst.  n.  198.  |^-Wilk 
cock  Corp.  n.  708*  '^"l!-  &  A.  Cor^.  237. 


420 


CORPORATIONS. 


and  the  like.  But  before  an  expulsion  is  made 
for  a.  cause  of  this  kind  it  is  necessary  thai 
there  should  be  a  previous  conviction  by  a  jury, 
according  to  the  law  of  the  land.  2.  When 
the  offence  is  against  his  duty  as  a  corporator, 
in  which  case  he  may  be  ex]3elled,  on  trial  and 
conviction  before  the  corporation.  3.  When 
the  offence  is  both  against  the  member's  duty 
es  a  corporator  and  also  indictable.*" 

Members  of  joint  stock,  incorporated  com- 
panies, or  of  any  corporation  owning  property, 
cannot,  without  express  authority  in  the  char- 
ter, be  expelled,  and  thus  deprived  of  their 
interest  in  the  general  fund.' 

Managers.    See  Directors,  above. 

NAME.  Corporations  must,  in  general, 
contract,  sue  and  be  sued,  by  their  corporate 
names.J  Yet  a  slight  alteration  in  stating  the 
name  is  unimportant,  even  if  there  be  no  possi- 
bility of  mistaking  the  identity  of  the  corpora- 
tion suing.* 

NUMBER.  When  a  corporation  is  com- 
posed of  an  indefinite  number  of  persons,  any 
number  of  them  consisting  of  a  majority  of 
those  present  may  do  any  act,  unless  it  be 
otherwise  regulated  by  the  charter  or  by-laws. 

Powers.     See  Introduction,  above. 

PREDECESSORS  in  a  corporation  stand 
in  the  same  relation  to  the  successor  that  the 
ancestor  does  to  the  heir. 

PRESIDENT.  The  president  of  a  cor- 
poration usually  directs  the  mode  in  which 
business  is  to  be  transacted ;  from  his  decision 
there  is  an  appeal  to  the  body  over  which  he 
presides. 

QUASI  CORPORATIONS  are  those 
bodies  or  municipal  societies  which,  though  not 
vested  with  the  general  powers  of  corporations, 
are  yet  recognized  by  statute  or  immemorial 
usage  as  persons  or  aggregate  corporation  with 
precise  duties  which  may  be  enforced,  and  privi- 
leges which  may  be  maintained  in  actions  and 
suits  at  l<\w.  They  possess  limited  powers  co- 
extensive with  the  duties  imposed  upon  them 
by  statute  and  usage,  but  are  restrained  from  a 
general  use  of  authority.  Among  quasi  corpo- 
rations may  be  ranked  towns,  townships,  par- 
ishes, hundreds,  and  other  political  divisions 
of  counties,  which  are  established  without  an 
express  charter  of  incorporation;  also  commis- 
sioners of  a  county,  supervisors  of  highways, 
overseers  of  the  poor,  loan  officers  of  the  county, 
and  the  like,  who  are  invested  with  corporate 
powers,  sui  mocfo,  and  for  a  few  specified 
purposes  only ;  but  not  such  a  body  as  the 
general  assembly  of  the  Presbyterian  church, 
which  has  not  the  capacity  to  sue  and  be 
sued.* 

QUORUM  is  the  number  required  to  trans- 
act business.  There  is  adifiTerence  between  an 
act  done  by  a  definite  number  of  persons  and 

\i-t  Binn.  448.  1-Ang.  &  A.  Corp.  238.  J-8  Johns. 
295;  14  Id.  238;  19  M.  300;  4  Rand.  359.  k-12  La. 
144;  see  20  Nle.  41  :  «  Va.  Ca*.  362;  16  Mass.  141  ;  12 
S  &  R  389.  1-4  VVhart.  53.  See  2  Kent.  Comm.  224  ; 
Ang.  &  A.  Corp.  16;  18  Johns.  432  :  i  Cow.  258,  and 
Wl?,  683;  9   wifud.  10^;  2  Jobos.  325 ;  2  Pick    352  ;  7 


one  performed  by  an  indefinite  number,  tn 
the  first  case  a  majority  is  required  to  constitute 
a  quorum,  unless  the  law  expressly  directs  that 
another  number  may  make  one.  In  the  latter 
case  any  number  who  may  be  present  may  act, 
the  majority  of  those  present  having,  as  in 
other  cases,  the  right  to  act."  Sometimes  the 
law  requires  a  greater  number  than  a  bare 
majority  to  form  a  quorum.  In  such  case  no 
quotum  is  present  until  such  a  number  con- 
vene. 

SCRIP.  The  possession  of  scrip  certificates 
is  prima  facie  evidence  of  ownership  of  the 
shares  therein  designated."  Such  certificates 
are  not  goods,  wares  or  merchandise  within  the 
statute  of  frauds." 

Shares.    See  Capital  .Stock,  above. 

Stock.     See  Capital  Stock,  above. 

ULTRA  VIRES  are  those  acts  beyond  the 
scope  of  the  powers  of  a  corporation  as  defined 
by  the  charter  or  acts  of  incorporation. 

As  a  general  rule,  such  acts  are  void,  and 
impose  no  obligation  upon  the  corporation,  al- 
though they  assume  the  form  of  contracts,  inas- 
much as  all  persons  dealing  with  a  corpora- 
tion, especially  where  it  is  created  by  the  laws 
of  the  State  or  country  where  it  exists,  of 
which  every  one  is  presumed  to  have  notice 
and  information.  It  is  otherwise  as  to  laws 
imposing  restraints  upon  it  not  contained  in 
its  charter,  where  the  contract  is  made  or  the 
transaction  takes  place  without  the  limits  of  the 
State  or  county  under  whose  laws  the  corpora- 
tion exists. P  If,  however,  a  corporation  n- 
ceives  money  or  other  valuable  consideratio*! 
under  such  a  transaction  or  contract,  upon 
rescinding  or  repudiating  the  act  or  contract 
under  which  it  was  paid  or  delivered,  it  could 
be  recovered  back  by  action  or  suit  for  that 
purpose. 1  So,  too,  the  corporation  is  liable  to 
be  proceeded  against  by  quo  warranto,  for  the 
usurpation  of  powers  in  its  name  by  its  officers 
and  agents,  and  deprived  of  its  charter  as  a 
penalty  for  such  acts;  the  defence  of  a  want  of 
power  to  bind  the*  corporation  not  being  avail- 
able in  such  cases,  since  it  would  lead  to  entire 
corporate  irresponsibility.'' 

A  court  of  equity,  at  the  suit  of  the  stock- 
holders of  the  corporation,  will  restrain  the 
commission  of  acts  beyond  the  corporate 
power,  by  injunction  operating  upon  the  indi- 
vidual officers  and  directors,  as  well  as  the 
corporation.*  But  acquiescence  for  any  con- 
siderable time  in  the  exercise  of  excessive 
jx)wers  after  they  come  to  the  knowledge  of 
the  stockholders,  would  be  a  decisive  objection 
to  such  a  remedy.' 

Corporeal  Hereditaments.   See  Hbrbdi- 

TAMENTS  ;    PrOPKRTV. 

CorpuH  Delicti.  See  Criminal  Law. 

Miss.  187:  9  Id.  250;  13  Id.  T92  ;  I  Me.  363.  in-7 
Cow.  402  :  9  B.  &  C.  648  ;  Ang.  &  A.  Corp.  «8i.  n- 
Addison  Contr.  203.*  0-16  M.  &  W.  66.  l»-8  Barb. 
235-  <|-22  N.  Y.  25  ;  14  Penn.  St.  81.  r-7  Wend.  31 ; 
1  Blaclcf.  267.  8-Redfield  RIys.  400.  ?  4  :  4  R'y-  <-«*• 
513;  6  Id.  289;  10  Beay,  Rolls.  1;  la  Id.  339.  i-19 
Eng.  L.  «^  Eq.  7. 


DAMAGES. 


421 


f  Arrection.  Sec  Marriage;    Military  Law; 

r'URSOHa. 

Correiipondeiice.   See  Copyigkt-    Lbtters, 

ETC. 

Corrnptloa.  See  Criminal  Law. 
<'OHtH.  See  Practicb. 

Council.  See  Government;    Office  and  Offi- 
Zeks. 
i'onnnel.  See  Agency  ;  Attorneys. 
CounMellor  at  l^aw.  See  Agency  ;  Attorneys. 
Count.  See  Pleading. 
Counter  Aflltlavlt.  See  Affidavits. 
County.  See  Corporations. 
Course.  See  Boundaries  ;  Real  Property. 
Course  of  Trade.  See  Contracts  ;  Custom. 
Court.  See  Practice. 
CouHin.  See  Persons. 
Covenants.  See  Conveyances. 
CovenantM  Performed.  See  Pleading. 
Coverture.  See  Marriage. 
Cow.  See  Animals. 
Cowardice.  See  Military  Law. 
CredentialM.  See  International  Law. 
Credibility,  Credible  Witness.   See  Evi- 

•BNCB. 

Creek.  See  Maritime  Law  ;  Real  Property. 

Crim.  Con.  See  Criminal  Law. 

Crime.  See  Criminal  Law. 

Criminal  I^aw.  See  Law,  Subdiv.  "  Criminal 
Uw." 

Criminals.  See  Criminal  Law. 

Criticism.  See  Copyright,  "  Extracts." 

Crop.  See  Emblements. 

Cross.  See  Signature. 

Cross  Action.  See  Equity  ;  Practicb. 

Cross  Bill.  See  Practice. 

Cross  Examination.  See  Evtdbncs. 

Cruelty.  See  Animals. 

Cruise.  See  Maritime  Law. 

Cnckin;;  Stool.  See  Persons ;  Scold ;  Women. 

Culprit.  See  Criminal  Law;  Prisoner. 

Curtesy.  See  Estate. 

Curtilage.  See  Real  Property. 

Custom.  See  Contracts  ;  Usage. 

Custom  of  merchants.  See  Bonds,  Notes, 
and  Bills:  Mercantile  Law. 

Custom  House.  See  Government. 

Customs.  See  Government. 

Cy  Pres.  See  Conveyances  ;  Wills. 

Dam.  See  Real  Property  ;  Water. 

nAMAOES.  See  titles  Agency;  Bailments; 
Bonds,  Notes,  and  Bills  :  Co.ntracts,  etc.,  etc. 

Damages  is  the  indemnity  recoverable  by  a 
person  who  has  sustained  an  injury,  either  in 
his  person,  property,  or  relative  rights,  through 
the  act  or  default  of  another.  The  sum  claimed 
as  such  indemnity  by  a  plaintiffin  his  complaint. 
The  injury  or  loss  for  which  compensation  is 
sought. 

Actual  damages  are  those  awarded  for  a  loss 
or  injury  actually  sustained;  in  contra-distinc- 
tion  from  damages  implied  by  law,  and  from 
those  awarded  by  way  of  punishment.  Com- 
pensator)' damages  are  those  allowed  as  a  rec- 
ompense for  the  injury  actually  received.  Con- 
sequential damages  are  those  which,  though 
directly,  are  not  immediately  consequent  upon 
the  act  or  default  complained  of.  Exemplary 
damages  are  damages  allowed  as  a  punishment 
for  torts  committed  with  fraud,  actual  malice, 
or  deliberate  violence,  or  oppression.  General 
damages  are  those  which  necessarily,  and  by 
implication  of  law,  result  from  the  act  or  de- 
fault complained  of.     Liquidated  damages  are 

a-ii  Johns.  130;  a  Texas,  460:  ii  Pick.  527;  15 
Ohio,  726-3  Sumn.  C.  C.  192;  4  Mass.  C.  C.  115.  b- 
t  Greenl.  Ev.  ^  256 ;  Sedgwick  Dam.  c.  3.  C-17  Pick. 
78:  3  Texas,  324:  13  Ala.  (N.  S.)  490;  28  Me.  lei ;  a 
Wu.  427:  t  Sneed,  515;  4  Blackf.  277;  6  Q.  B.028. 
#-4  Jones,  163;  t  bmili  J»  Cm-  ^oa-^c^.     e-i  C.  ^  P. 


damages  whose  amount  has  been  detennined 

by  anticipatory  agreement  between  the  parties. 
Measure  of  damages  is  a  rule  or  method  by 
which  the  damage  sustained  is  to  be  estimated  or 
measured.  Nominal  damages  are  a  trifling  sum 
awarded  where  a  breach  ot  duly,  or  an  infrac- 
tion of  the  plaintiff's  right  is  shown,  but  n* 
serious  loss  is  proved  to  have  been  sustained. 
Punitive  damages  are  exemplary  damages.  Spe- 
cial damages  are  such  as  arise  directly,  but  not 
necessarily,  or  by  implication  of  law,  from  the 
act  or  default  complained  of.  For  further  deP 
inition  see  subsequent  sections  of  this  subjecL 
Unliquidated  damages  are  damages  whose 
amount  has  not  been  determined. 

To  constitute  a  right  to  recover  damages,  the 
party  claiming  damages  must  have  sustained  a 
loss  ;  the  party  against  whom  they  are  claimed 
must  be  chargeable  with  a  wrong ;  the  loss  must 
be  the  natural  and  proximate  consequence  of 
the  wrong.  There  is  no  right  to  damages, 
properly  so  called,  where  there  is  no  loss. 
Damages  are  based  on  the  idea  of  a  loss  to  be 
compensated,  a  damage  to  be  made  good.' 
This  loss,  however,  need  not  always  be  distinct 
and  definite,  capable  of  exact  description,  or  of 
measurements  in  dollars  and  cents.  A  sufficient 
loss  to  sustain  an  action  may  appear  from  the 
mere  nature  of  the  case  itself. 

The  loss  must  be  the  natural  and  proximate 
consequence  of  the  wrong.**  Or,  the  •'  direct  and 
necessary,"  or,  "  legal  and  natural "  conse- 
quence. It  must  not  be  "  remote  "  or  "  conse- 
quential." The  loss  must  be  the  natural  con- 
sequence. Every  man  is  expected — and  may 
justly  be — to  foresee  the  usual  and  natural  con- 
sequences of  his  acts,  and  for  these  he  may 
justly  be  held  accountable ;  but  not  for  conse- 
quences that  could  not  have  been  foreseen."  It 
must  also  be  the  proximate  consequence. 
Vague  and  indefinite  results,  remote  and  con- 
sequential, and,  thus,  uncertain,  are  not  em- 
braced in  the  compensation  given  by  damages. 
It  cannot  be  certainly  known  that  they  are  at- 
tributable to  the  wrong,  or  whether  they  are 
not  rather  connected  with  other  causes."* 

In  an  action  for  damages  for  an  injury  caused 
by  negligence,  the  plaintiff  must  himself  appear 
to  have  been  free  from  fault ;  for,  if  his  own 
negligence  in  any  way  contributed  directly  to 
produce  the  injury,  he  can  recover  nothing. 
The  law  will  not  attempt  to  apportion  the  loss 
according  to  the  different  degrees  of  negligence 
of  the  two  parties."  Judicial  officers  are  not 
liable  in  damages  for  erroneous  decisions. 

When  a  servant  is  injured  through  the  neglw 
gence  of  a  fellow-servant  employed  in  the  same 
enterprise  or  avocation,  the  common  employer 
is  not  liable  for  damages.  The  servant  in  en- 
gaging, takes  the  risk  of  injury  from  the  neg. 
ligence  of  his  fellow-servants.'     But  this  rule 

181;  II  East.  60;  7  Me.  51 ;  1  Iowa,  407:  17  Pick.  384; 
2  Met.  (Mass.)  615  ;  3  Barb.  49 ;  14  Ohio,  364 ;  3  La. 
An.  441;    Sedgw.  Dam.  468.      f-4  Met.  (Mass.)  49:   < 


La.  An.  495;    23  Penn.  St.  384;    5  N.  ¥.49^;    15  G* 

J 49;    IS   111.   550;    ao  Ohio,  415;    3  Ohio  S(.  aoi;    ^ 
ixch.  ^3. 


422 


DAMAGES. 


does  not  exonerate  the  master  from  liability  of 
negligence  of  a  servant  in  a  different  employ- 
ment. 

There  is  no  right  to  damages  where  there  is 
no  wrong.  It  is  not  necessary  that  there  should 
be  a  tort,  strictly  so  called — a  wilful  wrong,  an 
act  involving  moral  guilt.  The  wrong  may  be 
either  a  wilful,  malicious  injury,  or  one  com- 
mitted through  mere  motives  of  interest,  as  in 
many  cases  of  conversion  of  goods,  trespasses 
•n  land,  etc. ;  or,  it  may  consist  of  a  mere  neg- 
lect to  discharge  a  duty,  with  suitable  skill  or 
fidelity,  as  where  an  officer  is  held  liable  for 
the  escape  of  his  prisoner,  or  a  carrier  for  neg- 
lect to  deliver  goods ;  or  a  simple  breach  of 
contract,  as  in  case  of  refusal  to  deliver  goods 
sold,  or  to  perform  services  under  an  agree- 
ment ;  or  it  may  be  a  wrong  of  another  person 
for  whose  act  or  default  a  legal  liability  exists, 
as  where  a  master  is  held  liable  for  an  injury 
done  by  his  servant,  or  apprentice,  or  a  railroad 
company  for  an  accident  resulting  from  the  neg- 
ligence of  their  engineer.  But  there  must  be 
something  which  the  law  recognizes  as  a  wrong, 
some  breach  of  a  legal  duty,  some  violation  of 
legal  right,  some  default  or  neglect,  some  fail- 
ure in  responsibility,  sustained  by  the  parly 
claiming  damages.  For  the  sufferer  by  acci- 
dent, or  by  the  innocent  or  rightful  acts  of  an- 
other, cannot  claim  indemnity  for  his  misfor- 
tune; it  is  called  damnum  absque  injuria — 
(a  loss  without  a  wrong),  for  which  the  law  gives 
no  remedy.*  The  obligation  violated  must 
also  be  one  owed  to  the  plaintiff.  The  neglect 
of  a  duty  which  the  plaintiff  had  no  legal  right 
to  enforce  gives  no  claim  to  damages.  Thus, 
where  the  postmaster  of  Rochester,  New  York, 
was  required  by  law  to  publish  lists  of  letters 
uncalled  for  in  the  newspaper  having  the  largest 
circulation,  and  the  proprietors  of  the  "  Roches- 
ter Daily  Democrat"  claimed  to  have  the  larg- 
est circulation,  and  to  be  entitled  to  the  adver- 
tising, but  the  postmaster  refused  to  give  it  to 
them,  it  was  held  that  no  action  would  lie 
against  him  for  the  loss  of  the  profits  of  the  ad- 
vertising. The  duty  to  publish  in  the  paper 
having  the  largest  circulation  was  a  duty  not 
owed  to  the  publisher  of  that  paper.  It  was 
imposed  upon  the  postmaster,  not  for  the  bene- 
fit of  publishers  of  newspapers,  but  for  the  ad- 
vantage of  persons  to  whom  letters  were  ad- 
dressed, and  they  alone  had  a  legal  interest  to 
enforce  it.' 

ASSESSMENT  of  damages  is  made  by 
Ihe  court  through  its  proper  officer  or  clerk, 
where  it  is  a  mere  matter  of  calculation ;  in 
other  cases  it  must  be  done  by  the  jury. 

DAMAGE  FEASANT  are  those  injuries 
committed  by  animals  belonging  to  one  person 
upon  the  land  of  another,  by  feeding,  treading 

V-tsOhio,  659:  II  Pick.  sa7:  11  M.  &  W.  755,  lo 
Met.  (Mass.)  371 ;  13  Wend.  261.  Il-ii  Barb.  135  ;  see 
also  17  Wend.  554;  11  Pick.  526.  i-3  Bl.  Comm  6; 
Co.  Litt.  142,  161;  Com.  Dig  PI  (3  M  26.)  j-19 
Barb.  461 ;  9  Cush.  228  ;  16  B.  Mon.  577  ;  22  Conn.  74  ; 
27  Miss.  68;  loGa.  37;  20  Id.  428.  6  Rich.  419  ;  i  Cat 
33,  363;    J  id.  410;    ti  Gralt.  697.     k-Se«  3  Abb.  Pr. 


down  the  grass,  corn,  or  other  productions  of 
the  soil.' 

DOUBLE  OR  TREBLE  damages  are 
in  some  cases  allowed  by  statute.  In  thej« 
cases  the  actual  damage  is  doubled  or  trebled, 
and  not  assessed  like  double  or  treble  costs. 

EXCESSIVE  OR  INADEQUATE. 

Even  in  that  large  class  of  cases  in  which 
there  is  no  fixed  measure  of  damages,  but  they 
are  left  to  the  discretion  of  the  jury,  the  court 
has  a  certain  power  to  review  the  verdict,  and 
to  set  it  aside  if  the  damages  awarded  are 
grossly  excessive  or  unreasonably  inadequate. 
The  rule  is,  however,  that  a  verdict  will  not  be 
set  aside  for  excessive  damages  unless  the 
amount  is  so  large  as  to  satisfy  the  court  that 
the  jury  have  been  misled  by  passion,  prejudice, 
ignorance,  or  partiality.^  But  this  power  is 
very  sparingly  used ;  and  cases  are  numerous 
in  which  the  courts  have  expressed  themselves 
dissatisfied  with  the  verdict,  but  have  refused 
to  interfere  on  the  ground  that  the  case  did  not 
come  within  this  rule.''  As  a  general  rule,  in 
actions  of  tort  the  court  will  'not  grant  a  new 
trial  on  the  ground  of  the  smallness  of  dam- 
ages.' But  they  have  power  to  do  so  in  a 
proper  case;  and  in  a  few  instances  in  which 
the  jury  have  given  no  redress  at  all,  when 
some  was  clearly  due,  the  verdict  has  been  set 
aside." 

In  cases  where  there  is  a  fixed  legal  rule 
regulating  the  measure  of  damages,  it  must  be 
stated  to  the  jury  upon  the  trial.  The  failure  to 
state  it  correctly  is  ground  of  exception.  And 
if  the  jury  disregard  the  instructions  of  the 
court  on  the  subject,  their  verdict  may  be  set 
aside.  In  so  far,  however,  as  the  verdict  is  an 
honest  determination  of  the  questions  of  fad 
properly  within  this  province,  it  will  not,  in 
general,  be  disturbed.'' 

EXEMPLARY. 

In  actions  for  torts,  strictly  so  called,  where 
gross  fraud  or  actual  malice,  or  deliberate  vio- 
lence, or  oppression  appears,  the  jury  are  not 
confined  to  a  strict  compensation  for  the  plain- 
tiff's loss,  but  may,  in  assessing  damages,  allow 
a  sum  as  a  punishment  of  the  defendant  for 
his  wrong  committed  upon  the  plaintiff.  Such 
an  allowance  is  termed  •'  smart  money,"  or 
"exemplary,"  "vindictive,"  or  "punitive" 
damages.  They  are  assessed  in  one  sum,  with 
any  allowance  the  jury  may  think  pioper  lo 
make  as  compensation  for  the  actual  loss  sus- 
tained; and  the  whole  sum  is  awarded  to  the 
injured  party. 

The  propriety  of  allowing  damages  to  be 
given  by  way  of  punishment  under  any  cir- 
cumstances has  been  strenuously  denied  in 
many  cases,  and  the  question  has  given  rise  to 
extensive  discussion ;  but  the  weight  of  aulhor- 

104  ;  5  Id.  272 ;  22  Barb.  87  :  20  Mo.  272 ;  15  Ark.  34s  ; 
6  Texas,  352;  q  Id.  30:  16  III.  405;  Cowp.  230;  2  Story 
C.  C.  661  ;  3  Id.  I  ;  1  Zab.  183 ;  s  Mass.  C.  C.  197.  I-i 
Cat.  450 ;  2  £.  D.  Smith,  349 ;  4  Q.  B.  917.  ni-12  Mod. 
150;  2  Str.  940:  24  Eng.  L.  &  £q.  Circumstances 
must  show  that  the  jury  have  acted  under  an  improper 
motive      n-Sedgw.  Dam.  604. 


DAMAGES. 


423 


ity  is  decidedly  that  such  allowance  in  a  suit- 
able case  is  proper."  But  they  should  be  care- 
fully denied  whenever  the  defendant  is  crimin- 
ally liable  to  punishment  for  the  wrong  done, 
hy  indictment  and  fine,  or  othei  wise.P 

'  LIQUIDATED.  Where  there  is  an  agree- 
ment between  the  parties  for  the  doing  or  not 
doing  particular  acts,  the  parties  may,  if  they 
please,  estimate  beforehand  the  damages  to  re- 
sult from  a  breach  of  the  agreement,  and  pre- 
scribe in  the  agreement  itself  the  sum  to  be 
paid  by  either  by  way  of  damages  for  such 
breach.i 

The  sum  named  in  an  agreement  as  damages 
to  be  paid  in  case  of  a  breach  will,  in  general, 
be  considered  as  liquidated  damages,  or  as  a 
penalty,  according  to  the  intent  of  the  parties. 
The  mere  use  of  the  words  "  penalty "  or 
*  liquidated  damages  "  will  not  be  decisive  of 
the  question  if,  on  the  whole,  the  instrument 
discloses  a  diflferent  intent.' 

Such  a  stipulation  in  agreement  will  be  con- 
sidered as  a  penalty  merely,  and  not  as  liqui- 
dated damages,  in  the  following  cases :  Where 
the  parties  in  the  agreement  have  expressly  de- 
clared it,  or  described  it  as  a  "  penalty,"  and 
no  other  intent  is  deducible  from  the  instru- 
ment ;•  where  it  is  doubtful  on  the  language  of 
the  instrument  whether  the  stipulation  was  in- 
tended as  a  penalty  or  as  liquidated  damages ;' 
where  the  agreement  was  evidently  made  for 
the  attainment  of  another  object  or  purpose,  to 
which  the  stipulation  is  wholly  collateral ;" 
where  the  agreement  imposes  several  distinct 
duties  or  obligations  of  different  degrees  of 
importance,  and  yet  the  same  sum  is  named  as 
damages  for  a  breach  of  either  indifferently  ;^ 
where  the  agreement  is  not  under  seal,  and 
the  damages  are  capable  of  being  certainly 
known  and  estimated  ;*  where  the  instrument 
provides  that  a  larger  sum  shall  be  paid,  upon 
default  to  pay  a  lesser  sum  in  the  manner  pre- 
scribed.* 

The  stipulation  will  be  sustained  as  liqui- 
dated damages  in  the  following  cases :  Where 

O-To  trace  the  disaission  on  this  subject  consult  13 
Ala.  (N.  S.)49o:  27  Id.  678:  28  Id.  236;  15  Ark.  452; 
3  Day,  477  ;  6  Conn.  508  ;  7  Id.  274  ;  10  Id.  384  ;  15  Id. 
225,  267  :  4  III.  373  ;  7  Id.  432  ;  16  Id.  283 ;  5  Ind.  322  ; 
13  B.  Mon.  219;  17  Id.  lot:  2  Mart.  257;  7  La.  An. 
447;  IT  Id.  292;  3  Mass.  546:  10  Id.  459;  15  Pick. 297: 
21  Id.  178;  4  Cuih.  273;  27  Miss.  63;  14  Mo.  104;  21 
Id.  289  :  10  N.  H.  no ;  3  Barb.  42,  651  ;  4  Wend.  113  ; 
I  Abb.  Pr.  289:  I  N.  Y.  18;  3  Id.  191  ;  4  Id.  452;  11 
Id.  336:  Busb.  395  ;  6  W.  &  S.  150:  5  Watts,  375;  20 
Pcnn.  St.  8s,  354  ;  23  Id.  424,  523  :  3  Strobh.  425 :  4  Id. 
34  ;  8  Rich.  144 ;  2  Sneed,  456 ;  2  Texas,  460 ;  5  Id.  141  ; 
9  Id.  358  ;  12  Id.  297 :  3  Wis.  424  :  4  Id.  67 ;  i  Cranch. 
C.  0.187:  I  Wash.  C.  C.  152:  Wall.  Jr.  C.  C.  164;  2 
Mas.  C.  C.  120;  2  Story  C.  C.  1  ;  3  Wheat.  546;  10 
Pet.  81;  13  How.  363,  447;  16  Id.  480:  2  Wils.  205;  3 
Id.  t8  :  5  Saiind.  442  ;  2  Stark.  282  ;  5  C.  &  P.  372  ;  13 
M.  &  W.  47;  3  Am.  Jur.  387;  5  Host.  L.  R.  529;  10  Id. 
49;  2  Greenl.  Ev.  §523;  i  Kent  Comm.  (loth  Ed.)  630, 
n.  p-4  Cush.  273 ;  5  Ind.  322 ;  but  compare  6  Texas, 
a66;  i  Cal  54:  18  Mo.  71  ;  i  Abb.  Pr.  289;  Duer,  247, 
13  M.  &  W.  47;  5  Taunt.  442;  2  Stark,  282;  i  l^Iurr. 
S.  C.  15,  3' 7;  428.  <|-i  H.  Bl.  232  :  2  B.  &  P.  335,  350; 
a  Brown  Pari.  Cas.  431  ;  4  Burr.  2225;  2  T.  R.  32.  r- 
Story  Eq.  Jur.  1318;  6  B.  &  C.  224;  6  Bingh.  141;  6 
Ired.  186;  15  Me.  273:  2  Ala  (N.  S.)  425;  8  Mo.  467. 
p«  p.  &  P.  340,  350,  j6o;  I  H.  Pl.  237;  I  Camp.  7S; 


the  agreement  is  of  such  a  nature  that  the 
damages  are  uncertain,  and  are  not  capable  of 
being  ascertained  by  any  satisfactory  and  known 
rule  -J  where,  from  the  tenor  of  the  agreement, 
or  from  the  nature  of  the  case,  it  appears  that 
the  parties  have  ascertained  the  amount  of 
damni^es  by  f.iir  calculation  and  adjustment.* 

MEASURE  OF. 

B1L1.3  OF  Exchange  and  Promissory 
NoTES.»    See  General  Statutes. 

Carriers.  Upon  a  total  failure  to  deliver 
goods,  the  carrier  is  liable  for  the  value  of  the 
goods  at  their  place  of  destination,  with  inter- 
est, deducting  the  freight. •>  Upon  a  failure  to 
take  the  goods  at  all  for  transportation,  he  is 
liable  for  the  difference  between  the  value  at 
the  place  of  shipment  and  at  the  place  of  desti- 
nation, less  his  freight;  or,  if  another  convey- 
ance can  be  found,  the  difference  between  the 
freight  agreed  on  with  the  defendant,  and  the 
sum  (if  greater)  which  the  shipper  would  be 
compelled  to  pay  another  carrier.'  Upon  a 
delay  to  deliver  the  goods,  the  plaintiff  is  en- 
tilled  to  an  indemnity  for  his  loss  incurred  by 
the  delay,  taking  into  account  any  fall  in  the 
market  occurring  between  the  time  when  the 
property  should  have  been  delivered  by  the 
carrier,  and  the  time  when  it  actually  was.^ 

See  title  Bailments,  ante. 

Contracts.  Where  a  contract  prescribes  r 
price  to  be  paid,  the  compensation  recoverable 
for  a  part  performance  will  be  measured  by  the 
contract  price  if  practicable,  and  not  by  the 
actual  value  of  the  services  or  goods,  etc., 
furnished.  ' 

Where  a  vender  of  real  property  fails  to  con- 
vey according  to  his  contract,  a  distinction  is 
taken,  in  many  cases,  growing  out  of  the  mo 
tive  of  the  party  in  default.  If  he  acted  in 
good  faith  and  supposed  he  had  good  title  and 
could  convey,  the  purchaser's  damages  have 
been  limited  to  the  amount  of  his  advance,  if 
any,  interest  and  expenses  of  examining  the 
title.*  But  in  case  of  a  wilful  and  fraudulent 
refusal  to  convev,  the  purchaser  has  been  held 

7  Wheat.  14;  I  McMuU.  106;  2  Ala.  (N.  S.)  425;  s 
Met.  (Mass.")  61  ;  i  Pick.  451 ;  4  Id.  179;  3  Johns.  Cas. 
297:  17  Barb.  260;  24  Vt.  97.  t-3  C.  &  P.  240;  6 
Humph.  186;  5  Sandf.  T92 ;  24  Vt.  97;  16  111.  473.  u-ir 
Mass.  488:  15  Id.  488;  1  Brown  Ch.  418.  v-6Ei:igh.  141  : 
5  Bingh.  (N.  C.)3Qo;  7  Scott,  364;  5  Sandf.  192;  but  sec 
7  Johns.  72;  IS  Id.  200;  9  N.  Y.  551.  W-2Bam.  &Ald. 
704;  6  Bam.  &  C.  216;  i  M.  &  M.  41;  4  Dall.  150:  5 
Cow.  144.  X-5  Sandf.  192,  640;  16  111.  400;  14  Arl;. 
329.  y-2  T.  R.  32 ;  I  Ale.  &  N.  Ir.  389  ;  2  Burr.  2225  ; 
10  Ves.  Ch.  429;  3  M.  &  W.  53s;  3  C.  &  P.  241. -8 
Mass.  223  ;  7  Cow.  307;  4  Wend.  468  ;  5  Sandf.  192  ;  i : 
Barb.  137,366;  18  Id.  336;  14  Ark.  315  ;  2  Ohio  St.  5:-,. 
SE-2  Story  Eq.  Jur.  §  1318  ;  2  Greenl.  Ev.  259  ;  i  Bin^ii. 
302;  7  Conn.  291;  11  N.  H.  234;  6  Blackf.  206;  13 
Wend.  507;  17  Id.  447;  22  Id.  201;  26  Id.  630;  10 
Mass.  459;  7  Met.  (Mass.)  583;  2  Ala.  (N.  S.)42S;  14 
Me.  250.  »-See  title  "  Bonds,  Notes,  and  Bills,"  and 
General  Statutes,  b-12  S.  &  R.  186;  8  Johns.  213; 
10  Id.  i;  14  Id.  170:  IS  Id.  24;  14  III.  146;  24  N.  H. 
297;  I  C.-il.  108;  10  La.  An.  412;  5  Rich.  462;  9  Id. 
465;  17  Mass.  62.  c-io  Watts,  418;  4  N.  Y.  340;  t 
Abb.  Adm.  119.  d-i2  N.  Y.  509;  22  Barb.  278:  but 
see  19  Barb.  36.  e-2  W.  Bl.  1078;  10  B.  &  C.  416;  86 
B.  133;  2  Wend.  399;  4  Dcnio,  546;  6  Barb.  646;  ao 
N.  Y.  140;  a  Bibb.  415;  I  Litt.  358;  9' M<1.  3$o;  »J 
Penn,  St.  127. 


4H 


DAMAGES. 


entitled  to  the  value  of  the  land  with  inter- 
est.' 

Sales.  Where  the  selkr  of  chattels  fails  to 
perform  his  agreement,  ihe  measure  of  dam- 
ages is  the  difference  between  the  contract 
price  and  the  market  value  of  the  article  at  the 
time  and  place  fixed  for  delivery.*  The  same 
rule  applies  as  to  the  deficiency  where  there  is 
a  part  delivery  only.*"  Where,  however,  the 
purchaser  has  paid  the  price  in  advance,  the 
purchaser  is  allowed  the  highest  market  price 
up  to  the  time  of  the  trial.  Where  the  pur- 
chaser refuses  to  take  and  pay  for  the  goods, 
the  seller  may  sell  them  fairly,  and  charge  the 
buyer  with  the  difference  between  the  contract 
price  and  the  best  market  price  obtainable 
within  a  reasonable  time  after  the  refusal. 
Where  the  goods  are  delivered  and  received, 
but  do  not  correspond  in  quality  with  a  war- 
ranty given,  the  vendee  may  recover  the  differ- 
ence between  the  value  of  the  goods  delivered 
Jind  the  value  they  would  have  had  if  they  had 
rorresponded  with  the  contract. 

See  General  Statutes. 

MITIGATION  of  damages  is  often  effected 
by  matters  which  are  no  answer  to  the  action 
itself,  but  which  may  often  be  given  in  evidence 
to  reduce  or  diminish  the  amount  of  the  pen- 
alty or  punishment. 

NOMINAL.  Whenever  any  act  injures 
another's  right,  and  would  be  evidence  in 
future  in  favor  of  a  wrong-doer,  an  action  may 
be  obtained  for  an  invasion  of  the  right  with- 
out proof  of  any  specific  injury.'  And  when- 
ever the  breach  of  an  agreement,  or  the  inva- 
sion of  a  right,  is  established,  the  law  infers 
some  damage,  and,  if  none  is  shown,  will 
award  a  trifling  sum ;  as,  a  penny,  one  cent, 
six  and  a  quarter  cents,  etc.!  Thus,  such  dam- 
ages may  be  awarded  in  actions  for  flowing 
lands  ;*  injuries  to  commons  •  trespass  to  lands ;'° 
neglect  of  official  duties,  in  some  cases;"  breach 
of  contract  ;•  and  in  many  other  cases  where 
the  effect  of  the  suit  will  be  to  determine  a 
right.P 

Smart  Money.  See  Excessive,  Exem- 
plary, OR  Inadequate  Damages,  above. 

Unliquidated  Damages.  See  Liquidated 
Damages,  above. 

Date.  See  Timb. 

Daugrhter.  See  Descend  ants. 

I>angrhter-in-L<aiv.  See  Descendants. 

Bay.  See  Time. 

Day>Book.  See  Accounts. 

Days  or  Grace.  See  BoNns,  Notes,  and  Bills. 

De  Bene  Esse.  See  Practice. 

De  Facto.  See  Practice. 

De  Jure.  See  Practice. 

De  Novo.  See  Practice. 

Dead  Body.  See  Criminal  Law. 

Dead  Born.  See  Birth  ;  Mrdical  Law. 

Dear  and  Dninb.  See  Persons. 

Deaf,  Dumb,  and  Blind.  See  Persons. 

r-6  B.  &  C.  31 ;  1  Exch.  850 ;  6  Wheat.  lop;  Hardin. 
4J ;  2  Bibb.  40,  ^34;  9  I^igh.  III.  g-sN.Y.  537:  12 
Id.  41 ;  3  Mich.  55  ;  6  McLean  C.  C.  102,  407  ;  4  Texas, 
«89;  12  111.  184.     I1-16  Q.  B.  941.     i-i  Wms.  Saund. 

J46,  «;  a8  N.  H.  438;  13  Conn.  269.  J-14  III.  301;  4 
)«nio,  554 ;  Sedg.  Dam.  47.  k-2  Story  C.  C.  661  ;  i 
Kawle,  27;  12  Me.  183;  28  N.  H.  438.  I-2  East.  154. 
Ui-'i  W«nd.  >88;  »  Tcxat,  ao6;  see  4  Jones,  139.     u- 


Death.  See  Evidfnck  ;  Medical  Law. 

Death-bed  l>eed.  See  Convkvancbs,  "  Wnu." 

Deceit.  .See  Fraud. 

Decision.  Sec  Practice. 

Declaration.  See  Practice. 

Declaration  of  Intention.  See  Aliwc; 
Pkrsons. 

Declaration  of  War.  See  Military  Law; 
War. 

Declaratory.  See  Statute  Law. 

Decree.  See  Practice. 

Dedication.  See  H ighwav  ;  Real  Propertt. 

Deduction  for  New.  See  Maritime  Law. 

Dec*!.  See  Conveyances,  "  Deeds." 

Deed  I'oll.  Sec  Conveyances,  "  Deeds." 

Det'aination.  See  Slander. 

Defeasance.  See  Conveyances,  "  Mortgages." 

Defect.  See  Pleading. 

Defence.  See  Pleading;  Practice;  Torts. 

Defendant.  See  Practice. 

Defensive  War.  See  Military  Law;  War. 

Deiicit.  See  Accounts. 

Deg:rading^.  See  Siander. 

Del  t'reilere  Commission.  See  Agency; 
Agents.. 

Deliberation.  See  Contracts. 

Deliriunt  Febrile.  See  Medical  Law. 

Delirium  Tremens.  See  Medical  Law. 

Delivery.  See  Conveyances,  "Deeds;"  Medi- 
cal Law. 

Delusion.  See  Medical  Law. 

Demand.  See  Contracts;  Practicb. 

Dementia.  See  Medical  Law. 

Demise.  See  Conveyances,  "  Leases." 

Demurrage.  See  Bailments. 

Demurrer.  See  Pleading;  Practice. 

l>euial.  See  Pleading. 

Departure.  See  Mercantile  Law;  Plbadikg. 

Deposit.  See  Bailments. 

Deposition.  Sec  Evidencb. 

Deputy.  See  Office  and  Officer. 

Descent.  See  Heirs. 

Description.  See  Contracts. 

Desertion.  See  Criminal  Law;  Military 
Law. 

Desertion  (of  a  Seaman).  See  Maritimk 
Law. 

Desisrnation.  See  Contracts. 

Detainer.  See  Practice;  Property,  btc. 

Determination.  See  Authority. 

Detiiiet.  See  Pleading. 

Detinue.  Sec  Pleading. 

Detinuit.  See  Pleading. 

Deviation.  See  Insurance. 

Devise.  See  Conveyances,  "Wills." 

Devisor.  See  Wills. 

Dif^est.  See  Copyright. 

Dilifi^ence.  See  Acts. 

Dime.  See  Money. 

Diplomatic  Ag:ent.  See  Intbrnational  Law. 

Direction.  See  Practice. 

Directors.  See  Corporations. 

Disabling:  Statutes.  See  Statittb  Law. 

Disaflirmance.  See  Contracts. 

Discliarg^e.  See  Practice. 

Disclaimer.  See  Pleading. 

Discontinuance.  See  Pleading  ;  Practicb. 

Discovery.  See  Pleading,  Practice. 

Discredit.  See  Evidence. 

Discrepancy.  See  Contracts  ;  Evidence. 

Discretion.  See  Criminal  Law  ;  Practice. 

Dishonor.  See  Bonds,  Notes,  and  Bills. 

Disjunctive  Alleij^ations.  See  Plbadinc. 

]>isorderIy  House.  See  Criminal  Law. 

Disseizin.  See  Real  Property. 

Dissolution.  See  Contracts;  Partnership; 
Practice. 

Dissuade.  See  Criminal  Law. 

Distress.  See  Practice. 

Distribution.  See  Practicb. 

5  Met.  (Mass.)  517;  12  Id.  535;  i  Denio,  S48;  27  Vt. 
563;  23  Id.  306;  12  N.  H.  341.  o-i  Duer,  363;  2  Hill 
(N.  y.)  644;  5  Id.  290,  50s;  6Md.  274.  p-2Wils.  414; 
12  Ad.  &  E.  488;  2  Scott  (N.  R.)  390;  13  Conn.  361 ;  20 
Mo.  603;  28  Me.  505;  19  Miss.  98;  2  La.  An.  907;  and 
see,  in  explanation  and  limitation,  10  B.  &  C.  145;  14 
C.  B.  595;  I  Q.  B.  636;  18  Id.  253;  22  Vt.  231;  I 
Dutch.  2iii  14  B.  Moa   330;  $  Ind.  ajo;  6  iUcb.  7^ 


DOMICIL. 


425 


IMntrlct.  See  Practtcb. 

mstrinsrnH-  See  Practics. 

DiMtnrbance.  See  Torts. 

IMvldend.  See  Corporatio?«s. 

ntvlMlble.    See  Contracts;    Atfortionmsiit; 

EjmRBTY. 

I>ivorce.  See  Marriagb. 
Docket.  See  Practick. 
Docnmeiits.  See  Evidrncx. 
Dollar.  See  Money. 
Domestics.  See  Persons 

DOMICIIi.  See  Evidbnck  ;  Death  ;  Practice. 

DOMICIL  i.s  that  place  where  a  man  has  his 
true,  fixed,  and  p)ermanent  home,  and  principal 
establishment,  and  to  which,  whenever  he  is 
absent,  he  has  the  intention  of  returning.* 
I  Domicil  may  be  either  national  or  dome.stic. 
tin  deciding  the  question  of  national  domicil, 
Ihe  point  to  be  determined  will  be  in  which 
of  two  or  more  nationalities  a  man  has  his 
«/omicil.  In  deciding  the  matter  of  domestic 
domicil,  the  question  is,  in  which  subdivision 
of  a  nation  does  a  person  have  his  domicil. 
Thus,  whether  a  person  is  domiciled  in  Eng- 
?and  or  France  would  be  a  question  of  national 
domicil;  whether  in  Norfolk  or  Suffolk  county 
a  question  of  domestic  domicil.  This  distinc- 
tion is  to  be  kept  in  mind,  since  the  rules  for 
determining  the  two  domicils,  though  fre- 
quently, are  not  necessarily  the  same.* 

Legal  residence,  inhabitability,  and  domicil 
are  generally  used  as  synonymous  ;•  but  much 
depends  on  the  connection  and  purpose.*  Two 
thmgs  must  concur  to  establish  domicil.  These 
two  must  exist,  or  must  have  existed,  in  com- 
bination.^  There  must  have  been  an  actual 
residence.'  The  character  of  the  residence  is 
of  no  importance ;«  and  if  it  has  once  existed, 
mere  temporary  absence  will  not  destroy  it, 
however  long  continued  ;•*  as,  in  the  case  of  a 
soldier  in  the  army.'  And  the  law  favors  the 
presumption  of  a  continuance  of  domicil. J 
The  original  domicil  continues  till  it  is  fairly 
changed  for  another,''  and  revives  with  an  in- 
tention to  return.'  This  principal  of  revival, 
however,  does  not  apply  where  both  domicils 
are  domestic."  Mere  taking  up  residence  is 
not  sufficient,  unless  there  be  an  intention  to 
abandon  the  former  domicil ;"  nor  is  intention 

K-Lieber  Encyc.  Am. ;  lo  Mass.  t88  ;  ii  La.  175  ;  $ 
Met.  (Mass.)  187;  4  Barb.  505;  Wall  Jr.  C.  C.  217;  9 
Ired.  99;  I  Texas,  673;  13  Me.  255;  27  Miss.  704;  i 
Bosw.  673.  b-See  2  Kent  Comm.  449  ;  Story  Confl. 
Laws,  §  39,  et  sef.  ;  Westlake  Priv.  Int.  L.  15  ;  Wlieat. 
Int.  L.  123,  et  seq.  C-i  Bradf.  Surr.  70 ;  i  Harring. 
■}83;  I  Spence,  328;  2  Rich.  489  ;  10  N.  H.  452  ;  3 
Wash.  C.  C.  555;  IS  M.  &  W.  433;  23  Pick.  170;  5 
Met.  (Mass.)  298;  4  Barb.  505;  7  Gray,  299.  d-i 
Wend.  43  ;  5  Pick.  231  ;  17  Id.  231  ;  is  Me.  58.  e-8 
Al*.  (N.  S.)  159;  4  Barb.  504;  6  How.  163  ;  Story 
Confl.  L.  §44:  17  Pick.  231;  27  Miss.  704;  15  N.  H. 
137.     f-ii  La.  175;  5  Met.  (Mass.)  587;  20  Johns.  208; 

12  La.  190;  I  Binn.  349.  g-8  Me.  203;  i  Speer's  Eq. 
j;   5  Eng.  L.&  Eq.  52.     I1-7  Clark  &  F.  Ho.  L.  842  ; 

13  Beav.  Rolls,  366  ;  43  Me.  426  :  3  Bradf.  Surr.  267 ; 
99  Ala.  (N.  S.)  703  :  4  Texas,  187;  3  Me.  455  ;  8  Id. 
103  ;  10  Pick.  70  ;  3  N.  H.  123;  3  Wash.  C.  C.  sss.  1- 
36  Me.  428 ;  4  Barb.  522.  J-5  Ves.  Ch.  750;  5  Madd. 
Ch.  379  ;  5  Pick.  370;  I  Ashnai.  126;  Wall.  jr.  C.  C. 
•17;  I  Bosw.  673;  21  Penn  St.  106.  k-5  Ves.  Ch. 
750.  757;  S  Madd.  Ch.  232,  370;  10  Pick.  77.  Story 
Confl.  L.  481,  a  n.  ;  8  Aia.  (N.  S.)  169;  13  Id.  58;  18 
Id.  367;  2  Swanst.  232 ;  i  Texas,  673  ;  1  Woodb.  &  M. 
C  C.  »;  15  Me.  58 ;  W»il.  Jr.  ii ;  10  N.  H.  156.    l-i 


of  constituting  domicil  alone  sufficient,  unless 
accompanied  by  some  acts  in  furtherance  of 
such  intention."  A  subsequent  intent  may  be 
grafted  on  a  temporary  residence.P  Removal  to 
a  place  with  an  intention  of  remaining  there  for 
an  indefinite  period,  and  as  a  place  of  fixed 
present  domicil,  constitutes  domicil,  though 
there  be  a  floating  intention  to  return.<>  Both 
inhabitantcy  and  intention  are  to  a  great  extent 
matters  of  fact,  and  may  be  gathered  from 
slight  indications.'  The  place  where  a  person 
lives  is  presumed  to  be  the  place  of  domicil 
until  facts  establish  the  contrary.* 

Domicil  is  of  three  kinds:  I,  domicil  by 
birth;  2,  domicil  by  choice,  and,  3,  domicil  by 
operation  of  law.  The  place  of  birth  is  the 
domicil  by  birth,  if  at  that  time  it  is  the  domi- 
cil of  the  parents.'  If  the  parents  are  on  a 
journey,  the  actual  domicil  of  the  parents  will 
generally  be  the  place  of  domicil."  Children 
of  ambassadors,  and  children  born  on  seas, 
take  the  domicil  of  their  parents.'  The  domi^ 
cil  of  an  illegitimate  child  is  that  of  the 
mother ;"  of  a  legitimate  child,  that  of  the 
father.''  The  domicil  by  birth  of  a  minor  con- 
tinues to  be  his  domicil  till  changed.'  Dom- 
icil by  choice  is  that  domicil  which  a  person 
of  capacity,  of  his  free  will,  selects  to  be  such. 
Residence  by  constraint,  which  is  involuntary 
by  banishment,  arrest,  or  imprisonment,  will 
not  work  a  change  of  domicil.*  Domicil  is 
conferred  in  many  cases  by  operation  of  law, 
either  expressly  or  consequentially.  Children 
born  in  foreign  lands  of  parents  who  are  at  the 
time  citizens  of  the  United  States,  have  theit 
domicil  of  birth  in  the  United  States.' 

The  domicil  of  the  husband  is  that  of  the 
wife.''  A  woman  on  marriage  takes  the  dom- 
icil of  her  husband,  and  the  husband,  if  enti- 
tled to  a  divorce,  may  obtain  it,  though  the 
wife  be  actually  resident  in  a  foreign  State.' 
But,  if  entitled  to  a  divorce,  the  wife  may  ac- 
quire a  separate  domicil,  which  may  be  in  the 
same  jurisdiction  The  domicil  of  a  widow 
remains  that  of  her  deceased  husband  until  she 
makes  a  change."*     The  domicil  of  the  ward 

Curt.  Eccl.  856;  19  Wend.  11  ;  8  Cranch,  278;  3  C. 
Rob.  Adm.  12;  3  Wheat.  14;  8  Ala.  (N.  S^  159;  3 
Rawie,  312;  I  Gall.  C.  C.  275;  4  Mass.  C.  C.  3<»;  I 
Wend.  134.  ni-5  Madd.  Ch.  379  ;  Am.  L.  Cas.  714. 
n-i  Speer's,  I ;  6  M.  &  W.  511;  5  Me.  143;  loMass. 
488;  I  Curt.  Eccl.  856;  4  Cal.  175;  2  Ohio,  232;  j 
S.-indf.  44.  0-5  Pick.  370;  i  Bosw.  673;  5  Md.  186. 
V-2  C.  Rob.  Adm.  322.  q-2  B.  &  P.  2?8 ;  3  Hag?. 
Eccl.  374.  r-17  Pick.  231  ;  4  Cush.  190;  i  Met.  (Mass.U 
•J42;  5  Id.  587;  I  Snee<l,  63.  8-2  B.  &  P.  228  «. .-  il 
Kent  Comm.  532.  t-Story  Confl.  L.  §  46 ;  2  Hagg. 
Eccl.  405;  5  Texas,  211.  See  10  Rich.  38.  n-J  Ves. 
Ch.  750;  Westl.  Priv.  Int.  L.  17.  V-Story  Confl.  L.  \ 
48.  w-Id.  g  45  ;  35  Me.  411  ;  8  Cush.  75.  See  Westl. 
Priv.  Tnt.  L.  19.  Where  the  place  of  birth  is  said  to 
be  their  domicil  at  common  law,  Cald.  559.  x-2  Hagg. 
Eccl.  405 :  1  Binn.  349.  y-i  Binn.  349  ;  3  Zabr.  394  ;  8 
Blackf.  345.  «-Story  Confl.  L.  §47;  3  Ves.  Ch.  198, 
202  •  11  Conn.  234;  5  Texas,  211  ;  1  Milw.  loi.  a-ro 
Rich.  38.  See  26  Barb.  383.  b-9  Bligh.  Ho.  L.  83, 
104;  2  Stock.  238;  29  Ala.  (N.  S.)7i9.  c-2  Clark  & 
F.  Ho.  L.  488;  I  Addis,  5,  19;  i  Dowl.  117;  a  Curt. 
Eccl.  351.  See,  also,  15  Johns.  i?i  ;  i  Dev.  &  B.  588; 
II  Pick.  410;  14  Id.  181  ;  2  Strobh.  Kq.  184.  tf-Story 
Confl.  L.  ?  46 ;  »»  Pcnn.  St.  17. 


426 


DOMICII^EQUITY. 


follows  that  of  the  guardian,*  especially  where 
the  guardian  is  a  parent.'  Ambassadors  and 
other  foreign  ministers  retain  their  domicii  in 
the  country  to  which  they  belong,  and  which 
they  represent.*  This  does  not  apply  to  con- 
suls and  other  commercial  agents.'' 

A  commercial  domicii  is  acquired  by  main- 
tenance of  a  commercial  establishment  in  a 
country,  in  relation  to  transactions  connected 
with  such  establishments.' 

CHANGE  OF  DOMICIL.  Any  per- 
son, sui  Juris,  may  make  any  bona  fide  change 
of  domicii  at  any  time.J  And  the  object  of  the 
change  does  not  affect  the  right,  if  it  be  a 
genuine  change  with  real  intention  of  perma- 
nent residence.''  Children  follow  the  domicii 
of  the  father,  if  the  change  be  made  bona  fide, -^ 
but  there  are  limitations  to  this  power  in  the 
case  of  alien  parents,™  and  of  the  mother,  if  a 
widow;"  not,  however,  if  she  acquires  a  new 
domicii  by  re-marriage."  The  guardian  has 
the  same  power  over  his  ward  as  a  parent  has 
over  his  child. p  The  domicii  of  a  lunatic  may 
be  changed  with  the  direction,  or  with  the 
assent,  of  his  guardian .1  It  may  be  considered 
questionable  whether  the  guardian  can  change 
the  national  domicii  of  his  ward.'  The  hus- 
band may  not  change  his  domicii  after  commit- 
ting an  offence  which  entitles  the  wife  to  a 
divorce,  so  as  to  deprive  her  of  her  remedy ;' 
and  the  wife  may  not  in  the  like  case  acquire 
a  new  domicii.' 

DEATH.  The  presumption  of  death  arises 
after  the  absence  of  a  person  from  his  domicii 
for  seven  years  without  having  been  heard 
from."    See  title  Evidence,  post. 

RESIDENCE  is  a  personal  presence  in  a 
fixed  and  permanent  abode.'  A  residence 
differs  from  a  domicii,  although  it  is  a  great 
matter  of  importance  in  determining  the  place 
of  domicii.*  Residence  and  habitancy  are 
usually  synonymous.*  Residence  indicates 
permanency  of  occupation,  as  distinct  from 
lodging,  or  boarding,  or  temporary  occupation, 
but  does  not  include  so  much  as  domicii, 
which  requires  an  intention  combined  with 
residence.' 

Return.     See  above. 

SETTLEMENT,  or  a  residence  under  such 
circumstances  as  to  entitle  a  person  to  support 
or  assistance  in  case  of  becoming  a  pauper,  is 
obtained  in  various  ways,  i.  By  birth,  2. 
By  the  legal  settlement  of  the  father  in  case  of 
minor  children.  3.  By  marriage.  4.  By  con- 
tinued residence.     5.  By  payment  of  requisite 

e-Story  Confl.  L.  §  506,  n. ;  i  Binn.  349  ;  s  Ves  Ch. 
750;  3  Meriv.  67;  9  Mass.  543;  5  Pick.  20.  f-Story 
Confl.  L.  ?  506.  g'-3  C.  Rob.  Adm.  13,  27;  4  Id.  26; 
4  Beav.  KoU.  441.  h-i  C.  Rob.  Adm.  79;  Thorne, 
I    Barb.    449 ;     Enc.    Am.    Domicii.      l-i    Kent. 


445;  

Comm.  82;  a  Id.  u,  12.  J-5  Madd.  Ch.  379  ;  5  Pick. 
370;  35  Eng.  L.  &  Eq.  532.  lc-3  Wash.  C.  C.  546;  5 
MaiE.  C.  C.  70 ;  I  Paine  C.  C.  594  ;  2  Sumn.  C.  C.  251. 
1-2  SaOi.  528:  2  Brown  Ch.  500;  6  Madd.  Ch.  89;  16 
Ma.ss.  ji  ;  Ware.  Dist.  Ct.  464;  Story  Eq.  Jur.  574: 
27  Mo.  280.  Ill-io  Ves.  Ch.  52  ;  5  East.  221 ;  8  Paige 
Ch.  47;  a  Kent  Comm.  226.  ii-Burge  Comm.  38;  30 
Ala.  (N.  S.)  613.  Sec  2  Bradf.  Surr.  214.  O-Id.  J8 
Cush  ^3;  11  Humph.  ^^6.  |»-^  Pick.  90;  i^  Mass.  23^; 


taxes.    6.  By  lawful  exercise  of  a  public  office. 

7.  By  hiring  and  service  for  a  specified  time. 

8.  By  serving  an  apprenticeship,  and  perhajis 
some  others  which  depend  upon  the  statutes 
of  the  particular  State,* 

Door.  See  Real  Property  :  House. 

]>oul>Ie  <'0!4ts.  See  Practice;  Costs. 

]>ouble  Eug'Ie.  See  Money. 

Double  Insurance.  See  Insurancb. 

Dower.  See  Marriage;  Wife. 

Draw.  See  Real  Proferty. 

Drawee.  See  Bonds,  Noies,  and  Bills. 

Drawer.  See  Bonds,  Notes,  and  Bills. 

Drip.  See  Real  Property;  Water. 

Dru{s;$cist.  See  Occupation. 

Drunkenness.  See  Medical  Law. 

Due  Dill.  See  Mercantile  Law. 

Duellinji;.  See  Criminal  Law. 

Dumb.  See  Persons. 

Dumb  Bitldinjr.  See  Sales;  Auction. 

Duplicate.  See  Writino. 

Duplicity.  See  Pleading. 

Duress.  See  Acts. 

Dut.y.  See  Contracts,  Obligation  of. 

Dwelling;  House.  See  Real  Propbrty; 
House. 

Dyspepsia.  See  Medical  Law. 

Eagrle.  See  Money. 

Easement.  See  Real  Property. 

£frects.  See  Conveyances;  Wilis. 

Ejectment.  See  Practice. 

Election.  See  Contracts. 

Elopement.  See  Marriage;  Wipk. 

Embargro.  See  International  Law. 

Embezzlement.  See  Criminal  Law. 

Emblements.  See  Landlord  and  Tbnant 
Property,  etc 

Eminent  Domain.  See  Real  Propbrty. 

Emission.  See  Medical  Law. 

Enemy.  See  International  Law. 

Eng^ross.  See  Conveyances. 

Enlistment.  See  Military  Law. 

Entirety.  See  Contracts. 

Entry.  See  Criminal  Law;  Real  Property 

Envo.y.  See  International  Law. 

Equality.  See  Contracts. 

E<11JITY.  See  Evidence;  Law;  Pleading; 
Practice. 

Equity  is  natural  justice — justice  between 
contending  parties.  It  is  a  branch  of  remedial 
justice  which  affords  relief  to  suitors  in  courts 
of  equity. 

The  difference  between  the  remedial  justice 
of  the  courts  of  common  law  and  that  of  courts 
of  equity  is  marked  and  material.  That  ad- 
ministered by  the  courts  of  law  is  limited  by 
the  principles  of  the  common  law  (which  are  to 
a  great  extent  positive  and  inflexible),  and  es- 
pecially by  the  nature  and  character  of  the  pro 
cess  and  pleadings,  and  of  the  judgments  which 
those  courts  can  render,  because  the  pleadings 
cannot  fully  present  all  the  matters  in  contro- 
versy,  nor  can  the  judgment  be  adapted  to  the 
special  exigencies  which  may  exist  in  particulai 

1  Binn.  349,  n.  :  3  Meriv.  67  ;  z  Kent  Comm.  227.  S«f 
i8  Ga.  5.  «|-i4  Pick.  181.  r-2  Kent  Comm.  226- 
Story  Confl.  L.  ?  506.  8-14  Pick.  181:  2  Texas,  261. 
t-io  N    H.  61  ;  9  Me.  140  ;   17  Conn.  284  ;  5  Yerg.  203  . 

2  Mass.  153;  5  Met.  233;  2  Litt.  337:  2  Blackf.  407. 
See  Bishop  Marr.  &  Div.  §730.  u-PeakeEv.  C.  14,  §1 ; 
Starkle  Ev.  457,  458  ;  Park.  Jus.  433  :  i  W.  Bl.  404  ;  i 
Stark.  121  ;  2  Campb.  113  ;  4  B.  &  Aid.  422  ;  4  Wheat. 
'.so.  173;  5  Mass.  305;  18  Johns.  141;  i  Hardin,  479. 
V-20  Johns.  208  ;  1  Met.  Mass.  251.  w-See  13  Mass. 
501  ;  5  Pick.  370;  1  Met.  Mass.  251;  2  Gray,  490  ;  19 
Wend.  14;  II  La.  175;  5  Me.  143.  X-2  Gray,  490;  2 
Kent  Comm.  (loth  Ed.)  574,  n.  y-J9  Me.  293  :  2  Keal 
Comm.  (loth  Ed.)  576.  K-i  Bl.  Com.  36);  Dougl.  9- 
6  S.  &  R.  loj,  565;  19  I4-  i7»- 


EQUITY. 


427 


eases,  tt  Is  not  tmcommon,  also,  for  cases  to 
fail  in  these  courts,  from  the  fact  that  too  few 
or  too  many  persons  have  been  joined  as  par- 
ties, or  because  the  pleadings  have  not  been 
framed  with  sufiicient  technical  precision. 

The  remedial  process  of  courts  of  equity,  on 
the  other  hand,  admits,  and  generally  requires, 
that  all  persons  having  an  interest  shall  be  made 
parties,  and  makes  large  allowances  for  amend- 
ments by  summoning  and  discharging  parlies 
after  the  commencement  of  suit.  The  plead- 
ings are  usually  framed  so  as  to  present  to  the 
tpnsideration  of  the  court  the  whole  case,  with 
Its  possible  legal  rights,  and  all  its  equities ; 
ihat  IS,  all  the  grounds  upon  which  the  suitor  is 
or  is  not  entitled  to  relief,  upon  the  principles 
of  equity.  And  its  final  remedial  process  may 
be  so  varied  as  to  meet  the  requirements  of  these 
equities  in  cases  where  the  jurisdiction  of  the 
courts  of  equity  exists,  by  "  commanding  what 
is  right,  and  prohibiting  what  is  wrong."  In 
other  words,  its  final  process  is  varied  so  as 
to  enable  the  courts  to  do  that  equitable  jus- 
tice between  the  parties  which  the  case  de- 
mands, either  by  commanding  what  is  to  be 
done,  or  prohibiting  what  is  threatened  to  be 
done. 

In  many  States  courts  possess  both  law  and 
equity  jurisdiction. 

In  equity  there  are  certain  rules  and 
maxims  which  are  of  special  importance  : 

1.  "Equity  once  having  jurisdiction"  of  a 
subject-matter,  because  there  is  no  remedy  in 
law,  or  because  the  remedy  is  inadequate, 
"  does  not  lose  the  jurisdiction,"  merely  be- 
cause the  courts  of  law  afterwards  give  the  same 
or  similar  relief. 

2.  "  Equity  follows  the  law,"  except  in  rela- 
tion to  those  matters  which  give  a  title  to  equit- 
able relief  because  the  rules  of  law  would 
operate  to  sanction  fraud  or  injustice  in  the 
particular  case. 

3.  "  When  there  is  equal  equity  the  law  must 
prevail."  For  if  one's  adversary  has  an  equally 
equitable  case,  the  complainant  has  no  more 
title  to  relief  than  his  adversary;  therefore 
equality  is  equity. 

4.  "  Equality  is  equity."  Cases  of  appor- 
tionment of  money,  or  of  contribution  among 
those  benefited  or  liable,  abatement  of  claims 
on  account  of  deficiency  of  the  means  of  pay- 
ment, etc.,  etc.,  are  examples. 

5.  "  He  who  seeks  equity  must  do  equity." 
A  party  cannot  claim  judicial  interposition  for 
relief  unless  he  will  do  what  it  is  equitable  as 
a  condition  precedent  to  that  relief. 

6.  "  Equity  considers  done  that  which  ought 
Id  have  been  done."  Thus,  where  there  is  an 
agreement  for  the  sale  of  land,  and  the  vendor 
dies,  the  land  may  be  treated  as  money,  and 
the  proceeds  of  the  sale,  when  completed,  go 
io  the  distributees  of  personal  estate  instead  of 
the  heir.  If  the  vendee  dies  before  the  com- 
pletion of  the  purchase,  the  purchase-money 
may  be  treated  as  land  for  the  benefit  of  the 
iieir. 


The  general  nature  and  jurisdiction  of 
equity  exists  for  the  following  purposes  : 

1.  For  the  purpose  of  compelling  a  discov- 
ery from  the  defendant,  respecting  the  truth  of 
the  matters  alleged  against  him,  by  an  appeal 
to  his  conscience  to  speak  the  truth.  The  dis- 
covery is  enforced  by  requiring  an  answer  to 
the  allegations  in  the  plaintiff's  complaint,  in 
order  that  the  plaintiff  may  use  the  matters 
disclosed  in  the  answer  as  admissions  of  the 
defendant,  and  thus  evidence  for  the  plaintiff", 
either  m  connection  with  and  in  aid  of  other 
evidence  offered  by  the  plaintiff",  or  to  supply 
the  want  of  other  evidence  on  his  part;  or  it 
may  be  to  avoid  the  expense  to  which  the  plain- 
tiff must  be  put  in  procuring  other  evidence  to 
sustain  his  case. 

Where  the  plaintifl"'s  complaint  (otherwice 
called  a  bill)  prays  for  relief  in  the  same  suit, 
the  statements  of  the  defendant  in  his  answer 
are  considered  by  the  court  in  forming  a  judg- 
ment upon  the  whole  case ;  to  it  certain  extent 
the  statements  of  the  defendant  in  answer  to  the 
bill  or  complaint  are  evidence  for  himself  also. 
The  discovery  which  may  be  required  is  not 
only  of  facts  within  the  knowledge  of  the  de- 
fendant, but  may  also  be  tjf  deeds  and  other 
writings  in  his  possession. 

The  right  to  discovery  is  not  unlimited ;  as, 
for  instance,  the  defendant  is  not  bound  to 
make  a  discovery  which  would  subject  him  to 
punishment,  nor,  ordinarily,  to  discover  the 
titles  upon  which  he  relies  for  his  defence ;  nor 
is  the  plaintiff"  entitled  to  require  the  production 
of  all  papers  which  he  may  desire  to  look  into. 
The  limits  of  the  right  deserve  careful  consid- 
eration. The  discovery,  when  had,  may  be  the 
foundation  of  equitable  relief  in  the  same  suit, 
in  which  case  it  may  be  connected  with  all  the 
classes  of  cases  in  which  relief  is  sought ;  or  it 
may  be  for  the  purpose  of  being  used  in  some 
other  court,  in  which  case  the  jurisdiction  is 
designated  as  an  assistant  jurisdiction. 

2.  Where  courts  of  law  do  not,  or  did  not 
recognize  any  right,  and  therefore  could  give 
no  remedy,  but  where  courts  of  equity  recog- 
nize equitable  rights,  and  of  course  give  equit- 
able relief.  This  was  denominated  exclu- 
sive jurisdiction.  Of  this  class  are :  trusts, 
charities,  forfeited  and  imperfect  mortgages, 
penalties,  and  forfeitures,  imperfect  considera- 
tion, etc.  In  most  of  the  cases  which  fall 
under  this  head,  courts  of  law  exercise  a  con- 
current jurisdiction. 

3.  Where  the  courts  of  equity  administer 
equitable  relief  for  the  infraction  of  legal  rights 
in  cases  in  which  courts  of  law,  recognizing  the 
right,  give  a  remedy  according  to  their  princi- 
ples, modes,  and  forms,  but  the  remedy  is 
deemed  by  equity  inadequate;  this  is  called 
concurrent  jurisdiction.  It  embraces  fraud, 
mistake,  accident,  administration,  legacies,  con 
tribution,  and  cases  where  justice  and  coi - 
science  require  the  cancellation  or  reformai-jn 
of  instruments,  or  the  recission,  or  the  spev  iiU 
performance  of  contracts. 


4«8 


EQUITY. 


Tlie  courts  of  law  relieve  against  fraud,  mis- 
take, and  accident  where  a  remedy  can  be  had 
according  to  their  modes  and  forms ;  but  there 
are  many  cases  in  which  the  legal  remedy  is 
made  equal  to  the  purposes  of  justice.  The 
modes  of  investigation  and  the  peculiar  reme- 
dies of  the  court  of  equity  are  often  of  the 
greatest  importance  in  this  class  of  cases. 
Transfers  to  defeat  or  delay  creditors  and  pur- 
chasers without  notice  of  an  outstanding  title 
come  under  this  head  of  fraud.  The  court 
does  not  relieve  in  all  cases  of  accident  or 
mistake. 

In  many  cases  the  circumstances  are  such  as 
to  require  the  cancellation  or  reformation  of 
written  instruments,  or  of  specific  performance 
of  contracts,  instead  of  damages  for  the  breach 
of  them. 

4  Where  the  court  of  equity  administers  the 
remedy  because  the  relations  of  the  parties  are 
such  that  there  are  impediments  to  a  legal  rem- 
edy, as,  for  instance,  in  cases  of  partnership,  joint 
tenancy,  marshalling  of  assets,  and  the  like. 
From  the  nature  of  a  partnership  there  are  im- 
pediments to  suits  at  law  between  the  several 
partners  and  the  partnership  in  relation  to  mat- 
ters involved  in  the  partnership;  and  impedi- 
ments of  a  similar  character  exist  in  other 
cases. 

5.  Where  the  forms  of  proceeding  in  the 
courts  of  law  are  not  deemed  adequate  to  the 
due  investigation  of  the  particulars  and  details 
of  the  case.  This  class  includes  accounts, 
partition,  dower,  ascertainment  of  boundaries. 

6.  Where,  from  a  relation  of  trust  and  con- 
fidence, or  from  consanguinity,  the  parties  do 
not  stand  on  equal  ground  in  their  dealings 
with  each  other,  as,  the  relations  of  parent 
and  child,  guardian  and  ward,  attorney  and 
client,  principal  and  agent,  executor  and  ad- 
ministrator, legatees  and  distributees,  trustee 
and  cestui  qui  trust,  etc. 

Cases  of  this  class  are  sometimes  considered 
under  the  head  of  constructive  fraud. 

7.  Where  the  court  grants  relief  from  con- 
siderations of  public  policy,  because  of  the 
mischief  which  would  result  if  the  court  did 
not  interfere.  Of  this  class  are  marriage 
brokerage  agreements,  contracts  in  restraint 
of  trade,  buying  and  selling  public  offices, 
agreements  founded  on  corrupt  considerations, 
usury,  gaming,  and  contracts  with  expectant 
heirs. 

Cases  of  this  class  are  sometimes  considered 
under  the  head  of  constructive  fraud. 

8.  Where  a  party,  from  incapacity  to  take 
care  of  his  rights,  is  under  the  special  care  of 
the  court  of  equity,  as  infants,  idiots,  and  luna- 
tics, vhich  is  exercised  through  committees  or 
guardians. 

9.  Where  the  court  recognizes  an  obligation 
on  the  part  of  a  husband  to  make  provision  for 
the  support  of  his  wife,  or  to  make  a  settlement 
upon  her,  out  of  the  properly  which  comes  to 
her  by  inheritance  or  otherwise.  This  juris- 
diction is  not  founded  upon  either  trust   or 


fraud,  but  is  originally  derived  from  the  maxim 
"  that  he  who  asks  equity  should  do  equity." 

10.  Where  the  equitable  relief  appropriate 
to  the  case  consists  in  restraining  the  commis- 
sion or  continuance  of  some  act  of  which  the 
defendant  administered  by  means  of  a  writ  of 
injunction. 

1 1 .  Where  the  court  aids  in  the  procuration 
or  preservation  of  evidence  of  the  rights  of  a 
party,  to  be  used,  if  necessary,  in  some  subse- 
quent proceeding,  the  court  administering  no 
final  relief. 

PLEADING.  A  suit  in  equity  is  ordinarily 
instituted  by  a  complaint  or  petition,  called  a 
bill,  and  the  defendant  is  served  with  a  writ 
of  summons,  called  a  subpoena,  requiring  him 
to  appear  and  answer. 

The  forms  of  proceedings  in  equity  are  such 
as  to  bring  the  rights  of  all  persons  interested 
before  the  court;  and,  as  a  general  rule,  all 
persons  interested  should  be  made  parties  to  the 
hill,  either  as  plaintiffs  or  defendants.  There 
may  be  amendments  of  the  bill,  or  a  supple- 
mental bill ;  which  is  sometimes  necessary 
when  the  case  is  beyond  the  stage  for  amend- 
ment. In  case  the  suit  fails  by  the  death  of  the 
party,  there  is  a  bill  of  revivor,  and  after  the 
cause  is  disposed  of  there  may  be  a  bill  of  re- 
view. 

The  defence  is  made  by  demurrer,  plea,  or 
answer.  Discovery  may  be  obtained  from  the 
plaintiff,  and  further  matter  may  be  introduced 
by  means  of  a  cross  bill,  brought  by  the  defend- 
ant against  the  plaintiff,  in  order  that  it  may  be 
considered  at  the  same  time. 

If  the  plaintiff  elects,  he  may  file  a  replica- 
tioh  to  the  defendant's  answer. 

The  final  process  is  directed  by' the  decree, 
which  being  a  special  judgment  can  provide 
relief  according  to  the  nature  of  the  case. 
This  is  sometimes  by  a  perpetual  injunction. 

There  may  be  a  bill  to  execute,  or  to  im- 
peach a  decree. 

PRACTICE.  The  rules  of  evidence,  except 
as  to  the  effect  of  the  answer  and  the  taking 
of  the  testimony,  are,  in  general,  similar  to  the 
rules  of  evidence  in  cases  of  law.  But  to  this 
there  are  exceptions. 

The  answer,  if  made  on  oath,  is  evidence 
for  the  defendant  so  far  as  it  is  responsive  to 
the  bill  for  discovery,  and  as  such  it  prevails, 
unless  it  is  overcome  by  something  more  than 
what  is  equivalent  to  the  testimony  of  one  wit- 
ness. If  without  oath,  it  is  a  mere  pleading, 
and  the  allegations  stand  for  proof. 

If  the  answer  is  incomplete  or  improper,  thtf 
plaintiff  may  except  to  it,  and  it  must  be  so 
amended  as  to  be  made  sufficient  and  proper. 
The  case  may  be  heard  on  the  bill  and  answer 
if  the  plaintiff  so  elects,  and  sets  the  case  down 
for  hearing  in  that  mode. 

If  the  plaintiff  desires  to  controvert  any  of 
the  statements  in  the  answer,  he  files  a  replica< 
tion  by  which  he  denies  the  truth  of  the  alle- 
gations in  the  answer,  and  testimony  is  takea 
The  testimony  was  formerly  taken  upon  inter 


EQUITY— ESTATES. 


449 


vogatoriea  filed  in  the  clerk's  office,  and  pro- 
pounded by  the  examiner;  this  practice  is 
extensively  modified.  If  any  of  the  testimony 
k  improper,  there  is  a  motion  to  suppress  it. 

The  case  may  be  referred  to  a  master  to  state 
the  accounts  between  the  parties,  or  to  make 
such  other  report  as  the  case  may  require. 
The  examination  of  parties  may  be  in  the 
master's  office.  Exceptions  mav  be  taken  to 
his  report. 

The  hearing  of  the  case  is  before  the  equity 
judge,  who  may  make  interlocutory  orders  or 
decrees,  and  who  pronounces  the  final  decree 
or  judgment.  There  maybe  a  re-hearing,  if 
sufficient  cause  is  shown. 

Srasnre.  See  Writing. 

Error.  See  Practicb. 

Escape.  See  Criminal  Law;  AiutBST. 

Escheat.  See  Real  Property. 

Escrow.  See  Conveyances. 

ESTATE.  Sec  Property,  etc 

Estate  includes:  1.  In  its  widest  sense 
everything  of  which  real  or  personal  property 
may  consist.'  2.  In  its  more  limited  sense  it 
applies  to  lands. 

Alienation.    See  Conveyances.' 

Boundaries.     See  Real  Property. 

Contingent  Estates  depend  upon  events 
which  may  or  may  not  happen ;  as,  an  estate 
limited  to  a  person  not  in  being,  or  not  yet 
born.» 

Coparcenary  Estates  are  those  where 
several  persons  hold  as  one  heir,  whether  male 
or  female ;  they  have  three  unities  of  time,  title, 
and  possession,  but  the  interest  of  the  copar- 
ceners may  be  unequal.' 

Curtesy.  Estates  by  the  curtesy  are  those 
to  which  the  husband  is  entitled  upon  the 
death  of  his  wife,  in  the  lands  and  tenements 
of  which  she  was  seized  in  fee  simple  or  entail 
during  their  marriage,  provided  they  have  had 
lawful  issue  born  alive  and  possibly  capable  of 
inheriting  her  estate. "^  It  is  the  freehold  estate 
for  the  term  of  his  natural  life." 

Executed  Estates  are  those  whereby  the 
present  interest  passes  to  and  resides  in  the 
tenant,  not  dependent  upon  any  subsequent 
circumstance  or  contingency.  They  are  also 
called  estates  in  possession.* 

Executory  Estates  are  those  interests 
which  depend  for  their  enjoyment  upon  some 
subsequent  event  or  contingency,  as  an  execu- 
tory devise,  executory  remainder,  etc. 

Fee  Simple  Estates  are  those  given  to  one 
and  their  heirs  absolutely  without  any  end  or 
limit,  etc.     See  Conveyances,  ante. 

Fee  Tail  Estate.  See  Conveyances, 
ante. 

Future  Estates  commence  in  possession 
at  a  future  day,  either  without  the  intervention 

X-8  Ve«.  Ch.  504  ;  16  Jo>in».  587 ;  4  Met.  Mass.  178  ; 
3  Cranch.  97.  y-Alienatioa  is  particularly  applied  to 
til'solute  convtyances  <jt  real  property,  i  N.  V.  290,294. 
ai-Crabbe  Real  Prop.  J  946.  a-i  Washb.  R.  Prop.  414  ; 
3  Sharsw.  Bl.  Comm.  188;  ^  Kent  Comm.  366.  b-i 
Washb.  R.  Prop.  138;  3  Crabbe  R.  Prop.  J  1074:  Co. 
Litt.  30  a:  3  Sharsw.  Bl.  Comm.  isfi;  Greeiil.  Cruise 
Diij.  153;  4  Kent  Comm.  373,  n.  a.  C-i  Washb.  R. 
Prop.  137.    (1-3  Sharsw.  Bl.  Comm.  163,  and  vested 


of  a  precedent  estate,  or  on  the  determination 
by  lapse  of  time,  or  otherwise,  of  a  precedent 
estate  created  at  the  same  time,  thus  excluding 
reversions,  which  cannot  be  said  to  be  created 
at  the  same  time  because  they  are  a  remnant  of 
the  original  estate  remaining  in  the  grantor. 

Inheritance — Are  those  estates  which  may 
descend  to  one's  heirs.*  All  freehold  estates 
are  estates  of  inheritance,  except  estates  for 
life.' 

Insolvent  Estates  are  in  general  the 
subject  of  statutory  regulation. 

Jointure  is  a  joint  estate  limited  to  both 
husband  and  wife.*  It  is  a  competent  livelihood 
of  freehold  for  the  wife  of  lands  and  tenements, 
to  take  effect,  in  profit  or  possession,  immedi- 
ately after  the  death  of  the  husband,  for  the 
life  of  the  wife  at  least ;  to  make  a  good  join- 
ture the  following  circumstances  must  concur : 
I.  It  must  take  effect,  either  in  possession  or 
profit,  immediately  from  the  death  of  the  hus- 
band. 2.  It  must  be  for  the  wife's  life,  or  for 
some  greater  estate.  3.  It  must  be  limited  to 
the  wife  herself,  and  not  to  any  other  person  in 
trust  for  her.  4.  It  must  be  made  in  satis- 
faction for  the  wife's  whole  dower,  and  not  of 
a  part  of  it  only.  5.  The  estate  limited  to  the 
wife  must  be  expressed  or  averred  to  be  in 
satisfaction  of  her  whole  dower.  6.  It  must 
be  made  before  marriage.  A  jointure  attended 
with  all  these  circumstances  is  binding  on  the 
widow,  and  is  a  complete  bar  to  her  dower; 
or,  rather,  it  prevents  the  existence  of  dower. 
But  there  are  other  modes  of  limiting  an  estate 
to  a  wife  which  are  good  jointures,  provided 
the  wife  accepts  them  after  the  death  of  the 
husband.  She  may,  however,  reject  them,  and 
claim  her  dower.*" 

Joint  Tenancy  is  the  estate  which  subsists 
between  several  persons  in  any  subject  of 
property  in  equal  shares  by  purchase.'  The 
right  of  survivorship  is  the  distinguishing  char- 
acteristic of  this  estate.J 

Legal  Estates  are  those  the  right  to  which 
may  be  enforced  in  a  court  of  law ;  they  are 
distinguished  from  equitable  estates,  the  right 
to  which  can  be  established  only  in  a  court  of 
equity.* 

Life  Estates  are  freeholds,  not  of  inheri- 
tance, but  which  is  held  by  the  tenant  for  his 
own  life,  or  the  life  or  lives  of  others,  or  for  an 
indefinite  period,  which  may  endure  for  the  life 
or  lives  of  persons  in  being;  and  not  beyond 
the  period  of  a  life.'  Where  the  measure  of 
duration  is  the  tenant's  own  life  it  is  called  an 
estate  "  for  the  tenant's  own  life."  When  the 
measure  of  duration  is  the  life  of  another  per- 
son it  is  called  an  estate  "per  autre  vu  "  (for 
another's  life)."    These  estates  may  be  created 

estates,  e-t  Washb.  R.  Prop.  51  ;  Steph.  Comm.  318. 
f-Crabbe  R.  Prop.  J  945.  |r-3  Bl.  Comm.  137.  it- 
Cruise  Dig.  Tit.  VII;  2  Bl.  Comm.  137.  I-j  Washb. 
R.  Prop.  406;  Williams  R.  Prop.  112;  i  Bl.  Comm. 
180.  J-Litt.  \  380.  k-Bouv.  Inst.  n.  1688.  l-i  Washb. 
R.  Prop.  88 ;  Crabbe  R.  Prop.  \  loso  ;  1  Greenl.  Cruise 
Dig.  I03  ;  Co.  Litt.  42  a:  Bracton  Lib.  4,  Ch.  28,  {  307. 
lu-i  Washb.  R.  Prop.  88 ;  3  Sharsw.  Bl.  Comm.  190; 
Co.  Litt.  41  b;  4  Kent  Comm.  33,  34. 


43^ 


ESTATES. 


by  act  of  the  laws,  or  of  the  parties.  The  chief 
incidents  to  estates  for  life  are  a  right  to  take 
therefrom  the  necessary  timber  and  natural 
material  for  fuel,  fencing,  repairs,  and  agricul- 
tural purposes,  and  a  freedom  from  injury  by  a 
sudden  termination  or  disturbance  of  the  es- 
tate. Under-tenants  have  the  same  privileges 
as  the  original  tenant,  and  acts  of  the  original 
tenant  which  would  destroy  his  own  claim  to 
these  privileges  will  not  affect  them."  Their 
right,  however,  does  not,  of  course,  as  against 
the  superior  owner,  extend  beyond  the  life  of 
the  original  tenant." 

Particular,  estates  are  those  which  are 
carved  out  of  larger  estates,  and  which  pre- 
cedes a  remainder;  as,  an  estate  for  life  to  A., 
remainder  to  B.  in  tail.  This  precedent  estate 
is  called  the  particular  estate. •* 

Remainder.    See  Real  Property. 

Reversion  is  the  residue  of  an  estate  left  in 
the  grantor  to  commence  in  possession  after  the 
determination  of  some  particular  estate  granted 
out  by  him.'  It  is  the  residue  of  an  estate 
which  always  continues  in  him  who  made  a 
particular  grant.' 

Seizin.  See  Conveyances;  Real  Prop- 
erty. 

Separate  estates  are  those  which  belong 
to  one  only  of  several  persons ;  as,  the  separate 
estate  of  a  partner,  which  does  not  belong  to 
the  partnership.*  A  separate  estate  of  a  mar- 
ried woman  is  that  which  belongs  to  her,  and 
over  which  hor  husband  has  no  control.  It 
may  be  either  lands  or  chattels,  or  both.* 

Severalty.  Estates  in  severalty  are  those 
held  by  a  tenant  in  his  own  right  only,  without 
any  other  being  joined  or  connected  with  him 
in  pomt  of  interest  during  the  continuance  of 
his  estate." 

Sufferance.  An  estate  at  sufferance  is  the 
mterest  of  a  tenant  who  has  come  rightfully 
into  possession  of  lands  by  permission  of  the 
owner,  and  continues  to  occupy  the  same  after 
the  period  for  which  he  is  entitled  to  hold  by 
.such  permission.^  This  estate  seldom  occurs, 
but  is  recognized  as  so  far  an  estate  that  the 
landlord  must  enter  before  he  can  bring  eject- 
ment against  the  tenant."  If  the  tenant  has 
personally  left  the  house  the  landlord  may  break 
in  the  doors,*  and  the  modern  rule  seems  to  be 
that  the  landlord  may  use  force  to  regain  pos- 
session, subject  only  to  indictment  if  any  injury 
is  committed  against  the  public  peace.' 

Unity.  In  a  joint  estate  there  must  exist 
four  unities:    I.  That  of  interest,  for  a  joint 

n-See  ip  Penn.  St.  pj.    0-2  Sharsw.  Bl.  Comm.  122  ; 

1  RoUe  Abr.  727;  1  Washb.  R.  Prop.  88,  et  seg.;  21 
Flinloff.  R.  Prop.  232  ;  i  Greenl.  Cruise  Dig.  102,*/  seg. 
|»-2  Bl.  Comm.  165;  2  Kent  Comm.  226;  i6VinerAbr. 
ii6;  Com.  Dig  32;  5  Id.  346.  q-2Sharsw.  Bl.  Comm. 
176;  Co.  Litt  22;  Crabbe  R.  Prop.  ?  2345.  r-Plowd. 
151 ;  I  Greenl.  Cruise  Dig.  817;  Co.  Litt.  22  b,  142  b. 
S-;  Bouv.  Inst.  n.  1519.      <-4  Barb.  407;    i  Const.  452; 

2  Bouv.  Inst.  n.  ifMf).  n-2  Bl.  Comm.  179 ;  Cruise  Di^. 
479,  4E0,  »79;  I  Washb.  R.  Prop.  112.  v-i  Washb.  R. 
Prop.  392  ;  2  Bl.  Comm.  150  ;  Co.  Litt.  57,  b. ;  Smilh 
I.andl.  &  T.  217;  Crabbe  R.  Prop.  §  i543;  W-3  T.  R. 
K2;  Sid.  403;  iM.&G.  644.  x-i  Bingh.  58  ;  17 
Pick.  t(n,  a66.    y-7  T.  R.  431 ;    i  Gush.  482 ;    7  Met. 


tenant  cannot  be  entitled  to  one  period  of  dura- 
tion or  quantity  of  interest  in  lands  and  the 
other  to  a  different;  one  cannot  be  tenant  for 
life,  and  the  other  for  years.  2.  That  of  titles, 
and  therefore  their  estates  must  be  created  by 
one  and  the  same  act.  3.  That  of  time,  for 
their  estates  must  be  vested  at  one  and  the  same 
period,  as  well  as  by  one  and  the  same  title  ; 
and,  4.  That  of  possession.  Hence  joint  ten- 
ants each  have  an  entire  possession,  as  well  of 
every  parcel  as  of  the  whole.* 

Co-parceners  must  have  the  unities  of  inter- 
est, title,  and  possession. 

Tenancies  in  common  require  only  the  unity 
of  possession.' 

Will.  Estates  strictly  at  will  are  of  unfre- 
quent  occurrence,  being  generally  turned  inio 
estates  for  years,  or  from  year  to  year,  by  the 
decisions  of  the  court  or  by  statute.''  See 
Sufferance,  above;  Years,  below. 

Years.  Estates  for  years  are  interests  in 
lands  by  virtue  of  a  contract  for  the  possession 
of  them  for  a  definite  and  limited  period  of 
time."  Such  estates  are  frequently  called  terms. 
The  length  of  time  for  which  the  estate  is  to 
endure  is  of  no  importance  in  ascertaining  its 
character,  unless  otherwise  declared  by  statute.** 

ADMINISTRATION  is  the  manage- 
ment of  the  estate  of  an  intestate  person,  under 
a  commission  from  the  proper  authority,  is 
called  administration.  The  management  of  the 
estate  of  an  intestate,  or  of  a  testator  who  has 
no  executor.* 

The  term  is  generally  applied  as  denoting 
the  management  of  an  estate  by  an  executor, 
and  also  the  management  of  the  estates  of  in- 
ebriates, intestates,  lunatics,  minors,  non  com- 
potes mentis,  spendthrifts,  testators,  etc.,  in 
those  cases  where  guardians  and  trustees  have 
been  appointed  by  authority  of  law  to  take 
charge  of  such  estates  in  place  of  the  legal  owners. 

Administration  ad  interim.  Where  any 
considerable  time  has  elapsed  since  the  decease 
of  the  testator  or  intestate,  letters  of  adminis- 
tration may  be  granted  at  once,  even  where  a 
will  is  supposed  to  exist,  to  continue  only  till 
the  executor  shall  prove  the  will,  or  some  other 
steps  shall  be  taken  to  compel  its  production.' 
See  Administration  to  Collect  and  Pre- 
serve, ETC.,  below. 

Auxiliary  or  Ancillary  Administra- 
tion is  subordinate  to  the  principal  adminis- 
tration, for  collecting  the  estates  of  foreigners. 
It  is  taken  out  in  the  country  where  the  assets 
are  locally  situate.*     For  the  authority  of  a  per- 

Mass.  147  ;  14  Mees.  &  W.  437 ;  4  Johns.  i£o;  i  W.  i^ 
S.  90;  1  Washb.  R.  Prop.  390,  396;  7  M.  &  G.  316;  13 
Jnlins.  235  ;  13  Pick.  36.  »-2  Bl.  Comm.  179-182  ;  Co. 
Litt.  188.  a-2  Sharsw.  Bl.  Comm.  192;  2  Bouv.  Inst. 
nn.  1861-1883.  b-i  Washh.  R.  Prop.  370:  4  Kent 
Comm.  115:  Tudor  L.  Cas.  14;  4  Rawle,  123:  i  T.  R, 
159.  C-2  Sharsw.  Bl.  Comm.  140;  2  Crabbe  R.  Prop. 
?  1267;  Bac.  Abr.  Leases:  Wms.  R.  Prop.  195;  x 
Washb.  R.  Prop.  298;  i  Piatt.  Leases,  47.  d-is  Mass. 
4-19;  I  N.  H.  3V0;  13S.&R.  60;  4  Kent  Coram.  93; 
see  I  Greenl.  Cruise  Dig.  252,  notes,  e-2  Bl.  Comm. 
494;  iWms.  Ex.  330.  f-Swinb. -Pt.  6,  24;  i  Wms. 
L.x.  241,  242.  g^-Kent  Comm.  ^3,et  teg.;  i  Wms.  Ex. 
Am.  Notes;  14  Ala.  829. 


ESTATES. 


43t 


jtonal  representative  is  strictly  limited  to  the 
State  from  which  it  is  derived.  Still  there  are 
some  exceptions  to  this  rule ;  thus,  an  executor 
or  administrator,  after  perfecting  his  title  to  per- 
sonal property  of  the  estate  by  due  proof,  and 
obtaining  proper  letters,  may  maintain  an  action 
in  his  own  name  without  describing  himself  as 
executor  or  administrator,  for  the  recovery  of 
damages  for  any  injury  done  to  any  of  the  per- 
sonal property  of  the  estate,  after  the  decease 
of  the  testator  or  intestate,  such  action  being 
founded,  not  upon  the  title  of  the  deceased,  but 
upon  that  of  his  personal  representative,  as  such,'' 
and  this  wherever  the  goods  may  be  carried, 
fotnd,  or  withheld,  and  whether  in  his  custody 
or  not.  So,  too,  where  the  title  to  the  property 
in  possession,  and  even  in  choses  in  action  of  a 
negotiable  nature,  becomes  perfected  under  the 
administration  in  one  state  or  country,  any 
action  requisite  to  vindicate  and  enforce  such 
title  in  any  other  or  foreign  state  or  country 
may  be  maintained  without  recourse  to  any  local 
administration.  But  beyond  these  and  similar 
exceptional  cases,  the  authority  of  an  executor 
or  administrator  is  limited  to  the  state  or  coun- 
try where  it  is  granted. 

Administration  to  collect  and  pre- 
serve goods  about  to  perish,  is  granted  where 
there  is  no  executor  or  administrator,  and  is 
governed  entirely  by  statute  which  limits  and 
qualifies  the  administrator's  power  over  them. 

Administration  de  bonis  non  is  granted 
where  a  former  administrator  dies  leaving  a 
portion  of  the  estate  of  a  deceased  unadminis- 
lered.  The  person  so  appointed  has  in  general 
the  powers  of  a  common  administrator.'  But 
an  administrator  de  bonis  non  does  not  succeed 
to  any  special  trust  reposed  in  the  former  repre- 
sentative.J  Such  administrator  derives  his 
title  from  the  decedent,  and  not  from  the  for- 
mer executor  or  administrator.*  His  liability 
is  therefore  restricted  to  the  goods  remaining 
unadministered.' 

Administration  during  abseng"  of  the 
executor,  and  until  he  has  proven  tht  vill,  is 
generally  granted  when  the  next  of  kit  (!)eing 
nominated  as  executor,  or  primarily  entitled  to 
the  administration)  is  beyond  the  sea,  out  of 
the  country  or  Stale,  lest  the  goods  perish  or  the 
debts  be  lost.  But  appointment  of  an  adminis- 
trator temporarily,  on  account  of  the  non-resi- 
dence or  other  cause,  that  the  primary  adminis- 
trative cannot  conveniently  administer,  is  not 
allowable:  there  should  be  a  general  and  re- 
sponsible representative  of  the  estate  appointed 

ll-Cro.  Jac.  113.  Dispo-iing  of  bank  shares  out  of  the 
State  without  taking  out  new  letters  of  administration, 
12  Met.  (Mass.)  421  ;  4  Mason,  16  :  see  7  Johns.  Ch.  45. 
I-Bac.  Abr.  Exfcutors  B. ;  1  Rolle  Abr.  907  ;  22  Miss. 
47;  27  Ala.  273;  glnd.  342;  4Sneed.  411;  31  Miss. 
519;  29  Vt  170;  II  Md.  412.  J-30  Me.  204;  7  Penn. 
St.  259;  10  Penn.  St.  454;  see  also,  i  Barb.  Ch.  565. 
lt-27Comm.  344.  1-He  is  not  responsible  for  any  de- 
fault, mismanagement,  or  waste  of  theirs,  8  Conn.  584; 
5  Penn.  St.  258.  m-By  disposing  of  goods  of  a  nerish- 
able  nature,  as  fat  cattle,  graing,  or  anythin  which  may 
be  the  worse  from  keeping.  He  may  also  sell  goods  for 
the  payment  of  debts,  5  Co.  29  b.  :  i  Wms.  Ex.  427. 
M-T.  Kaym.  483.     o-Bac.  Abr.  Leases,  I,  7  ;    1  Wms. 

28 


within  the  jurisdiction.  Still  courts  of  probate 
appoint  administrators  and  issue  letters  testa- 
mentary to  non-residents ;  but  where,  for  any 
cause,  it  is  important  to  institute  suits,  either  in 
law  or  equity,  against  the  representative  of  the 
estate,  it  is  essential  that  he  should  be  found  in 
the  jurisdiction  of  the  court. 

Administration  during  minority  is 
granted  when  executor,  or  next  of  kin,  or  other 
party  entitled  to  administer,  is  a  minor.  In 
either  case  the  court  is  compelled  to  select 
some  other  person,  either  temporarily  or  per- 
manently. Such  administrator  may  collect  as- 
sets, pay  debts,  sell  perishable  property,  and 
perform  such  other  acts  as  require  immediate 
attention.  Such  administrator  has  all  the  au- 
thority, for  the  time  being,  of  a  general  admin- 
istrator. He  must  manage  in  a  prudent  man- 
ner.™ He  may  assent  to  a  legacy,  sue  and  be 
sued"  for  debts  of  the  deceased,  and  may  retain 
for  his  own  debt.*  As  the  office  expires  by  its 
own  limitation  upon  the  regular  representative 
coming  of  full  age,  it  is  generally  proper,  in  suits 
for  or  against  such  administrator,  to  allege  that 
the  regular  representative  is  under  age ;  and  so 
especially  where  such  administrator  is  plaintiff, 
this  being  a  matter  specially  within  his  knowl- 
edge.p  He  must  render  his  accounts  to  the 
probate  court  the  same  as  any  other  adminis- 
trator.i  Where  there  are  several  executors,  all 
under  age,  the  administration  during  minority 
will  cease  upon  any  one  coming  of  age.' 

Foreign  administration  is  exercised  by 
virtue  of  authority  properly  conferred  by  a  for- 
eign jurisdiction.  It  is  a  general  rule  that  let- 
ters of  administration  granted  abroad  give  no 
authority  to  sue  or  be  sued  in  another  jurisdic- 
tion (with  exception  above  noted),  though  they 
may  be  ground  for  new  probate  authojrity.* 
Hence,  where  p.;rsons  are  domiciled  in  one 
country,  as  A.,  and  have  personal  property  in 
another,  as  B.,  the  authority  must  be  had  in  B., 
but  exercised  according  to  the  laws  of  A.* 
There  is  no  legal  privity  between  administra- 
tors in  different  States.  The  principal  admin- 
istrator is  to  act  in  the  intestate's  domicil,  and 
the  auxiliary  or  ancillary  administrator  is  to 
collect  claims  and  pay  debts  in  the  foreign  jniv 
isdiction,  and  pay  over  the  surplus  to  his  prin- 
cipal." It  has  been  held  that  the  probate  of  a 
will  in  a  foreign  State,  if  duly  authenticated, 
dispenses  with  the  necessity  of  taking  out  new 
letters,'  and  that  possession  of  property  may  be 
taken  in  a  foreign  State,  but  that  suit  cannot  be 


Ex.  428,  and  notes.  p-Hob.  251 ;  Cro.  Jac.  590;  Yelv. 
J28;  I  Ld.  Raym.  409.  q-i  Sid.  57;  i  Cas.  temp.  Lee 
15.  r-Taller  Ex.  lot,  102;  4  Burns  Eccl.  L.  228.  s-j 
Ves.  Ch.  44 ;  9  Cranch,  151 ;  12  Wheat.  169  ;  2  Root, 
462;  20  Martin,  232  ;  i  Dall.  456;  i  Binn.  63;  27  AI.1. 
273  ;  9  Tex.  13  ;  21  Mo.  434  ;  29  Miss.  127;  4  Rand. 
158;  loYerg.  283;  5  Me.  261;  35N.  H.484;  4  McLean 
C.  C.  577 :  15  Pet.  1 ;  13  How.  458.  t-Story  Confl.  L. 
23,447;  IS  N.  H.  137;  15  Mo.  118;  5  Md.467;  4 
Bradf.  Surr.  151,  240.  n-2  Met.  (Mass.)  X14;  3  Hogg 
Eccl.  igo;  6  Humprir.  116  ;  21  Conn.  577  ;  19  Penn.  St. 
476;  3  Day,  74  ;  i  Blatch.  &  H.  D.  C.  300;  23  Miss. 
199 ;  2  Curt.  Eccl.  241  :  1  Rich.  116.  V-5  Ired.  431  ;  » 
6.  Mon.  12  :  18  Id.  582  ;  4  Call.  89;  xsPctz;  yGili. 
95  ;  12  Vt.  589- 


43t 


ESTATES 


brought  without  taking  out  letters  in  that 
Slate* 

Administration  pendente  lite  is  granted 
pending  litigation,*  respecting  an  alleged  will  or 
right  of  appointment.  An  officer  of  the  court  is 
appointed  to  take  care  of  the  estate  only  till  the 
suit  terminates.'  The  general  duty  of  such  ad- 
ministrator is  to  represent  the  estate  during  the 
pendency  of  the  litigation,  and  in  the  meantime 
to  see  that  no  detriment  comes  to  the  goods  or 
effects  of  the  estate.*  He  is  merely  an  agent  or 
officer  of  the  court,  and  when  the  litigation  is 
determined  he  must  relinquish  his  office,  and 
surrender  all  the  estate  in  his  hands  to  the  right- 
ful representative.*  His  authority  merely  ex- 
tends to  collecting  the  assets  and  preserving 
them,  and  not  to  investing  or  distributing  them." 
He  cannot  use  the  money  of  the  estate  or  invest 
it,  and  is  not,  therefore,  liable  for  interest  dur- 
ing the  controversy."  And  for  all  the  purposes 
of  his  administration  he  may  maintain  suits. 

Public  administration  is  performed  by  a 
public  administrator,  by  virtue  of  a  statute,  in 
those  cases  where  a  person  dies  intestate,  leav- 
ing any  who  are  entitled  to  apply  for  letters  of 
administration.* 

Special  or  limited  administration  is 
limited  either  in  duration  or  extent,  time  or 
power.  The  right  of  a  testator  to  commit  dis- 
tinct portions  of  the  settlement  of  his  estate  to 
different  persons,  whetiier  in  the  same  or  differ- 
ent countries,  is  not  recognized  by  our  courts,* 
though  it  has  been  held  that  a  general  grant  of 
administration,  during  the  pendency  of  a  con- 
test for  proof  of  a  will,  is  a  nullity,'  and  admin- 
istrations limited  to  particulan  effects,  or  to  the 
performance  of  a  single  act,  granted .« 

Administration,  with  Will  Annexed, 
occurs  either:''  i.  Where  no  executor  is  ap- 
pointed by  the  will.'  2.  Where  an  executor 
pre-deceases  the  testator.J  3.  Where  for  any 
cause  an  executor  becomes  incompetent  to  dis- 
charge the  office,  or  renounces  it.  4.  Where, 
after  having  proven  the  will,  the  testator  dies 
before  completing  the  administration.  In  this 
latter  class  of  cases  the  administrator  is  also 
administrator  de  bonis  non.  So,  also,  where  the 
person  named  executor  is  limited  to  his  age  of 
majority,  either  by  the  terms  of  the  will  or  the 
laws  of  the  State,  and  has  not  yet  arrived  at 
full  age,  some  one  must  act  as  administrator 
with  the  will  annexed  in  the  meanlime.  And 
there  are  other  cases  where  a  vacancy  in  the 
office  of  executor  may  exist  either  temporarily 
or  permanently,  as  where  the  person  named 
executor  is  not  to  act  until  one  year  after  the 

W-2  Ala.  429;  18  Miss.  607;  2  Sandf.  Ch.  173.  x-2 
P.  Wilis.  Ch.  576,  589.  y-2  P.  Wms.  Ch.  589 ;  2  Atk. 
Ch.  286;  2  Cas.  temp.  Lee,  258;  1  Hagg.  Eccl.  313;  26 
N.  H.  533;  Q  Tex.  13 ;  j6  Ga.  13.  as  i  Wms.  Ex.  433, 
434.  a-i  Hagg.  Eccl.  313.  b-i  Ball  &  Ueattie,  191, 
J92  ;  I  Ves.  Sr.  325;  2  Ves.  &  B.  Ch.  97  ;  7  Md.  282. 
c-i  Ball  &  B.  191.  d-3  Bradf.  Surr.  151  ;  4  Id.  252.  e- 
5  Gill  &  J.  483.  f-3  lied.  L.  557.  |e-6  Yerg.  302.  A 
judgment  against  a  special  administrator  binds  the  es- 
Uite,  I  Sneed.  430  ll-Plowd.  275,  279,  281.  i-4  Mass. 
&34.  j-Willard  Ex. ;  2  Bradf.  Surr.  22.  k-See  Wms. 
Ex.  237,  and  notes  ;  8  Cranch,  536;  12  Gratt.  85;  1  W. 
&S.  396;    II  Ohio,  257;    22  Ga  431 ;    29  Miss.  127;    a 


death  of  the  testator,  etc.  In  general,  the 
duties  of  the  executor  wholly  devolve  on  tiie 
administrator  with  the  will  annexed,  so  far  as 
they  pertain  to  the  settlement  and  distribution 
of  the  estate ;  but  where  there  are  special  trusts 
devolved  upon  the  executor  beyond  this,  which 
are  of  longer  duration  and  more  strictly  per- 
sonal, those  should  be  devolved  upon  a  trustee 
specially  appointed  for  that  purpose  by  the 
proper  authority  of  court.  Such  administrator 
must  follow  the  statute  rules  of  distribution, 
except  when  otherwise  directed  by  the  will. 

Jurisdiction  over  administrations  is  vestec 
in  courts  of  both  general  and  limited  jurisdic- 
tion. The  officer  authorized  to  delegate  the 
trust  is  called  judge  of  probate,  ordinary,  regis- 
trar of  wills,  surrogate,  etc.,  etc."  In  son>e 
States  these  courts  are  of  special  jurisdiction,  as 
county  courts,  probate  or  surrogate  courts,  etc., 
while  in  others  the  power  is  vested  in  the  courts 
of  general  jurisdiction,  as  the  circuit  and  su- 
perior courts.'  These  courts  have  no  jurisdic- 
tion until  the  death  of  the  testator  or  intestate 
has  taken  place.  This  is  generally  brought  to 
their  notice  in  the  form  of  an  affidavit.  A  de- 
cree of  the  court  is  prima  facie  evidence  of 
such  death.™ 

The  personal  property  of  a  decedent  after 
expenses  of  last  sickness,  allowance  to  widow 
and  minor  children,  etc.,  is  appropriated  to  tiie 
payment  of  his  debts,  so  far  as  required,  and, 
until  exhausted,  must  be  first  resorted  to  by 
creditors.  By  the  general  statutes  upon  the 
subject  the  court  may  grant  the  administrator 
power  to  sell,  lease,  or  mortgage  land,  when 
the  personal  estate  of  the  deceased  is  not  suf- 
ficient to  pay  his  debts."  Purchasers  at  such 
sale  get  as  full  title  as  if  they  had  been  distribu- 
tees ;  but  no  warranty  can  be  implied  by  the 
administrator's  silence."  But  a  fraudulent  sale 
will  be  annulled  by  the  court. p 

LIMITATION  OF  AN  ESTATE  is 
the  circumscription  of  the  quantity  of  time 
comprised  in  an  estate.^  The  definition  or 
circumscription  in  any  conveyance  of  the  inter- 
est which  the  grantee  is  intended  to  take.'  It 
is  used  in  different  senses. 

Line.     See  Real  Estate;  Boundaries. 

MERGER.  When  a  greater  estate  and  a 
less  meet  in  one  and  the  same  person  without 
any  intermediate  estate,  the  less  is  immediately 
merged,  that  is,  absorbed  in  the  latter.  For 
example,  if  there  be  a  tenant  for  years,  and  the 
reversion  in  fee  simple  descends  to  or  is  pur- 
chased by  him,  the  term  of  years  is  merged 
into  the  inheritance,  and  no  longer  exists ;  but 

Gray,  228;  2  Jones,  387.  I-See  2  Kent  Comm.  410;  9 
Dana,  91  ;  4  Johns.  Ch.  552 ;  4  Md.  1 :  11  S.&  R.  432  ; 
7PaigeCh.ii2;  i  Green  (N.  J.)  480;  1  Hill  (N.  Y.) 
130;  5  Miss.  638  :  12  Id.  707;  30  Id.  472.  lll-And  puts 
the  burden  of  disproof  on  the  party  pleading  in  abatement, 
3  T.  R.  130;  26  Barb.  383;  18  Ohio,  268.  Overruling 
the  statements  of  Greenl.  Ev.  §  41  ;  1  Jarm.  Wills ;  24 
Am.  note,  ll-i  Br.tdf.  Surr.  10,  182,  234  ;  2  Id  50, 122, 
157:  29  Ala.  (N.  S.)  210,  542;  4  Mich.  308;  4  Ind.  468, 
18  111.  519.  0-2  Stockt.  206;  2o.Ga.  588;  13  Tex.  322; 
30  Miss.  147,  502  ;  31  Id.  348,  350.  p-i6  N.  Y.  174  :  2 
Bradf.  Surr.  200 ;  see  title  Assets,  ante.  «i-Prestor 
Est.  25.    r-L»Dder's  Uses,  4th  Ekl.  121,  et  t*q. 


ESTATES. 


433 


they  must  be  one  and  the  same  person,  at  one 
and  the  same  time,  in  one  and  the  same  right.* 
The  estate  in  which  the  merger  takes  place  is 
not  enlarged  by  the  accession  of  the  preceding 
estate ;  and  the  greater  or  only  subsisting  estate 
continues  after  the  merger  precisely  of  the  same 
quantity  and  extent  of  ownership  as  it  was  be- 
fore the  accession  of  the  estate  which  is  merged, 
and  the  lesser  estate  is  extinguished.*  As  a 
general  rule  equal  estates  will  not  merge  in 
each  other ;  the  merger  is  produced  either  from 
the  meeting  of  an  estate  of  higher  with  an 
estate  of  inferior  degree,  or  from  the  meeting 
of  the  particular  estate  and  the  immediate  re- 
version in  the  same  person." 

SEVERANCE  is  the  destruction  of  any 
of  the  unities  of  a  joint  tenancy.  It  is  so 
called  because  the  estate  is  no  longer  a  joint 
tenancy,  but  is  severed.  Severance  is  effected : 
I.  By  alienation  of  one  of  the  joint  tenants, 
which  changes  the  estate  into  a  tenancy  in 
common.  2.  By  partition.  3.  By  purchase  or 
descent  of  all  the  shares  of  the  joint  tenants  so 
that  the  whole  estate  becomes  vested  in  one 
only.' 

SURRENDER  is  the  yielding  up  of  an 
estate  for  life  or  years  to  him  who  has  an  im- 
mediate estate  in  reversion  or  remainder  by 
which  a  lesser  estate  is  merged  in  the  greater 
by  mutual  agreement."  It  is  the  deed  by  which 
the  surrender  is  made.  A  surrender  is  of  a 
nature  directly  opposite  to  a  release;  for  as  the 
latter  operates  by  the  greater  estate  descending 
upon  the  less,  the  former  is  the  falling  of  a  less 
estate  into  a  greater  by  deed.  A  surrender 
immediately  divests  the  estate  of  thesurrenderer 
and  vests  it  in  the  surrenderee,  even  without 
the  assent  of  the  latter.*  The  teclinical  and 
proper  words  of  this  conveyance  are  "  surrender 
and  yield  up; "  but  any  form  of  words  by  which 
the  intention  of  the  parties  is  sufficiently  mani- 
fested will  operate  as  a  surrender.'  The  sur- 
render may  be  express  or  implied ;  the  latter  is 
when  the  estate  incompatible  with  the  existing 
estate  is  accepted  or  the  lessee  takes  a  new 
lease  of  the  same  lands.* 

TERM  is  the  limitation  of  an  estate ;  as  a 
term  for  years,  for  life,  or  the  like.  The  word 
"  term  "  does  not  merely  signify  the  time  speci- 
fied in  the  lease,  but  the  estate,  also  the  interest 
which  passes  by  that  lease;  and  therefore  the 
term  may  expire  during  the  continuance  of  the 
term;  as,  by  surrender,  forfeiture,  and  the 
like.* 

TITLE  is  the  means  whereby  the  owner  of 
an  estate  holds  just  possession  of  the  same. 
If  bad,  it  conveys  no  property.  If  doubtful, 
the  court  will  not  consider  it  clear  enough  to 
enforce  its  acceptance  by  a  purchaser,  nor  so 
defective  as  to  declare  it  a  bad  title,  but  only 

H-3  Bl.  Comm.  177;  Latch.  1S3;  Poph.  166;  6Madd. 
Ch.  119;  1  Johns.  Ch.  417;  3  }d.  S3:  3  Mass.  172.  t- 
Preston  Conv.  7 ;  Washb.  R.  Prop,  n-4  Kent  Comm. 
)8 ;  see  Washb.  R.  Prop.;  3  Preston  Conv.;  15  Viner 
Abr.  361;  10  Vt.  293;  8  Watts,  146.  v-Com.  Dig. 
Elstates  by  grant  (K.  5);  1  Binn.  175.  w-Co.  Litt.  337 
b.  x-Shep.  Touchst.  300,  301.  y-Perk.  g  607;  i  T. 
R.  441 ;   Com.  Dig.  Surrendar  (A.)    K-16  Johns.  28 ;  2 


subject  to  so  much  doubt  that  a  purchaser 
ought  not  to  be  compelled  to  accept  it.*  If  it 
be  marketable  a  court  of  equity  considers  it  so 
clear  that  it  will  enforce  its  acceptance  by  the 
purchaser.* 

There  are  several  stages  or  degrees  requisite 
to  form  a  complete  title  to  lands.  The  lowest 
and  most  imperfect  degree  of  title  is  the  fnere 
possession,  or  actual  occupation  of  the  estate 
without  any  apparent  right  to  hold  or  continue 
such  possession.  This  happens  when  one  man 
dispossesses  another.  The  next  step  to  a  good 
and  perfect  title  is  the  right  of  possession  which 
may  reside  in  one  man  while  the  actual  posses- 
sion is  not  in  himself  but  in  another;  this  right 
of  possession  is  of  two  kinds:  I.  An  apparent 
right  of  possession,  which  may  be  defeated  by 
proving  a  better;  and  2.  The  actual  right  of 
possession,  which  will  stand  the  test  against  all 
occupants. 

Title  to  real  property  is  acquired  by  either 
descent  or  purchase.  Title  to  personal  prop- 
erty is  acquired:  i.  By  original  acquisition, 
creation,  or  occupancy,  such  as  intellectual 
labor,  copyright,  and  patent  property.  2.  By 
transfer  by  act  of  the  parties,  such  as  by  gift, 
by  contract,  or  by  sale;  and  by  transfer  by 
operation  of  the  law,  as  by  forfeiture,  succes- 
sion, marriage,  judgment,  bankruptcy,  insolv- 
ency, intestacy. 

In  general,  possession  constitutes  the  title  to 
personal  property,  because  no  other  means  exist 
by  which  a  knowledge  of  the  fact  to  whom  it 
belongs  can  be  obtained.  A  seller  of  a  chattel 
is  not,  therefore,  required  to  show  the  origin 
of  his  title;  nor,  in  general,  is  a  purchaser  with- 
out notice  of  the  claim  of  the  owner,  compellable 
to  make  restitution ;  but  a  purchaser  from  a  ten. 
ant  for  life  of  personal  chattels  will  not  besecui* 
against  the  claims  of  those  entitled  in  remain- 
der."* Exceptions  to  the  rule  that  possession  is 
the  criterion  of  title  of  property  are  chattels 
mortgaged,  when  such  mortgage  is  required  by 
law  to  be  recorded  in  a  public  office ;  bills  of 
sale,  under  the  same  requirements,  and  ships, 
the  title  of  which  can  be  ascertained  by  the 
register.* 

To  convey  title,  the  seller  must  himself  have 
a  title  to  the  property  which  is  the  subject  of 
the  transfer.  But  to  this  general  rule  there  are 
exceptions.  The  lawful  coin  and  currency  of 
the  United  States  will  pass  the  property  along 
with  the  possession.  A  negotiable  instrument, 
indorsed  in  blank,  is  transferable  by  any  i^erson 
holding  it,  so  as  by  its  delivery  to  give  good 
title  "  to  any  person  honestly  acquiring  it."' 

Estoi»i>el.  See  Practice. 

EsitoverM.  See  Landlord  and  Tknamt. 

KstrayN.  See  Animals. 

£!«trepineut.  See  Pkacticb. 
Wils.  26;  I  B.  &  Aid.  50;  2  Id.  119;  5  Taunt.  518.  a- 
2  Bl.  Comm.  145 ;  8  Pick.  339.  b-i  jac.  &  W.  Ch.  568 ; 
9  Cow.  344.  C-i  Jac.  &  W.  Ch.  568;  Atk.  Tit.  11,26; 
5  Taunt.  625  ;  6  Id.  263;  i  Marsh.  258;  see  3  Penn.  L. 
J.  17.  «l-Cowp.  432;  I  Brown.  274;  2  T.  R.  376;  3 
Atk.  Ch.  44  ;  3  Ves.  &  B.  16.  e-15  Ves.  Ch.  60;  17  IJ. 
251  ;  8  Price,  256,  277.  f-3  Bamew.  fc  C.  47;  3  Burr. 
1316;  5  T.  R.  683;  7  Bingh.  284;  7  Taunt.  365,  378, 
13  East.  509. 


^M 


EVIDENCE. 


EvaAlon.  See  Practicr. 
£viction.  See  Rbal  Profbrty. 

EVIDENCE.  See  Affidavits;  Bonds,  Notes, 
AND  Bills;  Equity;  Law;  Pkactice. 

Evidence  is  that  which  tends  to  prove  or 
disprove  any  matter  in  question,  or  to  influence 
the  belief  respecting  it.  Belief  is  produced  by 
the  consideration  of  something  presented  to  the 
mind.  The  matter  thus  presented,  in  whatever 
shape  it  may  come  and  through  whatever  mate- 
rial organ  it  is  derived,  is  evidence.*  The  word 
evidence  in  legal  acceptation  includes  all  the 
means  by  which  any  alleged  matter  of  fact,  the 
truth  of  which  is  submitted  to  investigation,  is 
established  or  disproved.**  That  which  is  legally 
submitted  to  a  jury,  to  enable  them  to  decide 
upon  questions  in  dispute,  or  issues,  as  pointed 
out  by  the  pleadings,  and  distinguished  from  all 
comment  and  argument,  is  termed  evidence.* 

Evidence  may  be  considered  with  reference 
to  its  instruments,  the  mode  of  its  introduction, 
its  nature,  and  its  object. 

The  instruments  of  evidence  and  mode 
of  their  introduction  are  as  follows : 

1.  Ji;dicial  notice  or  recognition.  This 
needs  no  proof;  it  is  already  known  and  recog- 
nized by  the  court. 

2.  Laws.  Laws  are  introduced  and  proven 
by  printed  statute  books,  or  copies  from  the 
original  rolls,  duly  exemplified. 

3.  Personal  inspection. 

4.  Public  documents  printed  by  authority 
of  Congress  or  the  legislature.  These  are  in- 
troduced and  proven  by  printed  or  written  copies 
from  the  original  records,  duly  exemplified. 

5.  Public  records  and  copies  thereof, 
consisting  of  registers  of  official  transactions 
made  by  officers  elected  or  appointed  for  that 
purpose.  These  are  introduced  and  proven  by 
printed  copies  or  by  copies  from  the  original 
records,  duly  exemplified. 

6.  Records  and  transcripts  of  proceed- 
ings in  foreign  and  domestic  courts.  These 
are  introduced  and  proven  by  copies  and  tran- 
scripts, duly  authenticated  or  exemplified. 

7.  Private  writings,  as  deeds,  contracts, 
wills,  etc.  These  are  introduced  and  proven 
by  the  instruments  themselves,  or  copies  duly 
evidenced. 

8.  Translations.  These  must  be  correctly 
made  from  the  original  writing  to  be  introduced 
in  evidence. 

Testimony  of  witnesses  is  introduced  by 
affidavit,  deposition,  and  oral  examination. 

The  nature  or  legal  character  of  evi- 
dence is  as  follows : 

I.  Conclusive — being  such  as  establishes 
the  fact,  and  that  satisfies  the  court  and  jury; 
that  which  cannot  be  controlled  or  contradicted 
by  any  other  evidence. 

B-Prof.  Parker  Lect.  Med.  Jur.  b-i  Greenl.  Ev.  c. 
x,gi.  C-i  Stark.  Ev.  pt.  I,  J  I.  d-6  Pet.  622,632  ;  14 
Id.  334.  e-j  Bouv.  Inst.  n.  3055.  f-3  Bouv.  Inst.  n. 
3055-  8r-9  B.  &  C.  535  ;  7  T.  R.  563 ;  1  Dall.  65.  h-i 
Campb.  392  ;  2  Id.  561  ;  2  T.  R.  763  ;  3  B.  &  C.  421  ;  5 
Pet.  580;  5  Wheat.  277;  7  Mass.  131 ;  9  Ala.  (N.  S.) 
791 ;  ao  Johns.  142;  s  Gill.  &  J.  134.  I-2  Bingh.  306; 
ild.  300 ;  8  B.  &  C.  36;    1  Stark.  488;    a  Pick.  581 ;  3 


2.  Prima  facie — ^being  sufficient,  in  the  ab- 
sence of  evidence  to  the  contrary,  to  establish  a 
fact.* 

3.  Primary — being  the  original,  the  first,  the 
best,  and  highest  degree  of  evidence  of  which 
the  case,  in  its  nature,  is  susceptible.* 

4.  Secondary — being  such  as  is  admissible 
when  original  or  primary  evidence  is  lost  or  de- 
stroyed, and  which,  in  such  an  event,  becomes 
the  best  evidence.' 

See  Copy  ;  Declaration  ;  Hearsay,  below. 

The  object  of  evidence  is  to  ascertain 
the  truth  between  the  parties. 

It  has  been  discovered  by  experience  that 
this  is  done  most  certainly  by  the  adoption  of 
the  following  rules : 

1.  The  evidence  must  be  confined  to  the 
point  in  issue. 

2.  The  substance  of  the  issue  must  be  proved ; 
but  only  the  substance  is  required  to  be  proved. 

3.  The  affirmative  of  the  issue  must  be 
proved. 

See  Proof,  etc.,  below. 

Accounts;  Accounts  Stated;  see  title 
Accounts,  ante. 

Acts  ;  see  title  Acts,  ante. 

ADMISSIONS  (concessions  or  voluntary 
acknowledgments  made  by  a  party,  of  the  ex- 
istence or  truth  of  certain  facts).  As  distin- 
guished from  confessions,  the  term  is  applied 
to  civil  transactions,  and  to  matters  of  fact  in 
criminal  cases  where  there  is  no  criminal  intent. 
See  post,  "  Confessions."  As  distinguished 
from  consent,  an  admission  may  be  said  to  be 
evidence  furnished  by  the  party's  own  act  of  his 
consent  at  a  previous  period. 

Direct  or  express  admissions  are  those  which 
are  made  in  direct  terms.  Implied  admissions 
are  those  which  result  from  some  act,  or  failure 
to  act,  of  a  party.  Incidental  admissions  are 
those  made  in  some  other  connection,  or  in- 
volved in  the  admission  of  some  other  fact. 

Admissions  may  be  made  by  a  party  to  the 
record,  or  by  one  identified  in  interest  with 
him. 8  Not,  however,  where  the  party  of  record 
is  merely  a  nominal  party,  and  has  no  active  in- 
terest in  the  suit.''  They  may  be  made  by  one 
of  several  having  a  joint  interest,  so  as  to  be 
binding  upon  all.'  Mere  community  of  inter- 
est, as  in  the  case  of  co-executor,J  trustees,''  or 
co-tenants,'  is  not  sufficient.  The  interest  in 
all  cases  must  have  subsisted  at  the  time  of 
making  the  admissions."" 

They  may  be  made  by  any  person  interested 
in  the  subject  matter  of  the  suit,  though  the 
suit  be  prosecuted  in  the  name  of  another  per- 
son as  ces/ui  que  trtist,^  or  indemnifying  credi- 
tor in  an  action  against  the  officer."  They  may 
be  made  by  a  third  person,  a  stranger  to  the 
suit,  where  the  issue  is  substantially  upon  the 

Id.  291;  4  Id.  382;  iM'Cord,54i;  1  Johns.  3;  7  Wend. 
441;  4  Conn.  336;  8  Id.  268;  7  Me.  26;  5  Gill.  &  J. 
144;  I  Gall.  C.  C.  635.  j-i  Greenl.  Ev.  176  ;  4  Cow. 
493  ;  16  Johns.  277.  ll-3  Esp.  loi.  I-4  Cow.  483  ;  ij 
Conn.  I.  111-2  Stark.  41  ;  4  Conn.  544  ;  14  Mass.  245  ; 
5  Johns.  412;  I  S.  &  R.  526;  9  Id.  47;  12  Id.  328.  n- 
I  Wils.  257;  I  Bingh.  45,  but  see  3  Nev.  &  P.  598;  < 
Manu.  &  G.  261.     0-4  East.  584 ;  7  Carr.  &  P.  629. 


EVIDENCE. 


435 


rights  of  such  a  person,  at  a  particular  time,'  or 
who  has  been  expressly  referred  to  for  informa- 
tion.J  or  where  there  is  a  privity  between  the 
ancestor  and  heir,*  an  assignor  or  assignee,'  in- 
testate and  administrator."  They  may  be  made 
by  an  agent  so  as  to  bind  his  principal ;°  so  far 
only,  however,  as  the  agent  has  authority,"  and 
not  in  regard  to  past  transactions. p  Thus,  the 
admissions  of  the  wife  bind  the  husband  so  far 
only  as  she  has  authority  in  the  matter,'  and,  so 
the  formal  admissions  of  an  attorney  bind  his 
client.'' 

Implied  admissions  may  result  from  assumed 
character,*  from  conduct,'  from  acquiescence, 
which  is  positive  in  its  nature ;"  from  possession 
of  documents  in  some  cases.' 

In  civil  matters,  constraint  will  not  avoid  ad- 
missions if  imposition  or  fraud  were  not  made 
u>e  of. 

Admissions  made  in  treating  for  an  adjust- 
ment cannot  be  given  in  evidence  where  made 
under  faith  of  a  pending  treaty." 

Judicial  admissions,*  and  those  which  have 
been  acted  on  by  others.^  and  in  deeds,  as  be- 
tween parties  and  their  privies,*  are  conclusive 
evidence  against  the  parties  making  them. 

It  frequently  occurs  in  practice,  that,  in  order 
to  save  expenses  as  to  mere  formal  proofs,  the 
attorneys  on  each  side  consent  to  admit,  recip- 
rocally, certain  facts  in  the  cause  without  call- 
ing for  proof  of  them.  These  are  usually  re- 
duced to  writing,  and  the  attorneys  shortly  add 
to  this  effect,  namely :  "  We  agree  that  the 
above  facts  shall,  on  the  trial  of  this  cause, 
be  admitted,  and  taken  as  proved  on  each 
side;"  and  signing  two  copies  now  called 
"  admissions "  in  the  cause ;  each  attorney 
takes  one." 

Affidant.  See  title  Affidants,  ante,  and 
Lost  Papers,  below. 

AFFIRMATION.  An  affirmation  is  a 
solemn  religious  asseveration  in  the  nature  of  an 
oath.'' 

Quakers,  as  a  class,  and  other  persons  who 
have  conscientious  scruples  against  taking  an 
oath,  are  allowed  to  make  affirmation  in  any 
mode  which  they  may  declare  to  be  binding 
upon  their  conscience,  in  confirmation  of  the 
truth  of  the  testimony  which  they  are  about  to 
give."     See  Oath,  below. 

ALIBI.  When  a  person  charged  with  a 
crime  proves  that  he  was  at  the  time  alleged  in 
a  different  place  from  that  in  which  it  was  com- 
mitted, he  thus  proves  an  alibi  (elsewhere),  the 
effect  of  which  is  to  lay  a  foundation  for  the 

l-r  Greenl.  Ev.  \  i8i ;  2  Stark.  42.  J-i  Campb.  366, 
«. .-  3  C.  &  P.  532.  k-5  B.  &  Ad.  223  :  i  Bingh.  (N. 
C  )  430.  I-54  Taunt.  16 ;  2  Pick.  536 ,  2  Me.  242  :  10 
Id.  244;  3Rawle,  437;  2  M'Cord,  241  ;  17  Conn.  399. 
in-3  Bingh.  (N.  C.)  291 ;  i  Taunt.  141.  ll-Story  Ag.  |j 
'34-'37-  <*-'  Greenl.  Ev.  \  114.  p-6  M  &  W.  58:  11 
Q.  B.  46;  7  Me.  421  :  4  Wend.  394  ;  7  Harr.  &  J.  104; 
19  Pick.  220;  8  Met.  (Mass.)  142.  <|-i  Esp.  142;  4 
Campb.  92  :  i  C.  &  P.  621  ;  7  T.  R.  112.  r-7  C.  &  P. 
6 ;  I  M.  &  W.  508,  and  see  2  C.  &  K.  216 ;  7  C.  B  608 
8-1  B.  &  Aid.  677  :  2  Campb.  513.  t-i  Sim.  &  S  600; 
6C.  &  P.  241;  9  B.  &C.  78;  9  Watts,  441.  u-iSumn 
314 ;  4  Fla.  340  ;  3  Mass.  C.  C.  81  ;  2  Vt.  76.  v-s  C.  & 
P.  75;   3  Stark.  140;    25  St.  Tr.  130.     w-7  Binffh.  loi ; 


necessary  inference  that  he  could  not  have  com- 
mitted it.*  This  proof  is  usually  made  out  by 
the  testimony  of  witnesses,  but  may  be  made  by 
writings  properly  authenticated. 

ALIUNDE  is  from  another  place,  outside 
or  without  the  will,  judgment,  etc.,  evidence 
aliunde  may  be  received  to  explain  an  ambi- 
guity in  a  will,*  but  never  to  impeach  a  judg- 
ment, for  a  judgment  obtained  is  valid  against 
the  world,  unless,  of  course,  it  be  fraudulent; 
invalid,  non-existent,  or  satisfied. 

BELIEF  may  be  stronger  or  weaker  accord- 
ing to  the  weight  of  evidence  adduced  in  favor 
of  the  proposition  under  consideration.'  The 
conviction  of  the  mind  arises,  not  from  actual 
perception  or  knowledge,  but  by  way  of  infer- 
ence, or  from  evidence  received  or  information 
derived  from  others. 

BEST  EVIDENCE  is  not  the  highest  or 
strongest  evidence  possible,  but  the  best  evi- 
dence which  the  nature  of  the  thing  to  be 
proved  admits ;  for  example,  a  copy  of  a  deed 
is  not  the  best  evidence,  the  deed  is  better.* 

Bill  of  Lading.  See  title  Bonds,  Notes, 
AND  Bills,  ante. 

BLANKS.  When  a  blank  is  left  in  a 
written  agreement  which  need  not  have  been 
reduced  to  writing,  and  would  have  been 
equally  binding,  whether  written  or  unwritten, 
it  is  presumed  in  an  action  for  the  non-perform- 
ance of  the  contract,  parol  evidence  may  be 
admitted  to  explain  the  blank.  And  where  a 
written  instrument  has  been  made  professedly 
to  record  a  fact,  is  produced  as  evidence  of 
that  fact  which  it  purports  to  record,  and  a 
blank  appears  in  a  material  part,  the  omission 
may  be  supplied  by  other  proof. ■>  Hence  t. 
blank  left  in  an  award  may  be  supplied.*  But 
where  a  creditor  signs  a  deed  of  composition, 
leave  the  amount  of  his  debt  in  blank,  he  binds 
himself  to  all  existing  debl.J 

Bonds,  Notes,  and  Bills.  See  that  title, 
ante. 

BURDEN  OF  PROOF.  The  burden 
of  proof  is  the  duty  of  proving  the  facts  in  dis- 
pute on  an  issue  raised  between  the  parties  in 
a  cause. 

Burden  of  proof  is  to  be  distinguished  from 
prima  fade  evidence  and  prima  facie  case. 
Generally,  when  the  latter  is  shown,  the  duty 
imposed  upon  the  party  having  the  burden  will 
be  satisfied ;  but  it  is  not  necessarily  so.* 

The  burden  of  proof  lies  upon  him  who 
substantially  asserts  the  affirmative  of  the  issue ; 

2  Campb  io6  :  2  Pick.  290;  4  Td.  374;  13  Ga.  406.  x- 
1  Greenl.  Ev.  \  205  ;  2  Campb.  341  :  5  Mass.  365-  5 
Pick  285.  y-3  Rob.  (La.)243:  i7Conn.355.  13  Jur. 
253.  x-4  Pet.  I  ;  6  Td.  611.  a-Gresley  Eq.  Ev.  c  2. 
p.  38.  b-i  Greenl.  Ev.  \  371.  c-i  Atk  Ch.  21.46; 
Cowp.  340,  389;   I  Leach.  Cr.  Cas.  64  ;   i  Ry.  &  M.  77; 

6  Mass.  262;  16  Pick.  153;  B.  N.  P.  292;  i  Greenl. 
Ev.  \  371.  rt-Bracton,  140.  e-i  Greenl.  Ev.  \  291. 
r-4S.  &R.  137;  I  Greenl.  Ev.  §27-13.  g'-Gilb  Ev.is; 
Stark.  Ev.  437:  2  Campb.  605;  3  Id.  236;  i  Esp.  127; 
I  Pet.  591  :  6  Id.  352  :  7  Id.  100.  Il-i  Phill  Ev.  475; 
1  Wils.  215 :  7  Vt.  522  :  6  Id.  4x1.  I-2  Dallas,  180.  J- 
iB.  &Ald.  101     lt-6Cush.  364  ;   II  Met.  460:  22  .^la.  »o; 

7  Blackf.  427;  1  Gray,  61;  7  Bost.  L.  R  439  l-i 
Greenl.  Ev  ^  ■»■• :  7  Eng.  L.  &  Eq:  3  M.  &  W.  510. 


436 


EVIDENCE. 


but  where  the  plaintiff  grounds  his  case  on 
negative  allegations,  he  has  the  burden.' 

In  criminal  cases,  on  a  twofold  ground  that 
a  prosecutor  must  prove  every  fact  necessary  to 
substantiate  his  charge  against  a  prisoner,  and 
that  the  law  will  presume  innocence  in  the  ab- 
sence of  convincing  evidence  to  the  contrary, 
the  burden  of  proof,  unless  shifted  by  legislative 
interference,  will  fall,  in  criminal  proceedings, 
on  the  prosecuting  party,  though  in  order  to 
tonvict  he  must  necessarily  have  recourse  to 
■egative  evidence.*  The  burden  of  proof  is 
throughout  on  the  State  to  make  out  the  whole 
case ;  and  when  a  prima  facie  case  is  estab- 
lished, the  burden  of  proof  is  not  thereby 
shifted  upon  the  defendant,  and  he  is  not  bound 
to  restore  himself  to  that  presumption  of  inno- 
cence in  which  he  was  at  the  commencement 
of  the  trial.'' 

In  general,  whenever  the  law  presumes  the 
affirmative,  it  lies  on  the  party  who  denies  the 
fact  to  prove  the  negative;  as  when  the  law 
raises  a  presumption  as  to  the  continuance  of 
life,  the  legitimacy  of  children  born  in  wedlock, 
or  the  satisfaction  of  a  debt. 

See  Proof  of  Issue,  below. 

CHARACTER  (opinion  generally  enter- 
tained of  a  person  derived  from  the  common 
report  of  the  people  who  are  acquainted  with 
him).'  The  moral  character  of  a  person  in 
society  may  be  used  in  proof  before  a  jury  in 
three  classes  of  cases :  i.  To  afford  a  presump- 
tion that  a  particular  party  has  not  been  guilty 
of  a  criminal  act.  2.  To  affect  the  damages 
in  particular  cases,  where  their  amount  depends 
on  the  character  and  conduct  of  any  individual. 
3.  To  impeach  or  confirm  the  veracity  of  a 
witness. 

Of  Parties.  Where  the  guilt  of  an  accused 
party  is  doubtful,  and  the  character  of  the  sup- 
posed agent  is  involved  in  question,  a  presump- 
tion of  innocence  arises  from  his  former  conduct 
in  society,  as  evidenced  by  his  general  charac- 
ter; since  it  is  not  probable  that  a  person  of 
known  probity  and  humanity  would  commit  a 
dishonest  or  outrageous  act  in  the  particular 
instance.  But  where  it  is  a  question  of  great 
and  atrocious  criminality,  the  commission  of 
the  act  is  so  unusual,  so  out  of  the  ordinary 
course  of  things,  and  beyond  common  experi- 
ence— it  is  so  manifest  that  the  offence,  if  per- 
pretrated,  must  have  been  influenced  by  motives 
not  frequently  operating  on  the  human  mind — 
that  evidence  of  character,  and  of  a  man's 
habitual  conduct  under  common  circumstances, 
it  must  be  considered  far  inferior  to  what  it  is 
in  accusations  of  a  lower  grade.  Against  facts 
strongly  proved,  good  character  cannot  prevail. 
It  is,  therefore,  in  smaller  offences,  in  such  as 
relate  to  the  actions  of  daily  and  common  life, 

f-i  T.  R.  141 ;  6  Id.  559  ;  2  M.  &  S.  395;  5  W-  206; 
I  Campb.  199  ;  i  C.  &  P.  220  :  5  B.  &  C.  758 ;  i  Me.  134  ; 
4  Id.  226;  2  Pick.  103;  4  Id.  341  ;  5  Rich.  57 ;  i  Greenl. 
Ev.  §41.  le-i  Tayl.  Ev.  2  344;  12  Wheat.  460.  ll-i 
Ben.  &  H.  Lead.  Cr.  Cas.  352  ;  see  9  Met  (Mass.)  93 ; 
J  Cush.  296;  2  Gratt.  594;  Wright,  20  ;  5  Yerg.  340;  16 
Miss.  401.  I-^S.  &  R.  336;  3  Mass.  192;  3  Esp.  236. 
J-PerSt>Qw.  *-.  J.  325;  see  5  Esp-  13;  '  CaJPpb.  460; 


as  when  one  is  chained  with  pilfering  anJ 
stealing,  that  evidence  of  a  high  character  for 
honesty  will  satisfy  a  jury  that  the  accused  ia 
not  likely  to  yit- Id  to  so  slight  a  temptation. 
In  such  case,  where  the  evidence  is  doubtful, 
proof  of  character  may  be  given  with  good 
ellect.  But  still  even  with  regard  to  the  higher 
crimes,  testimony  of  good  character,  though  of 
less  avail,  is  competent  evidence  to  the  jury, 
and  a  species  of  evidence  which  the  accused 
has  a  right  to  offer.  It  is  the  privilege  of  the  • 
accused  to  put  his  character  in  issue,  or  not. 
If  he  does,  and  offers  evidence  of  a  good  char- 
acter, then  the  prosecution  may  give  evidence 
to  rebut  and  counteract  it.  But  it  is  not  com- 
petent for  the  government  to  give  in  proof  the 
bad  character  of  the  defendant,  unless  he  first 
opens  that  line  of  inquiry  by  evidence  of  good 
character.i 

Of  Witnesses.  The  party  against  whom  a 
witness  is  called  may  disprove  the  facts  stated 
by  him,  or  may  examine  other  witnesses  as  to 
his  general  character ;  but  they  will  not  be 
allowed  to  speak  of  particular  facts  or  parts  of 
his  conduct.''  For  example,  evidence  of  the 
general  character  of  a  prosecutrix  for  a  rape 
may  be  given,  as  that  she  was  a  street- walker; 
but  evidence  of  specific  acts  of  criminality  can- 
not be  admitted.'  The  regular  mode  of  in- 
quiring into  the  reputation  of  a  witness,  is  to 
ask  of  those  introduced  for  that  purpose  whether 
they  know  the  general  reputation  of  the  person 
in  question  among  his  neighbors,  and  what  that 
reputation  is.  The  inquiry  must  be  as  to  his  gen- 
eral reputation  where  he  is  best  known,  or  with 
those  among  whom  he  is  known,  or  with  those 
among  whom  he  dwells,"  and  whether  from 
such  knowledge  he  would  believe  him  on  his 
oath."  In  answer  to  such  evidence  against 
character,  the  other  parly  may  cross-examine 
the  witness  as  to  his  means  of  knowledge,  and 
the  grounds  of  his  opinion ;  or  he  may  attack 
such  witness'  general  character,  or  by  fresh 
evidence  support  the  character  of  his  own.* 
A  party  cannot  give  evidence  to  confirm  the 
good  character  of  a  witness,  unless  his  general 
character  has  been  impugned  by  his  antag- 
onist.P 

See  Witness,  Impeachment  of,  below. 

CIRCUMSTANCES.  Facts  proved  are 
always  accompanied  by  circumstances  which 
more  or  less  influence  the  mind  in  forming  a 
judgment.  In  some  instances  these  circum- 
stances assume  the  character  of  irresistible 
evidence;  where,  for  example,  a  woman  was 
found  dead  in  a  room,  with  every  indication  of 
having  met  with  a  violent  death,  the  presence 
of  another  person  at  the  scene  of  action  was 
made  manifest  by  the  bloody  mark  of  a  Ufi 

3  Id.  S19 ;  2  Str.  925  ;  2  St.  Tr.  1038 ;  i  Coxe,  424 ;  5  S. 
&  R.  352  ;  2  Bibb.  286 ;  3  Id.  195  :  s  Day,  260 :  7  Conn. 
116;  14  Ala.  382  ;  6  Cow.  673  ;  3  Hawks.  105 ;  14  Ind. 
589.  li-B.  N.  P.  295.  1-3  C.  &  P.  589 :  and  see  17 
Conn.  467  ;  18  Me.  372  ;  14  Mass.  387  ;  s  Cox  Cr.  Cai. 
146.  in-2  Met.  342  ;  I  Greenl.  Ev;  g  461 ;  20  Ohio,  18. 
n-4  St.  Tr.  693 ;  4  Esp.  102 ;  but  ice  i  Greenl.  Ev.  {  461 ; 
8  Ind.  408.  0-2  Stark.  151,  341 ;  Stark.  £v.  pt.  ^  1733P 
175S;  I  PhU.  £y.  929.    p-9  Watts,  xa4- 


EVIDENCE. 


437 


hand  visible  on  her  left  arm.'  These  points 
ought  to  be  carefully  examined  in  order  to 
form  a  correct  opinion.  The  first  question  is : 
Is  the  fact  possible  ?  If  so,  are  there  any  cir- 
cumstances which  render  it  impossible?  If 
alleged  facts  are  impossible,  the  witness  ought 
not  to  be  credited.  For  example :  if  a  man 
swears  that  he  saw  the  deceased  shoot  himself 
■wiih  his  own  pistol,  and,  upon  examination, 
the  ball  which  killed  him  is  found  too  large  to 
enter  the  pistol,  the  witness  ought  not  to  be 
crL-dited.«  So,  also,  if  one  swears  that  another 
has  committed  an  impossible  crime. 

Competency.  See  Credibility;  Wit- 
NESsi':s,  below. 

COMMUNICATIONS,  CONSULTA- 
TIONS, CONFERENCES,  CONVER- 
SATIONS, AND  THE  PROPOSI- 
TIONS made  at  and  prior  to  the  contract  are 
no  part  of  the  contract,  for  no  parol  evidence 
will  be  allowed  to  be  given  to  alter,  contradict, 
or  vary  a  written  instrument.'' 

CONCLUSIVE  EVIDENCE  is  that 
which,  while  uncontradicted,  satisfies  the  judge 
or  jury.  That  which  cannot  be  controlled  or 
contradicted  by  any  other  evidence.  That 
which  establishes  the  fact,  as  in  the  instance  of 
conclusive  presumptions.  The  record  of  a 
court  of  common  law  jurisdiction  is  conclusive 
as  to  the  facts  therein  stated.'  Evidence  may 
be  conclusive  for  some  purposes,  but  not  for 
others. 

Conclusive  Presumptions.  See  Pre- 
sumptions, below. 

CONFESSIONS  (voluntary  declarations 
made  by  a  person  who  has  commiited  a  crime  or 
misdemeanortoanother,  of  the  agency  orparlici- 
paiion  which  he  had  in  the  same.  An  admission 
or  acknowledgment  by  a  prisoner,  when  ar- 
raigned for  an  offence,  that  he  committed  the 
crime  with  which  he  is  charged.  Judicial  con- 
fessions are  those  made  before  a  magistrate,  or 
in  court  in  the  due  course  of  legal  proceedings. 
Extra-judicial  confessions  are  those  made  by  the 
party  elsewhere  than  before  a  magistrate,  or  in 
the  open  court). 

Voluntary  confessions  are  admissible  in  evi- 
dence •,J  but  a  confession  is  not  admissilile  in 
evidence  where  it  is  obtained  by  temporal  in- 

f-14  How.  St.  Tr.  i-?23.  Jf-i  Starlcie  Ev.  305.  h- 
»  S.  &  R.  27,  464;  Addis.  361;  2  Dallas,  172  ;  i  Yeates, 
140;  12  Johns.  77:  20  Id.  49;  3  Conn,  g;  11  Mass.  30; 
13  Id.  443 ;  I  Bibb.  271 ;  4  Id.  473 ;  3  Marsh,  333 ;  i  M. 

6  S.  21 ;  I  Esp.  53  ;  3  Campb.  57.  i-i  Wash.  64  ;  2 
Hen.  &  M.  55  ;  6  Conn.  508.  j-20  Ga.  60;  12  La.  An. 
8;>s  :  28  Ala.  (N.  S.)  9  ;  3  Ind.  552  ;  30  Miss.  593.  It-t 
Mood.  Cr.  Cas.  465 ;  Russ.  &  R.  Cr.  Cas.  152,  492  ;  4 
C.  &  P.  570;  5  Id.  539;  6  Id.  146,153:  7  Id.  579;  8  Id. 
140,  187;  4  Harring.  503;  37  N.  H.  175,  196;  5  Fla. 
-8^  ;  10  Ind.  106;  10  Gratt.  734  ;  see  18  >!.  Y.  9  ;  29 
Pcnn.  St.  425.     I-i  Mood.  Cr.  Cas.  410;  5  C.  &P.  539; 

7  Id.  -^02:  8  Id.  140,  733;  2  Craw.  &  D.  Cas.  Ir.  347;  6 
Ci'X  Cr.  Cas.  243;  2  Carr.  &  K.  225;  i  Dev.  259.     m- 

1  C.  &  P.  97.  129 ;  4  Id.  543  ;  7  Id.  776 ;  8  Id.  734 ; 
Russ.  &  R.  153;  I  T.  R.  Ir.  177;  i  Leach  Cr.  Cas.  291 . 

2  Id.  5591  19  Pick.  491 ;  I  Gray,  461  ;  i  Strobh.  155:  9 
Rich.  428  :  14  Gratt.  652  ;  19  Vt.  116  ;  but  see  5  Jones, 
432  ;  32  Miss.  382 ;  2  Ohio  St.  583.  n-i  Mood.  Cr.  Cis. 
197;  Jebb.  Cr.  Cas.  Ir.  15  :  16  Mass.  161  :  8  C)hio  St. 
98.     O-PhiL  Ev,  430;  4  C.  &  P,  ?23  ;  Jebb.  Qr-  Cas.  15, 


ducement,  by  threats,  promise,  or  hope  of  favor 
held  out  to  the  party  in  respect  of  his  escape 
from  the  charge  against  him  by  a  person  in 
authority,"  where  there  is  reason  to  presume 
that  such  per.son  appeared  to  the  party  to  sanc- 
tion such  threat  or  inducement  ;•  but  it  is  ad- 
missible if  such  inducements  proceed  from  a 
person  not  in  authority  over  the  prisoner,"  or 
if  the  inducement  be  spiritual  merely  ;■»  and  the 
temporal  inducement  must  have  been  held  out 
by  the  person  to  whom  the  confession  is  made,* 
unless  collusion  be  expected. p  A  confession  is 
admissible,  though  elicited  by  questions  put  to 
the  prisoner  by  a  constable,  magistrate,  or  other 
person,*!  even  though  the  question  a.ssumes  the 
prisoner's  guilt,  or  the  confession  is  obtained 
by  trick  or  artifice,''  and  although  it  appears 
that  the  prisoner  was  not  warned  that  what  he 
said  would  be  used  against  him.» 

A  statement  not  compulsory,  made  by  a  party 
not  at  the  time  a  prisoner  under  a  criminal 
charge,  is  admissible  in  evidence  against  him, 
although  it  is  made  upon  oath  ;'  otherwise,  if 
the  answers  are  compulsory."  A  confession 
may  be  inferred  from  the  conduct  and  de- 
meanor of  a  prisoner  when  a  statement  is  made 
in  his  presence  affecting  himself,^  unless  such 
statement  is  made  in  the  deposition  of  a  wit- 
ness, or  examination  of  another  prisoner  before 
a  magistrate.^ 

Where  a  confession  has  been  obtained,  or  an 
inducement  held  out  under  circumstances  which 
would  render  a  confession  inadmissible,  a  con- 
fession subsequently  made  is  not  admissible  ia 
evidence ;  unless  from  the  length  of  time  inter- 
vening, from  proper  warning  of  the  conse- 
quences, or  from  other  circumstances,  there  is 
reason  to  presume  that  the  hope  or  fear  which 
influenced  the  first  confession  is  dispelled,^  and 
the  motives  proved  to  have  been  offered  will  be 
presumed  to  continue,  and  to  have  produced 
the  confession,  unless  the  contrary  is  shown  by 
clear  evidence,  and  the  confession  will  be  re- 
jected.y  Under  such  circumstances  cor.tempx)- 
raneous  declarations  of  the  party  are  receivable 
in  evidence,  or  not,  according  to  the  attending 
circumstances  ;  but  any  act  of  the  party,  though 
done  in  consequence  of  such  a  confession,  is 
admissible,  if  it  appears  from  a  fact,  thereby 

p-4  C.  &  P.  SSo.  «|-i  Mood.  Cr.  Cas.  27,  452,  465 ; 
Jebb.  Cr.  Cas.  15;  Crawf.  &  D.  Cr.  Cas.  115:  2  Id. 
1-7.;  5  C.  &  P.  312  ;  7  Id.  569,  832;  8  Id.  179,  621  ;  14 
Ark.  5s6;  19  Id.  156;  23  Ala.  (N.  S.)  28.  r-i  Mood. 
Cr.  Ci^.  28:  Phil.  Ev.  427;  33  Miss.  347:  see  8  C.  & 
P.  622.  8-8  Mod.  89 :  I  C.  &  P.  261  :  5  Id.  312,  318 ;  S 
Id.  179:  7  Id.  487;  9  Id.  124.  t-2  Mood.  Cr.  Cas.  45; 
I  C.  &  K.  657 ;  2  Stark.  366 ;  5  C.  &  P.  530 ;  9  Id.  240; 
1  Mood.  &  R.  Cr.  Cas.  297  :  7  I  rcc.  76 ;  5  Rich.  391 :  s, 
Park.  Cr.  Cas.  663  ;  see  8  Carr.  &  P.  250.  u-i  Den. 
Cr.  Cas.  236  ;  4  Campb.  to ;  6  C.  &  P.  161,  177;  15  N. 
Y.  384  ;  3  Wis.  823:  2  Park.  Cr.  Cas.  663.  v-5  C.  & 
P-  332  ;  7  Id.  832  ;   12  Met.  (Mass.)  235  ;    21  Pick.  515  . 


see  32  Ala.  (N.S.)56o.  w-i  Mood.  Cr.  Cas.  347; 
Mood.  &M.  336;  6C.  &P.  164.  x-2  Lew.  Cr.  Cas. 
123  ;  4  C.  &  P.  2:^5  ;  5  Id.  318,  535 ;  6  Id.  404  ;  1  Wheel. 


Cr.  Cas.  67  ;  5  Halst.  163  ;  3  Jones,  443;  5  Rich.  391  ; 
24  Miss.  512.  y-iDev.  259;  12  Miss.  31  ;  sCush.fcj; 
18  Conn.  166;  2  Leigh.  701  ;  32  Ala.  (N.  S.)  56°;  » 
Sneed.  75,  and  see  6  C.  ^  P.  404  ;  5  Jones,  315 ;  i«  i«. 
An,  895, 


438 


EVIDENCE. 


discovered,  that  so  much  of  the  confession  as 
immediately  relates  to  it  is  true.* 

A  confession  made  before  a  magistrate  is  ad- 
missible, though  made  before  the  evidence  of 
the  witness  against  the  party  was  concluded.' 

Parol  evidence,  precise  and  distinct,  of  a 
statement  made  by  a  prisoner  before  a  magis- 
trate during  his  examination,  is  admissible, 
though  such  statement  neither  appears  in  the 
written  examination,  nor  is  vouched  for  by  the 
■lagistrate ;''  but  not  if  it  is  of  a  character 
which  it  was  the  duty  of  the  magistrate  to  have 
nated.o  Parol  evidence  of  a  confession  before 
a  magistrate  may  be  given  where  the  written 
examination  is  inadmissible  through  infor- 
mality.* 

The  whole  of  what  the  prisoner  said  must 
be  taken  together.* 

A  prisoner's  confession,  when  the  corpus 
delicti  is  not  otherwise  proved,  is  insufficient  to 
warrant  his  conviction.' 

CONFIDENTIAL  COMMUNICA- 
TIONS. 

Agents.     See  Interpreters,  below. 

Attorneys,  Counsellors,  and  Solicitors 
AT  Law,  and  members  of  the  legal  profession 
generally,  are  not  competent  to  testify  to  confi- 
dential communications.  The  confidential 
counsellor,  solicitor,  or  attorney  of  any  party 
cannot  be  compelled  to  disclose  papers  deliv- 
ered, or  communications  made  to  him,  or  let- 
ters, or  entries  made  by  him  in  that  capacity;? 
nor  will  he  be  permitted  to  make  such  commu- 
nications against  the  will  of  his  client."'  The 
privilege  extends  to  all  matters  made  the  sub- 
ject of  professional  intercourse,  without  regard 
to  the  pendency  of  legal  proceedings,'  and  as 
to  matters  discovered  by  the  counsellor,  etc.,  in 
consequence  of  this  relation."  A  barrister's 
clerk  is  considered  as  standing  in  the  same  re- 
lation as  an  attorney  ;*  but  not  a  student  at  law 
in  an  attorney's  office." 

The  cases  in  which  communications  to  coun- 
sel have  been  holden  not  to  be  privileged  may 
be  classed  under  the  following  heads :  When 
the  communication  was  made  before  the  attor- 
ney was  employed  as  such  /  after  the  attorney's 
employment  has  ceased ;"  when    the  attorney 

JB-i  Leach  Cr.  Cas.  263,  386 ;  0  C.  &  P.  364  ;  i  Mood. 
Cr.  Cas.  338;  Russ.  &  R.  Cr.  Cas.  151  :  9  Pick.  406; 
32  Miss.  382;  I  Sneed,  75  :  7  Rich.  327.  R-4  C.  &  P. 
■;67:  5  Id.  163.  b-PhiU.  Ev.  447;  2  Russ.  Cr.  f^d  Ed.) 
876-878;  1  Mood.  Cr.  Cas.  338;  7  C.  &  P.  188.  c-i 
Oreenl.  Ev.  \  227,  n.  d-i  Lew.  Cr.  Cas.  46  ;  4  C.  &  P. 
••50,  >«.;  15  Id.  162;  6  Id.  183;  I  Mood.  &  M.  403  ; 
Busb.  239.  e-2  Carr.  &  K.  221  ;  9  Ball  &  B.  297 ;  2  C. 
.V  P.  629  ;  3  Id.  603  ;  4  Id.  215,  397 ;  9  Leigh.  633  ;  2 
O.ill.  86  ;  5  Miss.  364  ;  see  3  Park  Cr.  Cas.  2s6;  26  Ala. 
N.  S.  107.  f-i  Hayw.  455 ;  5  Halst.  163,  185;  18  Miss. 
■'iC) ;  17  III.  426;  2  Texas,  79,  coK/ra,  Russ.  &  R.  Cr. 
Cas.  481,  509;  1  Leach  Cr.  Cas.  311  ;  3  Park.  Cr.  C.is. 
4->i :  ti  Ga.  225.  p-Mylne  &  K.  loi ;  4  B.  &  Ad.  876; 
■i  M.  &  W.  100 ;  4  T.  R.  753  :  6  Carr.  &  P.  728 ;  2  Cow. 
'95;  7  Johns.  Ch.  25  ;  14  Johns.  391;  8  Mass.  370;  12 
Pick.  89  ;  16  Me.  329  ;  23  Mo.  474  ;  11  Wheat.  295.  <|- 
I  Mylne  &  K.  102 ;  4  T.  R.  756,  759 ;  12  J.  B.  Moore, 
320 ;  2  Atk.  Ch.  524  ;  3  Barb.  Ch.  528 ;  8  Mass.  370.  r- 
9  Beav.  Rolls.  16 ;  11  Id  j  59 ;  2  Brod.  &  B.  4  ;  3  Bing. 
(N.  C.)  235;  5  Carr.  &  P".  592  ;  6  Madd.  Ch.  47  ;  i  De 
Gex.  &  S.  13  :  3  Watts,  20;  22  Penn.  St.  89  ;  12  Pick. 
80;  38  Me.  581;  25Vt.  47;  24  Miss.  134:  but  see  28 
Vt.  701,  750.     a-s  £sp.  52  ;    see  z  Mylne  &  K.  103 :    3 


was  consulted  because  he  wa-s  an  attorney,  yet 
was  not  acting  as  such  ;*  where  his  character 
of  attorney  was  the  cause  of  his  being  present 
at  the  taking  place  of  a  fact,  but  there  was 
nothing  in  the  circumstances  to  make  it  amount 
to  a  communication ;''  when  the  matter  com- 
municated was  not,  in  its  nature,  private,  and 
could  in  no  sense  be  termed  the  subject  of  a 
confidential  communication  ;•  when  the  things 
disclosed  had  no  reference  to  professional  em- 
ployment, though  disclosed  while  the  relation 
of  attorney  and  client  subsisted  ;*  when  the  at- 
torney made  himself  the  subscribing  witness;* 
when  he  is  a  party  to  the  transaction  ;•  when  he 
was  directed  to  plead  the  facts  to  which  he  is 
called  to  testify.* 

The  rule  of  privilege  does  not  extend  to 
confessions  made  to  confidential  friends",  clerks,' 
bankers,*  nor  stewards. "^ 

Attorneys,  clergymen,  or  physicians,  with  the 
consent  of  the  party  making  confidential  com- 
munication, may  testify  concerning  the  same. 

Clergymen,  concerning  any  confessions 
made  to  them  in  the  course  of  discipline  en- 
joined by  the  church,  are  privileged  in  some 
States,  but  not  by  the  common  law.* 

Interpreters!  and  Agents*  are  consid- 
ered as  standing  in  the  same  relation  as  an  at- 
torney. 

Husband  and  Wife  are  excluded  from  giv- 
ing testimony  for  or  against  each  other  when 
either  is  a  party  to  the  suit,  or  interested.  And 
neither  is  competent  to  prove  a  fact  directly 
tending  to  criminate  the  other.  This  rule  is 
founded  partly  on  their  identity  of  interest,  and 
partly,  perhaps  chiefly,  on  the  policy  of  the 
law,  which  aims  to  protect  the  confidence  be- 
tween man  and  wife,  that  is  essential  to  the 
comfort  of  the  married  relation,  and  througii 
that  to  the  good  order  of  society.  Whether,  or 
not,  the  disability  of  husband  and  wife  may  ever 
be  removed  by  consent  of  the  other  is  a  matter 
of  dispute.'  It  does  not  make  any  difference 
which  party  is  called  upon  as  a  witness,"  or 
when  the  relation  commenced,"  or  whether  it 
has  terminated."  It  is  not  removed  by  death, 
or  by  the  dissolution  of  the  marriage  relation. 

Mylne  &  C.  515  ;  Story  Eq.  PI.  \  601 ;  13  Ga.  260;  n> 
Ala.  (N.  S.)  254;  21  Ga.  301.  t-2  C.  &  P.  105 ;  i  Id. 
545  ;  5  Id.  177  ;    5  Man.  &  G.  271  ;    8  Dowl.  &  R.  726 ; 

12  Pick.  93  ;  3  Wend.  337;  16  N.  Y.  180;  5  Cal.  450. 
U-7  Cush.  576.  v-i  Ventr.  197;  2  Atk.  Ch.  524;  see 
38  Me.  581.  W-4T.  R.  431;  12  L.i.  An.  91.  x-4  T. 
R.  753  ;  4  Mich.  414;  14111.89;  7  Rich  459.  y-Cowp. 
846;  2Ves.  Ch.  189;  2  Curt.  Eccl.  866.  19  N.  H.  163. 
z-7  East.  357;  2  Brod.  &  B.  176;  3  Johns.  Cas.  196. 
«-Peake,  77.  b-io  Mod.  40 ;  2  Curt.  Eccl.  866  ;  3  Burr. 
1687.  c-3  Wis.  274  ;  Story  Eq.  PI.  \  601.  d-7  Martin 
(N.  S.)  179.  c-4  T.  R.  758  ;  I  Caines,  157;  3  Wis.  456; 
14  111.  89.  f-3  Campb.  337 ;  i  C.  &  P.  337.  gr-2  C.  ?-. 
P.  325.  h-2  Atk.  Ch.  524;  n  Price,  455;  consult 
Starkie  Ev.  Index;  i  Greenl.  Ev.  ??  237-250,  337-342; 
17  Am.  Jur.  304.  I-4T.  R.  753;  2  Skinn.  404;  15  Mass. 
161.  J-4T.  R.  756;  3  Wend.  337;  4  Munf.  273;  7  Ind. 
202;  I  Pet.  C.  C.  356.  k-2  Stark.  239;  2  Beiv.  RolU, 
173;  I  Phill.  Ch.  471,  687.  l-i  Ves.  Ch.  49;  i  Wheat. 
Cr.  Cas.  479 ;  4  T.  R.  679  ;  3  C.  &  P.  558 ;  i  Greenl. 
Ev.  ^  340.     m-Ry.  &  M.  352.     11-3  Carr  &  P.  558.    o- 

13  Pet.  209;  3  Dev.  &  B.  110;  I  Barb. -392 ;  6  East.  192; 
I  Ry.  &  M.  198;  I  C.  &  P.  364;  and  see  13  Pick.  445; 
7  Vt.  506;  4  Penn  St.  364;  s  Ala.  (N.  S.)  224;  x  B. 
Mon.  324. 


EVIDENCE. 


439 


Some  exceptions  to  this  ruleP  are  admitted 
out  of  necessity  for  the  protection  of  husband 
and  wife  against  each  other,  and  for  the  sake 
of  public  justice.'' 

Physicians,  concerning  any  communication 
as  to  matters  confided  to  them  in  course  of  their 
profession,  provided  this  privilege  be  extended 
to  them  by  statute  and  not  otherwise.'  But  a 
physician  consulted  as  to  the  means  of  doing  an 
unlawful  aci,  such  as  procuring  an  abortion,  is 
not  excused  from  answering.*  The  statute  does 
not  prevent  the  physician  of  a  deceased  person 
giving  evidence  in  a  testamentary  cause,  con- 
cerning the  probate  of  the  will  of  such  decedent. 
The  statute  does  not  establish  a  general  and 
absolute  prohibition  of  such  testimony  in  all 
cases,  but  secures  a  personal  privilege  to  the 
party,  which  may  be  waived;  and  if  such  priv- 
ilege be  waived,  the  witness  cannot  object  to 
testify.' 

CONJECTURE,  arising  from  evidence  too 
weak  or  remote  to  cause  belief,  is  of  too  slight 
a  degree  to  have  any  weight,  being  merely  a 
probability  without  any  demonstration  of  its 
truth. 

COPIES  cannot  be  given  in  evidence  un- 
less proof  is  made  that  the  originals  from  which 
they  are  taken  are  lost,  or  are  in  the  power  of 
the  opposite  party ;  and,  in  the  latter  case,  that 
notice  has  been  given  him  to  produce  the 
original." 

A  copy  to  be  evidence  must  be  a  true  tran- 
script of  the  original  writing  or  record.  The 
papers  should  be  exchanged  and  read  alter- 
nately, but  this  is  not  strictly  necessary.' 

See  Examined  Copy;  Originals,  below. 

CREDIBILITY.  In  deciding  upon  the 
credibility  of  a  witness,  it  is  always  pertinent 
to  consider  whether  he  is  capable  of  knowing 
thoroughly  the  thing  about  which  he  testifies ; 
whether  he  was  actually  present  at  the  transac- 
tion ;  whether  he  paid  sufficient  attention  to  be 
qualified  to  make  a  correct  report  of  it;  and 
whether  he  honestly  relates  the  affair  as  fully  as 
he  knows  it,  without  purpose  or  desire  to  de- 
ceive, add  to,  or  suppress  the  truth.  With  this 
may  be  considered  his  interest,  if  any,  and 
qualities  of  mind  and  character. 

The  credibility  of  witnesses  is  a  question  for 
the  jury  to  determine,  as  their  competency  is 
for  the  court.* 

See  Witnesses,  below. 

CRIMINATE.  A  witness  cannot  be  com- 
pelled to  answer  any  question  which  has  a 
tendency  to  expose  him  to  a  penalty,  or  to  any 
kind  of  punishment,  or  to  a  criminal  charge.* 

p-i  Greenl.  Ev.  g  343.  q-Bac.  Abr  Ev.  (A.);  1 
Greenl.  Ev.  J§  334-347,'  i  PhiU.  Ev.  69-81,  and  Cowen 
and  H.  notes  «,  »,  53-74;  Stark  Ev.  Pt.  IV,  706-715  ;  i 
Ves.  Ch.  49:  I  Jebbs.  &  S.  563;  Ry.  &  M.  Cr.  Cas. 
253.     r-n  Hargrave  St.  Tr.  243  ;  20  Howell  S.  &  Tr. 


643  ;  I  C.  &  P.  97  ;  3  Id.  518 ;  see  14  Wend.  637.  8-21 
1.  79.  t-i  Bradr  Surr.  azi.  n-i  Greenl.  Ev.  §508; 
3  Bouv.  Inst.  «,  3055.     v-2  Taunt.  470;  i  Stark.  183;  4 


Campb.  373 :  I  C.  &  P.  578.  W-Best  Ev.  g§  76-85 
Greenl.  Ev.  §§  49,  425;  n  M.  &  W.  216.  x-3  Bouv. 
Inst.  nn.  3209,  3212  ;  4  S.  &  Tr.  6;  6  Id.  649  ;  10  Howell 
S.  &  Tr.  1090;  16  Id.  1149;  24  Ifl-  720;  2  Dougl.  593;  2 
Ld.  Raym.  loiSS;  16  Ves.  Ch.  342;  aSwanst.  316;  i  C. 


An  accomplice  admitted  to  give  evidence 
against  his  associates  in  guilt  is  bound  to  make 
a  full  and  fair  confession  of  the  whole  truth 
respecting  the  subject-matter  of  the  prosecu- 
tion.'  But  he  is  not  bound  to  answer  with  re- 
spect to  his  share  in  other  offences,  in  which 
he  was  not  concerned  with  the  prisoner.* 

CROSS-EXAMINATION.  See  Leading  Ques- 
tions ;  and  WITNESSES,  below. 

CUSTOM.  Evidence  of  custom  or  usage 
is  never  admi.ssible  to  oppose  or  alter  a  general 
principle,  or  rule  of  law,  so  as,  upon  a  given 
state  of  facts,  to  make  the  legal  rights  and  lia- 
bilities of  parties  other  than  they  are  by  law.» 
With  respect  to  a  custom  or  usage  of  trade, 
however,  it  is  sufficient  if  it  appears  to  be 
known,  certain,  uniform,  reasonable,  and  not 
contrary  to  law.*  But  if  not  directly  known  to 
the' parties  to  the  transaction  it  will  still  be 
binding  upon  them  if  it  appear  to  be  so  general 
and  well  established  that  knowledge  of  it  majr 
be  presumed." 

DAMAGE.  He  who  it  is  proved  caused 
the  damage  is  bound  to  repair  it;  and  if  proven 
he  has  done  it  maliciously  he  may  be  compelled 
to  pay  even  beyond  the  actual  loss.  Where  it 
is  shown  that  the  damage  occurred  by  accident, 
without  blame  to  any  one,  the  loss  is  borne  by 
the  owner  of  the  thing  injured ;  as,  if  a  horse 
run  away  with  his  rider,  without  any  fault  of 
the  latter,  and  injure  the  property  of  another 
person,  such  injury  is  the  loss  of  the  owner  of 
the  thing.  When  damage  happens  by  the  act 
of  God,  or  inevitable  accident,  as  by  tempest, 
earthquake,  or  other  natural  cause,  the  loss 
must  be  borne  by  the  owner.* 

DEATH.  Persons  who  have  been  once 
shown  to  have  been  in  life  are  presumed  thus 
to  continue  until  the  contrary  is  shown  ;  so  that 
it  lies  on  the  party  asserting  the  death  to  make 
proof  of  it.*  But  proof  of  a  long  continued 
absence,  unheard  from  and  unexplained,  will 
lay  a  foundation  for  presumption  of  death.  The 
general  rule  is,  that  the  presumption  of  the  du- 
ration of  life  ceases  at  the  expiration  of  seven 
years  from  the  time  when  he  was  last  known 
to  be  living.'  Such  continued  absence  for 
seven  years  from  the  particular  State  of  his 
residence,  without  showing  an  absence  from 
the  United  States  is  sufficient." 

See  Identity,  below. 

DECLARATIONS  are  statements  made 
by  a  party  to  a  transaction,  or  by  one  having  an 
interest  in  the  existence  of  some  fact  in  relation 
to  the  same. 

Declarations  regarded  as  original  evidence, 

&  P.  II ;  I  Wen.  Cr.  Cas.  236;  i  Cranch.  144;  3  Yerg. 
no;  5  Day,  260 ;  2  Nott  &  M'C.  13;  6  Cow.  254;  t 
Wend.  598;  1  Johns.  498;  12  S.  &  R.  284.  y-10  Pick. 
477 ;  2  Stark.  12,  n.  x-9  Cow.  721,  note  a;  2  C.  &  P. 
4:1.  «-2  T.  R.  327;  19  Wend.  252;  6  Met.  (Mass) 
303;  6  Pick.  131  :  6  Binn.  416.     b-3  Wash.  C.  C.  150; 


7  Pet.  1  ;  5  Binn.  287;  8  Pick.  360.  C-i  Caines,  43:  4 
Stark.  452.  d-See  Com.  Dig.  Saycr  Dam..  Scdfew. 
Dam.     e-2   East.  313 ;  2  RoUe,  461.     f-i  Phillips  Ev 


Cowen  &  H.  Ed.  197:  3C0W.  &  H.  notes,  489  :  1  GrepnI. 
Ev.  §  41 ;  5  Johns.  Ch.  263 :  5  B.  &  Aid.  86.  p-io  Pick. 
515;  1  Rawle,373;  x  A.  iC.  Marsh.  278;  j  Penning. 
167 ;  2  Bay,  476. 


440 


EVIDENCE. 


and  admissible  as  sucb :  i.  When  the  fact  that 
the  declaration  was  made  is  the  point  in  ques- 
tion.* 2.  Including  expressions  of  bodily  feel- 
ing where  the  existence  or  nature  of  such  feel- 
ings is  the  object  of  inquiry;  as  expressions  of 
affection  in  actions  for  critn.  con.  ;^  representa- 
tions by  a  sick  person  of  the  nature,  symptoms, 
and  effects  of  the  malady  under  which  he  is  la- 
boring;* in  prosecutions  for  rape,  the  declara- 
tions of  the  woman  forced.i  3.  In  cases  of 
f>edigree,  including  the  declarations  of  deceased 
persons  nearly  related  to  the  parties  in  question;" 
family  records.'  4.  Cases  where  the  declara- 
tion may  be  considered  as  a  part  of  the  res 
gestiB^  including  the  entries  made  by  those 
whose  duty  it  was  to  make  such  entries." 

Declarations  regarded  as  secondary  evidence 
or  hearsay,  and  yet  admitted  in  some  cases  :  i. 
In  matters  of  general  and  public  interest,  com- 
mon reputation  being  admissible  as  to  matters 
of  public  interest ;"  but  reputation  amongst  those 
only  connected  with  the  place  of  business  in 
question,  in  regard  to  matters  of  general  interest 
merely, P  and  the  matter  must  be  of  a  quasi  pub- 
lic nature.'  2.  In  cases  of  ancient  possession, 
where  ancient  documents  are  admitted,  if  found 
in  a  place  in  which,  and  under  the  care  of  per- 
sons with  whom  such  papers  might  reasonably 
be  expected  to  be  found,''  if  they  purport  to  be 
a  part  of  the  transaction  to  which  they  relate." 
3.  In  cases  of  declarations  and  entries  made 
against  the  interest  of  the  party  making  them, 
whether  made  concurrently  with  the  act  or  sub- 
sequently ;*  but  such  declarations  and  entries, 
to  be  so  admitted,  must  appear  or  be  shown  to 
be  against  the  pecuniary  interest  of  the  party 
making  them."  4.  Dying  declarations  made 
in  cases  of  homicide,  where  the  death  of  the 
deceased  is  the  subject  of  the  charge,  and  the 

jr-4  Mass.  702  :   5  Id.  444  ;  9  Johns.  45;  nWcnd.Tio; 

I  Conn.  387;  2  Cainpb.  511  ;  2  B.  &  Ad.  845;  1  Mood. 
&  R.  2,  8  ;  9  13ingh.  359  ;  see  i  Phill.  Ev.  188 ;  4  Bingh. 
(N.  0489;    1  Brod.  &  B.  269.     I1-2  Stark.  191 ;     1  B. 

6  Aid.  90  ;  8  W.ntLs,  355  ;  see  4  E<ip.  39  ;  2  C.  &  P.  22; 

7  Id.  198.  i-6  East.  188  ;  4  .M'Cord,  38  ;  8  Watts,  355  ; 
see  9  C.  &  P.  275  ;  7  Cush.  581  ;  30  Ala.  (N.  S.)  562  ; 
33  Ga.  17  ;  27  Mo.  279  :  30  Vt.  377.  J-i  Russ.  Cr.  565  ; 
a  Stark.  241  ;  18  Ohio,  99.  It-Cowp.  591  ;  13  Ves.  Ch. 
140,  514:  2  Bingh.  86;  3  Russ.  &  M.  147;  2  C.  &  K. 
701 ;  I  Cr.  M,  &  R.  319;  1  De  Gex.  &  S.  40;  i  How. 
831  ;  4  Raiid,  607 ;  3  Dev.  &  B.  91  :  18  Johns.  37 ;  2 
Conn.  347 ;  4  N.  H.  371.  I-4  Campb.  401 :  8  B.  &  C. 
813;  sClark&F.  Ho.  L.  24;  11  Id.  85:  7Scott(N.  R.) 
141;  2  D.-dl.  116;  I  Penn.  St.  381  ;  8  Johns.  128;  and 
see  II  East.  503 ;  13  Vcs.  Ch.  514 ;  i  Pet.  328  ;  5  S.  & 
R.  251;  4  Mas.  C.  C.  268.  111-36  N.  H.  167,  353;  16 
Texas,  74;  6  Fla.  13;  41  Me.  149,432  ;  2063.452.  n- 
See  I  Greenl.  Ev.  §§  115,  123;  1  Smith  L.  Cas.  Hare  & 
W.  Ed.  142.  ©-14  East.  329,  «.;  i  M.&S.  686;  4 
Campb.  416;  6  M.  &  W.  234;  19  Conn.  250.  p-i 
Crompt.  M.  &  R.  920  :  3  B.  &  Ad.  245.  q-i  East.  357; 
14  Id.  329,  «. ;  5  T.  R.  121  ;  10  B.  &  C.  657;  3  Campb. 
aSS;  I  M.&S.  77;  2  Id.  494  ;  i  Taunt.  261 ;  i  M.  & 
W.  416  ;  see  Witness,  r-2  Bingh.  (N.  C.)  183  ;  1 
Dowl.  Pari.  Cas.  297 ;    12  M.  &  W.  205  ;    8  Q.  B.  158  ; 

II  Id.  884  ;  I  Price,  225 :  2  Id.  303  ;  5  Id.  312  ;  4  Wheat. 
213 ;  5  Pet.  319  ;  9  Id.  (A-^ ;  5  Cow.  221  ;  7  Wend.  371 ; 
a  Nott.  &  M'C.  55,  400;  4  Pick.  160.  »-i  Greenl.  Ev. 
{  144.  t-i  Taunt.  141  ;  3  Id.  303;  4  Id.  16;  i  Campb. 
367 ;  3  Id.  457  :  2  T.  R.  53  ;  3  Brod.  &  B.  132 ;  3  B.  & 
Ad.  893,  and  see  i  Phill.  Ev.  293  ;  Gresley  Eq.  Ev.  221. 
U-i  C.  &  P.  276:  II  Clark  &  F.  Ho.  L.  85;  10  East. 
109 ;  a  Jac.  &  W.  789  ;  3  Bingh.  (N.  C.)  308,  320.  v-2 
8,  ftQ,  6oj;  J  J-cach Cr.  Cas,  ?67,  378 ;  2M.&R.  53; 


circumstances  of  the  death  are  the  subject  of 
the  dying  declarations,  are  admissible'  if  made 
under  a  sense  of  impending  death."  The  de- 
clarations may  have  been  made  by  signs,*  and 
in  answer  to  questions.'  The  substance  only 
need  be  given  by  the  witness,*  but  the  declara- 
tion must  have  been  complete,*  and  the  circum- 
stances under  which  it  was  made  must  be 
shown  to  the  court. '• 

Declarations  to  be  admissible  as  original  evi- 
dence must  have  been  made  at  the  time  of 
doing  the  act  to  which  they  relate." 

In  order  to  their  admission  as  secondary  evi- 
dence, the  declarant  must  be  dead,*  and  the 
declaration  must  have  been  made  before  any 
controversy  arose."  It  must  appear  that  the 
declarant  was  in  a  condition  or  situation  to 
know  the  facts,  or  that  it  was  his  duty  to  know 
them.' 

The  declarations  of  an  agent  respecting  a 
subject-matter,  with  regard  to  which  he  repre- 
sents the  principal,  bind  the  principal,*  if  made 
during  the  continuance  of  the  agency  with  re- 
gard to  the  transaction  then  pending  ;■*  and 
similar  rules  extend  to  partners'  declarations.' 

When  more  than  one  person  is  concerned  in 
the  commission  of  a  crime,  as  in  cases  of  riots, 
conspiracies,  and  the  like,  the  declarations  of 
either  of  the  parties,  made  while  acting  in  the 
common  design,  are  evidence  against  the  whole;! 
but  the  declarations  of  one  of  the  rioters,  or 
conspirators,  made  after  the  accomplishment  of 
their  object,  and  when  they  no  longer  acted  to- 
gether, are  evidence  only  against  the  party 
making  them.* 

DEMONSTRATION  is  the  highest  at- 
tainable degree  of  evidence.  It  is  such  certain 
proof  as  excludes  all  possibility  of  error.  It 
establishes  a  fact  or  proposition  beyond  a  possi- 

2  Johns.  31,  35  ;  15  Id.  286;  i  Meigs.  265  ;  4  Miss.  665; 
see  4  C.  &  P.  233.  W-2  Leach  Cr.  Cas.  563 ;  6  C.  &  P. 
386,  631 ;  7  Id.  187;  I  Mood.  Cr.  Cas.  07;  2  Id.  135;  5 
Cox  Cr.  Cas.  318  ;  11  Ohio,  424 ;  2  Ark.  229 ;  3  Cush. 
i8i  :  0  Humph.  9.  24.  x-i  Greenl.  Ev.  J  161,  o.  y-7 
C.  &  P.  238;  2  Leach.  Cr.  Cas.  563;  3  Leigh.  758.  »- 
II  Ohio,  424;  8  Blackf.  loi.  n-3  Leigh.  786.  b-i 
Stark.  521 ;  3  C.  &  P.  629  ;  6  Id.  386 ;  7  Id.  187  ;  i 
Hawks.  444 ;  2  Ashm.  4,  169  ;  2  Gratt.  594  ;  16  Miss. 
401  :  2  Hill  (N.  C.)  6ig.  c-3  Conn.  250;  19  Id.  250; 
16  Miss.  722  ;  9  Paige  Ch.  611 ;  3  Ga.  513;  23  Id.  193; 
8  Met.  (Mass.)  436  ;  13  Id.  237,  544  ;  6  Me.  266 ;  34  Id. 
310;  8N.  H.  40;  36  Id.  353;  14  S.  &  R.  27s;  8  Watts, 
479  ;  5  T.  &  R.  512  :  2  Bingh.  99 ;  9  Id.  349  ;  i  B.  & 
Ad.  135  ;  and  see  i  Met.  (Mass.)  242  ;  3  Id.  199 :  4  Fla. 
104  ;  3  Humph.  315  ;  24  Vt.  363  ;  21  Conn.  loi.  For 
cases  of  entries  in  books,  see  i  Binn.  234  ;  8  Watts,  S44  ; 
4  S.  &  R.  3,  s  ;  9  Id.  285 ;  13  Mass.  427.  d-ii  Price, 
162  ;  I  Cafr.  &  K.  58 ;    12  Vt.  178.     e-13  Ves.  Ch.  514; 

3  Campb.  444  ;  4  Id.  401 ;  10  B.  &  C.  657 ;  4  M.  &  S. 
486;  I  Pet.  328.  r-2  Jac.  &  W.  Ch.  464  ;  10  East.  109; 
15  Id.  32;  9  B.  &  C.  035:  10  Id.  317;  4Q.  B.  137;  » 
Smith  L.  Cas.  Hare  &  W.  Ed.  193.  «.  g-Story  Ag.  g 
134,137;  I  Phill.  Ev.  381 ;  2Q.  B.  212;  3Harr.  &J. 
299;  20N.  H.  165;  31  Ala.  (N.  S.)  33;  6  Gray,  450. 
h-8  Bingh.  451;  10  Ves.  Ch.  123;  4  Taunt.  519;  S 
Wheat.  336;  6  Watts,  487:  8  Id.  39;  14  N.  H.  loi  ;  4 
Cush.  03  ;  3oVt.  29;  ii  Rich.  367;  2463.211;  31  Ala. 
(N,  S.)  33  ;  7  Gray,  92,  345  ;  4  E.  D.  Smith,  165 ;  see  3 
Rob.  201 ;  8  Met.  (Mass).  44 ;  19  111.  456.  l-i  Greenl.  Er. 
g  112;  31  Ala.  (N.  S.)26;  36  N.  H.  167.  I-3  B.  &  Aid. 
566  ;  I  Stark.  81  ;  2  Pet.  358 ;  jo  Pick.  Mass.  497  ;  30 
Vt.  100;  3a  Miss.  405  ;  9  Cal.  593.  lt-2  Stark.  Ev.  235; 
2  Russ.  Cr.  572  ;  Rose.  Cr.  Ev.  324  ;  i  111.  269;  i  Moo«l, 
&  M.  501 ;  and  see  3  C.  &  P.  232 ;  7  Gray,  i,  ^, 


EVIDENCE. 


441 


bility  of  doubt  It  shows  the  contrary  position 
to  be  absurd  or  impossible.  It  is  the  indubita- 
ble evidence  of  the  senses,  and  of  reason. 

DEPOSITIONS  are  written  declarations, 
imer  oath,  made  upon  notice  to  the  adverse 
party  for  the  purpose  of  enabling  him  to  jrttend 
and  cross-examine,  or  upon  written  interroga- 
tories. The  difference  between  a  deposition 
and  an  affidavit,  is  the  requirement  of  notice  in 
the  former." 

Depositions  were  not  formerly  allowed  in 
common  law  courts,  but  were  admitted  from 
necessity  where  the  oral  testimony  of  a  witness 
could  not  be  obtained.  In  courts  of  equity 
this  is  generally  the  only  testimony  which  is 
taken.  In  most  States  both  oral  testimony  and 
depositions  are  used. 

In  criminal  cases  depositions  cannot  be  used 
without  the  consent  of  the  defendant,"  who  can- 
not by  constitution  be  deprived  of  the  right  of 
meeting  his  accusers  face  to  face.  Statutory 
provisions  are  made  in  many  States  for  taking 
depositions  by  the  accused." 

The  cases  in  which  depositions  maybe  used, 
the  time  of  taking,  before  whom  taken,  notice 
of  taking,  forms,  directions  and  proceedings  in 
laking,  transmission,  opening,  exception  to,  and 
iheir  introduction  as  evidence,  are  the  subjects 
of  special  statutory  regulation  in  all  the  various 
States. 

DIRECT  EVIDENCE  is  that  means 
of  proof  which  tends  to  show  the  existence  of 
a  fact  in  question  without  the  intervention  of 
the  proof  of  any  other  fact.  Evidence  is 
termed  direct,  which  applies  immediately  to 
the  fact  to  be  proved  without  any  intervening 
process,  as  distinguished  from  circunistaiitial, 
which  applies  immediately  to  collateral  facts 
supposed  to  have  a  connection,  near  or  remote, 
to  the  fact  in  controversy. 

It  is  that  evidence  which,  if  believed,  estab- 
hshes  the  truth  of  the  fact  in  issue,  and  does 
not  rise  from  any  presumption.  Evidence  is 
direct  and  positive  when  the  very  facts  in  dis- 
pute are  communicated  by  those  who  have  the 
actual  knowledge  of  them  by  means  of  their 
senses.P  In  one  sense  there  is  but  little  direct 
or  positive  proof,  or  such  proof  as  is  acquired 
by  means  of  one's  own  senses ;  all  other  evi- 
dence is  presumptive;  but  in  common  accepta- 
tion, direct  and  positive  evidence  is  that  which 
IS  communicated  by  one  who  has  actual  knowl- 
edge of  the  fact. 

DISCREDIT.  In  general  a  party  may 
discredit  a  witness  called  by  the  opposite  party 
who  testifies  against  him,  by  proving  that  his 

11-4  Kas.  124.  0-3  Greenl.  Ev.  gii.  p-i  Phill.  Ev. 
u6;  I  Stark.  Ev.  19.  q-i  Mood.  &  R.  414;  3  IJ.  &C. 
746.  r-2  Campb.  556  ;  2  Stark.  334  ;  i  Nev.  &  M.  34  ; 
4  B.  &  A.  193;  I  Phill.  Ev.  229  ;  Roscoe  Civ.  Ev.  06 
S-2  Salk.  658 ;  19  Johns.  49;  5  Taunt  707;  2  B.  &  Aid. 
301 ;  8  Miss.  428 ;  2  McLean  C.  C.  69 ;  i  Met.  Mass.  59  ; 
21  Pick.  486.  t-i  Stark.  Ev.  1757;  i  Greenl.  Ev.  \ 
469.  ii-i  Phill.  Ev.  242.  v-3  Mod.  141.  w-i  Ld.' 
Kaym  730;  B.  N.  P.  232.  x-5  M.  &  W.  109;  3  East. 
•^46  ;  7  Johns.  20  ;  1  Hen.  &  M.  449;  1  Dana,  434.  y- 
K,  for  example,  I  have  claimed  a  right  of  way  over 
lilackacre,  and  a  final  judgment  has  been  rendered 
agiinst  me,  and  I  afterwards  purchase  Blackacre,  this 
ftjX  (leciiion  khall  not  be  a  b«r  10  luy  recovery  wbeu  1 


character  is  such  as  not  to  entitle  him  to  credit 
or  confidence,  or  any  other  fact  which  shows 
he  is  not  entitled  to  belief.  It  is  clearly  set- 
tled, also,  that  the  party  voluntarily  calling  a 
witness,  cannot  afterwards  impeach  his  charac- 
ter for  truth  and  veracity .1  But  if  a  party  calls 
a  witness  who  turns  out  unfavorable  he  may 
call  another  to  prove  the  same  point.' 

See  Character,  above;  Witnesses,  Im- 
peachment of,  below. 

DISCREPANCY  is  material  where  there 
is  such  a  difference  between  a  thing  alleged 
and  a  thing  ofllered  in  evidence  as  to  shunr 
they  are  not  substantially  the  same  ;  as,  when 
the  plaintiff  in  his  declaration  for  a  malicious 
arrest  averred  that  "  the  plaintiff  in  that  action 
did  not  prosecute  his  said  suit,  but  therein 
made  default;  "  and  the  record  was  "  that  the 
plaintiff  obtained  a  rule  to  discontinue."  A 
discrepancy  is  immaterial  where  it  does  not 
materially  affect  the  cause,  as  where  a  declara- 
tion slated  that  a  deed  bore  the  date  in  a  cer- 
tain year  of  our  Lord,  and  the  deed  was  simply 
dated  "  March  30,  Ijoi."* 

Disinterested.    See  Witnesses,  below. 

Documents.  See  Public  Documents, 
below. 

Dying.    See  Declarations,  above. 

EFFECT  OF  EVIDENCE.  As  a 
general  rule,  a  judgment  rendered  by  a  court 
of  competent  jurisdiction  directly  upon  a  point 
in  issue,  is  a  bar  between  the  same  parties;" 
and  privies  in  blood,  as  an  heir'  or  privies  in 
Chelate,"  stand  in  the  same  situation  as  those 
whom  they  represent;  the  verdict  and  judg- 
ment may  be  used  for  or  against  them,  and  is 
conclusive.  But  in  order  to  constitute  this  bar, 
and  to  make  a  matter  res  judicata,  there  must 
be  a  concurrence  of  the  four  conditions  follow- 
ing :  I.  Identity  of  the  thing  sued  for  ;*  2. 
Identity  of  the  cause  of  action ;'  3.  Identity 
of  persons,  and  of  parties  to  the  action:  *  4. 
Identity  of  the  quality  in  the  persons  for  or 
against  whom  the  claim  is  made.* 

EXAMINATION  (Preliminary)  is  made 
concerning  a  criminal  offence,  of  the  grounds 
which  constitute  the  accusation  against  a  per- 
son arrested  on  a  criminal  charge  with  a  view 
of  discharging  the  person  so  arrested,  or  to 
secure  his  appearance  for  trial  by  the  proper 
court,  and  to  preserve  the  evidence  relating  to 
the  matter.  This  is  accomplished  by  bringing 
the  person  accused,  together  with  witnesses, 
before  the  magistrate  (usually  a  justice  of  the 
peace),  who  hears  the  case  for  the  puqKxses 
above  stated,  taking  down  in  writing  the  Cvi- 

sue  as  owner  of  the  land,  and  not  for  an  easement  «*• 
n,  which  1  claimed  as  a  right  appurtenant  to  my  laud 
Whiteacre.  6  Wheat.  109  ;  2  Gall.  C.  C.  216;  17  Mass. 
237  ;  2  Leigh.  474  ;  8  Conn.  268  ;  i  Nolt  &  M'C.  329; 
j6  S.  &  R.  282  ,  17  Id  319  ;  3  Pick.  429.  %-^  Cranch 
271 ;  I  Wheat  6  ;  14  S.  &  R.  435  ,  4  Mass.  441  ;  2  Yerg. 
10;  5  Me.  410;  SGratt.  68;  16  Mo.  168  ;  12  Ga.  271  ; 
21  Ala.  (N.  S.)  813  ;  4  Demo,  302  ;  23  Barb.  464.  This 
rule  is  a  necessary  consequence  to  the  rule  of  natural 
justice,  ne  inauditus  condtiiinetur.  n-For  example,  an 
action  by  Peter  to  recover  a  horse,  and  a  final  judgment 
against  him,  is  no  bar  to  an  action  by  Peter,  administra- 
tor of  Paul,  to  recover  the  same  horse.  5  Co.  xx,  i. ;  4 
T.  R.  490;  6Ma«n.  &G.  164;  4C.B.  884. 


44* 


EVIDENCE. 


dence  of  the  witnesses,  and  any  statements 
which  the  prisoner  may  see  fit  to  make.  If  no 
probable  cause  of  the  guilt  of  the  prisoner  ap- 
pears, he  is  discharged  from  arrest.  If  suffi- 
cient cause  of  suspicion  appears  to  warrant 
putting  him  on  trial,  he  is  committed,  or  re- 
quired to  give  bail  or  enter  into  a  recognizance 
to  appear  at  the  proper  time  for  trial.  The 
witnesses  are  also  frequently  required  to  recog- 
nize for  their  appearance,  though  in  ordinary 
'cases  only  their  personal  recognizance  is  re- 
quired. The  magistrate  certifies  the  minutes 
of  the  evidence  which  he  has  taken,  and  it  is 
.delivered  or  transmitted  to  the  court  before 
whom  the  trial  is  to  be  had.  See  Leading 
Questions,  and  Witnesses,  below. 

The  examination  should  be  taken  and  com- 
pleted as  soon  as  the  nature  of  the  case  will 
admit.'  The  prisoner  must  not  be  put  upon 
oath  (except  where  by  statute  he  is  competent 
to  testify,  and  then  only  when  he  voluntarily 
consents),  the  witnesses  must.''  The  prisoner 
has  no  right  to  the  assistance  of  an  attorney, 
but  the  privilege  is  granted  in  the  discretion 
of  the  magistrate."  The  magistrate's  return 
and  certificate  are  conclusive  evidence,  and 
exclude  parol  evidence  of  what  the  prisoner 
said  on  that  occasion  with  reference  to  the 
charge."*    See  Confessions,  above. 

Examination,  Cross.  See  Witnesses, 
below. 

Examination,  Direct.  See  Witnesses, 
below. 

Examination  in  Chief.  See  Witnesses, 
below. 

Examination,  Redirect.  See  Witnesses, 
below. 

EXAMINED  COPIES,  or  papers  which 
are  copies  of  records,  public  books  or  registers, 
which  have  been  compared  with  the  originals," 
are  admitted  in  evidence  because  of  the  pub- 
lic inconvenience  which  would  arise  if  such 
records,  public  books,  or  registers,  •were  re- 
moved from  place  to  place,  and  because  any 
fraud  or  mistake  made  in  the  examined  copy 
would  be  so  easily  delected.'  But  in  an  answer 
in  chancery  on  which  the  defendant  was  in- 
dicted for  perjury,  or  where  the  original  must 
be  produced  in  order  to  identify  the  parly  by 
proof  of  handwriting,  an  examined  copy  would 
not  be  evidence.* 

See  Copies,  above. 

Exemplification.  See  title,  Authenti- 
cation, ante. 

EXPERTS.  Those  who  are  skilled  by  ex- 
perience. Witnesses  who  are  admitted  to  testify 
on  account  of  their  peculiar  knowledge  of  some 
art  or  science  requisite  or  of  value  in  settling  the 
point  in  issue.  Such  persons  are  selected  by  the 
court  or  parties  in  a  cause,  on  account  of  their 

«-Cro.  Eliz.  820;  I  Hale  PI.  Cr.  385;  a  Id.  luo.  b- 
X  Phill.  Ev.  106.  c-»  Dowl.  &  R.  86;  i  B.  &  C.  37: 
Paley  Conv.  (Dowl.  Ed.)28.  d-2  C.  &  K.  223  ;  5  C. 
&P.  162;  7  Id.  267;  8  Id.  605;  iM.  &M.403;  I 
Hayw.  112.  e-i  Campb  469.  I'-i  Greenl.  Ev.  ?  91  :  1 
Starkie  Ev.  180-191.  fS-i  Mood.  &  R.  189.  Il-Mcrlin 
Repert.    i-Strickland  Ev.  40S.     J-Best  Ev.  I  i^iC.    k- 


knowledge  or  skill,  to  examine,  estimate,  and 

ascertain,  and  report  their  opinions.'  Persons 
professionally  acquainted  with  the  science  or 
practice  in  question.'  Persons  conversant  with 
the  subject-matter  or  questions  of  science,  skill, 
trade,  and  the  likel  are  thus  selected,  and  their 
opinions  received  in  evidence  upon  points  in 
issue. 

See  Opinions  ;  Witnesses,  below. 

EXTRACTS.  In  general  an  extract  is 
not  evidence,  because  the  -whole  of  the  writing 
may  explain  the  part  extracted,  so  as  to  give  it 
a  different  sense ;  but  sometimes  extracts  from 
public  books  are  evidence;  as  extracts  from 
the  registers  of  births,  marriages,  and  burials, 
kept  according  to  law,  when  the  whole  of  the 
matter  has  been  extracted  which  relates  to  the 
cause  or  matter  in  issue. 

EXTRINSIC  EVIDENCE  is  external 
evidence,  or  that  which  is  not  contained  in  the 
body  of  an  agreement,  contract,  and  the  like. 

It  is  a  general  rule  that  extrinsic  evidence  can- 
not be  admitted  to  contradict,  explain,  vary,  or 
change  the  terms  of  a  contract,  or  of  a  will,  except 
in  a  latent  ambiguity,  or  to  rebut  a  resulting  trust.* 

Eye-Witness.     See  Witnesses,  below. 

FACTS.  Fact  is  used  in  distinction  from 
law.  Thus  in  every  case  to  be  tried  there  are 
facts  to  be  shown  to  exist  to  which  the  law  is 
to  be  applied.  Material  facts  are  facts  essen- 
tial to  the  right  of  action  or  defence.  Material 
facts  must  be  shown  to  exist.  Immaterial  facts 
need  not.  The  existence  of  facts  is  generally 
determined  by  the  jury,  but  there  are  many 
facts  of  which  the  courts  take  cognizance.  See 
title.  Acts,  ante;  and  Judicial  Recognition; 
Presumption,  below. 

HANDWRITING.  When  it  is  neces- 
sary to  prove  that  a  certain  instrument  or  name 
is  in  the  handwriting  of  a  particular  person; 
this  is  done  either  by  the  testimony  of  a  wit- 
ness, who  saw  the  paper  or  signature  actually 
written,  or  by  one  who  has  by  sufficient  means 
acquired  such  a  knowledge  of  the  general 
character  of  the  handwriting  of  the  party  as 
will  enai)le  him  to  swear  to  his  belief  that  the 
handwriting  of  the  person  is  the  handwriting 
in  question.' 

The  mode  of  deducing  evidence  of  the 
authenticity  of  a  written  instrument  is,  by 
showing  the  likeness  of  the  handwriting  to  that 
of  another  instrument  proved  to  be  that  of  the 
party  whom  it  is  sought  to  establish  as  the 
author  of  the  instrument  in  question."  At 
common  law,  as  a  general  rule,  this  manner 
of  obtaining  evidence  was  not  allowed.  There 
were  exceptions  to  this  rule.  I.  Where  the 
writings  were  of  such  antiquity  that  living 
witnesses  could  not  be  procured,  but  were  not 
old   enough  to  prove  themselves."     2.  Where 

J4  Johns.  I ;  i  Day,  8 ;  6  Id.  270.  l-i  Phill.  Ev.  422  , 
Stark.  Ev.;  2  Johns.  Cas.  2t  i ;  5  Johns.  144  ;  19  Id- 
134;  1  Dall.  14.  2  Me.  33;  6S.  &R.  568;  1  N.  &  .M'C 
554  ;  2  Id.  400;  Anthon  N.  P.  77  ;  4  Cray,  167  ;  sCush 
295;  7  Com.  Dig.  447:  Bac.  Abr.  Ev.  (M.):  Dane 
Abr.  Index.  Ill-i  Greenl.  Ev.  g  578.  n-7  East  283, 
14  Id.  328;  Ry.  &  M.  143:  8  Weiid.  426. 


EVIDENCE. 


443 


other  writings  admitted  to  be  genuine  were 
already  in  the  case.* 

The  rule  on  the  subject  of  admitting  docu- 
ments irrelevant  to  the  matter  in  issue  for  the 
purpose  of  comparison  of  handwriting  is  not 
settled  uniformly. 

HEARSAY  is  the  evidence,  not  of  what 
the  witness  knows  himself,  but  of  what  he  has 
heard  from  others.  That  kind  of  evidence 
which  does  not  derive  its  value  solely  from  the 
credit  to  be  given  to  the  witness  himself,  but 
tests  also,  in  part,  on  the  veracity  and  compe- 
tency of  some  other  person.' 

Such  mere  recitals  or  assertions  cannot  be 
received  in  evidence,  for  many  reasons,  but 
principally  for  the  following : 

1.  That  the  party  making  such  declarations 
is  not  under  oath;  and, 

2.  Because  the  party  against  whom  it  oper- 
ates has  no  opportunity  of  cross-examination." 

The  general  rule  excluding  hearsay  evidence 
does  not  apply  to  those  declarations  to  which 
the  party  is  privy,  or  to  admissions  which  he 
himself  has  made. 

The  term  hearsay  evidence  applies  to  written 
as  well  as  oral  matter ;  but  the  writing  or  words 
are  not  necessarily  hearsay  because  those  of  a 
person  not  under  oath.  Thus:  information  on 
which  one  has  acted  ;°  conversation  of  a  person 
suspected  of  insanity;"  replies  to  inquiries ;P 
general  reputation  ;i  expressions  of  feeling ;' 
general  repute  in  the  family  in  questions  of 
pedigree;"  entries  made  by  third  persons  in 
the  discharge  of  official  duties;'  entries  in  a 
party's  shop-book,"  or  other  books  kept  in  the 
regular  course  of  business ;"  and  indorsements 
of  partial  payments*  are  admissible  as  original 
evidence  under  the  circumstances,  and  for  par- 
ticular purposes. 

As  a  general  rule,  hearsay  reports  of  a  tran- 
saction, whether  oral  or  written,  are  not  ad- 
missible in  evidence. *  The  rule  applies  to 
evidence  given  under  oath  in  a  cause  between 
other  litigating  parties.^" 

Matters  relating  to  public  interest,  as  for 
example,  a  claim  to  a  ferry  or  highway,  may  be 
proved  by  hearsay  testimony;*  but  the  matter 
in  controversy  must  be  of  public  interest;*  the 
declarations  must  be  those  of  persons  supposed 

K-i  Cr.  &  J.  47:  1  Mood.  &R.  133;  5  Ad.  &  E.  514; 
7  C.  &  P.  548,  595 :  2  Me.  33.  l-i  Phill.  Ev.  185.  Ill- 
Id.  11-2  B.  &  Ad.  845  ;  9  Johns.  45.  0-3  Hagg.  Eccl. 
574;  2  Ad.  &  E.  3;  7  Id.  331.  |»-i  Taunt.  364;  8 
Biiigh.  320;  9  Id.  359;  5  Mass.  444;  11  Wend.  110;  i 
Conn.  387;  29  Ga.  718.  q-2  Esp.  482  ;  3  Id.  236;  2 
Stark.  116;  2  Campb.  512  ;  33  Ala.  (N.  S.)  425.  r-8 
Bingh.  376 ;  8  Watts,  355  ;  4  M'Cord,  38  ;  18  Ohio,  99  ; 
7  Cush.  581 ;  I  Head,  373  ;  see  45  Me.  392.  s-13  Ves. 
Ch.  140-514 ;  3  Russ.  &  M.  147 ;  i  Cr.  M.  &  R.  919 ;  2 
C.  &  K.  701  ;  15  East.  29  ;  4  Rand.  607  ;  3  Dev.  &  B. 
91;  18  Johns.  37  ;  2  Conn.  347 ;  6Cal.  197;  4  N.  H. 
371 ;  17  Pet.  213;  I  How.  231  ;  see  28  Vt.  416 ;  see  ante 
Drclarations.  t-3  B.  &Ad.89o;  i  Bingh.  (N.  C.) 
654 :  3  Id.  408  ;  2  Young  &  C.  249  :  4  Q.  B.  132  ;  1  Cr. 
M.  &R.  347;  and  see  8  Wheat.  326  ;  15  Mass.  380;  6 
Cow.  162 ;  16  S.  &  R.  89 ;  4  Mart.  (N.  S.)  383  ;  6  Id. 
351;  i2Vt.  178;  15  Conn.  206.  M-8  Watts,  S44:  9  S. 
&  R.  28s;  6  W.  &S.  350;  4  Mass.  455;  13  Id.  427:2 
Pick.  65  ;  8  Met.  (Mass.)  269 ;  i  Nott.  &  McC.  186 ;  2 
M'Cord,  328 ;  4  Id.  76 ;  i  Halst.  95  ;  i  Iowa,  53 ;  8  Id. 
163;    I  Greeal.  Ev.  |j  ti9,  i2o^     V-7  C.  &  P.  729.    10 


to  be  dead,*  and  must  have  been  made  before 
the  controversy  arose.*  The  rule  extends  to 
deeds,  leases,  and  other  private  documents,^ 
maps,*  and  verdicts.'  Ancient  documents  pur- 
porting to  be  a  part  of  the  ret  gesla  are  also  ad- 
missible, although  the  parties  to  the  suit  are  not 
bound.* 

See  Declarations,  above. 

IDENTITY  of  the  things  in  question  must 
be  proved  in  larceny,  replevin,  and  trover.'' 
So,  too,  the  identity  of  articles  taken  or  injured 
must  be  proved  in  all  indictments  where  taking 
property  is  the  gist  of  the  offence,  and  in  ac- 
tions of  tort  for  damage  to  specific  property. 
Many  cases  occur  in  which  identity  must  b< 
proved  in  regard  to  either  persons  or  things, 
the  question  is  sometimes  one  of  great  practical 
difficulty,  as  in  case  of  the  death  of  strangers, 
reaiipearance  alter  long  absence,  and  the  like.* 

IMPEACHMENT  is  proof  that  a  witness 
who  has  been  examined  is  unworthy  of  belief. 
Every  witness  is  liable  to  be  impeached  as  to 
liis  character  for  truth ;  and,  if  his  general 
character  is  good,  he  is  presumed  at  all  times 
to  be  ready  to  support  it.J 

See  Witnesses,  below. 

Inadmissible  Evidence.  See  Parol  Evi- 
dence, below. 

Inconclusive  Evidence.  See  Presump- 
tions, below. 

IN  CHIEF.  Evidence  in  chief  should  be 
confined  to  such  matters  as  the  pleadings  and 
the  opening  warrants;  and  a  departure  from 
this  rule  will  be  sometimes  very  inconvenient, 
if  not  fatal.  Suppose,  for  example,  two  assaults 
have  been  committed,  one  in  January  and  one 
in  February,  and  the  plaintiff  prove  his  cause 
of  action  to  have  been  the  assault  in  January, 
he  cannot  abandon  that,  and  afterwards  prove 
another  committed  in  February,  unless  the 
pleadings  and  openings  extend  to  both.^  The 
object  of  this  is,  to  prevent  the  plaintiff  front 
introducing  in  evidence  a  different  case  fronr 
the  one  which  he  had  prepared  the  defendant 
to  expect  from  the  pleadings. 

Indicia.     See  Identity,  above. 

INDIRECT  EVIDENCE  is  that  which 
does  not  prove  the  fact  in  question  directly,  btit 

Ad.  &  E.  598  ;  3  Campb.  305 ;  8  Wheat.  320  :  15  Mass 
380;  20  Johns.  168;  2  Wend.  369,  513;  13  Conn.  206. 
w-2  Str.  827 ;  2  Campb.  371 ;  4  Pick,  no;  17  Johns. 
182;  2  M'Cord,  418.  x-5  Greenl.  Ev.  §  124  ;  9  Ind. 
572  ;  i6  N.  Y.  381  ;  5  Iowa,  532  ;  14  La.  An.  830  ;  6 
Wis.  63.  y-i  East.  373 ;  2  Id.  54 ;  3  T.  R.  77 :  7 
Cranch.  296.  z-i  Stark.  195;  6  M.  &  W.  234  ;  i  Maule 
&  S.  679;  I  Cr.  M.  &  R.  9-29;  19  Conn.  250.  a-7  B. 
&  Ad.  245  ;  4  Id.  273  ;  29  Barb.  593  ;  14  Md.  398;  6 
Jones,  459.  l»-ii  Price,  162;  i  Carr.  &  K.  58;  12  Vt. 
178.     C-13  Ves.  Ch.  514  ;  3  Campb.  444  ;  4  Id.  417.     U- 

5  Esp.  60 ;  10  B.  &  C.  17 :  I  M.  &  S.  77 :  4  Id.  486.  e- 
2  Moore  &  P.  625  ;  19  Conn.  250.  f-i  Elast.  355  ;  Carth. 
181;  9  Bingh.  465;  loAd.  &E.  151;  7  C.  &  P.  181. 
Sr-5  T.  R.  413,  n.  :  5  Price,  312  ;  4  Pick.  160  ;    see  2  C. 

6  P.  440:  3  Johns.  Cas.  283:  1  Harr.  &  J.  174;  4 
Denio,  201.  I1-4  Bl.  Comm.  396.  i-See  Ryan  Med. 
Jur.  301  ;  I  Beck.  Med.  Jur.  509  ;  i  Hall  Am.  L.  Jour. 
70 ;  6  C.  &  P.  677  ;  I  Cr.  &  M.  730  ;  i  Hagg.  Cons.  189 . 
Shelford  Marr.  &  Div.  226;  Best  Pres.  App.  Case  4, 
Wills  Circ.  Ev.  143,  et  seq.  j-3  Bouv.  Inst.  n.  3224,  ti 
seq.  k-i  Campb.  473 ;  see  also  6  C.  &  P.  73  ■  i  Mood 
&  R.  382. 


EVIDENCE. 


one  from  which  such  fact  may  be  presumed. 
It  is  inferential  evidence  as  to  the  Irulh  of  a 
disputed  fact,  not  by  testimony  of  any  witness 
to  the  fact,  but  by  collateral  circumstances 
ascertained  by  competent  means.' 

INFERENCES  are  conclusions  drawn 
from  premises  established  by  proof.  It  is  the 
province  of  the  judge  who  is  to  decide  upon 
facts  to  draw  the  inference.  When  the  facts 
are  submitted  to  the  court,  the  judge  or  judges 
draw  the  inference ;  when  they  are  to  be  ascer- 
tained by  a  jury,  it  is  their  duty  to  do  so. 
Witnesses  are  not,  as  a  general  rule,  permitted 
to  draw  an  inference  and  then  testify  such  in- 
ference to  the  court  or  jury;  it  is  their  duty  to 
state  the  facts  simply  as  they  occurred. 

Inferences  difler  from  presumptions. 

INSCRIPTIONS  upon  tombstones,  rings, 
and  the  like,  are  held  to  be  evidence  of  pedi- 
gree." 

See  Declarations;  Hearsay,  above. 

INTERPRETERS  may  be  sworn  to  tes- 
tify (and  make  translations)  whenever  neces- 
sary." They  should  be  sworn  before  they 
translate  the  testimony  of  witnesses."  A  person 
employed  between  an  attorney  and  client  to 
act  as  an  interpreter,  is  considered  merely  as 
an  organ  between  the;n,  and  cannot  be  com- 
pelled to  testify  as  to  what  he  has  acquired  in 
those  confidential  communications. p 

Interrogatc.<ies.     See  title  Equity,  ante. 

Irrelevant  Evidence  is  that  which  does 
not  support  the  issue,  and  which  may  therefore 
be  excluded. 

JUDGES  are  not  allowed  to  testify  to  what 
was  made  known  to  them,  or  took  place  before 
them  in  the  hearing  of  causes. "•  They  are  not 
competent  witnesses  in  a  cause  being  tried  be- 
fore them,  for,  among  other  reasons,  they  can 
hardly  be  deemed  capable  of  impartially  decid- 
ing upon  the  admissibility  of  their  own  testi- 
mony, or  weighing  it  against  that  of  another.' 

Judges'  Notes — which  usually  contain  a 
statement  of  the  testimony  of  witnesses,  of 
documents  offered  or  admitted  in  evidence,  or 
offers  of  evidence  and  whether  it  was  received 
or  rejected,  and  like  matters — are  not  evidence 
of  what  transpired  at  a  former  trial,  nor  can 
they  be  read  to  prove  what  a  deceased  witness 
swore  to  on  such  former  trial ;  for  they  are  no 
part  of  the  record,  and  he  is  not  officially 
bound  to  make  them.  But  in  chancery,  when 
a  new  trial  is  ordered  of  an  issue  sent  out  of 
chancery  to  a  court  of  law,  and  also,  perhaps, 
where  witnesses  in  a  former  trial  are  of  an  ad- 
vanced age,  an  order  may  be  made  that,  in 
event  of  death  or  inability  to  attend,  their  testi- 
mony be  read  from  judges'  notes." 

JUDICIAL  NOTICE  OR  RECOG- 
NITION. There  are  divers  things  of  which 
courts  take  judicial  notice,  without  the  intro- 
duction of  proof  by  the  parties;  such  as  the 

l-i  Starkie  Ev.  15;  Wills  Circ.  Ev.  34,    Best  Ev.  21, 

»a,§27,  note;    i  Greenl.   Ev.  §  13.     ni-£uller   N.    P 


233;    I  Cowp.  591:   10  F.ast.  120;    13  Ves.  Ch.  145.     II- 

'  "      19;  2  C  ' 
W.      p-i  Pet.  C.  C.  356;    4  Muiif.  273;    3  Wend.  337. 


Wright 


l^owp.  501  ; 
,  157:  4  Ma 


S  III.  219;  2  Caines.  iss. 


territorial  extent  of  their  jurisdiction,  local  di- 
visions of  their  own  countries,  seats  of  justice, 
courts  of  general  jurisdiction,  their  judges,  their 
seals,  their  rules  and  maxims  in  the  adminis- 
tration of  justice,  their  course  of  proceeding, 
public  acts,  laws,  etc.  If  the  judge  or  justice 
needs  information  on  subjects,  he  will  seek  it 
from  such  sources  as  he  deems  authentic* 

All  courts,  tribunals,  and  officers,  shall  take 
notice  of  the  official  signature  of  any  officer  of 
the  State,  of  the  United  States,  or  of  any  Stat«( 
or  Territory  in  the  United  States."  ' 

The  several  courts  of  the  Commonwealth 
take  judicial  notice  of  all  acts  and  resolutions 
of  the  General  Assembly.^ 

Although  a  private  act  may  not  be  read  in 
evidence,  yet  if  it  manifestly  appear  that  it  was 
relied  on  in  the  court  below,  the  court  of  ap- 
peals will  take  judicial  notice  of  it.' 

LAWS.  The  existence  and  the  tenor  or 
effect  of  all  foreign  laws,  beyond  the  limits  of 
the  United  States,  may  be  proved  by  the  parol 
evidence  of  persons  learned  in  those  laws. 
But  if  it  appear  that  the  law  in  question  is 
contained  in  a  written  statute,  the  court  may 
reject  such  parol  evidence,  unless  it  be  accom- 
panied by  a  copy  of  the  statute. 

The  printed  laws  of  the  United  States,  or  of 
any  State  or  Territory,  which  hav2  been  or 
shall  be  received  in  the  secretary's  (or  other 
authorized)  office  of  this  Slate,  and  wiiich  has 
been  printed  under  the  authority  of  the  United 
States,  of  such  State  or  Territory,  or  a  copy 
thereof,  when  duly  certified  by  the  secretary 
of  such  State,  may  be  admitted  and  received 
as  evidence  of  such  laws. 

Any  printed  volume  or  pamphlet  of  laws  of 
any  State  or  Territory,  showing  on  its  face  that 
it  was  published  by  authority  cf  such  State  or 
Territory,  1%  prima  facie  evidence  of  the  laws 
contained  therein. 

Every  act  of  the  legisl.iture  of  any  one  of  the 
States  or  Territories  of  the  United  States,  certi- 
fied by  the  secretary,  and  having  the  seal  of  the 
State  or  Territory  affixed  thereto,  is  deemed 
authentic,  and  receives  full  faith  and  credit 
when  offered  in  evidence  in  any  cou't. 

The  unwritten  or  common  law  of  any  other 
Stale,  Territory  (or  foreign  government),  may 
be  proved  as  facts  by  parol  evidence. 

The  books  of  reports  of  cases  adjudged  in 
their  courts  will  also  be  admitted  in  evidence 
of  such  law. 

Elementary  works  on  law  are  not  admissible 
in  evidence  as  to  what  the  law  is.* 

Courts  are  not  to  take  notice,  exofficio,  of 
the  laws  of  other  States.  When  a  question  de. 
pends  on  the  laws  of  a  sister  State,  such  laws 
are  a  part  of  the  evidence  in  the  case,  and,  like 
any  other  fact,  must  be  proved  by  him  who 
holds  the  affirmative.' 

<l-i  Greenl   Ev.  ?  149.     r-2  Martin  (N.  S.)  312 ;    »  Cat. 

3S8:  see  Com.  Dig.  Courts  IV.  4):  Bac.  Abr.  Courtt 
fB.):  1  Kent  Comm.  291 ;  Story  Const.  »-i  Greenl. 
Ev.  I  166.  f -See  1  Greenl.  Ev.c.  a.  ii-Sce  Si  ATirtiis. 
V-IJ.  W-17  B.  Mou  47.  X-15  C.  &  P.  73;  a  C.  &  K. 
270.    y-i3  0bio,zo9 


EVIDENCE. 


44S 


Copies  or  any  Act,  Law,  or  Resolution 
contained  in  the  printed  statute-books  of  the 
States  and  Territories  of  the  United  States, 
purporting  to  be  printed  by  authority,  and 
which  are  now,  or  may  be  hereafter,  deposited 
in  the  office  of  the  secretary  of  any  State,  and 
required  by  law  to  be  kept  there,  certified  under 
the  hand  and  seal  of  office  of  such  secretary, 
may  be  admitted  as  evidence. 

Printed  Copies  OF  THE  Ordinances,  Reso- 
lutions, Rules,  Orders,  and  Bv-i.aws  of 
any  city  or  incorporated  town,  published  by 
authority  of  such  city  or  incorporated  town,  and 
manuscript  copies  of  the  same,  certified  under 
the  hand  of  the  proper  officer,  and  having  the 
corporate  seal  of  such  city  or  town  affixed 
thereto,  may  be  received  as  evidence. 

Leading  Cases.  See  title  Authorities, 
ante. 

LEADING  QUESTIONS,  or  questions 
which  put  into  the  witness's  mouth  the  words 
to  be  echoed  b«ck,  or  suggest  the  answers 
which  the  party  wishes  to  get  from  him,*  can- 
not, in  general,  be  put  to  a  witness  in  his  ex- 
amination in  chief.'  But  in  an  examination  in 
chief,  questions  may  be  put  to  lead  the  mind  of 
the  witness  to  the  subject  of  inquiry,  and  they 
are  allowed  when  it  appears  the  witness  wishes 
to  conceal  the  truth,  or  to  favor  the  opposite 
party,  or  where,  from  the  nature  of  the  case, 
the  mind  of  the  witness  cannot  be  directed  to 
the  subject  of  inquiry  without  a  particular 
specification  of  such  subject.* 

In  cross-examination,  the  examiner  has  gen- 
erally the  right  to  put  leading  questions.* 

See  Witnesses,  below. 

LOST  PAPERS.  When  agreements, 
contracts,  deeds,  wills,  and  the  like  have  been 
lost,  and  it  is  desired  to  prove  their  contents, 
the  party  must  prove  that  he  has  made  diligent 
search,  and  in  good  faith  exhausted  all  sources 
of  information  accessible  to  him.  For  this  pur- 
pose his  own  affidavit  is  sufficient.*  On  being 
satisfied  of  this,  the  court  will  allow  secondary 
evidence  to  be  given  of  their  contents. 

See  title  Affidavits,  ante. 

Manifest  See  Conclusive  Evidence, 
above. 

MEDICAL  EVIDENCE  is  that  given 
by  physicans  and  surgeons  in  their  professional 
capacity.  The  evidence  of  a  medical  witness 
s  strictly  that  of  an  expert.*  A  professional 
witness  should  not  be  permitted  to  make  up  an 
opinion  to  be  given  in  evidence  from  what 
other  witnesses  say  of  the  facts  in  the  case, 
because  he  would  thus  take  the  place  of  the 
jury  as  to  the  credibility  of  the  witness,  and 
also  determine  what  part  of  the  testimony  of 
other  witnesses  applies  to  the  case,  a  duty  that 
belongs  to  the  court.  "  If  the  symptoms  and 
indications  testified  to  by  other  witnesses  are 

X-jS.  &  R.  171  ;  4  Wend.  247.  »-3  Binn.  130;  6Td. 
4&3  ;  I  Phil!.  Ev.  221 ;  1  Stark.  Ev.  123.  X-i  Camph. 
43;  I  Stark  100  b-i  Stark.  Ev.  132;  3  Chitty  I'r. 
Sot ;  Rose.  Civ.  Ev.  94  :  3  Bouv.  Inst.  n.  laoi,  -5204. 
C-i  Atk.  Ch.  446 :  1  Creenl.  Ev.  ?  340.  d-F.lwell  M:i!p. 
it  Med.  Ev.  375;    10  How.  Pr.  389;    3  Couii.  J14;    i 


proved,  and  if  the  jury  are  satisfied  of  the 
truth  of  them,  the  question  is,  whether  in  his 
(the  witness's)  opinion,  the  party  w.ns  insane, 
and  what  is  tne  nature  and  character  of  that 
insanity,  and  what  did  they  indicate,  and 
what  would  he  (the  witness)  expect  would  be 
the  condition  of  such  a  person  in  any  supposed 
circumstance."*  Under  this  rule  the  medical 
witness  passes  upon  the  condition  of  the  person 
whose  condition  is  at  issue.  To  do  it  correctly 
he  must  hear  all  the  evidence  that  the  jury 
hears ;  he  must  judge  as  to  the  relevance  of 
the  evidence  of  others ;  he  must  make  an 
application  of  the  facts  that  legally  bear  upon 
tlie  case  to  it,  and  reject  all  others :  in  short, 
he  is  judge  and  jury  in  the  case. 

It  is  not  the  province  of  the  expert  to  draw 
inferences  of  fact  from  the  evidence,  but  sim- 
ply to  disclose  his  opinion  on  a  known  or  hypo- 
thetical state  of  facts.  For  this  purpose  the 
counsel  on  each  side  put  to  the  physicians  such 
states  of  fact  as  they  deem  warranted  by  the 
evidence,  and  take  their  opinions  thereon.  If 
any  of  these  states  of  fact  are  considered  proved, 
then  the  opinions  are  admissible  to  be  weighed 
by  the  jury,  otherwise  their  opinions  are  not 
applicable  to  the  case.'  The  attention  of  the 
witness  being  called  to  a  definite  stale  of  facts, 
constituting  a  hypothetical  case,  his  opinion  is 
then  unembarrassed  by  any  collateral  questions 
or  considerations,  and  the  jury,  under  the  in- 
structions of  the  court,  determines  how  far  the 
facts  sustain  the  hypothetical  case,  and,  conse- 
quently, how  far  the  opinion  of  the  witness 
applies  to  the  case  under  investigation.* 

A  medical  witness  is  not  a  privileged  wit- 
ness (unless  so  made  by  statute),  for  where  the 
ends  of  justice  absolutely  require  a  disclosure, 
a  medical  witness  is  not  only  bound,  but  may 
be  compelled,  to  give  evidence  on  all  matters 
that  will  enlighten  the  case.  If  a  medical 
man  was  to  voluntarily  reveal  these  secrets,  to 
be  sure  he  would  be  guilty  of  a  breach  of 
honor  and  of  great  indiscretion;  but  to  give 
that  information  which,  by  the  law  of  the  land, 
he  is  bound  to  do,  will  never  be  imputed  to 
him  any  indiscretion  whatever. 

Medical  books  are  not  received  in  evidence. 
They  are  subject  to  the  same  rule  that  applies 
to  scientific  and  other  professional  books. 
Even  the  elementary  works  on  law  are  not 
admissible  in  evidence  as  to  what  the  law  is.^ 
Facts  or  opinions  on  the  subject  of  insanity,  as 
on  any  other  subject,  cannot  be  laid  down 
before  the  jury  except  by  the  testimony  under 
oath  of  persons  skilled  in  such  matters. 
Whether  stated  in  the  language  of  the  court  or 
of  the  counsel  in  a  former  case,  or  cited  from 
books  of  legal  or  medical  writers,  they  are  still 
statements  of  facts,  and  must  be  proved  on 
oath,  etc.* 

Chand.  178;  a  Ohio,  452  ;  27N.  H.  157;  i7Wend.ijfl: 
4  Denio,  311  ;  7  Ciish.  219;  1  Phill.  Ev.  780;  Smith  L. 
e'as.  <S7  Met.  Mass.  505.  f-i  Curtis  C.  C.  U.  S.  »«. 
MrGlue  :  10  Clark  &  F.  Ho.  Lds.  210.  |f-Scc  ElweU 
Malp.  &  Med.  Ev.  3ti.  h-sC.  &P.  73:  2  O.  &  K, 
270.     t-6  C.  &  P.  $86 ;  ElweU  Malp.  &  Med.  £v.  33a. 


446 


EVIDENCE. 


Natural  Presumptions.  See  Presump- 
tive Evidence,  below, 

NEWLY-DISCOVERED  EVI- 
DENCE will  afford  ground  for  a  new  trial ; 
but  courts  only  interfere  with  verdicts  for  this 
cause  under  very  special  circumstances.  To 
entitle  the  party  to  relief,  certain  well-defined 
conditions  are  indispensable.  It  is  a  rule  sub- 
ject to  rare  exceptions,  and  applied  perhaps 
with  more  stringency  in  criminal  than  in  civil 
cases,  that  the  sole  object  of  the  new  evidence 
must  be  to  impeach  or  contradict  witnesses 
sworn  on  a  former  trial.'  It  must  not  merely 
multiply  testimony  to  any  one  or  more  facts 
already  investigated,  but  must  bring  to  light 
some  new  and  independent  truth  of  a  different 
character;!  it  must  be  a  point  before  in  issue, 
and  be  so  material  as  to  impress  the  court  wiih 
the  belief  that  if  a  new  trial  were  granted,  tlie 
result  would  probably  be  different ;''  it  must  not 
have  been  known  to  the  party  until  after  the  trial  ' 
and  the  least  fault  in  not  procuring  and  using 
it  at  the  trial  must  not  be  imputable  to  him." 

OATHS.  An  oath  is  an  outward  pledge 
given  by  the  person  taking  it,  that  his  attesta- 
tion, or  promise,  is  made  under  an  immediate 
sense  of  his  responsibility  to  God.°  Before 
testifying,  the  witness  is  sworn  to  testify  to  the 
ti-uth,  the  whole  truth,  and  nothing  but  the 
truth.  The  mode  of  administering  the  oath 
must  be  such  as  may  be  most  consistent  with, 
and  binding  on  the  conscience  of  the  witness. 
It  may  be  varied  to  conform  to  the  religious 
belief  of  the  individual,  so  as  to  make  it  bind- 
ing on  his  conscience.*  The  form  of  adminis- 
tering the  oath  in  ordinary  cases  is  substantially 
that  of  the  old  Scotch  covenanters,  omitting 
the  ceremony  of  having  the  Bible  open  before 
the  witness.  The  Gospels  are  not  now  gener- 
ally used.P  The  witness  stands  with  head  un- 
covered, and  right  hand  uplifted. 

A  Jew  is  sworn  on  the  Pentateuch,  or  Old 
Testament,  with  bis  head  covered  ;i  a  Ma- 
hometan on  the  Koran;'  a  Gentoo,  by  touching 
with  his  hand  the  foot  of  a  Brahmin,  or  priest 
of  his  religion;  a  Brahmin,  by  touching  the 
hand  of  another  such  priest  ;•  a  Chinaman,  by 
breaking  a  china  saucer;'  Christians  are  sworn 
with  their  hats  off,  Jews  with  their  hats  on." 

The  witness  may  be  asked  before  he  is 
sworn,  whether  he  considers  the  oath  he  is 
about  to  take  as  obligatory  upon  his  conscience." 

1-7  Barb.  271;  8  Gratt.  637.  J-3  Woodb.  &  M.  318; 
X  Sumn.  C.  C.  451 ;  6  Pick.  14  ;  10  Id.  16 ;  2  Caines, 
129;  8  Johns.  84;  15  Id.  210;  4  Wend.  579  ;  7  W.  &  S. 
4>5  ;  5  Ohio,  375  ;  11  Id.  147;  4  Halst.  228  ;  i  Green, 
177;  3  Vt.  72;  A.  K.  Mariih,  151;  3  Id.  104.  k-Diidl. 
85 ;  3  Humphr.  322.  I-3  Story  C.  C.  i ;  2  Sumn.  C.  C. 
19  ;  2  N.  H.  i66.  in-6  Johns.  Ch.  482  ;  i  Blackf.  367  ; 
S  Halst.  250;  7  Id.  225;  1  Mo.  49:  II  Conn.  15;  10 
Me.  218;  20  Id.  246;  i4Vt.  415;  7  Met.  Mass.  748 ;  3 
Graham  &  W.  NewTr.  1015-1112.  n-Tyler  Oaths,  15. 
It  is  "  a  solemn  invocation  of  the  vengeance  of  the  Deity 
npon  the  witness  if  he  do  not  declare  the  whole  truth,  so 
far  at  he  knows  it."  i  Starkie  Ev.  122.  "A  religious 
asseveration  by  which  a  person  renounces  the  mercy,  and 
imprecates  the  vengeance  of  heaven  if  he  does  not  speak 
the  truth."  2  Leach  Cr.  Gas.  482.  "A  religious  act  by 
which  the  party  invokes  God  not  only  to  witness  the 
truth  and  lincerity  of  hit  promise,  but  also  to  avenge  his 


Though  a  witness  be  an  atheist,  or  does  not 
express  what  manner  of  Oiith  is  most  binding 
upon  his  conscience,  yet  if  the  court  administer 
an  oath  to  him  he  is  bound  by  that  oath ;  for 
all  oaths  and  affirmations  alike  subject  the 
party  who  falsifies  them  to  the  pains  and  pen- 
alties of  perjury. 

In  general,  the  word  "oath"  includes  "af- 
firmation;" and  the  word  "swear"  includes 
"affirm." 

Onus  Probandi.     See  Proof,  etc.,  below.  , 

OPINIONS  are  inferences  or  conclusions' 
drawn  by  a  witness  as  distinguished  from  facts 
known  to  him  as  facts. 

It  is  the  province  of  the  jury  to  draw  infer- 
ences and  conclusions;  and  if  witnesses  were 
in  general  allowed  to  testify  what  they  judge  as 
well  as  what  they  know,  the  verdict  would 
sometimes  prove,  not  the  decision  of  the  jury, 
but  that  of  the  witnesses.  Hence  the  rule 
that,  in  general,  the  witness  cannot  be  asked 
his  opinion  upon  a  particular  question.' 

Some  confusion  in  the  application  of  this 
rule  arises  from  the  delicacy  of  the  line  which 
divides  that  which  is  to  be  regarded  as  matter 
of  observation  from  that  which  is  matter  of 
judgment  founded  upon  observation.  Thus, 
an  unprofessional  witness  may  testify  to  the 
fact  that  a  person  whom  he  saw  was  intoxicated, 
whether  he  is  able  to  state  all  the  constituent 
facts  which  amount  to  drunkenness  or  not.J 
But,  on  the  other  hand,  insanity  or  mental  in- 
capacity cannot,  in  general,  be  proved  by  the 
mere  assertion  of  an  unprofessional  witness.* 
So,  handwriting  may  be  proved  by  being  recog- 
nized by  a  witness  who  has  seen  other  writings 
of  the  party  in  the  usual  course  of  business,  or 
who  has  seen  him  write.'  But,  on  the  other 
hand,  the  authorship  of  an  anonymous  article 
in  a  newspaper  cannot  be  proved  by  one  pro- 
fessing to  have  a  knowledge  of  the  author's 
style." 

From  necessity,  an  exception  to  this  rule  of 
excluding  opinions  is  made  in  questions  involv- 
ing matter  of  science,  art,  or  trade,  where  skill 
and  knowledge  possessed  by  a  witness,  peculiar 
to  the  subject,  give  a  value  to  his  opinion  above 
that  of  any  inference  which  the  jury  could 
draw  from  facts  which  he  might  state."  Such 
a  witness  is  termed  an  expert;  and  he  may 
give  his  opinion  in  evidence, 

imposture  or  violated  faith,  or,  in  other  words,  to  punish 
his  perjury,  if  he  shall  be  guilty  of  it."  loToullier,  pp. 
343-348.  Puffendorf,  i  4,  f  2,  2  4.  0-6  Mass.  262;  16 
Pick.  154  ;  2  Gall.  C.  C.  246 ;  3  Park.  Cr.  Cas.  590  ;  2 
Hawks.  (N.  Ca.)  458;  7  111.  540;  Ry.  &  M.  77.  pi 
Leach  Cr.  Cas.  412,  498 ;  Comp.  390.  All  oaths  muNt 
be  administered  by  laying  the  right  hand  upon  the  Holy 
Bible,  or  by  the  uplifted  right  band.  «|-Strange,  821, 
II 13.  r-i  Leach  Cr.  Cas.  54.  s-Wils.  349.  t-i  Carr. 
&  M.  248.  uB.  N.  P.  292  ;  I  Leach,  412  ;  Cowp.  382  ; 
Peake,  155.  V-2B.  &B.  284;  i  Greenl.  ?  371.  l--2g 
N.  H.Q4;  16  111.  513;  18  Ga.  19^,  573;  2  Wend.  560; 
24  Id.  668;  aN.  v.  514;  9  Id.  371  ;  17  Id.  340.  j-14 
N.  Y.  562;  26  Ala.  (N.  S.)26.  k-i?  N.  Y.  340;  7 
Barb.  314;  i3Texas,568;  and  see  2s  Ala.  (N.  S.)2i. 
1-Pcake  N.  P.  21  ;  i  Esp.  15,  351 ;  a  Johns.  Cas.  211  ; 
19  Johns.  134.  m-How.  App.  Cas.  187,202.  n-4  Hill, 
129  ;  I  Denio,  ati ;  3  111.  297;  a  N.  H.  483;  t  Story  C. 

C.    421. 


EVIDENCE. 


44; 


The  unwritten  of  common  law  of  foreign 
countries  may  be  proved  by  the  opinion  of  wit- 
nesses possessing  professional  knowledge.*  So 
the  degree  of  hazard  of  property  insured 
against  fire;P  handwriting;'  mechanical  opera- 
tions, the  proper  way  of  conducting  a  particular 
manufacture,  and  the  effect  of  a  certain 
method ;'  negligence  of  a  navigator,  and  its 
effect  in  producing  a  collision;*  sanity;*  impo- 
tency  ;•  value  of  chattels  f  value  of  land  ;* 
value  of  services ;'  benefit  to  real  property  by 
laying  out  a  street  adjacent  thereto;'  survey 
marks  identified  as  being  those  made  by  United 
States  surveyors  ;*  and  sea-worthiness.' 

Such  opinions  are  taken  with  the  qualifica- 
tions necessary  to  make,  as  far  as  possible,  the 
judgment  of  the  jury,  and  not  that  of  the  wit- 
ness, the  final  means  of  determining  the  issue. 
Thus  opinions  of  experts  are  not  admissible 
upon  the  question  of  damages ;''  and  experts 
are  always  confined  to  opinions  within  the  scope 
of  their  professions,  and  are  not  allowed  to  give 
opinions  on  things  of  which  the  jufy  can  as 
well  judge."  A  distinction  is  always  observed 
between  a  feeble  impression  and  i  mere  opinion 
or  belief.* 

Oral  Testimony  is  spoken  testimony — used 
hi  contradistinction  to  written.  It  is  delivered 
by  a  witness  verbally  by  word  of  mouth.  See 
Parol  Evidence,  below. 

ORIGINALS  are  single  or  duplicate. 
Single  when  there  is  but  one,  duplicate  when 
there  are  two.  In  the  case  of  printed  docu- 
ments all  the  impressions  are  originals,  or  in 
the  nature  of  duplicate  originals,  and  any  copy 
will  be  primary  evidence." 

When  an  original  document  is  not  evidence 
at  common  law  and  a  copy  of  such  original  is 
made  evidence  by  an  act  of  the  legislature,  the 
original  is  not,  therefore,  made  admissible 
evidence  by  implication.' 

See  Copies,  above. 

PAROL  EVIDENCE  is  that  verbally 
delivered  by  the  witness,  by  the  living  voice, 
by  word  of  mouth.  Parol  evidence  is  inad- 
missible to  contradict  a  written  instrument.  As 
to  the  cases  in  which  such  evidence  will  not  be 
received  or  rejected.* 

PERPETUATING  testimony  is  a  prac- 
tice whose  origin  may  be  traced  to  the  canon 
law.**  Statutes  exist  in  most  States  for  this 
purpose.  Equity  also  furnishes  means,  to  a 
limited  extent,  for  this  same  purpose. 

POSITIVE    EVIDENCE   is    distin- 

O-Story  Confl.  L.  530;  i  Cranch.  12,  38  ;  2  Id.  236  ; 
6  Pet.  763;  Pet.  C.  C.  225;  a  Wash.  C.  C.  i,  175 ;  a 
Wend.  4H  ;  5  Id-  375  :  3  Pick.  293 ;  4  Conn.  517 ;  6  Id. 
486  ;  4  Bibb.  73  :  a  Marsh.  609;  5  Harr.  &  J.  j86;  i 
Johns.  385 ;  3  Id.  105  ;  14  Mass.  455  ;  6  Conn.  508 ;  i 
Vt.  336 ;  15  S.  &  R.  87  ;  I  La.  153 :  3  Id.  53  ;  6  Cranch. 
274;  see  also  14  S.  &  R.  137;  3N.  H.  349;  3  Yeates, 
527  ;  I  Wheeler  Cr.  Cas.  205  ;  6  Rand.  704  ;  a  Kuss. 
Cr.  623;  4  Campb.  15s;  Russ.  &  R.  456;  a  Esp.  58;  3 
Phill.  449;  I  Eccl.  391.  p-i7  Barb,  iii ;  2  Zabr.  843. 
q-3SMe.  78;  aR.  I.  319;  asN.  H.  87;  i  Jones,  94, 
150  ;  13  B.  Mon.  258.  r-4  Barb.  614 ;  19  Id.  338 ;  3  N. 
Y.  32a.  s-24  Ala.  (N.  S.)  21.  t-i  Add.  244 ;  12  N.  Y. 
358;  17  Id.  J40.  a-i  Phill.  Eccl.  14.  v-22  Ala.  (N. 
S.)37d;  iiCush.  257:  aa  Barb.  652,656;  23  Wend.  354. 
W-ii  Cush.  aoi ;  4  Gray,  607  ;  9  N.  Y.  183  ;  compare  4 

29 


guished  from  circnmstantial  evidence.  It  is 
that  which,  if  believed,  establishes  the  truth  or 
falsehood  of  the  fact  in  issue,  and  does  not 
arise  from  any  presumption. 

Presumptions.  See  Presumptive  Evi- 
dence, belnw, 

PRESUMPTIVE  EVIDENCE  is  any 
evidence  which  is  not  direct  and  positive.' 
That  which  shows  the  existence  of  one  fact  by 
proof  of  the  existence  of  another,  or  others, 
from  which  the  first  may  be  inferred;  because 
the  fact  or  facts  shown  have  a  legitimate  ten-^ 
dency  to  lead  the  mind  to  the  conclusion  that" 
the  fact  exists  which  is  sought  to  be  proved. 

Conclusive  presumptions  are  inferences 
which  the  law  makes  so  peremptorily  that  it 
will  not  allow  them  to  be  overturned  by  any 
proof,  however  strong.J  They  are  called,  also, 
absolute  and  irrebuttable  jjresumptions. 

Inconclusive  or  disputable  presump- 
tions are  inferences  of  law  which  hold  good 
until  they  are  invalidated  by  proof  of  a  stronger 
presumption.''  They  are  called,  also,  incon- 
clusive presumptions.  Presumptive  evidence 
consists  of  presumptions  of  law  and  presump- 
tions of  fact. 

Presumptions  of  fact  are  not  the  subject 
of  fixed  rules,  but  are  merely  natural  presump-. 
tions,  such  as  appear,  from  common  experience, 
to  arise  from  the  particular  circumstances  of 
any  case.  Some  of  these  are  "  founded  upon 
the  knowledge  of  the  human  character,  and 
of  the  motives,  passions,  and  feelings  by  which 
the  mind  is  usually  influenced."'  They  are 
the  conclusions  drawn  by  the  mind  from  the 
natural  connection  of  the  circumstances  dis- 
closed in  each  case,  or,  in  other  words,  from 
circumstantial  evidence. 

Circumstantial  evidence  is  sometimes  used 
as  synonymous  with  presumptive  evidence; 
but  presumptive  evidence  is  not  necessarily, . 
and  in  all  cases,  what  is  usually  understood  by 
circumstantial  evidence.  The  latter  is  not  the 
evidence  which  tends  to  prove  a  disputed  fact 
by  proof  of  other  facts  which  have  a  legitimate 
tendency  from  the  laws  of  nature,  the  usual 
connection  of  things,  the  ordinary  transactiouf 
of  business,  etc.,  to  lead  the  mind  to  a  concliw 
sion  that  the  fact  exists  which  is  sought  to  be 
established.™  Presumptive  evidence  may 
sometimes  be  the  result,  to  some  extent,  of  an 
arbitrary  rule — as  in  the  case  of  the  presump- 
tion of  death,  after  an  absence  of  seven  years 
without  being  heard  from — derived  by  analogy 

Ohio  St.  583.  X-15  Barb.  550  ;  20  Id.  387.  y-a  Gray, 
107.  z-24  Ala.  (N.  S.)3Qo.  »-Peake's  Cas.  25  :  10 
Bingh.  57,  and  see  9  Cush.  226.  1^-4  Denio,  311  ,  3 
Hill,  609  ;  21  Barb.  331  :  23  Wend.  425  ;  2  N.  Y.  574  ,  i 
E.  D.  Smith,  536.  C-5  Rog-  Rec.  26;  4  Wend.  320;  14 
Ma.  398;  3  Dana,  382  ;  i  Penn.  161  ;  a  Halst.  244  ;  7 
Vt.  161 ;  6  Rand.  704  ;  4  Yeates,  262  ;  9  Conn.  102  ;  3 
N.  H.  349  ;  s  Harr.  &  J.  438  ;  1  Uenio,  281.  d-3  Ohio 
St.  406  ;  19  Wend.  477.  e-2  Stark.  130;  but  see  14  S. 
&  R.  200;  2  Bouv.  Inst.  n.  aooi.  f-2  Campb.  lat,  n. 
|r-See  Starkic  Ev.  Pt.  4,  PI.  99S-1055  ;  1  Phill.  Ev.  466, 
Ch.  io,Ji;  Sugd  Vend. 97.  Ii-Bocicner,  n.  4  ;  8Touil- 
lier,  n.  aa.  i-i  Stark.  Ev.  3d  Ed  558.  J-Best,  Pre- 
sumption, 20.  k-Best,  Presunipt.  29  ;  2  Harr.  &  McH. 
77  ;  4  Johns.  Cb.  287.  l-ijtark.  Ev.  27.  lJU-Sc«  x 
Stark.  Kv.  478. 


44& 


EVIDENCE. 


from  certain  statutes,  The  Jurists  and  the  jury 
draw  conclusions  from  circumstantial  evidence, 
and  find  one  fact  from  the  existence  of  other 
facts  shown  to  them,  some  of  the  presumptions 
being  so  clear  and  certain  that  they  have  be- 
come fixed  as  rules  of  law,  and  others  having 
greater  or  less  weight,  according  to  the  cir- 
cumstances of  the  case,  leaving  the  matter  of 
fact  inquired  about  in  doubt  until  the  proper 
tribunal  to  determine  the  question  draws  the 
conclusion. 

In  giving  effect  to  presumptions  of  fact,  the 
presumption  stands  until  proof  is  given  of  the 
contrary."  This  contrary  proof  may  be  a  con- 
flicting presumption.  In  such  cases  the  fol- 
lowing rules  apply :  I.  Special  presumptions 
take  the  place  of  general  ones;"  2.  Pre- 
sximptions  derived  from  the  ordinary  course 
of  nature  are  stronger  than  casual  presump- 
tions;? 3.  Presumptions  are  favored  which 
tend  to  give  validity  to  act3;<>  4.  The  presump- 
tion of  innocence  is  favored  in  law.' 

Conclusive  presumptions  are  estoppels ;»  sol- 
emn admissions  of  parties ;  and  unsolemn  ad- 
missions which  have  been  acted  on.*  So,  also, 
that  an  officer's  return  is  correct  as  to  facts 
stated  therein  as  between  the  parties ;°  that  an 
infant  imder  the  age  of  seven  years  is  incapable 
of  committmg  a  felony;^  that  a  boy  under 
fourteen  is  incapable  of  committing  a  rape  ;* 
that  the  issue  of  a  wife  with  whom  her  hus- 
band cohabits  is  legitimate,  though  her  infi- 
delity be  proved  \^  that  all  persons  subject  to 
any  law  which  has  been  duly  promulgated,  or 
which  derives  its  validity  from  general  or  im- 
memorial custom,  are  acquainted  with  its  pro- 
visions.y 

Rebutiahle  presumptions  are  presumptions 
thcU  a  man  is  innocent  of  the  commission  of  a 
crime  ;*  that  the  possessor  of  property  is  its 
owner  ;*  that  possession  of  fruits  of  crime  is 
guilty  possession  ;•>  that  things  usually  done  in 
the  course  of  trade  have  been  done;"  that 
solemn  instruments  are  duly  executed  ;•*  that  a 
person,  relation,  or  state  of  things  once  shown 
to  exist  continues  to  exist,  as  life,*  a  partner- 
ship,' insanity;*  that  official  acts  have  been 
properly  performed  ' 

Presumptions  of  law  are  rules  which,  in 

n-i  Ct.  M.  &R.  895:  a  Harj\  &McH.  77:  2  Dall. 
tj  ;  4  Johns  Ch  287;  Fee,  "  Burden  of  Proof."  O- 
See  8  B  &  C  737  ;  9  Id.  643  ;  5  Taunt.  326 ;  1  Marsh. 
68.  |»-i  Carr.  &  K.  134:  4  B  &  C.  71  ;  Co.  Litt.  37?. 
a  q-Leach  Cr.  Cas.  412;  5  Esp.  230;  i  Man.  &  R. 
668:  3Campb.  432;  2B.  &C  814;  7  Id  573;  2  Wheat. 
70  ;  I  South.  148 ;  3  Monr.  S4 :  7  Id.  344  ;  2  Gill  &  J.  114  , 
10  Pick  359;  1  Rawie,  386.  r-4  C  &  P.  116;  Riiss. 
&  R.  Cr.  Cas.  61 ;  10  M.  &  W.  115.  »-See  Practice; 
Ettoppeli.  t-i  Campb.  139;  i  Taunt.  398 ;  2  T.  R. 
275;  15  Mass.  82;  sec  i  Greenl  Ev.  §205;  see,  also, 
AuMissiONs  11-15  Mass  82.  v-4  Bl.  Comm.  23  w- 
7C.  &P.  582;  8  Id.  736;  old  J 18  x-iCarr&P. 
215;  I  Sim  &  S.  J53;  5  Clark  &  F.  Ho.  L  163 ;  2 
Allen,  453;  3  Id  151.  y-4  Bl  Comm  27;  1  Co  177, 
2  Id.  3  <'".  ;  6  Id  54  a  »-2  Lew.  Cr.  Cas  227;  see  3 
Gray,  465;  19  Bost.  L  R  615;  3^  East  192,  to  Id. 
»ii:  4  B.  &C.  247;  5  Id  758:  aB  &Ald  385.  a-i 
Str.  50s  ;  9  Cush.  150;  21  Barb  333;  35  Me,  139,  150. 
b-2  C.  &  P.  359;  7  Id  551  ;  Russ  &  K.  308  ;  1  Den. 
C.  R.  Cas  596;  3  Dev.  &  B.  122;  7  Vt  122:  6  Conn. 
527;  X9  Me  39S.    c-i  Stark  325;   1  Mann  &G.  46;  8 


certain  cases,  either  forbid  or  dispense  wit^ 
any  ulterior  inquiry,'  inferences  or  position* 
established,  for  the  most  part,  by  the  common, 
but  occasionally  by  the  statute  law,  which  are 
obligatory  alike  on  judges  and  juries.^  They 
are  adopted  from  motives  of  public  policy,  and 
are  those  which  arise  in  certain  cases  by  force 
of  the  rules  of  law,  directing  an  inference  to 
be  drawn  from  proof  of  the  existence  of  a  par- 
ticular fact  or  facts.  They  are  conclusive  or 
inconclusive. 

Conclusive  presumptions  are  those  which 
admit  of  no  averment  or  proof  to  the  contrary. 
Thus,  the  records  of  a  court,  except  in  some 
proceedings  to  amend  them,  are  conclusive 
evidence  of  the  matter  there  recorded,  being 
presumed  to  be  rightly  made  up. 

Inconclusive  or  disputable  presumptions  of 
law  are  those  where  a  fact  is  presumed  to 
exist,  either  from  the  general  experience  of 
mankind,  or  from  policy,  or  from  proof  of  the 
existence  of  certain  other  facts,  until  some- 
thing is  offered  to  show  the  contrary.  Thus, 
the  law  presumes  a  man  to  be  sane  until  the 
contrary  appears,  and  to  be  innocent  of  the 
commission  of  a  crime  until  he  is  proved  to  be 
guilty.  So,  the  existence  of  a  person,  or  of  q 
particular  state  of  things,  being  shown,  the  law 
presumes  the  person  or  state  of  things  to  con. 
tinue  until  something  is  offered  to  conflict  with 
that  presumption." 

PRIMA  FACIE  EVIDENCE  is  that 
which  appears  to  be  sufficient  proof  respecting 
the  matter  in  question,  until  something  appears 
to  controvert  it;  but  which  may  be  contradicted 
or  controlled.  Prima  facie  evidence  of  fact 
is,  in  law,  sufficient  to  establish  the  fact  unless 
rebutted.'  For  example,  when  buildings  are 
fired  by  sparks  emitted  (^rom  a  locomotive  en- 
gine passing  along  the  road,  it  is  prima  facie 
evidence  of  negligence  on  the  part  of  those 
who  have  the  charge  of  it.™ 

The  holder  of  a  bill  of  exchange,  or  note 
indorsed  in  blank,  \%  prima  facie  the  owner. 

PRIMARY  EVIDENCE  is  the  best 
evidence,  or  that  proof  which  most  certainly 
exhibits  the  true  state  of  facts  to  which  it  relates. 

The  non-production  of  the  best  evidence, 
when  it  can  be  had,  creates  a  presumption  that, 

C.  B.  827;  7  Q.  B.  846;   7  Wend.  198  ;    9  Id.  J23;  9  S. 

6  R.  385;  9  N.  H.  519;  10  Mass.  205  :  19  Pick.  112  ;  7 
Gill,  34;  45  Me.  516, 550;  IS  Conn.  206.  d-i  Rob.  Eccl. 
10:  9  C.  &  P.  570;  15  Me.  470;  I  Met.  (Mas.s.)  349;  15 
Conn.  206.  e-2  RoUe,  461  ;  2  East.  313 ;  i  Pet.  453 ;  3 
McLean  C.  C.  390;  see  2  Campb.  113;  14  Sim.  Ch.  38, 
277;  2  Phil.  Ch  199;  2  M.  &  W.  894  :  19  Pick.  112;  i 
Met!  (Mass.)  104 ;  i  Ga.  538  ;  11  N.  H,  191 ;  4  Whart 
15°.  173  ;    23  Penn.  St.  114;    36Me.i76:    i3lred.333; 

7  Texas,  178;  i  Penning  167;  see  Death,  f-i  Starlc. 
405.  g;-3  Brown  Ch.  443 ;  3  Met.  (Mass.)  164  ;  4  Id. 
545;  39N.  H.163;  4  Wash.  C.  C.  263  ;  5  Johns.  144; 
I  Pet.  C.  C.  163;  2  Va.  Cas.  132;  4  M'Cord,  189.  h-i 
J.  J.  Marsh,  447;  14  Johns.  182;  19^.345;  3  N.  H. 
3T0  ;  3  Gill  &  J.  359;  12  Wheat.  70;  7  Conn.  350.  it 
Greenl.  Ev.  ?  14.  J- Best,  Presumpt.  17.  k-See  Best, 
Presumpt.  Ch.  ii,  and  Medical  Law;  Death  1-6 Pet. 
622,652;  14  Id  334;  see  generally  ;  7  J.  J.  Marsh,  425, • 
3  N.  H.  484;  7  Ala.  267;  5  Rand.  701 ;  i  Pick.  332  :  c 
South.  77;  I  Yeates,  347;  3  Nott.  &  M'C.  320;  i.Mo. 
334;  II  Conn. 95;  2Root,2S6;  ifl  Johns.  66,  136:  i 
Bail.  174 ;  2  A.  K.  Marsh,  344.     IU-3  C.  B.  229. 


EVIDENCE. 


44? 


if  produced,  it  might  opernte  against  the  party 
who  declines  to  produce  it.' 

The  rule  excludes  only  that  evidence  which 
itself  indicates  the  existence  of  more  original 
source  of  information. 

The  law  requires  this,  and  rejects  secondary 
or  inferior  evidence  when  it  is  attempted  to  be 
substituted  for  evidence  of  a  higher  or  superior 
nature ;  for  example,  when  a  written  contract 
has  been  entered  into,  and  the  object  is  to 
prove  what  it  was,  it  is  requisite  to  produce  the 
original  writing  if  it  is  to  be  attained;  and,  in 
that  case,  no  copy  or  other  inferior  evidence 
»i'ill  be  received.  This  is  a  rule  of  policy 
grounded  on  a  reasonable  suspicion  that  the 
substitution  of  inferior  for  better  evidence  arises 
from  sinister  motives;  and  an  apprehension 
that  the  best  evidence,  if  produced,  would  alter 
the  case  to  the  prejudice  of  the  party.  This 
rule  relates,  not  to  the  measure  and  quantity 
of  evidence,  but  to  its  quality  when  compared 
with  some  other  evidence  of  sujjenor  degree. 

Oral  evidence  cannot  be  substituted 
for:i 

1.  Any  instrument  which  the  law  requires  to 
be  in  writing;  such  as  records,  public  docu- 
ments, official  examinations,  deeds  of  convey- 
ance of  lands,  wills,  other  than  nuncupative, 
promises  to  pay  the  debt  of  another,  and  other 
writings  mentioned  in  the  statute  of  frauds. 

2.  Any  contract  which  the  parties  have  put 
in  writing.  Here  the  written  instrument  may 
be  regarded,  in  some  measure,  as  the  ultimate 
fact  to  be  proved.  Thus,  where  in  a  suit  for 
the  price  of  labor  performed,  it  appears  that 
the  work  was  commenced  under  an  agreement 
in  writing,  the  agreement  must  be  produced. 

3.  Any  writing,  the  existence  of  which  is 
disputed,  and  which  is  material  either  to  the 
issue  between  the  parties,  or  to  the  credit  of 
witnesses,  and  is  not  merely  a  memorandum 
of  some  other  fact. 

The  fact  that  in  such  cases  the  writing  is  in 
the  possession  of  the  adverse  party  does  not 
change  its  character;  it  is,  still  the  })rimary 
evidence  of  the  contract ;  and  its  absence  must 
be  accounted  for  by  notice  to  the  other  party  to 
produce  it,  before  secondary  evidence  of  its 
contents  can  be  received.'' 

Exceptions.  The  contents  of  any  record  of 
a  judicial  court,  and  of  entries  in  any  other 
public  books  or  registers,  may  be  proved  by  an 
examined  copy.  This  exception  extends  to  all 
records  and  entries  of  a  public  nature,  in  books 
required  by  law  to  be  kept,  and  is  admitted, 
because  of  the  inconvenience  to  the  public 
which  the  removal  of  such  documents  might 
occasion,  especially  if  they  were  wanted  in  two 
places  at  the  same  time ;  and  also,  because  of 
the  public  character  of  the  facts  which  they 

1-4  BlacUf.  241 ;  i  Id.  228.    j-i  Greenl   Ev.  ?g  82,  85- 

88.  li-"  I  h.ive  alwayx,"  saidLordTenterdeii,  "  acted 
almost  strictly  011  ihe  rule,  that  what  is  in  writing  shall 
only  be  proved  by  the  writing  itself.  My  experience 
taught  me  the  extreme  danper  of  relying  on  the  recollec- 
tion of  witnesses,  however  honest,  as  to  the  contents  of 
writtcD  instruments ;  they  may  be  »o  easily  nustakeu. 


contain,  and  the  consequent  facility  of  detec- 
tion of  any  fraud  or  error  in  the  copy.' 

For  the  same  reasons,  and  for  the  .stroi  i» 
presumption  arising  from  the  undisturbed  exti 
cise  of  a  public  office,  that  the  appointment  i- 
valid,  it  IS  not  in  general  necessary  to  prove 
the  written  appointments  of  officers.  All  who 
have  acted  as  such  are  presumed  to  have  been 
duly  appointed  to  the  office,  until  the  contrary 
appears."" 

Where  the  evidence  is  the  result  of  volumi- 
nous facts,  or  the  inspection  of  many  books  and 
papers,  the  examination  of  which  could  not 
conveniently  take  place  in  court,  a  witness  who 
hab  inspected  the  accounts  of  parties,  may  tes- 
tify to  the  general  balance  without  producing 
the  accounts;"  so,  also,  inscriptions  on  walls 
and  fixed  tables,  mural  monuments,  grave- 
stones, surveyors'  marks  on  boundary  trees, 
etc." 

The  verbal  admission  of  the  contents  of  a 
writing,  by  the  party  himself,  if  against  his  in- 
terest, will  supersede  the  necessity  of  proving 
it." 

As  it  refers  to  the  quality  rather  than  the 
quantity  of  evidence,  it  is  evident  that  this 
fullest  proof  that  every  case  admits  of  is  not 
requisite;  if,  therefore,  there  are  several  eye. 
witnesses  to  a  fact,  it  may  be  sufficiAmly  proved 
by  one  only. 

It  is  not  always  requisite  when  the  matter  to 
be  proved  has  been  reduced  to  writing,  that 
the  writing  should  be  produced ;  as,  if  the 
narrative  of  a  fact  to  be  proved  has  been  com. 
mitted  to  writing,  it  may  be  proved  by  parol 
evidence.  A  receipt  for  the  payment  of  money, 
for  example,  wili  not  exclude  parol  evidence 
of  payment." 

where  a  document  is  not  itself  evidence  at 
common  law,  and  a  copy  of  it  is  made  evidence 
by  statute,  the  copy  alone  is  evidence,  and  not 
the  original. P 

PROOF  OF  ISSUE. 

CONFINI.NG  THE  EVIDENCE  TO  THE  TOINT 
IN  Issue.  It  is  a  general  rule,  both  in  civil 
and  criminal  cases,  that  the  evidence  viuit  be 
confined  to  the  point  in  issue.  Justice  and  con- 
venience require  the  observance  of  this  rule, 
particularly  in  criminal  cases;  for,  when  a 
prisoner  is  charged  with  an  offence,  it  is  of  the 
utmost  importance  to  him  that  the  facts  laid  be- 
fore the  court  or  jury  should  consist  exclusively 
of  the  transaction  which  forms  the  subject  oi 
the  complaint,  information,  or  indictment 
against  him,  and  which  alone  he  has  come  pre- 
pared to  answer.i  To  this  general  rule  there 
are  several  exceptions,  and  a  variety  of  cases 
which  do  not  fall  within  the  rule.  In  general, 
evidence  of  collateral  facts  is  not  admissible: 

th^t  I  think  the  pnrpoies  of  justice  require  the  strict  en- 
forcement of  the  rule  "  Id  B  &  B.  287.  I-i  Greenl. 
Ev.  ^Qi  iii-i  Greenl  Ev.  892;  Id  §8-):  1  Show 
MT.  Holt, 284:  I  Salk  281.  Carlh  220;  Fast  192;  B 
N.  P  295  ii-i  Greenl  Ev  J?  93-96  0-4  Esp  213. 
and  see  7  B  &  C  611  ,  i  Camp b  439  3  B.  &  A'd.  566. 
|»-2  Canipb  \2i  H  «i-i  Ku:5.  Cr.  £94:  i  PhiU.  Ev, 
166 


4S« 


EVIDENCE. 


but  where  such  a  fact  is  material  to  the  issue 
joined  between  the  parties  it  may  be  given  in 
evidence;  as,  for  example,  in  order  to  prove 
that  the  acceptor  of  a  bill  knew  the  payee  to 
be  a  fictitious  person,  or  that  the  drawer  has 
general  authority  from  him  to  fill  up  bills  with 
the  name  of  a  fictitious  payee,  evidence  may 
be  given  to  show  that  he  had  accepted  similar 
bills  before  they  could,  from  their  date,  have 
arrived  from  tlie  place  of  date/ 

When  special  damage  sustained  by  the  plain- 
tiff is  not  stated  in  the  plaintift's  complaint,  it 
is  not  one  of  the  points  in  issue,  and,  therefore, 
evidence  of  it  cannot  be  received ;  yet  a  dam- 
age which  is  a  necessary  result  from  the  de- 
fendant's breach  of  contract  may  be  proved, 
notwithstanding  it  is  not  alleged  in  such  com- 
plaint.* 

In  general,  evidence  of  the  character  of 
either  party  is  inadmissible;  yet  in  some  cases 
such  evidence  may  be  given.' 

When  evidence  incidentally  applies  to  another 
person  or  thing  not  included  in  the  transaction 
iu  question,  and  with  regard  to  whom  or  which 
it  is  inadmissible,  yet  if  it  bear  upon  the  point 
iu  issue  it  will  be  received.* 

Proving  the  Affirmative  of  the  Issue. 
The  affirmative  of  the  issue  must  be  proved. 
The  general  rule  with  regard  to  the  burden  of 
proving  the  issue  requires  that  the  party  who 
asserts  the  affirmative  should  prove  it;  but  this 
rule  ceases  to  operate  the  moment  the  pre- 
sumption of  the  law  is  thrown  in  the  other 
scale.  W^hen  the  issue  is  on  the  legitimacy  of 
a  child,  therefore,  it  is  incumbent  on  the  party 
asserting  the  illegitimacy  to  prove  it.i 

See  Burden  of  Proof,  above. 

Proving  the  Substance  of  the  Issue 
Joined.  The  substance  of  the  issue  joined  be- 
tween the  parties  must  be  proved y- 

In  Civil  Actions,     i.  It  is  a  fatal 

variance  in  a  contract  if  it  appear  that  a  plain- 
tiff who  ought  to  have  been  joined  has  been 
omitted.'  But  it  is  no  variance  to  omit  a  per- 
son who  might  have  been  joined  as  defendant ; 
because  the  non-joinder  may  be  remedied  by 
amendment.  2.  The  consideration  of  the  con- 
tract must  be  proved ;  but  it  is  not  necessary 
for  the  plaintiff  to  set  out  in  his  complaint,  or 
prove  on  the  trial,  the  several  parts  of  a  con- 
tract consisting  of  distinct  and  collateral  pro- 
visions ;  it  is  sufficient  to  state  so  much  of  the 
contract  as  contains  the  entire  consideration  of 
ihe  act,  and  the  entire  act  be  done  in  virtue  of 
such  consideration,  including  the  time,  manner, 
»nd  other  circumstances  of  its  performance." 

It  is  a  general  rule  of  evidence,  that  if  the 
substance  of  the  issue,  or  the  material  facts 
contested  by  the  pleadings,  be  established,  it  is 
sufficient. 

In  Criminal  Actions,  it  may  be  laid 

down  that  it  is,  in  general,  sufficient  to  prove 

f-»  H.  Bl.  88.  jf-i  Price,  19.  h-See  ante,  Charac- 
TBR.  1-8  Bingh.  376;  and  see  i  Phill.  Ev.  158:  1  East. 
PI.  Cr.  1035;  2  Leach  Cr.  Cas.  985;  4  Bos.  &  P.  92; 
Russ.  &  R.  Cr.  Cas.  376;  a  Yeates,  114;  9  Conn.  47. 
J-i  Sdw.  N.  P.  r^.    It-i  PhiU.  Ev.  190.      1-1  Saund. 


what  constitutes  an  offence.  It  is  enough  to 
prove  so  much  of  the  charge  as  shows  that  the 
defendant  has  committed  a  substantive  crime 
therein  specified." 

PRIVILEGED  COMMUNICA- 
TIONS. No  person  is  liable,  either  civilly  or 
criminally,  in  respect  to  anything  published  by 
him  as  a  member  of  a  legislative  body,  in  the 
course  of  his  legislative  duty.  Nor  in  respect 
to  anything  published  by  him  in  the  course  of 
a  judicial  proceeding.  This  privilege  extends 
not  only  to  parties,  counsel,  witnesses,  jurors, 
and  judges  in  a  judicial  proceeding,  but  also  to 
proceedings  in  legislative  bodies,  and  to  all  who, 
in  the  discharge  of  public  duty  or  the  honest 
pursuit  of  private  right,  are  compelled  to  take 
part  in  the  administration  of  justice  or  in  legis- 
lation. A  fair  report  of  any  judicial  proceed- 
ing or  inquiry  is  also  privileged.* 

PROBABILITY.  There  is  always  a 
strong  probability  that  a  man  of  good  moral 
character,  and  who  has  heretofore  been  upright 
and  truthful,  will,  when  examined  as  a  witness, 
under  oath,  tell  the  truth;  and,  on  the  con- 
trary, that  a  man  who  has  been  guilty  of  per- 
jury will  not,  under  the  same  circumstances, 
tell  the  truth ;  the  former  is,  therefore,  entitled 
to  credit,  the  latter  is  not. 

Proving  the  Issue.  See  Burden  of 
?ROOF;  Issue,  above. 

PUBLIC  DOCUMENTS.  Public  docu- 
ments purporting  to  be  edited  or  printed  by 
authority  of  Congress,  or  the  State  legislature, 
or  either  house  thereof,  are  evidence  to  the 
same  extent  that  authenticated  copies  of  the 
same  would  be. 

QUESTIONS  are  either  general  or  lead- 
ing. General  questions  are  those  which  re- 
quire the  witness  to  state  what  he  knows,  with- 
out any  suggestion  being  made  to  him ;  as, 
"  Who  gave  the  blow  ?  "  A  leading  question 
is  one  which  leads  the  mind  of  the  witness  to 
the  answer,  or  suggests  it  to  him ;  as,  "  Did  A. 
give  the  blow  ?  "  or  ♦'  Is  not  your  name  A.  ?  " 

REBUTTIN.G.  It  is  a  general  rule  that 
anything  may  be  given  as  rebutting  evidence 
which  is  a  direct  reply  to  that  produced  on  the 
other  side.P  and  the  proof  of  circumstances  may 
l)e  offered  to  rebut  the  most  positive  testimony .1 
But  there  are  several  rules  which  exclude  all 
rebutting  evidence.  A  party  cannot  impeach 
his  own  witness,  though  he  may  disprove,  by 
other  witnesses,  matters  to  which  he  has  testi- 
fied; nor  can  he  rebut  or  contradict  what  a 
witness  has  sworn  to  which  was  immaterial  to 
the  issue.'  Parties  and  powers  are  estopped 
from  contradicting  a  written  instrument  by 
parol  proof;  but  this  rule  does  not  apply  to 
strangei-s.»  But  the  parlies  may  prove  that  be. 
fore  breach  the  agreement  was  abandoned,  or 
annulled,  by  a  subsequent  agreement  not  ia 
writing.*     And  when  the  writing  was  made  by 

291,^,  «.  in-6  East.  568;  4  B.  &  Aid.  387  «-« 
Campb.  585;  1  Harr.  &  J.  427-  O-Heard  Libel  &  SI 
""  90,103,  110.     p-2  M'Cord,  161.    ^^1  Pet.  C.  C.  a«. 


r-i6  Pick.  153;   «  Bail.  118, 
U.  196 


q-i  r 
\  Johns. 


aa^.     t-4 . 


EVIDENCE. 


451 


another,  as  where  the  logbook  stated  a  deser- 
tion, the  party  affected  by  it  may  prove  that  the 
entry  was  false  or  made  by  mistake." 
RECORDS— COPIES  OF   RECORDS, 

Etc. 
Judicial  and  Public  Records  and  Tran- 
scripts. 

A  foreign  judgment  is  the  judgment  of  a 
foreign  tribunal.  The  various  States  of  the 
United  States  are  in  this  respect  considered  as 
foreign  to  each  other. 

Such  judgments  may  be  evidenced  by  exem- 
j>lifications  under  the  great  seal  of  the  State  or 
country  where  the  judgment  is  recorded,  or 
under  the  seal  of  the  court  where  the  judgment 
remains^  by  a  copy  proved  to  be  a  true  copy, 
or  by  the  certificate  of  an  officer  authorized  by 
law,  which  certificate  must  itself  be  properly 
authenticated."  The  acts  of  foreign  tribunals 
which  are  recognized  by  the  law  of  nations, 
such  as  courts  of  admiralty  and  the  like,  are 
sufficiently  authenticated  by  copies  under  seal 
of  the  tribunal,*  in  the  absence  of  a  statute  to 
the  contrary. 

The  records  and  judicial  proceedings  of  the 
courts  of  any  State  shall  be  proved  or  admitted 
in  any  other  court  within  the  United  States,  by 
the  attestation  of  the  clerk,  and  the  seal  of  the 
court  annexed,  if  there  be  a  seal,  together  with 
a  certificate  of  the  judge,  chief-justice,  or  pre- 
siding magistrate,  as  the  case  may  be,  lliat 
said  attestation  is  in  due  form;  and  the  said 
records  and  judicial  proceedings,  authenticated 
as  aforesaid,  shall  have  such  faith  and  credit 
given  to  them  in  every  court  within  the  United 
States,  as  they  have  by  law  or  usage  in  the 
courts  of  the  State  from  whence  the  said  records 
are  or  shall  be  taken.' 

All  records  and  exemplifications  of  office 
hooks,  which  are  or  may  be  kept  in  any  pub- 
lic office  of  any  State,  not  appertaining  to  a  court, 
shall  be  proved  or  admitted  in  any  court,  or 
office  in  any  other  State,  by  the  attestation  of 
the  keeper  of  the  said  records  or  books,  and 
the  seal  of  his  office  thereto  annexed,  if 
there  be  a  seal,  together  with  the  certificate  of 
the  presiding  justice  of  the  court  of  the  county 
or  district,  as  the  case  may  be,  in  which  such 
office  is  or  may  be  kept,  or  of  the  governor, 
the  secretary  of  state,  the  chancellor,  or  the 
keeper  of  the  great  seal  of  the  State,  that  the 
said  attestation  is  in  due  form,  and  by  the 
proper  officer ;  and  the  said  certificate,  if  given 
by  the  presiding  justice  of  the  court,  must  be 
further  authenticated  by  the  clerk  or  prothono- 
tary  of  the  said  court,  who  shall  certify,  under 
his  hand  and  the  seal  of  his  office,  that  the 
said  presiding  justice  is  duly  commissioned 
and  qualified ;  or  if  the  said  certificate  is  given 
by   the   governor,  the  secretary  of  state,  the 

a-4  Mason  C.  C.  S4i-     V-Gilb.  Ev.  26  ;  i  Greenl.  Ev. 

5501.  w-2  Cranch,  238  ;  5  W-  335  :  2  Gaines,  155  ;  7 
ohns.  514  ;  8  Mass.  273.  x  S  Granch,  335 ;  3  Conn. 
171.  y-Act  Congr.  May  ih,  1790  ;  U.  S.  Stat.  Vfl.  2, 
p.  298,  Act  Congr.  March  ^,  1804,  ?  i  ;  Brightly's  Dig. 
p.  265,  \  10.  as-Act  Congr.  March  27,  1804  ;  Id.  J  2  ; 
^{htly's  Dig.  p.  365,1  II.    •"*  GreenJ.  Ev.  J  506;  3 


chancellor,  or  keeper  of  the  great  seal,  it  shall 
Ije  under  the  great  seal  of  the  State  in  which 
said  certificate  is  n-.ade;  and  the  said  records 
and  exemplifications,  authenticated  as  afore- 
said, shall  have  such  faith  and  credit  given  to 
them  in  every  court  and  office  within  the 
United  States  as  they  have  by  law  or  usage  in 
the  courts  or  offices  of  the  Stale  from  whence 
the  same  are  or  shall  be  taken.* 

The  provisions  of  both  acts  extend  to  the 
records,  etc.,  of  the  Territories. 

If  the  court,  whose  record  is  certified,  has 
no  seal,  this  fact  should  appear,  either  in  the 
certificate  of  the  clerk  or  in  that  of  the  judge.' 

Re-examination.     See  Witnesses,  below. 

REFRESHING  MEMORY.  A  wit- 
ness has  a  right  to  examine  a  memorandum  or 
paper  which  he  made  in  relation  to  certain 
facts  when  the  same  occurred,  in  order  to 
refresh  his  memory ;  but  tlie  paper  or  memor- 
andum itself  is  not  evidence. *• 

REGISTERS.  Although  not  originally 
intended  for  the  purposes  of  evidence,  public 
registers  are  in  general  admissible  to  prove  the 
facts  to  which  they  relate.  Of  these  are  regis- 
ters of  births,  deaths  and  marriages,  etc. 

REPUTATION.  In  general,  reputation 
is  evidence  to  prove  a  person's  character  in 
society ;  a  pedigree."  Certain  prescriptive  or 
customary  rights  and  obligations;  and  matters 
of  public  notoriety.  But  as  such  evidence  is 
in  its  own  nature  very  weak,  it  must  be  sup- 
ported, when  it  relates  to  a  right  or  privilege, 
by  proof  of  acts  of  enjoyment  of  such  right  or 
privilege  within  the  period  of  living  memory.* 
Afterwards,  evidence  of  reputation  may  be 
given.  The  fact  must  be  of  a  public  nature; 
it  must  be  derived  from  persons  likely  to  know 
the  facts."  The  facts  must  be  general,  and 
not  particular;  they  must  be  free  from  sus- 
picion.' 

See  Character,  above ;  Witnesses,  below. 

RUMOR.  In  general,  rumor  cannot  be 
received  in  evidence;  but  when  the  question 
is  whether  such  rumor  existed,  and  not  its 
truth  or  falsehood,  then  evidence  of  it  may  be 
given. 

SECONDARY  EVIDENCE  is  that 
species  of  proof  which  is  admissible  when  the 
primary  evidence  cannot  be  produced,  and 
which  becomes  by  that  event  the  best  evidence.* 
But  before  such  evidence  can  be  allowed  it 
must  be  clearly  made  to  appear  that  the  supe- 
rior evidence  is  not  to  be  had.  The  person 
who  has  it  must  be  applied  to,  whether  he  be  a 
stranger  or  the  opposite  party;  in  case  of  a 
stranger,  a  subpoena  and  attachment,  when 
proper,  must  be  taken  out  and  served;  in  the 
case  of  a  party,  notice  to  produce  such  primary 

Martin,  497;  i  Hayw.  395.  l>-5  Wend.  301  ;  12  S.  ft 
R.  328;  6  Pick.  222;  I  A.  K.  Marsh,  188;  2  Conn. 
213;  I  Const.  336,  373.  C-14  Campb.  416;  4  T.  R. 
356;  iSim.  &S.  Ch.  153.  d-iM.  &S.  679:  5T.  R. 
32.  e-2  Bingh.  86;  9  B.  Mon.  88;  4  B.  &  Aid.  53.  f- 
I  Stark.  Ev.  54-65;  i  Phill.  Ev.  (4  Am.  Ed.)  248,  ?/ j*f . 
g--3  Bouv.  Inst.  n.  3055  ;  3  Yeates,  530;  tcf  HsAftSAY ' 
Dbclakation;  Coi'IBS, 


4S« 


EVIDENCE. 


evidence  must  be  proved  before  the  secondary 
evidence  will  be  admitted.'  After  proof  of  due 
execution  of  the  original,  the  contents  should 
be  proved  by  a  counterpart,  if  there  be  one,  for 
this  is  the  next  best  evidence ;  and  it  seems  that 
no  evidence  of  a  mere  copy  is  admissible  umil 
proof  has  been  given  that  a  counterpart  cannot 
be  produced.'  If  there  be  no  counterpart,  a 
copy  may  be  proved  in  evidence  by  any  witness 
who  knows  that  it  is  a  copy,  from  having  com- 
pared it  with  the  origir.al.J  But  there  are  no 
degrees  of  secondary  evidence ;  and  when  a 
party  has  laid  the  foundation  for  such  evidence 
he  may  pro^e  the  contents  of  a  deed  by  parol, 
although  it  appear  that  an  attested  copy  is  in 
existenccif  See  Declarations;  Lost  Pa- 
pers, above. 

Suggestions.  See  Leading  Questions; 
Questions,  above. 

TELEGRAMS.  Telegraphic  communi- 
cations must  be  proved  in  the  same  manner  as 
other  writings,  such  as  letters  and  contracts  are 
— that  is,  l-y  the  original.  If  that  is  lost,  it  may 
be  proved  by  copy,  or,  in  default  of  that  being 
obtainable,  by  oral  testimony.'  Sometimes  tb.e 
person  to  whom  it  is  addressed  is  in  the  office 
when  it  i?  received ;  in  such  case,  if  it  is  not 
reduced  to  writing,  it  can  only  be  proved,  like 
other  maUers  resting  in  parol,  by  the  recollec- 
tion of  the  witnesses  in  whose  hearing  it  was 
repeated." 

TESTS  are  those  things  by  which  to  ascer- 
tiin  the  truth  respecting  other  things."  A  paper 
may  be  submitted  to  a  jury  as  a  test  or  standard 
by  which  to  determine  the  genuineness  of  other 
Writings."  They  are  only  admissible  when  no 
<;ollateral  issue  can  be  raised  concerning  them.P 

THREATS.  When  a  confession  is  ob- 
tained from  a  person  accused  of  crime,  in  con- 
sequence of  a  threat,  evidence  of  such  a  con- 
fession cannot  be  received,  because,  being 
obtained  by  torture  or  fear,  it  comes  in  so 
questionable  a  shape  that  no  credit  ought  to  be 
given  to  it.i  This  is  the  general  princi]>le,  but 
what  amounts  to  a  threat  is  not  so  easily  defined. 
It  is  proper  to  observe,  however,  that  the  threat 
must  be  made  by  a  person  having  authority 
over  the  prisoner,  or  by  another  in  the  presence 
of  such  authorized  person  and  not  dissented 
from  by  the  latter.' 

BY  TRANSLATIONS.  Whenever  any 
written  evidence  in  a  cause  is  in  a  language 
other  than  the  English,  a  written  translation  of 
it  in  the  English  language,  made  by  a  compe- 
tent translator,  and  verified  by  his  affidavit, 
may  be  read  in  evidence  instead  of  the  original, 
if  such  original  be  competent  evidence. 

Truth.     See  Affirmation;  Oath, above. 

VIVA  VOCE.  It  is  said  a  witness  de- 
livers his  evidence  viva  voce  (with  living  voice) 

li-7  S.  &  R.  ii6;  4  Binn.  295,  «.  ;  6Td.  228,  478;  7 
East.  66 ;  8  Id.  278 :  3  B.  &  Aid.  296.  1-6  T.  R.  236. 
J-B.  N.  P.  254  ;  I  Keb.  117:6  Rinn.  234  ;  a  Taunt,  "^a ; 
I  Campb.  469  ;  8  Mass.  273.  k-6  C.  &  P.  208  ;  8  Id. 
389.  1-29  Vet.  127;  21  111.  591;  37N.Y.  457;  37  Mass. 
682.  111-29  ^'t-  '''7-  "-7  Penn.  St.  428  ;  6  Whart.  284. 
19--]  P?nn.  St.  428 ;  6  Whart.  28^.     p-See  i^  N.  V.  439; 


when  he  does  so  in  open  court;  the  term  h 
opi^osed  to  deposition ;  it  is  sometimes  opposed 
to  ballot;  as,  the  people  vote  by  a  written  or 
printed  ballot,  but  their  representatives  in  legis- 
lature vote  viva  7/oce. 

VOIRE  DIRE  is  a  preliminary  examina- 
tion of  a  witness  to  ascertain  whether  he  is 
competent;  as,  where  he  has  an  interest  in  the 
cause  of  action,  for  he  might  be  tempted  to 
perjure  himself  if  he  testified  when  interested. 

WEIGHT  OF  EVIDENCE.  In  civil 
causes  the  preponderance  or  weight  of  evidence 
determines  the  case  in  favor  of  the  party  pos- 
sessing it.  In  criminal  causes,  proof  beyond  a 
reasonable  doubt  is  required;  a  preponderance 
of  evidence  may  fall  far  short  of  proof,  and 
proof  may  be  of  a  much  lower  degree  than  proof 
beyond  such  a  doubt,  which  should  be  required 
to  warrant  the  conviction  of  the  accused. 

When  a  verdict  has  been  rendered  against 
the  weight  of  evidence  the  court  may,  on  this 
ground,  grant  a  new  trial ;  but  the  court  will 
e.xercise  this  power  not  merely  with  a  cautious 
but  a  strict  and  sure  judgment,  before  they  send 
the  case  to  a  second  jury.  The  general  rule, 
under  such  circumstances,  is,  that  the  verdict, 
once  found,  shall  stand ;  and  setting  aside  is 
the  exception.  A  new  trial  will  be  granted  on 
this  ground  to  either  party;  the  evidence,  how> 
ever,  is  not  to  be  weighed  in  golden  scales.^ 

WITNESSES. 

Testimony  is  the  statement  made  by  a  wit- 
ness under  oath  or  affirmation. 

A  witness  is  one  who  testifies  to  what  he 
knows.  One  who  testifies,  under  oath,  to  some- 
thing which  he  knows  at  first  hand.*  A  disin- 
terested witness  is  one  who  has  no  interest  in 
the  cause  or  matter  in  issue.  .  An  ear  witness 
is  one  who  attests  to  things  which  he  heard 
himself.  An  eye  witness  is  one  who  saw  the 
act  or  fact  to  which  he  testifies. 

The  principal  rules  relating  to  witnesses  are 
the  same  in  civil  and  in  criminal  cases,  and  the 
same  in  all  courts." 

The  testimony  of  witnesses  is  taken  in 
three  modes : 

1.  By  affidavits. 

2.  By  deposition. 

3.  By  oral  examination. 

Competency  of  Witnesses.  All  persons, 
of  whatever  nation,  may  be  witnesses.'  But  in 
saying  this  we  must,  of  course,  except  such  as 
are  excluded  by  the  very  definition  of  the  term, 
and  such  as  cannot  qualify  himself  by  taking 
an  oath.*  Therefore  all  who  cannot  under- 
stand the  nature  and  obligation  of  an  oath,  or 
whose  religious  belief  is  so  defective  as  to 
nullify  and  render  it  nugatory,  or  who  are 
otherwise  disqualified  by  statute,  or  otherwise 
are  excluded. 

I  Greenl.  Ev.  J581.     q-i  Leach  Cr.  Cas.  263.     r-8  C. 

6  P.  733.  S-3  Bingh.  N.  C.  109  ;  Gilp.  Dist.  Ct.  356; 
4  Yeates,  437;    3  Me.  276;    8  Pick.  122;    5  Wend.  595; 

7  Id.  380;  2  Va.  Cas.  235.  t-i  Greenl.  Ev.  J^  98,  328. 
n-3  Greenl.  Ev.  g2  249i  402:  2  Ves.  Ch.  41  ;  17  Mast. 
30^  ;  4  Monr.  20,  157:  2  Ohio,  16;  3  Id.  272.  \'-Bac 
Abr.  Ev.  (A)  Jfac.  f..  Dist.  Ev.     W-5  Mas.  C-  C-  ;?. 


EVIDENCE. 


453 


AtheitU.  Such  as  are  insensible  to  the  obli- 
gation of  an  oath,  from  defect  of  religious  senti- 
ment or  belief,  are  incompetent.  Atheists,  and 
persons  disbelieving  in  any  system  of  divine 
rewards  and  punishment,  are  of  this  class.  It 
is  reckoned  sufficient  qualification,  in  this  par- 
ticular, if  one  believe  in  a  God,  that  he  will 
reward  and  punish  us  according  to  our  deserts. 
It  is  enough  to  believe  that  such  punishment 
visits  us  in  this  world  only."  It  would  seem 
to  be  sufficient  to  believe  in  such  punishment 
as  for  peijury  only,  if,  indeed,  it  be  supposable 
that  a  man  might  believe  thus  much  without 
extending  his  faith  to  any  general  system  of 
rewards  and  punishments.*  The  oath  may  be 
administered  in  any  form  whatever,  and  with 
any  ceremonies  whatever,  that  will  bind  the 
conscience  of  the  witness.* 

Grand  jurors,  and  persons  present  before  a 
grand  jury,*  are  not  permitted  to  testify  to  the 
proceedings  had  before  that  body.' 

Husband  and  wife  are  excluded  from  giving 
testimony  for  or  against  each  other  when  either 
is  a  party  to  the  suit  or  interested. 

This  rule  is  founded  partly  on  their  identity 
of  interest,  and  partly,  perhaps  chiefly,  on  the 
policy  of  the  law  which  aims  to  protect  the 
confidence  between  man  and  wife  that  is  es- 
sential to  the  ties  of  the  marriage  relation, 
and,  through  that,  the  good  order  of  society. 
Whether  or  not  the  disability  may  be  removed 
by  consent  of  the  other  is  a  matter  of  dispute.* 
Some  exceptions  to  this  rule*  are  admitted  out 
of  necessity  for  the  protection  of  husband  and 
wife  against  each  other,  and  for  the  sake  of 
public  justice.** 

Idiots,  lunatics,  intoxicated  persons,  and 
generally  those  who  labor  under  such  privation 
or  imbecility  of  mind  that  they  cannot  under- 
stand the  nature  and  obligation  of  an  oath. 
The  competency  of  such  is  restored  with  the 
recovery  or  acquisition"  of  this  power.  And  so 
a.  lunatic  in  a  lucid  interval  may  testify.*  Per- 
sons deaf  and  dumb  from  their  birth  are  pre- 
sumed to  come  within  this  principle  of  exclu- 
sion until  the  contrary  be  shown.*  A  person  in 
a  state  of  intoxication  cannot  be  admitted  as  a 
witness.' 

Infants  so  young  as  to  be  unable  to  appreci- 
ate the  nature  and  binding  quality  of  an  oath 
are  incompetent.  A  child  under  the  age  of 
fourteen  is  presumed  to  be  incapable  until 
capacity  be  shown.  But  the  law  fixes  no  limit 
of  age  which  will  of  itself  exclude;  a  child 
five  years  old  has  been  admitted  to  testify.*     A 

O-i  Greenl.  Ev.  J  369;  5  Mas.  C.  C.  18:  14  Mass. 
184;  26  Penn.  St.  274  ;  i  Swanst.  44  ;  j6  Ohio,  121  ;  7 
Conn.  66.  T-See  Oath,  above,  wr-i  Greenl  Ev.  §  371 ; 
I  Atk.  Ch.  ai ;  Willcs,  538.  sc-i  Greenl.  Ev.  g  252.  y- 
l  Phill.  Ev.  177-184;  and  Cow.  &  H.  Notes,  »/,  154- 
m7.  x-i  Vcs.  Ch.  49  :  i  Wheat.  Cr.  Cas.  479  ;  4  T. 
R-.  679;  3  C.  &  P.  S58:  I  Greenl.  Ev.  \  340.  a-i 
Greenl.  Ev.  ?  343.  b-Bac.  Abr.  Ev.  (A) ;  \  Greenl. 
Ev.  ??  334-347:  I  Phill.  Ev  69-81 ;  C.  &  H.  Notes,  53- 
74;  Starlcic  Ev.  Pt.  4,  703-715;  i  Ves.  Ch.  49;  i  J.  & 
S.  563;  R.  &  M.  Cr.  Cas.  253.  c-10  Johns.  362  ;  28 
Conn.  177 ;  16  Vt.  474  :  7  Wheat.  453  :  2  Leach  Cr.  Cas. 

iSi.     d-i  Greenl.  Ev.  ?  365.      e-Id   \  366;    see  1  Leach 
Ir.  Ca».  455;    3  C.  &  P.  127;    8  Conn.  93;    14  Mas*. 


person  over  fourteen  years  of  age  is  presumed 
competent  to  testify. '' 

Interpreters.  A  person  employed  between 
an  attorney  and  client,  to  act  as  an  interpreter, 
is  considered  merely  as  an  organ  between  them, 
and  is  not  bound  to  testify  as  to  what  he  has 
acquired  in  those  confidential  communications.' 

Judges  are  not  allowed  to  testify  to  what  was 
made  known  to  them,  or  took  place  before 
them  in  the  hearing  of  causes.J 

Persons  in  possession  of  secrets  of  state,  or 
matters  the  disclosure  of  which  would  be  preju- 
dicial to  the  public  interest,  are  not  allowed  to 
testify  thereto.'' 

Parties  to  the  record  are  not  competent  wit- 
nesses for  themselves  or  their  co-shitors.  Nor 
are  they  compellable  to  testify  for  the  adverse 
party,  but  they  are  competent  to  do  so ;  although 
one  of  several  co-suitors  cannot  thus  become  a 
witness  for  the  adversary  without  the  consent 
of  his  associates.  Regard  is  had  not  merely  to 
the  nominal  party  to  the  record,  but  also  to  the 
real  party  in  interest;  the  former  will  not  be 
allowed  to  testify  for  the  adverse  side  without 
the  consent  of  the  latter.' 

By  the  statutes  of  many  States  all  parties  in 
interest  may,  subject  to  some  restrictions,  testify 
in  their  own  or  any  other  person's  behalf  in  any 
action  or  proceeding. 

A  party  to  a  suit  who  is  made  a  witness  by 
statute  is  to  become  such  under  the  same  requi- 
sitions and  restrictions  as  any  other  witness. 
He  must  be  of  sane  mind,  of  sound  memory, 
of  suitable  age,  willing  to  be  sworn,  and 
capable  of  taking  an  oath."  The  law  which 
renders  the  parties  to  a  suit  competent  and 
compellable  to  give  evidence  has  not  altered 
the  rule  of  law  which  requires  the  execution  of 
attested  instruments  to  be  proved  by  the  sub- 
scribing witness." 

When  a  party  to  the  action  is  made  a  witness 
by  his  adversary,  he  is  entitled  to  be  paid  wit- 
ness-fees, as  a  condition  to  creating  it  his  duty 
to  attend  and  be  sworn  as  one  who  is  not  a 
party  to  the  action." 

The  party  who  calls  his  adversary  as  a  witness 
thereby  represents  him  as  worthy  of  credit,  and 
cannot  afterward  impeach  him  by  showing  that 
either  his  general  character  for  truth  is  bad,  or 
that  he  has  made  previous  contradictory  state- 
ments.p  But  he  may  prove  a  fact  to  be  otherwise 
than  his  adversary  has  testified,i  and  he  may  do 
this  by  proving  admissions  of  such  adversary.' 
And  the  testimony  of  a  party  may  be  controverted 


207;  5  Blackf.  29s.  f-t5  S.  &  R.  235;  see  Ray.  Med. 
Jur.  c.  22,  ^?  100-311  :  16  Johns.  14-?.  CT-i  Greenl.  Ev. 
g  367 ;  I  Phill.  Ev.  with  Cowen  &  H.  Notes,  3d  Ed.  4  ; 
3  C  &  P.  598  ;  1  Mood.  Cr.  Cas.  86 ;  10  Mass.  22^  ;  16 
Johns.  143.  I1-20  Ind.  44.  i-i  Pet  C.  C.  356;  4  Munf. 
273;  3  Wend.  337.  J-i  Greenl.  Ev.  §249.  k-Id.  gj 
250-252  (A.)  1-See  1  Greenl.  Ev.  329-364.  in-13  Vt. 
370;  see  30  Barb.  338 ;  50  Id.  379  ;  471^1.419;  sMurph. 
L.  &  Eq.  314.  11-17  Jur.  5=9;  22  L.  Jour.  (N.  S.)  Ex. 
319 ;  19  E.  L.  &  E.  35J,  and  see  i  E.  D.  Smith,  153 ;  28 
Barb.  484;  21  Id.  158.  O-i  Bosw.  655;  7  Ab.  74:  x 
Rob.  607;  1  Bosw.  614;  aSandf.  669.  p-23  Barb.  444. 
q-Id.  ;  3  E.  D.  Smith,  275  ;  10  U.  Can.  Q.  B.  321 ;  3 
Code  R.  143.  r-23  Barb.  444;  3  E.  D.  Smith,  275;  10 
U.  Can.  Q.  B.  321 ;    %  Code  R.  14^. 


454 


EVIDENCE. 


or  impeached  in  the  same  manner  as  any  other 
witness.^ 

Defendants  cannot  testify  for  themselves  un- 
less allowed  by  statute.  But  where  a  material 
witness  for  the  defendant  is  indicted  jointly  with 
the  defendant,  and  no  evidence  is  given  against 
him,  he  will  be  acquitted  at  once,  and  may  be 
a  witness  for  the  other  defendant." 

Examination  of  Witnesses.  An  oral 
examination  is  an  examination  in  the  presence 
of  the  jury  or  tribunal  which  is  to  decide  the 
fact,  or  act  upon  it;  the  testimony  being  heard 
by  the  jury  or  tribunal  from  the  lips  of  the 
witness. 

Examinations  of  witnesses  are  had  viva  voce, 
by  questions  and  answers. 

On  motion,  in  civil  and  criminal  cases,  wit- 
nesses will  generally  be  excluded  from  the 
court  room  while  others  are  undergoing  exami- 
nation in  the  same  case;  this,  however,  is  not 
a  matter  of  right,  but  within  the  discretion  of 
the  court.' 

Witnesses  are  required  to  testify  from  their 
own  knowledge  and  recollection,  yet  they  are 
permitted  to  refresh  their  memory  by  reference, 
while  on  the  stand,  to  papers  written  at  or  very 
near  the  time  of  the  transaction  in  question — 
even  though  they  were  not  written  by  them- 
selves, and  though  the  writing  in  itself  would 
be  inadmissible  in  evidence.' 

Being  once  in  attendance,  a  witness  may,  in 
general,  be  compelled  to  answer  all  questions 
which  may  legally  be  put  to  him.*  Yet  there 
are  exceptions  to  this  rule.  He  is  not  com- 
pellable where  the  answer  would  have  a  ten- 
dency to  expose  him  to  a  penal  liability,  or  any 
kind  of  punishment,  or  to  a  criminal  charge.* 
But  the  court  decides  as  to  the  tendency  of  the 
answer,  and  will  instruct  the  witness  as  to  his 
privilege. •"  The  question  whether  an  answer 
would  have  this  tendency  is  to  be  determined 
by  the  oath  of  the  witness."  And,  in  point  of 
fact,  out  of  the  necessity  of  the  case,  it  is  a 
matter  which  the  witness  may  be  said  practi- 
cally to  decide  for  himself.  The  witness  may 
answer  if  he  chooses;  and  if  he  do  answer 
after  having  been  advised  of  his  privileges,  he 
must  answer  in  full ;  and  his  answer  may  be 
nsed  in  evidence  against  him  for  all  purposes."* 
Whether  a  witness  be  compellable  to  answer 
to  his  own  degradation  or  infamy  is  question- 
able ;  but  a  witness  cannot  refuse  to  testify 
simply  because  his  answer  would  tend  to  dis- 
grace him  ;  it  must  be  seen  to  have  that  effect 
certainly  and  directly.*  He  cannot  refuse  to 
give  testimony  which  is  material  and  relevant 
to  the  issue,  for  the  reason  that  it  would  dis- 
grace him ;'  but  he  may  refuse  where  the  ques- 

T-8  Abb.  302  ;  30  Barb.  338.  w-HoIt.  N.  P.  275  :  pC. 
&  P.  83.  X-i  Stark.  1733  ;  i  Greenl.  Ev.  3432  ;  2  Phill. 
Ev.  395 ;  4  Carr.  &  P.  585  ;  7  Id.  632  ;  2  Swanst.  1237  ; 
3  Wis.  214.  y-i  Greenl.  Ev.  ??  436-440;  2  Phill.  Ev. 
411-416  ;  2  Cow.  &  H.  notes  n.  337 :  i  Stark.  Ev.  128  ; 
•o  Pick.  441;  2  C.  &  P.  27s  ;  10 N.  H.  544.  »-Seeante. 
a-i  Greenl.  Ev.  ?3  451,  453  ;  2  Phill.  Ev.  417.  b-2  Phill. 
Ev.  417;  4  Cusn.  594;  I  Denio,  319.  C-17  Jur.  393. 
d-i  Greenl.  Ev.  M  451, 453  ;  '  Stark.  Ev.  144;  2  Phill. 
St.  425;   4  Wend.  252;    xi  Cush.  437;    if  Vt.  491 ;    20 


tion  (being  put  on  cross-examination)  is  not 
relevant  and  material,  and  does  not  in  any  way 
affect  the  credit  of  the  witness.*  Whether  a 
witness,  when  a  question  is  put  on  the  cross- 
examination  which  is  not  relevant  and  material 
to  the  issue,  yet  goes  to  affect  his  credit,  will 
be  protected  in  refusing  to  answer  simply  on 
the  ground  that  his  answer  would  have  a  direct 
and  certain  effect  to  disgrace  him,  is  a  matter 
not  clearly  agreed  upon.  There  is  good 
reason  to  hold  that  a  witness  should  be  com- 
pelled to  answer  in  such  a  case.''  But  the 
whole  matter  is  one  that  is  largely  subject  to 
the  discretion  of  the  courts.'  And  there  seems 
no  doubt  that  a  witness  is  in  no  case  competent 
to  allege  his  own  turpitude,  or  give  evidence 
which  involves  his  own  infamy  or  impeaches  his 
most  solemn  acts,  if  he  be  otherwise  qualified 
to  testify  .J 

Cross-examination.  After  a  witness  has 
been  examined  in  chief,  the  other  party  has  a 
right  to  cross-examine  him.*^ 

One  of  the  principal  objects  of  the  cross- 
examination  of  a  witness  is  to  ascertain  the  full 
extent  of  his  knowledge  as  to  the  facts  to 
which  he  testifies.  It  is  certainly  one  of  the 
most  efficacious  tests  which  the  law  has  de- 
vised for  the  discovery  of  the  truth ;  and 
greater  latitude  is  allowed  in  the  manner  of 
putting  questions,  and  a  witness  may  be  so 
led  as  to  bring  him  directly  on  the  point  as  to 
the  answer;  but  not  to  go  to  the  length  of 
putting  into  the  witness'  mouth  the  very  words 
which  he  is  to  answer,'  or  echo  back  again. 
Leading  questions,  however,  are  allowed  upon 
cross-examination.  Nor  are  the  rules  against 
questions  not  relevant  and  material  to  the  issu'j 
always  enforced  upon  cross-examination — i 
stage  of  the  trial  at  which  great  latitude  in  the 
form  and  subject-matter  of  questions  is  gener- 
ally allowed,  in  order  that  juries  may  be  fully 
apprised  of  "  the  situation  of  the  witness  with 
respect  to  the  subject  of  litigation,  his  interest, 
his  motives,  his  inclination,  and  prejudices,  his 
means  of  obtaining  correct  and  certain  knowl- 
edge of  the  facts  to  which  he  bears  testimony, 
the  manner  in  which  he  has  used  those  means, 
his  powers  of  discernment,  memory,  and  de- 
scription."" Yet  witnesses  cannot  be  cross- 
examined  as  to  collateral  and  irrelevant  mat- 
ters for  the  purpose  of  contradicting  them  by 
other  evidence."  Their  testimony  as  to  such 
matters  is  always  conclusive  against  the  party 
questioning.  "  If,  by  an  unfortunate  or  un- 
skilful question  put  on  cross-examination,  a 
fact  be  extracted  which  need  not  have  been 
evidence  upon  an  examination  in  chief,  then  it 
becomes  evidence  against  the  party  so  cross- 

N.  H.  450.  e-i  Greenl.  Ev.  ?  454 ;  i  M.  &  M.  to8  ;  4 
Wend.  250;  2  Ired.  346.  f-i  Greenl.  Ev.  g  456.  jji 
Greenl.  Ev.?458;  3Campb.  519;  13  N.  H.  92  ;  i  Gray 
108.  h-i  Greenl.  Ev.  \  459  ;  i  Stark.  Ev.  144-147  ;'  ? 
Phill.  Ev.  421-431 ;  I  Carr.  &  P.  85  ;  a  Swanst.  216  ;  ■> 
Campb.  637  ;  3  Yeates,  429.  l-i  Greenl.  EV.3J431,  449. 
J-Starkie  Ev.  1737.  It-See  25  Wpnd.  651 ;  3  Sumn.  104. 
108  ;  I  Greenl.  \  554.  1-Per  Eyre  C.  J.  24  ;  St.  Tr.  Ph 
284;  24  How.  St.  Tr.  755.  m-i  Greenl.  Ev.  JJ  446 
449 ;  Stark.  Er.  449.    »-i  Orecnl.  Ev.  J  449. 


EVIDENCE. 


455 


examining.*  The  cross-examination  of  a  wit- 
ness is  a  matter  depending  much  upon  the  dis- 
cretion of  the  court,  which  will  sometimes 
permit  one  to  cross-examine  his  own  witness 
when  he  appears  to  be  in  the  interest  of  the 
adverse  party.' 

A  cross-examination  as  to  matters  not  ad- 
missible in  evidence  entitles  the  party  produc- 
ing the  witness  to  re-examine  him  as  to  those 
matters.' 

Inquiry  may  be  made  in  regard  to  collateral 
facts  in  the  discretion  of  the  judge,'  but  not 
merely  for  the  purpose  of  contradicting  the 
witness  by  other  evidence."  Irrelevant  ques- 
tions cannot  be  allowed ;  but  if  answered, 
cannot  be  contradicted.' 

A  witness  who  has  not  been  sworn  cannot 
be  cross-examined ;"  but  if  sworn,  he  may  be 
cross-examined,  though  no  question  has  been 
asked  him  in  chief.' 

Direct  examination.  The  course  of  exami- 
nation is,  first,  a  direct  examination  by  the 
party  producing  the  witness ;  then,  if  desired, 
a  cross-examination  by  the  adverse  party,  and 
a  re-examination  by  the  party  producing."  As 
to  the  direct  examination  the  general  rule  is, 
that  leading  questions*  [i.  e.,  such  as  suggest 
the  answer  expected  or  desired)  cannot  be 
put  to  a  witness  by  the  party  producing  him;^ 
but  in  an  examination  in  chief  leading  ques- 
tions may  be  put  to  direct  the  witness'  attention 
to  the  subject  of  inquiry  ;*  or,  where  he  seems 
to  be  hostile  to  the  parly  producing  him ;  or, 
in  the  adverse  party's  interest;  or,  unwilling 
to  give  evidence;*  or  wishes  to  conceal  the 
truth,  or  favor  the  opposite  party;  or  where, 
from  the  nature  of  the  case,  the  mind  of  the 
witness  cannot  be  directed  to  the  subject  of 
mquiry  without  a  particular  specification  of 
such  subject." 

Re-examination.  The  right  of  re-examina- 
tion extends  to  all  topics  upon  which  the  wit- 
ness has  been  cross-examined ;  but  the  witness 
cannot,  at  this  stage,  be  questioned  as  to  any 
hew  facts  unconnected  with  the  subject  of  the 
cross-examination,  and  not  tending  to  explain 
it.°  But  in  civil  cases  the  court  will  allow  the 
plaintiff's  counsel,  after  he  has  closed  his  case, 
to  recall  a  witness  to  prove  a  point  omitted  in 
the  first  instance.* 

If  a  witness'  character  has  been  attacked  in 
cross-examinat'on,  the  plaintiff  may  prove  a 
general  good  character.*  See  Character, 
above. 

o-i  Stark.  Ev.  144 ;  2  Phill.  Ev.  308,  429.  p-i  Stark. 
Kv.  132  ;  I  Grecnl.  Ev.  3  447 ;  a  Phill.  Ev.  403,  406,  407. 
q-3  Ad.  &  E.  554 ;  17  Texas,  417.  r-7  C.  &  P.  380  :  5 
Wend.  305.  s-i  Stark.  Ev.  164;  7  East.  108;  2  Lew. 
Cr.  Cas.  154,  156;  7C.  &P.  789;  2  Campb.  637  :  16 
Pick.  157;  8  Me.  42;  2  Gall.  C.  C.  51 :  and  see  3  C.  & 
P.  75  ;  I  Exch.  91 ;  7  Clark  &  F.  Ho.  L.  122  ;  16  Pick. 
157;  4  Denio,  502  ;  7  Wend.  57;  2  Ircd.  346  ;  14  Pet. 
461.  t-7  East.  log  ;  2  Stark.  157:  2  Campb.  637  ;  1 
Greenl.  449;  5  Md.  376;  2  Sw.  &  Tr.  170;  12  Ind.  324. 
n-i  Phill.  Ev.  260;  2  Stark.  473.  v-i  Phill.  Ev.  260; 
2  Stark.  473:  I  Esp.  74.  W-i  Stark.  Ev.  123,  129,  150. 
X-A  question  which  puts  into  the  witness'  mouth  the 
words  to  be  echoed  back,  or  plainly suggest>  the  answer 
which  the  party  wishes  to  get  from  him  7  S.  8:  R.  lyr  ; 
4  Wend.  247.     In  that  case  the  examiner  is  said  \o  lead 


The  mode  of  determining  ihe  credibility  of 
witnesses  is  the  same  in  civil  and  criminal 
cases.' 

Impeachment  of  Witnesses.  Impeachment  if 
an  allegation,  supported  by  proof,  that  a  witness 
who  has  been  examined  is  unworthy  of  credit. 
Every  witness  is  liable  to  be  impeached  as  to 
his  character  for  truth ;  and  if  his  general  char- 
acter is  good,  he  is  presumed  at  all  times  to  be 
ready  to  support  it.« 

A  party  cannot  impeach  the  credit  of  his  own 
witness;  but  he  is  sometimes,  in  cases  of  hard- 
ship, permitted  to  contradict  it  by  other  testi- 
mony.'* 

The  credit  of  an  adversary's  witness  may  be 
impeached  by  cross-examination,  or  by  general 
evidence  affecting  his  reputation  for  veracity 
(hut  not  by  evidence  of  particular  facts,  which 
otherwise  are  irrelevant  and  immaterial) ;  and 
by  evidence  of  his  having  said  or  done  some- 
thing before  which  is  inconsistent  with  his  evi- 
dence at  the  trial ;  also,  of  course,  he  may  be 
contradicted  by  other  testimony.'  Generally, 
where  proof  is  to  be  offered  thnt  a  witness  has 
said  or  done  something  inconsistent  with  hi& 
evidence,  a  foundation  must  first  be  laid,  and 
an  opportunity  for  explanation  offered,  by  ask- 
ing the  witness  himself  whether  he  has  not  said 
or  done  what  it  is  proposed  to  prove,  specifying 
particulars  of  time,  place,  and  person.^  These 
rules  apply  to  depositions,  unless  the  inconsis- 
tent statements  were  made  after  the  depositions 
were  taken. ^ 

A  witness  assailed  on  a  point  of  general  bad 
character  is  sometimes  sustained  by  a  cross- 
examination  of  witnesses  to  character,  to  show 
their  improper  motives,  or  the  unsatisfactory 
grounds  of  their  alleged  knowledge;  or  he 
may  be  sustained  by  the  testimony  of  witnesses 
who  will  swearthat  his  general  chaiacteris  good.* 

A  witness  assailed  by  proof  of  former  incon- 
sistent statements  may  be  corroborated  by 
proof  of  other  statements,  consistent  with  his 
testimony  in  court ;"  whether  the  statement 
thus  used  in  corroboration  was  on  oath  or  not 
is  not  material." 

Evidence  of  general  good  character  may  be 
offered  to  support  a  witness,  whenever  his 
credit  is  impeached,  either  by  general  evidence 
affecting  his  character,  or  on  cross-examination." 
.See  title  Character. 

WRITINGS. 

Private  writings,  as  deeds,  contracts,  wills, 
etc.,  are  generally  admissible  in  evidence. 

him  to  the  answer.  It  is  not  ca.sy  to  determine  what  \s 
or  what  is  not  a  leading  question,  y-3  Bnin.  i  30 :  6  Id. 
483  ;  1  Phill.  Ev.  221  :  i  Stark.  Ev.  123;  i  Greenl.  Ev. 
§  434  ;  I  Stark.  81  ;  2  Id.  128.  *-i  Stark.  81  :  i  Campb 
43.  »-i  Greenl.  Ev.  §  435  :  R.  &  M.  126.  b-i  Campb. 
43;  I  Stark.  100.  c-i  Stark.  Ev.  i.";©:  2  Phill.  Ev.  407; 
I  Greenl.  Ev.  g?  442,  443.  d-i  C.  &  P.  4)8  ;  4  Esp. 67. 
e-3  Campb.  519.  f-g  Ind.  106.  |f-3  Bouv.  Inst.  n. 
3224,  et  stq.  h-i  Stark.  Ev.  147  ;  i  Gteenl.  Ev.  p  442, 
443.  1-Stark.  Ev.  pt.  IV,  1753  ;  i  Greenl.  Ev.  ^  401, 
402.  J-i  Greenl.  Ev.  §  462  ;  2  Phill.  Ev.  433;  1  Cow.  & 
H.  Note,  n,  390;  5  Blackf.  217;  6  Id.  496;  7  Id  186:  8 
Id  148  ;  8  Ind.  314  ;  9  Id.  364  ;  4  Id.  194  ;  30  Ohio,  87. 
k-3  Jones  L.  428.  I-4  Com.st.  493.  III-4  Blackf  395  ; 
4  Ind.  323 :    <  Id.  J03,     w-Bac.  Abr.  Ev,  (F.);  4  lad 

32», 


456 


EVIDENCE— FRAUD. 


There  is  no  difference  in  evidence  between 
sealed  and  unsealed  writings  ;  and  every  writ- 
ing not  sealed  has  the  same  force  and  efTect 
that  it  would  have  if  sealed. 

Proof  of  handwriting  is  made  by  the  testi- 
mony of  a  witness  who  saw  the  paper  or  signature 
actually  written,  or  one  who  has  by  sufficient 
means  acquired  such  a  knowledge  of  the  gen- 
eral character  of  the  handwriting  of  the  party 
as  will  enable  him  to  swear  to  his  belief  that 
the  handwriting  of  the  person  is  the  handwrit- 
iag  in  question." 

An  instrument  in  writing  must  be  proved  by 
at  least  one  subscribing  witness.?  If  there  be 
none,  by  competent  proof  that  the  signature  of 
the  person  whose  name  is  undersigned  is  gen- 
uine.i  A  knowledge  of  a  party's  handwriting 
may  be  derived  from  a  fixed  correspondence 
between  the  parties,  and  by  letters,'  and  where 
the  witness  has  directed  letters  to  the  parties 
and  received  answers,*  and  by  a  clerk  employed 
to  inspect  franks.*  The  opinions  of  persons 
accustomed  to  the  examination  of  handwriting, 
of  the  genuineness  of  a  signature,  by  comparing 
it  with  papers  in  the  party's  handwriting,  already 
filed  in  the  case,  may  be  permitted."  Proof  of 
the  death  of  the  attesting  witness  ;^  or  his  in- 
sanity;* his  residence  beyond  the  jurisdiction 
of  the  court ;  that  his  name  is  unknown ;  or 
that  he  cannot  be  found  after  diligent  inquiry; 
in  all  these  cases  the  execution  of  the  instru- 
ment may  be  proved  by  other  evidence.^' 

If  the  adverse  party,  pending  the  cause, 
agrees  to  admit  the  execution,  other  proof  is 
not  necessary .y 

Ex  Parte.  See  Practice. 

Ex  Post  Facto.  See  Law. 

Examined  <'o|»y.  See  Evidence. 

Exceptions.  See  Contracts ;  Practice. 

Exchangee.  See  Bonds, Kotes  and  Bills-  Mer- 
cantile Law. 

Exeinstive.  See  Time. 

Excnne.  See  Practice. 

Exccnte.  See  Conveyances. 

Execnted  Consideration.  See  Contracts  ; 
Consideration. 
'  Exerntion.  See  Practice. 

Execntive.  See  Office  and  Officers. 

Execator.  See  Estates:  Persons. 

Exemplary.  See  Damages. 

Exemption.  See  Execution;  Practice. 

Exhibit.  See  Practice. 

Expatriation.  See  Citizen. 

ExpertH.  See  Evidence. 

ExtinsrniNlinient.  See  Contracts. 

Extortion.  See  Criminal  Law. 

Extract.  See  Copyright. 

Eye  WitnesA.    See  Evidence;  Witmbs&bs. 

Facts.  See  Evidence. 

Factors.  See  Bailments 

FalMe  Imprinonment.  See  Imprisonment. 

False  Prelence«.  See  Criminal  Law. 

FalMehood.  See  Fkai'o. 

Family.  See  Persons.  Relations. 

Farmer.  See  Occupation. 

Farrier.  See  Occupation. 

Father.  Sec  Persons,  Relations. 

Fathom.  See  Weights  and  Measures. 

Fanlt.  See  Contracts. 

Fear.  See  Criminal  Law. 

O-i  Phill.  Ev.  441 ,  Starkie  Ev. ;  s  Johns.  Cas.  211 ; 
S  Johns.  144  ,  19  Id.  134  ;  i  Dall.  14  ;  2  Me.  33  ;  6  S.  & 
k  568;  I  Nott  &  M'C  554;  «  Id.  400:  Anth.  N.  P. 
77;  4  Gray,  167;  5  Cush.  295;  7  Com.  Dig.  447;  Bac. 
Abr.  Evidence  (M)  Dane  Abr.  Index,  p-4  Johns.  641 ; 
%  John*.  Cm.  330 ;    z  East.  3$o.      q-ia  bhepl.  354 ;    sj 


Fee  Simple.  See  Coktbyancbs  ;  Dsaos. 

Fee  Tail.  See  Conveyances ;  Deeds. 

Feloniously.  See  Criminal  Law. 

Felony.  Sec  Criminal  Law. 

Female.  See  Persons. 

Fence.  Sec  Real  Property. 

Ferw  Naturae.  See  Animals. 

Ferry.  See  Highways. 

Fieri  Facias.  See  Practice. 

Flg^ures.  See  Contracts  ;  Practice. 

Final  Wccree.  See  Practice;  Judcmrnt. 

Flnnl  Judgment.   See  Practice;  Judgment. 

Final  Process.  See  Practice;  Process. 

Firm.  See  Partnership.  • 

Fish.  See  Animals. 

Fishery.  See  Real  Property  ;  Water. 

Fixing:  Ball.  See  Practice. 

Fixtures.  See  Landlord  and  Tenant. 

Flag'.  See  International  Law. 

Fli(;'ht.  See  Criminal  Law. 

Fceticide.  See  Medical  Law. 

Fcetus.  See  Medical  Law. 

Foot.  See  Weights  and  Measures. 

Forcible  Entry  or  Detainer.  See  Pxacticb. 

Foreclosure.  See  Practice. 

Foreiiarn.  See  Practice. 

Foreign  Attachment.  See  Practice. 

Foreign  Judgment.  See  Practice. 

Foreign  Eaws.  See  LA^vs. 

Forfeiture.  See  Contracts ;  Criminal  Law. 

Forgery.  See  Criminal  Law. 

Form.  See  Practice. 

Formality.  See  Conteacts. 

Former  Recovery.  See  Practtcb  ;  Judgment. 

Fortuitous  Event.  See  Accident. 

Forwarding  Merchants.  See  Agents;  Bail- 
ments. 

Franchise.  See  Corporations. 

FRAUD.  See  Agency;  Contracts;  Convey- 
ances, etc. 

Fraud  is  the  unlawful  appropriation  of 
another's  property  with  knowledge,  by  design, 
and  without  criminal  intent.  Fraud  is  some- 
times used  as  a  term  synonymous  with  "  covin," 
"collusion,"  and  deceit,  but  improperly  so. 
"  Covin  "  is  a  secret  contrivance  between  two 
or  more  persons  to  defraud  and  prejudice 
another  of  his  rights.  "  Collusion "  is  an 
agreement  between  two  or  more  p>ersons  to  de- 
fraud another  under  the  forms  of  law,  or  to 
accomplish  an  illegal  purpose.  Deceit  is  a 
fraudulent  contrivance  by  words  or  acts  to  de- 
ceive a  third  person,  who,  relying  thereupon, 
without  carelessness  or  neglect  of  his  own, 
sustains  damage  thereby.*  Actual  or  positive 
fraud  includes  cases  of  the  intentional  and  suc- 
cessful employment  of  any  cunning,  deception, 
or  artifice  used  to  circumvent,  cheat,  or  deceive 
another.''  For  instance,  the  misrepresentation 
by  word  or  deed  of  material  facts,  by  which 
one  exercising  reasonable  discretion  and  confi- 
dence is  misled  to  his  injury,  whether  the  mis- 
representation was  known  to  be  false,  or  only 
not  known  to  be  true,  or  even  made  altogether 
innocently;  the  suppression  of  material  facts 
which  one  party  is  legally  or  equitably  bouncl 
to  disclose  to  another;  all  cases  of  unconscien- 
tious advantage  in  bargains  obtained  by  impo- 
sition, circumvention,  surprise,  and  undue  in- 
fluence over  persons  in  general,  and  especially 

Wend,  isg ;  3  Ohio,  42  :  6  Hill,  303  ;  B.  N.  P.  264  :  i 
P.  Wms^  471.  r-t  Bl.  384:  I  Ph.  Ev.  467;  2  C.  &  P. 
21.  s-R.  &  M.  190.  t-2  Ph.  Ev.  714.  n-igOhio,  426. 
V-7  T.  R.  265;  12  Mod.  607.  w-3  Campb.  283  ;  9  Ves. 
381.  x-i  Grecnl.  572  ;  i  Ph.  Ev.  455 :  6  Ejist.  84  :  » 
East.  183 ;  I  Stark.  90.  i»-Co,  Litt.  357,  b.  b-i  Stoiy 
F.n.  Jur.  2  18$. 


FRAUD. 


457 


•ver  those  who  are  by  reason  of  age,  infirmity, 
idiocy,  lunacy,  drunkenness,  or  other  incapacity 
unable  to  take  due  care  of  and  protect  their 
own  rights  and  Interests;  bargains  of  such  an 
unconscionable  nature  and  of  such  gross  in- 
equality as  naturally  lead  to  the  presumption 
of  fraud,  imposition  or  undue  influence,  when 
the  decree  of  the  court  can  place  the  parties  in 
statu  quo  ;  cases  of  surprise  and  sudden  action 
without  due  deliberation  of  which  one  party 
takes  advantage;  fraudulent  awards,  with  in- 
tent to  do  injustice ;  fraudulent  prevention  of 
acts  to  be  done  for  the  benefit  of  others  under 
false  statements  or  false  promises ;  frauds  in 
relation  to  trusts  of  a  secret  or  special  nature ; 
frauds  in  verdicts,  judgments,  decrees,  and 
other  judicial  proceedings,  and  frauds  upon 
creditors  and  other  persons  standing  upon  a 
like  equity,  are  cases  of  actual  fraud."  Legal 
or  constructive  fraud  includes  such  contracts  or 
acts  as,  though  not  originating  in- any  actual 
design  or  contrivance  to  perpetrate  a  fraud,  yet 
by  their  tendency  to  deceive  or  mislead  others, 
or  to  violate  private  or  public  confidence,  are 
prohibited  by  law.  Thus,  for  instance,  con- 
tracts against  some  general  public  policy  or 
fixed  artificial  policy  of  the  law;  cases  arising 
from  some  peculiar  confidential  or  fiduciary  re- 
lation between  the  parties  where  advantage  is 
tuken  of  that  relation  by  the  person  in  whom 
the  trust  or  confidence  is  reposed,  or  by  third 
persons ;  agreements  and  other  acts  of  parties 
which  operate  virtually  to  delay,  defraud,  and 
deceive  creditors;  purchases  of  property,  with 
full  notice  of  the  legal  or  equitable  title  of  other 
persons  to  the  same  property  (the  purchaser  be- 
coming by  construction  particeps  criminis  with 
the  fraudulent  grantor).* 

To  constitute  fraud:  i.  It  must  be  such  an 
appropriation  as  is  not  permitted  by  law.  2.  It 
must  be  with  knowledge  that  the  property  is 
another's,  and  with  a  design  to  deprive  him  of 
it.  3.  It  is  not  itself  a  crime,  for  want  of  a 
criminal  intent,  though  it  may  become  such  in 
cases  provided  by  law.' 

r"raud,  in  its  ordinary  application  to  contracts, 
includes  any  trick  or  artifice  employed  by  one 
person  to  induce  another  to  fall  into  or  detain 
him  in  an  error ;  so  that  he  may  take  an  agree- 
ment contrary  to  his  interest;  and  it  may  con- 
sist in  misrepresenting  or  concealing  material 
facts,  and  may  be  effected  by  words  or  by  ac- 
tions. While,  on  the  one  hand,  courts  have 
aimed  to  repress  the  practice  of  fraud ;  on  the 
other,  they  require  that  before  relieving  a  party 
from  a  contract  on  the  ground  of  fraud,  that  it 
should  be  made  to  appear  that  on  entering  into 
such  a  contract  he  exercised  a  due  degree  of 

e-i  Story  Eq.  Jur.  c.  6.  d-i  Story  Eq.  Jur.  c.  7.  e- 
Liverm.  Pen.  L.  739.  f-Vig^lantibus  non  dormUnti- 
ius  succurunt  leges — The  laws  assist  the  vigilant,  not 
the  careless.  Tayl.  L.  Gloss.  ST-Per  Tindal,  C.  J.  ;  2 
Scott,  588,  594;  4  Bam.  &  C.  506,  s"  :  Per  Parke,  B.  ; 
4M.  &W.  115,  122.  h-6  Clark  &  F.  Ho.  L.  232  ;  Com. 
Contr.  38;  Per  Tindal,  C.  J. ;  3  Mann.  &  G.  446,  450. 
i-9  B.  &  C.  387 ;  Per  I.ittlecfale,  J.  j-i  Fonblanque  Eq. 
(3d  E^.)  66,  n.;  6th  Ed.  122,  and  notes ;  Newl.  Contr. 
1^  ;  \  W.  Bl.  46^ ;  Dou^l.  ^50 ;    ^  Burr,  i^  ;    3  Ves. 


caution.'  A  misrepresentation  as  to  a  fact,  the 
truth  or  falsehood  of  which  the  other  party  has 
an  opportunity  of  ascertaining,  or  the  conceal- 
ment of  a  matter  which  a  person  of  ordinary 
sense,  vigilance,  or  skill  might  discover,  does 
not  in  law  constitute  fraud.  Misrepresentation 
as  to  the  legal  effect  of  an  agreement  does  not 
avoid  it  as  against  a  party  whom  such  misrepre- 
sentation has  induced  to  enter  into  it,  every 
man  being  presumed  to  know  the  legal  effect 
of  an  instrument  which  he  signs,  or  of  an  act 
which  he  performs.  An  intention  to  violate, 
entertained  at  the  time  of  entering  into  a  con- 
tract, but  not  afterwards  carried  into  effect,  does 
not  vitiate  the  contract. s  But  when  one  person 
misrepresents  or  conceals  a  material  fact  which 
is  peculiarly  within  his  own  knowledge,  or,  if 
it  be  also  within  the  reach  of  the  other  party, 
is  a  device  to  induce  him  to  refrain  from  in- 
quiry and  is  shown  that  the  concealment  or 
other  deception  was  practised  with  respect  to 
the  particular  transaction,  such  transaction  will 
be  void  on  the  ground  of  fraud.*"  And  even 
the  concealment  of  a  matter  which  may  disable 
a  party  from  performing  the  contract  is  a  fraud.' 
EFFECT  OF  FRAUD.  Fraud  when 
sufficiently  proved  and  ascertained,  avoids  a 
contract  (specialty  or  transaction),  ab  initio, 
whether  the  fraud  be  intended  to  operate 
against  one  of  the  contracting  parties,  or  against 
third  parties,  or  against  the  public,!  and  this 
thouf^h  the  fraud  does  not  appear  on  its  face.* 
I.  The  fraud  must  be  material  to  the  contract 
or  transaction  which  is  to  be  avoided  on  account 
of  it;  for  if  it  relate  to  another  matter,  or  to 
this  only  in  a  trivial  and  unimportant  way,  it 
affords  no  ground  for  the  action  of  the  court. 
Thus  a  misrepresentation  by  the  vendor  of  a 
horse,  as  to  the  place  where  he  bought  it,  is 
not  such  a  material  fraud  as  will  avoid  the  sale 
of  the  horse.'  2.  It  must  relate  distinctly  and 
directly  to  this  contract ;  and  it  must  affect  its 
very  essence  and  substance."  3.  The  fraud 
must  work  an  actual  injury.  If  it  be  only  an 
intended  fraud,  which  is  never  carried  into 
effect,  or  if  all  be  done  that  was  intended,  but 
the  expected  consequences  do  not  result  from 
it,  the  law  cannot  recognize  it."  And  if  there 
be  a  fraud,  and  it  be  actually  injurious,  the  in- 
jured party  can  recover  only  the  damage  di- 
rectly attributable  to  the  fraud,"  and  not  an 
increase  of  this  damage  caused  by  his  own  indis- 
cretion or  mistake  in  relation  to  it  ;P  and  if  no 
damage  be  caused  by  the  fraud,  no  action  lies."* 
4.  And  it  must  appear  that  the  injured  party 
not  only  did  in  fact  rely  upon  the  fraudulent 
statement,'  but  had  a  right  to  rely  upon  it  in 
full  belief  of  its  truth ;  for  otherwise  it  was  his 

&  B.  Ch.  42 ;  3  Chitty  C.  L.  IS5,  306,  698 ;  j  Sch.  &  L. 
209;  Verplank  Comr.  /assz'm.  ;  Domat.  L.  Civ.  p.  1,1, 
4  t,  6,  ?  3,  «.  2.  ls-3  T.  R.  418 ;  2  Starkie  Ev.  586 ;  3 
Chitty  Contr.  81,  222.  I-5D0W.  159;  i  Barb.  471.  m- 
4  Scott  N.  R.  13  ;  3  Mann.  &  G.  446  ;  i  Exch.  798.  n- 
4  M.  &  W.  lis  ;  '5  C.  B.  207;  29  Eng.  L.  &  Eq.  261 ; 
15  C.  B.  597;  29  Eng.  L.  &  Eq.  290;  25  Penn.  St.  413; 
55  Id.  504.  0-12  East.  632  ;  9  Ired.  5'^7;  5  Cush.  23. 
p-5  C.  &  P.  363.  <l-2  Mass.  112;  15  Me.  243  ;  n  Vt. 
615;  »  Dey.  69.    jr-ii  Wend.  374;  4  Ga.  95, 


458 


FRAUD. 


own  fault  or  folly,  and  he  cannot  ask  the  law 
to  relieve  hiin  from  the  consequences.*  Where 
a  party  is  obliged  to  rely  upon  the  statements 
of  another,  and  not  only  may  but  should  repose 
peculiar  confidence  in  him,  this  is  in  the  nature 
of  a  special  trust,  and  the  law  is  very  jealous  of 
a  betrayal  of  this  trust  and  visits  it  with  great 
severity.  So  all  transactions  with  feeble  per- 
sons, whether  they  are  so  from  age,  sickness, 
or  infirmity  of  mind,  are  carefully  watched.' 
On  the  other  hand,  if  the  statement  be  false  in 
fact,  and  injurious  because  false,  if  it  were  be- 
lieved to  be  true  by  the  party  making  it,  it  is 
not  a  fraud  on  his  part."  If  the  statement  be 
in  fact  false,  and  be  uttered  for  a  fraudulent 
purpose,  which  is  in  fact  accomplished,  it  has 
the  whole  effect  of  fraud  in  annulling  the  con- 
tract, although  the  person  uttering  the  state- 
ment did  not  know  it  to  be  false,  but  believed 
it  to  be  true.^  If  the  falsehood  be  known  to 
the  party  making  the  statement,  malice  or  self- 
interest  will  be  inferred." 

The  fraud  of  an  agent,  by  a  misrepresenta- 
tion which  is  embodied  in  the  contract  to 
which  his  agency  relates,  avoids  the  contract. 
But  the  parly  committing  the  fraud  cannot  in 
any  case  himself  avoid  the  contract  on  the 
ground  of  fraud.* 

In  general,  concealment  is  not  in  law  so 
great  an  offence  as  misrepresentation.  Con- 
cealment to  be  actionable  must  of  course  be  of 
such  facts  as  the  party  is  bound  to  communi- 
cate.' A  false  representation,  in  order  to 
have  the  full  effect  of  fraud,  must  relate  to  a 
substantial  matter  of  fact,  and  not  merely  to  a 
matter  which  rests  in  opinion,  or  estimate  or 
judgment.*  Men  differ  in  opinion ;  and  if  any 
one  relies  on  mere  opinion,  instead  of  ascer- 
taining facts,  it  is  his  own  folly. 

Misrepresentation  need  not  be  made  by  the 
party  whom  it  benefits,  in  order  to  constitute  a 
fraud  against  him.  And  it  is  for  this  reason 
that  if  A.  trust  B.  upon  the  fraudulent  recom- 
mendation of  C,  A.  is  not  left  to  his  action  for 
damages  against  C.  for  the  deceit,  but  the  fraud 
of  C.  invalidates  the  contract  between  A.  and 
B.,  and  gives  A.  the  same  right  to  retake  the 
goods  as  if  the  fraud  had  proceeded  directly 
from  B.  himself.'  It  may  be  his  by  adoption.* 
A  principal  may  commit  a  fraud  by  an  agent ; 
or  may  even  be  affected  by  the  fraud  of  his 
»gent,  although  personally  honest." 

Material  misrepresentations,  which  go  to  the 
substance  of  a  contract,  avoid  that  contract, 

8-138.  &  Marsh.  363;  5  How.  (Miss.)  165;  7  Blackf. 
102;  4  B.  &  C.  506;  8  Blackf.  277;  5  Hill,  303;  2  Bibb. 
602  ;  2  Ired.  32 ;  i  Dev.  69  ;  34  Penn.  St.  365.  t-2 
Johns.  Ch.  238;  I  Knapp,  77.  u-5  Q.  B.  820:  2  East. 
92  ;  I  C.  B.  951  ;  8  Exch.  725 ;  20  Eng.  L.  &  Ex.  470 ; 
14  M.  &  W.  651  ;  I  Met.  I ;  4  Id.  151  ;  7  Cranch.  69  ;  8 
Johns.  25  ;  1  Smith  (Ind.)  102  ;  i  Carter,  178;  i  Har- 
ring.  (Del.)  131 ;  6  Barr,  316  ;  13  How.  198  ;  7  Vt.  67 ; 
11  How.  Pr.  242,  254;  I  Holt,  387;  2  Man.  &  G.  475. 
V-ii  M.  &  W.  401.  W-12  Met.  549;  9Q.  B.  197;  6 
Barr,  310.  x-Chitty  Contr.  590,  and  cases  cited,  y-3 
^ng.  L.  "  -  ~  


Eng.  L.  &  Eq.  17:3  Conn.  413  ;  5  Ala.  596 ;  i  Yeates, 
307;  5  Penn.  St.  467;  8  N.  H.  463:  16  Me.  30;  i 
Strobh.  320 ;  1  Dev.  351 ;  18  Johns.  403  ;  6  Humph.  36. 
%-^  61a«kf.  i8j  3  BuUtr.  ^4 ;    18  Me.  418 ;  7  Scott,  3.^1 ; 


whether  they  are  caused  by  mistake,  and  occar 
wholly  without  fault,  or  are  designed  and 
fraudulent.*  This  principle  is  carried  so  far, 
that  if  one  acquires  property  by  a  purchase 
founded  upon  his  misrepresentations,  especially 
if  they  are  not  only  false  but  fraudulent,  he 
acquires  no  right  in  the  property,  but  the  seller 
may  retake  it  in  the  same  manner  as  if  it  had 
been  stolen ;  that  is,  with  all  reasonable  neces- 
sary force.*  The  obtaining  goods  under  false 
pretences,  under  color  of  purchasing  them,  or 
otherwise,  does  not  change  the  property.' 
Where  a  sale  is  fraudulently  procured  by  the 
vendee,  he  may  be  sued  by  the  vendor,  before 
the  expiration  of  the  credit  agreed  on  to  be 
given.K 

A  fraudulent  party  cannot  himself  assert  his 
fraud,  and  claim  as  his  right  any  advantages 
resulting  from  it ;  for  no  man  can  be  permitted 
to  found  any  rights  upon  his  own  wrong;"" 
and  if  both  parties  are  in  fault  the  law  will  not 
interfere  between  them :  and  this  is  so,  if  both 
parties  be  actually  fraudulent,  although  the 
beginning,  and  the  greater  fraud,  may  be  on 
one  side  or  the  other.' 

The  fraud  may  be  proved  by  parol  evidence, 
or  any  circumstances,  however  contrary  to 
apparent  facts  or  statements  in  the  written 
instrument.!  This  rule  does  not  contravene 
the  general  one  against  the  admissibility  of 
parol  testimony  against  written,  as  the  effect 
and  result  of  such  evidence  is,  that  the  instru- 
ment never  had  any  operation ;  and  on  grounds 
of  policy  and  necessity  this  rule  may  be  sup- 
ported.'' The  mode  of  proving  fraud  must 
depend  upon  the  facts  of  each  particular 
case. 

Fraud  gives  no  action  in  any  case  without 
damage,*  and  in  matters  of  contract  it  is  merely 
a  defence ;  it  cannot  in  any  case  constitute  a 
new  contract."  It  is  essentially  ad  hominem* 
(to  the  interests  orpa.ssions  of  the  party). 

STATUTE  OF  FRAUDS.  No  action 
shall  be  brought  in  any  of  the  following  cases, 
(unless  made  in  writing  and  signed  by  the 
party  to  be  charged  thereby,  or  by  some  person 
thereunto  by  him  legally  authorized) : 

1.  To  charge  an  executor  or  administrator, 
upon  any  special  promise,  to  answer  damages 
out  of  his  own  estate;  or, 

2.  To  charge  any  person,  upon  any  special 
promise,  to  answer  for  the  debt,  default,  or 
miscarriage  of  another;  or, 

3.  To  charge  any  person,  upon  any  agree- 

1  Simmons,  89;  6  Scott,  540;  3  B.  &  C.  623.  »-2i  Vt. 
129.     b-3  Sumner,  8  ;  10  S.  &  Marsh.  169  ;  2  Barr,  105  ; 

2  Ellis  &  B.  476 ;  20  Eng.  L.  &  Eq.  120  ;  s  Bing.  N.  C. 
97;  3  Scam.  170;  17  Ohio,  16.  C-2i  vt.  129,  and  cases 
therein  reviewed,  d-3  Mo.  477  ;  4  How.  (Miss.)  435  ; 
4  Scam.  569  ;  Coxe,  48  ;  i  Woodb.  &  M.  90  ;  Id.  342 ; 
2  Id.  246  ;  3  Story,  700  ;  4  B.  Mon.  601.  e-i8  Vt.  504. 
f-7  Taunt.  59;  6  Mod.  114.  g-i  Esp.  430;  2  Id.  523. 
I1-9  B.  &  C.  5^2;  5  Mass.  116;  19  Me.  281  ;  2  Harring. 
(Del.)  T98  ;  6  Q.  B.  166  ;  18  Me.  231  ;  Cro.  J.  270;  2  B. 
&  A.  367  :  I  W.  Bl.  363.  I-i  McLean,  460;  i  Ohio  St. 
262 ;  20  Wend.  24  ;  1  Falrf.  71  ;  27  Miss.  13.  J-B.  N. 
P.  172 ;  2  B.  &  A.  370.  ^^.-■x  B.  &  C.  623.  I-3T.  R. 
56.  in-7  Vcs.  Ch.  211 ;  a  Miles,  399.  n-4  T.  R.  3371 
338. 


FRAUD. 


459 


ment  or  promise,  made    in  consideration  of 
marriage;  or, 

4.  Upon  any  contract  for  the  sale  of  lands,  or, 

5.  Upon  any  agreement  that  is  not  to  be  per- 
formed within  one  year  from  the  making  there- 
of, unless  the  promise,  contract  or  agreement, 
upon  which  such  action  shall  be  brought,  or 
some  memorandum  or  note  thereof,  shall  be  in 
writing,  and  signed  by  the  party  to  be  charged 
therewith,  or  by  some  person  thereunto  by  him 
lawfully  authorized ;  excepting,  however,  leases 
not  exceeding  the  term  of  three  years.* 

The  consideration  of  any  such  promise,  con- 
tract, or  agreement,  need  not  set  forth  in  such 
writing,  but  may  be  proved. p 

No  action  shall  be  maintained,  to  charge  any 
terson  by  reason  of  any  representation  made 
concerning  the  character,  conduct,  credit,  abil- 
ity, trade,  or  dealings  of  any  other  person,  un- 
less such  representation  be  made  in  writing, 
and  signed  by  the  party  to  be  charged  thereby, 
or  by  some  person  thereunto  by  him  legally 
authorized.i 

It  is  obvious  that  the  general  purpose  of  the 
.•\bove  section  is  to  permit  no  party  to  bind  him- 
self except  by  a  written  promise  signed  by 
him ;  because  this  will  secure  an  exact  state- 
ment and  the  best  evidence  of  the  terms  and 
conditions  of  the  promise.' 

What  is  a  sufficient  signing. — A  substantial 
signing  of  the  agreement  is  sufficient,  although 
it  is  not  literal  and  formal.*  Hence  if  the 
agreement  be  not  itself  signed,  but  a  letter 
alluding  to  and  acknowledging  the  agreement 
is  signed,  this  is  sufficient.*  It  is  not,  however, 
enough  that  the  agreement  be  written  by  the 
party  himself,  unless  he  also  signs  it."  If,  how- 
ever, he  writes  his  name  in  any  part  of  the 
agreement,  it  may  be  taken  as  his  signature;^ 
but  not  otherwise."  Where  one  is  in  the  habit 
of  using  instruments  with  his  name  printed  in 
them,  this  will  be  his  signature.*  And  so  if  he 
writes  it  in  pencil.'  The  agreement  need  not 
be  signed  by  both  parties,  but  only  by  him  who 
is  to  be  charged  by  it;*  and  he  is  estopped 
from  denying  the  execution  of  the  instrument 
on  the  ground  that  it  wants  the  signature  of  the 
other  party.  The  signature  may  be  made  by 
an  agent,*  but  the  agency  must  be  an  agency 
for  this  purpose."  The  agent  may  be  authorized 
by  parol.* 

0-29  Car.  II,  Ch.  3,  J  4.  p-Id.  p.  3ST,?2.  q-Id.  ? 
6.  r-Brown  Stat.  Frauds,  \  346.  8-3  Atkins,  503.  t-3 
Bro.  Ch.  161,  318 ;  2  B.  &  P.  238  ;  5  Esp.  190 ;  i  Campb. 
513  ;  3  Taunt.  169  ;  3  Beav.  469  ;  5  Exch.  907 ;  6  Cow. 
445  ;  I  Gray,  409  ;  Cheves,  68  ;  8  Ala.  546  ;  i  Bing.  9. 
n-i  P.  Wms.  770  ;  3  Merriw.  2  ;  12  J.  B.  Moore,  276  ;  10 
Ohio,  399  ;  4  Scott  fN.  R.)  486  ;  3  Johns.  399  ;  7  Minn. 
368.  \-i  Rus.  &  M.  625  ;  2  M.  &  W.  653  ;  12  Johns. 
102;  14  Id.  484;  3  Merriw.  53;  13  Mass.  87  ;  1  Esp. 
190;  2  B.  &  P.  238.  w-iCox,2i9;  3  Pick.  83;  lojur. 
789.  x-3  Esp.  180 ;  2  B.  &  P.  238  ;  2  M.  &  S.  286.  y- 
12  Johns.  102  ;  t4  Id.  484 ;  2  Specrs,  292  ;  i  Strobh.  Eq. 
347;  5  B.  &  C.  234.  «-Vin.  Abr.  tit.  C.  and  A.  (I.)  pi. 
17;  tVcs.  265;  9  Id.  351 ;  2jac.&W.  426;  2  Bing. 
(N.  C.)735;  6  East.  307;  3  Taunt.  169 ;  2  M.  &  S. 
286  ;  3  Johns.  Cas.  60  ;  14  Johns.  484  ;  16  Wend.  460  ; 
7  Blackf.  452 ;  13  Mass.  87  ;  2  Nott.  &  M'Cord,  207  ;  3 
Grecnl.  409  ;  4  Russ.  298  ;  5  Sanf.  loi.  a-19  Pidc.  502  ; 
6  Foster,  327;  13  Simons, 28;  aChitty,  205;  i  N.  H. 
•84;  13  M.  &  W.  743 ;    J  Bing.  (N.  C.j  603;  3  Merriw. 


The  agreement  must  contain  all  that  belongs 
essentially  to  the  agreement,*  and  more  thar» 
this  is  not  needed ;  nor  can  parol  evidence  l>e 
received  to  supply  anything  which  is  wanting 
in  the  writing,  to  make  it  the  written  agree- 
ment on  which  the  parties  rely.*  The  form 
of  the  agreement  must  be  adequately  expres- 
sive of  the  intent  and  obligation  of  the  parties. 
It  may  be  upon  one  or  many  pieces  of  paper; 
provided  that  the  several  pieces  are  so  con- 
nected by  mutual  reference  or  otherwise  that 
there  can  be  no  uncertainty  as  to  the  meaning 
and  effect  of  them  all,  when  taken  together 
and  viewed  as  a  whole;'  but  this  connection 
of  several  parts  cannot  be  established  by  ex- 
trinsic evidence.'  The  written  agreement 
must  be  certain.*'  If  the  contract  be  in  its 
nature  entire,  and  in  one  part  it  satisfies  the 
statute,  and  in  others  it  does  not,  then  it  is 
altogether  void.'  But  if  these  parts  are  sever- 
able, then  it  may  be  good  in  part  and  void  in 
part  .J 

"  To  answer  for  the  debt,  default,  or  miscar- 
riage of  another  person."  This  clause  covers 
all  guarantees,  and  is  of  great  importance  in 
reference  to  them.  Its  general  eftect  is  to 
make  it  necessary  that  all  collateral  promises 
should  be  in  writing;  and  only  when  the 
promise  is  distinctly  collateral  is  it  within  this 
clause  of  the  statute.  In  the  absence  of  evi- 
dence showing  distinctly  that  a  promise  is 
collateral,  it  will  be  treated  as  an  original 
promise.''  Nor  is  it  then  material  whether  the 
promise  is  made  before  or  after  the  delivery  of 
the  goods.' 

There  must  be  some  one  who  owes  the  debt 
directly.  There  must  exist  an  original  liability, 
as  the  foundation  for  the  collateral  liability,  and 
one  of  these  liabilities  must  be  entirely  distinct 
from  the  other.  If,  therefore,  the  creditor 
trusted  to  one  of  the  parties  more  than  to  the 
other,  but  did  in  fact  trust  to  one  together  with 
the  other,  it  is  not  within  the  statute.  The 
pcirty  for  whom  the  promise  has  been  made 
must  be  liable  to  whom  it  is  made;  and  it  is 
equally  necessary  that  he  continue  liable  after 
making  the  promise ;  that  is,  the  promise  of 
the  party  undertaking  must  not  have  the  effect, 
prior  to  its  performance,  of  discharging  the 
party  originally  liable.  In  order  to  bring  a 
promise  within   this   clause  of  the  statute,  it 

237  I  Young.  &  J.  387.  to-4  Bing.  722.  c-i  Sch.  & 
L.  22 ;  9  Ves.  250 :  10  Id.  292 ;  7  Scott,  769  ;  2  Eq.  Cas. 
Abr.  50,  pi.  »6;  Vin.  Abr.  C.  &  A.  (H.)  pi.  45:  10 
Paige,  386  ;  5  Hill,  107;  1  Seld.  229;  4  Greenl.  258  ;  i 
Humph.  26S.  d-Prec.  in  Ch.  560;  11  Ves.  550:  i  At- 
kins, 12  ;  I  P.  Wras.  618;  3  Exch.  652  ;  5  Id.  625  ;  i 
Johns.  Ch.  273;  3  Johns.  399;  4  Cush.  497;  13  Met. 
385;  2Gilman,  614:  7  Porter,  73;  13  Johns.  297 ;  i 
Blackf.  21.  e-14  How.  446.  1-4  Exch.  623;  3  Bro. 
Ch.  318 ;  2  B.  &  P.  238  ;  3  Ve.s.  696 ;  5  Id.  308  ;  3  Ves. 
&  B.  187;  3  Taunt.  169  ;  IS  Vt.  685  ;  Cheves,  68  ;  6  H. 
L.  Cas.  238.  if-i  Sch.  &  L.  22  ;  i  Ves.  326  ;  15  Vt.  685; 
I  Johns.  Ch.  273.  h-13  Johns.  297  ;  Id.  508;  10  Conn. 
192.  1-2  Anstr.  420  ;  Id.  425,  n. ;  7  T.  R.  201  ;  3  C.  B. 
766  ;  2  Ventr.  323  ;  7  A.  &  E.  49  ;  10  B.  &  C.  6^4;  il 
C.  B.  587;  15  Pick.  159;  6  Cush.  508;  13  Wend.  53. 
I-3  B.  &  C.  357;  2  Cromp.  &  H.94.  I1-20  Vt.  205; 
ii  A.  &  E.  438.  1-2  T.  R.  80;  3  Doug.  132 :  McMuIIan, 
372;  18  Me.  324  ;  36  Id.  113;  6  Foster,  349;  13  Vt 
631. 


4te 


FRAUD. 


must  be  made  to  a  party  to  whom  the  person 
undertaken  for  is  liable.  The  statute  applies 
only  to  promises  made  to  the  persons  to  whom 
another  is  already,  or  is  to  become  answerable ; 
it  must  be  a  promise  to  be  answerable  for  a 
debt  of,  or  a  default  in  some  duty  by  that 
other  person  tmvards  the  promisee.  A  prom- 
ise, therefore,  by  A.  to  B.  to  pay  a  debt  due 
from  B.  to  C.  is  not  within  the  statute." 

Whenever  the  main  purpose  and  object  of 
the  promisor  is  not  to  answer  for  another,  but 
to  subserve  some  purpose  of  his  own,  his 
promise  is  not  within  the  statute."  If  one  of 
several  persons,  who  are  liable  jointly  or  sev- 
erally for  the  payment  of  the  same  debt,  prom- 
ises the  creditor  to  pay  the  debt,  this  is  not  a 
case  within  the  statute;  for  although  the  per- 
formance of  the  promise  will  have  the  effect 
of  discharging  the  others,  it  is  to  be  presumed 
that  the  thing  in  contemplation  of  the  promisor 
was  his  own  discharge.*  This  clause  of  the 
statute  does  not  embrace  cases  in  which  the 
liability  to  pay  the  debt  of  another  arises  by 
operation  of  law,  out  of  some  transaction  be- 
tween the  parties,  without  the  aid  of  2iwy  special 
promise.  Thus,  if  A.,  who  is  indebted  to  B., 
sends  money  to  C.  to  pay  the  debt,  and  C. 
accepts  the  trust,  he  thereby  becomes  liable  to 
B.  for  the  debt  of  A.p  The  words  "  debt,  de- 
fault, or  miscarriage,"  extend  to  a  liability  for 
a  mere  tort.' 

"No  action  shall  be  brought  upon  any  con- 
tract for  the  sale  of  lands,  tenements,  or  heredi- 
taments, or  any  interest  in  or  concerning  them, 
unless,^'  etc.  These  words  are  very  general, 
and  intended  to  have  a  wide  operation;  but 
they  have  been  somewhat  controlled  by  con- 
struction. Thus,  if  the  question  be  whether  a 
contract  for  the  sale  of  growing  crops  be  a  con- 
tract or  sale  of  "  any  interest  concerning  lands," 
it  seems  to  be  answered  in  conformity  with  the 
intention  of  the  parlies.  If  grain  be  reaped 
and  stacked,  or  stored  in  barns,  it  becomes  a 
chattel.  If  it  be  growing  when  sold,  yet  if  the 
sale  contemplates  its  severance  when  grown, 
and  delivery  of  it  then,  distinct  from  the  land, 
it  is  in  the  contemplation  of  the  parties  a  mere 
chattel,  and  is  therefore  so  in  the  view  of  the 
law,  so  far  as  this  statute  is  concerned.'  So, 
growing  grass,  growing  trees,  or  fruits.  A 
promise  to  pay  for  improvements  on  land  is 
only  a  ])romise  to  pay  for  work  and  labor,  ?r 
materials,  and  not  for  an  interest  in  lands,  and 

m-ii  Ad.  &  Ell.  438 ;  J3  Mees.  &  Wels.  561;  3> 
Conn.  317;  3  Denio,  45;  16  Barb.  645;  6  Cush.  549; 
I  Gray,  391 ;    5  Allen,  370  ;    i  Ga.  294;    4  Wend.  657; 

1  Bing.  (N.  C.)  103;  5  Hill,  483.  n-3  Met.  306;  i 
Gray,  391.  o-a  East.  325;  14  Ala.  611;  5  Mocf.  305  ; 
Comb.  363;  II  Gratt.  636;  1  Wils.  305.  p-2  Sandf. 
331  :  I  Conn.  519  ;  3  Id.  273  ;  3  Burr.  1886  ;  2  East.  315  ; 
(  M.   &  S.   304;    4   Bing.   264.     <|-3  R.  &  Aid.  613; 

2  Day,  457.  r-i  Met.  313  ;  4  M.  &  W.  347  ;  8  Met. 
34 ;  3  Ohio  St.  438 ;  5  Md.  41  ;  9  B.  &  C.  561 ;  4 
M.  &  W.  343  :  5  B.  &  C.  829  :  I  Young.  &  Jar.  396 ;  i 
Denio,  350;  I'Barb.  542  ;  3  Id.  613;  i  L.  Rayra.  182  ; 
I  B.  &  P.  397;  3  Id.  453;  6  East.  603  :  11  Id.  362; 
»  Johns.  431,  «.  (rt);  9  Cowen,  30  ;  20  Mo.  457;  2  M. 
tt  S.  105  :  3  Taunt.  38 ;  3  B.  &  C.  357  ;  2  Brod.  &  B. 
99;  13  East.  349;  I  Cromp.  &  M.  89  ;  7  Greenl.  447. 
S-5  Johns.  372 ;    ix  Id.  14s ;    7  C«wea,  163 ;    8  Rich. 


therefore  need  not  be  in  writing.*  And  a  con' 
tract  for  the  sale  of  removable  fixtures  is  not 
within  the  statute.*  A  mere  license  to  use  land, 
as  to  stack  hay  or  grain  upon  it  for  a  time,  is 
not  an  interest  in  lands  within  the  statute." 
But  any  contract,  of  which  the  effect  is  to  give 
one  party  an  easement  on  the  land  of  another, 
is  within  the  statute.* 

"No  action  shall  be  maintained  upon  any 
agreement  that  is  not  to  be  performed  within 
the  space  of  one  year  from  the  making  thereof, 
unless,"  etc.  An  executory  promise  capable  of 
entire  performance  within  one  year  is  not  within 
this  clause  of  the  statute.  The  decision  of  this 
question  does  not  seem  to  depend  entirely  upon 
the  understanding  or  intention  of  the  partie.";. 
They  may  contemplate  as  probable  a  much 
longer  continuance  of  the  contract,  or  a  sus- 
pension of  it,  and  a  revival  after  a  longer  period  ; 
it  may  itself  be  liable  to  such  continuance  and 
revival ;  and  it  may  in  this  way  be  protracted 
so  far  that  it  is  not  in  fact  performed  within  a 
year ;  but  if,  when  made,  it  was  in  reality 
capable  of  a  full  and  bona  fide  performance 
within  a  year,  without  the  intervention  of  extra- 
ordinary circumstances,  then  it  is  to  be  consid- 
ered as  not  within  the  statute.  There  are  three 
classes  of  cases  arising  under  this  clause  of  the 
statute  :  I.  Where  by  the  express  agreement  of 
the  parties  the  performance  of  the  contract  is 
not  to  be  completed  within  one  year.  These 
cases  are  clearly  within  the  statute.''  2.  Where 
it  is  evident  from  the  subject-matter  of  the  con- 
tract that  the  parties  had  in  contemplation  a 
longer  period  than  one  year  as  the  time  for  its 
performance.  These  cases  are  within  the  stat- 
ute.y  3.  Where  the  time  for  the  performance 
of  the  contract  is  made  to  depend  upon  some 
contingency,  which  may  or  may  not  happen 
within  one  year.  These  cases  do  not  come 
within  the  statute.* 

Fraudulent  Conveyance.     See  Convbv- 

ANCES. 

Freig^bt.  See  Bailments;  Carriers ;  Maritims 
Law. 
Fug^ltive  from  Justice.  See  Criminal  Law  ; 

International  Law. 

Full  A|;e.  See  Persons. 

Furniture.  See  Personal  Property. 

Furtber  Assurance.  See  Convktancbs; 
Deeds. 

Future  Estate.  See  Estates. 

Gallon.  Sec  Weights  and  Measures. 

GhoI.  See  Criminal  Law  ;  Prison. 

Garden.  See  Real  Property;  House. 

Garnisbment.  See  Practice  ;  Attachuxnt. 
Law,  335.  t-3Day,  476;  i  Cromp  M.&R.266.  n-3 
M.  &  W.  348 ;  20  Ala.  412  ;  15  Wend  380 ;  i  Met.  313  ; 
II  Id.  251 ;  II  111.  157  ;  5  Barb.  379;  10  Id.  496;  iB  Id. 
347;  4  Sandf.  Ch.  73.  v-33  Conn.  814 ;  C.  B.  iSjj, 
Eng.  L.  &  Eq.  252.  w-i  B.  &  Aid.  732 ;  i  Cfomp-  M. 
&  R.  3o;  9  B.  &  C.  393  ;  yCowen,  363;  aN.  H.  515; 
11  Vt.  428;  I  Id.  69:  10  Id.  338;  5  Mo.  46;  13  W«nd. 
307;  5  Id.  304;  3  Hill,  130;  Gray,  131 ;  4  Scott  (N.' 
R.)  77  ;  3  C.  B.  835 ;  8  Met.  59  ;  31  Me.  555 ;  i  Denio, 
602  ;  3  Barb.  Ch.  331  ;  3  Harring.  (Del.)  27;  9  B.  ft  C. 
392;  18  Pick.  569;  12  Conn.  455;  15  Me.  201 ;  15  Wand. 
33fi-  y-"  East.  142;  20  Me.  119;  10  Johns.  344;  3 
Burr.  1278;  19  Piclc.  364.  z-Skin.  353;  3  Burr.  1378; 
4  Bing.  40  ;  II  Met.  411 ;  18  Mo.  88  :  3  Exch.  633 ;  4  B. 
Mon.  41s:  16  East.  ISO;  3  C.  B.  8e8;  iH.  ftN.  8<: 
10  Wend.  426;  3t  Pick.  97;  19^.364;  7  Met.  46;  4 
Md.  476;  ao  Conn.  495;  4  Dana,  437;  31  Vt.  iSa;  t 
Saaf.  Ch.  91. 


GIFTS. 


461 


Cl«<«.  Se«  Real  Property;  Fbncb;  Turnpikb. 

CInaicer.  Se«  Oppicb  and  Officer. 

Cleneral  Issue.  See  Plbaoikg. 

GIFTS.  See  Convryancks,  "  Wills ;  "  Sales. 

A  GIFT  is  a  voluntary  conveyance;  that  is,  a 
conveyance  that  is  not  founded  on  the  con- 
sideration of  money  or  blood ;  a  transfer  of  the 
title  to  property  to  one  who  receives  it  without 
paying  for  it.»  The  act  by  which  the  owner  of 
a  thing  voluntarily  transfers  the  title  and  pos- 
session of  the  same  from  himself  to  another 
person  without  any  consideration.  Gifts  inter 
vivos  are  gifts  made  from  one  or  more  persons, 
without  any  prospect  of  immediate  death,  to 
one  or  more  others.  Gifts  causa  mortis  are 
gifts  made  in  prospect  of  death. 

Between  Living  Persons. 

This  is  a  contract  which  takes  place  by  the 
mutual  consent  of  the  giver,  who  divests  him- 
self of  the  thing  given  in  order  to  transmit  the 
title  of  it  to  the  donee  gratuitously,  and  the 
donee,  who  accepts  and  acquires  the  legal  title 
to  it.  This  gift  takes  place  when  the  giver  is 
not  in  any  immediate  apprehension  of  death, 
which  distinguishes  it  from  a  gift  mortis  causal 
Gifts  inter  vivos  have  no  reference  to  the 
future,  and  go  into  immediate  and  absolute 
effect.  Delivery  is  essential;  without  actual 
possession  the  title  does  not  pass.  A  mere  in- 
tention or  naked  promise  to  give,  without  some 
act  to  pass  the  property,  is  not  a  gift.  There 
exists  repentance  (the  locus paenitentia)  so  long 
as  the  gift  is  complete  and  left  imperfect  in  the 
mode  of  making  it.' 

The  subject  of  the  gift  must  be  certain ;  and 
there  must  be  the  mutual  consent  and  concur- 
rent will  of  both  parties.  Delivery  must  be 
according  to  the  nature  of  the  thing.  It  will 
have  to  be  an  actual  delivery,  so  far  as  the 
subject  is  capable  of  delivery.  If  the  thing  be 
not  capable  of  actual  delivery,  there  must  be 
some  act  equivalent  to  it.  The  donor  must 
part  not  only  with  the  possession,  but  with  the 
dominion.  If  the  thing  given  be  a  chose  in 
action,  the  law  requires  an  assignment  or  some 
equivalent  instrument,  and  the  transfer  must  be 
executed.* 

When  the  gift  is  perfect  by  delivery  and  ac- 
ceptance, it  is  then  irrevocable  unless  it  is  pre- 
judicial to  creditors,  or  the  donor  was  under 
legal  incapacity,  or  was  circumvented  by  fraud. 
If  a  man  intending  to  give  a  jewel  to  another 
say  to  him,  "  Here,  I  give  you  my  ring  with 
the  ruby  in  it,"  etc.,  and  with  his  own  hand 
delivers  it  to  the  party,  this  will  be  a  good  gift 
notwithstanding  the  gift  bear  any  other  jewel, 
being  delivered  by  the  party  himself  to  the 
person  to  whom  given.*  Where  a  father  bought 
a  ticket  in  a  lottery,  which  he  declared  he  gave 

»-Vicat.  b-i  Bouv.  Inst.  n.  71a  ;  see  also  Cooper 
Inst.  H.  474,  475  :  U.  S.  Dig.  Tit.  Gift,  e-7  Johns.  26. 
rt-i  Svranst.  Ch.  436;  1  Dev.  309.  e-Bac.  Max.  f-Se« 
10  Johns.  293.  jf-2  Bl.  Coram.  514.  h-a  Str.  777;  see 
I  Bligh.  (N.  S.)  531-  1-2  Ves.  Ch.  no  ;  1  Sim.  &  S. 
Ch.  245.  1-3  Binn.  370.  k-Id. :  3  Madd.  Ch.  184.  I- 
a3  Penn.  St.  59  ;  a  Brawn  Ch.  6ia.  in-4  Brown  Ch. 
986.  j-sB.  &C.  sot;  i4Pick.  ao4;  3  Barb.  Ch.  76; 
3  Barb.  04;  at  Vt.  338;  see  34  Pick,  aoi ;  33  N.  H. 
j9o;  iS  Conn.  410;  xiMd.  424;  4Cush.  87.    0-3  Bion.   i 


to  his  infant  daughter  E.,  and  wrote  her  name 
upon  it,  and  after  the  ticket  had  drawn  a  prize 
he  declared  that  he  had  given  the  ticket  to  his 
child  E.  and  that  the  prize  money  was  hers : 
this  was  held  sufiScient  for  a  jury  to  infer  all 
the  formality  requisite  to  a  valid  gift  and  that 
the  title  in  the  money  was  complete  and  vested 
in  E.f 

In  Prospect  of  Death. 

This  is  a  gift  made  by  a  person  in  sickness, 
who,  apprehending  his  dissolution  near,  de- 
livers, or  causes  to  be  delivered,  the  possession 
of  any  personal  goods  to  keep  as  his  own  in 
case  of  the  donor's  decease.*  It  differs  from 
a  legacy,  inasmuch  as  it  does  not  require  proof 
in  the  court  of  probate.^  And  no  assent  is  re- 
quired from  the  executor  to  perfect  the  donee's 
title.'  It  differs  from  a  gift  inter  vivos,  because 
it  is  ambulatory  and  revocable  during  the 
donor's  life,  because  it  may  be  made  to  the 
wife  of  the  donor,  and  because  it  is  liable  for 
his  debts.  To  constitute  a  good  gift  mortis 
causa:  I.  The  thing  given  must  be  personal 
property  ;J  a  bond,*  bank  notes,'  and  a  check 
offered  for  payment  during  the  life  of  the  donor 
will  be  so  considered."  Not  so  a  promissory 
note  of  the  sick  man  made  in  his  last  illness." 
2.  The  gift  must  be  made  by  the  donor  in  peril 
of  death,  and  to  take  effect  only  in  case  the 
giver  die."  3.  There  must  be  an  actual  deliv- 
ery of  the  subject  to  or  for  the  donee,  in  cases 
where  such  delivery  can  be  made,P  but  such 
delivery  can  be  made  to  a  third  person  for  the 
use  of  the  donee.i 

A  gift  causa  mortis  does  not  require  the 
executor's  assent,'  is  revocable  by  the  donor 
during  his  life'  by  recovery*  or  resumption  of 
possession,"  but  net  by  a  subsequent  will,^  but 
may  be  satisfied  by  a  subsequent  legacy.'  It 
may  be  of  any  amount  of  property." 

Such  gifts  are  liable  for  the  testator's  debts.! 

Oill.  See  Weights  and  MBAStmss. 

Gist.  See  Pleading. 

Good  Will.  See  Contracts ;  Salb. 

Goods  and  Chattels.  See  Convbyancbs, 
"Wills." 

Government.  See  International  Law. 

Grain.  See  Emblements  ;  Weights  and  Meas- 
ures. 

Grand  Jnry.  See  Practicb. 

Grand  Iiarceny.  See  Criminal  Law. 

Grandchildren.  See  Persons;  Relations. 

Grandfather.  See  Persons;  Relations. 

Grandmother.  See  Persons;  Relations. 

Grant.  See  Conveyances  ;  Real  Property. 

Grant,  Bargrain,  and  Sell.  See  Convby- 
ancbs. 

Grantee.    See  Conveyahces. 

Grantor.  See  Conveyances. 

Gross  Adventure.  See  MABrriMB  Law. 

Gross  Averagre.  See  Maritime  Law. 

Ground-rent.  See  Convbyancbs  ;  Rbai.  Prop- 

BRTY. 

370 ;  4  Burn.  Eccl.  L.  no.  p-3  Binn.  370 ;  3  Ves.  Ch. 
120  ;  a  Gill.  &  J.  a68  ;  4  Gratt.  472  ;  31  Me.  4aa  ;  14 
Barb.  343 ;  7  Eng.  L.  &  Eq.  134 ;  see  9  Ves.  Ch.  j  ;  7 
Taunt.  224.  q-3  Binn.  370.  r-a  Ves.  Ch.  jao.  s-a 
Bradf.  Surr.  339  ;  97  Me.  196;  3  Wood.  &  M.  C.  C. 
519;  34  N.  H.  439.  t-3  Macn.  &  G.  664 ;  Wms.  Ex. 
t*,!.  u-7  Taunt.  333  ;  a  Ves.  Sen.  Ch.  433.  v-Prec 
Ch.  300.  w-i  Ves.  Sen.  Ch.  314 ;  and  see  i  Ired.  Ch. 
130.  x-34Vt.  S91.  y-t  PhAi.Ch..^;  tee  18  Ala. 
(N.  S.)  37. 


46i 


IGNORANCE. 


Growinif  Crops.  See  £mblbments  ;  Personal 
Propertv. 

Onarantee.  See  Bonds,  Notes,  and  Bills  ; 
Contracts,  "  Payment." 

Guarantor.  See  Bonds,  Notes,  and  Bills; 
Contracts,  "  Payment." 

Guaranty.  See  Bonds,  Notes,  and  T'Ills; 
Contracts,  "  Payment." 

Guardian.  See  Persons. 

Guardian  ad  I^itein.  See  Persons. 

Guerilla.  See  Military  Law. 

Guest.  See  Bailments;  Innkeepers. 

Guilty.  See  Pleading. 

Habeas  (Corpus.  See  Practice. 

Habendum.  See  Conveyances. 

Habitation.  See  Domicil;  Real  Property, 
"  House." 

Half-blood.  See  Persons;  Relations. 

Hair-blood—Brotber— Sister.  See  Per- 
sons ;  Relations. 

Half-cent— Dime— Dollar— Eaf^Ie.  See 
Money. 

Hallucination.  See  Medical  Law. 

Handwriting'.  See  Evidence;  Wkiting. 

If  arbor.  See  Real  Property  ;  Wati;k. 

Haven.  See  Real  Property  ;  Watex. 

Hawker.  See  Sales. 

Hazardous  Contract.  See  Contracts;  In- 
surance. 

Head.  See  Real  Property  ;  Water. 

Head  of  a  Family.  See  Persons. 

Health.  See  Medical  Law. 

Hearsay  Evidence.  See  Evidence. 

Heifer.  See  Animals. 

Bleirs.  See  Conveyances. 

Herniapbrodites.  See  Medical  Law. 

Hij^ll  ISeas.  See  Real  Property  ;  Water. 

Hi$|^hwater  Mark.  See  Real  Property; 
Water. 

Hi;{'hways.  See  Real  Property. 

His  Kxcellency.  See  Office  and  Officers. 

His  Honor.  See  Office  and  Officers. 

Holder.  See  Bonds,  Notes,  and  Bills. 

Holding  Over.  See  Landlord  and  Tenant. 

Homestead.  See  Real  Property. 

Homicide.  See  Criminal  Law. 

Horses.  See  Animals;  Bailments;  Innkeepers. 

Ilonr.  See  Time. 

House.  See  Real  Property  ;  House. 

House-breakins:.  See  Criminal  Law. 

Household.  See  Persons. 

Household  Furniture.  See  Conveyances, 
"  Wills  ;"  Personal  Property. 

Household  Stuff.  See  Conveyances,"  Wills ;  " 
Personal  Property. 

Householder.  See  Persons,  "  Head  of  a  Fam- 
ily." 

Housekeeper.  See  Persons,  "HeadofaFam- 
ily  " 

Hunger.  See  Medical  Law. 

Huntin;;.  See  Animals. 

Husband.  See  Marriage. 

Idem  Konans.  See  Pleading. 

Identity.  See  Evidence. 

Idiocy.  See  Medical  Law. 

Idiots.  See  Persons. 

IGNORANCE.  See  Acts;  Evidence;  Law. 

Ignorance  of  fact  is  the  want  of  knowl- 
edge as  to  the  fact  in  question.  It  would  be 
an  error  resulting  from  ignorance  of  fact,  if  a 
man  believed  a  certain  woman  to  be  unmarried 
and  free,  when  in  fact  she  was  a  married 
woman ;  but  if  he  were  to  marry  her  under  that 
belief  he  would  not  be  criminally  responsible.' 
Ignorance  of  the  laws  of  a  foreign  government, 
or  of  another  State,  is  ignorance  of  fact.*"  Ig- 
norance of  fact  excuses  ;  ignorance  of  law  does 
not  excuse.' 

Ignorance  of  law  is  the  want  of  knowl- 

a-6  Allen,  591.  b-o  Pick.  112 ;  see,  for  the  difference 
oetween  ignorance  of  law  and  ignorance  of  fact,  9  Pick. 
113.    C-i  Co.  177 ;  4  Bouv.  Inst.  n.  3838;  Brown  Max. 


edge  of  those  laws  which  it  is  our  duty  to 
understand,  and  which  every  man  is  presumed 
to  know.  Thus,  for  example,  the  law  forbids 
any  one  marrying  a  woman  whose  husband  is 
living;  if  any  man,  then,  imagined  he  could 
marry  such  a  woman  he  would  be  ignorant  of 
the  law ;  and  if  he  married  her  he  would  com- 
mit an  error  as  to  a  matter  of  law,  and  in 
doing  this  would  be  presumed  to  know  the  law 
respecting  bigamy,  and  that  he  knew  that  he 
was  committing,  and  that  he  intended  to  com- 
mit, the  offence  of  bigamy;  and  this  is  true  in 
regard  to  all  often ces. 

Every  man  may  acquire  a  knowledge  of  the 
laws  that  have  been  promulgated ;  and  a  neg- 
lect to  become  acquainted  with  them  is  volun- 
tary ignorance.** 

Illiterate.  Sec  Contracts;  Signature;  Writ- 
ing. 

Illnsion.  See  Medical  Law. 

Imbecility.  See  Medical  Law. 

Immaterial  Averment.  See  Pleading. 

Immigrration.  See  Domicil. 

Immoral  Consideration.  See  Contracts, 
"  Consideration." 

Immorality.  See  Criminal  Law. 

Immovables.  See  Property. 

Impairing^  Obiigration,  etc.  See  Con- 
tracts. 

Impanel.  See  Practice. 

Imparlance.  See  Practice. 

Impeachment.  See  Evidence,  "Witnesses." 

Impertinent;  See  Pleading;  Practice. 

Implements.  See  Practice. 

Implication.  See  Practice. 

Impotence.  See  Medical  Law. 

Imprisonment.  See  Contracts,  "Coercion," 
"Compulsion,"  "  Duress;"  Practice,  "Arrest." 

In  Chief.  See  Evidence. 

In  Custodia  LiC^is.  See  Property,  etc. 

In  Re.  See  Practice. 

In  Rem.  See  Practice. 

In  Terrorum.  See  Conveyances,  "Wills." 

In  Testimony  Whereof.  See  Acknowledg- 
ments. 

In  Witness  Whereof.  See  Conveyances. 

Inadequacy.  See  Contracts;  Conveyances. 

Incapacity.  See  Contracts. 

Incend.«.ary.  See  Criminal  Law. 

Inception.  See  Conveyances,  "Wills." 

Incest.  See  Criminal  Law. 

Incident.  See  Real  Property. 

Incompatibility.  See  Office  and  Officers. 

Incompetency.  See  Evidence,  "  Witnesses." 

Incorporeal  Hereditaments.  See  Real 
Property. 

Incumbrances.  See  Conveyances;  Mort- 
gages ;  Real  Property. 

Indemnity.  See  Bonds  or  Obligations  ;  Con- 
tracts. 

Indenture.  See  Conveyances,  "  Deeds." 

Indian.  See  Persons. 

Indictment.  See  Practice. 

Indirect  Evidence.  See  Evidence. 

Indorsement.  See  title  Bonds,  Notes,  an* 
Bills. 

Inducement.  See  Contracts,  "Consid':ration> 

Induljcenee.  See  Contracts  ;  Suretyship. 

Inevitable  Accident.  See  Accident. 

Infamy.  See  Criminal  Law. 

Infant.  See  Persons. 

Infanticide.  See  Medical  Law. 

Inference.  See  Evidence,  "Experts,"  "Pre- 
sumptive Evidence." 

Iniidel.  See  Evidence,  "Witnesses." 

Information.  See  Practice. 

(3d  Lond.  Ed.1  231  ;  i  Foubl.  Eq.  (4th  Ed.)  iiq,  n. ;  8 
Wend.  267,  284  :  18  Id.  586,  588  ;  6  Paiga,  189,  195  ;  i 
Edw.  Ch.  467,  472  ;  1  Story  Eq.  Jur.  g  111.  U-Doct.  & 
Stu.  I,  46;  Plowd.  343. 


INSURANCE. 


463 


Informer.  See  Criminal  Law. 

Infring^ement.  See  Copyrights  ;  Patbnts. 

Inbabitant.  See  Domicil. 

Inheritance.  See  Rbal  Property. 

Initial.  See  Name. 

Injnnctlon.  See  Practice. 

Injuries.  See  Torts. 

Inmate.  See  Real  Property,  "  Dwelling." 

Inns.  See  Bailmeni-s. 

Innkeepers.  See  Bailments. 

Inqnest.  See  Inquisition;  Medical  Law, 
"  Death." 

Innuendo.  See  Pleading. 

Inquisition.  See  Practice. 

Insanity.  See  Medical  Law. 

Insolvency.  See  Estates. 

Inspection.  See  Practice. 

Instalments.  See  Contracts,  "Payments," 
■  Performance." 

Instanter.  See  Time. 

Instrnctlons.  See  Practice. 

Insurable  Interest.  See  Insurance. 

IJTSITRANCE.  See  Bailments. 
Insurance  is  a  contract  whereby,  for  an 
agreed  premium,  one  party  undertakes  to 
indemnify  another  against  loss  on  a  specified 
subject  by  specified  perils.  The  party  agree- 
ing to  make  the  indemnity  is  usually  called 
the  insurer  or  underwriter;  the  party  to  re- 
ceive the  indemnity  is  called  the  insured  or 
assured;  the  agreed  consideration  is  called  the 
premium;  the  written  contract  is  called  the 
policy;  the  events  insured  against  are  termed 
risks  or  perils;  and  the  subject,  right,  or  in, 
(erest  to  be  protected  is  denominated  the  insur- 
able interest.'  Insurance  against  accidents  to 
travellers  is  confined  to  risks  in  travel,  etc. 
Insurance  against  fire  on  land  to  buildings  and 
all  species  of  property,  real  or  personal,  that  is 
subject  to  destruction  or  direct  damage  by  fire. 
Insurance  on  lives  is,  in  general,  upon  human 
life,  but  is  also  made  upon  the  lives  of  domes- 
tic animals  or  such  as  are  in  possession  of  the 
insured.  Insurance  on  risks  in  carriage  and 
navigation  is  upon  vessels  and  other  navigable 
craft,  freight,  cargo,  and  liens  on  either  by 
bottomry,  respondentia,  mortgage  for  commis- 
sions or  otherwise,  and  on  profits.  Companies 
who  issue  policies  of  insurance  are  incorpor- 
ated, and  are  either  stock  companies,  mutual 
companies,  or  a  mixture  of  the  two.  In  a 
stock  company  the  members  or  stockholders 
pay  in  a  certain  capital  which  is  liable  for  the 
contracts  of  the  company.  In  a  mutual  com- 
pany the  members  are  themselves  the  parties 
insured  ;  in  other  words,  all  the  members  con- 
tribute premiums  to  the  fund  which  is  liable  to 
each  member  for  loss,  according  to  the  terms 
of  the  contract.  In  the  mixed  class  certain 
members,  who  may  or  may  not  be  insured, 
contribute  a  certain  amount  of  the  capital,  for 
which  they  hold  certificates  or  shares,  and  are 
entitled  to  interest  on  the  same  at  a  stipulated 
Tate,  or  to  an  agreed  share  of  the  surplus  re- 
ceipts, after  payment  of  losses  and  expenses  to 
be  estimated  at  certain  periods. 

»-i  Phillips  Ins.  J?  i-s.  b-2  Phill.  Ins.?  1848;  4 
Covr.  645.  c-16  T.  B.  Monr.  252  ;  2  BarLi.  68.  d-2 
Phill.  Ins.  Ch.  23,  g^  1-3;  2  Dutch.  268;  6  Gray,  497  ; 
7  Id.  261;  25  Barb.  497;  18  N.  Y.  376;  19  Id.  305;  25 
Conn.  55,  465,  542  :  26  Id.  42;  12  La.  122;  37  N.  H. 
35  ;  13  Md.  348 ;  i  Grant  Cas.  472  ;  23  Penn.  St.  50,  72  ; 

30 


The  business  of  insurance  companies  is 
usually  transacted  through  agencies.  The 
agent  for  effecting  insurance  may  be  such 
either  by  appointment,  or  the  recognition  of 
his  acts  done  as  such.*  He  may  be  agent  for 
either  of  the  parties  to  the  policy,  or  for  dis- 
tinct purposes,  or  for  both.*  An  insurance 
agency  may  be  more  or  less  extensive  accord- 
ing to  the  express  or  implied  stipulations  and 
understanding  between  him  and  his  principals. 
It  may  be  for  filling  up  and  issuing  policies 
signed  in  blank  by  his  principals;  for  trans- 
mitting applications  to  his  principals,  filled  up 
by  himself  a.s  their  agent,  or  that  of  the  appli- 
cant ;  for  receiving  and  transmitting  premiums ; 
for  adjusting  and  settling  losses;  or  granting 
liberties  and  making  new  stipulations;  or  for 
any  one  or  more  of  these  purposes.*  Notice 
to  an  agent  of  matters  within  his  commission 
is  notice  to  the  company.* 

Agreement  for  Insurance.  An  agree- 
ment containing  specific  stipulations  is  often 
made  in  short  terms  preliminary  to  the  filling 
out  and  delivery  of  an  insurance  policy.  Such 
an  agreement,  specifying  the  rate  of  the  pre- 
mium, the  subject,  and  risk,  and  amount  (0  be 
insured  in  general  terms,  and  being  assented 
to  by  the  parties,  is  binding.'  Though  it  is 
usually  in  writing,  it  may  nevertheless  be  by 
parol,  or  by  parol  acceptance  of  a  written  pro- 
posal.s  It  must  be  in  such  form  or  expression 
that  the  parties,  subject,  and  risk  can  be  there- 
by distinctly  known,  either  by  being  specified 
or  by  references  so  that  it  can  be  definitely  re- 
duced to  writing.''  Such  an  agreement  must 
have  an  express  or  implied  reference  to  some 
form  of  policy.  To  be  valid  it  must  be  on  a 
legal  interest  against  legal  risks.*  When  the 
agreement  is  by  a  communication  between 
parlies  at  a  distance,  an  offer  by  either  will  be 
binding  upon  both  on  a  despatch  by  the  other  of 
his  acceptance  within  a  reasonable  or  the  pre- 
scribed time,  and  prior  to  this  offer  having  been 
countermanded  .J 

See  Applications,  etc.,  below. 

Applications  and  Representations  for 
Insurance.  The  preliminary  statement  mac'a 
by  a  party  applying  for  an  insurance  on  life,  ct 
against  fire,  is  called  the  application.  It  gen- 
erally consists  of  written  answers  to  interroga- 
tories proposed  by  the  company  applied  to  re- 
specting the  proposed  subject.  It  corresponds 
to  the  "representations"  preliminary  to  mari- 
time insurance.  It  is  usually  referred  to  ex 
pressly  in  the  policy  as  being  the  basis  or  a 
part  of  the  contract,  and  this  reference  is  in 
effect  a  warranty  of  the  truth  of  the  statements." 
An  oral  misrepresentation  of  a  material  fact 
will  defeat  a  policy  on  life,  or  against  fire,  no 
less  than  in  maritime  insurance,  on  the  ground 

26  Id.  50.  e-T6  Barb.  159:  i  Eng.  L.  &  £q.  140:  6 
Gray,  14.  f-i  Phill.  Ins.  Ch.  g  3;  2  Curt.  C.  C.  277; 
19  N.  Y.  305.  g'-2  Curt.  C.  C.  524  ;  19  How.  318  ;  31 
Ala.  711.  ta-x  Phill.  Ins.  §2  6-14,  c/ j^^.;  2  Parsons 
Marit.  L.  19;  19  N.  Y.  305.  i-i  Phill.  Ins.  Ch.  3,  ?  a ; 
Id.  Ch.  10;  19  N.  Y.  184.  J-i  Phill.  Ins.  ??  17,  21 ;  27 
Penn.  St.  263.      k-PhUl.  Ins.  Ch.  7,  15,  i6'. 


464 


INSURANCE. 


of  fraud.'  Insurance  against  fire  and  on  life 
rests  upon  the  same  general  conditions  of  good 
faith  »s  maritime  insurance;  but  in  the  first 
two  classes  the  contract  is  usually  based 
mainly  upon  statements  by  the  applicant  in  his 
written  replies  to  the  numerous  inquiries  ex- 
pressly referred  to  in  the  policy,  which  answers 
are  thus  made  express  warranties,  and  must, 
accordingly,  be  strictly  true,  whether  their 
being  so  is  or  is  not  material  to  the  risk ;  the 
inquiries  are  intended  to  cover  all  material 
circumstances,  subject,  however,  to  the  princi- 
ple, applicable  to  all  contracts,  that  fraud  by 
either  party  will  exonerate  the  other  from  his 
obligations,  if  he  so  elects.* 

See  Misrepresentation,  below. 

Insurance  Policies.  A  policy  of  insur- 
ance is  the  contract  or  instrument  whereby  in- 
surance is  made  by  the  insurer  or  underwriter 
in  favor  of  the  person  insured,  expressed,  im- 
plied, or  intended,  against  some  risk,  peril  or 
contingency  in  reference  to  some  subject.  It 
is  usually  against  accident  or  fire,  on  a  life,  or 
marine.  An  interest  policy  is  one  when  the 
party  insured  has  a  real  substantial  assignable 
interest  in  the  thing  insured.  An  open 
f)olicy  is  one  on  which  the  value  is  to  be 
proved  by  the  party  insured.™  Also,  one  in 
which  an  aggregate  amount  is  expressed  in 
the  body  of  the  policy,  and  the  specific  amounts 
and  subjects  are  to  be  indorsed  from  time  to 
time."  A  valued  policy  is  one  where  a  value 
has  been  set  on  the  goods  or  ship  insured,  and 
the  value  inserted  in  the  policy  in  the  nature 
of  liquidated  damages.  In  such  a  policy  the 
value  of  the  subject  is  expressly  agreed,  or  is, 
as  between  the  parties,  the  amount  insured. 
A  wager  policy  is  a  pretended  insurance 
founded  on  an  ideal  risk,  when  the  insured 
has  no  interest  in  the  thing  insured,  and  can, 
therefore,  sustain  no  loss  by  the  happening  of 
any  of  the  misfortunes  insured  against.  Such 
policies  are  strongly  reprobated." 

Every  policy,  whether  accident,  fire,  life,  or 
marine,  specifies  or  imports  parties,  and  specifies 
the  subject  or  interest  intended  to  be  insured,  the 
premium  on  the  consideration,  and  the  amount 
insured,  the  risks  or  perils  for  which  indem- 
nity is  stipulated,  and  the  period  of  the  risk,  or 
the  terminus  from  whence  and  where  to. 

Blanks.     If  a  blank  is  left  in  a  policy  of  in- 

k-PhiU.  Ins.  ?  650.      l-i    Phill.  Ins.  Ch.  7,  ??  15,  16  ; 

5  Hill,  188;  2  Hall,  632;  7  Barb.  570;  2  Dcnio,  75;  10 
Pick.  535  :  6  Gray,  288;  6  Cush.  42,  449  ;  2  Rob.  266 ; 
24  Penn.  St.  320  ;  3  Md.  341  ;  2  Ohio,  452  ;  21  Conn,  ig  ; 

6  Humphr.  176;  6  McLean  C.  C.  324;  8  How.  235:1 
W.  Bl.  32s  :  6  Taunt.  186 ;  8  B.  &  "C.  s86  :  2  M.  &  W. 
505  ;  5  Bingh.  533  ;  3  C.  &  P.  353  ;  z  M.  &  R.  328.  m- 
1  Phill.  Ins.  ?§  4,  6,  7,  27,  439.  948,  1178.  11-12  La.  An. 
259;  19  N.  Y.  305  ;  6  Gray,  214.  0-3  Kent  Comm.  225. 
|»  Mahoy.b.  2,  Ch.  7,§i4;  Park.  Ins.  22;  Weskettlns. 
42.  q-Marshall  Ins.  336 ;  2  Parsons  Marit.  L.  27.  r-i 
Phill.lns.  Ch.  i,gi3;  8  N.  Y.  351;  18  Id.  385;  8  Cush. 
393 ;  9  Id.  479  ;  10  Id.  356  ;  17  Penn.  St.  253  ;  19  Id.  45  ; 
23  Id.  262  ;  32  Id.  381  ;  29  Eng.  L.  &  Eq.  111.215  :  33ld. 
514;  2  Duer,4i9,  554;  3  Id.  435;  5  Id.  517,  594;  14  Barb. 
383;  2  Id.  635;  16  Mo.  98;  22  Id.  82;  22  Conn.  235  : 
J3  B.  Mon.  311 ;  16  Id.  242  ;  3  Ind.  23  ;  ii  Id.  17: ;  28 
N.  H.  234  ;  29  Id.  182  ;  2  Curt.  C.  C.  322,  610 ;  37  Me. 
137;  4  Zabr.  447;  18  111.  553;  4  R.  I.  159;  5  Id.  426;  6 
Cray,  214,  257;  7  Id.  261 ;  8  Ohio,  458.     »-i  Phill.  Ev. 


surance  for  the  name  of  the  place  of  destination 
of  a  ship,  it  will  avoid  the  policy.' 

A  date  is  necessary  to  the  validity  of  a  policy 
of  insurance ;  but  where  there  are  separate  un- 
derwriters, each  sets  down  the  date  of  his  own 
signing,  as  this  constitutes  a  separate  contract.' 

The  duration  of  the  risk  under  a  marine 
insurance,  or  one  on  inland  navigation,  is  eithe."- 
from  one  geographical  terminus  to  another,  or 
for  a  specified  time  ;  that  of  an  accident  or  life 
policy  is  either  for  days,  weeks,  months,  a 
term  of  years,  or  for  life ;  that  of  a  fire  policy 
is  for  a  specified  time. 

It  is  a  leading  principle  as  to  the  construction 
of  a  policy  of  insurance,  that  its  distinguishing 
character  as  a  contract  is  to  be  favored  by  the 
law.''  Records  and  documents  expressly  re- 
ferred to  in  the  policy  are,  in  effect,  for  the  pur- 
pose of  reference,  a  part  of  the  policy  or  contract 
of  insurance.* 

A  policy  may  take  eflfect  on  actual  or  construc- 
tive delivery,  and  may  be  retrospective  where 
neither  party  knows  the  prior  circumstances.* 

In  marine  insurance  the  contract  has  neces- 
sarily more  implied  reference  to  customs  and 
usages  than  most  other  contracts ;  or,  in  other 
words,  the  larger  proportion  of  the  stipulations 
are  not  specifically  expressed  in  the  instrument." 
Thence  it  has  been  thought  to  be  an  imperfect, 
obscure  and  confused  instrument.''  But  the  diffi- 
culty in  giving  a  practical  construction  seems  to 
arise  more  from  the  complication  of  the  circum« 
stances  necessarily  involved,  than  from  any  re- 
mediable defects  in  its  provisions  or  phraseology. 
New  provisions  are  needed  from  time  to  time 
to  adapt  the  contract  to  new  circumstances. 

A  mistake  in  filling  up  a  policy  may  be  cor- 
rected by  order  of  a  court  of  equity  or  of  equity 
jurisdiction  or  powers.'* 

Policies  of  insurance  are  liberally  construed.* 

ABANDONMENT  is  a  term  used  only  in 
reference  to  risks  in  navigation ;  but  the  princi- 
ple is  applicable  to  fire  insurance  where  there  are 
remnants,  and  sometimes,  also,  under  stipula- 
tions in  life  policies  in  favor  of  creditors.^  The 
object  of  abandonment  being  to  recover  the 
whole  value  of  the  subject  of  the  insurance  it 
is  requisite  only  where  the  lubject  itself,  or  the 
remains  of  it,  or  claims  on  account  of  it,  sur- 
vive the  peril  which  is  the  occasion  of  the  loss.* 

??  70-74  ;  22  Conn.  235  ;  37  Me.  J37;  20  Barb.  468;  23 
Penn.  St.  50;  23  Eng.  L.  &  Eq.  514;  2  N.  H.  551  ;  33 
Id.  203;  10  Cush.  337.  t-i  Phill.  Ins.  Ch.  11,  J  i  ;  i 
Ind.  196;  27  Penn.  St.  268:  42  Me.  259;  25  Conn.  207; 
17  N.  'Y.  415;  2  Dutch.  268  ;  5  Gray,  52.  u-i  Phill. 
Ins.  J  119.  V-i  Phill.  Ins.  ?6,  n.3;  i  East.  579;  5 
Cranch.  342;  i  Burr.  347.  w-i  Phill.  Ins.  §  117;  5  B. 
&  P.  322;  2  Caines,  339;  i  'Wash.  C.  C.  415:  1  Ves. 
Sr.  317,  4=;6-  2  Cranch.  441 ;  2  Johns.  330;   1  .^rk.  545  ; 

1  Paige  Ch.  278  ;  2  Curt.  C.  C.  277.  x-i  Phill.  Ins.  { 
6  ;  I  Binn.  98 ;    19  Penn.  St.  45  ;  23  Id,  262  ;  32  Id.  351 ; 

2  Barb.  623;  14  Id.  383;  2  Duer,  556;  5  Id.  594  :  8"  Id. 
351  ;  13  Id.  89  :  13  B.  Mon.  311 ;  16  Id.  242  ;  3  Ind.  23 ; 
II  Id.  171  :  I  R.  I.  38,  426;  27  Ala.  (N.  S.)  77:  33  Me. 
242  ;  37  Id.  137;  38  Id.  414  ;  9  Cush.  479  ;  10  Id.  337;  2 
Gray,  207;  6  Id.  214;  7  Id.  261  ;  19  N.  H.  580;  29  Id. 
132 ;  4  Zabr.  447;  22  Mo.  82 ;  27  Id.  152  ;  18  Id.  553  ;  8 
Ohio  St.  458  ;  22  Conn.  235  ;  2  Curt.  C.  C.  322  ;  29  Eng. 
L.  &  Eq.  Ill ;  33  Id.  514.  y-2  Phill.  Ins.gJ  1490,1^14, 
'.S'S  ;  3  Kent.  Comm.  265  ;  16  Ohio  St.  200.  K-a  PhilL 
Ins.  ^  1507,  1516 ;  36  Eng.  L.  &  Eq.  198. 


INSURANCE. 


46s 


In  such  case  the  assured  must  elect,  immedi- 
ately upon  receiving  intelligence  of  a  loss, 
whether  to  abandon  to  the  company — he  can- 
not delay  for  the  purpose  of  speculating  on  the 
state  of  the  markets.'  The  right  to  abandon  is 
waived  by  commencing  full  repairs,  but  not  by 
temporary  repairs  ;••  but  is  not  lost  by  reason 
of  the  enhancement  of  the  loss  through  the 
mere  negligence  or  mistakes  of  the  master  of 
the  vessel,  or  of  the  crew,  but  it  is  too  late  to 
abandon  after  the  arrival  in  specie  at  the  port 
of  destination.  An  inexpedient  or  unnecessary 
sale  of  the  subject  by  the  master  does  not 
strengthen  the  right." 

Abandonment  may  be  made  upon  informa- 
tion entitled  to  credit,  but  if  made  specula- 
tively, upon  conjecture,  it  is  void ;  and  it  must 
be  made  without  delay  after  reasonable  reliable 
information  of  loss  is  received;  otherwise  the 
right  will  be  waived,  the  assured  not  being  per- 
mitted to  wait  in  order  to  speculate  upon  the 
state  of  the  markets.*  In  the  absence  of  any 
stipulation  on  the  subject  no  particular  form  of 
abandonment  is  required ;  it  may  be  in  writing 
or  oral ;  in  express  terms  or  by  obvious  impli- 
cation ;  but  it  must  be  absolute  and  uncondi- 
tional and  the  ground  for  it  must  be  stated.* 
Acceptance  may  cure  a  defect  in  abandon- 
ment, but  is  not  necessary  to  its  validity.'  Nor 
is  the  underwriter  obliged  to  accept  or  decline ; 
he  may,  however,  waive  it.K  But  it  is  not  sub- 
ject to  be  defeated  by  subsequent  events.''  And 
the  subject  must  be  transferred  free  of  incum- 
brance except  expense  for  salvage.' 

See  Salvage  ;  Total  Loss,  below. 

Acceptance  of  abandonment  in  insurance  is 
in  effect  an  acknowledgment  of  its  sufficiency, 
and  perfects  the  right  of  the  assured  to  recover 
for  a  total  loss  if  the  cause  of  loss  and  circum- 
stances have  been  truly  made  known.  No 
particular  form  of  acceptance  is  necessary,  and 
the  underwriter  is  not  obliged  to  say  whether 
fie  accepts.!  An  acceptance  may  be  a  con- 
structive one,  as,  by  taking  possession  of  an 
abandoned  ship  to  repair  it  without  authority 
to  do  so,*  or  by  retaining  such  possession  an 
unreasonable  time,  under  a  stipulation  author- 
izing the  underwriter  to  take  such  possession.* 

ADJUSTMENT  (determining  the  amount 
of  loss).*  There  is  no  specific  form  essentially 
requisite  to  an  adjustment.  To  render  it 
binding,  it  must  be  intended  and  understood 
by  the  parties  to  a  policy  to  be  absolute  and 
final.  It  may  be  made  by  indorsement  on  the 
policy,  or  by  payment  of  the  loss,  or  the  accep- 
tance of  an  abandonment.™    If  there  is  fraud  by 

a-2  Phill.  Ins.  g  1667.  b-2  Phill.  Ins.  g  1540,  1541. 
C-2  Phill.  Ins.  g§  IS47,  1555,  1570,  1571.  d-2  Phill.  Ins. 
J  1666,  et  seq.  e-2  Phill.  Ins.  §J  1678,  1679,  et  seq.  ;  i 
Curt.  C.  C.  148.  f-2  Phill.  Ins.  g  1689.  ^-2  Phill.  Ins. 
31698.  I1-2  Phill.  Ins.  g  1704  :  6  Rich.  Eq.  146.  i-i 
Gray,  154.  j-2  Phill.  Ins.  g  1689.  lt-2  Curt.  C.  C.  322. 
I-16  Ul.  23s  x-2  Phill.  Ev.  gg  1814, 18.5.  in-2  Phill. 
Ev.  g  1815  ;  4  Burr.  1966  ;  iCampb.  134,  274  ;  4  Taunt. 


725;  13  La.  13;  4  Met.  (Mass.)  270;  22  Pick.  191.  n-2 
Phill.  Ins.  g  1316;  2  Johns.  Cas.  233;  3Campb.  319.  o- 
2  Phill.  Ins.  g  1817  ;  2  East.  469;  2  Johns.  157;  8  Id.  334 


4  Id.  331  ;  9  Id.  405  ;  2  Johns.  Cas.  233.    p-2  Phill.  Ins. 
Ch.  14,  ggi,  a;  10111.235;    16B.  Men.  242;    2  Dutch. 


either  party  to  an  adjustment  it  does  not  bind 
the  other."  If  one  party  is  led  into  a  material 
mistake  of  fact  by  fault  of  the  other,  the  adjust- 
ment will  not  bind  him."  The  amount  of  the 
loss  is  governed  by  that  of  the  insurable  inter> 
est,  so  far  as  it  is  covered  by  the  insurance. 
See     Abandonment,    above;     Insurable 

INTEREST,   below. 

AMOUNT  COVERED— AMOUNT  OF 
LOSS. 

The  amount  covered  or  insured  is  limited 
by  that  specified  in  the  policy  to  be  insured, 
and  this  limit  may  be  applied  to  an  identical 
subject  only,  as  a  ship,  a  building,  a  life,  etc. ; 
or  to  successive  subjects,  as  successive  cargoes 
on  the  same  ship,  or  successive  parcels  of 
goods  transmitted  on  a  certain  canal  or  rail- 
road during  a  specified  period  ;  and  it  may  be 
also  limited  by  the  terms  of  the  contract  to  a 
certain  proportion,  as  a  quarter,  half,  etc.,  of 
the  value  of  the  subject  or  interest  on  which 
the  insurance  is  made.P 

The  amount  of  loss  is  the  diminution, 
destruction,  or  defeat  of  the  value  of,  or  of  the 
charge  upon  the  insured  subject  by  the  direct 
consequence  of  the  risk  insured  against,  ac- 
cording to  the  value  of  the  policy  or  the  con. 
tribution  for  loss,  so  far  as  the  value  is  covered 
by  the  insurance.'' 

DEVIATIONS,  or  variations  from  risks  de- 
scribed in  the  policy  from  a  necessity  which  is  ncit 
inexcusably  incurred,  does  not  forfeit  the  insur- 
ance ;*■  as  to  seek  an  intermediate  port  for  repairs 
necessary  for  the  prosecution  of  the  voyage  :,• 
changing  the  course  to  avoid  disaster;*  delay  ia 
order  to  succor  those  distressed  at  sea;*  damage 
merely  in  defence  against  hostile  attacks." 

Change  of  risk  in  insurance  against  fire,  so 
as  to  render  the  insured  subject,  or  its  sur« 
roundings,  or  the  use  made  of  it  different  from 
those  specified  in  the  application,  will  discharge 
the  underwriters.''  A  change  of  risk  under  a 
life  policy,  in  contravention  of  its  express  pro- 
visions, will  defeat  it  in  like  manner.*  Though 
such  a  policy  does  not  appear  to  have  any 
implied  condition  other  than  those  relative  to 
fraud  common  to  all  contracts. 

The  effect  of  a  deviation  in  all  kinds  of  in. 
surance  is  to  discharge  the  underwriters  01 
insurers,  whether  the  risk  is  thereby  enhanced 
or  not;  and  the  doctrine  applies  to  lake  and 
river  navigation  as  well  as  that  of  the  ocean.' 

INSURABLE  INTEREST.  It  is  es- 
sential  to  the  contract  of  insurance,  as  distin- 
guished from  a  wager,  that  the  assured  should 
have   a   legally  recognizable    interest   in   the 

II  ;  6  Gray,  574 ;  7  Id.  246  ;  13  La.  An.  246  ;  34  Me.  487 ; 
29  Eng.  L.  &  Eq.  228.  q-2  Phill.  Ins.  Ch.  15,  16,  17; 
Parsons  Mar.  L.  Ch.  10,  g  i,Ch.  11,  12;  9  Cush.  415;  i 
Gray,  371;  26  N.  H.  389;  31  Id.  238;  5  Duer,  1;  i 
Dutch.  506;  6  Ohio  St.  200;  5  R.  I.  426;  2  Md.  217; 
7  E.  &  B.  172.  r-i  Phill.  Ins.  ?  1018.  s-i  Phill.  Ins.  | 
1019.  t-i  Phill.  Ins.  g  1023.  X-i  Phill.  Ins.  g  1027  ;  6 
East.  54;  2  Cranch.  240,258;  2  Wash.  C.  C.  80 :  i  Sumn. 
C.  C.  328.  U-i  Phill.  Ins.  g  1030.  V-i  Phill.  Jns.  g 
1036  ;  17  Barb.  11 ;  2  N.  Y.  21s;  7  Cush.  175;  8  Id. 
583  ;  6  Gray,  185  ;  19  Penn.  St.  45  ;  13  B.  Mon.  283  ;  23 
Mo.  453 ;  4  Zabr.  447 ;  i  Dutch.  54  ;  4  Wis.  «o.  W-I 
Phill.  Ins.  g  1039.    y-i  Phill.  Ins.  ggS?. 


466 


INSURANCE. 


insured  subject,  the  pecuniary  value  of  which 
may  be  appreciated  and  computed  and  valued. 
It  is  not  requisite  that  the  insured  party  should 
have  an  absolute  property  in  the  insured  sub- 
ject, or  that  the  subject  or  interest  should  be 
one  that  can  be  exclusively  possessed,  or  be 
transferable  in  trade  or  assignment.  The  sub- 
ject or  interest  must,  however,  be  such  that  it 
may  be  destroyed,  lost,  damaged,  diminished, 
or  intercepted  by  the  risks  insured  against. 
The  interests  usually  insured  are  those  of  the 
owner  in  any  species  of  property,  of  mortga- 
gor, mortgagee,  holder  of  bottomry  or  respon- 
dentia bond,  of  an  agent,  consignee,  lessee, 
factor,  carrier,  bailee,  or  party  having  a  lien, 
or  entitled  to  a  rent  or  income,  or  being  liable 
to  a  loss  depending  upon  certain  contingencies, 
or  having  a  certainty  or  probability  of  a  profit 
or  pecuniary  benefit  depending  on  the  insured 
s\ibject.y  The  certainty  or  probability,  direct 
or  incidental,  of  pecuniary  benefit  by  the  liv- 
ing, or  pecuniary  loss  or  damage  to  any  one 
by  the  decease  of  another,  gives  an  insurable 
interest  in  his  life.* 

The  amount  of  insurable  interest  is  the 
value  of  the  insured  subject  as  agreed  by  the 
policy,  or  its  market  value,  or  the  pecuniary  loss 
to  which  the  assured  is  liable  by  the  risks  insured 
against,  though  the  insured  subject — for  ex- 
ample, life  or  health — has  not  a  market  value.* 

LOSS  is  the  destruction  of  or  damage  to 
the  insured  subject  by  the  perils  insured  against 
according  to  the  express  provisions  and  con- 
struction of  the  contract  of  insurance.  These 
accidents,  or  misfortunes,  or  perils,  as  they  are 
sually  denominated,  are  all  distinctly  enumer- 
ated in  the  policy ;  and  no  loss,  however  great  or 
unforeseen,  can  be  a  loss  within  the  policy  un- 
less it  be  the  direct  and  immediate  consequence 
of  one  or  more  of  these  perils.'*  Loss  under 
a  life  policy  is  simply  the  death  of  the  subject 
by  a  cause,  the  risk  of  which  is  not  expressly 
excepted  in  the  policy,  and  when  the  loss  is 
not  fraudulent,  as  when  one  insured,  who  in- 
sures the  life  of  another  for  his  own  benefit, 
procures  the  death.  Loss  in  insurance  against 
fire  must,  under  the  usual  form  of  the  policy, 
be  the  partial  or  total  destruction  or  damage 
of  the  thing  insured  against  fire.  In  maritime 
insurance,  in  which  loss  by  fire  is  one  of  the 
risks  usually  included,  the  loss  insured  against 
may  be  absolutely  or  constructively  told,  or  a 
partial  or  general  average  loss,  or  a  particular 
average. 

Partial  losses  are  sometimes  called  average 
losses,  because  they  are  often  in  the  nature  of 
those  losses  which  are  the  subject  of  average 
contributions;  they  are  distinguished  into  gen- 
eral and  particular  averages.  Total  losses  in 
maritime  insurance  are  absolutely  such  when 
the  entire  thing  perishes   or   becomes   of   no 

y-i  PhiU.  Ins.  Ch.  3;  11  Eng.  L.  &  Eq.  2 :  28  Id. 
312  ;  34  Id.  116;  48  Id.  292  ;  5  N.  Y.  151 ;  19  Id.  184; 
II  Penn.  St.  429  ;  10  Cush.  37;  6  Gray,  192;  2  Md.  iii  ; 
13  B.3Ion.  311  ;  16  Id.  242  ;  5  Sneed.  139.  «-i  Phill. 
Ins.  Ch.  3,  J  14  ;  10  Cush.  244  ;  22  Penn.  65  ;  27  Id.  268  ; 
23  Conn.  244 ;  22  Barb.  ;  28  Mo.  383  ;  28  Eng.  L.  &  Eq. 
}ia.      a-a  Phill.  Ins.  Ch.  14;    13  Barb.  206;    7  N.  V. 


value.  Constructively,  a  loss  may  become  total 
where  the  value  remaining  is  of  such  a  small 
amount  that  the  whole  may  be  surrendered. 
See  Adjustment,  above. 

MEASURE  OF  DAMAGES.  In  cases 
of  loss  of  goods  which  have  been  insured  from 
maritime  dangers  when  the  adjustment  is  made, 
the  damages  are  settled  by  valuing  the  property, 
not  according  to  prime  cost,  but  at  the  price  at 
which  it  may  be  sold  at  the  time  of  selling  the 
average."     See  ADJUSTMENT,  above. 

MEMORANDUM.  A  clause  in  a 
policy  limiting  the  liability  of  the  insurer  is. 
called  a  memorandum.  Policies  of  insurance 
on  risks  of  transportation  by  water  generally 
contain  exceptions  of  all  liability  from  loss  on 
certain  articles  other  than  total,  or  for  contribu- 
tions for  general  average,  and  for  liability  for 
particular  average  on  certain  other  articles 
supposed  to  be  perishable,  or  specially  liable  to 
damage  under  specified  rates,  or  each  varying 
from  three  to  twenty  per  cent.,  and  for  any  loss, 
whatever,  under  three  or  five  per  cent.  Some 
seventy  or  eighty  articles  are  subject  to  these 
exceptions  of  particular  average  in  the  divers 
forms  of  policy  in  use  in  different  localities.* 
These  exceptions  were  formerly  introduced 
under  a  "  MEMORANDUM,"  or  "  N.  B.,"  and 
hence  have  been  called  "  memorandum  arti- 
cles," and  the  body  of  exception  the  "  memo- 
randum." The  list  of  articles  and  rates  of  ex- 
ceptions vary  much  in  different  places,  and 
from  time  to  time  at  the  same  place.* 

Part  Owners.  See  Insurable  Interest, 
above. 

Policy.     See  Introduction,  above. 

PREMIUM  is  the  consideration  for  a  con- 
tract of  insurance.  A  policy  of  insurance  al- 
ways expresses  the  consideration,  called  the 
premium,  which  is  a  certain  amount,  or  a  cer- 
tain rate  upon  the  value  of  the  risk,  paid 
wholly  in  cash,  or  partly  so  and  partly  by 
promissory  note  (called  a  premium  note,  and 
collaterally  secured  by  a  stipulation  in  the 
policy  for  its  being  forfeited  by  its  non-pay- 
ment) or  otherwise.'  By  the  charters  of  mutual 
fire  insurance  companies  the  insured  building 
is  usually  subject  to  a  lien  from  the  premium.* 
The  premium  may  be  payable  by  service  ren- 
dered.'' In  life  insurance  the  premium  is 
usually  payable  periodically,'  and  the  continu- 
ance of  the  risk  is  usually  made  to  depend 
upon  the  due  payment  of  a  periodical  prc- 
niium.J  So  far  as  the  agreed  risk  is  not  given 
in  amount  or  time  under  a  marine  policy,  the 
whole,  or  a  proportional,  stipulated,  or  custom- 
ary part  of  the  premium  is  either  not  payable, 
or,  if  paid,  is  to  be  returned  unless  otherwise 
agreed.'' 

Representations.  See  Applications,  etc., 

above. 

530 ;  13  Id.  31  ;  24  N.  H.  234 ;  2  Parsons  Marit.  L.  Ch. 
2,  2  2.  b-^larshall  Ins.  i,  Ch.  12.  c-Marshall  Ins.  b 
I,  Ch.  14,  g  2.  p.  621.  d-i  Phill.  Ins.  J  54,  n.  e-19  N. 
Y.  272.  f-'2  Parsons  Marit.  L.  182.  g-i  Phill.  Ins.Ch. 
6  ;  19  Miss.  53  ;  21  How.  35.  I1-5  Ind.  96.  l-i8 
Barb.  541.  J-2  Dutch.  268.  k-2  Phill.  Ins.  Ch.  »2; 
Parsons  Marit.  L.  185  ;  16  Barb.  380;  7  Gray,  246. 


INSURANCE. 


467 


RISKS  AND  PERILS.  The  risk  or 
peril  in  an  accident  policy  is  the  injury  or  death ; 
in  a  life  policy,  is  death ;  under  a  fire  policy, 
destruction  or  damage  by  fire;  under  a  marine 
policy,  by  perils  of  the  seas,  usually  including 
fire;  and  under  a  policy  upon  subjects  at  risk 
in  lake,  river  or  canal  navigation,  by  perils  of 
the  same. 

Under  a  marine  insurance  the  risks  are  from 
a  certain  place  to  a  certain  other,  or  from  one 
date  to  another.  The  perils  usually  insured 
against  as  "perils  of  the  seas"  are:  fire,  light- 
ning, winds,  waves,  rocks,  shoals,  and  col- 
lisions; and  also  the  perils  of  hostile  capture, 
piracy,  theft,  arrest,  barratry  (seizing  and  run- 
ning away  with  the  vessel,  negligence,  mutiny, 
etc.),  and  jettisons  (casting  the  goods  away, 
from  necessity,  whereby  they  sink  and  are  lost).' 
But  a  distinction  is  made  between  the  extra- 
ordinary action  of  perils  of  the  seas,  from 
which  insurers  or  underwriters  are  liable,  and 
wear  and  tear,  and  deterioration  by  decay,  for 
which  they  are  not  liable."  Perils  of  lakes, 
rivers,  etc.,  are  analogous  to  those  of  the 
seas." 

Insurers  or  underwriters  are  not  liable  for 
loss  occasioned  by  the  gross  misconduct  of  the 
assured,  or  imputable  to  him ;  but  if  a  vessel  is 
seaworthy,  with  suitable  officers  and  crew, 
underwriters  are  liable  for  loss,  though  occa- 
sioned through  the  mistakes  or  want  of  assiduity 
and  vigilance  of  the  officers  or  men."  Under- 
writers a/e  not  answerable  for  loss  directly 
attributable  to  the  qualifications  of  the  insured 
subject  independently  of  the  specified  risks,?  or 
for  loss  distinctly  occasioned  by  the  fraudulent 
or  gross  negligence  of  the  party  insured. 

Insurance  against  illegal  risks,  such  as  trad- 
ing with  the  enemy,  the  slave  trade,  piratical 
cruisers,  and  illegal  kinds  of  business,  is  void."* 

Policies  usually  contain  express  exceptions 
of  some  risks  besides  those  impliedly  excepted. 
These  may  be  in  maritime  insurance,  contra- 
band and  illicit  interloping  trade,  violation  of 
blockade,  mobs  and  civil  commotions;  in  fire 
policies,  loss  on  jewelry,  paintings,  sculpture, 
by  hazardous  trade,  etc.;  in  life  policies,  loss 
by  suicide,  risks  in  certain  climates  or  localities, 
and  in  certain  hazardous  employments,  without 
express  permission.'  See  Average;  Loss, 
above. 

Salvage.     See  Maritime  Law. 

TOTAL  LOSS  in  marine  insurance  is 
either  the  absolute  destruction  of  the  insured 
subject  by  the  direct  action  of  the  perils  in- 
sured against,  or  a  constructive — sometimes 
called  technical — tot.-xl  loss,  in  which  the  party 
insured  is  deprived  of  the  possession  of  the 
subject,  still  subsisting  in  specie,  or  where  there 

I-i  Phill  Ir/s.  2  1099,  et  seq.  m-i  Phill.  Ins.  \  1105. 
n-i  Phill.  Ins.  \  J099.  0-1  Phill.  Ins.  \  1040.  p-i 
Phill.  Ins.  Ch.  13,^5.  q-i  Phill.  Ins.  ?? '210,  691.  r- 
I  Phill.  Ins.  ??  ss,'63,64.  s-2  Phill.  liis.  Ch.  17:  2 
Johns.  286.  t'-i  Phill.  Ins  ?  .106:  2  Eng.  L.  &  Eq.  85 
n-2  Phill.  Ins.  {>  1608  :  I  Curt.  C.  C.  148  :  9  Cush.  415  ;  5 
Denio,  342  :  6  id.  282:  19  Ala.  (N  S.  i  108  ;  i  Johns. 
Cas.  141  ;  6  Jchns.  219.  \-\  Phill.  Iii>.  g^  1601,  1606, 
1619;  4  Me.  431 ;  24  Miss.  461 ;    19  N.  Y.  272  ;  i  Mart. 


may  be  remnants  of  it,  or  claims  subsisting  on 
account  of  it,  and  the  assured  by  the  express 
terms  or  legal  construction  of  the  policy  has 
the  right  to  recover  its  value  from  the  under- 
writers, so  far  as,  and  at  the  rate  of  which  it 
is  insured,  on  abandonment  and  assignment  of 
the  still-subsisting  subject,  or  remnants  or  claims 
arising  out  of  it.» 

A  constructive  total  loss  may  be  by  capture ; 
seizure  by  unlawful  violence,  as  piracy,*  or 
damage  to  ship  or  goods  over  half  the  value 
at  the  time  and  place  of  loss,"  or  a  loss  of  the 
voyage ;'  though  the  ship  or  goods  may  survive 
in  specie,  but  so  as  not  to  be  fit  for  use  in  the 
same  character  for  the  same  service  or  pur- 
pose;* or  by  jettison  ;*  or  by  necessity  to  sell  on 
account  of  the  action  and  effect  of  the  peril  in- 
sured against  ;y  or  by  loss  of  insured  freight 
consequent  on  the  loss  of  cargo  or  ship.*  There 
may  be  a  claim  for  a  total  loss  in  addition  to  a 
partial  loss.'  A  total  loss  of  the  ship  is  not 
necessarily  such  of  cargo,"*  nor  is  submersion 
necessarily  a  total  loss;"  nor  is  temporary  delay 
of  the  voyage.* 

A  constructive  total  loss,  and  an  abandon- 
ment thereupon  of  the  ship,  is  a  constructive 
total  loss  of  freight ;  and  a  constructive  total 
loss  and  abandonment  of  cargo  has  a  like  effect 
as  to  commissions  or  profits  thereon  ;  and  the 
validity  of  the  abandonment  will  depend  ufwn 
the  actual  facts  at  the  time  of  the  abandonment, 
as  the  same  may  subsequently  prove  to  have 
been." 

Valuation.  See  Estimated  Value, 
above. 

WARRANTY  in  insurance  is  a  stipula 
tion  or  agreement  on  the  part  of  the  insured 
party,  in  the  nature  of  a  condition.  It  is  ex- 
press when  the  stipulation  is  introduced  into 
the  written  contract  by  agreement  of  the  par- 
ties. It  is  implied  when  it  naturally  results 
from  the  nature  of  the  contract ;  as,  that  the 
ship  shall  be  seaworthy  when  she  sails  on  the 
voyage  insured. 

An  express  warranty  must  bg  strictly  com- 
plied with,  and  the  assured  is  not  permitted  to 
allege,  in  excuse  for  non-compliance,  that  th^ 
risk  was  not  thereby  affected,  since  the  par- 
ties have  agreed  that  the  stipulated  fact  or  act 
shall  be  the  basis  of  the  contract,'  unless  com- 
pliance is  rendered  illegal  by  a  subsequent 
statute.^ 

The  most  frequent  express  warranties  in  mar- 
itime policies  are,  the  time  of  sailing,  and,  in 
time  of  hostilities,  the  national  character  of  the 
insured  subject  and  neutral  insignia  and  con- 
duct. In  fire  and  life  policies  warranties  are 
quite  numerous,  comprehending  all  the  facts 

221.  w-2  Phill.  Ins.  §  1605:  2  Caines  Cas.  324;  Valin. 
Tom.  2,  tit.  Ass.  a  46.  x-2  Phill.  Ins.  ??  1616,  1617;  r 
Games,  196.  y-2  Phill.  Ins.  ?  1623;  5  Gray,  154  :  t 
Cnmch.  202.  E-2  Phill.  Ins.  ^^  1642,  1645;  18  Johns. 
2o8.  n-2  Phill.  Ins.  ?  1743  ;  17  How.  595.  b-2  Phill. 
Ins.  ?2  1601,  etseq.,  1622;  3  Binn.  287.  c-2  Phill.  Ins. 
^  1607;  7  East.  38.  d-2  Phill.  Ins.  g^  i6i8:  5  B.&Ald. 
1:97.  e-2  Phill.  Ins.  2  1630,  et  seq.  ;  3  Johns.  Cas.  93. 
f-Bouv.  Inst  Index  ,  i  PhiU.  Ins.  g  755.  g-i  PhiU. 
Ins. J  769. 


468 


INSURANCE— INTEREST. 


stated  by  the  applicant  in  his  application  when 
incorporated,  as  it  usually  is,  into  the  policy, 
and  expressly  contracted  by  reference  thereto. 
In  fire  insurance  express  reference  is  often  made 
to  the  charter  of  the  company ;  specially  so  in 
mutual  companies,  and,  in  such  companies,  to 
rules  and  regulations,  and  conditions  indorsed 
upon  the  policy.'  A  policy  of  insurance,  no 
less  than  any  other  contract,  is  subject  to  the 
condition  of  fraud. 

Intention.  See  Contracts  ;  Criminal  Law. 
t  Inter  Partes.  See  Conveyances. 
ISfTEREST.  See  Contracts. 

Interest  is  the  compensation  which  is  paid 
by  the  borrower  of  money  to  the  lender  for  its 
us^,  and,  generally,  by  a  debtor  to  his  creditor 
in  reconipense  for  his  detention  of  the  debt. 
It  is  a  payment  for  the  use  of  money. 

ALLOWANCE  OF  INTEREST. 
The  contractor  who  has  expressly  or  impliedly 
undertaken  to  pay  interest  is,  of  course,  bound 
to  do  so.  Executors,"  administrators,^  assign- 
ees of  bankrupts  or  insolvents,*  guardians,"* 
and  trustees®  who  have  kept  money  an  unrea- 
sonable length  of  time,'  and  have  made,  or 
might  have  made,  it  productive,*  are  charge- 
jible  with  interest. 

The  lender  upon  an  express  or  implied  con- 
tract for  interest  is  entitled  to  receive  and  en- 
force its  payment.  Executors,  administrators, 
«:tc.,  are,  in  some  cases,  allowed  interest  for  ad- 
I'ances  made  by  them  on  account  of  the  estates 
under  their  charge. **  The  rule  has  been  ex- 
tended to  trustees,'  and  compound  interest 
even  allowed  them.J 

Express  Contracts.  "When  the  debtor 
expressly  undertakes  to  pay  interest,  he  or  his 
])ersonal  representatives  having  assets  are 
bound  to  pay  it.  But  if  a  party  has  accepted 
3he  principal,  it  has  been  determined  that  he 
cannot  recover  interest  in  a  separate  action.'' 

Implied  Contracts  where,  from  the  course 
.)f  dealings  between  the  parties,  a  promise  to 
pay  is  implied,  the  debtor  is  bound  to  pay.' 
So,  also,  on  an  account  stated,  or  other  liqui- 
dated sum,  whenever  the   debtor  knows  pre- 

B-i  Phill.  Ins.  §2  28,  63,  64.  i*-i2  Conn.  350  ;  7  S.  & 
•^.264.  l>-4  Gill.  &  J.  453;  35  Miss.  321.  C-2W.&S. 
l'^-].  <l-29  Ga.  82  ;  14  La.  An.  764.  e-i  Pick.  528  ;  10 
Gill.  &  J.  175  ;  IS  Md.  7s;  29  Ga.  82  ;  11  Cal.  71.  f-i8 
Pick.  I  :  I  Ashm.  305  ;  29  Ga.  82.  g'-4  Gill.  «  J.  453  ; 
1  Pick.  530.  Ii-io  Pick.  77  ;  6  Halst.  44  ;  see  9  Mass. 
57.  l-i  Binn.  488.  j-j6  Mass.  228.  k-i  Esp.  N.  P. 
no;  3  Johns.  220;  see  i  Campb.  50;  i  Dall.  315; 
Stark.  Ev.  pt.  4,  787  ;  45  Me.  542  ;  9  Ohio  St.  452.  l-i 
C'ainpb   50;  3  Brown  Ch.  436  ;  Kirb.2o7;  2  Wend.  501  : 

4  Id.  483  ;  2  Penning.  548  ;  33  Ala.  (N.  S.)  459  ;  8  Iowa, 
163.  ni-2  W.  Bl.  761  ;  3  Wils.  205  ;  2  Ves.  Ch.  365;  8 
Brown  Pari.  Cas.  561;  2  Burr.  10S5  ;  5  Esp.  114;  2 
Com.  Contr.  207  ;  iHayw.  173;  aCx,  219;  12  Johns. 
156  ;  20  N.  Y.  463  ;  13  Ind.  475  ;  8  Fla.  161  ;  15  Johns. 
409,124;  3  Caines,  226,  234:  2  M'Cord,  406.  n-12  N. 
H.474;  2  Gallia.  45  ;  22  Pick.  291  ;  2  Cush.  475  ;  i 
Kern.  406.     O-i  Dall.  265;    2  Wend.  501 ;    4  Cow.  496; 

5  Id.  187;  6  Id.  193;  5  Vt.  177;  I  Speers,  209;  i  Rice, 
»i  ;  2  Blackf  313;  i  Bibb.  443  ;  20  Ark.  410.  p-i4Vin. 
Abr.  458,  pe.  8  ;  3  Atk.  Ch.  579;  9  Watts,  5-?o.  q-i 
Harring.  106;  3  W.  &  S.  437.  r-3  Dev.  &  B.  70;  5 
Humph.  406;  19  Ark.  690;    13  Mo.  252.     8-Bunb.  119; 

6  Mod.  138;  I  Str.  Ch.  649;  2  Ld.  Raym.  73:5:  2  Burr. 
io8t;  s  Ves.  Ch.  533:  15  S.  &  R.  264;  i  M'Cord,  370; 
6  Daaa,  70;  i  H«mpst.  C.  C.  155  ;  18  Ala.  (N.  S.)  300; 


cisely  what  he  is  to  pay,  and  when  he  is  to  pay 
it"  on  an  unsettled  claim,  after  a  demand  of 
payment."  But  inteiest  is  not  due  for  unliqui- 
dated damages,  or  on  a  running  account,  where 
the  items  are  all  on  one  side,  unless  otherwise 
agreed  upon ;»  on  the  arrears  of  an  annuity  se- 
cured by  a  specialty,?  or  given  in  lieu  of 
dower;'  on  bills  and  notes,  if  payable  at  a 
future  day  certain,  after  due;""  if  payable  on 
demand,  after  demand  made.*  Where  the 
terms  of  a  promissory  note  are  that  it  shall  be 
payable  by  instalments,  and  on  the  failure  of 
any  instalment,  the  whole  is  to  become  due; 
interest  on  the  whole  becomes  payable  from  the 
first  default.'  Where,  by  the  terms  of  a  bond 
or  a  promissory  note,  interest  is  to  be  paid 
annually,  and  the  principal  at  a  distant  day,  the 
interest  may  be  recovered  before  the  principal 
is  due.  On  a  deposit  by  a  purchaser,  which 
he  is  entitled  to  recover  back,  paid  either  to  a 
principal  or  an  auctioneer.  For  goods  sold 
and  delivered  after  the  customary  or  stipulated 
term  of  credit  has  expired;'"  if  there  be  no 
credit,  then  from  the  time  of  sale.*  On  judg' 
ment  debts,?  from  the  rendition  of  judgment.* 
On  judgment  affirmed  in  a  higher  court."  On 
money  obtained  by  fraud,  or  where  it  has  been 
wrongfully  detained.''  For  whoever  receives 
money  not  his  own,  and  detains  it  from  the 
owner  unlawfully,  must  pay  interest  therefor. 
Hence,  a  public  officer,  retaining  money  wrong- 
fully, is  chargeable  with  interest  during  the 
time  of  such  wrongful  detainer."  So,  an  agent, 
wnreasonably  neglecting  to  inform  his  principal 
of  receipt  of  money,  is  liable  for  the  interest 
from  the  time  when  he  should  have  communi- 
cated such  information.*  But  an  agent  is  not 
generally  liable  for  interest  on  funds  in  his 
hands,  unless  he  uses  them,  or  is  in  default  in 
accounting  for  them.*  On  money  paid  by  mis- 
take, or  recovered  on  a  void  execution.'  On 
money  lent  or  laid  out  for  another's  use.*  On 
money  had  and  received  after  demand. •"  On 
purchase  money  which  has  lain  dead,  where 
the  vendor  cannot  make  a  title.'  On  purchase- 
money  remaining  in  the  purchaser's  hands  to 

see  4  Ark.  210.  t-4  Esp.  147.  n-i  Binn.  165  ;  2  Ma.ss. 
568  ;  3  Id.  221  ;  see  2  Parsons'  Notes  and  B.  391,  et  seq. 
V-Sugden  Vend.  327;  3  Campb.  258;  5 Taunt.  625;  but 
see  4  Taunt.  334,  341.     W-Dougl.  376;    2  B.  &  P.  337; 

2  Dall.  193 ;  4  Id.  289  ,  6  Binn.  162  ;  11  Ala.  451  ;  i  Mc- 
Lean C.  C.  411  ;  12  N.  H.  474 ;  26  Ga.  465  ;  8  Iowa, 
163.  x-4  Dallas,  286,  289  ;  4  Harring.  (Dt.l.')  30  ;  za 
Vt.  191  ;  3  Comst.  502.  y-14  Vin.  Abr.  458,  PI.  15;  4 
Dall.  25T  ;  2  Ves.  Ch.  162  ;  5  Binn.  61  ;  i  Harr.  &  J. 
•j'^^  ;  3  Wend.  496  ;  4  Met.  (Mass.)  317  ;  6  Halst.  91  ;  j 
Mo.  86;  4  J.  J.  Marsh.  244;  T.  U.  P.  Charlt.  138;  see 

3  M'Cord,  166;  I  HI.  52;  14  Mass.  239.  z-Laws,  1871, 
Ch.  95,  g  I  ;  2i  Wend.  157;  4  Mass.  170;  i  Harris  & 
Johns.  734;  2  N.  H.  169;  7  Rich.  Eq.  395.  «-2  Burr. 
1097 ;  2  Str.  931  ;  4  Burr.  2128  ;  Doiigl.  752,  ».  3 ;  2  H. 
Bl.  267,  284;  2  Campb.  428,  «.  ;  3  Taunt.  503;  4  Id.  30; 
see  3  Hill,  426.  b-y  Mass.  504;  1  Campb.  129;  3  Cow. 
426.  c-3  Binncy,  123;  4  Wend.  675;  9  Johns.  6  N.  H. 
456.  d-9  Pick.  368.  e-i  Met.  112  ;  4  oilman,  19-?;  4 
Johns.  Ch.  353.  f-i  Pick.  212  ;  4  Met.  i8i ;  1  W.  &  S. 
235  ;  9  S.  &  R.  409  ;  3  Siimn.  C.  C.  336.  KT-Bunb 
Exch.  119;  2  W.  Bl.  761  ;  I  Ves.  Ch.  63;  i  Binn.  488:  ( 
Id.  163;  I  Dall.  349;  2  Hen.  &  M;  381;  i  Hayw.  4;  9 
Johns.  71 ;  2  Wend.  413 ;  i  Conn.  32  ;  7  Mass.  14;  11 
Id.  504;  I  Mo.  718;  2  Met.  (Mass.)  168.  h-i  Ala.  (N 
S.)  452  ;  4  Blackf.  si,  164.    i-Sugdeu.  Vend.  327. 


INTEREST. 


469 


pay  off  incumbrances.J  Hent  from  the  time 
that  it  is  due.*  Even  if  tlie  rent  is  payable 
otherwise  than  in  money,  but  is  not  so  paid.' 
Interest  cannot,  however,  be  recovered  for 
arrears  of  rent  payable  in  wheat." 

When  the  rale  of  interest  is  specified  in  any 
contract,  that  rate  continues  until  full  payment 
is  made. 

Judgments.  Upon  a  note  made  payable  in 
a  certain  number  of  years,  with  interest  an- 
nually, judgment  can  be  recovered  only  for 
simple  interest  on  the  principal  sum." 

Time  dui-:— Date  of  Allowance,  etc. 
In  actions  for  nvoney  had  and  received,  inter- 
est is  allowed  from  the  date  of  the  service  of 
the  writ."  On  debts  payable  on  demand,  in- 
terest is  payable  only  from  the  demand.?  The 
words  "  with  interest  for  the  same  "  carry  in- 
terest from  date.'  The  mere  circumstances  of 
war  existing  between  two  nations  is  not  a  suf- 
ficient reason  for  abating  interest  on  debts  due 
by  the  subjects  of  one  belligerent  to  another.' 
But  a  prohibition  of  all  intercourse  with  an 
enemy  during  war  furnishes  a  sound  reason  for 
the  abatement  of  interest  until  the  return  of 
peace.* 

A  debt  barred  by  the  statute  of  limitations, 
and  revived  by  an  acknowledgment,  bears  in- 
terest for  the  whole  time.* 

COMPOUND  INTEREST.  Interest 
upon  interest  is  not  allowed,  except  in  special 
cases,"  and  the  uniform  current  of  decisions  is 
against  it,  as  being  a  hard,  oppressive  exaction, 
and  tending  to  usury. ^  if  an  agreement  is 
made  to  convert  interest  already  due  into  prin- 
( ipal,  or  if  accounts  between  parties  are  settled 
by  rests,  and  therefore  in  effect  upon  the  prin- 
<:ipal  of  compound  interest,  which  may  be 
done  by  an  express  accounting,''  or  under  a 
custom  of  forwarding  accounts,  quai'terly,  half- 
)ea:ly,  jr  yearly,  to  the  debtor  who  acquiesces 
in  them  by  his  silence;*  these  transactions  are 
valid,  and  sanctioned  by  the  law  :  and  such  a 
me' hod  of  ;oniputation  is  even  directed  by 
courts.'  If  compound  interest  has  accrued, 
eve  1  under  a.  prior  bargain  for  it,  and  being 
actually  ]5aid,  ^t  cannot  be  recovered  back.' 
\^\\^  compound  interest  cannot  be  recovered  as 
sucT,  even  if  it  be  expressly  promised.*  But 
anr  ual   rests   in   merchants'  accounts   are   al- 

|-  X  Sch.  &  L.  134  ;  sec  i  Wash.  125 ;  5  Munf.  342  ;  6 
Bill).  435.  lt-4  Johns.  1S3;  7  Wend,  log:  6  Gill  & 
Johns.  383;  6  B.  Mun.  462;  4  Whan.  516;  Laws  1871, 
p.  iVi.  I-4  Wend.  313 ;  s  Denio,  135  ;  2  Comst.  i-;5  :  2 
J'.arG  643;  5  Gratt.  259;  2  Kernan,40.  Ill-i  Johns. 
276  ^ee  2  Call,  240,  253;  3  Hen.  &  M.  463;  4  Id.  470; 
5  !\fu::f.  21.  11-8  Mass.  4-5.  O-i  Mass.  436;  15  Pick. 
500;  12  N.  H.  474.  p-Addis.  137:  15  Pick.  500;  5 
(.0:11.  222;  I  Ma.ss.  C.  C.  117;  see  12  Mass.  4.  <|- 
Ad.iis.  321,  324:  I  Stark.  452,  507.  r-i  Pet.C.  C.  574  ; 
4  liarr.  &  M'H.  161.  s-See  on  this  subject,  2  L)all. 
I02,  132;  4  Id.  286;  I  Wash.  172;  1  Call,  194;  3  Wash. 
C  C.  396;  8  S.  &  R.  103,  and/«)j/,  "when  interest  will 
he  barred."  t-i6  Vt.  297.  n-i  Eq.  Cas.  Abr.  287 ; 
Fonbl.  Eq.  b.  i,  c.  2.  g  4,  note  a;  31  Vt.  679 ;  34  Penn. 
St.  210.  V-i  Johns.  Ch.  14:  Cam.  &  N.  361;  13  Vt. 
430.  W-2  Salt.  449  ;  G.  Cooper.  Ch.  231 ;  5  Paipe,  98 ; 
3  Ham.  18:  4  Rand.  406.  x-2  Anst.  496;  5  B.  &  Aid. 
34;  2  Ves.  15;  3  Camp.  466:  i  Stark.  487:  i  Bald.  536; 
3  Camp.  467.  y-13  E.  L.  &  E.  140;  i  Jolins.  Ch.  620;  I 
J  Id.  497;  jW.SlS.  48:  18  Pick,  i;    7  Verg.  172;  3   I 


lowed,*  though  not  after  mutual  dealings  have 
ceased.*  In  cases  where  it  is  expressly  stipu- 
Ltted  that  interest  shall  be  payable  at  certain 
fixed  times,  it  has  been  held  that  interest  may 
be  charged  upon  the  interest  from  the  time  it 
is  payable.* 

Where  a  partner  has  overdrawn  the  partJie-- 
ship  funds,  and  refuses,  when  called  upon  *c 
account,  to  disclose  the  profits,  recourse  wovlfJ 
be  had  to  compound  interest  as  a  substitute  for 
the  profits  he  might  reasonably  be  supposed  K> 
have  made.'  And  when  executors,  adminis- 
trators, or  trustees  convert  the  trust  money  to 
their  own  use,  or  employ  it  in  business  or 
trade,  or  fail  to  invest,  they  are  chargeable  witb 
compound  interest.' 

In  an  action  to  recover  the  annual  interest 
due  on  a  promi-ssory  note,  interest  will  be 
allowed  on  each  year's  interest  until  paid.' 

An  infant's  contract  to  pay  interest  on  inter- 
est will  be  binding  upon  him  when  it  is  for  his 
benefit.'' 

COMPUTING  INTEREST.  In  cast- 
ing interest  on  notes,  bonds,  etc.,  upon  which 
partial  payments  have  been  made,  every  pay- 
ment is  to  be  first  a]5plied  to  keep  down  the  in- 
terest; but  the  interest  is  never  allowed  to 
form  a  part  of  the  principal  so  as  to  carry  in- 
terest.' When  a  partial  payment  exceeds  the 
amount  of  interest  due  when  it  is  made,  it  is 
correct  to  compute  the  interest  to  the  time  of 
the  first  payment,  cast  interest  on  the  remainder 
to  the  time  of  the  second  payment,  add  it  to 
the  remainder,  and  subtract  the  second  pay- 
ment, and  in  like  manner  from  one  payment  to 
another,  until  the  time  of  judgments.J  And 
the  same  rule  applies  to  judgments." 

Where  a  partial  payment  is  made  before  the 
debt  is  due,  it  cannot  be  apportioned  part  to  the 
debt  and  part  to  the  interest.  As,  if  there  be 
a  bond  for  one  hundred  dollars,  payable  in  one 
year,  and  at  the  expiration  of  six  months  fifty 
dollars  be  paid  in,  this  payment  shall  not  be 
apportioned  part  to  the  principal  and  part  to 
the  interest,  but  at  the  end  of  the  year  interest 
shall  be  charged  on  the  whole  sum,  and  the 
obligor  shall  receive  credit  for  the  interest  of 
fifty  dollars  for  six  months.' 

FOREIGN  INTEREST.  The  rate  of 
interest  of  the  place  of  performance  is  to  be 

M'Cord  Ch.  200  ;  12  Ala.  354  ;  6  Dana,  3  :  14  111.  i :  16 
How.  535.  z-3  N.  H.  40:  5  Paige,  98.  rt-2  Salk.  499; 
I  Ves.  Jr.  99 ;  i  Johns.  Ch.  13:  5  Paige,  98:  8  Mas*. 
435  ;  2  Cush.  92  ;  2  B.  Mon.  336  ;  4  Rand.  406 ;  7  GrccnI. 
48  :  4  Yeates,  220.  b-2  Johns.  Ch.  210,  214  :  3  Wash. 
C.  C.  350;  3  Cal.  231.  C-3  Wash.  C.  C.  396,  402:  ir 
Met.  2IO.  d-i  Tayl.  231  ;  Cam.  &  N.  357;  2  Nott  & 
M'Cord,  38;  2Hill.fS.  C.)4o8;  3  Rich.  125:  i  N.  H. 
179;  2  Cush.  92  ;  7  Greenl.  48;  1  Am.  L.  Cas.  341,  371. 
e-2  Johns.  Ch.  113.  f-i  Pick.  528;  i  Johns.  Ch.  6:o. 
fS-1  Mass.  568  ;  8  Id.  445  :  i  N.  H.  179  :  16  Vt.  45  :  see 
as  to  charging  compound  interest  the  following  cases  :  i 
Jolins.  Ch.  550;  Cam.  &  N.  361  :  i  Binn.  165  ;  4  Yeates, 
220;  I  Hen.  &  M.  4:  3  Id.  89;  Vin.  Abr.4C7, /»/.  (C); 
Com.  Dig.  '^hancery  (3  S.  3):  i  Hare  &  W.  Sel.  Dec. 
371.  I1-2  T.  R  388.  l-i  Wash.  C.  C.  167;  1  Halst. 
408:  2  Hayw.  17:  17  Mass.  417;  »  Dall.  378:  see  14 
Conn.  44';.  J-'  Pick.  194  ;  4  Hen.  &  M.  431 ;  8  S.  &  R. 
4s8 ;  2  Wash.  C.  C.  167;  see  3  Wash.  C.  C.  350,  396  :  7 
Cow.  86.  U-»  N.  H.  169,  '8  S.  &  R.  4^2.  l-i  Dalt 
1^4. 


470 


INTEREST. 


allowed  where  such  place  is  specified,"  other- 
wise of  the  place  of  making  the  contract." 
But  the  rate  of  interest  of  either  place  may  be 
reserved ;  and  this  provision  will  govern,  if  an 
honest  transaction,  and  not  a  cover  for  usury." 

LIMITATION  OF  INTEREST. 
When  the  money  due  is  tendered  to  the  person 
entitled  to  it,  and  he  refuses  to  receive  it,  the 
interest  ceases.P  Where  the  plaintiff  is  absent 
in  foreign  parts  beyond  the  seas,  evidence  of 
that  fact  may  be  given  in  evidence  to  the  jury 
on  the  plea  of  payment,  in  order  to  extinguish 
the  interest  during  such  absence.' 

Whenever  the  law  prohibits  the  payment  of 
the  principal,  interest  during  the  prohibition  is 
not  demandable.' 

If  the  plaintiff  has  accepted  the  principal, 
he  cannot  recover  the  interest  in  a  separate 
action.* 

To  THE  Penalty  of  Bond.  It  is  a  gen- 
eral rule  that  the  penalty  of  a  bond  limits  the 
amount  of  the  recovery.*  But  in  some  cases 
the  interest  is  recoverable  beyond  the  amount 
of  the  penalty."  The  recovery  depends  on 
principles  of  law,  and  not  on  the  arbitrary  dis- 
cretion of  a  jury." 

The  exceptions  are :  Where  the  bond  is  to 
account  for  moneys  to  be  received  ;*  where  the 
plaintiff  is  kept  out  of  his  money  by  writs  of 
error,*  or  delayed  by  injunction  ;y  if  the  re- 
covery of  the  debt  be  delayed  by  the  obligor  ;* 
if  extraordinary  emoluments  are  derived  from 
holding  the  money;*  or  the  bond  is  taken  only 
as  a  collateral  security;**  or  the  action  be  on  a 
judgment  recovered  on  a  bond."  But  these 
exceptions  do  not  obtain  in  the  administration 
«f  the  debtor's  assets,  where  his  other  creditors 
might  be  injured  by  allowing  the  bond  to  be 
rated  beyond  the  penalty.* 

RISK  OR  SERVICE.  A  lender  may 
charge  an  extra  price  for  the  risk  he  incure,  if 
that  risk  is  distinct  and  different  from  the  mere 
personal  risk  of  the  debtor  being  unable  to 
pay;  for  nothing  of  this  kind  is  any  justification 
whatever  for  more  than  legal  interest.  But 
where  repayment  of  money  loaned  is  made  to 
depend  upon  the  happening  of  contingent  events, 
there  the  lender  may  take,  beside  interest  for 
the  sum  loaned,  enough  more  to  insure  him 
against  the  casualty  which  might  destroy  his 
claim;  that  is,  as  much  more   as  the   risk   is 

m-ioWheat.  367;  ^Pet.  iii:  aojohns.  tea;  8  Pick. 
»04  ;  6  Paige.  627  ;  3  N.  Y.  266 ;  iJ  La.  An.  815 ;  i  B. 
Mon.  29;  2  W.  &  S.  327  ;  23Vt.  286;  21  Ga.  135;  22 
Tex.  108 ;  7  Ired.  424  ;  5  Clark  &  F.  Ho.  Lds.  1-12.  11- 
?  Alk.  Ch.  382  ;  II  Ves.  Ch.  314  ;  2  Vem.  Ch.  39s ;  i 
Wash.  C.  C.  521 ;  2  Id.  253;  4  Id.  296;  3  Wheat.  loi ; 
17  Mass.  4:  I  J.  J.  Marsh.  406;  5  Ired.  590;  17  Johns. 
511  ;  I  Paige  Ch.  220  :  2  N.  H.  42  ;  25  Id.  474  ;  i  Ala. 
^7;  i3La.  gi;  25  Harr.  &  J.  193  ;  3  Conn.  253  ;  5 
Texas,  87-262.  0-26  Barb.  208 ;  2  Penn.  St.  85  ;  14  Vt. 
33  :  20  Mart.  T  ;  2  Johns.  Cas.  355;  10  Wheat.  367;  see 
2  Parsons'  Notes  &  B.  337,  375.  p-3  Campb.  296 :  see 
8  Elast.  t68;  3  Binn.  295.  «i-i  Calf,  133;  3  M'Cord, 
340;  I  Root,  178:  but  see  o  S.  &  R.  263.  r-2  Dall. 
102  ;  I  Pet.  C.  C.  524  ;  see  also  2  Dall.  133  ;  4  Id.  286. 
H-i  Esp.  no;  3  Johns.  229;  see  14  Wendf.  116.  t-2  T. 
R.  388.  11-4  Cranch.  333  ;  15  Wend.  76;  10  Conn.  95  ; 
Paine  C.  C.  661  ;  6  Me.  14 ;  8  N.  H.  491.  T-3  Caines. 
49.    W-a  T.  R.  388.      X-3  Burr.  1094.    j-t  Vera.  349 ; 


worth.  So,  a  lender,  whether  banker,  broker,* 
engaged  in  trade,  or  lending  his  own  money,* 
may  charge,  in  addition  to  the  discount,  a  rea- 
sonable compensation  for  his  trouble  or  services. 
But  the  sum  paid  as  such  compensation  or  com- 
mission for  service  and  trouble  in  any  case  must 
not  exceed  the  amount  usually  taken  in  the 
course  of  trade  or  business ;  and  if  it  do,  such 
excess  will  make  the  contract  usurious.* 

SALES  OF  NOTES,  Etc.  Negotia- 
ble paper  may  be  sold  for  less  than  its  face, 
and  the  purchaser  can  recover  its  whole  amount 
from  the  maker  when  it  falls  due,  although  he 
thereby  gets  much  more  than  legal  interest  for 
the  use  of  his  money ;  and  this  principle  ex- 
tends to  bonds  and  other  securities  for  money 
loaned.  For  such  paper  is  property;  and  one 
may  sell  the  notes  which  he  holds  at  a  price 
made  low,  either  by  doubts  of  the  solvency  of 
the  maker,  or  by  stringency  in  the  money  market, 
as  well  as  his  house  or  his  horse  at  a  less  than 
the  average  price.  But  the  purchase  must  be 
actual,  and  made  in  good  faith,  and  not  merely 
intended  to  give  efficacy  to  a  usurious  contract. 
For  if  a  person  makes  his  own  note,  and  sells 
that  for  what  he  can  get,  this,  while  in  appear- 
ance the  sale  of  a  note,  is  in  fact  a  loan  and  a 
borrowing,  and  nothing  else.  If  the  seller  of 
a  note  acquired  it  by  purchase,  or  if  it  is  his 
for  money  advanced  or  lent  by  him  to  its  full 
amount,  he  may  sell  it  for  what  he  can  get ; 
but  if  he  be  the  maker  of  the  note,  or  the 
agent  of  the  maker,  and  receives  for  the  note 
less  than  would  be  paid  him  if  only  a  lawful 
discount  were  made,  it  is  a  usurious  loan. 
Where  a  note  has  been  fairly  executed,  and 
where  there  is  no  usury  between  the  original 
parties,  so  that  the  payee  has  acquired  a  legal 
right  to  sue  the  maker  upon  the  note,  he  may 
then  dispose  of  it,  at  any  rate  of  discount  from 
its  face,  and  the  purchaser  will  have  a  right  to 
enforce  it  for  its  full  amount  against  the  maker.' 

USURIOUS  INTEREST.  Usury  is  the 
taking  of  more  interest  than  the  law  allows. 
The  excess  over  the  legal  rate  charged  the  bor- 
rower for  the  use  of  money.  There  must  there- 
fore be  the  use  of  money ;  which  may  be  by  a 
loan,  or  by  the  continuance  of  an  existing  debt. 
To  one  or  the  other  of  these  classes  all  con 
tracts  for  the  use  of  money  may  be  referred. 

16  Vin.  Ahr.  303.  x-6  Ves.  Ch.  92;  1  Vcm.  Ch.  349; 
Show.  Pari.  Cas.  15.  a-z  Brown.  Pari.  Cas.  251.  0- 
Id.  333.  C-i  East.  436;  see  also  4  Day,  30;  3  Caines, 
49:  r  Taunt.  218;  i  Mass.  308;  Com.  Dig.  Cfianrrrji 
(3S.  2)  Vin.  Abr.  Inf.iE.)  «l-5Ves.  Ch.  329;  see  Vin. 
Abr.  /«/.  (C.  5.)  e-2  T.  R.  52  ;  2  AnsU  496  ;  i  B.  &  P. 
156;  3  Camp.  488  ;  17  Ves.  332;  i  Maddock,  115;  t 
Dea.  &  Ch.  12  ;  4  M.  &  S.  196 ;  10  Exch.  581  ;  29  Eng. 
L.  &  Eq.  369 ;  2  Day,  483  ;  2  Conn.  341 ;  6  Cowen,  657 ;  7 
Johns.  Ch.i6o;  19  Johns.  160;  4  Hill, 211  ;  10  Paige,  94; 

1  Hoff.  Ch.  294  ;  2  Sandf.  Ch.  149  ;  11  Barb.  80;  4  Dcv. 
&B.  120;  5  B.  Mon.  146:  77  Ala.  774  ;  1  Mont.  &  A.  385; 

2  Camp.  348.  1-2  De.^.  &  Ch.  12;  i  M.  &  S.  56.  |f-a 
Camp.  348.  I1-7  Pet.  107  ;  13^.345;  8  Cow.  685  ;  3 
Wend.  65  ;  7  Id.  569;  15  Johns.  55  ;  4  Hill,  472;  >• 
P.iige,  326;  3  Sandf.  Ch.  249;  4  Mass.  162;  2  Coon. 
179  :  4  Id.  153;  3  M'Cord,  365;  1  Dallas,  21 7;  2  Id.  92; 
IS  Me.  163;  16  Id.  456;  20  Id.  08;  sMunf.  36;  i  J.  J. 
Marsh.  407  ;  3  B.  Mou.  67;  6  Id.  539  :  7  Humph.  450 
X7  Ala.  768. 


INTEREST— LANDLORD  AND  TENANT. 


47* 


And  to  constitute  usury,  there  must  be  an  agree- 
ment that  he  who  has  the  use  of  the  money 
shall  pay  the  owner  of  it  more  than  the  lawful 
interest  therefor. 

Interference.  See  Patbnts. 

Interlineation.  See  Contracts;  Convey- 
ances;  Writings. 

Interlocntory.  See  Practice. 

International  Liaw.  See  title  Law,  "  Inter- 
national Law." 

Interpleader.  See  Practice. 

Interpretation.  See  Contracts,  "Interpre- 
tation." 

Interpreter.  See  Evidrnce. 
.  Interrog-atories.  See  Equity  ;  Evidence. 

Interrnption.  See  Limitation. 

Intestacy,  Intestate.  See  Convbtances, 
"Wills." 

Innndatton.  See  Water. 

Invention.  See  Patents. 

Inventory.  Sec  Practice. 

Invoice.  See  Commercial  Law. 

Involnntary.  See  Acts. 

Irreg'niarity.  See  Practice. 

Irresistible  Force.  See  Accident. 

Irrigation.    See  Water. 

Island.  See  Real  Propertt. 

Issne.  See  Evidence;  Pleading. 

Item.  See  Contracts. 

.loinder.  See  Practice. 

Joint  Bond— Joint  and  Several  Bond. 
See  Bonds. 

Joint  Contract.  See  Contracts. 

Joint  Representatives.  See  Estates. 

Joint  Tenants.  See  Contracts;  Convey- 
ances. 

Joint  Trustees.  See  Estates,  "Trusts." 

Jointure.  See  Estates. 

Journal.  See  Accounts;  Legislation;  Mari- 
time Law,  etc. 

Jud^e.  See  Evidence;  Office  and  Officers. 

Judge  Advocate.  See  Office  and  Officers. 

Judj^es'  Notes.  See  Evidence. 

Judgnient.  See  Practice. 

Judicial  Proceeding's.  See  Practice. 

Jurat.  See  Affidavits. 

Jurisdiction.  See  Practice. 

Jurisprudence.   See  Law. 

Jury.  See  Practice. 

Jnstice  of  the  Peace.  See  Office  and  Offi- 
cers. 

Justification.  See  Pleading;  Practice. 

Kidnapping;.  See  Criminal  Law. 

Knowledjs^e.  See  Criminal  Law. 

l<aclies.  See  Negligence. 

l>and,  Iiands.  See  Real  Property. 

liANI>I.ORI>  AXB  TENANT.  See  As- 
signments; Bonds;  Contracts;  Conveyancls,  etc. 

Landlord  and  tenant  is  a  teiai  used  to 
denote  the  relation  which  subsists  V^y  virtue  of 
the  contract,  express  or  implied,  between  two 
or  more  persons,  for  the  possession  or  occupa- 
tion of  lands  or  tenements,  either  for  a  definite 
period,  for  life,  or  at  will. 

A  LANDLORD  is  a  person  who  owns  or  holds 
lands  and  tenements  which  he  leases  or  rents 
c  nt  to  others. 

A  TENANT  is  one  who  has  the  temporary  use 
sr.d  occupation  of  lands  and  tenements  which 
belong  to  another,  the  duration  and  other  terms 
of  whose  occupation  are  usually  defined  by  an 
agreement  called  a  lease,  while  the  parties 
thereto  are  placed  in  the  relation  of  landlord 
and  tenant.' 

A  LEASE  is  a  contract  for  the  possession  and 
profits  of  lands  and  tenements  on  the  one  side, 

a-5  Mann.  &  G.  54 ;  Bouv.  Inst.  Index.  b-Bac.  Abr. 
Lease.  C-4  Conn  473;  4  Pet.  84;  3  Wend.  219;  7  La. 
S3:  6  Ad.  &  E.  854;  Tayl.  Landl.  &  Ten.  19.  d-15 
Johni.  505 :  I  Denio,  113 ;    4  M'Cord,  59 ;    a  £sp.  528 ; 


and  a  recompense  of  rent  or  other  income  on 
the  other.''  The  party  who  leases  is  called 
the  lessor;  he  to  whom  the  lease  is  made,  the 
lessee ;  and  the  compensation  or  consideration 
of  the  lease  is  the  rent. 

Express  Contract.  When  the  relation  of 
landlord  and  tenant  is  created  by  an  express 
contract,  the  instrument  made  use  of  for  the 
purpose  is  called  a  lease.  One  of  the  essential 
properties  of  a  lease  is  that  its  duration  must 
be  for  a  shorter  period  than  the  duration  of  the 
interest  of  the  lessor  in  the  land;  for  if  he  dis- 
poses of  his  entire  interest,  it  becomes  an 
assignment,  and  this  is  not  a  lease.  In  other 
words,  the  granting  of  a  lease  always  supposes 
that  the  grantor  reserves  to  himself  a  reversion 
in  the  leased  premises. 

See  title  Conveyances,  "  Leases,"  ante. 

Implied  Contract.  The  relation  of  land- 
lord and  tenant  may  arise  by  necessary  impli- 
cation from  the  circumstances  of  the  case  and 
the  relative  position  of  the  parties  to  each 
other;  for  the  law  will  imply  its  existence 
whenever  there  is  an  ownership  of  land  on  the 
one  hand,  and  an  occupation  of  it  by  permis- 
sion on  the  other ;  and  in  all  such  cases  it  will 
be  presumed  that  the  occupant  intends  to  c»)m- 
pensate  the  owner  for  the  use  of  the  premises.* 
This  relation  may  be  inferred  from  a  variety 
of  circumstances;  but  the  most  obvious  ac- 
knowledgment of  its  existence  is  the  payment 
of  rent ;  and  this  principle  applies  even  after 
the  expiration  of  an  express  term  of  years;  for 
if  the  tenant  continues  to  hold  over  after  his 
term  has  run  out,  the  landlord  may,  if  he 
chooses,  consider  him  a  tenant,  and  he  is,  in 
fact,  understood  to  do  so,  unless  he  proceeds  to 
eject  him  at  once.  If  the  landlord  suffers  him 
to  remain,  and  receives  rent  from  him,  or  by 
any  other  act  acknowledges  him  as  tenant,  a 
new  tenancy  springs  up  of  so  definite  a  charac- 
ter that  it  cannot  be  terminated  by  either  party, 
except  by  a  reasonable  notice  to  quit."*  The 
payment  of  money,  however,  is  only  a  priiAa 
facie  acknowledgment  of  the  existence  of  a 
tenancy ;  for  if  it  does  not  appear  to  have  been 
paid  as  rent,  but  stands  upon  some  other  con- 
sideration, it  will  not  be  evidence  of  a  subsist- 
ing tenancy.*  Neither  does  a  mere  participa- 
tion in  the  profits  of  land,  where  the  owner  is 
not  excluded  from  the  possession  nor  the  let- 
ting of  land  upon  shares,  unless  the  occupant 
expressly  agrees  to  pay  a  certain  part  of  the 
crop  as  rent,  in  either  case  amount  to  a 
tenancy.' 

But  the  relation  of  landlord  and  tenant  will 
not  be  inferred  from  the  mere  occupation  of 
land,  if  the  relative  position  of  the  parties  to 
each  other  can,  under  the  circumstances  of  the 
case,  be  referred  to  any  other  distinct  cause : 
as,  for  instance,  between  a  vendor  and  vendee 
of  land,  where  the  purchaser  remains  in  pos- 
session after  the  agreement  falls  through.     For 

4  Camp.  275:  2  C.  &  P.  348.  e-3  B  &C.  413  :  10  East. 
261  ;  II  Ad  &  E.  ^07;  4  Bingh.  o'.  r-16  Mass.  443; 
I  S peers,  408;  3M'Cord,2ii;  i  Gill.  &  J.  266;  3  Zab». 
390 ;    3  Rawle,  II ;    3  Hill  (N.  Y.)  90 ,    15  Wend.  37J, 


47a 


LANDLORD  AND  TENANT. 


flie  possession  in  ihut  case  was  evidently  taken 
with  the  understanding  of  both  parties  that  the 
occupant  should  be  the  owner,  and  not  tenant; 
and  the  other  party  cannot,  without  his  con- 
sent, convert  him  into  a  tenant,  so  as  to  charge 
him  wiih  rent.*  The  same  principle  applies 
to  mortgagor  and  mortgagee,  as  well  as  to  that 
of  a  mortgagor  and  the  assignee  of  the  mort- 
gagee; for  no  privity  of  estate  exists  in  either 
case ;  and,  as  a  general  rule,  a  tenancy  by 
implication  can  never  arise  under  a  party  who 
has  not  the  legal  estate  of  the  premises  in 
question.'' 

Rights  and  Liabilities  Generally.  The 
rights  and  oblit^ations  of  the  parties  will  he 
considered  as  having  commenced  from  the  date 
of  the  lease,  if  there  be  one,  and  no  other  time 
for  its  commencement  has  been  agreed  upon  ; 
or,  if  there  be  no  date,  then  from  the  delivery 
of  the  pnpers.  If,  however,  there  be  no  writ- 
ings, it  will  take  effect  from  the  day  the  tenant 
entered  into  possession,  and  not  with  reference 
to  any  quarter-day.'  And  these  rights  and 
duties  attach  to  each  of  the  parties,  not  only  in 
respect  to  each  other,  but  also  with  reference 
to  other  persons  who  are  strangers  to  the  con- 
tract. The  landlord  retains  certain  rights  over 
the  property,  although  he  has  parted  with  its 
]>ossession,  while  the  tenant  assumes  obligations 
with  respect  to  it  which  continue  so  long  as  he 
m  invested  with  that  character. 

After  the  making  of  a  lease,  the  right  of 
possession,  in  legal  contemplation,  remains  in 
the  landlord  until  the  contract  is  consummated 
by  the  entry  of  the  lessee.  When  the  tenant 
enters,  this  right  of  possession  changes,  and  he 
draws  to  himself  all  the  rights  incident  to  pos- 
session after  this.  The  landlord's  rights  in  the 
premises  are  suspended,  or  confined  to  the  pro- 
tection of  his  reversionary  interest ;  that  is,  to 
the  maintenance  of  actions  for  such  injuries  as 
would,  in  the  ordinary  course  of  things,  con- 
tinue to  affect  his  interest  after  the  determina- 
tion of  the  lease.  Of  such  are  actions  for 
breaking  the  windows  of  a  house,  cutting  tim- 
ber, or  damming  up  a  rivulet,  whereby  the 
limber  on  the  estate  becomes  rotten.J  The  in- 
jury must  be  of  such  a  character  as  perma- 
nently affects  the  inheritance;  but  it  may  be  so 
if  any  one  interferes  with  his  tenants,  and  dis- 
turbs their  enjoyment  so  far  as  to  cause  him 
loss  of  rent  or  other  damage.'' 

The  landlord  may,  however,  go  upon  the 
premises  peaceably  for  the  purpose  of  ascertain- 
ing whether  any  waste  or  injury  has  been  com- 
mitted by  the  tenant  or  any  other  person,  first 
giving  notice  of  his  intention.  He  may  also 
use  all  ways  appurtenant  thereto,  demand  rent, 
make  such  repairs  as  are  necessary  to  prevent 

Hr-6  Johns  <6  :  i6  Pet  15  ;  ai  Me.  525  ;  8  M.  &  W. 
^18;  10  Cush  259.  ll-2  Mann.  &  R.  303;  6  Ad.  &  E. 
*68;  Tayl.  Landl.  &  Ten.  §  25.  1-4  Johns.  230:  15 
■Wend.  636;  Co.  Litt.  46,  a.  l-ti  Mass.  519;  i  M.  & 
S.  734  ;  9  Binph.  3 :  4  B.  &  Aid.  72;  3  Me.  6  :  5  Denio, 
404.  k-14  East.  489;  4  B.  &  Aid.  72;  i  Hall,  214.  1- 
3  (ohn».  408  :  I  Vern.  Ch.  C175 :  7  PicW.  76 ;  1  B.  &  C.  8  ; 
7  M.  &  W.  6ot  :  but  see  5  Dowl.  &  R.  442 ;  3  B.  &  C. 
H3.     IU-4  T.  R.  318;    s  H.  £1.  35p;   4  Taunt.  949;    I 


waste,  or  remove  an  obstruction.  But  if  rant 
is  payable  in  hay  or  other  produce,  to  be  de- 
livered to  him  from  the  farm,  he  is  not  entitled 
to  go  upon  the  land  and  take  it,  until  it  is  de- 
livered to  him  by  the  tenant,  or  until  it  has 
been  severed  and  set  apart  for  his  use.' 

The  landlord's  responsibilities  in  respect  to 
possession,  also,  are  suspended  as  soon  as  the 
tenant  commences  his  occupation.  If,  there- 
fore, a  stranger  is  injured  by  the  ruinous  state 
of  the  premises,  or  the  tenant  creates  a  nuisance 
upon  them,  or  if  the  fences  are  suffered  to  fall 
into  decay,  whereby  the  cattle  of  a  stranger 
stray  and  are  injured  or  lost,  the  landlord  is  in 
neither  case  answerable.  But  it  would  be 
otherwise  if  he  had  undertaken  to  keep  the 
premises  in  repair,  and  the  injury  was  occa- 
sioned by  his  neglect  to  keep  up  the  repairs,  or 
if  he  should  renew  the  lease  with  a  nuisance 
upon  it.™ 

Termination  of  the  Relation.  The 
relation  of  landlord  and  tenant  may  be  termi- 
nated in  seveVal  ways.  If  it  is  a  tenancy  for 
life,  it  will,  of  course,  terminate  upon  the  de- 
cease of  him  upon  whose  life  the  lease  depends. 
If  it  be  for  a  certain  number  of  years,  depend- 
ing upon  some  particular  event,  the  happening 
of  that  event  will  determine  the  tenancy.  So 
if  it  be  for  a  certain  number  of  years,  inde- 
pendent of  any  contingency,  it  will  expire  at 
the  last  moment  of  the  anniversary  of  the  day 
from  which  the  tenant  was  to  hold  in  the  last 
year  of  the  tenancy.  And  in  all  these  cases 
depending  upon  the  express  conditions  of  the 
lease,  no  notice  to  quit  will  be  necessary  in 
order  to  dissolve  the  relation  of  the  parties  to 
each  other."  But  a  tenancy  from  year  to  year, 
or  at  will,  can  only  be  terminated  by  a  notice 
to  quit :  this  notice  must  be  in  writing;  it  must 
be  explicit,  and  require  the  tenant  to  remove 
from  the  premises ;  it  must  run  in  the  name  of 
the  person  to  whom  possession  is  to  be  given, 
and  not  of  his  agent;  and,  if  given  by  one  of 
several  tenants  in  common,  it  is  valid  only  to 
the  extent  of  his  share,  but  if  made  by  one  of 
several  joint  tenants,  it  will  inure  to  the  benefit 
of  all."  So  is  a  notice  by  one  copartner  of  a 
firm.P  But  notice  to  quit  is  not  necessary  where 
the  relation  of  landlord  and  tenant  does  not 
subsist,"!  or  where  the  tenant  distinctly  disclaims 
the  title  of  the  landlord.'  No  particular  form 
of  the  notice  is  necessary ;  but  there  must  be  a 
reasonable  certainty  in  the  description  of  the 
premises  and  in  the  statement  of  the  time  when 
the  tenant  must  quit.  If  there  is  more  than  one 
tenant,  the  notice  should  be  addressed  to  all, 
but  it  may  be  served  on  either  one.»  A  valid 
notice,  properly  served,  vests  the  premises  in  the 

Ad.  &  E.  827.  n-Co.  Litt.  ai6;  Shepp.  Touchst.  187  ; 
gAd.  &E.  879;  5  Johns.  128:  i  Pick.  43  :  2  S.  &  R. 
49  :  18  Me.  264  :  Tayl.  Landl.  &  Ten.  ?  465.  0-BU>T. 
1603  ;  5  Esp.  196 ;  Dougl.  175 ;  5  Ad.  &  E.  350 ;  6  B.  & 
C.  41 ;  10  Johns.  270:  8  Taunt.  241  :  2  Mann.  &  R.  433  ; 
7  M.  &  W:  139  ;  3  Bingh.  (N.  C.)  677  :  i  B.  &  Ad.  135. 
|»-2  Mann.  &  R.  483.  q-2  Esp.- 501  ;  7  T.  R.  8^  ;  10 
Ea>t.  (Day's  Ed.)  261,  n.  2.  r-3  East.  260;  lol'd.  158; 
2  Campb.  505  ;  1  Stark.  181 ;  Id.  308  ;  3  Campb.  8 ;  j 
M.  &  W.  14.    m-j  East.  551 ;  s  Esp.  196. 


LANDLORD  AND  TENANT. 


473 


Uii  llord,  and  absolutely  terminates  the  tenant's 
iig'.it  of  possession  at  the  time  stated.'  But 
tiiis  and  all  other  eflfects  of  the  notice  may  be 
waived  by  the  landlord,  and  is  so  waived  by  his 
receiving  subsequent  rent  from  the  tenant." 

A  tenant  who  is  entitled  to  notice  of  the  de- 
termination of  his  tenancy,  must  be  previously 
notified  of  such  determination,  nor  can  he  be 
dispossessed  by  process  of  law,  without  that 
previous  notice.  Such  notice  is  regulated  by 
statute.' 

This  relation  will  also  be  dissolved  when  a 
tenant  incurs  a  forfeiture  of  his  lease  by  a  breach 
of  some  covenant  or  condition  therein.  An- 
other means  of  dissolving  a  tenancy  is  by  an 
operation  of  law,  termed  a  merger,  which  hap- 
pens when  a  tenant  purchases  the  estate,  or  it 
descends  to  him  as  heir  at  law,  the  lease  becom- 
ing thereby  merged  in  the  inheritance,  the  lesser 
estate  being  absorbed  in  the  greater.  In  addi- 
tion to  the  several  methods  of  putting  an  end 
to  the  tenancy  already  mentioned,  a  tenant  may 
surrender  his  lease  to  the  landlord ;  or,  if  the 
subject  matter  of  the  lease  wholly  perishes,  or 
is  required  to  be  taken  for  public  uses,  or  if 
the  premises  are  converted  into  a  house  of  ill- 
fame,  or  the  tenant  disclaims  to  hold  under  his 
landlord  and  therefore  refuses  to  pay  his  rent, 
iisserts  the  title  to  be  in  himself,  the  tenancy  is 
at  an  end,  and  the  landlord  may  forthwith  re- 
:iume  possession.' 

After  the  tenancy  has  ended,  the  right 
of  possession  reverts  to  the  landlord,  who  may 
re-enter  upon  the  premises  if  he  can  do  so 
without  violence.  But  if  the  tenant  holds  over 
and  the  landlord  takes  possession  forcibly  so  as 
to  endanger  a  breach  of  the  peace,  he  is  liable 
to  an  action  for  a  forcibly  entry  as  well  as  suf- 
fering the  consequences  of  an  action  for  his  tres- 
pass. The  landlord  should  therefore,  in  all 
such  cases,  resort  to  the  law,  and  receive  pos- 
session at  the  hands  of  an  officer.  The  tenant 
is  bound  quietly  to  yield  up  the  possession  of 
the  entire  premises,  although  he  still  retains  a 
reasonable  right  of  egress  or  regress  for  the 
purpose  of  removing  his  goods  and  chattels. 
And  for  a  refusal  to  perform  this  duty  he  will 
be  subjected  to  all  the  statutory  penalties  of 
holding  over.* 

CROPS— E  MBLEMENT  S— FIX- 
TURES, Etc.  Generally  an  out-going 
tenant  cannot  sell  or  take  away  the  manure.? 
A  tenant  whose  estate  has  terminated  by  an 
uncertain  event  which  he  could  neither  foresee 

t-j  Bingh.  158;  7T.  R.  431;  Pealce's  Adm.  Cas.  210. 
n-6Ciish.  415;  6E.  L.  &E.  424;  S.  C.  13C.  B.  178; 
II  Barb.  33.  v-See  Genf.rai,  Statutes,  w-7 'Wend, 
aio  ;  34  Id.  454  ;  3  M.  &  S.  270  ;  5  Ohio,  303  :  11  Met. 
(Mass.)  448;  I  Esp.  13:  13  Pet.  i;  3  A.  K.  Marsh. 
247;  10  III.  41;  20  Penn.  St.  398  ;  6  Verg.  280.  x-i 
Addis.  14,  43  ;  10  Mass.  409;  8  T.  R.  357  ;  i  Dev.  & 
K.  324 ;  5  C.  &  P.  201.;  I  M.  &  G.  644  ;  i  W.  &  S.  90  ; 
13  Johns.  235 ;  9  Vt.  352  ;  i  Strobh.  313.  y-6  Greenl. 
222  ;  7  Id.  201 ;  21  Pick.  367,  371  ;  22  Id.  437,  442  ;  15 
Wend.  169;  17  Penn.  St.  262;  3  N.  H.  503.  25-3  East. 
38,  contra  10  Barb.  496.  a-3  East.  38.  6-4  B.  &  Ad. 
655.  c-2  W.  Bl.  mi.  «i-ii  Rep.  50;  20  Wend.  363, 
369.  e-Co.  Litt.  S3,  a.  f-2  Kern.  170.  if-7  C.  &  I-*. 
327.    li-a  Ves.  &  B.  349.     i-Cro.  J.  121.    J-2  B.  &  B. 


nor  control,  is  entitled  to  the  annual  crop 
wliich  he  sowed  while  his  estate  continued,  by 
the  law  of  emblements.  lie  may  also,  in  cer- 
tain cases,  take  the  emblements  or  annual  pro- 
fits  of  the  land  after  his  tenancy  has  ended. 
And,  unless  restricted  by  some  stipulation  to 
the  contrary,  may  remove  such  fixtures  as  he 
has  erected  during  his  occupation,  and  conven- 
ience, profit,  or  comfort.  For,  in  general, 
what  a  tenant  has  added  he  may  remove,  if  he 
can  do  so  without  injury  to  the  premises,  unless 
he  has  actually  built  it  in  so  as  to  make  it  aa 
integral  part  of  what  was  there  originally. 

Immovable  Fixtures.  Agricultural  ereo 
tions.*  Fold-yard  walls.  Cart-house,  Barns 
fixed  in  the  ground.  Beast  house.  Carpenter 
shop.  Fuel  house,  Pigeon  house.  Pineries  sub- 
stantially fixed,  Wagon  house.*  Box  borders 
not  belonging  to  a  gardener  by  trade,  F"lowers, 
Trees,  Hedges.*  Ale-house  bar.  Dressers, 
Partitions.'  Locks  and  keys.*  Benches  af- 
fixed to  the  house.*  Statue  erected  as  an  or- 
nament to  grounds.  Sun-dial.'  Chimney  piece 
not  ornamental.'  Closets  affixed  to  the  house.'' 
Conduits.'  Conservatory,  substantially  affixed.' 
Doors.*  Fruit  trees,  if  a  tenant  be  not  a  nur- 
seryman by  trade. ^  Glass  windows.'  Hearths." 
Millstones."  Looms  substantially  affixed  to 
the  floor  of  a  factory."  Manure.P  Threshing 
machines  fixed  by  bolts  and  screws  to  posts  let 
in^o  the  ground. 1 

Removable  Fixtures,  though  not  com- 
ing IN  THE  CLASB  OF  TRADE  FIXTURES.  Arras 
hanging.'  Barns  resting  by  weight  alone  up)on 
foundations  let  into  the  ground,  or  upon 
blocks.*  Stables  and  out-houses.'  Granaries 
resting  by  weight  alone."  Gas  fixtures.'  Beds 
fastened  to  the  ceiling.'^  Carding  machines.* 
Machinery.'  Cotton  spinning  machines, 
screwed  to  the  floor.'  Cofliee  mills.  Malt  mills. 
Windmills  on  posts.*  Ornamental  chimney 
pieces.''  Gates  (if  removable  without  injury  to 
the  premises).  Pumps  slightly  attached.'  Iron 
Backs  to  chimneys,  Tapestry.*  Ornamental 
cornices."  Fire  frame.''  Furnaces.*  Looking- 
glasses.''  Movable  boards,  fitted  and  used  for 
putting  up  corn  in  bins.  Padlock  for  a  corn 
house.'  Mills  on  posts.J  Ornamental  fixtures.'' 
Rails  and  posts.'  A  ladder  fixed  on  the 
ground  and  to  a  beam  above,  and  which  was 
the  only  means  of  access  to  the  room  above. 
A  crane  nailed  at  the  top  and  .bottom  to 
keep  it   in    its  place,  a  bench   nailed   to  the 

54.  s-Moore,  177.  Ii-4  Taunt.  316.  1-Co.  Litt.  53, 
a.  ;  4  Rep.  63.  Hl-i  Salk.  368.  n-ii  Rep.  50;  6  Mod. 
187;  Shep.  Touch.  90.  0-20  Barb.  407.  |>-2i  Pick. 
367;  15  Wend.  i6g;  6  Greenl.  222;  6  Foster,  34s:  7 
Gieenl.  201.  q-i8  E.  L.  &  E.  142,  S.  C. ;  i  E.  &  B 
674.  r-Rolle,  216.  s-4  A.  &  E.  884 ;  B.  N.  P.  34.  t 
10  Barb.  496.  U-18  E.  L.  &  E.  142,  S.  C. ;  i  E.  &  B.  674. 
V-i  Duer,  363.  W-i  Atk.  477.  x-20  Wend.  636;  3 
Blackf.iii;  17  Johns.  116;  14  Mass.  352  ;  3  Vt.  425. 
y-io  Barb.  157;  i  Ohio  St.  511,  541.  z-3  E.  L.  &  E. 
562  ;  S.  C.  II  Exch.  113.  a-6  T.  R.  379.  b-6  Bingh. 
437 ;  30  E.  L.  &  E.  595 ;  S.  C.  Exch.  295.  c-6  Bingh. 
437.  d-Stra.  1141.  e-3  A.  &  E  75.  f-17  Prck.  192. 
jS-Freera.  Ch.  245.  h-i  P.  Wms.  94.  i-4  Pick.  310 
J-4  Leon,  241.  k-Amos  &  Ferand  OB  Fixtures,  p.  67; 
X  P.  Wms.  94.    l-i  H.  Bi.  «58. 


474 


LANDLORD  AND  TENANT. 


wall,  stables  on  rollers.!  Stoves.*  Window 
blinds.' 

Trade  fixtures  held  removable.  Brewery 
Tcssels,  Colliery  machines,  Cider  mills.™  En- 
gines." Coppers."  Buildings  accessory  to  re- 
movable trade  fixtures.?  Dutch  barns. i  Jlbbs.' 
Salt  pans.*  Shrubs  planted  for  sale.'  Soap 
works,  Vats."  Steam  engine.'  Stills.'*  Trees 
planted  for  sale.*     Varnish  house.' 

LANDLORDS.  The  principal  obligation 
on  the  part  of  the  landlord,  which  is,  in  fact, 
always  to  be  implied  as  a  necessary  condition 
to  his  receiving  any  rent,  is,  that  the  tenant 
shall  enjoy  the  quiet  possession  of  the  premises,* 
which  means,  substantially,  that  he  shall  not  be 
turned  out  of  possession  of  the  whole  or  any 
material  part  of  the  premises  by  one  having  a 
title  paramount  to  that  of  landlord,  or  that  the 
landlord  shall  not  himself  disturb  or  render  his 
occupation  uncomfortable  by  the  erection  of  a 
nuisance  on  or  near  the  premises,  or  otherwise 
oblige  him  to  quit  possession.**  But  if  he  be 
ousted  by  a  stranger,  that  is,  by  one  having  no 
title,  or  after  the  rent  has  fallen  due,  or  if  the 
molestation  proceeds  from  acts  of  a  third  per- 
son, the  landlord  is  in  neither  case  responsible 
for  it."  Another  obligation  which  the  law  im- 
poses on  the  landlord,  in  the  absence  of  any 
express  stipulation  in  the  lease,  is  the  payment 
of  all  taxes  and  assessments  chargeable  upon 
the  property,  or  any  ground-rent  or  interest 
upon  mortgages  to  which  it  may  be  subject. 
Every  landlord  is  bound  to  protect  his  im- 
mediate tenant  against  all  paramount  claims. 
And  if  a  tenant  is  compelled,  in  order  to  pro- 
tect himself  in  the  enjoyment  of  the  land  in 
respect  of  which  his  rent  is  payable,  to  make 

Eayment  which  ought,  as  between  himself  and 
is  landlord,  to  have  been  made  by  the  latter, 
he  may  call  upon  the  landlord  to  reimburse 
bim,  or  he  may  deduct  such  payment  from  the 
rent  due  or  to  become  due.*  But  the  landlord 
is  under  no  obligation  to  make  repairs,  or  to 
rebuild  in  case  the  premises  should  be  burned ; 
nor  does  he  guarantee  that  they  are  reasonably 
fit  for  the  purposes  for  which  they  were  taken. 
And  it  is  not  in  the  power  of  a  tenant  to  make 
repairs  at  the  expense  of  his  landlord,  unless 
there  be  a  special  agreement  between  them 
authorizing  him  to  do  so;  for  the  tenant  takes 
the  premises  for  better  or  for  worse,  and  can- 
not involve  the  landlord  in  expense  for  repairs 
without  his  consent."  Even  if  the  premises 
have  become   uninhabitable  by  fire,  and   the 

J-3a  E.  L.  &  E.  422 ;  S.  C.  16  C.  B.  637.  k-17  S.  & 
R.  413;  6  Bing.  437;  10  Pick.  500,  504.  I-io  Pick.  500, 
_v04.  m-3  Atk.  13.  ii-3Atk.  13;  Ambl.  113.  O-i  S.ilk. 
"',68,  3  Atk.  38.  p-Amljl.  113.'  q-?  Esp.  11.  r-2  B.  & 
Aid.  165.  8-1  H.  Bl.  259,  n.  t-2  East.  88  ;  i  Met.  27. 
11-1  Salk.  368.  v-2  Dev.  L.  376  ;  4  Watts,  330.  w-s 
Cowen,  323;  3  Mo.  207.  x-2  East.  88;  i  Met.  27.  y- 
3  East.  88.  a-There  is  an  implied  covenant  on  the  part 
of  the  lessor  to  put  the  lessee  into  possession,  and  that 
he  shall  quietly  enjoy.  4  Bing.  N.  C.  678;  5  Id.  183; 
Hob.  12.  10  Mod.  142 ;  Shepp.  Touchst. ;  4  Rep.  80, 
b. ;  3  M.  &  P.  57  ;  26  E.  L.  &  E.  568.  But  unless  the 
lease  be  under  seal  there  is  no  implied  covenant  for  good 
title,  but  only  for  quiet  enjoyment.  20  E.  L.  &  E.  374 ; 
S.  C.  8  Exch.  013.  b-3  East.  491  ;  6  Dowl.  &  R.  349  ; 
8  Cow,  747;  7  Wond.  281 ;    13  N.  Y.  151 ;    a  Dev.  388 ; 


landlord  having  insured  them  has  recovered 
the  insurance-money,  the  tenant  cannot  compel 
him  to  expend  the  money  so  recovered  in  re- 
building, unless  he  has  expressly  engaged  to  do 
so;  nor  can  he,  in  such  an  event,  protect  him- 
self from  the  payment  of  rent  during  the  un- 
expired balance  of  the  term,'  unless  exempted 
therefrom  by  statute  or  the  terms  of  the  lease. 

The  uninhabitableness  of  a  house  is  not  a 
good  defence  to  an  action  for  rent.*  And  if 
the  landlord  expressly  covenanted  to  repair, 
the  tenant  cannot  quit  and  discharge  himself 
of  the  rent  because  the  repairs  are  not  made, 
unless  there  is  a  provision  to  that  effect.''  And 
if  a  landlord  is  bound  by  custom  or  by  express 
agreement  to  repair,  this  obligation,  and  the 
obligation  of  the  tenant  to  pay  rent,  are  inde- 
pendent of  each  other,  so  that  the  refusal  or 
neglect  of  the  landlord  ta  repair  is  no  answer 
to  a  demand  for  rent.' 

TENANT.  The  tenant,  upon  taking  pos- 
session, is  at  once  invested  with  all  the  rights 
incident  to  the  possession ;  is  entitled  to  the 
use  of  all  the  privileges  and  easements  appur- 
tenant to  the  tenement,  and  to  take  such  reason- 
able estovers  and  emblements  as  are  attached 
to  the  estate.  He  may  maintain  an  action 
against  any  pcY^on  who  disturbs  his  possession, 
or  trespasses  on  the  premises,  though  it  be  the 
landlord  himself.J  As  occupant,  he  is  answer- 
able for  any  neglect  to  repair  highways,  fences, 
or  party  walls,  it  being  generally  sufficient,  ex- 
cept where  a  statute  otherwise  provides,  to 
charge  a  man  with  such  repairs  by  the  name  of 
occupant.  He  is  also  liable  for  all  injuries  pro 
duced  by  the  mismanagement  of  his  servants, 
or  by  a  nuisance  kept  upon  the  premises,  or 
by  an  obstruction  of  the  highway  adjacent  to 
them,  or  the  like ;  for,  as  a  general  rule,  where 
a  man  is  in  possession  of  property,  he  must  so 
manage  it  that  other  persons  shall  not  be  injured 
thereby.'' 

One  of  the  principal  obligations  which  the 
law  imposes  upon  every  tenant,  independent  of 
any  agreement,  is  to  treat  the  premises  in  such 
a  manner  that  no  substantial  injury  shall  be 
done  to  them,  and  so  that  they  may  revert  to 
the  landlord  at  the  end  of  the  term  unimpaired 
by  any  wilful  or  negligent  conduct  on  his  part. 
In  the  language  of  the  books,  he  must  keep 
the  buildings  wind-and-water-tight,  and  is 
bound  to  make  fair  and  tenable  repairs,  such 
as  the  keeping  of  fences  in  order,  or  replacing 
doors  and  windows  that  are  broken  during  his 

4  Mass.  349  ;  5  Day,  282.  c-i  T.  R.  671  ;  3  Johns.  471 ; 
7  Wend.  281  :  4  Dev.  46;  5  Hill,  599;  6  Mass.  246;  13 
East.  72  ;  12  Wend.  529  ;  25  Barb.  594.  d-6  Taunt.  524  ; 
12  East.  469  ;  5  Bingh.  409  ;  3  B.  &  Aid.  647 ;  7  B.  &  C. 
285 ;  3  Ad.  &  E.  331 ;  3  M.  &  W.  607 ;  5  B.  &  Aid.  521. 
C-6  Cow.  475  :  3  Duer,  464 1  iSaund.  3^0  ;_7  East.  116 


1  Ry.  &  M.  3i;7  17  Mann.  &  G.  576.  f-8  Paige,  437;  1 
Sim.  Ch.  146;"!  T.  R.  314;  sees  Rob-  (La.)  52-  JT-'o 
M.  &  W.  321 ;  12  Id.  68;    5  Bing.  N.  C.  501 :    12  E.  L. 


&  E.  173  ;  4  Comst.  126  :  1  Sneed,  613  ;  3  Duer,  464 ;  7 
Hill,  83.  h-7  Mann.  &  G.  576.  1-Bro.  Abr.  D.  pi.  18  ; 
27  H.  6,  10,  a.  pi.  16;  Reporter's  «.  to  Mann.  &  G.  576 
J-i  Denio,  21  ;  Cro.  Car.  325  ;  3  Wils.  461  ;  2  H.  Bl. 
924  ;  2  B.  &  Ad.  97 ;  3  Cr.  &  R.  557-  lt-3  T.  R.  766 , 
3  Q.  B.  449  ;  I  Scott  (N .  R.)  392 ;  4  Taunt.  649  ;  5  B.  & 
C.  55a ;  6  M.  &  W.  499. 


LANDLORD  AND  TENANT. 


47S 


occupation.  If  it  is  a  furnished  house,  he  must 
preserve  the  furniture,  and  leave  it,  with  the 
linen,  etc.,  clean,  and  in  good  order.'  But  he 
is  not  bound  to  any  ornamental  repair,  as  paint- 
ing, papering,  etc.,  although  so  broad  a  cove- 
nant on  his  part  as  "  to  leave  the  premises  in 
good  and  sufficient  repair,  order,  and  condi- 
lion,"  might  cover  these  repairs."  If  he  ex- 
pressly agrees  to  keep  the  premises  in  repair, 
and  to  deliver  them  up  in  good  repair,  he  is  not 
justified  in  permitting  them  to  remain  out  of 
repair  by  the  fact  that  they  were  so  when  he 
received  them."  But  the  age  and  character  of 
the  premises  must  be  considered  in  determining 
the  proper  extent  of  the  repairs."  If  the  land- 
lord is  under  no  legal  obligation  to  repair,  and 
the  tenant  voluntarily  makes  them,  the  landlord 
is  not  bound  to  repay  him  for  the  expense. p 
Bat  there  would  be  a  sufficient  consideration  to 
sustain  a  subsequent  promise  by  the  landlord. 
A  tenant  is  not  bound  to  rebuild  premises  which 
have  accidentally  become  ruinous  during  his  oc- 
cupation, nor  is  he  answerable  for  ordinary  wear 
and  tear,  nor  for  an  accidental  fire,  nor  to  put  a 
new  roof  on  the  building,  nor  to  make  what  are 
usually  called  general  or  substantial  repairs; 
neither  is  he  bound  to  do  painting,  whitewash- 
ing, or  papering,  except  so  far  as  they  may  be 
necessary  to  preserve  exposed  timber  from  de- 
cay.^  With  respect  to  farming  leases,  a  tenant 
is  under  a  similar  obligation  to  repair,  but  it 
differs  from  the  general  obligation  in  this :  that 
it  is  confined  to  the  dwelling-house  which  he 
occupies — the  burden  of  supporting  the  out- 
buildings and  other  erections  on  the  farm  being 
sustained  by  either  the  landlord  or  the  tenant, 
in  the  absence  of  any  express  provision  in  the 
lease,  by  the  particular  custom  of  the  country 
in  which  the  farm  is  situated.  He  is  always 
bound,  however,  to  cultivate  the  farm  in  a  good 
and  husbandmanlike  manner,  to  keep  the  fences 
in  repair,  and  preserve  the  timber  and  orna- 
mental trees  in  good  condition ;  and  for  any 
violation  of  any  of  these  duties,  he  is  liable  to 
be  proceeded  against  by  the  landlord,  and  this 
wliether  the  act  be  committed  by  the  tenant  or 
a  stranger.'' 

The  tenant's  general  obligation  to  repair  also 
renders  him  responsible  for  any  injury  a  stranger 
may  sustain  by  reason  of  his  neglect  to  keep  the 
premises  in  a  safe  condition;  as,  by  not  keep- 
ing the  covers  of  his  vaults  sufficiently  closed, 
so  that  a  person  walking  in  the  street  falls 
through,  or  is  injured  thereby.  If  he  repairs 
or  improves  the  building,  he  must  guard  against 
accident  to  the  passers-by  in  the  street,  by  erect- 
ing a  suitable  barricade,  or  stationing  a  person 
there  to  give  notice  of  the  danger;'  for  any  un- 

■  1-5  C.  &P.  239;  7  Id.  327;  ^T.  R.  3t8;  18  Ves.  Ch. 
331  ;  2  Esp.  S90;  4  Mann.  &  G.  95  ;  12  M.  &  W.  827. 
Ml-io  B.  &  C.  12  :  I  Marsh.  567  :  6  M.  &  W.  458  ;  8  Id. 
790.  n-i6  M.  &  W.  541.  o-Id.  4  Bing.  N.  C.  451;  7 
A.  &  E  36;  2  Man.  &  R.  186.  p-6  Cowen,  475.  q-6 
T.R.650;  6C.&P.8;  i2Ad.&E.476;  i  Marsh. 
567;  lo  B.  &  C.  312.  r-Co.  Litt.  53  ;  6  Taunt.  300;  s 
Johns.  373;  13  East.  18;  3  Mood.  536;  2  Dougl.  745;  i 
Taunt.  198  ;  i  Denio,  104.  S-4  T.  R.  318;  28  Barb. 
194  ;  6  N.  Y.  48  :  4  Id.  222.  t-i  S.  &  R.  217 ;  6  East. 
437;  6  C.  &  P.  636;  I  Denio,  524;  Tayl.  Landl.  &Ten. 


reasonable  obstruction  which  he  places  in  the 

highway  adjoining  his  premises,  he  may  be  in- 
dicted for  causing  a  public  nuisance,  or  obstruct- 
ing the  highway,  as  well  as  rendered  liable  to 
an  action  for  damages,  at  the  suit  of  any  indi- 
vidual injured.  The  law  will  tolerate  such  a 
partial  and  temporary  obstruction  of  the  street 
as  may  be  necessary  for  business  purposes ;  as, 
in  receiving  and  delivering  goods  from  a  ware- 
house, or  coals  or  fuel  on  the  sidewalk,  or  the 
like :  provided,  always,  that  the  public  con- 
venience does  not  suffer  from  it.* 

The  tenant's  chief  duty,  however,  is  the  pay- 
ment of  rent,  the  amount  of  which  is  either 
fixed  by  the  terms  of  the  lease,  or,  in  the 
absence  of  an  express  agreement,  is  such  a 
reasonable  compensation  for  the  occupation  of 
the  premises  as  they  are  fairly  worth.  If  there 
has  been  no  particular  agreement  between  the 
parties,  the  tenant  pays  rent  only  from  the  time 
he  has  had  the  beneficial  enjoyment  of  the 
premises;  but  if  he  has  entered  into  an  express 
agreement  to  pay  rent  during  the  term,  no 
casualty  or  injury  of  the  premises  by  fire  or 
otherwise — nothing,  in  fact,  short  of  an  evic- 
tion— will  save  him  from  such  payment,"  in 
the  absence  of  a  statute  or  agreement  exempt- 
ing him  in  such  event.  But  if  he  has  been  de- 
prived of  the  possession  of  the  premises,  or 
any  part  thereof,  by  a  third  person  under  a  title 
superior  to  that  of  the  landlord,  or  if  the  latter 
annoys  his  tenant,  erects  or  causes  the  erection 
of  such  a  nuisance  upon  or  near  the  premises, 
as  renders  his  occupation  so  uncomfortable  as 
to  justify  his  removal,  he  is,  in  either  case, 
discharged  from  the  payment  of  rent.^  But  it 
is  no  answer  to  a  demand  for  rent  that  the 
premises  are  not  in  a  fit  and  proper  state  and 
condition  for  the  purposes  for  which  they  were 
hired.''  If,  therefore,  the  premises  are  burned 
down,  and  the  tenant  is  under  no  obligation  to 
rebuild  (not  having  agreed  to  keep  in  repair), 
or  are  destroyed  by  the  act  of  God  or  the  pub- 
lic enemies,  yet  he  is  bound  to  pay  rent  there- 
after.'^ Unless  the  lease  contains  a  provision 
that  the  rent  shall  cense  or  proportionately 
abate  while  the  premises  remain  wholly  or  in 
part  unfit  for  use. 

The  obligation  to  pay  rent  may  be  appor- 
tioned; for,  as  rent  is  incident  to  the  reversion, 
it  will  become  payable  to  the  assignees  of  the 
respective  portions  thereof,  whenever  that  re- 
version is  severed  by  an  act  of  the  parties,  or 
of  the  law.  But  the  tenant's  consent  is  neces- 
sary for  the  apportionment  when  made  by  the 
landlord,  unless  the  proportion  of  rent  charge- 
able upon  each  portion  of  the  land  has  been 
settled  by  the  intervention  of  a  jury.'     A  ten- 

?  192.  11-4  Paige  Ch.  355  ;  18  'Ves.  Ch.  415  :  1  Harr.  & 
J.  42  ;  16  Mass.  240;  3  Denio,  464  ;  3  Bos.  &  P.  420;  6 
T.  R.  650;  24  'Wend.  454  :  Aleyn,  26  ;  4  Harr.  &  J. 
564;  I  Bay,  499.  ■v-2 'Wend.  561 ;  12^.529:  4  Cow. 
58;  8  Id.  727;  4  N. 'Y.  217;  2  Ired.  350;  30^0,364; 
4  Rawle,  320  ;  Co.  Litt.  148,  b.  :  2  East.  576;  i  Cowp. 
242;  6T.  R.  458.  W-12M.  &W.  68;  7  Mann.  &  6. 
576;  I  Ch.  Cas.  83.  x-Dallas,  210  ;  16  Mo.  214;  6 
Alass.  62  ;  I  Harr.  &  Johns.  42;  4  Id.  546;  1  Bibb. 
536;  5  Barb.  601.  y-22 'Wend.  121 ;  2  Barb.  643;  j 
Denio,  454;  I  Dowl.  &  R.  291;  5  B.  &  Aid.  876. 


47* 


LANDLORD  AND  TENANT— LAW. 


ant,  however,  cannot  get  rid  of  or  apportion 
his  rent  by  transferring  the  whole  or  a  part  of 
his  lease ;  for  if  he  assigns  it,  or  underlets  a 
portion  of  it,  he  still  remains  liable  to  his  land- 
lord for  the  whole.'  Instances  of  an  appor- 
tionment by  act  of  law  occur  where  there  is  a 
descent  of  the  reversion  among  a  number  of 
heirs,  or  upon  a  judicial  sale  of  a  portion  of 
the  premises  belonging  to  them  respectively. 
So,  if  a  man  dies,  leaving  a  widow,  she  will 
have  a  right  to  receive  one-third  of  the  rent, 
while  the  remaining  two-thirds  will  be  payable 
to  his  heirs,»  unless  the  apportionment  be  made 
different  by  statute, 

A  tenant  cannot  dispute  his  landlord's  title. 
For  he  is  estopped  from  changing  by  his  own 
act  the  character  and  effect  of  his  tenure.' 
And  whenever  a  tenant  disclaims  his  tenure,  or 
denies  his  landlord's  title,  or  claims  adversely 
to  him,  or  attorns  to  another  as  having  title 
against  him,  he  forfeits  his  estate.  But  where 
the  lease  was  obtained  by  the  fraud  of  the  land- 
lord, the  tenant  may  defend  against  an  action 
brought  on  the  lease  by  impeaching  the  land- 
lord's title.**  But  this  fraud  must  be  practised 
directly  against  the  tenant.  A  disclaimer  by  a 
tenant  will  work  a  forfeiture  only  when  it 
amounts  to  a  renunciation  of  his  character  as 
a  tenant,  which  may  be  either  by  setting  up  a 
title  in  another,  or  claiming  title  himself." 

THIRD  PERSONS.  The  rights  and 
liabilities  of  landlords  and  tenants  are  not  con- 
fined to  the  immediate  parties  to  the  con- 
tract, but  attach  to  all  persons  to  whom  the 
estate  may  be  transferred,  or  who  may  succeed 
to  the  possession  of  the  premises  either  as 
landlords  or  tenants.  This  principle  follows, 
as  a  necessary  consequence  of  that  privity  of 
estate  which  is  incident  to  the  relation  of  land- 
lord and  tenant.  A  landlord  may  not  violate 
his  tenant's  rights  by  a  sale  of  the  property ; 
neither  can  a  tenant  avoid  his  responsibilities 
by  substituting  another  tenant  in  his  stead 
without  the  landlord's  consent.  The  purchaser 
of  the  property  becomes  in  one  case  the  land- 
lord, and  is  entitled  to  all  the  rights  and  reme- 
dies against  the  tenant  or  his  assignee  which 
the  seller  tiad,  while  in  the  other  case  the  as- 
signee of  the  lessee  assumes  ail  the  liabilities 
of  the  latter,  and  is  entitled  to  the  same  pro 
tection  which  he  might  claim  from  the  assignee 
of  the  reversion ;  but  the  original  lessee  is  noi 
thereby  discharged  from  his  obligations.* 

IianiCnaipe.  See  Evidknch,  "  Interpreter." 
Liap«e.  See  Devise  ;  Legacy  ;  Patent. 
Iiarceny.  See  Ckiminai.  Law. 
I^ast  Sickness.  See  Evidence,  "Confession." 
I^nst  Will.  See  Convbvances,  "Wills." 
I^atent  Ainbisiiity.    See  Bonds,  Notes,  and 
BtLUS ;  Contracts. 
Xiauncli.  See  Mbrcantilb  Law. 

y-Cro  Eliz.  633  ;  24  Barb.  333.  «-Cro.  Eliz.  742  : 
IS  Wend  464;  Cro.  lac.  160;  Co  Litt.  148  ;  i  M.  & 
W.  747.  a-ii  A.  &  E.  307,  10  Bing.  549;  4  M.  &  Sel 
347:  2  Bing.  54;  7J.B  Moore,  289;  Holt,  489;  3  Pe- 
ters, 43  ;  13  Ired.  L.  498  ;  14  III  135  ;  i  Cal.  470 ;  16  E. 
L  &  E.  232 :  S  C.  I  E.  &  B.  630 :  2  N.  J.  261 ;  n 
Humph.  183;  5  Md.  404.  b-6  Binn.  45;  6  Penn.  St. 
154:    iRawle,  4«^;    14  S.  &  R   382.    C-i  Man.  &  G 


liAW.  See  Equity;  Evidence;  Icnoranci; 
Knowledge;  Pleading;  Practice,  etc,  etc 

Law  is  a  rule  of  civil  conduct  prescribed  by 
the  supreme  power  in  a  State.*  A  rule  or  en- 
actment promulgated  by  the  legislative  authority 
of  a  State ;  a  long  established  local  custom 
which  has  the  force  of  such  an  enactment.' 
The  rules  and  methods  by  which  society  com- 
pels or  restrains  the  action  of  its  members. 
The  aggregate  of  those  rules  and  principles  of 
conduct  which  the  governing  power  m  a  com- 
munity recognizes  as  the  rules  and  principles 
which  it  will  enforce  or  sanction,  and  accord- 
ing to  which  it  will  regulate,  limit,  or  protect 
the  conduct  of  its  members. 

Arbitrary  law  is  a  law,  or  provision  of  law, 
so  far  removed  from  consideration  of  abstract 
justice  that  it  is  necessarily  founded  on  the 
mere  will  of  the  law-making  power,  so  that  it 
is  rather  a  rule  established  than  a  principle  de- 
clared. The  principle  that  an  infant  shall  be 
bound  by  his  contract  is  not  arbitrary ;  but  the 
rule  that  the  limit  of  infancy  shall  be  twenty- 
one  years,  not  twenty  nor  twenty-two,  is  arbi- 
trary. The  term  is  also  sometimes  used  to  sig- 
nify an  unreasonable  law — one  that  is  in  viola- 
tion of  justice.  Irrevocable  laws  are  those  which 
have  not  in  their  nature  or  in  their  language  some 
limit  or  termination  provided,  and  are,  in  theory, 
perpetual :  but  the  perpetuity  is  liable  to  be  de- 
feated by  subsequent  abrogation.  It  has  some- 
times been  attempted  to  secure  an  absolute  per- 
petuity by  an  express  provision  forbidding  any 
abrogation.  But  it  may  well  be  questioned 
whether  one  generation  has  power  to  bind  its  pos- 
terity by  an  irrevocable  law.*  Municipal  law  is  a 
system  of  law  proper  to  any  single  State,  nation, 
or  community.  Positive  law  is  the  system  natu- 
rally established  by  a  community  in  distinction 
from  natural  law.  A  prospective  law  or  statute 
is  one  which  applies  only  to  cases  arising  after 
its  enactment,  and  does  not  affect  that  which  is 
already  past.  A  retrospective  law  or  statute  is 
one  that  turns  backward  to  alter  that  which  is 
past,  or  to  affect  men  in  relation  to  their  con- 
duct before  its  enactment.  These  are  also 
called  retroactive  laws.  In  general,  whenever 
a  retroactive  statute  would  take  away  vested 
rights,  or  impair  the  obligation  of  contracts,  it 
is  so  far  void."*  But  laws  which  only  vary  the 
remedies,  or  merely  cure  a  defect  in  proceed- 
ings otherwise  fair,  are  valid.*  A  penal  law  is 
one  which  inflicts  a  penalty  for  its  violation.  A 
private  or  special  law  is  one  which  relates  to 
private  matters  which  do  not  concern  the  pub- 
lic at  large.  A  public  or  general  law  is  one 
which  affects  the  public  either  generally  or  in 
some  classes. 

ADMIRALTY  relates  to  maritime  affairs, 
maritime  causes,  civil  and  criminal. 

'35:  23  Penn.  St.  131.  d-i 7  Johns.  239;  3  Harr.  & 
M'H.  387;  24  Barb.  36s;  13  Wend.  n6-  igld.eS.S 
Ves.  Ch.  95  .  I  Ves.  &  B.  Ir.  11  .  4  T.  R.  559.  e-i  Siep. 
Comm.  25.  f-10  Pet.  18.  jf -See  this  subject  discussed 
by  Bentham  Works,  vol.  ii,  pp.  402-407 ;  and  sec  Dwar- 
ris  Stat.  479.  h-3  Dall.  391.  i-io  S.  &  R.  102,  103; 
15  Id.  72;  2  Pet.  380,  627  ;  8  Id.  88;  11  Id.  420;  ke« 
Ex  Post  Facto  Law, /of/ 


LAW. 


477 


Admiralty  jurisdiction  ds  exercised  in  the 
first  instance  by  the  United  States  District 
Courts,  from  which  causes  may  be  removed  in 
certain  cases  to  the  United  States  Circuit  Court, 
and  ultimately  to  the  Supreme  Court  of  the 
United  States. 

Admiralty  jurisdiction  in  civil  cases 
extends  to  average'  bonds  of  bottomry,  respon- 
dentia,* charter  parties,''  contracts  of  affreight- 
ment between  different  States  or  foreign  ports,* 
contracts  with  material  men,J  contracts  for 
conveyance  of  passengers,''  maritime  contribu- 
lions,'  damages  occurring  at  high  seas,'  hyf)oth- 
ecation  of  ship  and  cargo,*  jettisons,' pilotage," 
cases  of  prize  or  ransom,"  respondentia,*  seiz- 
ures under  the  laws  of  impost,  navigation,  or 
trade,"  surveys  of  ship  and  cargo,?  seamen's 
wages,'  trespasses  occurring  at  high  seas.' 

Admiralty  jurisdiction  in  criminal 
CASES  extends  to  all  crimes  or  offences  com- 
mitted on  the  high  seas  or  beyond  the  jurisdic- 
tion of  any  country." 

CIVIL  LAW.  The  term  civil  law  is 
generally  used  to  designate  the  Roman  Juris- 
prudence, yus  civile  Romanorum.  In  its 
most  extensive  sense  the  term  Roman  law 
comprises  all  those  legal  rules  and  principles 
which  were  in  force  among  the  Romans,  with- 
out reference  to  the  time  when  they  were 
adopted,  but  in  a  more  restricted  sense  we 
understand  by  it  the  law  compiled  under  the 
auspices  of  the  Emperor  Justinian,  and  which 
are  still  in  force  in  many  of  the  states  of  mod- 
em Europe,  and  to  which  all  refer  as  authority 
or  written  reason. 

CODE  LAW.  A  code  is  a  body  of  law 
established  by  legislative  authority  of  the  State, 
and  designed  to  regulate  completely,  so  far  as 
a  statute  may,  the  subject  to  which  it  relates. 

When  it  is  considered  how  rapidly  statutes 
accumulate  as  time  passes,  it  is  obvious  that 
great  convenience  will  be  found  in  having  the 
statute  law  in  a  systematic  body,  arranged  ac- 
cording to  subject-matter,  instead  of  having  it 
unorganized — scattered  through  the  volumes 
in  which  it  was  from  year  to  year  promulgated. 
But  this  transposition  suggests  amendments  for 
the  purpose  of  harmonizing  inconsistencies, 
supplying  defects  brought  to  notice,  and  also 
the  introduction  of  a  system  of  all  other  rules 
which  are  recognized  as  the  unwritten  or  com- 
mon law  of  the  State.  Still,  however  success- 
fully a  code  might  be  supposed  to  embody  all 
existing  and  declared  law,  so  as  to  supersede 
all  previous  sources,  it  cannot  be  expected  to 
provide  prospectively  for  all  the  innumerable 
cases  which  the  diversity  of  affairs  rapidly 
engenders,  and  there  must  soon  come  a  time 

f-6  McLean  C.  C.  573  ;  7  How.  720 ;  19  Id.  162  ;  21 
Bost.  L.  Rep.  87,  96.  g-i  Curt.  C.  C.  340;  3  Siimn.  C. 
C.  228;  1Whe.1t.  96;  4Cranch.  328;  8  Pet.  353 ;  18 
How.  63.  ll-i  Sumn.  C.  C.  551 ;  2  Id.  589  ;  2  Story  C. 
C.  81.  i-2  Curt.  C.  C.  271 :  2  Sumn.  C.  C.  567:  Ware. 
Dist.  Ct.  188,  263,  3B2 ;  6  How.  344.  j-4  Wheat.  438; 
see  ao  How.  393;  ai  Bost.  L.  Rep.  601.  It-i6  How. 
469  ;  I  Blatch/.  C.  C.  560,  569 ;  i  Abb.  Adm.  48  ;  i 
Newb.  Adm.  494.  I-2  Parsons'  Mart.  L.  ;  see  2  Sumn. 
C.  C.  I.     m-i  Mas.  C.  C.  508;    10  Pet.  108;    la  How. 


when  it  must  be  studied  in  a  light  of  numerous 
explanatory  decisions  resting  in  the  reported 
cases  upon  the  same  or  a  similar  statute.  These 
discussions  have  called  attention  to  a  subject 
formerly  little  considered,  but  which  is  of  fun- 
damental importance  to  the  successful  prepara- 
tion of  a  code — the  matter  of  statutory  expre.s- 
sion.  There  is  no  species  of  composition  M'hich 
demands  more  care  and  precision  than  that  of 
drafting  a  statute.  The  writer  needs  not  only 
to  make  his  language  intelligible,  but  he  must 
make  it  incapable  of  misconstruction.  When 
it  has  passed  to  a  law,  it  is  no  longer  his  mtent 
that  is  to  be  considered,  but  the  intent  of  the 
words  which  he  has  used,  and  that  intent  is  to 
be  ascertained  under  the  strong  pressure  of  an 
attempt  of  the  advocate  to  win  whatever  possi- 
ble construction  may  be  most  favorable  to  his 
cause.  The  true  safeguard  is  found  not  in  the 
old  method  of  accumulating  synonyms  and  by 
an  accumulation  of  particulars,  but  rather  by 
concise  but  complete  statement  of  the  full  prin- 
ciple in  the  fewest  possible  words,  and  the 
elimination  of  description  and  paraphrase  by 
the  separate  statement  of  necessary  defini- 
tions. One  of  the  rules  to  which  the  New 
York  revisers  generally  adhered,  and  which 
they  found  of  very  great  importance,  was  to 
confine  each  section  to  a  single  proposition. 
In  this  way  the  intricacy  and  obscurity  of  the 
old  statutes  were  largely  avoided.' 

Commercial  Law;  Law  Merchant; 
Mercantile  Law.  See  titles.  Accounts; 
Agency  ;  Bailments  ;  Bonds,  Notes,  and 
Bills;  Insurance;  Interest,  ante. 

COMMON  LAW.  Common  law  is  that 
system  of  law,  or  form  of  the  science  of  juris- 
prudence, which  has  prevailed  in  England  and 
the  United  States  of  America,  in  contradistinc- 
tion to  other  great  systems.  Those  principles, 
usages,  and  rules  of  action  applicable  to  the 
government  and  security  of  persons  and  of 
property  which  do  not  rest  for  their  authority 
upon  any  express  or  positive  declaration  of  the 
will  of  the  legislature."  The  law  of  any  coun- 
try :  to  denote  that  which  is  common  to  the 
whole  country  in  contradistinction  to  laws  and 
customs  of  local  application. 

The  most  prominent  characteristic  which 
marks  its  contrast  with  other  great  systems  of 
the  law,  and  perhaps  the  source  of  its  distinc- 
tion, lies  in  the  fact  that  in  the  common  law 
neither  the  stiff  rule  of  long  antiquity  on  the 
one  hand,  nor  on  the  other  the  sudden 
changes  of  an  arbitrary  power  are  allowed  as- 
cendency, but,  under  the  sanction  of  a  constitu- 
tional government,  each  of  these  is  set  off 
against  the  other;  so  that  the  will  of  the  peo- 

299;  see  2  Paine  C.  C.  131 ;  9  Wheat,  i,  207:  R.  M. 
Charlt.  302,  314:  8  Met.  Mass.  332:  i  Bost.L.  Rep.  20. 
11-3  Dall.  6.  o-U.  S.  Rev.  Statutes.  p-Story  Const. 
?  1665  ;  5  Mas.  465  ;  10  Wheat.  411;  see  2  Parsons' 
Marit.  L.  511,  n.  q-a  Parsons'  Marit  L.  509.  r-a 
Id.  ;  see  2  Sumn.  C.  C.  i.  8-2  Parsons'  Marit.  L.  t. 
The  reader  who  wishes  to  pursue  this  subject  wiU  see 
Coode's  Treatise  on  Legislative  Expression  (Lend. 
1845);  Gael.  Legal  Composition  (Lond.  1840).  n-t 
Kent.  Comm.  492. 


478 


LAW. 


pie,  u  it  is  gathered  both  from  long  established 
custom  and  from  the  expression  of  the  legisla- 
tive power,  gradually  forms  a  system — just,  be- 
cause it  IS  the  deliberative  will  of  a  free  peo- 
ple— stable,  because  it  is  the  growth  of  centu- 
ries— progressive,  because  it  is  amenable  to  the 
constant  revision  of  the  people. 

Perhaps  the  most  important  of  these  nar- 
rower senses  is  that  which  it  has  when  used  in 
contradistinction  to  statute  law,  to  designate 
unwritten  as  distinguished  from  written  law. 
It  is  that  law  which  derives  its  force  and 
authority  from  the  universal  consent  and  im- 
memorial practice  of  the  people.  It  has  never 
received  the  sanction  of  the  legislature  by  an 
express  act,  which  is  the  criterion  by  which  it 
is  distinguished  from  statute  law.  When  it  is 
spoken  of  as  the  lex  non  scripta,  it  is  meant 
that  it  is  law  not  written  by  authority  of  law. 
The  statutes  are  the  expression  of  law  in  a 
writ'^en  form,  which  form  is  essential  to  the 
statute.  The  decision  of  a  court  which  estab- 
lishes or  declares  a  rule  of  law  may  be  reduced 
to  writing,  and  published  in  the  reports;  but 
this  report  is  not  the  law  :  it  is  but  evidence  of 
the  law;  it  is  but  a  written  account  of  one 
application  of  a  legal  principle,  which  princi- 
ple in  the  theory  of  the  common  law,  is  still 
unwritten.  However  artificial  this  distinction 
may  appear,  it  is  nevertheless  of  the  utmost 
importance,  and  bears  continually  the  most 
wholesome  results.  It  is  only  by  the  legisla- 
tive power  that  law  can  be  bound  by  phrase- 
ology and  by  forms  of  expression.  The  common 
law  eludes  such  bondage ;  its  principles  are  not 
limited,  nor  hampered  by  the  mere  forms  in 
which  they  may  have  been  expressed,  and  the 
reported  adjudications  declaring  such  principles 
are  but  the  instances  in  which  they  have  been 
applied.  The  principles  themselves  are  still  un- 
written, and  ready,  with  all  the  adaptability 
of  truth,  to  meet  every  new  and  unexpected 
case;  hence,  it  is  said  that  the  rules  of  the 
common  law  are  flexible.'  It  naturally  results 
from  the  inflexible  form  of  the  statute  or  written 
law,  which  has  no  self-contained  power  of 
adaptation  to  cases  not  foreseen  by  legislators, 
that  eveiy  statute  of  importance  becomes,  in 
course  of  time,  supplemented,  explained,  en- 
larged, or  limited  by  a  series  of  adjudications 
upon  it,  so  that  at  last  it  may  appear  to  be 
merely  the  foundation  of  a  larger  superstruc- 
ture of  unwritten  law.  It  naturally  follows, 
too,  from  the  less  definite  and  precise  forms  in 
which  the  doctrine  of  the  unwritten  law  stands, 
and  from  the  proper  hesitation  of  courts  to 
modify  recognized  doctrines  in  new  exigencies, 
that  the  legislative  power  frequently  intervenes 
to  declare,  to  qualify,  or  to  abrogate  the  doc- 
trines of  the  common  law.     Thus  the  written 

v-i  Gray,  263 ;  i  Swanst.  43  ;  5  Cow.  587,  628,  632. 
W-Sec  I  Bishop  Crim.  L.  3  15,  note  4,  \  45.  X-4  Den. 
<o5:  sAbb.  Pr.  23.  y-8  N.  Y.  535.  «-iGall.  20;  i 
Baldw.  C.  C.  554,  ss8;  3  Wheat.  223  ;  3  Pet.  446.  R- 
3  Pel.  446.-  I  Baldw.  C.  C.  554.  b-2  Pet.  144  ;  8  Id. 
659  ;  9  Cranch.  333 ;  9  S.  &  R.  330 ;  i  Blackf.  66,  82, 
iob;    X   Kirb.  Comm.  J17;    5  Harr.  &  J.  336;    3  Aik. 


and  unwritten  law,  the  statutes  of  the  present 
and  traditions  of  the  past,  interlace  and  react 
upon  each  other.  Historical  evidence  suppori- 
the  view  which  these  facts  suggest,  that  many 
of  the  doctrines  of  the  common  law  are  but  the 
common  law  form  of  antique  statutes,  long 
since  overgrown  and  imbedded  in  judicial 
decisions. 

In  this  country  the  common  law  of  England 
has  been  adopted  as  the  basis  of  jurisprudence 
in  all  the  States  except  Louisiana.  Many  c.f 
the  most  valued  principles  of  the  common  lav.' 
have  been  embodied  in  the  constitution  of  tlie 
United  States,  and  the  constitutions  of  the 
several  States ;  and,  in  many  of  the  States,  the 
common  law  and  the  statutes  of  England  in 
force  in  the  colony  at  the  time  of  our  independ- 
ence, are,  by  the  State  constitution,  declared 
to  be  the  law  of  the  State  until  repealed.* 
Hence,  where  a  question  in  the  courts  of  one 
State  turns  upon  the  law  of  a  sister  State,  if  no 
proof  of  such  laws  is  off"ered,  it  is,  in  general, 
presumed  that  the  common  law  as  it  existed  at 
the  time  of  the  separation  of  this  country  from 
England  prevails  in  such  State."  The  term 
"  common  law,"  as  thus  used,  may  be  deemed 
to  include  the  doctrine  of  equity.'  But  the 
term  is  also  used  in  the  amendments  to  the 
Constitution  of  the  United  Slates  (Art.  7),  in 
contradistinction  to  equity,  in  the  provision 
that,  "  In  suits  at  common  law,"  etc.,  the 
"  common  law  "  here  meniioned  is  the  com- 
mon law  of  England,  and  not  of  any  particular 
State."  The  term  is  used  in  contradistinction 
to  equity,  admiralty,  and  maritime  law.'  The 
common  law  of  England  is  not  in  all  respects 
to  be  taken  as  that  of  the  United  States,  or  of 
the  several  States;  its  general  principles  are 
adopted  only  so  far  as  they  are  applicable  to 
our  situation.''  In  general,  too,  the  statutes  of 
England  are  not  understood  to  be  included, 
except  so  far  as  they  have  been  recognized  by 
colonial  legislation,  but  the  course  pursued  has 
been  rather  to  re-enact  such  English  statutes  as 
were  deemed  applicable  to  our  case.  By  reason 
of  the  modifications  arising  out  of  our  different 
condition,  and  those  established  by  American 
statutes  and  by  the  course  of  American  adjudi- 
cation, the  common  law  of  America  differs 
widely  in  many  details  from  the  common  law 
of  England;  but  the  fact  that  this  difference 
has  not  been  introduced  by  violent  changes, 
but  has  grown  up  from  the  native  vigor  of  the 
system,  identifies  the  whole  as  one  jurispru- 
dence. 

CONFLICT  OF  LAW  is  a  contrariety 
or  opposition  in  the  laws  of  States  in  those 
cases  where,  from  their  relations  to  each  other, 
or  to  the  subject-matter  in  dispute,  the  rights 
of  the  parties  are  liable  to  be  affected  by  the 

187;  T.  U.  P.  Charft.  172:  I  Ohio,  243;  see  5  Cow. 
628;  5  Pet.  241 ;  8  Id.  658;  7  Cranch.  32  ;  1  Wheat. 
415  ;  3  Id.  223;  I  Dall.  67;  2  Id.  297,  384;  i  Mass.  61  ; 
9  Pick.  532;  3  Me.  162;  6  Id.  55;  3  Gill.  &  J.  62; 
Sampson's  Disc,  before  the  N.'Y.  Hist.  Si)C. ;  i  Gall. 
C.  C  489  ;  3  Conn.  141 ;  i  Blackf.  205 ;  5  Cow.  638  :  3 
Ala.  363. 


LAW. 


A19 


laws  of  both  jurisdictions.  An  opposition  or 
inconsistency  of  domestic  laws  upon  the  same 
subject. 

The  laws  of  every  State  affect  and  bind  di- 
rectly all  property,  real  or  personal,  situated 
within  its  territory,  all  contracts  made  and  acts 
done,  and  all  persons  resident  within  its  juris- 
diction, and  are  supreme  within  its  own  limits 
by  virtue  of  its  own  sovereignty.  Ambassadors 
and  other  public  ministers  while  in  the  State  to 
which  they  are  sent,  and  members  of  an  army 
marching  through,  or  stationed  in  a  friendly 
State,  are  not  subject  to  this  rule.*  Possessing 
exclusive  authority  with  the  above  qualification, 
a  State  may  regulate  the  manner  and  circum- 
stances under  which  property,  whether  real  or 
personal,  in  possession  or  in  action,  within  it, 
shall  be  held,  transmitted,  or  transferred,  by 
sale,  barter,  or  bequest,  or  recovered,  or  en- 
f  jrced ;  the  condition,  capacity,  and  state  of  all 
\>ersons  within  it ;  the  validity  of  contracts  and 
(ither  acts  done  there;  the  resulting  rights  and 
duties  growing  out  of  these  contracts  and  acts, 
and  the  remedies  and  modes  of  administering 
justice  in  all  cases.* 

Whatever  force  and  obligation  the  laws  of 
one  country  have  in  another  depends  upon  the 
laws  and  municipal  regulations  of  the  latter; 
that  is  to  say,  upon  its  own  proper  jurisprudence 
and  polity,  and  upon  its  own  or  tacit  consent." 
When  a  statute  or  the  unwritten  law  of  the 
country  forbids  the  recognition  of  the  foreign 
law,  the  latter  is  of  no  force  whatever.  When 
both  are  silent,  then  the  question  arises,  which 
of  the  conflicting  laws  is  to  have  effect.  Gen- 
erally, force  and  effect  will  be  given  by  any 
State  to  foreign  laws,  in  cases  where,  from  the 
transactions  of  the  parties,  they  are  applicable, 
unless  they  affect  injuriously  her  own  citizens, 
violate  her  express  enactments,  or  are  contra 
bona  mores  (contrary  to  good  morals). 

Assignments  and  Transfers.  Voluntary 
assignments  of  personal  property,  valid  where 
made,  will  transfer  property  everywhere,'  not 
as  against  citizens  of  the  state  of  situs  attach- 
ing prior  to  the  assignees  obtaining  posses- 
sion.* An  involuntary  assignment  by  opera- 
tion of  law,  as,  under  bankrupt  or  insolvent 
laws,  will  not  avail  as  to  attaching  creditors  in 
the  place  of  situation  of  the  property.''  It 
may   be   a  question   whether  the  same   rule 

C-4  Barb.  522.  d-Storv  Confl.  L.  g  i8,  Vattel  b.  2,  c. 
7.  ??  84,  85 ;  Wheat.  Int.  L.  pt.  i,  c.  2,  ?  5.  e-Huberus, 
lib.  1, /.  3,  §2.  f-isN.  Y.  320;  4  N.  J.  162,  270:  17 
Penn.  St.  91.  g-13  Mass.  146  ;  6  Pick.  97  ;  5  Harring. 
31,  otherwise  by  12  Md.  54 ;  4  N.  J.  162  ;  18  Penn.  St. 
?3i.  h-20  Johns.  229  ;  5  N.  Y.  320  ;  4  Zabr.  162,  270  ; 
6  Pick.  286,  302  ;  2  Hayw.  24  ;  4  M'Cord,  510  ;  5  N. 
H.  213  ;  14  Martin,  92  ;  6  Binn.  353  ;  5  Cranch.  289  ;  5 
Me.  245 ,  I  Harr.  &  McH.  236  ;  19  N.  Y.  207 :  32  Miss. 
M-  i-Dougl.  167.  .1-6  M.  &S.  126;  I  East.  6;  20 
Johns.  262  ;  6  Binn.  363  ;  3  Mass.  517.  fe-See  below. 
1-4  Mood.  Pari.  Cas.  21  ;  i  Dowl.  &  L.  614:  i  Texas, 
434;  9  Humph.  546;  2  Barb.  Ch.  582;  i9Vt.  182;  9 
Mo.  3.  m-ii  Clark  &  T.  Ho.  L.  85;  i  Carr.  &  K. 
-!69  ;  4  Johns.  Ch.  520  ;  14  Eng.  L.  &  Eiq.  549  :  i  Wall. 
Jr.  C.  C.  47 :  4  Cow.  526.  n-Story  Confl.  L.  641 ;  i 
Greenl.  Ev.  g  486  :  14  How.  426;  2  Cranch.  237;  8  Ad. 
&  E.  208;  1  Campb.  65  ;  6  Wend.  475;  10  Ala.  (N.  S.) 
885  •  I  Texas,  93,  10  Ark.  516.     0-4  Conn.  517;  12  Id. 

31 


would  hold  if  the  assignees  had  obtained 
possession.'  An  assignment  by  operation  of 
law  is  good  so  as  to  vest  property  in  the  as- 
signees by  comity  of  nations.^ 

Foreign  Laws*  must  be  proved  as  matters 
of  fact.' 

Unwritten  Laws  must  be  proved  by  the  opin- 
ion of  experts." 

Written  Laws  must  be  proved  by  the  text, 
or  a  collection  printed  by  authority,  or  a  copy 
certified  by  a  proper  officer,  or,  in  their  al,- 
sence,  perhaps,  by  opinion  of  experts  as  sec- 
ondary evidence,"  but  the  sanction  of  an  oath? 
is  required  in  such  case." 

Judgments  and  Decrees  of  Foreign 
Courts  relating  to  immovable  property  within 
their  jurisdiction  are  binding  everywhere. 
And  the  rule  is  the  same  with  regard  to  mov- 
ables within  their  jurisdiction.' 

Proceedings  in  rem  are  held  conclusive  every- 
where if  the  court  had  a  rightful  jurisdiction, 
founded  on  actual  possession  of  the  subject- 
matter.""  But  the  decree  may  be  avoided  for 
matter  apparently  erroneous  on  the  face  of 
the  record.^  Proceedings  under  a  garnishee 
process  are  held  proceedings  in  rem;  and  a 
decree  may  be  pleaded  in  bar  of  an  action 
against  a  trustee  or  garnishee.'  But  the  court 
must  have  rightful  jurisdiction  over  the  res^ 
unless  the  court  had  actual  jurisdiction  over  the 
person  also." 

Judgments  in  personam,  regular  on  their 
face,  which  are  sought  to  be  enforced  in  another 
country,  are  conclusive  evidence,  subject  to  a 
re-examination,  in  the  courts  where  the  new 
action  is  brought,  only  for  irregularity,  fraud, 
or  lack  of  jurisdiction  of  the  cause  of  action  or 
parties  thereto.^  Any  foreign  judgment  may 
be  impeached  for  error  apparent  on  its  face.* 

Foreign  judgments  are  admitted  as  conclusive 
evidence  of  all  matters  directly  involved  in  the 
case  decided  where  the  same  question  is  brought 
up  incidentally.* 

Under  the  constitution  of  the  United  States, 
"  full  force  and  effect "  are  to  be  given  the  de- 
crees of  the  courts  of  any  State  in  those  of  all 
other  States,  This  is  construed  to  mean  that 
the  judgment  so  obtained  and  properly  authen- 
ticated shall  be  conclusive  evidence  of  the 
rights  of  the  parties,^  but  not  unless  actual  per- 

384 ;  see  12  Vt.  396 ;  Story  Confl.  L.  \  641 ;  i  Greenl. 
Ev.  §  488,  n.  «|-Story  Confl.  L.  ?  592  ;  1  Greenl.  Ev. 
g  S4I-  '-4  Cranch.  241,  293,  433;  7  Id.  423;  9  Id.  126; 
4  Johns.  34;  3  Sumn.  C.  C.  600;  i  Story  C.  C.  157,  i 
Johns.  Cas.  341 ;  i  Harr.  &  J.  142 ;  i  Bmn.  299 ;  3  Id. 
220;  6  Mass.  277;  7  Id.  275.  8-7  T.  R.  523;  8  \A\ 
444  ;  I  Caines  Cas.  21.  t-t  Greenl.  Ev.  {  542  ;  4  Cow. 
520,  n.  11-31  Me.  314;  7  B.  Mon.  376;  9  Mass.  498  ; 
Story  Confl.  L.  g  592 ;  Greenl.  Er.  |  542.  \-\  Greenl. 
Ev.  I  546  ;  Westl.  Priv.  Int.  L.  372 ;  Story  Confl.  L  \ 
607 ;  2  Swanst.  Ch.  325  ;  Dougl.  6,  n.  ;  3  Sim.  Ch.  458 ; 
6  Q.  B.  288  ;  16  Id.  717;  4  Munf.  241 ;  15  N.  H.  227. 
That  they  are  ^rwwayorrV  evidence  merely,  see  2  H. 
Bl.  410;  Doiigl.  1,6;  3  Maule  &  S.  20;  9  Mass.  462 ;  8 
Id.  273.  W-21  Bam.  &  Ad.  757  :  i  Greenl.  Ev.  ?  547, 
n.  x-i  Greenl.  Ev.  g  547,  and  note;  12  Pick.  572;  7 
Bost.  L.  Rep.  461.  y-15  N.  H.  227:  9  Mass.  467  ;  11  Vt. 
425  ;  22  Id.  419  ;  7  Cranch,  481 ;  3  Wheat.  234  ;  15  Johns. 
121  :  II  How.  165  ;  5  Gill.  &  J.  500  ;  7  Ohio,  273 ;  9  S. 
&  R.  252 ;  4  B.  Mod.  136;  13  111.  436 ;  12  Ark.  756. 


480 


LAW. 


sonal  jurisdiction  was  obtained.*  And  want 
of  jurisdiction  may  be  shown  even  to  contra- 
dict the  record,*  and  must  be  shown  affirma- 
tively, if  the  record  show  jurisdiction  on  its 
fiice.* 

The  constitution  and  rules  of  comity  apply 
only  to  civil  judgments,  and  not  to  criminal." 

Particular  Personal  Relations. 

Executors  and  ad>?nnistraiors  have  no 
power  to  sue  or  be  sued  by  virtue  of  a  foreign 
appointment  as  such*  in  the  absence  of  a  statute 
authorizing  it.  But  an  executor  who  has  so 
changed  his  situation  towards  the  action  as  to 
render  it  his  own  may  sue  in  a  foreign  court. • 
Administration  must  be  taken  out  in  the  situs 
(place  of  situation)  of  the  property,'  unless 
otherwise  provided  by  statute. 

In  general,  administration  is  granted  as  of 
course  to  the  executor  or  administrator  entitled 
under  the  lex  domicilii.  In  such  cases  the  pro- 
bate granted  in  the  place  of  domicil  is  the 
principal,  and  that  in  the  situs  ancillary. «  There 
is  no  legal  privity  between  them.'' 

All  property  of  the  decedent  which  is  in  the 
jurisdiction  of  the  court  granting  principal  or 
ancillary  administration,  or  which  comes  into 
it  if  not  already  taken  possession  of  under 
a  grant  of  administration,  comes  under  its 
operation.'  Ships  and  cargoes,  and  the  pro- 
ceeds thereof,  complete  their  voyages  and  re- 
turn to  the  home  port.J  The  property  of  each 
jurisdiction  is  held  liable  for  debts  due  in 
that  jurisdiction,  and  the  surplus  is  to  be  re- 
mitted to  the  principal  administrator  for  distri- 
bution under  the  lex  domicilii.^  Each  admin- 
istrator must  give  priority  to  claims  according 
to  the  law  of  his  jurisdiction.'  But  a  trans- 
mission of  effects  or  their  proceeds  to  another 
jurisdiction  does  not  divest  a  creditor's  prece- 
dence.™ 

Guardians  have  no  power  over  the  property, 
whether  real  or  personal,  of  their  wards,  by 
virtue  of  a  foreign  appointment." 

Receivers  in  equity  have  no  extra  territorial 
powers  by  virtue  of  their  appointment,"  and 

%-^  Bradf.  Surr.  174';  9  Mass.  467 ;  15  Johns,  jai ;  4 
Conn.  380;  17  Id.  500:  6  Pick.  240;  4  Met.  (M,iss.) 
333;  3  Gray,  508;  11  Vt.  425;  5  III.  536;  17^.572:  4 
Harring.  iBo;  2  Blackf.  108;  29  Me.  19;  3  Ala.  (N.  S.) 
552  ;  13  Ohio,  209.  «-i3  Gray,  597  ;  15  Johns.  121 ;  19 
Id.  162:  3  Binn.  241  ;  9  Mass.  467;  4  Cow.  292;  4 
Cranch,  241 ;  i  R.  I.  73  ;  2  Ind.  24  ;  15  111.  415  ;  7  Met. 
(Mass.)  343,  but  see  i7Vt.  302;  4  Harring.  230.  b-4 
Bradf.  Surr.  174.  C-17  Mass.  515.  d-Westlake,  Priv. 
Int.  Law,  279  ;  i  Green!.  Ev.  g  544  ;  3  Jones  Eq.  276  ; 
10  Rich.  393.  It  seems  to  be  otherwise  where  a  foreign 
exccuior  has  brought  assets  into  the  State.  18  B.  Mon. 
582;  I  Bradf.  Surr.  241,  and  see  16  Ark.  28.  Itis  other- 
wise by  statute  in  Ohio,  5  McLtan  C.  C.  4.  e-Westl. 
Priv.  Int.  L.  286:  1  HareCh.  86;  4  Beav.  Rolls.  506. 
f-i2  Wheat.  109;  20  Johns.  229;  1  Mas.  C.  C.  381  ;  i 
Bradf.  Surr.  69.  g'-3  Bradf.  Surr.  233  ;  21  Conn.  577. 
h-35N.  H.434.  i-3  Paige  Ch.  459.  J-Story  Confl. 
Laws,  g  520.  I1-8  Clark  &  F.  Ho.  L.  1 ;  24  Beav.  Rolls. 
100  ;  3  Pick.  145  ;  3  Bradf.  Surr.  233  ;  21  Conn.  577. 
In  cases  of  insolvency,  it  is  said  the  assets  would  be 
retained  here  for  an  equitable  distribution  among 
the  creditors  of  an  amount  proportioned  to  Ihe  whole 
amount  of  assets  and  claims.  3  Pick.  147.  1-Story 
Confl.  L.  §524;  S  Pet.  518  :  20  Johns.  265.  in-7  L. 
Jour.  Ch.  135:  Wesll.  Priv.  Int.  L.  293.  n-4Cow.  52; 
X  lohns.  Ch.  153 ;  Story  Confl.  L.  \  504.    As  to  the  re- 


the  comity  of  the  States  and  Territories  wi.'l 
hardly  help  a  receiver.' 

An  appointment  of  a  receiver  does  not  vest 
the  funds  of  a  foreign  jurisdiction.' 

Sureties  come  under  general  rules,  and 
their  contracts  are  governed  by  the  Ux  loci; 
but  in  case  of  government  bonds  the  seat  of 
government  is  held  to  be  the  lex  lociJ 

Personal  Property. 

Bills  of  exchange  and  promissory  notes  are 
to  be  governed,  as  to  validity  and  interpreta- 
tion, by  the  law  of  the  place  of  making,  as 
are  other  contracts.  The  residence  of  a 
drawee  of  a  bill  of  exchange,  and  the  place 
of  making  a  promissory  note,  where  no  other 
place  of  payment  is  specified,  is  the  locus  con- 
tractus,* where  the  place  of  address  is  said  to 
be  the  place  of  making.  As  between  the 
drawee  and  drawer  and  other  parties  (but  not 
as  between  an  indorser  and  indorsee),*  each  in- 
dorsement is  considered  a  new  contract."  The 
place  of  payment  is,  however,  to  be  considered 
as  the  place  of  making.^  The  better  rule  as  to 
the  rate  of  interest  to  be  allowed  on  bills  of 
exchange  and  promissory  notes,  where  no  place 
of  payment  is  specified,  and  no  rate  of  interest 
mentioned,  seems  to  be  the  interest  of  the  lex 
lociy  The  damages  recoverable  on  a  bill  of 
exchange  not  paid  are  those  of  the  place  where 
the  plaintiff  is  entitled  to  reimbursement,  and 
are  generally  fixed  by  statute.*  Where  the 
place  of  payment  is  specified,  the  interest  of 
that  place  must  be  allowed.^ 

Chattel  mortgages,  valid,  and  duly  registered 
under  the  laws  of  the  State  in  which  the  prop- 
erty is  situated  at  the  time  of  the  mortgage, 
will  be  held  valid  in  another  State  to  which  the 
property  is  removed,  although  the  regulations 
there  are  different.*  The  registration  of  chattel 
mortgages  and  transfer  of  government  and 
local  stocks  are  frequently  made  subjects  of 
positive  law,  which  then  suspends  the  law  of 
the  domicil.  Such  mortgage  will  be  respected 
in  preference  to  claims  of  citizens  of  the  State 
into  which  the  property  is  removed,' 

lations  of  foreign  and  domestic  guardians,  see  14  B.  Men. 
544.  0-17  How.  3;j2.  p-3  Wend.  538;  3  Fla.  93.  q. 
17  How.  322;  see  2  Paige  Ch.  615.  r-6  Pet.  172;  71a. 
43-  ;  Story  Confl.  L.  g  290.  s-io  Barn.  &  C.  21 ;  i 
Woodb.  &  M.  C.  C.  381 ;  4  Carr.  &  P.  35  ;  4  Mich. 
450  ;  6  McLean  C.  C.  622  ;  9  Cush.  46;  26  Vt.  698;  11 
Gratt.  477;  3  Gill.  430;  8  Conn.  138;  6  Ind.  107;  sec  11 
Texas,  54;  17  Miss.  220.  t-ig  N.  Y.  436,  but  see  T4 
Vt.  33.  n-14  B.  Mon.  556;  s  Sandf.  330  ;  2  Ga.  158  ;  3 
McLean  C.  C.  397.  V-30  Miss.  59;  7  Ohio  St.  134;  4 
Mich.  450;  5  McLean  C.  C.  448;  13  N.  Y.  290;  25 
Barb.  383 ;  5  Sandf.  326 :  3  Gill.  430;  8  B.  Mon.  306; 
14  Ark.  189  ;  17  Miss.  220  ;  13  Grav.  597.  but  see  4  N. 
J.  319.  w-e  Johns.  183  ;  5  Clark  &  F.  Ho.  L.  i,  12  ; 
6  Cranch.  221 ;  3  Wheat.  loi  ;  i  Dall.  191  ;  12  La.  An. 
815;  and  see  9  Gratt.  31  ;  24  Miss.  463  ;  24  Mo.  65; 
Parsons'  Contr.  238.  x-4  Johns.  119;  6  Mass.  157;  3 
Wash.  C.  C.  167 ;  3  Siimn.  C.  C.  523.  y-14  Vt.  33  ;  2a 
Barb.  115  ;  contra  21  Ga.  135.  It  seems  to  be  undecided 
whether  the  rate  of  interest  which  is  legal  by  the  Itx 
loci,  but  higher  than  that  allowed  at  the  place  of  pay- 
ment, maybe  reserved  where  a  place  of  payment  is  spe- 
cified. That  it  may,  Parsons'  Contr.  96,  n.  ;  20  Mar- 
tin, I.  That  it  may  not.  Story  Confl.  Laws,  \  298.  «- 
37  N.  H.  86  :  7  Ohio  St.  13^ ;  13  Barb.  631 ;  8  Humph. 
542.  a-3oVt.  42;  overniling  23  Vt.  279;  7  Ohio  St, 
134;  12  Barb.  631 ;  8  Humph.  54a. 


LAW. 


4St 


Questions  of  priority  of  liens  and  other 
claims  are,  in  general,  to  be  determined  by  the 
lex  ret  sita,  even  in  regard  to  personal  prop- 
erty.* The  existence  of  the  lien  will  depend 
on  the  lex  loci." 

Movables  in  general.  Personal  property 
follows  the  owner,  and  hence  its  disposition 
and  transfer  are  to  be  determined  by  the  law 
of  domicil.* 

CRIMINAL  LAW  is  that  branch  of 
jurisprudence  which  treats  of  criminal  offences. 
The  extreme  importance  of  a  knowledge  of 
criminal  law  is  self-evident;  for  a  mistake  in 
•jKjint  of  law,  which  every  person  of  discretion 
not  only  may  know,  but  is  bound  and  presumed 
to  know,  is  in  criminal  cases  no  defence.  This 
law  is  administered  upon  the  principle  that 
every  one  must  be  taken  conclusively  to  know 
it,  without  proof  that  he  does  know  it.'  This 
doctrine  has  been  carried  so  far  as  to  include 
the  case  of  a  foreigner  charged  with  a  crime 
which  was  no  offence  in  his  own  country.'  And 
further,  the  criminal  law,  whether  common  or 
statute,  is  imperative  with  reference  to  the  con- 
duct of  individuals ;  so  that,  if  a  statute  forbids 
or  commands  a  thing  to  be  done,  all  acts  or 
omissions  contrary  to  the  prohibition  or  com- 
mand of  the  statute  are  offences  at  common 
law,  and  ordinarily  indictable  as  such.B  When 
a  statute  punishes  a  crime  by  its  legal  designa- 
tion without  enumerating  the  acts  which  con- 
stitute it,  then  it  is  necessary  to  resort  to  the 
common  law  for  a  definition  of  the  crime  with 
its  distinctions  and  qualifications.  So  if  an  act 
is  made  criminal,  but  no  mode  of  prosecution  is 
directed  or  no  punishment  provided,  the  com- 
mon law  (in  the  absence  of  a  statute  to  the  con- 
trary) furnishes  its  aid,  prescribing  the  mode  of 
prosecution  by  indictment,  its  mode  of  punish- 
ment by  fine  and  imprisonment.  So  far,  there- 
foBe,  as  the  rules  and  principles  of  the  common 
law  are  applicable  to  the  administration  of  the 
criminal  law,  and  have  not  been  altered  or 
modified  by  legislative  enactment  or  judicial 
decisions,  they  have  the  same  force  and  effect  as 
laws  fihally  enacted.'' 

The  following  are  some  of  the  leading 
principles  of  the  criminal  law  : 

1.  Every  man  is  presumed  to  be  innocent  till 
the  contrary  is  shown ;  and  if  there  is  any  rea- 
sonable doubt  of  his  guilt,  he  is  entitled  to  the 
benefit  of  the  doubt. 

2.  In  general,  no  person  can  be  brought 
to  trial  till  a  grand  jury  on  examination  of 
the  charge  has  found  reason  to  hold  him  to 
trial. 

3.  The  prisoner  is  entitled  to  trial  by  a  jury 
of  his  peers,  who  are  chosen  from  the  body  of 
the  people  with  a  view  to  impartiality,  and 
whose  decision  on  questions  of  fact  is  final. 

4.  The  question  of  his  guilt  is  to  be  deter- 

b-5  Cranch.  289  ;  4  Binn. 

V  -- 

Story 


b-5  Cranch.  289  ;  4  Binn.  353 ;  14  Martin,  93 ;  2  Harr. 

J.  193,  3i4  ;  3  Pick.  128 ;  3'Rawlc.  312  ;  13  Pet.  312 ; 
17  Ga.  491 :  4  Rich.  561  ;    13  Ark.  543 ;  3  Barb.  89.     c- 
Story  Confl.  ?^322,  h. ;  5  Cranch.  289.    tl-4  Kent  Comm. 
4a8.     e-Per  Tindal,  C.  J.  ;  10  Clark  &  F.  210.     f-i 
ft  B.  1  ;  Dearsl.  51 ;  7  C.  &  P.  456 ;  Russ.  &  R.  Cr.  ( 


!oninri. 
El. 
!r.  Cas. 


mined  without  reference  to  his  general  char- 
acter, previous  history  or  habits  of  life. 

5.  The  prisoner  cannot  be  required  to  crimi- 
nate himself,  nor  be  compelled  to  exculpate 
himself  by  giving  his  own  testimony  on  trial. 

6.  He  cannot  be  twice  put  in  jeopardy  for  the 
same  offence. 

7.  He  cannot  be  punished  for  an  act  which 
was  not  an  offence  by  the  law  existing  at  the 
time  of  its  commission ;  nor  can  a  severer  pun- 
ishment be  inflicted  than  was  declared  by  law 
at  the  time  of  its  commission. 

The  elements  of  criminal  offences  are, 
in  general,  as  follows  : 

Crimes  or  Public  Offences  are  wrongs 
which  the  State  or  Commonwealth  notices  as 
injurious  to  the  public,  and  punishes  in  what 
is  called  a  criminal  proceeding  in  its  own 
name.*  Crimes  are  defined  and  punished  by 
statutes  and  by  the  common  law.  Most 
common  law  offences  are  as  well  known  and 
as  precisely  ascertained  as  those  which  are 
defined  by  statutes.  Yet  from  the  difficulty  of 
exactly  defining  and  describing  every  act  which 
ought  to  be  punished,  the  vital  and  preserving 
principle  has  been  adopted  that  all  immoral 
acts  which  tend  to  the  prejudice  of  the  com- 
munity are  punishable  criminally  by  courts  oi 
justice.J  Criminal  offences  arc,  in  general,  de- 
fined, and  the  mode  of  punishment  prescribed 
by  statute. 

Crimes  are  sometimes  classified  according  tc 
the  degree  of  punishment  incurred  by  thei'' 
commission.  They  are  more  generally  ar  ■ 
ranged  according  to  the  nature  of  the  offence 
The  following  is,  perhaps,  as  complete  a  clas- 
sification as  the  subject  admits  : 

I.  Offences  against  the  sovereignty  of  the 
State.     I.  Treason;  2.   Misprision  of  treason. 

II.  Offences  against  the  lives  and  persons  oj 
individuals.      I.    Murder;    2.    Manslaughter! 

3.  Attempt  to  kill  or  murder;  4.  Mayhem;  5, 
Rape;  6.  Robbery;  7.  Kidnapping;  8.  Fals«i 
imprisonment;  9.  Abduction;  10.  Assault 
and  battery. 

III.  Offences  against  public  property.  4. 
Burning  or  destroying  public  property ;  2.  Im 
jury  to  the  same. 

IV.  Offences  against  private  property.  I. 
Arson  ;  2.  Burglary ;  3.  Larceny  ;  4.  Obtain- 
ing goods  under  false  pretences;  5.  Embezzle- 
ment ;  6.  Malicious  mischief. 

V.  Offences  against  public  justice.  I,  Per- 
jury; 2.  Bribery;  3.  Destroying  public  rec- 
ords ;  4.  Counterfeiting  public  seals ;  5.  Jail 
breach ;  6.  Escape ;  7.  Resistance  to  officers ; 
8.  Obstructing  legal  process  ;  9.  Barratry ;  10. 
Maintenance;  11.  Champerty;  12.  Contempt 
of  court;  13.  Oppression;  14.  Extortion;  15. 
Suppression  of  evidence;  16.  Compounding 
felony;   17.  Misprision  of  felony. 

4.  gp-Broom  Comm.  865 ;  Hawkins  PI.  Cr.  Bk.  2  Ch. 
25,  ?  4;  8  0.  B.  883;  see  IS  M.  &  W.  404.  h-s  Cush. 
303,304;  4  Met.  (Mass.)  358  ;  i3ld.  69, 70.  l-i  Bishop 
Cr.  L.  §43:  see  4  Denio,  260;  6  Ark.  187,461.  J-a 
Rev.  Swift  Dig.  284;  2  East.  5,  31;  7  Conn.  386;  j 
Cow.  258;  5  Pick.  26. 


i>"' 


♦8a 


LAW. 


VI.  Offences  against  the  public  peace,  i. 
Challenging  or  accepting  a  challenge  to  a 
duel ;  2.  Unlawful  assembly ;  3.  Rows ;  4. 
Riot;  5.  Breach  of  the  peace ;  6.  Libel. 

VIL  Offences  against  chastity.  I.  Sodomy; 
2.  Bestiality;  3.  Adultery ;  4.  Incest;  5.  Big- 
amy; 6.  Seduction;  7.  Fornication;  8.  Las- 
civious carriage ;  9.  Keeping  and  frequenting 
houses  of  ill  fame. 

VIII.  Offences  against  public  policy.  I. 
False  currency;  2.  Lotteries;  3.  Gambling; 
4.  Immoral  shows;  5.  Violation  of  the  right 
of  suffrage;  6.  Destruction  of  game,  fish,  etc. ; 
7.  Nuisance. 

IX.  Offences  against  the  currency,  and  pub- 
lic and  private  securities '  I.  Forgery;  2. 
Counterfeiting ;  3.  Passing  counterfeit  money. 

X.  Offences  against  religion,  decency,  and 
morality.  t.  Blasphemy ;  2.  Profanity ;  3. 
Sabbath-breaking;  4.  Obscenity;  5.  Cruelty 
to  animals ;  6.  Drunkenness ;  7.  Promoting 
intemperance.* 

XI.  Offences  against  the  public,  individuals, 
iir  their  property.      I.   Conspiracy. 

Abduction  is  the  taking  and  canning  away 
of  a  child,  a  ward,  a  wife,  etc.,  by  force,  fraud, 
p)ersuasion,  or  open  violence.' 

Abortion  is  the  criminal  act  of  miscarrying 
or  producing  young  before  the  natural  time  or 
before  the  foetus  is  perfectly  formed,  and  before 
it  has  acquired  the  power  of  sustaining  an  in- 
dependent life. 

When  in  consequence  of  the  means  used  to 
procure  an  abortion,  the  death  of  the  mother 
ensues,  it  is  murder.  If  the  person,  intending 
to  procure  an  abortion,  does  an  act  which  causes 
a  child  to  be  born  so  prematurely  that  it  dies  in 
consequence  thereof,  the  person  so  bringing 
the  child  into  the  world,  so  putting  it  in  a  situa- 
tion in  which  it  cannot  live,  is  guilty  of  murder ; 
and  this  guilt  is  not  lessened  from  the  mere 
existence  of  a  possibility  that  something  might 
have  been  done  to  prevent  its  death." 

Abuse  is  to  treat  rudely,  or  with  reproachful 
language,  to  revile.     See  Affront,  below. 

A  person  is  liable  for  whatever  injury  arises 
from  the  abuse  of  property,  while  in  his  control 
or  custody,  unless  it  is  occasioned  by  inevit- 
able accident  or  causes  wholly  beyond  their 
control. 

An  Accessory  is  an  abettor;  an  accomplice. 
One  who  is  guilty  of  a  felony,  misdemeanor,  or 
treason ;  not  by  committing  the  offence  in  person 
or  as  principal,  but  by  advising,  assisting,  or 
commanding  another  to  commit  the  crime,  or 
assisting  him  to  escape,  or  concealing  him.  One 
who  not  being  the  principal  is  in  some  way  con- 
cerned in  the  commission  of  the  offence,  either 
before  or  after  its  commission.  No  one  who  is 
principal  can  be  accessory.  In  many  States 
all  are  considered  principals.  An  accessory 
after  the  fact  is  one  who,  knowing  an  offence 
to  have  been  committed,  assists,  comforts,  con- 
k-See 3  Sharsw.  Bl.  Conn.  42,  et  seq.  1-BI.  Comm. 
in-2  Carr.  &  K.  784.  n-4  Bl.  Comm.  yj.  O-i  Hale 
PI.  Cr.  615.  p-i  Id.  618.  q-i  Russ.  &  R.  Cr.  Cas. 
J63;    I  Den.  Cr.  Cas.  37 ;    i  Carr.  &  K.  589.     r-i  Fast 


ceals,  receives  or  relieves  the  oflTender.'  An 
accessory  before  the  fact  is  one  who,  being  ab- 
sent at  the  time  an  offence  is  committed,  yet 
commands,  counsels,  or  procures  another  to 
commit  it."  When  the  act  is  committed  through 
the  agency  of  a  pei-son  who  has  no  legal  dis- 
cretion nor  a  will,  as  in  the  case  of  a  child  or 
insane  person,  the  inciter,  though  absent  when 
tlie  crime  was  committed,  will  be  considered 
not  an  accessory,  for  no  one  can  be  an  accessory 
to  the  acts  of  a  madman,  but  a  principal.P  But, 
if  the  instrument  is  aware  of  the  consequences 
of  his  act,  he  is  a  principal,  and  the  employer,, 
if  absent  when  the  offence  is  committed,  is  an 
accessory  before  the  fact,i  or,  if  he  is  present,  a 
principal  in  the  second  degree,'  unless  the 
instrument  concur  in  the  act  merely  for  the  pur- 
pose of  delecting  and  punishing  the  employer,  in 
which  case  he  isconsidered  as  an  innocent  agent." 

An  accomplice  is  an  abettor,  an  accessory, 
and  confederate;  an  associate  in  crime ;  a  part- 
ner or  partaker  in  guilt.  One  who  is  in  some 
way  concerned  in  the  commission  of  a  crime, 
though  not  as  a  principal.  All  persons  who 
have  been  concerned  in  the  commission  of  a 
crime,  all  particeps  criminis,  whether  they  are 
considered  in  strict  legal  propriety  as  principals 
in  the  first  or  second  degree,  or  merely  as  ac- 
cessories before  or  after  the  fact.* 

It  is  a  rule  of  practice  that  a  jury  should 
not  convict  on  the  unsupported  evidence  of  an 
accomplice;  and  the  judge  will,  in  general, 
advise  the  jury  to  acquit,  unless  the  testimony 
of  the  accomplice  is  corroborated,  not  only  as 
to  the  circumstances  of  the  offence,  but  also  as 
to  the  participation  of  the  accused  in  the  trans- 
action ;  and  where  several  parties  are  charged, 
that  it  is  not  sufficient  that  the  accomplice 
should  be  confirmed  as  to  one  or  more  of  the 
prisoners,  to  justify  a  conviction  of  those  prison- 
ers with  respect  to  whom  there  is  no  confirma- 
tion." 

An  Accusation  is  a  charge,  in  writing, 
upon  oath  or  affirmation,  against  one  or  more 
persons  of  a  felony  or  misdemeanor.  An  ac- 
cusation is  generally  made  in  the  form  of  an 
affidavit  or  complaint  before  some  magistrate 
authorized  to  try,  acquit,  bind  over,  or  convict 
the  offender.  In  courts  of  competent  and 
general  jurisdiction  the  accusation  is  presented 
in  the  form  of  an  indictment  or  information. 
An  indictment  is  based  upon  the  finding  of  a 
grand  jury.  An  information  is  based  upon  the 
affidavit  or  complaint  of  any  competent  person 
supported  by  his  oath  or  affirmation. 

In  an  accusation  before  a  magistrate,  it  is 
sufficient,  as  a  general  rule,  to  describe  the  of-' 
fence  in  the  words  of  the  statute.'' 

The  essential  requisites  of  an  accusa- 
tion are : 

I .  It  must  be  presented  to  some  court  having 
jurisdiction  of  the  offence  stated  therein. 

Cr.  Cas.  349.  s-2  Mood.  Cr.  Cas.  301 ;  i  Carr.  &  K. 
395.  t-Fost.  Cr.  Cas.  341  ;  i  Russ.  Cr.  21 ;  4  Bl.  Comm. 
331  ;  I  Phill.  Ev.  28  ;  Merlin  Rep.  Complic.  Vk^^  Cox 
Cr.  Cas.  20  ;  Dearsl.  Cr.  Cas.  555;  20  Pick.  19 7;  10 
Cush.  535 ;  see  i  Fost.  &  F.  Cr.  Cas.  3<S.     v-8  Kas.  388k 


LAW. 


483 


2.  It  must  be  made  by  a  person  competent  to 
testify. 

3.  It  must  be  made  in  writing,  under  oath 
or  affirmation  of  the  accuser. 

4.  //  must  charge  the  person  accused  with 
the  commission  of  a  felony  or  misdemeanor ; 
for  this  purpose,  the  charge  must  contain  a 
certain  description  of  the  felony  or  misdemeanor 
of  which  the  defendant  is  accused,  and  a  state- 
ment of  the  facts  by  which  it  is  constituted,  so  as 
to  identify  the  accusation." 

5.  //  must  be  in  the  English  language ;  but 
if  any  document  in  a  foreign  language  be 
necessarily  introduced,  it  should  be  set  out  in 
the  original  tongue,  and  then  translated,  show- 
ing its  application.* 

6.  It  must  be  subscribed  by  the  accuser. 

7.  //  must  be  sworn  to  before  an  officer 
r.athorized  to  administer  an  oath. 

The  formal  requisites  of  an  accusation 
lire : 

1.  T7ie  venue  must  always  be  laid  in  the 
county  where  the  offence  has  been  committed, 
although  the  charge  be  in  its  nature  transitory, 
as  a  battery .y  The  venue  is  stated  in  the  mar- 
gin, thus :  "  State  of , County,  ss." 

2.  The  name  of  the  defendant ;  but  in  case 
an  error  has  been  made  in  this  respect,  it  is 
cured  by  the  plea  of  the  defendant,*  and  the 
facts  are  entered  accordingly. 

3.  The  names  of  third  persons,  when  they 
must  be  necessarily  mentioned  in  the  complaint, 
should  be  stated  with  such  certainty  as  to 
sufficiently  inform  the  defendant  who  are  his 
accusers.  When,  however,  the  names  of  third 
persons  cannot  be  ascertained,  it  is  sufficient, 
in  some  cases,  to  state  "  a  certain  person  or 
persons  to  this  affiant  unknown."* 

4.  The  time  when  the  offence  was  committed 
should,  in  general,  be  stated  to  be  on  a  specific 
year  and  day;**  but,  though  it  is  necessary  that 
a  day  certain  should  be  stated  in  the  complaint, 
yet,  in  general,  the  prosecutor  may  give 
evidence  of  an  offence  committed  on  any  other 
day  previous  to  the  making  of  the  accusation." 

5.  The  offence  should  be  properly  described. 
And,  as  a  general  rule,  it  is  sufficient  to  de- 
scribe the  offence  in  the  words  of  the  statute. 

The  whole  facts  of  the  case  necessary  to 
make  it  appear  judicially  to  the  court  that  the 
accuser  has  gone  upon  sufficient  premises, 
should  be  set  forth ;  but  there  should  be  no  un- 
necessary matter,  nor  anything  which,  on  its 
face,  makes  the  accusation  repugnant,  incon- 
sistent, or  absurd. 

The  offence  must  not  be  stated  in  the  dis- 
junctive ;  as,  that  the  defendant  committed,  or 
caused  to  be  committed,  etc.,  so  as  to  leave  it 

■w-Cowp.  682;  1  Hale  PI.  Cr.  167;  i  Binn.  201 ;  Id. 
533;    4  S.  &  R.  194;    6  Id.  398;    4  Sharsw.  Bl.  Comm. 


301  ;  4  Cranch,  167.  x-6  T.  R.  162.  y-Hawk.  PI.  Cr. 
b.  a.  c.  2S,  ?  35.  SB-Bac.  Abr.  Misnomer  (B),  Indict. 
(G.  2);  2  Hale  PI.  Cr.  175;   i  Chitty  Pr.  202;  Riiss. 


R.  489.  B-Hawk.  PI.  Cr.  b.  2,<r.  25  ?  71;  2  East.  PI. 
Cr.  651.  781  ;  2  Hale  PI.  Cr.  181  ;  Plowd.  85  ;  Dyer, 
97,  28(5  ;  8  C.  &  P.  773.  b-In  some  offences,  as  in  per- 
jury, the  day  must  be  precisely  stated,  2  Wash.  C.  C. 
|3».     C-J  S.  «  R.  316;  »ee  II  Id.  177;    X  Chitty  Cr.  L. 


uncertain  on  what  it  is  intended  to  rely  as  an 

accusation."* 

The  following  rules  should  be  observed 
in  drawing  an  accusation : 

1.  Keep  near  the  words  of  the  statute. — The 
pleader  must  keep  reasonably  near  the  words 
of  the  statute,  or  there  will  be  a  variance,  and 
on  this  ground  the  accusation  will  be  defective. • 

2.  Negative  averments  to  show  affirmatively 
an  offence. — No  accusation  is  sufficient  which 
alleges  an  act  or  omission  in  itself  innocent, 
unless  it  proceed  to  disclose  circumstances 
which  render  such  act  or  omission  illegal.' 

It  is  not  necessary  that  the  negative  aver- 
ments should  be  made  in  strict  conformity  to 
the  exact  words  of  the  statute;  whatever 
amounts  to  a  substantial  negative  is  sufficient.' 

An  unnecessary  negative  will  be  rejected  as 
surplusage ;  it  needs  no  proof. 

3.  If  there  is  an  exception  in  the  enacting 
clause  of  the  statute,  the  party  pleading  must 
show  that  the  defendant  is  not  within  the  ex- 
ception ;  but  if  there  be  an  exception  in  a  sub- 
sequent clause,  or  a  subseqzient  statute,  that  is 
matter  of  defence,  and  is  to  be  shown  by  the 
other  parly.'' 

4.  Matters  of  defence  are  never  necessary  in 
an  accusation. 

Commencement  and  Conclusion  of  an 
Accusation. 

State  of , county,  ss. 

A.  B.,  being  duly  sworn,  says  : 

That  C.  D.,  on  the  day  of ,  A.  D. , 

in  the  county  of ,  and  State  of ,  did  then 

and  there  unlawfully  (or  feloniously,  etc.),  (here  de- 
scri/'e  the  offence  committed).  A.  B. 

Subscribed  and  sworn  to,  before  me,  this 

day  of ,  A.  D. .         M.  R.,  Mayor,  or 

v.  I.,  Police  Judge,  or 
J.  P.,  Justice  o/tke  Peace,  etc. 

See  Indictment;  Information,  below. 

Amendment  of  Accusation. — The  accusation, 
the  accused  being  present  and  consenting,  may, 
of  course,  be  amended  to  an  extent  to  which  it 
is  not  easy  to  set  limits ;'  or  if  the  evidence 
satisfies  the  magistrate  that  a  crime  different 
from  the  one  charged  against  the  prisoner  has 
been  committed  by  him,  he  may  hold  him 
until  a  fresh  accusation  is  drawn,  covering  the 
crime  as  proved.J  In  this  case  the  prisoner 
is  held  on  the  original  accusation,  which, 
under  such  circumstances,  the  magistrate  is  not 
bound  to  dismiss  until  the  proper  accusation  is 
made  against  him.  But  if  a  person  known  to 
the  magistrate  happens  to  be  in  his  court,  and 
he  suspects  an  absent  person  has  an  accusation 
to  make  against  him  for  a  misdemeanor,  he 
cannot  detain  him  and  send  for  the  person. 
The  magistrate  should  have  the  charge  actually 
made  before  he  detains  the  party.*  Unless  it 
be  for  a  felony. 

217,224;  I  Chitty  PI.  InHex,  Time;  17  Wend.  47s;  2 
Dev.  567  ;  6  Miss.  14  ;  4  Dana,  496  ;  i  Cam.  &  N.  369  ; 
I  Hawks,  460.  d-6  Dowl.  &  R.  143;  2  Str.  900 ;  « 
RoUe  Abr.  31.  e-29  Vt.  60,  66  :  34  Me.  500;  34  N.  H. 
49s.  f-Starkie  Crim.  PI.  (2d  Ed.)  171.  g-34  Me.  500; 
12  Gray,  132  :  S  Humph.  102  ;  3  Ind.  193  ;  12  Gill.  &  J. 
262.  i»-8  Am.  Jur.  234;  1  Ben.  &  H.  L.  Cas.  355,  256. 
l-iiCaI.280.  J-4lnd.  438.  fc-5  C.  &  P.  2o6  ;  »Mo«dj 
&  R.  169,  '  ' 


484 


LAW. 


Acquittal  is  a  deliverance  from  the  charge 
of  an  offence.  A  judicial  decree  of  innocence, 
by  a  finding  of  the  court,  or  the  verdict  of  a 
jury.  Acquittals  in  fact  are  those  where  upon 
the  trial  the  defendant  is  pronounced  innocent 
of  the  offence  with  which  he  is  charged.  Ac- 
quittals in  law  are  those  which  take  place  by 
operation  of  law,  as  where  one  is  charged  as 
an  accessory  or  accomplice,  and  the  principal 
is  acquitted.'  An  acquittal  by  a  court  of  com- 
petent jurisdiction  is  a  bar  to  any  prosecution 
for  the  offence  alleged  in  the  first  accusation, 
or  for  any  inferior  degree  thereof. 

An  Admonition  is  a  reprimand  from  a 
judge  to  a  person  accused,  on  being  discharged, 
warning  him  of  the  consequences  of  his  con- 
duct, and  intimating  to  him  that  should  he 
tye  again  guilty  of  the  same  fault  for  which  he 
]s  admonished,  he  will  be  punished  with  greater 
severity." 

Adulteration  is  the  unlawful  act  of  cor- 
rupting, or  debasing,  or  rendering  an  article 
impure  and  unwholesome.  Converting  a  pure 
and  genuine  article  into  something  of  less 
value  for  the  purpose  of  deceit  and  gain,  as  an 
adulteration  of  food  or  drink. 

Adultery  is  the  voluntary  sexual  inter- 
course of  a  married  person  with  a  person  other 
than  the  offender's  husband  or  wife."  Viola- 
tion of  the  marriage  bed ;  a  civil  injury  and 
crime  which  introduces  or  may  introduce  into 
a  family  illegitimate  or  spurious  offspring.  It  is 
a  criminal  offence,  punishable  by  fine  or  im- 
prisonment, or  both. 

Affray  is  a  fight  between  two  or  more  per- 
sons, by  agreement,  in  a  public  place."  No 
quarrelsome  or  threatening  words  will  amount 
to  an  affray ,P  there  must  have  been  a  fight,  and 
in  a  public  place,  for  fighting  in  private  is 
assault  and  battery,  and  not  an  affray.' 

Affront  is  uncivil  encounter;  ill  treat- 
ment; insult;  offence;  outrage.  Anything 
contemptuous  or  reproachful  that  excites  or  jus- 
tifies resentment,  as  foul  language  or  personal 
abuse.  It  usually  expresses  a  less  degree  of 
abuse  than  insult.' 

"  It  appears  probable  that  judicial  combat  was 
originally  permitted  in  order  to  determine  the 
points  respecting  personal  character  or  reputa- 
tion of  individuals,  and  was  afterwards  ex- 
tended not  only  to  criminal  cases  but  to  ques- 
tions concerning  property.  Thus :  If  any  man 
shall  say  to  another  these  reproachful  words  : 
'  You  are  not  a  man  equal  to  other  men ; '  or, 
'  You  have  not  the  heart  of  a  man ; '  and  the 
i>ther  shall  reply :  '  I  am  as  good  a  man  as 
you.'  Let  them  meet  upon  the  highway.  If 
he  who  first  gave  offence  appear,  and  the  per- 
son offended  absent  himself,  let  the  latter  be 
deemed  a  worse  man  than  he  was  called;  let 
him  not  be  admitted  to  giva  evidence  in  judg- 

I-Co.  ad  Tnst.  364.  m-Merlin  Repert.  n-Bishop 
Marr.  &  D.  §  415;  6  Met.  243  ;  36  Me.  261  ;  11  Ga.  56; 
(Strobh.  174.  o-i  Blackf.  377;  see  Hawk.  PI.  Cr.  Bk. 
I  Ch.  65,  §  3;  i  Bl.  Comm.  146;  j  Russ.  Cr.  271.  p- 
Hawk.  PI.  Cr.  Bk.  i  Ch.  63,  g  3.  q-Id.  ?  1 :  i  Crompt. 
M-  &  R.  757;  »  Cojp  Cr.  Ca».  177.     r-See  Merlin  Rep. 


ment,  either  for  man  or  woman ;  and  let  him 
not  have  the  privilege  of  making  a  testament. 
If  he  who  gave  the  offence  be  absent,  and  only 
the  person  offended  be  present,  etc.,  then  let 
him  who  absented  himself  be  deemed  infa- 
mous, because  he  uttered  words  he  durst  not 
support.  If  both  appear,  properly  armed,  and 
the  person  offended  shall  fall  in  the  combat, 
let  a  half  compensation  be  paid  for  his  death. 
But  if  the  person  who  gave  offence  shall  fall, 
let  it  be  imputed  to  his  own  rashness.  '  The 
petulance  of  his  tongue  hath  been  fatal  to 
him.'  Let  him  lie  in  the  field  without  any 
compensation  being  demanded  for  his  death."* 
This  mode  of  settlement  in  modern  times  takes 
the  form  of  the  duel,  a  practice  without  sanction 
of  law  or  morals,  and  prohibited  under  heavy 
penalties.  By  the  laws  of  the  Salians,  if  any 
person  called  another  a  "  /larg"  [i.  g.,  a  timid, 
cowardly  fellow),  or  accused  him  of  having 
left  his  shield  on  the  field  of  battle,  he  was  or- 
dained to  pay  a  large  fine.'  So,  if  one  called 
another  "Ceniius"  (a  term  of  reproach  equiva- 
lent to  "  Arga"  below),  he  was  bound  to  pay 
a  high  fine."  And  by  the  law  of  the  Lom- 
bards, if  one  called  another  "Arga"  {?'.  e.y  a 
good-for-nothing  fellow),  he  might  immediately 
challenge  him  to  combat.'  Courts  Military 
and  Chivalry,  as  courts  of  honor,  were  to  give 
satisfaction  to  such  as  were  aggrieved  on 
that  point ;  a  point  of  a  nature  so  nice  and 
delicate  that  its  wrongs  and  injuries  escape  the 
notice  of  the  common  law,  and  yet  are  fit  to  be 
redressed  somewhere.  Such,  for  instance,  as 
calling  a  man  a  coward,  or  the  more  modern 
villifying  epithets,  or  giving  him  the  lie  ;  they 
are  productive  of  no  immediate  damage  to  his 
person  or  property,  yet  they  are  such  injuries 
as  will  prompt  every  man  of  spirit  to  demand 
some  honorable  amends.*  The  statutes  of 
many  of  the  States  take  cognizance  of  these 
offences  in  some  general  form. 

Aforethought  is  premeditation.  It  is  the 
length  of  time  during  which  the  accused  has  en- 
tertained the  thought  of  committing  the  offence. 
The  length  of  time  is  not  very  material,  pro- 
vided he  has  in  fact  entertained  such  thought 
or  premeditation ;  he  is  thereby  rendered  crim- 
inal in  a  greater  degree  than  if  he  had  com- 
mitted the  offence  without  premeditation.* 

Aggravation  is  the  act  or  quality  of  in- 
creasing enormity,  heinousness,  severity,  or 
wrong.  In  criminal  actions  one  of  the  rules 
respecting  variances  is,  that  cumulative  allega- 
tions, or  such  as  merely  operate  in  aggravation, 
are  immaterial,  provided  that  sufficient  is  proved 
to  establish  the  same  right,  offence,  or  justifica- 
tion included  in  the  charge,  claim,  or  defence 
set  up.  The  rule  runs  through  the  whole  crimi- 
nal law,  that  it  is  invariably  enough  to  prove  so 
much  of  the  charge  as  shows  that  the  defendant 

8-Vide  Lex  Uplandica,  Stiemhook,  p.  76.  t-Vidc  Leg. 
Sal.  tit.  XXXII,  U  4,6.  n-Id.  9  I.  v-Vide  Leg. 
Longob.  lib.  I,  tit.  V,  j  1.  ■w-3£l.  Comm.  104.  X-Sce 
2  Chitty  Cr.  L.  785 ;  4  Bl.  Comm.  199  ;  Foster  Cr.  Cas. 
132,  291, 292 ;  Cro.  Cur.  131 :  Palm.  545 ;  W.  Jones,  198; 
4  Call.  146. 


LAW. 


48s 


rommitted  a  substantive  crime  therein  speci- 
tied.y  Thus,  on  an  indictment  for  murder,  the 
prisoner  may  be  convicted  of  manslaughter,  for 
the  averment  of  malice  aforethought  is  merely 
matter  of  aggravation." 

Aiding  and  abetting  is  the  act  of  heinjj  in 
such  communication,  and  so  situated  during 
the  perpetration  of  a  crime,  as  to  readily  aid  the 
perpetrators  thereof.  Actual  j^resence  is  not 
necessary;  it  is  sufficient  if  so  situated  as  to 
come  readily  to  the  assistance  of  his  fellows.' 
Although  not  the  direct  perpetrator  of  a  crime, 
yet  if  the  person  be  present  at  its  commission 
doing  some  act  to  render  aid  to  the  perpetrator 
thereof  he  is,  in  contemplation  of  the  law,  an 
aider  and  abettor.'' 

Aid  and  comfort  is  assistance  or  encour- 
agement, either  by  furnishing  strength  or  means 
to  effect  a  purpose,  or  to  prevent  or  remove 
evil.  Treason  against  the  United  States  shall 
consist  only  in  levying  war  against  them,  or  in 
adhering  to  their  enemies,  giving  theni  aid  and 
comfort." 

Amercement  is  the  pecuniary  penalty  or  fine 
imposed  upon  an  offender  by  a  judicial  tribunal. 

Amnesty  is  an  act  of  oblivion;  a  general 
pardon  of  the  offences  of  subjects  against  the 
government,  and  usually  upon  condition  that 
they  return  to  their  allegiance  within  a  given 
period.  It  is  the  proclamation  of  such  act. 
Amnesty  is  either  express  or  implied,  general 
or  limited  :  express  when  in  direct  terms ;  im- 
plied when  it  results  from  a  treaty  of  peace  made 
between  the  contending  parties  ;*  general  when 
it  applies  to  all;  limited  when  certain  classes 
are  excluded  from  its  operation.  It  differs 
from  pardon,  for  pardon  is  given  to  one  who  is 
certainly  guilty,  or  has  been  convicted,  while 
amnesty  is  given  to  those  who  may  have  been 
so.  Amnesty  is  the  act  of  the  sovereign  power 
whose  object  is  to  efface  and  cause  a  crime  or 
misdemeanor  to  be  forgotten ;  pardon  is  the  act 
of  the  same  power  whose  object  is  to  exempt 
the  individual  from  the  punishment  which  the 
law  applies  for  the  ciime  he  has  committed.* 
Pardon  remits  a  part  or  the  whole  of  punish- 
ment awarded.  Amnesty  destroys  the  effect  of 
the  criminal  act.  Pardon  is  given  to  individuals 
after  conviction  Amnesty  is  granted  either 
before  or  after. 

Amotion  is  the  unlawful  taking  of  personal 
property  out  of  the  possession  of  the  owner,  or 
of  one  who  has  a  special  authority  in  them. 

Animo;  Animus.     See  Intention,  below. 

Arraignment  is  the  act  of  calling  a  defend- 
ant before  the  court  or  tribunal  to  answer  to  the 
accusation,  charge,  or  impeachment  contained 
in  the  information  or  indictment. 

Arraignment    consists:     1.   In   calling   the 

y-Per  Ld.  EUenborough ;   2  Campb.  583 ;    4  B.  &  C. 

fS9  ;  21  Pick.  525  ;  4  Gray,  18;  7  Id.  40,  331  ;  i  Tayl. 
>.  2215.  >B-Co.  Liti.  282,  a.  »-i3  Mo.  382.  b-4 
Sharsw.  Bl.  Comm.  34 ;  Russ.  &  R.  Cro.  Cas.  363,  421 ; 
9  Ired.  440 ;  i  Woodb.  &  M.  C.  C.  221  ;  10  Pick.  477 ; 
13  Whart.  460;  s6  Miss.  299.  c-Const.  U.  S.  Art.  3,  j 
3;  »ee  post,  Treason.  a-Vattel  1,  4,  Ch.  2,  3§  20-22. 
e-7  Pet.  160.  f-i  W.  BI.  33;  see  Arch.  Cr.  PI.  (Ed. 
18^),  128.     y-The  accused  may  demand,  as  a  right,  a 


prisoner  before  the  court  for  the  purpose  of 
identifying  him  as  the  person  charged  in  the 
information  or  indictment  with  the  commission 
of  the  offence.'  2.  In  reading  the  information 
or  indictment  to  the  accused  in  order  to  enable 
him  fully  to  understand  the  charge  against  him.* 
3.  In  asking  the  prisoner,  "  How  say  you,"  or 
"  What  say  you,  P.  R. :  are  you  guilty  or  not 
guilty?"''  Thereupon,  if  the  prisoner  confesses 
the  charge,  and  it  appears  to  the  satisfaction  of 
the  court  that  he  fully  comprehends  the  effect 
of  his  plea  of  "  guilty,"  he  at  once,  or  after 
hearing  such  evidence  as  he  may  require,  v,, 
after  deliberation,  pronounces  judgment.  If, 
however,  he  answers  "  not  guilty,"  this  plea  is 
entered  of  record,  and  forms  the  issue  for  trial. 
If  he  fails  to  answer,  or  cannot  or  will  not  an- 
swer, the  court  orders  a  plea  of  "not  guilty" 
entered  in  his  behalf. 

When  the  offence  charged  is  punishable  by 
fine  only,  personal  appearance  for  arraignment 
is  unnecessary,  provided  some  responsible  per- 
son appears  in  his  behalf. 

Arrest  is  the  taking  of  a  person  into  cus- 
tody that  he  may  be  held  to  answer  for  a  public 
offence. 

An  arrest  is  the  taking,  attaching,  or  seizing 
a  person  or  thing,  either  by  a  public  officer  in 
execution  of  the  command  of  some  court,  or 
minister  of  justice,  or  by  a  private  person,  accord  - 
ing  to  the  command  or  permission  of  the  law.* 

An  arrest  is  made  by  an  actual  restraint  of 
the  person  of  the  defendant,  or  by  his  submis- 
sion to  the  custody  of  the  officers.!  The  arrest- 
ing of  an  offender  and  the  retaking  of  him  on 
fresh  pursuit  after  an  escape  constitutes  but  one 
effective  arrest.^ 

An  officer  must  inform  the  defendant  that  he 
acts  under  the  authority  of  a  warrant,  and 
must  show  the  warrant  if  required.' 

If,  after  notice  of  intention  to  arrest  the  de- 
fendant, he  either  flee  or  forcibly  resist,  the 
officer  may  use  all  necessary  means  to  effect 
the  arrest." 

To  constitute  an  arrest  it  is  not  ordinarily 
sufficient  that  words  of  arrest  be  spoken ;  there 
must  be  something  done  by  way  of  actual  phys- 
ical restraint,  though  it  is  enough,  if  the  party 
arresting  touch  the  other  "  even  with  the  end 
of  his  finger.""  So,  if  a  bailiff  comes  into  a 
room,  and  tells  the  defendant  he  arrests  him, 
and  locks  the  door,  that  is  an  arrest ;  for  he  is 
in  custody  of  the  officer."  So,  also,  if  there 
is  neither  a  touching  of  the  person,  nor  other 
force  employed  in  the  first  instance,  yet,  if 
the  party  to  be  arrested  submits  on  being  in- 
formed of  the  intended  arrest,  nothing  more  is 
required,  especially  when  he  is  in  the  power 
of  the  officer,  to  make  the  arrest  complete. p 

copy  of  the  information  or  indictment,  but  this  is  rarely 
done,  he  or  his  counsel  being  permitted  to  examine  the 
original.  h-The  prisoner  may  demand  a  reasonable 
time,  which,  if  necessary,  is  usually  granted.  i-Law 
of  Arrests,  London,  1742,  p.  i.  J-2  Blackf.  294.  ls-2 
G.  &  H.  p.  397,  ?  33-  1-Id-  2  34-  m-Id.  I  as.  11-6 
Mod.  173;  1  Salk.  to.  O-Cas.  temp.  Hardw.  «q8,  301 ; 
and  see  4  Bingh.  (ii.  R.)  212  ;  5  Scott,  561.  |»-i8  N. 
H.  1^8;  100  Mass.  ^9,  85. 


486 


LAW. 


Thus:  If  the  bailiff,  who  has  process  against 
one,  says  to  him,  when  he  is  on  horseback  or 
in  a  coach,  "  You  are  my  prisoner,  I  have  a 
writ  against  you,"  upon  which  he  submits, 
turns  back,  or  goes  with  him,  though  the  baihff 
never  touched  him,  yet  it  is  an  arrest,  because 
he  submitted  to  the  process ;  but  if  instead  of 
going  with  the  bailiff,  he  had  gone  or  fled  from 
him,  it  could  be  no  arrest  unless  the  bailiff  laid 
bold  of  him.' 

Restraint  does  not  alone  constitute  an  arrest; 
lis  the  duty  of  one  seeking  to  arrest  another 
to  make  his  purpose  known,''  unless  the  cir- 
cumstances are  such  as  to  render  the  purpose 
obvious;*  for,  where  circumstances  are  such  as 
to  make  the  intention  to  apprehend  plain  to 
the  mind  of  him  who  is  to  be  apprehended,  he 
need  not  be  told  this ;  and  the  arrest  will  be 
legal,  and  the  resistance  of  the  arrested  person 
illegal,  the  same  as  if  the  purpose  had  been 
announced  in  words.' 

A  person  making  an  arrest  should  not  use 
unnecessary  violence."  Though  the  officer 
may  lay  hands  on  another  in  order  to  serve 
him  with  process,^  yet  he  cannot  drag  about  or 
strike  the  defendant,  unless  these  acts  are  ren- 
dered necessary  by  his  resistance.*  He  may 
make  use  of  so  much  force  as  is  necessary  to 
accomplish  his  object,  and  cannot  be  made 
liable  by  the  defendant,  except  for  wanton 
violence.*  OfiScers  of  the  law,  when  engaged 
in  the  performance  of  their  duties,  are  invested 
with  a  peculiar  prerogative.  If  resisted  when 
so  employed,  and  the  party  resisting  be  killed 
in  the  struggle,  such  homicide  is  justifiable. 
And,  on  the  other  hand,  if  the  party  having 
such  authority,  in  exercising  it  properly,  happen 
to  be  killed,  it  will  be  murder  in  all  who  take 
part  in  such  resistance,^  though  tkere  be  no 
malice.*  An  officer  is  justified,  who,  in  the 
execution  of  his  office,  either  in  a  civil  or  crim- 
inal case,  kills  a  person  who  assaults  and  re- 
sists him.  The  resistance  will  justify  the  officer 
in  proceeding  to  the  last  extremity.  So  that, 
in  all  cases,  whether  civil  or  criminal,  where 
persons  having  authority  to  arrest  and  imprison, 
and  using  the  proper  means  for  that  purpose, 
are  resisted  in  so  doing,  they  may  rejjel  force 
with  force,  and  need  not  give  back ;  and  if  the 
party  making  resistance  is  unavoidably  killed 
in  the  struggle,  this  homicide  is  justifiable.* 
But  where  a  party  does  not  resist,  but  merely 
flies  to  avoid  the  arrest,  the  conduct  of  the  offi- 
cer should  be  cautiously  regulated  by  the  nature 
of  the  proceeding.     For  in  civil  cases,  and  also 


g-i  Salk.  (6th  Ed.)  79,  note  referring  to  B.  N.  P.  62  : 
iC.  &P.  153;  3C.  &P.  464;  M.  &M.  244;  6  B.  & 
C.  528  ;  2  C.  &  P.  503;    Bishop  Crim.  L.  Vol.  II,  g  49. 


r-9  Co.  65,  a.  «-7  C.  &  P.  785.  t-i  Moody,  207  ;  and 
see  1  Moody,  378;  Cro.  Car.  183,  537,  538  ;  0  Co.  65,/'. 
n-3  Harring.  568.  v-io  B.  &  C.  445  w-7Blackf.  74. 
X-24  Me.  158.  y-Whart.  Horn.  54,  83,  385  :  Fost.  273, 
408;  I  Hale,  501:  I  East.  P.  C.  295.  «-i7Ga.  104.  a- 
1  Hale,  494;  I  Hawk.  P.  C.  c.  z8,  ?§  17,  18;  Fost.  27;; 
4  Bl.  Com.  179;  1  East.  P.  C.  c.  5,  g  74,  p.  307.  So 
yong  as  a  party  liable  to  arrest  endeavors  peaceably  to 
avoid  it,  he  may  not  be  killed ;  but  whenever  by  his 
conduct  he  puts  in  jeopardy  the  life  of  any  attempting 
(o  arrest  him,  he  may  be  killed,  and  ihv  act  will  b«  ex- 


in  the  case  of  a  breach  of  the  peace,  or  any 
other  misdemeanor,  short  of  felony,' if  the  offi- 
cer should  pursue  a  defendant  flying  in  ordei 
to  avoid  an  arrest,  and  should  kill  him  in  the 
pursuit,  this  will  be  murder  or  manslaughter, 
according  to  the  circumstances  by  which  such 
homicide  may  have  been  attended. *• 

If  a  man  is  committing  a  felony,  and  an 
officer  attempts  to  arrest  him,  yet  he  runs 
away,  and  the  officer  calls  on  him  to  stop,  if  ht 
will  not  stop,  the  oflficer  is  justified  in  shooting 
at  him  to  compel  him  to  stop ;  but  if  the  of- 
fence is  a  misdemeanor,  he  has  no  right  to  take 
this  extreme  measure.® 

Where  the  arrest  has  actually  been  made, 
whether  for  felony  or  mi.sdemeanor,  1/  the  per- 
son attempts  to  break  away,  he  may  be  killed 
to  prevent  it,  provided  this  extreme  measure  is 
necessary.** 

Where  there  is  an  attempt  at  an  unlawful 
arrest,  as,  for  instance,  where  an  officer  under- 
takes to  arrest  without  a  warrant,  and  not  on 
fresh  pursuit,  one  whose  crime  is  no  mofe  than 
a  misdemeanor,  the  person  on  whom  the  at- 
tempt is  made  may  lawfully  resist,  tncrugh  not 
to  the  taking  of  life ;®  and  if,  in  such  resist- 
ance, he  takes  the  officer's  life,  his  crime  will 
only  be  manslaughter.'  So,  the  person  thus 
unlawfully  arrested  is  justified  in  escaping  if 
he  can ;«  and  an  attempt  to  re-arrest  him  will 
be  equally  unlawful  with  the  first  arrest .•»  But 
there  are  circumstances  in  which,  if  the  person 
arrested  submits,  he  waives  an  objection  which 
he  might  have  taken ;  and  in  these  circum- 
stances, he  has  no  right  afterward  to  escape.* 

One  having  custody  of  an  arrested  person 
should  treat  him  well,  but  may  even  inflict 
death  to  prevent  his  escape,  where  no  other 
means  are  available.  A  fortiori,  an  officer 
who  has  a  prisoner  under  arrest  may  tie  him. 
if  this  is  necessary ;  and  where  an  officer  acts 
honestly  and  from  pure  motives,  he  is  to  be 
himself  the  sole  judge  of  the  necessity  of  such 
a  measure  as  this.i  If,  then,  having  arrested 
the  prisoner  lawfully,  the  latter  breaks  away, 
he  may  retake  him  without  any  fresh  warrant,'' 
and  this  even  where  the  officer  has  consented 
to  the  escape.'  • 

Arrest  Without  a  Warrant. 

By  private  persons.  In  felonies  and  in 
treason.  If  the  offence  has  been  in  fact  com- 
mitted, and  a  private  person  has  reasonable 
cause  to  suspect  a  particular  person  to  be  guilty 
of  its  commission,  he  may,  acting  in  good  faiih, 

cusable,  State  vs.  Anderson :  i  Hill,  327.  b-Russell 
Crimes,  Vol.  i,  B.  Ill,  \  3.  C-a  Den.  C.  C.  35 ;  com- 
pare with  Bishop  Cr.  L.  Vol.  ',  \  528,  II,  J  600;  sec 
also  2  Dev.  58  ;  25  Ala.  15  ;  19  Texas,  285.  If,  instead 
of  flying,  he  stands  and  resists,  the  party  having  the 
right  to  arrest  may  press  forward  in  his  purpose,  even 
though  the  ca.se  be  not  one  of  felony ;  and  if  not  desist- 
ing, but  still  pressing  forward,  he  is  obliged  to  take  the 
life  of  the  other,  as  in  self-defence,  he  will  be  justified. 
30  Ala.  683;  2  Dev.  58  ;  2  Mill.  314;  3  Harring.  568; 
see  10  Wis.  562  ;  1  East.  C.  P.  295.  d-Bishop  Cr.  L. 
Vol.  II,  I  600.  e-Id.  §650.  f-i,2Cush.246.  gr-5  Har- 
rir^.  496.  l»-i  Moody,  132.  I-42  Me.  384  ;  sVt.  588. 
1-2  I  red.  50.  k-3  Blackf.  294.  l-i  Grant,  187;  x  Cbitt/ 
Cr.  \,. 


LAW. 


487 


arrest  such  person ;  and  he  will  not  be  liable, 
either  in  a  civil  or  criminal  prosecution,  should 
the  suspicion  prove  unfounded."  But  if  the 
offence  has  not  in  fact  been  committed  by  any 
one,  he  may  be  compelled,  on  a  civil  suit,  to 
pay  damages  to  the  party  arrested,  however 
strong  or  reasonable  may  have  been  his  suspi- 
cions." And  these  rules  extend  to  all  felonies, 
even  to  petit  larceny." 

When  a  crime  is  a  felony,  the  law  casts  upon 
all  persons  present  the  duty  to  make  the  arrest. 
It  is  also  a  duly  of  precisely  the  same  nature 
to  interfere  to  prevent  the  commission  of  a 
felony  or  treason,  and  this  duty  carries  with  it 
the  right ;  consequently,  though  an  attempt  to 
commit  a  felony  is  a  misdemeanor,  and  not  a 
felony,  yet  if  a  man  finds  another  attempting  to 
sommit  a  felony,  he  may  arrest  him.P 

In  misdemeanors,  a  private  person,  or  an 
officer  acting  without  a  warrant,  cannot  make 
an  arrest  for  a  misdemeanor  committed  on  an 
occasion  which  has  already  past.'  It  is  the 
duty  of  every  good  citizen  to  endeavor  to  sup- 
press a  riot ;  and  when  he  finds  a  mistaken 
multitude  engaging  in  treasonable  practices,  to 
the  subversion  of  all  peace  and  good  order,  he 
is  protected  by  law  in  coming  forward  with 
other  well-disposed  character^  to  repel  them  by 
force.'  Affrays  may  be  suppressed  by  any 
private  person  present,  who  is  justifiable  in 
endeavoring  to  part  the  combatants,  whatever 
consequence  may  ensue." 

By  officers  of  the  law.  Whenever  the  cir- 
cumstances of  a  case  would  justify  a  private 
perron  in  making  an  arrest,  without  a  warrant, 
they  will  equally  justify  a  constable,  sheriff,  or 
watchman.'  Where  an  officer,  authorized  by 
statute  to  make  arrests  without  warrant,  finds  a 
person  in  the  act  of  committing  a  criminal 
offence,  it  is  not  necessary  to  the  lawfulness  of 
the  attempt  to  arrest  him  to  first  inform  him  of 
the  charge  upon  which  the  attempted  arrest  is 
'made,  where  the  officer  and  the  cause  of  arrest 
are  known  to  the  offender."  But  for  a  past 
offence,  below  a  felony,  officers  of  the  peace 
cannot,  any  more  than  a  private  person,  arrest 
the  offenders  without  a  warrant. 

When  a  magistrate  is  commanded  by  statute 
10  keep  the  peace,  by  construction,  he  is  au- 
thorized to  call  upon  his  officers,  and  upon 
private  individuals,  for  such  assistance  as  the 
nature  of  his  office  and  the  particular  circum- 
stances render  it  incumbent  on  them  to  per- 
form;  and  such  magistrate  may  lawfully,  by 
word  of  mouth,  authorize  any  one  to  arrest  an- 
otlier,  who  shall  be  guilty  of  any  actual  breach 
of  the  peace  in  his  presence,^  or  shall  be  en- 
gaged i»  a  riot  in  his  presence.'     If  an  offence 

in-Cald.  201  ;  3  Jones,  433;  3  Wend.  350;  6  Binn. 
316;  8  S.  &  R.  47  ;  2  Root,  171 ;  12  Co.  90;  12  Ga. 
293  ;  2  Dev.  58  ;  3  Vroom,  70.  11-3  Wend.  350  ;  3  Binn. 
316 ;  9  Port.  195 ;  2  Selw.  N.  P.  935  :  8  C.  &  P.  522  ;  2 
Moore  &  P.  500 ;  5  Bingh.  354  ;  2  C.  &  P.  565.  Yet, 
possibly,  such  a  matter  may  be  shown  in  the  mitigation 
of  damages,  2  Stew.  &  Port.  195 ;  Minor,  407.  0-3 
Parker  C.  C.  240.  p-i  Moody,  93;  2  B.  &  P.  260;  3 
Vroom,  70.  q-3  B.  &  Ad.  798;  see  4  Scott  'N.  R.)  54  ; 
I  Powl.  (N.  S.)  216 ;   2  C.  &  P.  585.    r-i  V?ates,  41^, 


is  committed  in  the  court  of  a  mag*  ^trnte,  he 

may  verbally  authorize  the  attending  officer  to 
take  the  offender  into  custody;  no  warrant  being 
necessary  in  the  first  instance.*  Likewise,  if 
an  arrest  is  made  without  a  warrant,  in  a  case 
where  such  an  arrest  is  lawful,  and  the  offender 
is  brought  before  the  magistrate,  the  latter  may 
take  jurisdiction  and  proceed  to  judgment 
without  issuing  a  warrant  of  arrest.  "  Why 
issue  a  warrant  for  the  apprehension  of  a  party 
already  in  custody  ?"y  But  a  written  complaint 
(under  oath)  against  the  party,  setting  out  his 
offence,  is  as  necessary  in  such  a  case  as  in  any 
other.* 

Sheriffs*  and  constables  are  ex-officio  conser- 
vators of  the  peace;  so,  in  a  measure,  are 
watchmen  and  other  like  officers. 

What  is  a  reasonable  and  proper  cause  to 
suspect  the  person  who  is  to  be  arrested  is  a 
question  of  law ;  and  it  is  a  question  of  fact 
whether  or  not  the  circumstances  constituting 
such  cause  exist ;  and  on  the  trial  of  an  officer 
at  the  suit  of  the  arrested  party,  the  question 
is  ordinarily  to  be  submitted  to  the  juiy  as  a 
mixed  one  of  law  and  fact.**  A  proclama- 
tion by  the  governor,  published  in  pursuance 
of  law,  announcing  the  commission  of  a  felony, 
is  a  sufficient  justification  for  a  peace  officer 
who  arrests  the  suspected  felon."  A  watchman 
and  beadles  have  authority  at  common  law  tg 
arrest  and  detain  in  prison,  for  examination, 
persons  walking  the  streets  at  night,  whom 
there  is  reasonable  ground  to  suspect  of  felony, 
although  there  is  no  proof  of  a  felony  having 
been  committed.* 

From  time  immemorial  constables  and 
watchmen  had  authority,  without  warrant,  to 
arrest  those  whom  they  saw  engaged  in  an 
affray  or  breach  of  the  peace,  and  to  detain 
them  until  they  should  find  proper  sureties.' 
And  the  officers  of  government  have  authority, 
derived  from  the  general  rights  of  the  govern- 
ment, without  any  statute  whatever  on  the 
subject,  to  exercise  all  necessary  force  for  the 
prevention  of  crime,  either  by  the  arrest  of  in- 
dividuals, or  by  the  seizure  and  detention  of 
the  instruments  of  crime ;'  and  this  applies  to 
sheriffs,  constables,  and  the  like. 

Officers^  power  to  call  assistance.  The  chief 
difference  between  the  power  and  duty  of 
an  officer  and  a  private  person,  in  respect  to 
such  arrest,  is,  that  the  former  has  the  greater 
authority  to  demand  assistance  of  others,  and 
is  liable  to  a  severer  fine  for  any  neglect  of  this 
kind,  and  has  no  sure  way  to  discharge  him- 
self of  the  arrest  of  any  person  apprehended 
by  him  for  felony,  without  bringing  him  be- 
fore a  magistrate  in  order  to    be    examined ; 

421.  Assisting  to  quell  a  treasonable  riot  is  lawful,  i  W. 
Bl.  47.  8-1  Bi.  Comm.  145.  t-2  Hawk.  P.  C.  c.  13,  J 
I.  U-19  Ohio  St.  248.  v-ii  Gray,  194.  w-2  Hawk. 
P.  C.  f.  13,  §  14.  X-19  111.  242;  see  Id.  p.  245;  and 
see  12  Ind.  369  ;  8  Conn.  375.  y-6  Humph.  236;  <9 
111.  242,  245.  z-4  Conn.  107.  a-io  Johns.  85.  b-2 
Moore  &  P.  590;  5  Bingh.  354.  c-6  Humph.  53.  d-3 
Taunt.  14 ;  and  see  14  Gray,  65.  e-2  Nott.  &  M'Cord, 
475,  478;  8  S.  &  R.  47;  5  Harriug.  soj.  f-a?  V;.  0; 
and  see  j6  ^.  H-  2^6, 


488 


LAW. 


whereas,  a  private  person,  having  made  such 
an  arrest,  needs  only  to  deliver  his  prisoner 
into  the  hands  of  the  constable.*  Accordingly, 
it  is  in  the  power  of  an  officer  making  an 
arrest,  though  without  a  warrant,  to  call  in  the 
aid  of  the  bystanders — for  the  sheriff  may  call 
out  the  power  of  the  county,  and  the  officer 
may  command  the  inhabitants  of  his  precinct. 
And  this  extends  not  merely  to  the  arrest,  but 
equally  to  the  detaining  of  the  prisoner  after 
the  arrest  is  made.  If  any  one  obstructs  the 
officer  in  the  performance  of  these  duties,  he 
may  at  once  be  taken  into  custody. 

Arrest  under  a  Warrant.     Where 

a  warrant  in  due  form  is  put  into  the  hand 
of  an  officer,  to  whom  it  is  addressed,  he 
is  justified  in  executing  it,  if  the  magistrate 
who  issued  it  had  jurisdiction  over  the  cause, 
even  though  it  was  improperly  or  unlawfully 
obtained.  But  it  is  otherwise  if  the  warrant  is 
illegal  on  its  face,  or  if  the  magistrate  had  no 
jurisdiction;  which  question  of  jurisdiction  the 
efficer  must  decide  at  his  peril.''  And  if,  in  a 
civil  case,  an  arrest  is  made  after  the  process  is 
returnable,  the  officer  becomes  thereby  a  tres- 
passer.' Where  process  under  which  an  officer 
makes  an  arrest  is  voidable,  by  reason  of  some 
irregularity  or  mistake,  he  is  justified;  though 
lie  is  not  when  it  is  void.J 

One  who  is  called  upon  to  assist  an  officer  in 
making  an  arrest  under  warrant,  and  who 
acts  in  good  faith,  is  justified,  though  the  pro- 
cess is  not  valid  to  the  extent  of  justifying  the 
officer  himself;  for  if  all  those  summoned  had 
to  examine  and  judge  the  legality  of  the  pro- 
cess, and  then  to  act  upon  their  own  responsi- 
bility, this  necessary  power  in  the  officer  would, 
in  practice,  be  paralyzed  to  a  great  degree.'' 

The  warrant  must  be  executed  by  a  public 
officer  las  the  sheriff  or  constable  of  the  county, 
marshal  of  any  incorporated  city),  or  some 
j)erson  specially  appointed,  in  writing,  by  the 
court  or  magistrate.' 

Form  of  Special  Appointment  on  the 
'Warrant. 

I  hereby  appoint  S.  A.  to  execute  the  within 
writ.  [i>i£^nature,  seal,  and  official  tiiU.'\ 

The  warrant  must  be  executed  by  the  officer 
or  person  to  whoni  it  is  directed  and  delivered. 
And  in  all  cases  where  an  arrest  is  made  by 
virtue  of  a  warrant,  che  warrant,  if  demanded, 
at  least  should  be  produced.™  Where  the  offi- 
cer is  not  known  to  be  such,  he  must  show  his 
authority,  his  warrant,  before  making  the  ar- 
rest." If  the  officer  permits  the  prisoner  to 
take  the  warrant  into  his  hands  to  peruse,  and 
the  latter  refuses  to  return  it,  he  may  use  "just 

g-2  Hawk.  P.  C.  c.  13,  \  7.  h-i  Conn.  40;  6  Eng. 
(542  ;  I  lU.  461 ;  24  Ala.  672  ;  3  Dev.  468  ;  5  Day,  506, 
308  ;  6  Cow.  456  ;  13  Mass.  286  ;  3  Caines,  267  ;  10 
Conn.  514  ;  5  Ired.  72  ;  8  Met.  324  ;  i  Moody,  281 ;  7 
Hill  (N.  Y.)  39 ;  a  Fla.  171 ;  4  E.  D.  Smith,  445 ;  Breese, 
18;  37  Me.  130;  I  Foster,  262;  25  111.  70.  I-3  Day.  i  ; 
6  Mass.  20.  J-4  Mass.  232,  234;  13  Id.  324,  286,  288  ; 
14  Id.  210  ;  aiid  see  17  Ga.  194  ;  i  Chitty  Cr.  L.  60,  61. 
fc-2  J.  J.  Marsh.  44.  1-M.  &M.  107:  3  C.  &  P.  31 ; 
Bishop  Cr.  L.  I  Vol.  I,  g  307;  Vol.  II,  g?  653,  654.  66:;, 
727,  1228.  m-See  Gbkeral  Statutes,  n-8  T.  R. 
{87 ;    »n4  sec  \  Cbitty  Cr.  L.  -f I ;    x  Hayes'  D/^.  Ci. 


so  must  violence  as  is  necessary  to  retake  it, 
and  no  more;  "»  but  if  he  cannot  retake  it  by 
reason  of  its  destruction,  or  otherwise,  he  may 
still  execute  the  command  of  the  warrant,  and 
return  the  facts. 

The  officer  should,  as  soon  as  he  conven- 
iently can,  though  he  may  do  so  at  any  time 
afterward  until  the  object  of  the  warrant  is 
satisfied,?  proceed  with  secrecy  to  find  out  and 
actually  arrest  the  party ,1  not  only  in  order  to 
secure  him,  but  also  to  subject  him,  and  all 
other  persons,  to  the  consequences  of  escape 
and  rescue.  And  if  he  refuse  or  neglect  to 
execute  the  warrant,  he  will  be  punishable  for 
his  disobedience  or  neglect.' 

Breaking  Doors,  etc.  To  make  an  ar- 
rest in  criminal  actions  the  officer  may  break 
open  any  outer  or  inner  door  or  window  of  a 
dwelling-house,  or  other  building,  or  any  other 
enclosure,  if,  after  notice  of  his  office  and  pur- 
pose, he  be  refused  admittance. ■  But  this  does 
not  authorize  any  officer  executing  a  search- 
warrant  to  enter  any  house  or  building  not  de- 
scribed in  the  warrant. 

A  private  individual,  in  order  to  justify 
breaking  open  doors  without  a  warrant,  must, 
in  general,  prove  the  actual  guilt  of  the  party 
arrested;  and  it  will  not  suffice  to  show  a 
felony  has  actually  been  committed,  or  that 
reasonable  ground  of  suspicion  existed.  But 
an  officer  acting  bona  Jlde  on  the  positive 
charge  of  another  will  be  excused,  and  the 
party  making  the  accusation  will  alone  be 
liable.* 

The  breaking  of  an  outer  door  is,  in  general, 
so  violent,  obnoxious,  and  dangerous  a  pro- 
ceeding that  it  should  be  adopted  only  in  ex- 
treme cases,  where  an  immediate  arrest  is 
requisite. 

The  house  of  a  third  person,  if  the  offender 
fly  to  it  for  refuge,  is  not  privileged,  but  may 
be  broken  open  after  the  usual  demand ;  for  it 
may  even  be  so  upon  civil  process."  But  it  is 
at  the  peril  of  the  officer,  that  the  party  against 
whom  he  obtained  the  warrant  be  found  there.' 
This  doctrine  is  also  recognized  as  respects 
civil  process.'' 

If  a  party  be  once  actually  arrested  and 
escaped  from  custody,  any  door  may  be  broken 
open  to  retake  him,  after  proper  demand  of 
admittance.* 

When  an  officer,  after  obtaining  admittance, 
is  locked  in,  or  otherwise  prevented  from  re- 
tiring, and  whether  executing  civil  or  criminal 
process,  he  may  break  out  by  any  means  in  his 
power.     And  a  sheriff  may  break  open   the 

Stat.  L.  (2d  Ed.)  69.  O-i  Hayw.  471  ;  13  Mass.  321  ; 
ID  Wend.  514.  jp-Peake,  2^4.  q-Dalt.  Just.  169 ;  Dick. 
Just.  Arrest  IIL  r-Cro.  Eliz.  664:  i  Hals.  V.  C.  581. 
S-2  B.  &  Aid.  592  ;  14  East.  163  ;  Foster,  329  ;  2  Hawk. 
P.  C.  r.  14,  a  I ;  3  B.  &  P.  229 ;  Barl.  Just.  Arrests  ; 
Dick.  Just.  Arrests.  t-Dougl.  358;  Dick.  Just.  Ar- 
rests, III.  n-s  Co.  91  ;  2  Hale  P.  C.  117.  V-2  Hale 
P.  C.  117;  5  Co.  63,  a.  ;  1  Marsh.  565;  6  Taunt.  246. 
W-i  Marsh.  565;  3  B.  &  B.223;  Dick.  Just.  Arrest,  HI  ; 
13  Mass.  520;  10  Wend.  300;  14  B.  Mon.  395  ;  see  post 
title  Arrest.  x-Foster,  320:  6  Mod.  173,  174;  Salk. 
179  ;  I  Hale  P.  C.  459;  a  Hawk.  P.  C  f.  14,  g  9  ;  Dick. 
Just.  Arrest,  Hi. 


LAW. 


489 


door  of  a  house  to  rescue  his  bailiffs,  unlawfully 
detained  within  it.' 

An  officer,  once  entering  a  house,  either  upon 
civil  or  criminal  process,  may,  after  ineffectually 
demanding  admittance,  break  open  any  inner 
door  that  obstructs  his  progress.* 

Disposition  of  Arrested  Person. 

When  Arrested  without  a  Warrant.  When 
a  private  person  arrests  a  man  without  a  war- 
rant, he  should  cause  hini^  as  soon  as  conven- 
ience will  permit,  to  be  brought  before  some 
justice  of  the  peace,  by  whom  the  prisoner  may 
be  examined  and  bailed, orcommitted  to  prison.' 
Where  a  private  person  has  apprehended  an- 
other assisting  in  an  affray,  he  may  lawfully  de- 
tain him  till  the  heat  is  over,  and  then  deliver 
him  to  the  constable.'* 

An  officer  having  arrested  the  offender,  in 
case  of  an  affray,  may  confine  him  till  the  heat 
of  his  passion,  or  intemperance  is  over,  or  till 
he  can  bring  him  before  a  justice  of  the  peace ;' 
and  in  all  cases,  he  should  carry  the  offender 
before  a  justice  of  the  peace  as  soon  as  circum- 
stances will  permit."*  And  a  constable  arrest- 
ing a  man  on  suspicion  of  felony,  must  take 
him  before  a  justice  of  the  peace  to  be  examined 
as  soon  as  he  reasonably  can ;  and  cannot  justify 
handcuffing  a  prisoner,  unless  it  be  necessary 
to  prevent  his  escape." 

When  Arrested  under  a  Warrant. — "  When 
an  officer  has  made  his  arrest,  he  is,  as  soon  as 
possible,  to  bring  the  party  to  the  jail,  or  the 
justice,  according  to  the  import  of  the  war- 
rant,"' if  permitted  or  required  by  the  law.  If 
he  be  guilty  of  unnecessary  delay,  it  is  a  breach 
of  duty.*  But  if  the  time  be  unseasonable,  as 
in  or  near  the  night,  whereby  he  cannot  attend 
the  justice,  or,  if  there  be  danger  of  a  rescue, 
or  the  party  be  ill,  and  unable  at  present  to  be 
brought,  he  may,  as  the  case  require,  secure  him 
or  detain  him  in  a  house  till  the  next  day,  or 
until  it  may  be  reasonable  to  bring  him."* 

When  brought  before  the  magistrate  the  pris- 
oner is  still  considered  to  be  in  the  custody  of 
the  officer,  until  he  has  been  discharged,  bailed, 
or  committed  to  prison.*  And  the  officer  may 
keep  his  warrant  for  his  own  justification,  and 
need  only  return  to  the  magistrate  what  he  has 
done  in  pursuance  of  his  commands.^ 

Arson  is  the  malicious  burning  of  another's 
house* — out-house,  ship  or  shipping,  store- 
house, or  other  property.  The  term  "  house  " 
comprehends  not  only  the  very  mansion-house, 
or  residence  itself,  but  all  out-houses  which  are 
a  part  thereof,  though  not  contiguous  thereto,  nor 

y-Cro.  Jac.  55S:  Foster,  319  ;  6  Mod.  173  ;  2  Hawk. 
P.  C.  c.  14,  ?  II  :  I  Hale  P.  C.  459  :  Dick.  Just.  Arrest, 
III.  K-i  Hale  P.  C.  4=g  :  Foster,  319  :  3  B.  &  P.  229. 
a-i  Hale  P.  C.  589;  2  Id.  77-81  ;  2  Hawk.  P.  C.  c.  13, 
?  7  :  Id.  c.  16,  ?  3.  b-2  Hawk.  P.  C.  c.  13,  g  8.  c-i 
Chltty  Cr.  L.  23,  24.  d-2  Hale  P.  C.  951,  et  seg.  ;  see 
10  Wend.  514.  e-4  B.  &  C.  596 :  6  D.  &  R.  623 ;  see 
24  How.  (U.  S.)  544  ;  see  also  2  Wash.  C.  C.  353.  f-i 
Chitty  Cr.  L.  59.  gr-Fortes.  143;  2  Hale  P.  C.  119;  see 
5  Foster,  251  I1-2  Hale  P.  C.  95,  96,  119,  120.  l-i 
Chltty  Cr.  L.  60 :  2  Hale  P.  C.  120.  J-2  Ld.  Raym. 
1196;  Dick.  Just.  Arrf-st,  IV.  fc-Cfo.  3d  Inst.  66; 
Bishop  Cr.  L.J  415  ;  4  Bl.  Comm.  220  ;  2  Pick.  320;  10 
Cush.  470 ;    7  Grait.  619 ;   9  Ala.  175 ;    7  Blagkf,  »68 ;  i 


under  the  same  roof,  such  as  the  bam,  cow- 
house, dairy-house,  mill-house,  sheep-house, 
stable,  or  the  like,  being  within  the  dwelling- 
hoase  enclosure,  or  same  common  fence  as  the 
dwelling  or  mansion  itself.' 

The  burning  must  have  been  both  malicious 
and  wilful,"  that  is,  it  must  be  done  intention- 
ally, not  accidentally.  Generally,  if  the  act  is 
proved  to  have  been  done  wilfully,  it  may  be 
inferred  to  have  been  done  maliciously,  unless 
the  contrary  is  proved."  An  intent  to  injure  or 
defraud  will  be  conclusively  inferred  from  the 
wilful  act  of  firing."  But  this  inference  will 
only  arise  where  the  act  is  wilful;  therefore, if 
the  fire  appears  to  be  the  result  of  accident,  the 
party  who  is  the  cause  of  it  will  not  be  liable. 
The  subject  of  arson  is  very  generally  regulated 
by  statute. 

Asportation  is  the  felonious  removal  of 
goods  from  the  place  where  they  were  depos- 
ited. A  theft,  though  the  goods  are  not  car- 
ried from  the  house  or  apartment .p 

Assassination  is  murder  committed  for 
hire,  without  provocation  or  cause  of  resent- 
ment given  to  the  murderer  by  the  person  upon 
whom  the  crime  is  committed."! 

An  Assault  is  an  unlawful  setting  upon 
one's  person ;  an  attempt  or  offer  to  beat  an- 
other without  touching  his  person.'  It  is  an 
unlawful  offer  or  attempt,  with  force  or  vio- 
lence, to  do  a  corporal  hurt  to  another.  It  is 
force  unlawfully  directed  or  applied  to  the 
person  of  another,  under  such  circumstances  as 
to  cause  a  well-founded  apprehension  of  imme- 
diate peril. 

Aggravated  assault  is  one  committed  with 
the  intention  of  committing  some  additional 
crime. 

Simple  assault  is  one  committed  with  no  in- 
tention to  do  any  other  injury. 

Any  act  causing  a  well-founded  apprehen- 
sion of  immediate  peril  from  a  force  already 
partially  or  fully  put  in  motion,  is  an  assault,* 
unless  justifiable.  But  if  justifiable,  it  is  not 
necessarily  a  battery  or  an  assault. 

There  are  many  other  acts  which  are  in  the 
eye  of  the  law  assaults.  Thus,  if  a  master 
takes  indecent  liberties  with  a  female  scholar, 
without  her  consent,  it  is  an  assault.*  If  a 
medical  practitioner  unnecessarily  strips  a  fe- 
male patient  naked  under  pretence  that  he 
cannot  otherwise  judge  of  her  illness,  it  is  an 
assault,  if  he  assisted  in  taking  off  her  clothes." 
And   carnal  connection   with  a  girl   fourteen 

Leach  Cr.  Cas.  r4th  F.d.)  218.    l-i  C.  &  K.  533 ;  14  M. 

&  W.  181 :  4  C.  &  P.  245  ;  20  Conn.  245;  16  Johns. 
203;  18  Id.  115:  3lred.  570;  3  Rich.  242  ;  5  Whan. 
427  ;  4  Leigh.  483  ;  4  Call.  109.  m-Rosc.  Cr.  Ev.  272  : 
2  East.  PI.  Cr.  1019,  1031 ;  i  Bishop  Cr  L.  ?  21,9.  n-i 
Rufs.  &  R.  Cr.  Cas.  26.  o-i  Russ.  &  R.  Cr.  Cas.  207; 
I  Mood.  Cr.  Cas.  263;  2  B.  &  C.  264.  p-Bl.  Comni 
q-Erskine  Inst.  b.  4,  torn.  4,  n.  45.  r-As  by  lifting  the 
fist  or  a  cane  in  a  threatening  manner,  or  by  striking  at 
him  and  missing  him.  If  the  blow  takes  effect  it  is  a 
battery.  Bl.  Comm.  S-4C.  &P.  349;  9ld.  483,  626; 
I  Ired.  125,  375  ;  11  Id.  475  ;  i  S.  &  R- 347 ;  ^^  Strobh. 
137;  9  Ala.  79;  2  Wash.  C.  C.  435.  t-Russ.  &  R.  Cr 
Cas.  130 ;  Cox  Cr.  Cas.  64 ;  9  C.  &  P.  722,  n-i  Moody, 
19  ;  \  Lewi*.  (I. 


490 


LAW. 


years  of  age,  under  pretence  of  thereby  treat- 
ing her  medically,  she  making  no  resistance 
from  a  bone  fide  belief  that  such  was  the  case, 
was  held  an  assault.'  An  unlawful  imprison- 
ment is  also  an  assault.* 

Assault  is  generally  coupled  with  battery, 
and  for  the  excellent  practical  reason  that  they 
generally  go  together;  but  the  assault  is  rather 
the  initiation  or  offer  to  commit  the  act  of 
which  the  battery  is  the  consummation.  An 
assault  is  included  in  every  battery.'  Where  a 
person  is  only  assaulted — still  the  form  of  the 
complaint  is  the  same  as  where  there  has  been 
a  battery :  "That  the  defendant  assaulted,  and 
beat,  bruised,  and  wounded  the  plaintiff."' 
One  who  incites  or  procures  another  to  commit 
an  assault,  though  not  present  at  its  commission, 
nor  otherwise  participating  therein,  may  be  in- 
dicted and  punished  as  a  principal." 

An  unlawful  assembly  is  the  meeting  of 
three  or  more  persons  to  do  an  unlawful  act — 
although  they  may  not  carry  their  purpose  into 
execution.  It  differs  from  a  riot  or  rout,  be- 
cause in  each  of  the  latter  cases  there  is  some 
act  done  besides  the  simple  meeting.' 

Attainder  upon  a  felon  is,  in  effect,  in  gen- 
eral terms,  that  all  his  estate,  real  and  per- 
sonal, is  forfeited  to  the  State;  that  his  blood 
is  corrupted,  and  so  nothing  passes  by  inherit- 
ance to,  from,  or  through  him;''  that  he  can- 
not sue  in  a  court  of  justice."  The  effect  of 
attainder  is  abrogated  by  the  constitution, 
q.  V. 

An  attempt  is  an  endeavor  to  accomplish  a 
crime,  carried  beyond  mere  preparation,  but 
falling  short  of  its  execution  or  any  part  of  it.^ 
It  is  an  intent  combined  with  an  act  which  falls 
short  of  the  offence  intended.*  There  must  be 
an  intent  to  commit  some  offence  which  would 
be  punishable  if  committed,  either  from  its  own 
character  or  that  of  its  natural  or  probable  con- 
sequences ;'  and  the  offence  intended  must  at 
least  be  a  misdemeanor.* 

Banishment  is  a  punishment  inflicted  upon 
criminals  by  compelling  them  to  quit  a  city, 
place,  or  country  for  a  specified  period  of  time, 
or  for  life.^ 

Barratry  is  the  offence  of  frequently  ex- 
citing and  stirring  up  quarrels  and  suits,  either 
at  law  or  otherwise.'  An  indictment  for  this 
offence  must  charge  the  offender  with  being 
a  common  barrator.J  and  the  proof  must  show 
at  least  three  instances  of  offending.''     An  at- 

V-i  Denio  Cr.  Cas.  580;  4  Cox  Cr.  Cas.  220;  Tempi. 
&M.Cr.Cas.2i8.  w-i  Hawk.Pl.Cr.  Ch.6i,?2.  x-i 
Hawk.  PI.  Cr.c.  62,?!.  y-i  Saund.  (6th  Ed.)  i4,a.  IB-12 
Ohio  St.  214.  a-See  1  Ired.  30 ;  p  C.  &  P.  91,431  ;  5  Id. 
154:  I  Bishop  Cr.  L.  §395;  2  Id.  §j>  1039, 1040.  b-' Wms. 
Saund.  361,  n.  ;  6  Co.  63,  a,  68,  b. ;  3  Rob.  Eccl.  547 ; 
24  Eng.  L.  &  Eq.  598.  C-Co.  Litt.  130,  a.  fl-s  Cush. 
367.  e-i  Bish.  Cr.  L.  510;  14  Ga.  S5  :  '4  Ala.  (N.  S.) 
411.  f-3  Harring.  571;  18  Ala.  (N.  S.)  S32  ;  i  Park. 
Cr.  Cas.  327;  9  Hfumphr.  455 ;  7  C.  &P.  518;  8  Id. 
541 ;  I  Crawf.  &  D.  Cr.  Cas.  156,  186 ;  i  Bish.  Cr.  L.  ?? 
513-518.  g-i  Crawf.  &  D.  Cr.  Cas.  149;  i  Ct.  M.  661, 
n. :  I  Dall.  39 ;  i  Bish.  Cr.  L.  ?  528.  h-See  4  Dall.  14. 
i-4  Bl.  Comm.  134:  Co.  Litt.  368.  J-i  Sid.  282;  Train 
&  H.  Prec.  55.  Il-i5  Mass.  227;  i  Cush.  23;  i  Ball. 
37V.  I-t  Bail.  379  ;  see  i  Bishop  Cr.  L.  ^  401,  645,  646 ; 
?  W-  ^1  57~6'  ;  *  t;o.  j6  b;  J  Cow.  587;  15  Mass.  229  ; 


tomey  is  not  liable  to  an  fndictment  for  main- 
tairiing  another  in  a  groundless  action.* 

Battery  is  an  unlawful  beating,  or  other 
wrongful  physical  violence  or  constraint  in- 
flicted on  a  human  being  without  his  consent." 
It  must  be  either  wilfully  committed,  or  pro- 
ceed from  the  want  of  due  care."  Hence,  an 
injuiy,  be  it  never  so  small,  done  to  the  person 
of  another  in  an  angry,  spiteful,  rude,  or 
insolent  manner,"  as  by  spitting  in  his  face,P 
or  on  his  body,<i  or  in  any  way  touching 
him  in  anger,'  or  violently  pushing  him,»  are 
batteries  in  the  eye  of  the  law.*  And  any- 
thing attached  to  the  person  partakes  of  its 
in^iolabilty.  If,  therefore,  A.  strikes  a  cane  in 
the  hands  of  B.  it  is  a  battery." 

A  battery  may  be  justified  : 

1.  As  a  mode  of  correction — a  parent  may 
correct  his  child;  a  master  his  apprentice;  a 
school-teacher  his  scholar;''  and  a  superior 
officer  one  under  his  command.* 

2.  As  a  necessary  means  of  defence  of  the  per- 
son against  the  plaintiff's  assault  in  the  follow- 
ing instances :  in  defence  of  himself,  his  wife,* 
his  child,  and  his  servant.'  So,  likewise,  the 
wife  may  justify  a  battery  in  defending  her 
husband,*  the  child  its  parent,*  and  the  servant 
his  master  or  mistress.  In  these  relations  the 
party  need  not  wait  until  a  blow  has  been 
given,  for  then  he  might  come  too  late,  and  be 
disabled  from  warding  off  a  second  stroke,  or 
from  protecting  the  person  assailed.  Care, 
however,  must  be  taken  that  the  battery  do  not 
exceed  the  bounds  of  necessary  defence  and 
protection;  for  it  is  only  permitted  as  a  means 
to  arrest  an  impending  evil,  which  might 
otherwise  overwhelm  the  party,  and  not  as  a 
punishment,  retaliation,  or  revenge,  for  the 
injurious  attempt.''  The  degree  of  force  neces- 
sary to  repel  an  assault  will  naturally  depend 
upon  and  be  proportioned  to  the  violence  of 
the  assailant ;  but  with  this  limitation  any  de- 
gree is  justifiable." 

3.  As  a  defence  to  one's  property.  If  the 
plaintiff  is  in  the  act  of  entering  peaceably  upon 
the  defendant's  land,  or,  having  entered,  is  dis- 
covered, not  committing  violence,  a  request  to 
depart  is  necessary  in  the  first  instance."*  And 
if  the  plaintiff  refuses,  the  defendant  may  then 
gently  lay  hands  upon  the  plaintiff  and  remove 
him  from  the  premises,  and  for  this  purpose 
may  use,  if  necessary,  any  degree  of  force  short 
of  striking  the  plaintiff;  as,  by  thrusting  him 
off."     If  the  plaintiff  resists,  the  defendant  may 

ir  Pick.  432  ;  13  Id.  362.  in-2  Bishop  Cr.  L.  ?  62  ;  17 
Ala.  540;  9  N.  H.  491.  11-Strange,  596;  Hob.  134; 
Plowd.  19;  3  Wend.  391.  0-9  Pick.  i.  p-6  Mod.  172. 
q-i  Swint.  597.  r-i  Ku.ss.  Cr.  751.  s-See  4  Hiirlst. 
&  N.  481.  t-i  Hawkins  PI.  Cr.  263;  see  i  Selwyn  N. 
P.  33.  u-i  Dall.  114:  I  Penn.  380;  i  Hill  (S.  C.)  46; 
4  Denio,  453  ;  4  Wash.  C.  C.  534  :  i  Baldw.  C.  C.  600. 
\-24  Edw.  IV;  4  Gray.  36;  2  Dev.  &  B.  365.  w- 
Keilw.  136;  B.  N.  P.  19;  Bee  Adm.  161;  i  Bay.  3;  14 
Johns.  119;  15  Mass.  365.  X-3  Salk.  46.  y-Ow.  150; 
but  see  i  Salk.  407.  z-Ld.  Raym.  62.  a-3SaIk.  46.  b- 
Strange.  593  :  i  Comst.  34  ;  4  Vt.  629;  4  J.  J.  Marsh. 
578;  2  Bish.  Cr.  L.  561.  c-i  Ld.,Raym.  177;  2  Salk. 
642  ;  11  Humphr.  200 ;  4  Barb.  460 ;  2  N.  Y.  193  ;  i  Ohio 
St.  66;  23  Ala.  (N.  S.)  17,  28;  14  B.  Mon.  614;  18  Id. 
49;  16  111.  17;  503,85.   a-2  Salk.  641.     e-SkiuB.  »§. 


LAW. 


491 


'^^pose  force  to  force/  But  if  the  plaintiff  is 
ill  the  act  of  forcibly  entering  upon  the  land,  or, 
having  entered,  is  subverting  the  soil,  cutting 
down  a  tree  or  the  like,*  a  previous  request  is 
unnecessary,  and  the  defendant  may  immedi- 
ately lay  hands  upon  the  plaintiff."  A  man  may 
justify  a  battery  in  defence  of  his  personal  prop- 
erty without  a  previous  request,  if  another  forci- 
bly attempt  to  take  away  such  property.* 

4.  As  a  means  of  preserving  the  peace,  in 
ihe  exercise  of  an  office,  under  process  of 
court,  and  in  aid  of  an  authority  at  law.  See 
Arrest,  below. 

Bawdy  Houses  are  houses  of  ill-fame,  kept 
for  the  resort  and  unlawful  commerce  of  lewd 
people  of  both  sexes.  It  must  be  reputed  of 
ill-fame ;J  it  may  be  a  single  room;*  but  more 
than  one  woman  must  live  and  resort  there.' 
It  need  not  be  kept  for  lucre.™  Such  a  house 
is  a  common  nuisance,"  and  the  keeper  may  be 
indicted ;  and,  if  a  married  woman,  either  alone 
or  with  her  husband."  One  who  assists  in 
establishing  such  a  house  is  guilty  of  an  indict- 
able misdemeanor ,P  including  a  lessor  who  has 
knowledge.^  A  charge  of  keeping  a  bawdy 
house  is  actionable,  because  it  is  an  offence 
which  is  indictable  at  common  law  as  a  com- 
mon nuisance,  and  clearly  involves  moral  tur- 
pitude.'    See  Brothel,  below. 

Bigamy  is  the  wilfully  contracting  a  second 
marriage,  when  the  contracting  party  knows 
that  a  first  is  subsisting — the  state  of  a  man  hav- 
ing two  wives,  or  of  a  woman  having  two  hus- 
bands, living  at  the  same  time.  When  the 
man  has  more  than  two  wives,  or  the  woman 
more  than  two  husbands,  living  at  the  same 
time,  then  the  party  is  said  to  have  committed 
polygamy;  but  the  name  of  bigamy  is  more 
frequently  given  to  this  offence  in  legal  pro- 
ceedings." If  a  woman  who  has  a  husband 
living  marries  another  person,  she  is  punish- 
able, though  her'husband  has  voluntarily  with- 
drawn from  her,  and  remained  absent  and  un- 
heard of  for  any  term  of  lime  less  than  seven 
years,  and  though  she  honestly  believes,  at  the 
time  of  her  second  marriage,  that  he  is  dead.* 
On  trial  of  a  woman  for  bigamy,  whose  first 
husband  had  been  absent  from  her  for  more 
than  seven  years,  the  jury  found  that  they  had 
no  evidence  at  the  time  of  her  second  marriage 
she  knew  that  he  was  alive,  but  that  she  had 
means  of  acquiring  knowledge  of  that  fact,  had 
she  chosen  to  make  use  of  them.  It  was  held 
upon  this  finding  that  the  conviction  could  not 
be  supported."  If  a  man  is  prosecuted  for 
bigamy,  his  first  wife  cannot  be  called  to  prove 
her  marriage  with  the  defendant.^  Where  the 
first  marriage  was  made  abroad,  it  must  be 
shown  to  have  been  valid  when  made.''    Repu- 

f-8  T.  R.  78 ;  2  Met.  (Mass.)  23.  g-2  Salk.  641.  h- 
8  T.  R.  78.  1-2  Salk.  641 ;  see  7  Met  (Mass.)  596;  12 
Id,  482  ;  4  Cush.  608  ;  6  Cox  Cr.  Cas.  461.    j-17  Conn. 


467:  butsee  4CranchC.  C.  338,  372.  k-i  Salk.  382  ;  2 
La.  Raym.  1197.  1-s  Ired.  603.  nfl-21  N.  H.  435  ;  2 
Gray,  357;    18  Vt.  70.     n-i  Russ.  Cr.  299  ;    Bac.   Abr. 


Nuisances.      O-i   Met.  Mass.  151.     p-2   B.  Mon.  417. 
q-3Pick.  26;  6  Gill,  425.     r-13  Johns.  275;  5  M.  &  W. 


149.    s-i  Russ.  Cr.  187.     t-j 


(Mass.)  472,     u-i 


tation  is  not  sufficient  to  establi.sh  the  fact  of  th 
first  marriage."     If  the  second  marriage  be 
a  foreign  State,  it  is  not  bigamy,'  except 
statute.*     The   second  marriage  is  not  neces- 
sarily valid.' 

The  punishment  of  this  offence  varies  in  the 
different  States. 

Bills  of  Indictment  are  written  accusa- 
tions of  one  or  more  persons  of  a  crime  or 
misdemeanor,  lawfully  presented  to  a  grand 
jury.  If  twelve  or  more  members  of  the  jury 
are  satisfied  that  the  accused  ought  to  be  tried, 
the  return  is  made,  "  A  true  bill ;"  but  when 
no  sufficient  ground  is  shown  for  putting  the 
accused  on  trial,  a  return  is  made,  "  Not 
found,"  "Not  a  true  bill,"  or  "  Ignoramus."* 
See  Accusation,  above. 

Bill  of  Pains  and  Penalties  is  a  special 
act  of  the  legislature  which  inflicts  a  punish- 
ment less  than  death  upon  persons  supposed  to 
be  guilty  of  high  offences,  such  as  treason  and 
felony,  without  any  conviction  in  the  ordinary 
course  of  judicial  proceedings."  It  differs 
from  a  bill  of  attainder  in  this,  that  the  punish- 
ment inflicted  by  the  latter  is  death.  It  has 
been  thought  by  some  that  the  clause  in  the 
federal  constitution  prohibiting  bills  of  at- 
tainder includes  bills  of  pains  and  penalties.** 

Blasphemy  consists  of  speaking  evil  of  the 
Deity  with  an  impious  purpose  to  derogate 
from  the  divine  majesty,  and  to  alienate  the 
minds  of  others  from  the  reverence  of  God. 
It  is  purposely  using  words  concerning  God 
calculated  and  designed  to  impair  and  destroy 
the  reverence,  respect,  and  confidence  due  to 
him  as  the  intelligent  Creator,  ruler,  and  judge 
of  the  world.  It  embraces  the  idea  of  detrac- 
tion, when  used  towards  the  Supreme  Being; 
as  "  calumny  "  usually  carries  the  same  idea 
when  applied  to  an  individual.  It  is  a  wilful 
and  malicious  attempt  to  lessen  men's  rever- 
ence of  God  by  denying  his  existence,  or  his 
attributes  as  an  intelligent  Creator,  governor, 
and  judge  of  men,  and  to  prevent  their  having 
confidence  in  him  as  such.* 

The  statutes  of  the  different  States  enacted 
against  this  offence  are  not  understood  in 
all  cases  to  have  abrogated  the  common  law ; 
the  rule  being  that  where  the  statute  does  not 
vary  the  class  or  character  of  an  offence,  but 
only  authorizes  a  particular  mode  of  proceed- 
ing and  of  punishment,  the  sanction  is  cumula- 
tive, and  the  common  law  is  not  taken  away. 
Neither  these  statutes  nor  the  common  lew 
doctrine  is  repugnant  to  the  constitutions  of 
those  States  in  which  the  question  has  arisen.' 

Breaking  Bulk.  This  doctrine  proceeds 
upon  the  ground  of  a  determination  of   the 

Dearsl.  &  B.  Cr.  Cas.  98.  T-T.  Raym.  1 ;  2  Taylor  Ev. 
J  1228.  nr-5  Mich.  340.  x-i  Park.  Cr.  Cas.  378 ;  see 
13  Ired.  289.  y-2  Park  Cr.  Cas.  105.  85-36  Eng.  L.  & 
Eq.  614.  a-i  Carr  &  K.  144.  b-See  11  Cush.  473;  13 
N.  H.  488;  5  Me.  432,  Bennett's  note.  C-2  Wooddeson 
Sect.  625.  d-6  Cranch.  138  ;  Story  Const.  ?  1338.  ©- 
Per  Shaw,  C.J. ;  20  Pick.  211,  212  ;  see  Evlyn's  Pref. 
to  Vol.  8,  St.  Tr.;  20  Pick.  244.  f-Heard  Lib.  &  S.  } 
343;  20  Pick.  206;  n  S.  &  R.  394;  8  Johns.  290;  4 
Sandf.  156;  2  Harriog.  553;  a  How.  127. 


m 


LAW. 


purity  of  the  bailment  by  the  wrongful  act  of 
the  bailee.  Thus,  where  a  carrier  has  agreed 
to  carry  certain  bales  of  goods  which  were  de- 
livered to  him,  to  Southampton,  but  carried 
them  to  another  place,  broke  open  the  bales, 
took  the  goods  contained  in  them  feloniously, 
and  converted  them  to  his  own  use,  the  ma- 
jority of  the  judges  held  that  if  the  party  had 
•old  the  entire  bales  it  would  not  have  been 
felony  ;  "  but  as  he  broke  them,  and  took  what 
was  in  them,  he  did  it  without  warrant,"  and 
was  so  guilty  of  a  felony.*  If  a  miller  steals 
part  of  the  meal,  "  although  the  corn  was  given 
to  him  to  grind,  nevertheless  if  he  steal  it,  it  is 
a  felony,  being  taken  from  the  rest."*" 

Breaking  Doors.     See  Arrest,  above. 

Bribery  is  the  (giving  or)  receiving  or 
offering  any  undue  reward  by  or  to  any  person 
whomsoever,  whose  ordinary  profession  or 
business  relates  to  the  administration  of  public 
justice  (as  well  as  all  other  officers),  in  order 
to  influence  his  behavior  in  office,  and  to  in- 
duce him  to  act  contrary  to  his  duty,  and  the 
known  rules  of  honesty  and  integrity.'  An 
attempt  to  bribe,  though  unsuccessful,  has  been 
holden  to  be  criminal,  and  the  offender  may  be 
indicted.^ 

Brothel  is  a  bawdy  house;  a  common 
habitation  of  prostitutes.  Such  places  have 
always  been  deemed  common  nuisances.  For 
a  history  of  these  pernicious  places,'' 

Buggery.    See  Sodomy,  below. 

Burglary  is  the  breaking  and  entering  the 
house  of  another  in  the  night  time,  with  intent 
to  commit  a  felony  therein,  whether  the  felony 
be  actually  committed  or  not.' 

1,  To  be  burglary  the  breaking  and  entry 
must  be  felonious ;  if  a  felony,  however,  be 
committed,  the  act  will  be  prima  facie  evi- 
dence of  an  intent  to  commit  it.™  If  the 
breaking  and  entry  be  with  an  intention  to 
commit  a  trespass,  or  other  misdemeanor,  and 
nothing  further  is  done,  the  offence  will  not  be 
burglary." 

2.  To  be  burglary,  there  must  be  both  a 
breaking  and  an  entry,  or  an  exit.  An  actual 
breaking  takes  place  when  the  burglar  breaks  or 
removes  any  part  of  the  house  or  the  fastenings 
provided  for  it,  with  violence.'  Breaking  a 
window,  taking  a  pane  of  glass  out,  by  break- 
ing or  bending  the  nails  or  other  fastenings  ;P 
cutting  and  tearing  down  a  netting  of  twine 

lf-13  Edw.  IV,  Fol.  0.  h-Rolle  Abr.  73,  PI.  16 ;  i 
Pick.  375.      1-Co.   3d  Inst.  149;    i    Hawk.  PI.  Cr.  Ch. 


67,2  a;  4  Bl.  Comm.  139;  i  Russ.  Cr.  156.  I-2  Dall. 
384;  4  Burr.  2500;  Co.  3d  Inst.  147;  2  Campb.  229;  2 
Wash.  88;    i  Va.  Cas.  138;    2  Id.  460.      k-See  Merlin 


Repert ;  Bordtl :  Parent  Duchatellet ;  De  La  Prosti- 
iiUion  dans  la  Ltgislation  sur  ies  Fent-nies  Publiques, 
ftc.por  M.  Sabatier.  I-Co.  3d  Inst.  63;  1  Hale  PI.  Cr. 
549;  1  Hawk.  PI.  Cr.  Ch.  38,  g  124  ;  Bl.  Comm.  224;  2 
Ea«t..  PI.  Cr.  Ch.  15,  §  i,  p.  484  ;  2  Russ.  Cr.  2  ;  Rose. 
Cr.  Ev.  252 ;  1  Coxe,  441 ;  7  Mass.  247.     m-i  Gabbett 


Cr.  L.  192.  11-7  Mass.  245  ;  16  Vt.  551  ;  i  Hale  PI.  Cr. 
560;  East.  PI.  Cr.  509,  514,  515  ;  2  Russell  Cr.  33.  O-i 
Bishop  Cr.  L.  g  190.      p-i   C.  &  P.  300;    9  Id.  44  ;    i 


Russ.  &  R.  341,  499;  I  Leach  Cr.  Cas.  406.  q-8  Pick. 
354.  384-  r-»  Strange,  481  ;  8  C.  &  P.  747  ;  Coxe,  439  ; 
jHiU,  336;  4  Id.  437;  25  Me.  500.  »-i  Russ.  &  K. 
■J5S»  45''      t-»  Mood.  Cr.  Cas.  377;    but  see  4  Carr.  & 


nailed  over  an  open  window  ;"i  raising  a  latclv 
when  the  door  is  not  otherwise  fastened  f 
picking  open  a  lock  with  a  false  key ;  putting 
back  the  lock  of  a  door,  or  the  fastening  of  a 
window,  with  an  instrument  *  lowering  a  win- 
dow fastened  only  by  a  wedge  or  weight;* 
turning  the  key  when  the  door  is  locked  on 
the  inside,  or  unloosening  any  other  fastening 
which  the  owner  has  provided ;  lifting  a  trap 
door;'  are  several  instances  of  actual  breaking," 
Constructive  breakings  occur  when  the  burglar 
gains  an  entry  by  fraud ;'  by  conspiracy ;  or 
threats."  The  breaking  of  an  inner  door  of 
the  house  will  be  sufficient  to  constitute  a 
burglary.*  And  even  the  least  entry,  with  the 
whole  or  any  part  of  the  body,  hand,  or  foot, 
or  with  any  instrument  or  weapon  introduced 
for  the  purpose  of  committing  a  felony,  will  be 
sufficient  to  constitute  the  offence.'  But  the 
introduction  of  an  instrument  in  the  act  of 
breaking  the  house  will  not  be  sufficient  entry, 
unless  it  be  introduced  for  the  purpose  of  com- 
mitting a  felony.*  The  whole  physical  frame 
need  not  pass  within.* 

3.  To  be  burglary,  it  must,  in  general,  be 
committed  in  a  mansion  or  dwelling-house, 
actually  occupied  as  a  dwelling;  but  if  it  be 
left  by  the  owner  with  an  intention  of  return- 
ing, though  no  person  resides  in  it  in  his  ab- 
sence, it  is  still  his  mansion  or  residence.* 
But  burglary  may  be  committed  in  a  church  at 
common  law,**  or  in  a  store,  warehouse,  barn, 
ve.ssel,  or  railway  coach  or  car.  It  must  be  in 
the  dwelling,  etc.,  of  another  person." 

4,  To  be  burglary,  the  offence  must  be  com- 
mitted in  the  night ;  for  in  daytime  there  can  be 
no  burglary.*  For  this  purpose  it  is  deemed  night, 
when  by  the  light  of  the  sun  a  person  cannot 
clearly  discern  the  face  or  countenance  of  an- 
other,* This  rule  does  not  apply  to  moonlight.' 
The  breaking  and  entering  need  not  be  done 
the  same  night,*  but  it  is  necessary  the  break- 
ing and  entering  should  be  in  the  night-time; 
for  if  the  breaking  be  in  daylight,  and  the 
entering  be  in  the  night,  or  vice  versa,  it  will 
not  be  burglary."* 

Calendar  is  a  record  containing  a  list  of 
prisonere,  their  names,  the  time  when  they 
were  committed,  and  by  whom,  and  the  cause 
and  time  of  their  commitments, 

Capax  Doli,  When  one  has  sufficient  mind 
and  understanding  to  be  made  responsible  for 

&  P.  231.  a-i  Mass.  476.  v-i  Crawf.  &  D.  Cr.  Cas.  20a; 
Hob.  62  ;  18  Ohio,  308  ;  9  Ired.  463.  W-i  Russ.  Cr. 
(Graves  Ed.)  792;  2  Id.  2  ;  2  Chitty  Cr.  L.  1093.  x-x 
Hale  PI.  Cr.  553  ;  i  Strange,  481 ,  8  C.  &  P.  747;  i  HiU 
&  D.  63 ;  2  Bishop  Cr.  L.  g  84.  y-Co.  3d  lust  64  ;  4 
Bl.  Comm.  227;  Bac.  Ahr.  Burg'Utrjr  (B);  Com.  Dig. 
yustt'res  (P.  4.)  «-i  Leach  Cr.  Cas.  (4th  Ed.)  406;  i 
Mood.  Cr.  Cas.  183;  i  Gabbett  Cr.  L.  174.  x-i  Bishop 
Cr.  L.  gg  81-83 ;  I  Gabbett  Cr.  L.  176.  a-Fost  77;  3 
Rawle,  207  ;  10  Cush.  478.  b-3  Cox  Cr.  Cas.  581  ;  Co, 
3d  Inst.  64.  C-i  Bishop  Cr.  L.  801 ;  2  East.  PI.  Cr. 
502.  (1-4  Bl.  Comm.  224;  I  C.  &iv.  77;  16  Conn,  vf 
10  N.  H.  105.     e-i  Hale  PI.  Cr.  550;    Co.  3d  Inst.  63; 

1  C.  &  P.  297;    7  Dane  Abr.  134.      f-4  Bl.  Comm.  224; 

2  Russ.  Cr.  32  :  10  N.  H.  105  ;  6  Miss.  20;  see  2  Cush. 
582.  K-i  Russ.  &  R.  417.  h-i  Hale  PI.  Cr.  $51 ;  » 
Russ.  Cr.  32  ;  but  see  W  ilmot  Burg.  9 ;  Coil.  Dig.  .JW- 
tices  (P  2) ;  a  Chitty  Cr.  L.  1093, 


LAW. 


493 


hU  actions,  he  is  deemed  capax  doli  (capable 
of  committing  crime.) 

Carnal  Knowledge  is  sexual  connection ; 
this  term  is  generally,  if  not  exclusively,  ap- 
plied to  the  act  of  the  male.  The  term  "  car- 
nally knew,"  is  a  technical  phrase  essential  in 
an  indictment  to  charge  the  defendant  with  the 
crime  of  rape.  No  other  words,  nor  circum- 
locution will  answer,'  their  omission  renders 
the  indictment  bad  on  demurrer,  but  is  cured 
by  a  verdict.! 

Carrying  Away  is  such  a  removal  of,  or 
taking  into  possession,  personal  property  as  is 
required  in  order  to  constitute  the  crime  of 
larceny.  Any  removal,  however  slight,  of 
the  entire  article,  which  is  not  attached  either 
to  the  soil  or  to  any  other  thing  not  removed, 
is  sufficient,'^  thus,  to  snatch  a  diamond  from  a 
lady's  ear,  which  is  instantly  dropped  among 
the  curls  of  her  hair ;'  to  remove  sheets  from  a 
bed  and  carry  them  into  an  adjoining  room ;™ 
to  take  plate  from  a  trunk,  and  lay  it  on  the 
floor  with  intent  to  carry  it  away ;°  to  remove 
a  package  from  one  part  of  a  wagon  to  another, 
with  a  view  to  steal  it ;°  have  respectively  been 
holden  to  be  felonies.  But  nothing  less  than 
such  a  severance  will  be  sufficient.P 

Castration  is  the  act  of  gelding.  When 
this  act  is  maliciously  performed  upon  a  man,  it 
is  a  mayhem,  and  punishable  as  such,  although 
the  sufferer  consented  to  it ;'  the  punishment  is, 
generally,  fine  and  imprisonment.  By  the 
ancient  law  of  England  the  crime  was  pun- 
ished by  retaliation — member  for  member.'  Cy 
the  civil  law  the  punishment  was  by  death.' 
The  consequences  of  castration,  when  com- 
plete, are  impotence  and  sterility.* 

Challenge  is  a  request  by  one  person  to  an- 
other to  fight  a  duel.  It  may  be  oral  or  written." 
Sending  a  challenge  is  a  high  offence  at  common 
law,  and  indictable  as  tending  to  a  breach  of 
the  peace.'  He  who  carries  a  challenge  is  also 
punishable  by  indictment."  In  most  States  this 
practice  is  punishable  by  special  laws.* 

Chance-medley  is  a  sudden  affray;  this 
word  is  sometimes  applied  to  any  kind  of 
homicide  by  misadventure,  but  in  strictness  is 
applicable  to  such  killing  only  as  happens  in 
defending  one's  self.' 

Character.     See  title  Evidence,  ante. 

Charge.  See  Accusation;  Bill  of  In- 
dictment, above. 

Chastity  is  that  virtue  which  prevents  the 
unlawful  commerce  of  the  sexes.  Sending  a 
letter  to  a  married  woman,  soliciting  her  to 
commit  adultery,  is  an  indictable  offence."    So- 

l-Com.  TtXi.  Indictment;  i  Hal.  PI.  Cr.  612  ;  i  Chitty 
Cr.  L.  243  ;  Co.  Litt.  137.  J-i  Russ.  Cr.  Cas.  686;  i 
East.  PI.  Cr.  448.  It-2  Bisfiop  Cr.  L.  §  699  ;  i  Mood. 
Cr.  Cas.  14  ;  i  Dearsl.  Cr.  Cas.  421  ;  Coxe,  439.  l-i 
Leach  Cr.  Cas.  320.  m-i  Leach  Cr.  Cas.  222,  n.  n- 
Id.  O-i  Leach  Cr.  Cas.  2^6.  p-2  East.  PI.  Cr.  556;  i 
Leach  Cr.  Cas.  (4th  Ed.)  236,  32T  ;  i  Hall  PI.  Cr.  508  ; 
I  Ry.  &  M.  Cr.  Cas.  14 ;  4  Sharsw.  BI.  Comra.  211  ;  2 
Russ.  Cr.  96.  q-a  Bishop.  Cr.  L.  J?  842, 847.  r-Co.  3d 
Inst.  118.  s-Dig.  48, 8,  4,  2.  t-BeclcMed.  Jur.  72.  u- 
6  Blackf.  20.  v-Hawk.  PI.  Cr.  B.  i,  Ch.  3,  J  3 ;  3  East. 
581 ;  6  Id.  464  ;  i  Dana.  524  ;  i  South.  40  ;  3  M'Cord, 
234:  I  Const.  107;  I  Hawks.  487;  2  Ala.  yA;  6Biackf. 


licitation  of  chastity  is  in  some  States  an  in- 
dictable offence.  Words  charging  a  woman 
with  a  violation  of  chastity  are  actionable  in 
themselves,  because  they  charge  her  with  a 
crime  punishable  by  law,  and  of  a  character 
calculated  to  degrade,  disgrace,  and  exclude 
her  from  society.'  A  woman  may  defend  her 
chastity  by  killing  her  assailant.  See  Self- 
defence,  below. 

Cheat  is  deceitful  practices  in  defrauding 
or  endeavoring  to  defraud  another  of  his 
known  right,  by  some  wilful  device,  contrary 
to  the  plain  rules  of  common  honesty.*'  It  is 
the  fraudulent  obtaining  of  the  property  of  an- 
other by  any  deceitful  and  illegal  practice  or 
token  (short  of  felony)  which  affects  or  may 
affect  the  public.  In  order  to  constitute  a 
cheat  or  indictable  fraud,  there  must  be  a 
prejudice  or  injury  received;  and  such  injury 
must  affect  the  public  welfare,  or  have  a  tend- 
ency so  to  do."  A  cheat,  in  order  to  be  in- 
dictable at  common  law,  must  have  been  prob- 
able in  its  nature,  by  being  calculated  to  de- 
fraud numbers,  or  to  deceive  or  injure  the 
public  in  general,  or  by  affecting  the  public 
trade  or  revenue,  the  public  health,  or  being  in 
fraud  of  public  justice,  etc.  And  yet  cheats, 
apparently  private,  have  been  held  to  be  in- 
dictable at  common  law,  it  appearing  upon  ex- 
amination to  involve  considerations  of  a  public 
nature,  or  founded  in  conspiracy  or  by  forgery. 
Thus,  it  is  not  (unless  so  provided  by  statute) 
indictable  for  a  man  to  obtain  goods  by  false 
verbal  representations  of  his  credit  in  society, 
and  of  his  ability  to  pay  for  them,*  or  to 
violate  his  contract,  however  fraudulently  it  be 
broken,*  or  fraudulently  to  deliver  a  less  quan- 
tity of  amber  than  was  contracted  for  and 
represented,'  or  to  receive  good  barley  to 
grind,  and  to  return  instead  a  musty  mixture 
of  barley  and  oatmeal.* 

To  cheat  a  man  of  his  money  or  goods,  by 
using  false  weights  or  false  measures,  has 
been  indictable  at  common  law  from  time  im- 
memorial.* 

Coercion.  Direct  or  positive  coercion  takes 
place  when  a  man  is  by  physical  force  com- 
pelled to  do  an  act  contrary  to  his  will.  Im- 
plied coercion  exists  where  a  person  is  legally 
under  subjection  to  another,  and  is  induced  in 
consequence  of  such  subjection  to  do  an  act 
contrary  to  his  will. 

As  will  is  necessary  to  the  commission  of  a 
crime,  or  the  making  of  a  contract,  a  person 
coerced  into  either  has  no  will  on  the  subject, 
and  is  not  responsible.*     The  command  of  a 

20  ;  9  Leigh,  603  ;  3  Rog.  133 ;  3  Wheeler  Cr.  Cas.  245. 
\f--i  Cranch  C.  C.  178.  X-2  Bishop  Cr.  L.  22270-273. 
y-4  Bl.  Comm.  184.  «-7  Conn.  266;  »ee  14  Penn,  St. 
226.  a-7  Conn.  707;  8  Pick.  384  ;  5  Gray,  2,  5;  a  N. 
H.  194  ;  Heard  Lib.  &  Sland.  ?  36.  b-Hawkins  PI.  Cr. 
B.  2,  Ch.  23,  2  I.  C-2  East.  PI.  Cr.  817 ;  1  Gabb.  Cr. 
L.  199  ;  I  Deacon  Cr.  L.  225.  d-6  Mass.  72.  e-i  Maas. 
137.  f-2  Burr.  1125;  I  W.  Bl.  273^  K-4  M.  &  S.  214. 
h-i  Gabbett  Cr.  L.  201 ;  3  Greenl.  Ev.^  86 ;  6  Mass.  72. 
l-i  East.  PI.  Cr.  225  ;  S  Blackf.  73  ;  2  Dall.  86  ;  5  Q.  B. 
279  ;  I  Dav.  &  M.  367.  The  law  upon  the  responsibility 
of  married  women  for  crime  is  fully  stated  in  x  Bvnnett 
&  H.  Lead.  Cr.  Cas.  76-87. . 


494 


LAW. 


superior  to  an  inferior ,J  of  a  parent  to  a  child,'' 
or  a  master  to  his  servant,  or  a  principal  to  his 
agent,'  may  amount  to  coercion. 

As  to  persons  acting  under  the  constraint  of 
superior  power,  and,  therefore,  not  criminally 
amenable,  the  principal  case  is  that  of  a  mar- 
ried woman,  with  respect  to  whom  the  law 
recognizes  certain  presumptions :  thus,  if  a  wife 
commits  a  felony,  other  than  treason  or  homi- 
cide, or,  perhaps,  highway  robbery,  in  company 
with  her  husband,  the  law  presumes  that  she 
acted  under  his  coercion,  and,  consequently, 
without  any  guilty  intent,  unless  the  fact  of 
non-coercion  is  distinctly  proved.™  This  pre- 
sumption appears,  on  some  occasions,  to  have 
been  conclusive,  and  is  still  practically  regarded 
in  no  very  different  light,  especially  where 
the  crime  is  of  a  flagrant  character;  but  the 
better  opinion  seems  to  be  that  in  every  case 
the  presumption  may  be  rebutted  by  positive 
proof  that  the  woman  acted  as  a  free  agent.* 
And  a  married  woman  cannot  be  convicted 
under  any  circumstances  as  a  receiver  of  stolen 
goods,  when  the  property  has  been  taken  by 
her  husband,  and  given  to  her  by  him." 

Whether  the  doctrine  of  coercion  extends  to 
any  misdemeanor  may  admit  of  some  doubt ; 
but  the  better  opinion  seems  to  be  that,  pro- 
vided the  misdemeanor  is  of  a  serious  nature, 
as,  for  example,  the  uttering  of  base  coin,  the 
wife  will  be  protected  in  like  manner  as  in 
cases  of  felony;  although  it  has  been  distinctly 
held  that  the  protection  does  not  extend  to 
assaults  and  batteries,  or  to  the  offence  of  keep- 
ing a  brothel.o  It  is  probable  that  in  all  inferior 
misdemeanors  this  presumption,  if  admitted  at 
all,  would  be  held  liable  to  be  defeated  by  far 
less  stringent  evidence  of  the  wife's  active  co- 
operation than  would  suffice  in  cases  of  felony. p 
For  the  law  upon  the  responsibility  of  married 
women  for  crime." 

Common  Scold  is  one  who  by  practice  of 
frequent  scolding  disturbs  the  neighborhood. i 
The  offence  of  being  a  common  scold  is  cog- 
nizable at  common  law.  It  is  a  particular  form 
of  nuisance,  and  was  punishable  by  the  duck- 
ing-stool at  common  law ;  but  this  punishment 
is  substituted  by  fine  and  imprisonment.'' 

Complaint  is  an  accusation  made  to  a 
proper  officer  that  some  person,  whether  known 
or  unknown,  has  been  guilty  of  a  designated 
offence,  with  an  offer  to  prove  the  fact,  and  a 
request  that  the  offender  may  be  punished.  It 
is  also  a  technical  term,  descriptive  of  pro- 
ceedings before  a  magistrate.*  To  have  a  legal 
effect  the  complaint  must  be  supported  by  such 
evidence  as  shows   that  an  offence  has  been 

j-i  Wash.  C.  C.  209,  22o;  12  Met.  (Mass.)  56;  1 
Bfatch.  C.  C.  549;  13  How.  115.  It-Broom  Max.  (2d 
Ed.)  II.  I-13M0.  246;  14  Id.  137,  340  ;  3Cush.  27p; 
II  Met.  (Mass.)  66  ;  5  Miss.  304  ;  14  Ala.  365  ;  22  Vt. 
32  :  2  Denio,  341  ;  14  Johns.  119.  in-See  2  Carr.  &  K. 
887,  901 ;  Jebb.  Cr.  Cas.  93.  x-See  Jebb.  Cr.  Cas.  93  ; 
1  Mood.  Cr.  Cas.  1143.      n-i   Dears!.  Cr.  Cas.  if 


Denio  Cr.  Cas.  306.  0-2  Lew.  Cr.  Cas.  229;  8  C.  &  P. 
10,  541  ;  2  Moocl.  Cr.  Cas.  384;  10  Mod.  63;  i  Met. 
jMass.)  15T  ;  10  Mass.  152.  p-8  C.  &  P.  541 ;  2  Mood. 
Cr.  Cas.  53;  1  Taylor  Ev.  152.  x-i  Bennett  &  H. 
Leading  Cr .  Cas.  76-87.     q-Bishop  Cr.  L.  i  147.     r-12 


committed,  and  renders  it  certain  or  probable 
that  it  was  committed  by  the  person  named  or 
described  in  the  complaint. 

The  general  and  specific  requisites  of  a 
complaint  are  stated  at  length  under  the  title 
Accusation,  above.  See  Examination,  be- 
low. 

Compounding  a  felony  is  the  act  of  the 
party  immediately  aggrieved,  or  of  the  officer  in 
charge  of  the  prosecution,  who  agrees  with  the 
thief  or  other  felon  that  he  will  not  prosecute 
him,  on  condition  that  he  return  to  him  the 
goods  stolen,  or  who  takes  a  reward  not  to 
prosecute.  This  is  an  offence  punishable  by 
fine  or  imprisonment,  or  both,  and  at  common 
law  rendered  the  person  committing  it  an  acces- 
sory.* A  failure  to  prosecute  for  an  assault 
with  an  intent  to  kill  is  not  compounding  a 
felony."  The  accepting  of  a  promissory  nole, 
signed  by  a  party  guilty  of  a  larceny,  as  a  con- 
sideration for  not  prosecuting,  is  sufficient  to 
constitute  the  offence.*  The  mere  retaking  by 
the  owner  of  stolen  goods  is  no  offence,  unless 
the  offender  is  not  to  be  prosecuted.* 

The  compounding  a  felony  is  an  indictable 
offence,  and  no  action  can  be  supported  in  any 
contract  of  which  such  offence  is  the  considera- 
tion in  whole  or  in  part." 

Compounding  of  misdemeanors  is  also  a 
perversion  or  defeating  of  public  justice,  and  is 
in  like  manner  an  indictable  offence  at  common 
law.*  But  the  law  will  permit  a  compromise 
of  any  offence,  though  made  the  subject  of  a 
criminal  prosecution,  for  which  the  injured 
party  might  recover  damages  in  a  civil  action. 
But  if  the  offence  is  of  a  public  nature,  no 
agreement  can  be  valid  that  is  founded  on  the 
consideration  of  stifling  a  prosecution  for  hj 
A  receipt  in  full  of  all  demands  given  on  con- 
sideration of  stifling  a  criminal  prosecution  is 
void.* 

Confederacy  is  an  agreement  between  two 
or  more  persons  to  do  an  unlawful  act,  or  an 
act  which,  though  not  unlawful  in  itself,  be- 
comes so  by  the  confederacy.  The  technical 
term  usually  employed  to  signify  this  offence  is 
conspiracy. 

Confession.     See  title  Evidence,  ante. 

Conspiracy  is  a  combination  of  two  or  more 
persons  by  some  concerted  action  to  accomplish 
some  criminal  or  unlawful  purpose,  or  to  ac- 
complish some  purpose,  not  in  itself  criminal 
or  unlawful,  by  criminal  or  unlawful  means.' 
The  terms  "  criminal "  and  "  unlawful "  are 
used  because  it  is  manifest  that  many  acts  are 
unlawful  which  are  not  punishable  by  indict- 
ment or  other  public  prosecution,  and  yet  there 

S.  &  R.  220;  3  Cranch,  620;  see  i  T.  R.  748;  6 
Mod.  II ;  4  Roe.  90;  i  Russ.  Cr.  302  ;  Roscoe  Cr.  Ev. 
665.  8-11  Pick.  436.  t-Hawkins  PI.  Cr.  125.  11-20 
Ala.  (N.  S.)  628.  V-16  Mass.  91.  w-Hale  PI.  Cr.  546; 
I  Chitty  Cr.  L.  4.  X-16  Mass.  91  ;  18  Pick.  440;  5  Vt. 
42;  9  id.  23;  5  N.  H.  553;  2  South.  578;  t3'Wend. 
592  ;  6  Dana,  338.  x-18  Pick.  440.  y^  Q.  B.  308;  9 
Id.  371 ;  2  Bennett  &  H.  Lead.  Cr.  Cas.  258,  262.  z-ii 
Vt.  252.  a-2  Mass.  337,  538  ;  4  Met.  (Mass.)  in  ;  4 
Wend.  229;  15  N.  H.  396;  5  Harr.  &  J.  317;  3  S.  & 
R.  22o;  13  Conn.  loi;  11  Clark  &  F.  Ho.  L.  155;  4 
Mich.  414. 


LAW. 


495 


is  no  doubt  that  a  combination  by  numbers  to 
do  them  is  an  unlawful  conspiracy,  and  pun- 
ishable by  indictment.''  Of  this  character  was 
a  conspiracy  to  cheat  by  false  pretences  without 
false  tokens,  when  a  cheat  by  false  pretences 
only,  by  a  single  person,  was  not  a  punishable 
oflfence."  So  a  combination  to  destroy  the 
reputation  of  an  individual  by  verbal  calumny, 
which  is  not  indictable.*  So,  a  conspiracy  to  in- 
duce and  persuade  a  young  female,  by  false  pre- 
tensions, to  leave  the  protection  of  her  parents' 
house,  with  a  view  to  facilitate  her  prostitution.' 
So,  a  conspiracy  by  false  and  fraudulent  repre- 
sentations that  a  horse  bought  by  one  of  the 
defendants  from  the  prosecutor  was  unsound, 
to  induce  him  to  accept  a  less  sum  for  the 
horse  than  the  agreed  price.'  So,  a  conspiracy 
by  traders  to  dispose  of  their  goods  in  contem- 
plation of  bankruptcy,  with  intent  to  defraud 
their  creditors.* 

A  combination  to  go  into  a  theatre  to  hiss  an 
actor ;''  to  indict  for  the  purpose  of  extorting 
money;'  to  charge  a  person  with  being  the 
father  of  a  bastard  child  ;J  to  coerce  journeymen 
to  demand  a  higher  rate  of  wages  ;■'  to  charge 
a  person  with  poisoning  another;*  to  effect  the 
price  of  public  stocks  by  false  rumors;"  to 
prevent  competition  at  an  auction  ;■  have  each 
been  held  indictable. 

In  order  to  render  the  offence  complete,  it  is 
not  necessary  that  any  act  should  be  done  in 
pursuance  of  the  unlawful  agreement  entered 
into  between  the  parties,  or  that  any  one  should 
have  been  defrauded  or  injured  by  it;  the  con- 
spiracy is  the  gist  of  the  crime." 

A  wilful  and  corrupt  conspiracy  to  cast  away, 
bum,  or  otherwise  destroy  any  ship  or  vessel, 
with  intent  to  injure  any  underwriter  thereon, 
or  the  goods  on  board  thereof,  or  any  lender 
of  money  on  such  vessel  on  bottomry  or  re- 
spondentia, is  a  felony,  and  the  offender  pun- 
ishable by  fine,  not  exceeding  ten  thousand 
dollars,  and  by  imprisonment  and  confinement 
at  hard  labor  not  exceeding  ten  years.P 

Contagious  Disorders  are  those  diseases 
which  are  capable  of  being  transmitted  by 
mediate  or  immediate  contact.  Persons  sick 
of  such  disorders  may  remain  in  their  own 
houses,<i  but  are  indictable  for  exposing  them- 
selves in  a  public  place,  endangering  the  pub- 
lic' Nuisances  which  produce  such  diseases 
may  be  abated.* 

Conviction  is  that  legal  proceeding  of  record 

l>-i2  Conn,  loi ;  15  N.  H.  396;  t  Mich.  216;  Dearsl. 
Cr.  Cas.  337;  II  Q.  B.  245;  9  Penn.  St.  24;  8  Rich. 
7a  ;  I  Dev.  3S7.  C-ii  Q.  B.  245.  d-Per  Shaw,  C.  J.; 
4  Met.  (Mass.)  123.  e-s  W.  &  S.  461  ;  2  Denio  Cr. 
Cas.  79 ;  see  5  Rand.  627 ;  6  Ala.  (N.  S.)  765 :  2  Yeates, 
114.  f-i  Dearsl.  Cr.  Cas.  337.  jf-i  Fost.  &  F.  Cr.  Cas. 
33.  I1-2  Campb.  369 ;  6  T.  R.  628.  i-4  B.  &  C.  329. 
i-i  Salk.  174.  It-6  T.  R.  619;  14  Wend.  o.  1-F. 
Moore,  816.  in-3  M.  &  S.  67.  n-6  C.  &  P.  0-2 
Mass.  337,  538;  6  Id.  74;  7  Cush.  514;  3  S.  &  R.  220; 
8  Id.  420:  23  Penn.  St.  355;  4  Wend.  259;  i  Halst. 
293 ;  3  Zabr.  33 ;  3  Ala.  360;  s  Harr.  &  J.  317;  but  see 
10  Vt.  353.  p-U.  S.  Stat.  1825,  c.  76,  §23:  3  Story 
Laws  U.  S.  2006.  q-2  Barb.  104.  r-See  4  Maule  &  S. 
73,  272.  S-I5  Wend.  397 :  see  4  M'Cord,  472;  2  Dougl. 
332;  I  Greene,  348  ;  3  Hill  (N.  Y.)479;  25  Penn.  St. 
503.      t-i  Caines,  72  ;    34  Me.  594;    16  Ark.  601.     u-i 

S9 


which  ascertains  the  guilt  of  the  party  and  upon 
which  the  sentence  or  judgment  is  founded. 
Summary  conviction  is  one  that  takes  place  before 
an  authorized  magistrate  or  court  without  the  in- 
tervention of  a  jury.  Conviction  must  precede 
judgment  or  sentence,*  but  is  not  necessarily 
followed  by  it."  Generally,  when  several  are 
charged  in  the  same  indictment,  a  part  may  be 
coBvicted  and  the  others  acquitted,'  but  not 
where  a  joint  offence  is  charged.*  A  person 
cannot  be  convicted  of  part  of  an  offence 
charged  in  an  indictment,  except  by  statute.* 
A  conviction  prevents  a  second  prosecution  for 
the  same  offence.y  Summary  convictions,  being 
obtained  by  proceedings  in  derogation  of  the 
common  law,  must  be  obtained  strictly  in  pur- 
suance of  the  provisions  of  statute;*  and  the 
record  must  show  fully  that  all  the  proper  steps 
have  been  taken,'  and  especially  that  the  court 
had  jurisdiction.'* 

Conviction  of  certain  crimes  when  accom- 
panied by  judgment  disqualifies  the  person 
convicted  as  a  witness,"  and  renders  him 
incapable  of  holding  any  office  of  trust  or 
profit. 

Cool  blood  is  the  condition  of  one  who  has 
the  calm,  deliberate,  and  undisturbed  use  of  his 
reason.  In  cases  of  homicide  it  frequently 
becomes  necessary  to  ascertain  whether  the  act 
of  the  person  killing  was  done  in  cool  blood  or 
not,  in  order  to  ascertain  the  degree  of  his 
guilt.* 

Cooling  time  is  the  time  for  passion  to  sub- 
side and  the  reason  to  interpose.  Cooling  time 
destroys  the  effect  of  provocation,  leaving  homi- 
cide murder  the  same  as  if  no  provocation  had 
been  given." 

Corpus  Delicti  (the  body  of  the  offence ; 
the  essence  of  the  crime).  It  is  a  general  rule 
not  to  convict  unless  the  corpus  delicti  can  be 
established,  that  is,  until  the  fact  that  the  crimp 
has  been  actually  perpetrated  has  been  first 
proved.  Hence,  on  a  charge  of  homicide  the 
accused  should  not  be  convicted  unless  the 
death  be  first  distinctly  proved,  either  by  direct 
evidence  of  the  fact,  or  by  in.spection  of  the 
body.'  Instances  have  occurred  of  a  person 
being  convicted  of  having  killed  another,  whc^ 
after  the  supposed  criminal  has  been  put  to 
death  for  the  proposed  offence,  has  made  his 
appearance  alive.  Hence  the  wisdom  of  the 
rule;  but  it  has  been  questioned  whether,  in 
extreme   cases,  it  may  not   be   competent   to 

Denio  Cr.  Cas.  568 :  14  Pick.  88  ;  17  Id.  296  ;  8  Wend. 
204;  3  Park  Cr.  Cas.  567 ;  Dudl.  i88;  4  111.  76.  v-2 
Den.  Cr.  Cas.  86;  4  Hawks.  356 ;  8  Blackf.  205  ;  see  2 
Va.  Cas.  227;  3  Yerg.  428;  3  flumphr.  289.  w-14 
Ohio,  386;  6  Ired.  340.  x -7  Mass.  250;  2  Pick.  506. 
19  Id.  479;  7  Mo.  177;  I  Murph.  134;  13  Ark.  712.     y- 

1  McLean  C.  C.  429  ;  7  Conn.  414  ;  14  Ohio,  295  ;'  2 
Yerg.  24  ;  28  Penn.  St.  13  ;  see  2  Gratt.  558.  «-i  Burr. 
613.     a-R.  M   Charlt.  235;  i  Coxe,  392;  1  Ashm   410; 

2  Bay,  105  ;  19  Johns.  39,  41 ;  14  Mass.  224  :  10  Met. 
CMa»s.)  222  :  3  Me.  51 ;  4  Zabr.  142.  b-2  Tyl.  167;  4 
Johns.  292  ;  14  Id.  371 :  7  Barb.  462  ;  3  Yeates,  475.  c- 
18  Miss.  192  ;  see  11  Met.  (Mass.)  302.  d-Bacon  Abr. 
Murder  (E);  Kel.  56;  Sid.  177;  Lev.  180.  e-i  Russ. 
Cr.  525:  Wharton  L.  of  Horn.  179;  3  Gratt.  94.  T-Best 
Pres.  ?  201 ;  1  Starkie  Ev.  575;  see  6  C.  &  P.  i?*:  3 
Hale  PI.  Cr.  390. 


496 


LAW. 


prove  the  basis  of  the  corpus  delicti  by  pre- 
sumptive evidence.* 

The  presumption  arising  from  the  possession 
of  the  fruits  of  crime  recently  after  its  com- 
mission, which  in  all  cases  is  one  of  fact, 
rather  than  of  law,  is  occasionally  so  strong  as 
to  render  unnecessary  any  direct  proof  of  what 
is  called  the  corpus  delicti.  Thus,  if  a  man 
were  to  go  into  a  wine-cellar  wherein  much 
wine  was  stowed,  quite  sober,  and  shortly  after- 
wards were  to  be  found  very  drunk,  staggering 
out  of  such  cellar,  this  would  be  reasonable 
evidence  that  the  man  had  stolen  some  of  the 
wine  in  the  cellar,  though  no  proof  were  given 
that  any  particular  vat  had  been  broached,  and 
that  any  wine  had  actually  been  missed.'' 

Corruption  is  an  act  committed  with  an 
intent  to  give  some  advantage  inconsistent  with 
official  duty  and  the  rights  of  others.  It  in- 
cludes bribery,  but  is  more  comprehensive; 
because  an  act  may  be  corruptly  done,  though 
the  advantage  to  be  derived  from  it  be  not 
offered  by  another.' 

CucKiNG  Stool,  called  also  a  trebucket- 
tumbril,  and  castigatory,  was  an  engine  or 
machine  for  the  punishment  of  scolds  and 
unquiet  women.  Bakers  and  brewers  were 
formerly  also  liable  to  the  same  punishment. 
Being  fastened  to  the  machine,  they  were  im- 
mersed over  head  and  ears  in  some  pool.^ 

Culprit  is  a  person  guilty,  or  supposed  to 
be  guilty,  of  a  public  offence. 

Dead  Body.  To  take  up  a  dead  body  with- 
out lawful  authority,  even  for  the  purpose  of 
dissection,  is  a  misdemeanor  for  which  the  of- 
fender might  be  indicted  at  common  law,' 
This  off"ence  is,  in  general,  punishable  by 
statute.  There  can  be  no  larceny  of  a  dead 
body ,7  but  may  be  of  the  clothes  or  shroud 
upon  it.*  Removing  a  dead  body  from  its 
place  of  burial  is  an  indictable  offence.  But 
when  the  master  of  a  workhouse,  having  as  such 
the  lawful  possession  of  the  bodies  of  paupers 
who  died  therein,  and  who,  therefore,  was  au- 
thorized by  statute  to  permit  the  bodies  of  such 
paupers  to  undergo  anatomical  examination, 
unless  to  his  knowledge  the  deceased  person 
had  expressed  in  his  lifetime,  in  the  manner 
therein  mentioned,  his  desire  to  the  contrary, 
"  or  unless  the  surviving  husband  or  wife,  or 
any  known  relative  of  the  deceased  person, 
should  require  the  body  to  be  interred  without 
such  examination,"  in  order  to  prevent  the 
relatives  of  the  deceased  paupers  from  making 
this  requirement,  and  to  lead  them  to  believe 
that  the  bodies  were  buried  without  dissec- 
tion, showed  the  bodies  to  the  relatives  in 
coffins,  and  caused  the  appearance  of  a  funeral 
to  be  gone  through,  and  having  by  this  fraud 
prevented  the  relatives  from  making  the  re- 

p-3  Bentham  Jud.  Ev.  234:  Wills  Circ.  Ev.' 105 ; 
Best  Pres.  J  204.  h-Pearsl.  Cr.  Cas.  284 ;  1  Taylor 
Ev.  g  122.  1-Merlin  Repert.  j-Blount ;  Co.  jd  Inst. 
219  ;  4  Bl.  Comm.  168.  x-i  Russ.  Cr.  414;  i  Dowl.  & 
R.  13;  Russ.  &  R.  366,  n.  b. ;  2  Chitty  Cr.  L.  35.  y-2 
East.  PI.  Cr.  652  ;  12  Co.  306.  SE-13  Pick.  402  ;  12  Co. 
J 13;  Co.  3d  Inst.  no.  n-i  Dearsl.  &  6.  Cr.  Cas.  590. 
b-2  T.  R.  734 ;  4  East.  460;  i  Russ.  Cr.  415,  416,  n.  a. 


quirement,  then  sold  the  bodies  for  dissection, 
he  was  held  not  to  be  indictable  at  common 
law.'  The  preventing  a  dead  body  from 
being  interred  is  also  an  indictable  offence.' 
To  inter  a  dead  body  found  in  a  river  would, 
it  seems,  render  the  off^ender  liable  to  indict- 
ment for  a  misdemeanor,  unless  he  first  sent 
for  a  coroner."  The  leaving  unburied  the 
corpse  of  a  person  for  whom  the  defendant  is 
bound  to  provide  Christian  burial,  as  a  wife  or 
child,  is  an  indictable  misdemeanor,  if  he  is 
shown  to  have  been  of  ability  to  provide  such 
burial.* 

See  Medical  Law;  Death,  below. 

Declarations.     See  title  Evidence,  ante. 

Defaulting.  A  public  officer  or  any  other 
person  acting  in  a  fiduciary  capacity  becoming 
a  defaulter  is  liable  to  indictment  therefor. 

Deliberation.  See  Aforethought, 
above ;  PREMEDITATION,  below. 

Desertion  is  an  unlawful  abandonment  of 
the  public  service  in  the  army  or  navy ;  the 
unlawful  abandonment  of  a  wife  or  child. 

Discretion  is  the  ability  to  know  and  dis- 
tinguish between  good  and  evil,  between  what 
is  lawful  and  unlawful.  The  age  at  which 
children  are  said  to  have  discretion  is  not  very 
accurately  ascertained.  Under  seven  years  it 
seems  that  no  circumstances  of  mischievous 
discretion  can  be  admitted  to  overthrow  the 
strong  presumption  of  innocence  which  is 
raised  by  an  age  so  tender."  Between  the 
ages  of  seven  and  fourteen,  the  infant  is,  prima 
facie,  destitute  of  criminal  design;  but  this 
presumption  diminishes  as  the  age  increases, 
and  even  during  this  interval  of  youth  may  be 
repelled  by  positive  evidence  of  vicious  inten- 
tion ;  for  tenderness  of  years  will  not  excuse  a 
maturity  in  crime,  the  maxim  being,  "  malice 
supplies  the  want  of  age."  At  fourteen  chil- 
dren are  said  to  have  acquired  legal  discre- 
tion.' 

Disorderly  House  is  a  house  the  inmates 
of  which  behave  so  badly  as  to  become  a 
nuisance  to  the  neighborhood.  The  keeper 
of  such  a  house  may  be  indicted  for  maintain- 
ing a  public  nuisance.' 

Disorderly  Persons.  See  General 
Statutes. 

Dissuading  a  witness  from  giving  evidence 
against  a  person  indicted  is  an  indictable 
offence  at  common  law.«  The  mere  attempt 
to  stifle  evidence  is  also  criminal,  although  the 
person  should  not  succeed,  on  the  general 
principle  that  an  incitement  to  commit  a  crime 
is  in  itself  criminal.'' 

Duelling  is  the  fighting  of  two  persons,  one 
against  the  other,  at  an  appointed  time  and 
place,  upon  a  precedent  quarrel.  It  differs 
from  an  affray  in  this :  that  the  latter  occurs  on 

C-i  Keny.  250.  d-i  Denio  Cr.  Cas.  325.  e-i  Hale  PI. 
Cr.  27,  28;  4  Bl.  Comm.  23.  f-i  Hale  PI.  Cr.  25.  Tt- 
Hardr.  344;  Hawk.  PI.  Cr.  B.  i,  Ch.  78,  3^  i,  2  ;  Bac. 
Abr.  Inns,  A ;  i  Russ.  Cr.  298 ;  i  Wheel.  Cr.  Cas.  290 ; 

1  S.  &  R.  342;  2  Id.  298;  Ba,c.  Abr.  Nuisances;  4 
Sharsw.  Bl.  Comm.  167,  168,  n.  e-Hawk.  PI.  Cr.  B.  i, 
Ch.2t,^i5.    h-i  Russ.  Cr.  44 ;  2East.  5, 21;  6  Id.  464; 

2  Strange,  904  ;  a  Leach  Cr.  Cas.  925. 


LAW. 


497 


a  sudden  quarrel,  while  the  former  is  always 
the  result  of  design.  When  one  of  the  parties 
is  killed,  the  survivor  is  guilty  of  murder.' 
Fighting  a  duel,  even  where  there  is  no  fatal 
result,  is  of  itself  a  misdemeanor  ;J  by  statute 
in  many  States  a  felony. 

Eavesdroppers  are  such  persons  as  wait 
under  walls  or  windows,  or  the  eaves  of  a 
house,  to  listen  to  the  discourses  within  and 
thereupon  to  frame  mischievous  tales.  The 
common  law  punishment  for  this  offence  is  fine 
and  a  finding  of  sureties  for  good  behavior.'^ 

1  Election.    See  Practice. 
Embezzlement  is  the  fraudulently  removing 

and  secreting  of  personal  property,  with  which 
the  party  has  been  intrusted,  for  the  purpose  of 
applying  it  to  his  own  use.  The  principles  of 
the  common  law  not  being  found  adequate  to 
protect  general  owners  against  the  fraudulent 
conversion  of  property  by  persons  standing  in 
certain  fiduciary  relations  to  those  who  were 
the  subject  of  their  peculations,  certain  statutes 
have  been  enacted  creating  new  criminal  of- 
fences, and  annexing  to  them  their  proper 
punishment.  A  takmg  is  requisite  to  consti- 
tute a  larceny ;  an  embezzlement  is  in  sub- 
stance and  essentially  a  larceny,  aggravated 
rather  than  palliated  by  the  violation  of  a  trust 
or  contract,  instead  of  being,  like  larceny,  a 
trespass.  The  administration  of  the  common 
law  has  been  not  a  little  embarrassed  in  dis- 
criminating the  two  offences.  But  they  are  so 
far  distinct  in  their  character  that,  under  an 
indictment  charging  merely  a  larceny,  evidence 
of  embezzlement  is  not  sufficient  to  authorize  a 
conviction ;  and  in  cases  of  embezzlement  the 
proper  mode  is  to  allege  sufficient  matter  in  the 
indictment  to  apprize  the  defendant  that  the 
charge  is  for  embezzlement.  Although  the  stat- 
utes declare  that  a  party  shall  be  deemed  to  have 
committed  the  crime  of  simple  larceny ;  yet  it  is 
a  larceny  of  a  peculiar  character,  and  must  be  set 
forth  in  its  requisite  and  distinctive  character.' 
When  embezzlement  of  a  part  of  the  cargo 
takes  place  on  board  of  a  ship,  either  from  the 
fault,  fraud,  connivance,  or  negligence  of  any 
of  the  crew,  they  are  bound  to  contribute  to 
the  reparation  of  the  loss  in  proportion  to  their 
wages.  When  the  embezzlement  is  fixed  on 
any  individual,  he  is  solely  responsible ;  when 
it  is  made  by  the  crew,  or  some  of  the  crew, 
but  the  particular  offender  is  unknown,  and, 
from  circumstances  of  the  case,  strong  pre- 
sumptions of  guilt  apply  to  the  whole  crew, 
all  must  contribute.  The  presumption  of  inno- 
cence is  always  in  favor  of  the  crew,  and  the 
guilt  of  the  parties  must  be  established  beyond 
all  reasonable  doubt  before  they  can  be  re- 
quired to  contribute." 

l-i  Russ.  Cr.  443  ;  i  Yerg.  aaS.  J-See  2  Com.  Dig. 
252 :  Roscoe  Cr.  Ev.  610;  2  Chitty  Cr.  L.  728, 848  ;  Co. 
3d  Inst.  157:  3  East.  581  ;  6  Id.  464;  Hawk.  PI.  Cr.  B. 
I,  Ch.  31,  ^  21  ;  3  Bulstr.  171;    Const.  167;    2  Ala.  506; 

2  Johns  457;  see  i  Russ.  Cr.  495;  2  Bishop  Cr.  L.  j 
268;  3  Cow.  686.  lfc-4  Bl.  Comm.  167:  Dane  Abr.  In- 
dex; I  Russ.  Cr.  302;  2  Overt.  108.  1-8  Met.  (Mass.) 
347;  o  Id.  138;  9  Cush.  284.  m-i  Mas.  C.  C.  104  ;  4 
Bos.  S  P.  347 :  3  Johns.  17 :  I  Marshall  Ins.  24X ;  Dane 


Embezzlement  of  arms,  munitions,  and  ha- 
biliments of  war,  property  stored  in  the  public 
storehouses,  letters,  precious  metals,  and  coins 
from  the  mint  are  prohibited  by  acts  of  Con- 
gress under  severe  penalties.^ 

Embracery  is  an  attempt  to  corrupt  or  in- 
fluence a  jury,  or  in  any  way  incline  them  to 
be  more  favorable  to  one  side  than  to  the  other, 
by  money,  promises,  threats,  or  persuasions, 
whether  the  juror  on  whom  such  attempt  is 
made  give  any  verdict  or  not,  or  whether  the 
verdict  be  true  or  false." 

Engrossing  is  buying  up  such  large  quanti- 
ties of  an  article  as  to  obtain  a  monopoly  of  it 
for  the  purpose  of  selling  at  an  unreasonable 
price,  especially  provisions."  Merely  buying 
for  the  purpose  of  selling  again  is  not  neces- 
sarily engrossing.? 

Entry  is  the  act  of  entering  a  dwelling- 
house,  or  other  building,  vessel,  or  enclosure  in 
order  to  commit  a  crime.  In  cases  of  burglary, 
the  least  entry  of  the  whole,  or  any  part  of  the 
body,  hand,  or  foot,  or  with  any  instrument, 
or  weapon,  introduced  for  the  purpose  of  com- 
mitting a  felony,  is  sufficient  to  complete  the 
offence.i  It  is  an  entry  where  the  person 
descends  a  chimney  but  is  arrested  before  he 
can  get  low  enough  to  enter  any  room ;  it  is 
an  entry  to  open  a  window  entirely,  but  not  to 
push  it  up  or  down  when  ])artly  opened;  put- 
ting a  finger  or  pistol  over  a  threshold  is  an 
entry,  but  not  a  centre-bit  or  crowbar,  these 
instruments  being  intended  for  breaking,  and 
not  for  committing  a  felony.  It  is  not  neces- 
sary in  all  cases  to  show  an  actual  entry  by  all 
the  prisoners,  there  may  be  a  constructive  entry 
as  well  as  a  constructive  breaking.  A.,  B.,  and 
C.  come  in  the  night,  by  consent,  to  break  and 
enter  the  house  of  D.,  to  commit  a  felony;  A. 
only  actually  breaks  and  enters  the  house ;  B. 
stands  near  the  door,  but  does  not  actually 
enter;  C.  stands  at  the  lane's  end,  or  orchard 
gate,  or  field  gate,  or  the  like,  to  watch  that  no 
help  come  to  aid  the  owner,  or  to  give  notice 
to  the  others  if  help  comes ;  this  is  burglary  in 
all,  and  all  are  principals  though  one  only  did 
actually  enter.'    See  Burglary,  above. 

Escape  is  the  departure  of  a  prisoner  from 
custody  before  he  is  discharged  by  due  course 
of  law.  It  is  the  voluntarily  or  negligently 
allowing  any  person  lawfully  in  ccnfinement  to 
leave  the  place."  The  deliverance  of  a  person 
who  is  lawfully  imprisoned  out  of  prison  before 
such  person  is  entitled  to  such  deliverance  by 
law.*  Escape  takes  place  without  force ;  prison 
breach,  with  violence ;  rescue  through  the  in- 
tervention of  third  parties.  Actual  escape 
takes  place  when  the  prisoner  in  fact  gets  out 
of  the  prison  and  unlawfully  regains  his  liberty. 

Abr.  Index;  Weskett  Ins.  194:  3  Kent  Comm.  151 ; 
Hardin,  529  :  Parsons'  Marit.  L.  Index.  x-See  Revi- 
sion U.  S.  Laws  1873-4.  n-Hawk.  PI.  Cr.  259;  Bac. 
Abr.  juries,  M.  3  ;  Co.  Litt.  157  6,  369  a;  Hob.  294  ; 
Dyer,  84  u,  pi.  19;  Noy.  102  ;  i  Str.  643;  11  Mod.  iii, 
118:    Comb.  601  ;    5  Cow.  503.      O-i  East.  143.      p-14 


East.  406  ;   15  Id.  511  ;  see  4  Sharsw.  Bl.  Comm.  I 
for  the  law  on  this  subject,     i     "        ' 
Pi.  Cr.  555.    ■-2  Bishop  Cr.  L.  i  917 


q-Co.  3d.  Inst.  64. 

r.  L.  2  917.     t-s  Mass.  310, 


r-i  Hale 


498 


LAW. 


Constructive  escape  takes  place  when  the  pris- 
oner obtains  more  liberty  than  the  law  allows, 
although  he  still  remains  in  confinement.* 
Negligent  escape  takes  place  when  the  prisoner 
goes  at  large,  unlawfully,  either  because  the 
building  or  prison  in  which  he  is  confined  is 
too  weak  to  hold  him,  or  because  the  keeper 
by  carelessness  lets  him  go  out  of  prison.  Vol- 
untary escape  takes  place  when  the  prisoner  has 
given  to  him  voluntarily  any  liberty  not  author- 
ized by  law." 

When  a  man  is  imprisoned  in  a  proper  place 
under  the  process  of  a  court  having  jurisdiction 
in  the  case,  he  is  lawfully  imprisoned,  notwith- 
standing the  proceedings  may  be  irregular;^ 
but  if  the  court  has  not  jurisdiction  the  impris- 
onment is  unlawful,  whether  the  process  be 
regular  or  otherwise.^  Letting  a  prisoner,  con- 
fined under  final  process,  out  of  prison  for  any, 
even  the  shortest  time,  is  an  escape,  although 
he  afterwards  return ;"  and  this  may  (as  in  case 
of  imprisonment  under  the  civil  writ  of  capias 
ad  satisfaciendum),  although  an  officer  may 
accompany  him.*  In  criminal  cases  the  pris- 
oner is  indictable  for  a  misdemeanor,  whether 
the  escape  be  negligent  or  voluntary  ;y  and  the 
officer  is  also  indictable.*  If  the  offence  of  the 
prisoner  was  a  felony,  a  voluntary  escape  is  a 
felony  on  the  part  of  the  officer;*  if  negligent, 
it  is  a  misdemeanor  only  in  any  case.''  Nothing 
but  an  act  of  God,  or  the  enemies  of  the  coun- 
try, will  excuse  an  escape.'  It  is  the  duty  of 
the  officer  to  rearrest  after  an  escape.*  See 
General  Statutes. 

Exaction  is  a  wilful  wrong  done  by  an  offi- 
cer, or  by  one  who,  under  color  of  his  office, 
takes  more  fee  or  pay  for  his  services  than  the 
law  allows.  Between  extortion  and  exaction 
there  is  this  difference,  that  in  the  fonner  case 
the  officer  extorts  more  than  his  due  where 
something  is  due  to  him ;  in  the  latter,  he  exacts 
what  is  not  his  due,  when  there  is  nothing  due 
to  him." 

Examination  ;  Preliminary  Examina- 
tion. See  title  Evidence,  "  Examination," 
ante. 

Excusable  Homicide  is  the  killing  of  a 
human  being  when  the  party  killing  is  not 
altogether  free  from  blame,  but  the  necessity 
which  renders  it  excusable  may  be  said  to  have 
been  partly  induced  by  his  own  act.' 

Execution  is  the  putting  of  a  convict  to 
death  in  pursuance  of  his  sentence.  "  When- 
ever any  person  is  condemned  to  suffer  death 
by  hanging,  for  any  crime  of  which  he  shall 
have  been  convicted,  the  punishment  is  gener- 
ally inflicted  within  the  walls  or  yard  of  the 

t-Bac.  Abr.  Escapes  CB) ;  Plowd.  17:  s  Mass.  310; 
a  Mas.  C.C.  486.  u-s  Mass.  310;  2  N.  Chip.  11.  V-i 
Crawf.  &  D.  Cr.  Cas.  203.  x-Bac.  Abr.  Escape  in 
Civ.  Cas.  (A  1) ;  5  Johns.  89  ;  13  Id.  378  ;  i  Cow.  3oq ; 
8  Id.  192  ;  I  Root,  288.  w-2  W.  Bl.  1048  ;  i  Rolle  Abr. 
806.  x-3  Co.  44,  a  ;  Plowd.  37  ;  Hob.  202  ;  1  Bos.  & 
P.  24  :  2  W.  Bl.  1048.  .v-2  Hawk.  PI.  Cr.  (Cumm.  Ed.) 
189:  Cro.  Car.  209;  7  Conn.  384;  16  Id.  47.  ae-2 
Bishop  Cr.  L.  §924.  H-2  Hawk.  PI.  Cr.  Ch.  19,  ^  25. 
b-a  Bishop  Cr.  L.  925.  C-24  Wend.  381  ;  2  Murph. 
386;  I  Brev.  146;  see  5  Ired.  702  ;    j  W .  &  S.  455;    17 


jail  of  the  county  in  which  he  is  convicted ;  and 
the  sheriff  or  coroner  of  the  said  county  attends 
such  execution,  to  which  he  invites  the  pres- 
ence of  a  physician,  the  prosecuting  attorney 
of  the  couniy,  and  twelve  reputable  citizens,  se- 
lected by  himself;  and  the  sheriff,  at  the  request 
of  the  criminal,  jiermits  such  ministers  of  the 
gospel,  not  exceeding  two,  as  he  may  name, 
and  any  of  his  immediate  relatives,  to  attend 
and  be  present  at  tlie  execution,  together  with 
such  officers  of  the  prison,  and  such  of  the 
sheriff's  deputies  as  the  sheriff  or  coroner,  in 
his  discretion,  may  think  it  expedient  to  have 
present."  No  person  under  age  is  permitted, 
on  any  account,  to  witness  the  execution. 

Exposure  of  person  i.s  such  an  intentional 
exposure,  in  a  public  place,  of  the  naked  body 
as  is  calculated  to  shock  the  feelings  of  chastity 
or  to  corrupt  the  morals.  This  offence  is  indict- 
able on  the  ground  that  every  public  show  and 
exhibition  which  outrages  decency,  shocks 
humanity,  or  is  contrary  to  good  morals,  is  pun- 
ishable at  common  law.*  An  indecent  exposure, 
though  in  a  place  of  public  resort,  if  visible  by 
only  one  person,  is  not  indictable  as  a  common 
nuisance.  An  omnibus  is  a  public  place  suf- 
ficient to  support  an  indictment.'' 

Extenuation  is  that  which  renders  a  crime 
or  wrong  less  heinous  than  it  would  appear  or 
be  without  it;  it  is  opposed  to  aggravation.  In 
general,  extenuating  circumstances  go  in  miti- 
gation of  punishment  in  criminal  cases,  or  of 
damages  in  those  of  a  civil  nature. 

Extortion  is  the  unlawful  taking  by  an 
officer,  by  color  of  his  office,  of  any  money  or 
thing  of  value  that  is  not  due  to  him,  or  more 
than  is  due,  or  before  it  is  due.*  To  constitute 
extortion,  there  must  be  the  receipt  of  money  or 
something  of  value;  the  taking  of  a  promissory 
note  which  is  void,  is  not  sufficient  to  make  an 
extortion  .J  It  is  an  extortion  and  oppression 
for  an  officer  to  take  money  for  the  performance 
of  his  duty,  even  though  it  be  in  the  exercise  of 
a  discretionary  power.'' 

Extradition  ;  see  Fugitive  from  Justice, 
below. 

False  pretences  are  false  representations 
and  statements,  made  with  a  fraudulent  design 
to  obtain  "  money,  goods,  wares,  and  merchan- 
dise," with  intent  to  cheat.'  It  is  a  representa- 
tion of  some  fact  or  circumstance,  calculated 
to  mislead,  which  is  not  true."*  The  pretence 
must  relate  to  past  events.  Any  representation 
or  assurance  in  relation  to  a  future  transactioB 
may  be  a  promise,  or  a  covenant,  or  warranty, 
but  cannot  amount  to  a  statutory  false  pretence.' 
It  must  be  such  as  to  impose  upon  a  person  of 

Wend.  543.  d-6  Hill  &  Y.  ^44.  e-Co.  Litt.  368.  t-\ 
East.  PI.  Cr.  220.  Jf -2  Bishop  Cr.  L.  ((318.  l«-iDenioCr. 
Cas.  23  ;  2  C.  &  K.  933  ;  2  Cox  Cr.  Cas.  376  ;  3  Id.  18^  ; 
Dearsl.  Cr.Cas.  207  ;  but  see  i  Dev.  &  B.  2c8.  I-4  Bl. 
Comm.141  ;  I  Hawk.  PI.  Cr.  Ch.  68,  ?  i  ;  i  Russ.  Cr.* 
144.  j-2  Mass.  523  ;  16  Id.  93,  94  ;  see  Bac.  Abr. ;  Co. 
Litt.  168.  l€-2  i?urr.  927  ;  see  6  Cow.  661  ;  i  Caines, 
130;  13  S.  &  R.  426;  3Penn.  183  ;  i  Yeates,  71  ;  i  South. 
324:  I  Pick.  171  ;  7  Id.  279  ;  4  Cox  Cr.  Caf-.  387.  l-a 
Bouv.  Inst.  n.  2308.  m-io  Pk:k.  184.  n-iu  Pick.  185; 
3  T.  R.  98. 


LAW. 


499 


ordinary  strength  of  mind;'  and  this  will  doubt- 
less be  sufficient.P  But  although  it  may  be  dif- 
ficult to  restrain  false  pretences  to  such  as  an 
ordinarily  prudent  man  may  avoid,  yet  it  is  not 
every  absurd  or  irrational  pretence  which  will  be 
sufficient.'  It  is  not  necessary  that  all  the  pre- 
tences should  be  false,  if  one  of  them,  by  itself, 
is  sufficient  to  constitute  the  offence/  And 
although  other  circumstances  may  have  induced 
the  credit,  or  the  delivery  of  the  property,  yet 
it  will  be  sufficient  if  the  false  pretences  had 
such  an  influence  that  without  them  the  credit 
would  not  have  been  given,  or  the  property  de- 
livered." The  false  pretences  must  have  been 
used  before  the  contract  was  completed.'  There 
must  be  an  intent  to  cheat  or  defraud  some  per- 
son." This  may  be  inferred  from  the  false  rep- 
resentation.* The  intent  is  all  that  is  requisite ; 
it  is  not  necessary  that  the  party  defrauded 
should  sustain  any  loss.' 

This  offence  is  modified  in  the  different 
States  by  the  wording  of  the  statutes,  which 
vary  from  each  other  slightly.  The  interpreta- 
tion of  the  words  "by  any  false  pretence"  in 
such  statutes  is,  that  wherever  a  person  fraudu- 
lently represents  as  an  existing  fact  that  which 
is  not  an  existing  fact,  and  so  gets  money,  etc., 
he  is  guilty  of  the  offence  embraced  in  the 
statute." 

Fai^ify.  The  alteration  or  making  false  a 
record  is  punishable  at  common  law  and  by 
statute,  both  State  and  federal.* 

Fear  is  an  emotion  excited  by  an  expecta- 
tion of  evil  or  apprehension  of  danger.  Anx- 
i('ly,  dread,  solicitude.  Fear  in  a  person 
robbed  is  one  of  the  ingredients  required  to 
constitute  a  robbing  from  the  person,  and  with- 
out this  the  felonious  taking  of  property  is  a 
larceny.  It  is  not  necessary  that  the  owner  of 
the  property  should  be  in  fear  of  his  own  per- 
son ;  but  fear  of  violence  to  the  person  of  his 
child,'  or  to  his  property*  is  sufficient.' 

Felonies  are  offences  punishable  by  death, 
or  imprisonment  in  the  State  prison  or  peni- 
tentiary. They  are  offences  of  great  gravity. 
At  the  common  law  it  occasioned  a  total  for- 
feiture of  lands  or  goods,  or  both,  to  which 
capital  or  other  punishment  was  superadded, 
according  to  the  degree  of  guilt. •*  It  is  clearly 
defined  by  the  statutes  of  most  States. 

See  Arrest  without  Process,  above. 

Fines  are  pecuniary  punishments  imposed 
by  a  lawful  tribunal  upon  a  person  convicted 
of  a  criminal  offence.  The  amount  of  the  fine 
is  generally  left  to  the  discretion  of  the  court. 

«-3  H.aws.62o  ;  4Piclc.i78.  p-ii  Wend.  557.  «|-See 
14  Til. 348;  lyMe.aii;  ?  East.  PI.  Cr.  828  ;  iDenioCr. 
C'as.  592  :  Riiss.  &  R.  127.  r-i4Wend.  547.  s-ii  Wend. 
5-7;  13  Id.  87:  14  'd.  547.  t-13  Wend.  311:  14  Id. 
t,6.  n-Russ.  &  R.  Cr.  Cas.  317  :  i  Stark.  396.  x-i3 
Wend.  87.  v-u  Wend.18:  i  C.  it  M.  516,  537:  4 Pick. 
T77.  w-See  I  Denio  Cr.  Cas  559  ;  3  C.  &  K.98.  x- 
I,aws  U.  S.  1790,  April  30  ;  i  Story  U.  S.  Stat.  86.  y-2 
East.  PI.  Cr.  718.  z-Id.  731  ;  2  Riiss.  Cr.  72.  a-2 
Russ.  71-93.  l>-4  Bl.  Comm.Q4,  05  ;  i  Riiss.  Cr.  42; 
1  Cliitty  Pr.  14  ;  Co.  Litt.  391  ;  i  Hawk.  PI.  Cr.  Ch.  37; 
5  Wheat.  J53,  159.  x-C"nst.  U.  S.  Amendment  Art.  8. 
«*-4  HI.  Comm.  387.  «l-Cowel,  Blount;  4  Bl.  Coram. 
158.     e-Co.  3d.  Inst.  196 ;  I  Russ.  Cr.  169 ;  4  Bl.  Comm. 


To  prevent  the  abuse  of  power  to  fine,  the 
Constitution  of  the  United  States  directs  that 
"  excessive  bail  shall  not  be  required,  nor  ex- 
cessive fines  imposed,  nor  cruel  and  unusual 
punishment  inflicted."*  When,  therefore,  the 
offence  committed,  for  which  the  penalty  is  by 
statute  excessive  or  cruel,  the  court  will  pro- 
nounce a  nominal  sentence  only,  for  the  law 
will  not  suffer  cruelty,  but  tempers  its  punish- 
ment with  reason  and  justice. 

Flight  is  the  evading  of  the  course  of  jus- 
tice by  a  man's  voluntarily  withdrawing,*  and 
this,  though  the  withdrawal  be  for  an  hour,  a 
day,  a  week,  etc. 

See  Escape,  above ;  Fugitive  from  Jus- 
tice, below. 

Forestalling  the  Market  is  the  buying 
of  victuals  on  their  way  to  market  before  they 
reach  it,  with  the  intent  to  sell  again  at  a 
higher  price.*  It  is  every  device  or  practice 
by  act,  conspiracy,  words,  or  news,  to  enhance 
the  price  of  victuals  or  other  provisions.*  These 
acts  must  be  in  themselves  an  unlawful,  un- 
reasonable, unconscionable,  and  prohibited  by 
statute,  for  a  legitimate  purchase  in  the  ordi- 
nary course  of  trade,  to  sell  again  at  reasonable 
and  usual  prices,  is  at  all  times  lawful. 

Forfeiture  is  a  punishment  annexed  by 
law  to  some  illegal  act  or  negligence.  It  is  a 
sum  of  money  paid  by  way  of  penalty  for  a 
crime.' 

Forgery  is  falsely  making  or  materially  al- 
tering, with  intent  to  defraud,  any  writing 
which,  if  genuine,  might  apparently  be  of  legal 
efficacy  or  the  foundation  of  a  legal  liability.' 
The  fraudulent  making  and  alteration  of  a 
writing  to  the  prejudice  of  another  man's  right.' 

The  intent  must  be  to  defraud  another; 
but  it  is  not  requisite  that  any  one  should 
have  been  injured :  it  is  sufficient  that  the  in- 
strument forged  might  have  proved  prejudicial.' 
Most  States  have  passed  laws  making  certain 
acts  to  be  forgery,  and  the  national  legislature 
has  also  enacted  several  on  this  subject,  which 
are  here  referred  to;  but  these  statutes  do  not 
take  away  the  character  of  the  offence  as  a 
misdemeanor  at  common  law,  but  only  provide 
additional  punishment  in  the  cases  particularly 
enumerated  in  the  statutes.^ 

The  making  of  a  whole  written  instrument 
in  the  name  of  another  with  a  fraudulent  intent 
is  a  sufficient  making  ;  but  a  fraudulent  inser- 
tion, alteration,  or  erasure,  even  of  a  letter,  in 
any  material  part  of  the  instrument,  whereby  a 
new  operation  is  given  to  it,  will  amount  to  a 

158  :  Hawk.  PI.  Cr.  B.  i,  Ch.  80,  §  i.  f-21  Ala.  (N. 
S.)672;  10  Gratt.  700.  jf-a  Bishop  Crim.  Law,  g  432. 
I»-4  Blackstone  Comm.  247.  Bishop  2  Crim.  Law,  § 
432,  has  collected  seven  definitions  of  forgery,  and  justly 
remarks  that  the  books  abound  in  definitions.  Coke 
says  the  term  is  "  taken  metaphorically  from  the  smith, 
who  beateth  upon  his  anvil  and  forgeth  what  fashion  and 
shape  he  will."  Coke  3d  Inst.  169.  I-3  Gill.  &  J.  Md. 
220  ;  4  Wash.  C.  C.  726.  j-3  Cush.  Mass.  150;  3  Gray, 
M.-iss.  441 ;  Act  of  March  2,  1803,  2  Story  U.  S.  Laws, 
888 ;  Act  of  March  3,  1813,  2  Story  U.  S.  Laws,  1304  ; 
Act  of  March  1,  1823,  3  Story  U.  S.  Laws,  1889;  Act 
of  March  3,  1825,  3  Story  U.  S.  Laws,  2003;  Act  of  Oc- 
tober 13, 1837,  9  U.  S.  Stat,  at  Large,  696 


50O 


LAW. 


(brgery,*  and  this,  although  it  be  afterwards 
executed  by  a  person  ignorant  of  the  deceit.' 
The  fraudulent  application  of  a  true  signature 
to  a  false  instrument  for  which  it  was  not  in- 
tended, or  vice  versa,  will  also  be  a  forgery." 
For  example,  it  is  forgery  in  an  individual  who 
is  requested  to  draw  a  will  for  a  sick  person  in 
a  particular  way,  instead  of  doing  so,  to  insert 
legacies  of  his  own  head,  and  then  procure  the 
signature  of  such  sick  person  to  be  affixed  to 
"the  paper  without  revealing  to  him  the  lega- 
cies thus  fraudulently  inserted."  A  party 
who  makes  a  copy  of  a  receipt  and  adds  to 
such  copy  material  words  not  in  the  original, 
and  then  offers  it  in  evidence  on  the  ground 
that  the  original  has  been  lost,  may  be  prose- 
cuted for  forgery."  It  is  a  sufficient  making 
where,  in  the  writing,  the  party  assumes  the 
name  and  character  of  a  person  in  existence. p 
But  the  adoption  of  a  false  description  and  ad- 
dition where  a  false  name  is  not  assumed  and 
there  is  no  person  answering  the  description,  is 
not  a  forgery.'  Making  an  instrument  in  a 
fictitious  name,  or  the  name  of  a  non-existing 
person,  is  as  much  a  forgeiy  as  making  it  in 
the  name  of  an  existing  person,*"  and  although 
a  man  may  make  the  instrument  in  his  own 
name,  if  he  represent  it  as  the  instrument  of 
another  of  the  same  name,  when  in  fact  there 
is  no  such  person,  it  will  be  a  forgery  in  the 
name  of  a  non-existing  person.'  But  the  cor- 
rectness of  this  decision  has  been  doubted.^ 
Though,  in  general,  a  party  cannot  be  guilty 
of  forgery  by  a  mere  non-feasance,  yet  if  in 
drawing  a  will  he  should  fraudulently  omit  a 
legacy  which  he  had  been  directed  to  insert, 
and  by  the  omission  of  such  bequest  it  would 
cause  a  material  alteration  in  the  limitation  of 
a  bequest  to  another,  as,  where  the  omission 
of  a  devise  of  an  estate  for  life  to  one  causes 
a  devise  of  the  same  lands  to  another  to  pass 
a  present  estate  which  would  otherwise  have 
passed  a  remainder  only,  it  would  be  a  for- 
gery.* 

With  regard  to  the  thing  forged,  it  may  be 
observed  that  it  has  been  holden  to  be  forgery 
at  common  law  fraudulently  to  falsify  or  falsely 
make  records  and  other  matters  of  a  public 
nature,*  a  parish  register,"  a  letter  in  the  name 
of  a  magistrate,  or  of  the  governor  of  a  gaol 
directing  the  discharge  of  a  prisoner.^  With 
regard  to  private  writings,  forgery  may  be  com- 
mitted of  any  writing  which,  if  genuine, 
would  operate  as  the  foundation  of  another 
man's  liability  or  the  evidence  of  his  right,'' 
as,  a  letter  of  recommendation  of  a  person  as 

k-i  Strange,  i8  :  i  And.  loi ;  s  Esp.  loo  ;  s  Strobh. 
•So.  C.  581.  1-2  East.  PI.  Cr.  855.  Ul-ii  Gratt.  Va. 
822  ;  I  Add.  Penn.  44.  n-Noy.  loi ;  F.  Moore,  759, 
760  ;  Coke,  3d  Inst.  170  ;  i  Hawkins  PI.  Cr.  c.  70,  s.  2  ; 
2  Russell  Crimes,  318  ;  Bacon  Abr.  ^(jrf^^y  ( A).  0-5 
Elsp.  ICO.  p-2  Russell  Crimes,  327.  q-i  Russ.  &  R. 
405.  r-2  East.  PI.  Cr.  957;  2  Russell  Crimes,  328.  8- 
a  Leach  Cr.  Cas.  77s ;  2  East.  PI.  Cr.  963.  x-Roscoe 
Crim  Ey.  384.  t-F.  Moore,  760;  Noy,  loi;  1  Haw- 
kins PI.  Cr.  c.  70,  s.  6 ;  2  East.  PI.  Cr.  856;  a  Russell 
Crimes,  320.  x-i  Rolle  Abr.  65,  68.  n-i  Hawkins  PI. 
Cr.  c.  70.  ■v-6  Carr.  &  P.  129  ;  Mood.  Cr.  Cas.  370. 
W-3  Greenleaf  £v.  {  103 ;    a  Ma.ss.  397 ;    la  Serg.  &  R. 


a  man  of  property  and  pecuniary  responsibility,* 
an  acceptance  of  a  conditional  order  for  the 
delivery  of  goods,?  a  false  testimonial  to 
character,'  a  railway-pass,'  a  railroad-ticket," 
or  fraudulently  to  testify  or  falsely  to  make  a 
deed  or  will."*  Forgery  may  be  of  a  printed  or 
engraved  as  well  as  of  a  written  instrument.* 
A  forgery  must  be  of  some  document  or  writ- 
ing :  therefore  the  printing  an  artist's  name  in 
the  corner  of  a  picture,  in  order  falsely  to  pass 
it  off  as  an  original  picture  by  that  artist,  is  not 
a  forgery.' 

Fornication  is  unlawful  carnal  knowledge 
by  an  unmarried  person  of  another,  whether  the 
latter  be  married  or  unmarried.  Fornication  is 
distinguished  from  adultery  from  the  fact  that 
the  guilty  party  is  not  married.  Four  cases  of 
unlawful  intercourse  may  arise :  I.  Where  both 
parties  are  married.  2.  Where  the  man  only 
is  married.  3.  Where  the  woman  only  is  mar- 
ried. 4.  Where  neither  is  married.  In  the 
first  case  such  intercourse  must  be  adultery;  in 
the  second  case  the  crime  is  fornication  only  on 
the  part  of  the  woman,  but  adultery  on  the  part 
of  the  man ;  in  the  third  case  it  is  adultery  in 
the  woman  and  fornication  (by  statute  in  some 
States  adultery)  in  the  man ;  in  the  last  case  it 
is  fornication  only  in  both  parties.  By  the 
statutes  of  m?ny  of  the  States  fornication  is  an 
indictable  offence  by  statute;*  and  where  it  i.5 
there  maybe  a  conviction  for  this  offence  on  an 
indictment  for  adultery.'' 

Fraud  includes  all  deceitful  practices  in  de- 
frauding or  endeavoring  to  defraud  another  of 
his  known  right  by  means  of  some  artful  de- 
vice, contrary  to  the  plain  rules  of  common 
honesty.  In  considering  fraud  in  its  criminal 
aspect  it  is  difficult  to  determine  whether  facts 
in  evidence  constitute  a  fraud,  or  amount  to  a 
felony.  In  general,  if  the  property  obtained, 
whether  by  means  of  a  false  token  or  false  pre- 
tence, be  parted  with,  absolutely,  by  the  owner 
it  is  a  fraud;  but  if  the  possession  only  be 
parted  with,  and  that  possession  be  obtained  by 
fraud,  it  will  be  felony.'  Examples  of  gross 
frauds  are:  uttering  a  fictitious  bank  bill ;J  sell- 
ing unwholesome  provisions ;''  malpractice  of 
a  physician ;'  rendering  false  accounts,  and 
other  frauds,  by  persons  in  official  situations  ;■ 
fabrication  of  news  tending  to  the  public  in- 
jury;" cheats  by  means  of  false  weights  and 
measures  ;°  and  generally,  the  fraudulent  ob- 
taining the  property  of  another  by  any  deceitful 
or  illegal  practice  or  token  (short  of  felony) 
which  affects  or  may  affect  the  public,P  as  with 

Penn.  237 ;  8  Vers.  Tenn.  150.  x-2  Grecnleaf  Ev.  J 
365.  y-3  Cush.  Mass.  150.  «-Templ.  &  M.  Cr.  Cas. 
207;  I  Den.  Cr.  Cas.  492;  Dearsl.  Cr.  Cas.  285.  R-a 
Carr.  &  K.  604.  c-3  Gray,  Mass.  441.  d-i  Hawkins 
PI.  Cr.  b.  I,  c.  70,  ?  10.  e-3  Gray,  Mass.  441 ;  9  Pick. 
Mass.  312.  f-i  Dearsl.  &  B.  Cr.  Cas.  460.  g:-6  Vt. 
311 ;  2  Taylor,  105  ;  2  Gratt.  555.  I1-2  Dall.  124  ;  4  Ird. 
231  ;  2  Bishop  Cr.  L.  \  12.  i-Bac.  Abr.  Fraud;  a 
liach  Cr.  Cas.  1066 ;  2  East.  PI.  Cr.  673.  J-a  Mass. 
77.  lt-4  Bl.  Comm.  162.  I-i  Ld.  Raym.  213.  m-a 
East.  136;  5  Mod.  179;  a  Campb.  i69  ;  sChittyC.  L. 
666.  n-Stark.  Bk.  546:  Hale  Sumn.  132.  0-2  F.ast.  PI. 
Cr.  Ch.  18,  \  3,  p.  820.  p-a  East.  PI  Cr,  Ch,  18,  \  ^ 
p.  818, 


LAW. 


501 


the  common  cases  of  obtaining  property  under 
false  pretences. 

Fugitives  from  justice  are  those  who,  hav- 
ing committed  crime,  flee  from  the  jurisdiction 
within  which  the  offence  was  committed  to 
escape  punishment.  As  one  State  cannot  pur- 
sue those  who  violate  its  laws  into  the  territories 
of  another,  and  as  it  concerns  all  that  those 
guilty  of  the  more  atrocious  crimes  should  not 
go  unpunished,  the  practice  prevails  among  the 
more  enlightened  nations  of  mutually  sur- 
rendering such  fugitives  to  the  justice  of  the 
injured  State.  This  practice  is  founded  on  na- 
tional comity  and  convenience,  or  on  express 
compact.  The  United  States  recognizes  the 
obligation  only  when  it  is  created  by  express 
agreement,  and  have  contracted  this  obligation 
with  several  foreign  States  by  treaty,  and  with  one 
another  by  their  federal  constitution  and  laws. 

The  various  treaties  with  foreign  powers 
enumerate  the  crimes  for  which  persons  may 
be  surrendered,  and  limit  in  other  particulars 
their  application.  Before  any  person  can  be 
surrendered  a  demand  for  him  must  be  made 
upon  the  executive  by  the  executive  power  of 
ihe  State  whose  laws  have  been  violated.  It 
is  usual  to  make  this  demand  before  judicial 
proceedings  are  instituted  for  the  arrest  of  the 
fugitive  ;<»  but  this  is  not  required  by  act  of 
('ongress.P  The  usual  method  of  aation  is  for 
same  police  officer  or  other  special  agent,  after 
obtaining  the  proper  papers  in  his  own  country, 
to  repair  to  the  foreign  country,  carry  the  case 
through  with  the  aid  of  his  minister,  receive 
the  fugitive,  and  conduct  him  back  to  the 
country  having  jurisdiction  of  the  crime.i  The 
expense  of  the  apprehension  must  be  borne  and 
f      'lefraycd  by  the  party  making  the  requisition. 

Under  the  United  States  Constitution  and 
laws,  etc^ 

"A  person  charged  in  any  State  with  treason, 
felony,  or  other  crime,  who  shall  flee  from 
justice  and  be  found  in  another  State,  shall,  on 
demand  of  the  executive  authority  of  the  State 
from  which  he  fled,  be  delivered  up,  and  to  be 
removed  to  the  State  having  jurisdiction  of  the 
crime."''  On  demand  of  the  executive  au- 
thority of  a  State,  and  production  of  a  copy  of 
the  indictment  found,  or  an  affidavit  made 
before  a  magistrate  charging  the  person  de- 
manded with  treason,  felony,  or  other  crime 
certified  as  authentic  by  the  governor  or  chief 
magistrate  of  the  State  from  whence  the  person 
so  charged  fled,  that  the  executive  authority  of 
the  State  or  Territory  to  which  such  person 
shall  have  fled  shall  cause  the  person  charged 
to  be  arrested  and  secured,  and  notice  of  the 
arrest  to  be  given  to  the  executive  authority 
making  such  demand,  or  to  the  agent  of  such 
authority  appointed  to  receive  the  fugitive,  and 
cause  the  fugitive  to  be  delivered  to  such  agent 

0-8  Opinions  Aty's  Gen.  521.  p-Td.  240.  q-Id.  521. 
r-Constitution  U.  S.  Art.  4,  ^2.  s-Laws  U.  S.  1793, 
February  12,  Vol.  1,  p.  302.  t-6  Penn.  L.  Jur.  412  ;  i 
Kent  Comm.  (9  Ed.)  42,  n;  6  Am.  Jour.  226;  9  Wend. 
•  12;  I  An.  L.  Tour.  i'N.  S.)  271;  13  Ga.  97;  3  Zabr. 
}ii;    Hurd  Habeas  Corp.   597.     u-6  Pcbo.  I^.  Jouf . 


when  he  shall  appear;  but  if  such  agent  do  not 
appear  within  six  minutes,  the  prisoner  shall  be 
discharged.' 

The  treason,  felony,  or  other  crime,  extends  to 
and  embraces  all  acts  which  by  the  laws  of 
where  they  were  committed  are  made  criminal.' 
The  accusation  must  be  in  the  form  of  an  affi- 
davit, or  indictment  found  and  duly  authenti- 
cated. If  by  affidavit,  it  should  be  sufficiently 
full  to  justify  arrest  and  commitment  for  hear- 
ing." The  accused  must  have  fled  from  the  •' 
State  in  which  the  crime  was  committed;  and' 
of  this  the  executive  authority  of  the  State  upon' 
which  the  demand  is  made  should  be  reason- 
ably satisfied.  This  is  sometimes  done  by  affi- 
davit. In  the  absence  of  direct  evidence  on 
the  question  of  flight,  if  it  appear  from  the  in- 
dictment or  affidavit  produced  that  the  crime 
charged  is  atrocious  in  its  nature,  and  recently 
committed,  and  the  prosecution  promptly  insti- 
tuted, the  unexplained  presence  of  the  accused 
in  another  State  immediately  after  the  commis- 
sion of  the  crime  may  be  regarded  as  prima 
facie  evidence  of  flight,  sufficient  at  least  to 
warrant  an  order  of  arrest.  The  order  of  sur- 
render is  not  required,  by  act  of  Congress,  to 
be  made  at  the  same  time  with  the  order  of 
arrest,  and  time,  therefore,  can  be  taken  in 
doubtful  cases,  after  the  accused  is  arrested,  to 
hear  proofs  to  establish  or  rebut  such  prima 
facie  evidence.'' 

The  surrender  of  the  accused  must  be  made 
to  an  agent  of  the  executive  authority  of  the 
demanding  State,  duly  appointed  to  receive  the 
fugitive.  The  proceedings  of  the  executive 
authority  are  subject  to  be  reviewed  on  habeas 
corpus  by  the  judicial  power,  and  if  found  void 
the  prisoner  may  be  discharged.'' 

Any  person  setting  at  liberty  or  rescuing  a 
fugitive  from  an  agent  while  transporting  a  fu- 
gitive to  the  State  or  Territory  from  which  he    . 
fled  is  liable  to  a  fine  of  five  hundred  dollars 
and  imprisonment  not  exceeding  one  year.* 

Game  Laws.  See  General  Statutes. 

Gaming  is  an  agreement  between  two  or 
more  persons  to  play  by  certain  rules  at  cards, 
dice,  or  other  contrivance  that  the  result  shall 
determine  the  owner  of  the  amount  staked, 
contributed,  or  wagered  upon  the  game.  In 
general,  at  common  law,  all  games  are  lawful, 
unless  some  fraud  has  been  practised,  or  such 
games  are  contrary  to  public  policy.  Each  of 
the  parties  to  the  contract  must  have  a  right  to 
the  money  or  thing  played  for.  He  must  have 
given  his  full  and  free  consent,  and  not  have 
been  entrapped  by  fraud.  There  must  be 
equality  in  the  play.  The  play  must  be  con- 
ducted fairly.  But  even  when  all  these  rules 
have  been  observed,  the  courts  will  not  coun- 
tenance gaming  by  giving  too  easy  a  remedy 
for  the  recovery  of  money  won  at  play.'     But 

412  ;  3  McLean  C.  C.  121 ;  i  Sandf.  701 ;  3  Zabr.  311  ; 
Hurd  Habeas  Corp.  605.  v-6  Am.  Jur.  226 ;  7  Boston 
L.  Rep.  386.  t»'-3  McLean  C.  C.  121  ;  -x  Zabr.  311;  9 
Texas,  635  ;  4  Harr.  575  ;  2  Mo.  26  ;  Hurd  Habeas  Corp. 
615.  X-Laws  U.  S.  1793,  February  12,  Vol.  i,  302.  y- 
Bac.  Abr. 


502 


LAW. 


where  fraud  has  been  practised,  as  in  all  other 
cases,  the  contract  is  void ;  and  in  some  cases 
when  the  party  has  been  guilty  of  cheating,  by 
playing  with  false  dice,  cards,  and  the  like,  he 
may  be  indicted  at  common  law,  and  fined  and 
imprisoned,  according  to  the  heinousness  of 
the  offence.* 

For  the  laws  forbidding  gaming,  see  the 
General  Statutes. 

Gaming  houses  are  houses  kept  for  the 
purpose  of  permitting  persons  to  gamble  for 
money  or  other  valuable  things.  They  are 
nuisances  in  the  eye  of  the  law,  being  detri- 
mental to  the  public,  as  they  promote  cheating 
and  other  corrupt  practices." 

Gaol,     See  Jail;  Prison,  below. 

Good  Behavior.  Surety  for  good  behavior 
may  be  demanded  from  any  person  who  is 
justly  suspected,  upon  sufficient  grounds,  of 
intending  to  commit  a  crime  or  misdemeanor. 
Surety  for  good  behavior  is  somewhat  similar 
to  surety  of  the  peace,  but  the  recognizance  is 
more  easily  forfeited,  and  it  ought  to  be  de- 
manded with  greater  caution.* 

Goods  and  Chattels.  Choses  in  action, 
as  bank  notes,  mortgage  deeds,  and  money,  do 
not  fall  within  the  technical  definition  of 
"  goods  and  chattels ;  "  and  if  described  in  an 
indictment  as  goods  and  chattels,  these  words 
may  be  rejected  as  surplusage." 

Grand  Larceny.  Simple  larceny  is  divided 
into  grand  larceny  and  petit  larceny.  Grand 
larceny  is  made  a  felony  in  most  States,  while 
petit  larceny  is  made  a  misdemeanor — the  for- 
mer embraces  larcenies  from  a  prescribed 
minimum  (e.  g.  five  dollars  in  value)  to  any 
amount  in  value,  however  great ;  the  latter  is 
any  amount  in  value  less  than  the  prescribed 
maximum  [e.  g.  five  dollars  in  value). 

Grave.  The  violation  of  the  grave,  by 
taking  up  a  dead  body,  or  stealing  the  coffin  or 
grave  clothes,  is  a  misdemeanor  at  common 
law.*  Penalties  for  violation  of  the  grave, 
desecration  of  cemeteries,  etc.,  are  exacted  in 
most  of  the  States. 

See  Dead  Body,  above. 

Guilt  is  criminality ;  offence ;  liability  to 
punishment;  it  is  opposed  to  innocence.  In 
general,  every  one  is  presumed  innocent  until 
guilt  has  been  proved ;  but  in  some  cases  the 
presumption  of  guilt  overthrows  that  of  inno- 
cence ;  as,  for  example,  where  a  party  destroys 
evidence  to  which  the  opposite  party  is  entitled. 
The  spoliation  of  papers  material  to  show  the 
neutral  character  of  a  vessel  furnishes  strong 
presumption  against  the  neutrality  of  the  ship.^ 

Hard  Labor  is,  in  general,  a  part  of  the 
sentence  of  convicts  in  States  where  the  peni- 
tentiary system  has  been  adopted.  This  labor 
is  such  as  is  ordinarily  performed  voluntarily 
by  laborers  and  mechanics,  and  is  generally 

«-i  Rust.  Cr.  406.  a-i  Russ.  Cr.  299 ;  Rosco«  Crim. 
Ev.  663;  3  Denio,  101.  b-i  Binn.  08,  n;  z  Yeates, 
437 ;  '4  Vin.  Abr.  i\  ;  Dane  Abr.  Index.  As  to  what 
IS  a  breach  of  good  behavior,  see  2  Martin  (N.  S.)  683  ; 
Hawk.  PI.  Cr.  B.  1,  Ch.  61,  ?  6  ;  i  Chitty  Pr.  676.  c-4 
Gray,  416 ;  3C0X  Cr.  Cas.  460 ;  1  Denio  Cr.  Cas.  460 ; 
1  Dearls.  &13.  Cr.  Cas.  436;  3  Zabr.  307:    i  Leach  Cr, 


of  the  same  character.  It  m.iy  be  any  of  the 
common  industries,  such  as  the  working  of 
wood,  metals,  weaving,  quarrying,  and  the  like 
employments. 

Hanging.    See  Execution,  above. 

Hearing.  See  title.  Evidence;  Exami- 
nation, ante. 

Highway  Robbery.   See  Robbery,  below. 

Homicide  is  the  killing  of  a  human  being,* 
by  human  agency.'  Excusable  homicide  takes 
place  under  such  circumstances  of  accident 
or  necessity  that  the  party  cannot. strictly  be 
said  to  have  committed  the  act  wilfully  and 
intentionally,  and  whereby  he  is  relieved  from 
the  penalty  annexed  to  the  commission  of  a 
felonious  homicide.  Felonious  homicide  is 
that  committed  wilfully  under  such  circum- 
stances as  to  render  it  punishable.  Justifiable 
homicide  is  that  committed  with  full  intent,  but 
undersuch  circumstances  as  to  render  the  act  one 
proper  to  be  performed.  The  distinction  be- 
tween justifiable  and  excusable  homicide  is  that 
in  the  former  the  killing  takes  place  without  any 
manner  of  fault  on  the  part  of  the  slayer;  in  the 
latter  there  is  some  slight  fault;  between  justifi- 
able or  excusable  and  felonious  homicide  there  is 
a  great  and  important  distinction.  For  example : 
"  If  a  person  driving  a  carriage  happen  to  kill 
another,  if  he  saw  or  had  timely  notice  of  the 
mischief  likely  to  ensue,  and  yet  wilfully  drove 
on,  it  would  be  murder;  if  he  might  have  seen 
the  danger,  but  did  not  look  before  him,  it 
will  be  manslaughter ;  but  if  the  accident  hap- 
pened in  such  a  manner  that  no  want  of  due 
care  could  be  imputed  to  the  driver,  it  will  be 
accidental  death  and  excusable  homicide."* 

To  constitute  the  offence  of  homicide  there 
must  be  a  person  in  actual  existence  ;■•  but  the 
destruction  of  human  life  at  any  period  after 
birth  is  homicide,  however  near  it  may  be  to 
extinction  from  any  other  cause.*  The  person 
killed,  to  constitute  the  homicide  felonious, 
must  have  been  entitled  to  his  existence. 
Thus,  a  soldier  of  the  enemy  in  time  of  v/ar 
has  no  right  to  life,  but  may  be  killed.  A 
criminal  sentenced  to  death  has  no  right  to  life ; 
but  no  person  can  take  life  but  the  authorized 
officer,  and  in  the  manner  prescribed  by  law. 

See  Murder;  Manslaughter;  Self- 
Defence. 

House  of  Correction  is  an  asylum  or 
prison  for  incorrigibles  or  those  who  have  com- 
mitted minor  crimes. 

House  of  Ill-fame  is  a  house  resorted  to 
for  the  purpose  of  prostitution  and  lewdness^ 
Keeping  a  house  of  ill-fame  is  an  offence  at 
common  law.*  So,  the  letting  of  a  house  to  a 
woman  of  ill-fame,  knowing  her  to  be  such, 
with  the  intent  that  it  shall  be  let  for  purposes 
of  prostitution,  is  an  indictable  offence  at  com- 
mon law.'     If  a  lodger  lets  her  room  for  the 

Cas.  241.  d-i  Russ.  Cr.  414.  e-2  Wheat.  227.  x-See 
4BI.C0mm.177.  f-i  HawkinsPl.Cr.  Ch.8,<*2:  sCush. 
303.  g-i  East.  PI.  Cr.  260;  see  4  Sharsw.  Bl.  Comm. 
176-204;  RoscoeCr.  Ev.  580.  I1-6C.  i?i  P.  349'  7  Id.  814, 
850 ;  9  Id.  25.  i-2  C.  &  R.  784  :  2  Bisi.op  fr.  L  \  582. 
j-i;  Ired.  603.  fc-3  Pick.  26;  17  Id.  80 ;  t  Russ.  Cr 
(Greaves  Ed.)  322.    I-3  Pick.  26;  11  Curt.  600. 


LAW. 


503 


purpose  of  indiscriminate  prostitution,  she  is 
guilty  of  keeping  a  house  of  ill-fame  as  much 
as  if  she  were  the  proprietor  of  the  whole 
house."  A  married  woman  who  lives  apart 
from  her  husband,  may  be  indicted  alone,  and 
punished  for  keeping  a  house  of  ill-fame."  The 
house  need  not  be  kept  for  lucre  to  constitute 
the  offence.' 

House  of  Refuge  is  an  asylum  or  prison 
for  juvenile  delinquents. 
I  Housebreaking  is  the  breaking  and  enter- 
ing the  dwelling-house  of  another  by  night  or 
by  day,  with  intent  to  commit  some  felony 
within  the  same,  whether  such  felonious  intent 
is  executed  or  not.  Housebreaking  by  night 
is  burglary.  This  crime  is  of  a  local  character 
and  the  evidence  respecting  the  place  must 
correspond  with  the  allegation  in  the  indict- 
ment. 

Impeachment  is  a  written  accusation  by  the 
State  or  federal  house  of  representatives  to  the 
senate  thereof  against  a  State  or  federal  officer. 
The  cause  for,  mode  of,  and  trial  of  impeach- 
ments is  provided  for  by  both  State  and  federal 
constitutions. 

Incest  is  cohabitation  or  sexual  commerce 
between  persons  related  within  the  degrees 
wherein  marriage  is  prohibited  by  the  law.P  It 
is  punished  by  fine  or  imprisonment,  or  both,  in 
the  respective  States. 

Indecency  is  that  which  is  unfit  to  be  seen, 
offensive  to  modesty  and  delicacy .1  The  ex- 
posure by  a  man  of  his  naked  person  on  a  bal- 
cony to  public  view,  or  bathing  in  public,'"  or 
the  exhibition  of  bawdy  pictures,*  are  examples 
of  indecency.  Such  indecencies  are  punish- 
able by  indictment. 

Indictment  is  a  written  accusation  or  for- 
mal charge  of  a  crime  or  misdemeanor  pre- 
ferred to  a  court  by  a  lawfully  constituted 
grand  jury  under  oath.'  The  essential  re- 
quisites of  a  valid  indictment  are:  I.  That 
the  indictment  be  presented  to  some  court 
having  jurisdiction  of  the  offence  stated  there- 
in. 2.  That  it  appear  to  have  been  found  by 
the  grand  jury  of  the  proper  county  or  district. 
3.  That  it  be  found  a  true  bill,  and  signed  by 
the  foreman  of  the  grand  jury,  and  when  re- 
quired by  law  the  prosecuting  attorney.  4. 
That  it  be  framed  with  sufficient  certainty,  con- 
taining a  description  of  the  crime  or  mis- 
demeanor charged,  and  of  facts  constituting 
the  offence.  Where  the  offence  is  created  by 
statute,  a  description  in  the  terms  of  the  statute 

in-2  Ld.  Raym,  1x97.  n-i  Met.  (Mass.)  151;  seen 
Mo.  27;  10  Mod.  63.  0-21  N.  H.  345  ;  2  Gray,  357 ;  18 
Vt.  70.  p-Bishop  Marriage  &  Div.  214,221.  q-See2S. 
&  R.  91.  r-2  Campb.  89  ;  3  Day,  103  ;  1  Dev.  &  B.  208  ; 
18  Vt.  574 ;  s  Barb.  203.  s-2  Chitty  Cr.  L.  42  ;  2  S.  & 
R.  91.  t-4  Bl.  Comm.  299  ;  Co.  Litt.  126 :  i  Chitty  Cr. 
L.  168.  «-6  T.  R.  162.  v-Hawk.  PI.  Cr.  Bk.  2,  Ch. 
25,  i  35.  W-i  Ark.  171  :  9  Yerg.  357  ;  6  Met.  (Mass.) 
225.  X-Hob.  134  ;  Ambl.  307  ;  Russ.  &  R.  196,  154  ;  i 
Leach  Cr.  Cas.  (4th  Ed.)  280,  284  ;  2  Id.  10,  19;  7  C.  & 
R.  428  :  8  Id.  136  ;  I  Den.  Cr.  Cas.  387 ;  Paine  C.  C. 
16  :  2  McLean  C.  C.  14 ;  2  Ind.  207 ;  30  Me.  132  ;  i 
Rice,  145;  4  Harring.  315;  19  Vt.  564;  3  Dev.  114;  i 
Bishop  Cr.  L.  ?  221,  et  sey.  y-Caldw.  397 ;  i  Str.  644 ; 
s  Id.  1074;    9  Co.  81,  a.  ;    i  El.  &  Bl.  43s ;    a  C.  &  P. 


is  sufficient.  5.  It  must  be  in  the  English 
language.  But  any  document  in  a  foreign 
language,  as  a  libel,  may  be  set  out  in  the 
original  tongue,  and  then  the  translation  show- 
ing its  application."  The  formal  requisites  of 
an  indictment  are:  I.  The  name,  which,  at 
common  law,  should  always  be  laid  in  the 
county  where  the  offence  has  been  committed, 
although  the  charge  be  in  its  nature  transitory, 
as  a  battery.'  The  venue  is  stated  in  the 
margin  {i.e.,  at  the  beginning),   thus:  State 

of ,  county  of ,  ss.,  or  city  and  county 

of ,  to  wit.     See  title  Affidavits,  ante.* 

2.  The  presentment,  which  must  be  in  the 
present  tense,  and  is  usually  expressed  as  fol- 
lows: "The  grand  jury  of  the  State  (or  com- 
monwealth) of ,  inquiring  in  and  for  the 

(city  and)  county  of ,  aforesaid,  upon  their 

oaths  and  affirmations,  present."  3.  The  name 
of  the  defendant.  4.  The  time  when  the  offence 
was  committed.  5.  The  place  where  the  of- 
fence was  committed.  6.  The  offence  must 
be  sufficiently  described.  If  the  offence  be 
statutory,  a  description  in  the  terms  of  the 
statute  is  sufficient.     See  Accusation,  above. 

Inducement.     See  Confessions. 

Information  is  in  the  nature  of  an  indict- 
ment, with  this  exception  :  it  is  preferred  by  the 
attorney  of  the  State  instead  of  by  a  grand  jury. 
The  prosecuting  witness  or  witnesses  make 
oath  in  writing  that  a  public  offence  has  been 
committed,  naming  the  accused,  and  stating 
the  time  and  place  of  its  commission.  Upon 
this  affidavit  the  prosecuting  attorney  bases  his 
information — returning  both  affidavit  and  in- 
formation to  court. 

See  Accusation,  "  Indictment,"  above. 

Intention  is  aim,  design,  determination, 
or  purpose.  To  render  an  act  criminal,  a 
wrongful  intent  must  exist.*  And  this  must  be 
combined  with  a  wrongful  act ;  as  mere  intent 
is  not  punishable,^  but  a  wrongful  intent  may 
render  an  act  otherwise  innocent  criminal.* 

Generally,  where  any  wrongful  act  is  com- 
mitted, the  law  will  infer  conclusively  that  it 
was  intentionally  committed,'  and  also  that  the 
natural,  necessary,  and  even  probable  conse- 
quences were  intended. *> 

Where  by  the  common  law  or  by  the  provi- 
sion of  a  statute,  a  particular  intention  is  essen- 
tial to  an  offence,  or  a  criminal  act  is  attempted 
but  not  accomplished,  and  the  evil  intent  only 
can  be  punished,  it  is  necessary  to  allege  the 

414;  7  Id.  156;  3  Mass.  138;  2B.  Mon.  417;  i  Dall. 
33;  9  Ark.  42;  10  Vt.  353 ;  i  Dev.  &B.  121;  Gilp. 
Dist.  Ct.  306;  5  Cranch,  311  ;  but  see  Jebb.  Cr.  Cas. 
48,  n. ;  Russ.  &  R.  308  ;  j  El.  &  Bl.  435 ;  i  Lew.  Cr. 
Cas.  42 ;  I  Russ.  Cr.  (Greaves  Ed.  48.  «-i  Carr.  &  K. 
600;  Carr.  &  M.  236;  2  Allen,  181  ;  i  East.  PI.  Cr.  255; 

1  Bishop  Cr.  L.  §  229,  253.      H-2  Gratt.  594 ;    4  Ga.  14 : 

2  Allen,  179.  b-i  Greeni.  Ev.  §18:3  Id.  13  ;  3  Dowl. 
&  R.  464;    2  Lew.  Cr.  Cas.  237;    3  Maule&S.  11,  15,- 

5  C.  &  P.  538;  8  Id.  143,  148;  9ld.  258,  499:  3  Wash. 
C.  C.  515;  13  Wend.  87;  3  Pick.  304;  15^.337:  5 
Met.  (Mass.)  410;  2  Gratt.  594  ;  i  Bay,  245  ;  9  Humph. 
66  ;   I  Overt,  305  ;  see  also  8  C.  &  P.  143,  274,  582  :  2  C. 

6  K.  356,  777;  Baldw.  C.  C.  370;  4N.  H.  239;  8  Id. 
240  ;  I  Ired.  76 ;  2  Id.  153  ;  5  Id.  350  ;  18  Johns.  115  ;  f 
Blackf.  299 ;  3  Harring.  571 ;  13  Ala.  N.  S.  413. 


5<H 


LAW. 


intent  with  distinctness  and  precision,  and  to 
support  the  allegations  with  proof.  On  the 
other  hand,  if  the  offence  does  not  rest  merely 
in  tendency  or  in  attempt  to  do  a  certain  act 
with  a  wicked  purpose,  but  consists  in  doing 
an  unlawful  or  criminal  act,  the  evil  intention 
will  be  presumed,  and  need  not  be  alleged,  or, 
if  alleged,  it  is  a  mere  formal  averment  which 
need  not  be  proved.* 

Proof  of  intention  may  be  of  external  and 
risible  acts  and  conduct  from  which  the  jury 
may  infer  the  fact,'  or  it  may  be  by  proof  of  an 
act  committed  ;  as  in  the  case  of  burglary  with 
intent  to  steal ;  proof  of  burglary  and  stealing 
is  conclusive.*  < 

When  a  man  intending  one  wrortg  fails,  and 
accidentally  commits  another,  he  will,  except 
where  the  particular  intent  is  a  substantive  part 
of  the  crime,  be  held  to  have  intended  the  act 
he  did  commit.'' 

Jail.  County  Jail  is  a  place  provided  for 
the  confinement  of  persons  arrested  upon  civil 
or  criminal  process,  and  held  in  custody  of  the 
sheriff.  It  is  the  common  place  of  confine- 
ment for  persons  confined  for  contempt  of  court, 
witnesses,  and  persons  without  bail  awaiting 
trial,  and  those  convicted  of  lesser  offences. 
It  is  generally  inhabited  by  the  sheriff  or 
keeper  and  his  family,  and  is  an  inhabited 
dwelling-house  within  the  statutes  against 
arson.' 

Jeopardy  is  exposure  to  danger,  death,  haz- 
ard, or  injury.  This  is  the  situation  of  a  pris- 
oner when  a  trial  jury  is  impanelled  and  sworn 
to  try  his  case  upon  a  valid  indictment.  Such 
Ji  jury  has  been  charged  with  his  deliverance.^ 
And  should  the  prosecution  be  abandoned  at 
•his  stage  of  the  case,  and  the  jury  be  dis- 
fharged,  or  otherwise,  the  prisoner  cannot  be 
again  put  upon  his  trial  by  the  same  jurisdic- 
tion, unless  this  privilege  be  waived  by  the  de- 
fendant.'' 

Justifiable  Homicide.  See  Homicide, 
above. 

Kidnapping  is  the  act  of  stealing  or  forcible 
abduction  of  a  human  being  from  his  own 
home  or  country."  It  includes  false  imprison- 
ment.' A  carrying  away  is  not  essential."  This 
was  a  capital  offence  by  the  Jewish  law ;  and 
is  a  highly  penal  offence  in  all  the  States.  See 
Abduction,  above. 

Knowledge  is  the  power  of  knowing ;  it  is 
a  perception  of  that  which  exists ;  cognizance 
of  truth  and  fact ;  information.  Many  acts  are 
perfectly  innocent  when  the  party  performing 

•S-Bigelow.  C.  J. :  2  Alleti,  i8o;  see  i  Stark.  C.  &  P. 
165 ;  1  Chitty  Cr.  L.  233  ;  6  East.  474  ;  5  Cush.  306.  f- 
8  Co.  146.  g-i  Bishop  Cr.  L.  ??  250,  251 ;  5  C.  &  P. 
510 ;  7  Id.  518  ;  9  Id.  729  ;  2  M.  &  R.  Cr.  Cas.  40.  h- 
Eden.  Pen.  L.  (3d  Ed.)  229;  13  Wend.  159;  21  Pick. 
51s;  2  Met.  (Mass.) 329;  i  Gall.  C.  C.  624:  i  Carr.  & 
K.  746  ;  Roscoe  Cr.  Ev.  272.  I-2  W.  Bl.  682  ;  i  Leach 
Cr.  Cas.  (4  Ed.)  69;  2  East.  PI.  Cr.  1020:  2  Cox  Cr. 
Cas.  6j  ;  18  Johns.  1x5;  4  Coll.  109;  4  Leigh,  683.  j- 
I  Bail.  655  :  7  Blackf.  191  ;  i  Gray,  490  ;  38  Me.  574  ;  8 
S.  &  R.  586;  23  Penn.  St.  12;  12  Vt.  93  ;  i  Bishop  Cr. 
L.  J  660.  li-6  Cush.  560;  37  Me.  156  :  2  Hi>wks.  443  ; 
»  Barb.  427;  4  Dcv.  305  ;  16  Miss.  587  :  i  Bishop  Cr. 
k.  i  679,  et  fff,    1-3  Bishop  Cr.  L.  §  67..     Ul-8  N.  H, 


them  is  not  aware  of  certain  circumstances  at- 
tending them  :  for  example,  a  man  may  pass  a 
counterfeit  note,  and  be  guiltless,  if  he  did  not 
know  it  was  so ;  he  may  receive  stolen  goods, 
if  he  were  not  aware  of  the  fact  that  they  were 
stolen.  In  these,  and  like  cases,  it  is  the  guilty 
knowledge  which  makes  the  crime.  Such 
guilty  knowledge  is  made  by  the  statute  a  con- 
stituent part  of  the  offence;  and,  therefore,  it 
must  be  averred  and  proved  as  such.  But  it  is, 
in  general,  true,  and  may  be  considered  as  k 
rule  almost  necessary  to  the  restraint  and  pun- 
ishment of  crimes,  that  when  a  man  does  that 
which,  by  the  common  law  or  by  statute,  is  un- 
lawful, and,  in  pursuing  his  criminal  purpose, 
does  that  which  constitutes  another  and  differ- 
ent offence,  he  shall  be  held  responsible  for  all 
the  legal  consequences  of  such  criminal  act. 
When  a  man,  without  justifiable  cause,  intends 
to  wound  or  maim  another,  and  in  doing  it, 
kills  him,  it  is  murder,  though  he  had  no  inten- 
tion to  take  life.  But,  in  general,  such  bad 
motive  or  criminal  will  and  purpose — that  dis- 
position of  the  mind  and  heart  which  is  des- 
ignated by  the  generic  and  significant  term 
"malice" — is  implied  from  the  criminal  act 
itself.  But  if  a  man  does  an  act  which  would 
be  otherwise  criminal,  through  mistake  or  acci- 
dent, or  by  force  or  the  compulsion  of  others, 
in  which  his  own  will  and  mind  did  not  insti- 
gate him  to  the  act  or  concur  in  it,  it  is  a  mat- 
ter of  defence,  to  be  averred  and  proved  on 
his  part,  if  it  does  not  rise  out  of  the  circum- 
stances of  the  case  adduced  on  the  part  of  the 
prosecution." 

Larceny  is  the  unlawful  or  felonious  taking 
and  carrying  away  by  one  person  of  the  personal 
goods  and  chattels  of  another  with  intent  to 
convert  them  to  his  own  use,  and  without  the 
consent  of  the  owner.?  Larceny  is  either 
grand  or  petit.  See  Grand  Larceny,  above. 
The  property  of  the  owner  taken  may  be  either 
general'  or  special.""  There  must  be  a  taking 
against  the  consent  of  the  owner,"  and  the 
taking  will  not  be  larceny  if  consent  be  given, 
though  obtained  by  fraud.*  When  the  posses- 
sion of  an  article  is  intrusted  to  a  person  who 
carries  it  away  and  appropriates  it,  this  is  no 
larceny;"  but  where  the  custody  is  merely 
parted  with,  such  misappropriation  is  a  larceny.^ 
The  taking  must  be  in  the  county  where  the 
criminal  is  to  be  tried,"  but  when  the  taking  is 
in  the  county  or  State,  and  the  thief  is  caught 
with  the  stolen  property  in  another  county  than 
that  where  the  theft  was  committed,  he  may  be 

550.  ■-4  Bl.  Comm.  219.  o-Per  Shaw,  C.  J. ;  2  Mrt. 
fMass.)io2.  As  to  proof  of  guilty  knowledge,  see  i 
Hen.  &  B.  Lead.  Cr.  Cas.  185-191.  p-2  East.  PI.  Cr. 
553;  4  Wash.  C.  C.  700.  q-i  C.  &  K.  518;  2  Denio 
Cr.  Cas.  449.  r-io  Wend.  165 ;  14  Mass.  217  ;  13  Ala. 
115  ;  4  Harring.  570;  6  Hill  N.  Y.  144 ;  9  C.  &  P.  44. 
8-8  C.  &  P.  291 ;  9  Id.  36s  ;  I  Denio  Cr.  Cas.  381  ; 
Overt.  68 ;  9  Yerg.  198 ;  20  Ala.  (N.  S.)  428 ;  1  Rich 
30;  2  Nott.  &  M'Cord,  174  ;  Coxe,  439.  t-15  S.  &  R. 
93  ;  9  C.  &  P.  741  :  4  Taunt.  258;  7  Cox  Cr.  Cas.  289. 
U-24  Eng.  L.  &  Eq.  562 ;  4  C.  &  P.  545 ;  5  Id  533  :  « 
Pick.  375;  20  Ala.  (N.  S.)  428;  17  N.  V.  14.  \-6 
Monr.  130;  I  Denio,  120:  11  Q.  B.  929;  i  Deoto  Cr 
Cat.  584.    w-9  C.  &  P.  39 ;  Ky.  &  M.  349. 


LAW. 


505 


Wed  in  the  county  where  arrested  with  the 
goods ;  as,  by  construction  of  law,  there  is  a 
fresh  taking  in  every  county  in  which  the  thief 
carries  the  stolen  property.^  There  must  be 
an  actual  taking  away  of  the  article,"  but  a 
very  slight  removal,  if  it  amounts  to  a  taking 
into  possession,  is  sufficient.'  The  property 
must  be  personal.y  and  it  must  be  of  some 
value  though  but  slight.*  Things  annexed  to 
the  freehold,  as  growing  grain,  grass,  trees,  and 
the  like,  or  lead,  or  fixtures  attached  to  a 
house,  are  not  the  subject  of  larceny  until 
severed.'  Nor  can  larceny  be  committed  of 
things  which  are  not  the  subject  of  property, 
such  as  the  dead  body  of  a  human  being. 
Animals  of  a  wild  nature  unreclaimed,  cannot 
be  the  subject  of  larceny,  for  there  is  no  prop- 
erty in  them  absolute  or  qualified,''  it  is  other- 
wise if  they  are  reclaimed  or  confined."  And 
animals  may  be  of  so  base  a  nature  as  not  to 
be  the  subject  of  larceny,  though  tame  and 
salable,  as  tame  bears,  cats,  dogs,  and  mon- 
keys.* 

League.    See  Conspiracy,  above. 

Levying  War.     See  Treason,  below. 

Limitation  is  a  time  within  which  an  ac- 
cusation may  be  made,  or  an  indictment  found 
or  an  information  made  against  a  person  for  the 
commission  of  a  crime  or  misdemeanor.  Limi- 
tation never  expires  during  the  life  of  the  of- 
fender for  treason  or  murder.  Limitation  in 
cases  of  felony  varies  from  ten  to  two  years ; 
for  misdemeanors  or  the  lesser  offences  it  is 
generally  from  two  years  to  sixty  days. 

Lying  in  wait  is  ambuscade  for  the  pur- 
jKJse  of  murder.  Lying  in  wait  is  evidence  of 
jTemeditation,  malice,  intention,  deliberation. 

Maim;  see  Mayhem,  below. 

Maintenance  is  an  officious  interference  in 
n  suit  in  which  the  offender  has  no  interest,  to 
assist  one  of  the  parlies  against  the  other,  with 
money  or  advice,  to  prosecute  or  defend  the 
action,  without  any  authority  or  interest,  at  law.* 
It  is  the  intermeddling  of  a  stranger  in  a  suit  for 
the  purpose  of  stirring  up  strife  and  continuing 
the  litigation.'  There  are  many  acts  in  the 
nature  of  maintenance  which  become  justifiable 
from  the  circumstances  under  which  they  are 
performed.  Theymay  be  justified  :  i.  Because 
the  party  has  an  interest  in  the  matter  in  vari- 
ance; as,  when  he  has  a  bare  contingency  in 
the  lands  in  question,  which  possibly  may  never 
develop  into  being.*  2.  Because  the  party  is 
of  kindred  or  affinity,  as  father,  son ;  heir  ap- 
parent, husband,  wife,  etc.*'  3.  Because  the 
relation  of  landlord  and  tenant,  master  or  ser- 
vant, etc.,  subsists  between  the  party  to  the  suit 
and  the  person  who  assists  him.     4.  Because 

T-7  Met.  (Mass.)  175.  W-i  Leach  Cr.  Cas.  (4  Ed.) 
*36,  n.  320;  3  Greenl.  Ev.  154:  7  C.  &  P.  552  ;  8  Id. 
egi  ;  8  Ala.  (N.  S.)  328;  I2lred.i57;  9  Yere.  98.  x-2 
East.  PI.  Cr.  556,  617;  I  C.  &  K.  245  ;  i  Dearsl.  Cr. 
Cas.  421.  y-ii  Ired.  70;  3  Hilt,  395  ;  i  Mod.  89;  2 
RoUe,  89  ;  7  Taunt.  188.  K-4  Rich.  356  ;  3  Marring. 
563 ;  7  Met.  (Mass.)  475.  a-i  Hale,  510.  b-2  B.  &  C. 
0!4;  4  D.&S.  518.  C-iHal8,5ii.  d-R.&R.25o;i 
Hale,  512.  e-i  Russ.  Cr.  176.  f-2  Parsions'  Contr. 
966.     §^-6ac.  Abr.  Maintenance.     I1-3  Cow.  633.     i-i 


the  money  is  given  out  of  charity.'  5.  Because 
the  person  assisting  the  party  to  the  suit  is  an 
attorney  or  counsellor;  the  assistance  to  be 
rendered  must,  however,  be  strictly  professional, 
for  a  lawyer  is  no  more  justified  in  giving  his 
client  money  than  another  man.J  See  title  Con- 
tracts, "  Maintenance,"  ante. 

Malpractice.     See  Medical  Law,  below. 

Malice  is  the'  intentional  doing  of  an  un- 
lawful or  felonious  act  without  just  cause  or 
excuse.''  Express  malice  exists  when  the  parly 
evinces  an  intention  to  commit  the  crime.  Im- 
plied malice  is  that  inferred  by  law  from  the 
facts  proved.'  Malice  is  implied  in  every  case 
of  intentional  homicide;  and  the  fact  of  kill- 
ing being  first  proved,  all  the  circumstances  of 
accident,  necessity,  or  informality  are  to  be 
satisfactorily  established  by  the  party  charged, 
unless  they  arise  out  of  the  evidence  produced 
against  him  to  prove  the  homicide,  and  the  cir- 
cumstances attending  it.  If  there  be  in  fact 
circumstances  of  justification,  excuse,  or  pallia- 
tion, such  proof  will  naturally  indicate  them. 
But  where  the  fact  of  killing  is  proved  by  satis- 
factory evidence,  and  there  are  no  circum- 
stances disclosed  tending  to  show  justification 
or  excuse,  there  is  nothing  to  rebut  the  natural 
presumption  of  malice.  It  is  material  to  the 
just  understanding  of  this  rule,  that  it  only  ap- 
plies where  the  killing,  and  nothing  further,  is 
shown.  For  if  the  circumstances  disclosed 
lend  to  extenuate  the  act,  the  prisoner  has  the 
fail  benefit  of  such  facts.™  It  is  a  general  rule 
that  when  a  man  commits  an  act  unaccom- 
panied by  any  circumstances  justifying  its  com- 
mission, the  law  presumes  that  he  has  acted 
advisedly,  and  with  an  intent  to  produce  the 
consequences  which  have  ensued.  And  there- 
fore the  intent  to  kill  is  conclusively  inferred 
from  the  deliberate  violent  use  of  a  aeadly 
weapon." 

Malicious  injuries  are  those  committed 
wilfully  and  wantonly  without  cause." 

Malicious  mischief  is  unlawful,  wilful, 
wanton,  or  reckless  destruction  of  property.  In 
order  to  a  conviction  of  the  offence  of  malicious 
mischief,  the  jury  must  be  satisfied  that  the 
injury  was  done  either  out  of  a  spirit  of  wanton 
cruelty,  or  wicked  revenge.? 

Malicious  trespass  is  a  wilful,  malicious, 
or  mischievous  injury  of  private  or  public  prop- 
erty, real  or  personal.i 

Manslaughter  is  the  unlawful  killing  of 
one  human  being  by  another,  without  malice  or 
intention.'  The  distinction  between  man- 
slaughter and  murder  is,  that  in  the  former, 
though  the  act  which  occasions  the  death  be 

Bail.  401.  J-i  Russ.  Cr.  179;  Bac.  Abr.  MaintenaKce : 
Broke.  Abr.  Maintenance,  k-4  B.  &  C.  ^^25;  9  Met. 
Mass.  104.     l-ii  Hnmphr.  172;    6  Blackf.  299;   i  East. 


PI.  Cr.  371.  m-9  Met.  93  ;  5  Cnsh.  295  ;  3  Gray,  46' 
li-o  Met.  (Mass.)  103;  5  Cush.  305.  o-Chitty  Pr.  131; 
p-Jac.   L.   Diet.  Mischief,  Malicious ;    Alison.  Sc.  L. 


448  ;  3  Cush.  558  ;  2  Met.  (Mass.)  2i  ;  3  Dev.  &  B.  130  ; 
sired.  364;  8  Leigh.  719;  3  Me.  177.  n-13  Ind.  375. 
7  Blackf.  157  ;  5  Id-  3'4:    3  Id.  346;    2  Id.  37' :  8  Inri. 


499  ;  14  Id.  590 ;  21  Id.  206 ;  8  Id.  499  :  7  Id.  270 ;   i  Id. 
51 X ;  8  Id.  377.    r-4  Bl.  Comm.  J90;  i  Hale  PI,  Cr.  ^ 


5o6 


LAW. 


anlawrul,  or  likely  to  be  attended  with  bodily 
mischief,  yet  the  malice,  express  or  implied, 
which  is  the  very  essence  of  murder,  is  pre- 
sumed to  be  wanting  in  manslaughter.  In 
manslaughter  there  can  be  no  accessories  be- 
fore the  fact,  because  there  has  been  no  time 
for  premeditation.*  Involuntary  manslaughter 
happens  without  intention  to  injure.  Voluntary 
manslaughter  happens  from  intention  to  pro- 
duce the  injury.  Homicide  may  become  man- 
slaughter in  consequence  of  provocation;  by 
mutual  combat;  resistance  to  public  officers, 
etc.;  killing  in  the  prosecution  of  an  unlawful 
or  wanton  act ;  or  killing  in  the  prosecution  of 
a.  lawful  act  improperly  performed,  or  per- 
formed without  lawful  authority.  The  provo- 
cation which  reduces  the  killing  from  murder  to 
manslaughter  is  an  answer  to  the  presumption  of 
malice,  which  the  law  raises  in  every  case  of 
homicide ;  it  is,  therefore,  no  answer  where  ex- 
press malice  is  proved.'  And  to  be  available 
the  provocation  must  have  been  reasonable  and 
recent ;  for  no  words  or  slight  provocation  will 
be  sufficient,  and  if  the  party  has  had  time  to 
cool,  malice  will  be  inferred."  In  cases  of 
mutual  combat  it  is  manslaughter  only  when 
one  of  the  parties  is  killed.'  When  death  en- 
sues from  duelling  the  rule  is  different;  and 
such  killing  is  murder.  The  killing  of  an  offi- 
cer by  resistance  to  him  while  acting  under 
lawful  authority  is  murder;  but  if  the  officer 
be  acting  under  a  void  or  illegal  authority,  or 
out  of  his  jurisdiction,  the  killing  is  man- 
slaughter, or  excusable  homicide,  according  to 
the  circumstances  of  the  case."  When  death 
ensues  from  the  performance  of  a  lawful  act, 
it  may  in  consequence  of  the  negligence  of 
the  offender  amount  to  manslaughter.  For 
instance,  if  the  death  has  been  occasioned 
by  negligent  driving.*  Again,  when  death 
ensues  from  the  gross  negligence  of  a  medi- 
cal or  surgical  practitioner,  it  is  manslaughter. 
It  is  no  crime  for  any  person  to  administer 
medicine,  but  it  is  a  crime  to  administer  it 
so  rashly  and  carelessly,  or  with  such  criminal 
inattention,  as  to  produce  death;  and  in  this 
respect  there  is  no  difference  between  the 
most  regular  practitioner  and  the  greatest 
quack.y 

Man-stealing.     See  Kidnapping,'  above. 

Mayhem.  Simple  mayhem  consists  in  vio- 
lently and  unlawfully  depriving  another  of  the 
use  of  any  bodily  member,  or  in  unlawfully 
and  wilfully  disabling  the  tongue  or  eye;  slit- 
ting or  biting  the  nose,  ear,  or  lip  of  another. 
Malicious  mayhem  consists  in  the  purposely, 
and  with  premeditation,  committing  any  of  the 
above  acts.     See  General  Statutes. 

S-i  Hale  PI.  Cr.  2j8;  Foster,  200:  >;  Cush.  304.  t-i 
Russ.  Cr.  440;  Foster,  132;  i  East.  PI.  Cr.  239.  tl-3 
Wash.  C.  C.  515:  4  Penn.  St.  264 :  2  N.  Y.  193;  25 
Miss.  383  ;  3  Gratt.  594  ;  6  Blackf.  299  ;  8  Ired.  344;  18 
Ala.  (N.  S.)  720  ;  15  Ga.  223  ;  10  Humphr.  141 ;  i  C.  & 
K.  556;  5  C.  &  P.  324  ;  6  How.  St.  Tr.  760;  17  Id.  57  ; 
I  Leach  Cr.  Cas.  (4  Ed.)  151.  V-J.  Kef.  58,  119;  4 
Dev.  &  B.  191  ;  1  Jones,  280  ;  2  C.  &  K.  814.  w-i 
Mood.  Cr.  Cas.  80,  132 ;  i  Hale  PI.  Cr.  458;  i  East.  PI. 
Cr.  314;    a  Stark.  N.  P.  Cas.  ao$.      x-x  East.  PI.  Cr. 


At  common  law  mayhem  wa.s  an  injury  to 
any  part  of  a  man's  body  which  might  render 
him,  in  fighting,  less  able  to  defend  himself,  or 
aimoy  his  adversary.*  So,  the  cutting  off  the 
ear  or  nose  was  not  held  mayhem  at  common 
law.** 

Menace.  See  Abuse;  Affront;  Assault, 
above. 

Merger  is  the  absorption  of  a  less  offence 
in  a  greater.  When  a  man  commits  a  great 
crime  which  includes  a  lesser  the  latter  ismerged 
in  the  former.  Murder  when  committed  by 
blows  necessarily  includes  the  assault  and  bat- 
tery; battery  necessarily  includes  an  assault; 
a  burglary  when  accompanied  with  the  felo- 
nious taking  of  personal  property  necessarily 
includes  such  larceny.  In  all  these  and  simi- 
lar cases  the  lesser  crime  is  merged  in  or  swal- 
lowed up  by  the  greater.  But  when  one  of- 
fence is  of  the  same  character  with  the  other, 
there  can  be  no  merger,  as  in  case  of  a  con- 
spiracy to  commit  a  misdemeanor,  and  the 
subsequent  commission  of  the  misdemeanor  in 
pursuance  of  the  conspiracy ;  the  two  crimes 
being  of  equal  degree,  there  can  be  no  legal 
merger."  Where  the  violation  of  a  right 
admits  of  both  a  civil  and  criminal  remedy,  the 
right  to  prosecute  is  not  merged  in  another. 
A  defendant  is  liable  in  a  civil  action  to  the 
party  injured  either  after  his  conviction,"*  or 
acquittal." 

Misdemeanors  are  offences  puni-shable  by 
fine,  or  imprisonment  in  the  common  jail,  or 
both.  They  are  all  offences  inferior  to  felo- 
nies. 

Murder  is  the  act  of  unlawfully  killing  a 
human  being  with  premeditated  malice,  by  a 
person  of  sound  mind  or  in  possession  of  his 
reason.'    See  General  Statutes. 

Mutilation.     See  Mayhem,  above. 

Mutiny  is  the  unlawful  insurrection  01 
revolt  of  soldiers  or  seamen  against  the  author- 
ity of  their  commanders;  open  resistance  of 
officers  or  opposition  to  their  authority.  A 
mutiny  is  properly  the  act  of  numbers ;  but  by 
statutes  and  ordinances  for  governing  the  army 
and  navy,  the  acts  which  constitute  mutiny 
are  multiplied  and  defined ;  and  acts  of  indi- 
viduals, amounting  to  a  resistance  of  the  au- 
thority or  lawful  commands  of  officers,  are  de- 
clared mutiny.  Officers  beginning,  causing, 
exciting,  or  joining  mutiny  are  guilty  of  the 
offence.  Mutiny  is  punishable  in  the  navy 
by  fine  or  imprisonment,  or  both.*  And  in 
the  army  by  death  or  such  other  punishment 
as  a   court   martial  shall  direct.'' 

Necessity  is  that  which  must  not  and  cannot 

263  ;  I  C.  &  P.  320;  6  Id.  129.  y-i  Fost.  &  F.  519, 
52t :  3  C.  &  K.  202  ;  4  C.  &  P.  440  ;  I  Bennett  &  H.  L 
Cr.  Cas.  46-48.  as-4  Bl.  Comm.  219.  w-i  How.  Ch. 
44,  g  I  ;  C.  &  M.  209.  b-4  Bl.  Comm.  205.  C-4  Wend. 
265.  d-Latch,  144;  Noy,82;  W  Jones,  147  ;  Styles, 
346  ;  I  Mod.  282  ;  i  Hale  PI.  Cr.  546.  e-12  East  409  . 
I  Tayl.  58 ;  2  Hayw.  108.  f-Co.  3d  Inst.  47:  4  Bl. 
Comm.  igs ;  2  Chitty  Cr.  I..  724  |;-Laws  U.  S.  1790. 
Vol.  I,  Ch.  9,  ^9,  12,  pp  113,  lis  ;  Revision  1873-4,  ^J 
S359.  5360-  h-Laws  U.  S.  1815,  Vol.  3,  Ch.  38,  j  7, 
Revision  1873-4,  J  1342,  Arts.  21,  22,  23. 


LAW. 


507 


be  otherwise,  that  which  makes  the  contrary 
of  a  thing  impossible.  If  man's  actions  are 
determined  by  causes  beyond  his  control  he 
acts  from  necessity,  and  is  not  responsible — 
nevertheless,  no  man  can  plead  necessity  in 
excuse  for  crime. 

Night  Walkers  are  those  who  sleep  by 
day  and  walk  by  night  for  some  unlawful  pur- 
suit.    They  are  liable  to  arrest.' 

Obscenity.    See  Indecency,  above. 

Obstructing  Process  is  any  act  by  which 
one  or  more  persons  attempt  to  prevent,  or  do 
prevent  the  due  execution  of  lawful  process. 
This  is  an  offence  against  public  justice  of  a  very 
high  and  presumptive  nature;  and  more  partic- 
ularly so  where  the  obstruction  is  upon  crimi- 
nal process ;  a  person  opposing  an  arrest  upon 
criminal  process  becomes  thereby  an  accessory 
in  felony,  and  a  principal  in  high  treason.J 
The  officer  must  be  prevented  by  actual  vio- 
lence, or  by  threatened  violence,  accompanied 
by  the  exercise  of  force,  or  by  those  having 
capacity  to  employ  it,  by  which  the  officer  is  pre- 
vented from  executing  his  writ.  The  officer 
is  not  required  to  expose  his  person  by  a  per- 
sonal conflict  with  the  offiinder." 

Obstructions  TO  highways;  Navigation; 
Streams;  Railways;  etc.  See  General 
Statutes. 

Overt  Acts  are  those  which  are  open  to 
view,  apparent,  unconcealed.  Thus,  an  overt 
act  of  treason  is  distinguished  from  a  secret 
design  or  intention  not  carried  into  effisct ;  and 
even  from  words  spoken.  An  overt  act  of 
treason  is  proof  of  the  intention  of  the  traitor, 
because  it  opens  his  designs ;  without  an  overt 
act,  treason  cannot  be  committed.' 

Pardon  is  an  act  of  grace  proceeding  from 
the  power  intrusted  with  the  execution  of  the 
laws  (or  a  body  having  power  therefor)  which 
exempts  an  individual  upon  whom  it  is  be- 
stowed from  the  punishment  the  law  inflicts 
for  a  crime  he  has  committed.™  Absolute 
pardon  frees  the  criminal  unconditionally. 
Conditional  pardon  frees  the  criminal  upon 
performance  of  the  conditions  annexed,  and 
not  otherwise."  General  pardon  extends  to  all 
offenders  of  the  same  kind ;  and  is  either  ex- 
press, as,  when  a  general  declaration  is  made 
that  all  offenders  of  a  certain  class  shall  be 
pardoned,  or  implied,  as  in  case  of  the  repeal 
of  a  penal  statute." 

The  pardoning  power  is  lodged  in  the  ex- 
ecutive of  the  United  States  and  of  the  various 
States,  and  in  boards  established  by  law.  In 
some  Slates  a  concurrence  of  one  of  the  legis- 

i-See  2  Hawk.  PI  Cr.  120;  3  Taunt.  T4;  Hammond 
N.  P.  135.  j-4  Bl.  Comm.  128;  Hawk.  PL  Cr.  Ch.  17, 
2  I  ;  I  Russ.  Cr.  360.  lt-2  Wash.  C.  C.  169  ;  see  3  Id. 
335  ;  12  Ala.  (N.  S.)  199.  I-2  Chitty  Cr.  L.  40;  Arch. 
Cr.  PL  379;  4  Sharsw.  Bl.  Comm.  79 ;  Co.  3d  Inst.  12 ; 
1  Dall.  33  ;  2  Id.  346;  i  Cranch,  75;  3  Wash.  234;  2 
Gabbett  Cr.  L.  890,  Etoi.  m-7  Pet.  160.  n-i  Bail. 
283;  loArk.  2S4;  I  ^l'Cord,  176;  i  Park.  Cr.  Cas.  47. 
0-2  Overton,  423.  p-4  Sharsw.  Bl.  Comm.  400;  3 
Wash.  C.  C.  335 :  7  Ind.  359  ;  i  Jones,  i.  q-i  M'Cord, 
176;  I  Bail.  283;  2  Id.  516;  2  Caiues,  57;  1  Park.  Cr. 
Cas.  47;  see  3  Johns.  Cas.  333  ;  9  Part.  (Ind.)  20;  i 
Bay,  334.     r-ioAla.  475;    i  Bay,  34.    8-12  Pick.  496; 


lative  bodies  is  required.  It  is  to  be  exercised 
in  the  discretion  of  the  power  with  whom  it  is 
lodged.  In  order  to  render  pardon  valid,  it 
must  express  with  accuracy  the  crime  intended 
to  be  forgiven.P  In  case  of  a  conditional  par- 
don, if  there  be  a  breach  of  condition,  the 
pardon  is  avoided."!  The  effect  of  pardon  is  to 
protect  from  punishment  the  criminal  for  the 
offence  pardoned,  but  for  no  other.'  But  par- 
don for  an  assault  and  battery  which  afterwards 
becomes  murder  will  not  operate  as  a  pardon 
of  the  murder."  In  general,  the  effect  of  a 
full  pardon  is  to  restore  the  convict  to  all  his 
rights ;  but  to  this  there  are  some  exceptions. 
I.  It  does  not  restore  civic  capacity.'  2.  It 
does  not  affect  a  status  of  other  persons  which 
has  been  altered,  or  a  right  which  has  accrued, 
in  consequence  of  the  commission  of  the  crime 
or  its  punishment."  When  pardon  is  general, 
either  by  an  act  of  amnesty,  or  by  the  repeal 
of  a  penal  law,  it  is  not  necessary  to  plead  it ; 
because  the  court  is  bound,  exoffido,  to  take 
notice  of  it;^  and  the  criminal  cannot  waive 
such  pardon,  because  by  his  admittance  no  one 
can  give  the  court  power  to  punish  him  when 
it  judicially  appears  there  is  no  law  to  do  it. 
But  when  the  pardon  is  special,  to  avail  the 
criminal  it  must  judicially  appear  that  it  has 
been  accepted,  and  for  this  reason  it  must  be 
specially  pleaded,''  and  if  he  has  obtained  a 
pardon  before  arraignment,  and  instead  of 
pleading  it  in  bar  he  pleads  the  general  issue, 
he  is  deemed  and  taken  to  have  waived  the 
benefit  of  it,  and  he  cannot  afterwards  avail 
himself  of  it  in  arrest  of  judgment.'' 

All  contracts  made  for  buying  or  procuring  a 
pardon  for  a  convict  are  void.' 

Penalties  are  pecuniary  punishments  for 
the  commission  of  public  offences.  See  Fines, 
above. 

Perjury  is  the  act  or  crime  of  (wilfully  and 
corruptly)  making  a  false  oath  when  lawfully 
administered'  in  any  judicial  proceeding.'  The 
intention  must  be  wilful;  the  oath  must  be 
taken  and  the  falsehood  asserted  with  delib- 
eration and  consciousness  of  the  nature  of 
the  statement  made ;  for  if  it  has  arisen  in 
consequence  of  inadvertency,  surprise  or  mis- 
take of  the  import  of  the  question,  then 
there  is  no  corrupt  motive.*  The  oath  must  be 
false;  the  party  must  believe  that  what  he  is 
swearing  is  false.  The  party  must  be  lawfully 
sworn ;  an  oath  therefore  taken  by  a  private 
person  or  before  an  officer  having  no  jurisdic- 
tion will  not  amount  to  perjury.  The  pro- 
ceedings must  be  judicial;"  and  perjury  cannot 

see  Plowd.  401  ;  1  Hall,  426.  t-2  Leigh,  724;  see  i 
Strobh.  150;  2  Wheel.  Cr.  Cas.  451;  33  N.  H.  388.  u- 
10  Johns.  232  ;  4  Wash.  C.  C.  64  ;  2  Bay,  565  ;  5  Gil- 
man,  214.  v-i  Baldw.  C.  C.  91.  W-7  Pet.  150,  162. 
X-i  Rolle,  297;  see  i  Dyer,  34,  a;  Keilw.  58;  T. 
Raym.  13  ;  3  Met.  (Mass.)  453.  y-4  Bouv.  Inst.  n. 
3857.  z-Co.  a-2  Bishop  Cr.  L.  §  860  ;  4  Elackf.  355  ; 
7  Id.  25,  49  ;  8  Id.  452.  b-Hawk.  PL  Cr.  Bk.  i,  Ch.  ^, 
g  2  ;  Coke  Eliz.  492  ;  2  Shaw.  165  ;  4  McLean  C.  C. 
113  ;  3  Dev.  114  ;  7  Dowl.  &  R.  665  :  5  B.  &  C.  346 ;  7 
C.  &R.  17;  iiQ.  B.  1028;  1  Rob.  729;  3  Ala.  (N. 
S.)  602.  c-5  Mo.  21 ;  I  Bail.  595 ;  11  Met.  (Mass.)  400;  5 
Humph.  83;  I  Johns.  49;  Wright,  173;  Russ.  &  R.  459, 


5-8 


LAW. 


be  committed  when  the  matter  is  not  regularly 
before  the  court.*  The  assertion  must  be  ab- 
solute; but  if  a  man  swears  that  he  believes 
that  to  be  true  which  he  knows  is  false,  it  will 
be  perjury,*  and  it  is  immaterial  whether  the 
testimony  is  given  in  answer  to  a  question  or 
voluntarily.'  On  a  question  of  estimation  of 
the  value  of  a  thing  in  question,  there  can  be 
no  perjury,*  unless  in  some  cases  a  false  state- 
ment of  opinion  may  become  perjury .•■  The  oath 
must  be  material  to  the  question  depending.* 
Perjury  may  be  committed  by  making  a  false 
affirmation  as  well  as  a  false  oath,  by  an  atheist, 
heathen,  Jew,  etc.,  as  well  as  a  Christian. 

Personation  (false)  is  the  assumption  of 
the  character  of  another  without  lawful  author- 
ity, for  the  purpose  of  committing  some  act  to 
the  prejudice  of  him  pei-sonated,  without  his 
consent.  This  was  a  misdemeanor  at  common 
law  and  punishable  as  such.J  See  General 
Statutes. 

Petit  Larceny.  See  Grand  Larceny, 
above. 

Petit  Treason.  See  Overt  Act,  above ; 
Treason,  below. 

Piracy  is  the  unlawful  act,  practice,  or 
crime  of  robbery  or  forcible  depredation  on  the 
high  seas ;  a  crime  that  answers  to  robbery  on 
the  land.*  The  penalty  for  this  offence  is 
death."    See  title  Copyright,  above. 

Polygamy,     See  Bigamy,  above. 

Premeditation.  See  Intention;  Mal- 
ice, etc.,  above. 

Presentment.     See  Indictment,  above. 

Principal.     See  Accessory,  above. 

Profanity.     See  General  Statutes. 

Prosecutor.    See  Accusation,  above. 

Prostitution.  See  House  of  III- fame; 
I^EWDNESS ;  Night-walker,  above. 

Provocation  is  that  which  excites  anger; 
the  cause  for  resentment.  No  words,  epithets, 
or  vituperation  whatever  will  justify  an  assault, 
or  assault  and  battery.  Provocation  simply, 
unaccompanied  by  a  crime  or  misdemeanor, 
will  not  justify  any  breach  of  the  peace.  In 
case  of  homicide,  provocation  shown  to  be 
sufficient  may  reduce  the  offence  from  murder 
to  manslaughter.  But  when  the  provocation  is 
given  for  the  purpose  of  justifying  or  excusing 
an  intended  murder,  and  the  party  provoked  is 
killed,  it  is  no  justification.™ 

Punishment  is  some  fine,  forfeiture,  or  pen- 
alty prescribed  or  warranted  by  law,  inflicted 
upon  and  suffered  by  a  person  for  the  commis- 
sion of  a  public  offence,  or  for  the  omission  of 
some  duty  or  act  required  by  law,  lawfully  im- 
posed by  a  competent  judicial  tribunal.     The 

d-4  Hawks.  182;  2  Hayw.  56;  3  M'Cord,  308:  8 
Pick.  453  :  I  Nott.  &  M'C.  546 ;  9  Mo.  824  ;  18  Barb. 
407;  10  Johns.  167;  26Me.  J3;  7  Blackf.  25  ;  5  B.  & 
Aid.  634;  1  C.  &P.  258;  9  Id.  513.  e-ioQ.  B.  670;  3 
Wils.  427;  2W.  BI.  881;  I  Leach,  242:  6Binn.249: 
Gilbert  Ev.  (Lofft  Ed.)  662.  f-3  Zabr.  49  ;  12  Met. 
(.Mass.)  g-Sid.  146;  I  Kebl.  510.  h-io  Q.  B.  670 ;  15 
III-  357  ;  3  Ala.  (N.  S.)  602  ;  3  Strobh.  147 :  6  Blackf^ 
62  ;  I  Leach  Cr.  Cas.  (4  Ed.)  325.  l-i  T.  R.  63;  12 
Mass.  274 ;  3  Murph.  123  ;4Mo.47;2lll.8o;9  Miss. 
149;    6  Penn.  St.  170;    2  Cush.  212.     j-2  East.  PI.  Cr. 


object  of  punishment  is  two-fold:  to  reform 
the  offender,  and  deter  him  and  others  from 
committing  like  offences ;  and  to  protect  so- 
ciety." 

Punishments  may  be  corporal  or  otherwise: 
corporal  by  death,  whipping,  imprisonment,  or 
banishment,  etc.;  otherwise  by  fine,  forfeiture, 
or  other  deprivation  or  penalty  imposed  upon 
the  goods  of  the  offender,  etc. 

Putting  in  Fear.  See  Piracy,  above ; 
Robbery,  below. 

Quarrel.  See  Affray  ;  Duelling,  above. 

Rape  is  the  carnal  knowledge  of  a  woman 
by  a  man,  forcibly  and  against  her  will.  The 
knowledge  of  a  woman's  person  must  be  forcibly 
and  against  her  will ;  and  if  her  consent  has 
not  been  voluntarily  and  freely  given,  the  offence 
is  complete ;  nor  will  any  subsequent  acquies- 
cence on  her  part  do  away  with  the  guilt  of  the 
ravisher.  A  consent  obtained  from  a  woman 
by  actual  violence,  by  confinement,  or  threats 
of  murder,  or  by  the  administration  of  stupefy- 
ing drugs,  is  not  such  a  consent  as  will  shield 
the  offender,  or  turn  his  crime  into  adultery  or 
fornication;  and  if  the  connection  took  place 
when  she  was  in  a  state  of  insensibility  from 
liquor,  having  been  made  drunk  by  the  prisoner, 
though  the  liquor  was  given  only  for  the  pur- 
pose of  exciting  her,  it  is  a  rape.*  Having  car- 
nal knowledge  with  a  woman  by  a  fraud  which 
induces  her  to  suppose  it  is  her  husband  does 
not  amount  to  rape  ;P  but  the  party  may  be  in- 
dicted for  assault.  A  husband  cannot  be  guilty 
of  a  rape  on  the  wife,  for  his  act  is  not  unlaw- 
ful ;  but  he  may  be  a  principal  in  the  second 
degree  of  a  rape  committed  on  his  wife,  as 
where  he  held  her  while  his  servant  committed 
the  rape.i  As  a  child  under  ten  years  of  age 
is  incapable,  at  law,  of  giving  her  consent,  if: 
follows  that  the  offence  may  be  committed  on 
such  child  whether  she  consents  or  not. 

A  male  infant  under  fourteen  years  of  age  is 
supposed  by  law  incapable  of  committing  the 
ofTence.*"  But  not  only  can  an  infant  under 
fourteen  years,  if  of  sufficient  mischievous  dis- 
cretion, but  even  a  woman  may  be  guilty  as 
principal  in  the  second  degree. 

Above  the  age  of  fourteen  years  a  male  is 
always  presumed  capable  of  this  offence. 

Penetration  alone,  without  emission,  is  suffi- 
cient." 

Reprieve  is  a  withdrawal  of  sentence  for 
an  interval  of  time,  and  operates  in  delay  of 
execution.'  It  is  granted  by  the  favor  of  the 
pardoning  power.  They  are  granted  from  a 
necessity  of  law ;  for  example,  when  a  woman 
is  convicted  of  a  capital  offence,  after  judgment 

1010;  2  Russ.  Cr.  479.  fe-3  Wheat.  610 ;  5  Id.  153, 
163  ;  3  Wash.  C.  C.  209  ;  i  Kent  Comm.  183.  x-Laws 
U.  S.  1790,  Vol.  I,  Ch.9,  i  no,  p.  1J4.  in-2  Gilbert  Ev. 
(Lofft)  753.  11-See  4  Sharsw.  Bl.  Comm.  7;  Ruther- 
ford Inst.  Bk.  i.  Ch.  18.  o-i  Denio  Cr.  Cas.  89  ;  i  C. 
&  K.  746.  p-Russ.  &  R.  487  ;  6  Cox  Cr.  Cas.  412  • 
Dearsl.  Cr.  Cas.  397  :  8  C.  &  P.  265.  286;  i  C.  &  K. 
41S.  q-i  Hargrave  St.  Tr.  388.  r-i  Hale  PI.  Cr.  631; 
8  C.  &  P.  738.  »-Addis.  143;  a  Con.'st.  351 ;  i  Beck. 
Med.  Jur.  140;  4  Chitty  Bl.  Comm.  313,  n.  S.  t-4  BL 
Comm.  394. 


LAW. 


509 


she  may  allege  pregnancy,  in  delay  of  execu- 
tion." The  court  is  also  bound  to  grant  a  re- 
prieve when  the  prisoner  becomes  insane.^ 

Requisition.  See  Fugitive  from  Justice, 
above. 

Reprimand  is  censure  pronounced  by  a 
public  officer  against  an  offender.  This  species 
of  punishment  is  used  by  legislative  assemblies  to 
punish  members  or  others  guilty  of  impropriety 
of  conduct  toward  them  or  the  presiding  officer. 
It  is  usually  delivered  by  the  Speaker. 

Rescue.     See  Arrest,  Escape,  above. 

Respite.     See  Reprieve,  above. 

Riots  are  acts  done  in  a  violent  and  tumultu- 
ous manner,  by  three  or  more  persons,  to  the 
terror  of  the  people,  whether  the  act  intended 
was  \awful  or  unlawful.'*  A  riot  cannot  be 
committed  by  fewer  than  three  persons ;'  a 
judgment  against  one  person  for  a  riot  would 
be  void.y  It  must  be  proved:  i.  That  there 
was  an  unlawful  assembling,*  or  a  lawful  assem- 
bly converted  into  a  riot."  2.  That  there  was 
actual  violence  and  force  on  the  part  of  the 
rioters,  or  such  a  tendency  to  force  and  violence 
as  to  strike  terror  to  the  public  mind.*"  3. 
That  the  defendants  acted  in  the  riot,  and  were 
participants  in  the  disturbance.* 

Robbery  is  the  forcible  and  felonious  taking, 
from  the  person  of  another,  goods,  money,  per- 
sonal property  or  any  article  of  value,  by  vio- 
lence or  putting  in  fear.^  The  property  must 
be  taken  by  force  or  putting  in  fear,*  and  fear 
must  be  induced  from  apprehension  of  danger.' 
The  knocking  down  of  a  man  ;  the  snatcliing 
of  an  ear-ring  from  the  ear;K  pulling  out  a 
watch  from  a  fob,  by  the  chain,'*  are  examples 
of  violence ;  but  snatching  property  from  a 
person  unawares  will  not  be  robbery  unless 
some  injury  is  done  to  the  person.'  Presenting 
a  pistol  and  demanding  money  ;3  threatening 
to  take  and  kill  another  child ;''  to  destroy 
one's  house  ;•  are  examples  of  putting  in  fear. 

Obtaining  money  by  false  pretences,  misrep- 
resentation or  fraud,  unaccompanied  by  vio- 
lence or  putting  in  fear,  is  not  robbery. 

If  the  property  is  once  taken  it  will  be  no 
defence  that  the  robber  delivered  it  back  to 
the  owner." 

If  a  man  under  an  impression  that  the  prop- 
erty is  his  own  obtain  it  by  threats,  it  is  merely 
trespass  and  not  robbery." 

Rout  is  a  clamorous  and  tumultuous  assem- 
bly. It  is  a  disturbance  of  the  peace  by  per- 
sons assembled  to  do  a  thing  which,  if  executed, 
would  have  made  them  rioters.     It  generally 

n-See  Co.  3d  Inst.  17 :  i  Hale  PI.  Cr.  368 ;  2  Id.  413  ; 
4  Bl.  Comm.  395.  V-4  Hargrave  St.  Tr.'2o5,  206;  Co. 
3d  Inst.  4:  Hawk.  PI.  Cr  Bk.  t,  Ch.  i,  ?  4  ;  i  Chitty 
Cr.  L.  7S7.  w-Hawk.  PI.  Cr.  Ch.  65,  ?  i  ;  see  3  Blackf. 
209;  4  Id.  72;  3  Rich.  337;  5  Penn.  St.  83.  x-3  Inst. 
176.  y-4  Blackf.  72.  z-i8  Me.  346:  2  Campb.  328. 
a-isN.  H.  169.  b-2  Campb.  369  :  see  i  Hill  fS.  Ca.) 
362.  «-i  Mc*-r.  142.  d-4  Bl.  Comm.  243 ;  1  Baldw.  C. 
C.  t02  ;  see  12  Ga.  293.  e-15  Ind.  288.  f-Fost.  128. 
Sg-i  Leach  Cr.  Cas.  320,  335.  h-R.  &  R.  419.  1-2 
East.  PI.  Cr.  702,  709;  I  Leach,  290 ;  i  C.  &  P.  304. 
J-Fost.  120.  k-3  East.  PI.  Cr.  718,  735.  1-Id.  731. 
m-i  Hawk.  Ch.  34,  9  2  ;  »  Hale,  533.  11-3  C.  &  P. 
409.      o-Hawk.  PI.  Cr.  Ch.  65,  g  14 ;    i  Russ.  Cr.  253  ; 


agrees  in  all  particulars  with  a  riot,  except 
only  in  this — that  it  may  be  a  complete  offence 
without  the  execution  of  the  intended  purpose.* 

Subornation  of  Perjury  is  the  offence  of 
procuring  another  to  commit  legal  perjury, 
\yho,  m  consequence  of  the  persuasion,  takes 
the  oath  to  which  he  has  been  incited. p  To 
complete  the  offence  the  false  oath  must  be 
actually  taken,  and  no  abortive  attempt  to 
solicit  will  complete  the  crime."'  But  the 
criminal  solicitation  to  commit  perjury,  though 
unsuccessful,  is  a  misdemeanor  at  common  law.' 

Surrender  of  Criminal.  See  Fugitive 
from  Justice,  above. 

Swear.  See  Perjury;  Subornation  of 
Perjury,  above. 

Swindler.  See  False  Pretences; 
Fraud,  etc.,  above. 

Smuggling  is  the  unlawful  and  fraudulent 
taking  into  a  country  or  out  of  it  any  articles 
of  merchandise  prohibited  by  law,  or  to  avoid 
the  payment  of  duties  upon  the  same. 

Sodomy  is  a  carnal  copulation  by  humtin 
beings  with  each  other  against  nature,  or  with 
a  beast."  It  may  be  committed  between  two 
persons,  both  of  whom  consent,  even  between 
husband  and  wife;'  and  both  may  be  indicted." 
Penetration  of  the  mouth  is  not  sodomy.'^ 

Stealing.     See  Larceny,  above. 

Seconds.    See  Duelling,  above. 

Self-Defence  is  the  act  of  defending  one's 
person  and  property  from  injury. 

A  man  may  defend  himself  and  even  com- 
mit a  homicide  for  the  prevention  of  any  forci- 
ble and  atrocious  crime,  which,  if  completed, 
would  amount  to  a  felony,"  and,  of  course, 
under  like  circumstances,  mayhem,  wounding 
and  battery  would  be  excusable  at  common 
law.^  A  man  may  repel  force  by  force  in 
defence  of  his  person,  properly,  or  habita- 
tion against  any  one  who  manifests,  intends, 
attempts,  or  endeavors,  by  violence  or  surprise, 
to  commit  a  forcible  felony,  such  as  murder, 
rape,  robbery,  arson,  burglary,  and  the  like. 
In  these  cases  he  is  not  required  to  retreat, 
but  he  may  resist,  and  even  pursue  his  adver- 
sary, until  he  has  secured  himself  from  all 
danger.' 

A  man  may  defend  himself  when  no  felony 
has  been  threatened  or  attempted:  I.  When 
the  assailant  attempts  to  beat  another,  and 
there  is  no  mutual  combat;  as  where  one 
meets  another  and  attempts  to  commit  or  does 
commit  an  assault  and  battery  on  him,  the 
person  attacked  may  defend  himself;*  and  in 

4  Bl.  Comm.  140  ;  Viner  Ahr.  Riots,  etc.  (A.  2) ;  Com. 
Dig.  Forcible  Entry,  etc.  (D.  9).  l»-Hawk.  PI.  Cr. 
Bk.  1,  Ch.  6g,  ^  10.  «|-2  Show,  i ;  5  Met.  (Mass.)  241. 
r-2  East.  17  ;  6  Id.  464  ;  2  Chitty  Cr.  L.  317,  480.  n-a 
Bishop  Cr.  L.  t-8  C.  &  P.  604.  n-i  Dcnio  Cr.  Cas. 
464:  2  C.  &  K.  869  v-Russ.  &  R.  Cr.  Cas.  331.  As 
to  emission,  see  12  Co.  36;  i  Va.  Cas.  307.  w-17  Ala. 
(N.  S.)587;  5  Ga.  85  :  1  Jones,  190;  30  Miss.  619:  14 
B.  Mon.  103,  614  ;  3  W*h.  C.  C.  515.  x-i  East.  PI. 
Cr.  271  :  4  Bl.  Comm.  180.  y-7  J.  J.  Marsh,  478;  4 
Bingh.  628.  A  woman  may  defend  her  chastity  by  kill- 
mg  her  assailant,  x-4  Denio,  448  ;  Hill  Mc  D.  229  ;  34 
Vt.  218  ;  J  Harring.  22  ;  3  Brev.  515  ;  5  Gray,  475  ;  3  C 
&  P.  31 ;  9  Id.  474;  see  10  Ired.  314. 


Sio 


LAW. 


case  of  an  offer  or  atlempt  to  strike  another, 
when  sufficiently  near,  so  that  there  is  danger, 
the  person  assailed  may  strike  first,  and  is  not 
required  to  wait  until  he  has  been  struck.*  2. 
When  there  is  a  mutual  combat  upon  a  sudden 
quarrel.  In  these  cases  both  parties  are  ag- 
gressors; and  if  in  the  fight  one  is  killed,  it 
will  be  manslaughter  at  least,  unless  the  sur- 
vivor can  prove  two  things,  viz.,  that  before 
the  mortal  stroke  was  given,  he  had  refused 
any  further  combat,  and  had  retreated  as  far  as 
he  could  with  safety,''  and  that  he  killed  his 
adversary  from  necessity,  to  avoid  his  own 
destruction.' 

A  man  may  defend  himself  against  animals, 
and  he  may,  during  the  attack,  kill  them,  but 
not  afterwards.* 

Taking.     See  Assault,  above. 

Terror.  See  Affray;  Riot;  Rout, 
above. 

Thought.    See  Intention  ;  Malice. 

Treason  is  the  actual  levying  war  against 
the  United  States ;  adhering  to  their  enemies 
and  giving  them  aid  and  comfort.  In  England 
high  treason  affects  the  sovereign  or  state,  such 
as  offences  above  enumerated.  Petit  treason 
affects  only  individuals,  as  breach  of  fidelity. 
Treason  is  the  highest  crime  of  a  civil  nature 
of  which  a  man  can  be  guilty.  It  is  punishable 
by  death  or  imprisonment  at  hard  labor,  not 
less  than  five  years,  and  fine  not  less  than  ten 
thousand  dollars,  and  disqualification  for  any 
office  under  the  United  States.*  No  person 
can  be  convicted  of  treason  unless  on  the  testi- 
mony of  two  witnesses  to  the  same  overt  act, 
or  on  con'"ession  in  open  court. 

Trf^pass.  See  Malicious  and  Mischiev- 
ous Trespass,  above. 

Unlaw^ful  Assembly  is  a  disturbance  of 
the  public  peace  by  three  or  more  persons,  who 
meet  together  with  an  intent  mutually  to  assist 
each  other  in  some  unlawful  enterprise  of  a 
private  nature  with  force  and  violence.  If  they 
move  forward  towards  its  execution  it  is  then  a 
rout;  if  they  actually  execute  their  design  it 
amounts  to  a  riot.' 

Vagrants  are  described  as  follows : 

1.  "All  persons  who  unlawfully  return  into 
any  district  whence  they  have  been  legally  re- 
moved, without  bringing  a  certificate  from  the 
proper  authorities  of  the  city  or  district  to 
which  they  belong,  stating  that  they  have  a 
settlement  therein." 

2.  "All  persons  who  refuse  to  perform  the 
work  which  shall  be  allotted  to  them  by  the 
overseers  of  the  poor,  as  provided  by  law." 

»-B.  N.  P.  18 ;  2  Roll.  Abr.  547.  b-8  N.  Y.  396;  4 
Dev.  &B.  491;  isGa.  117;  17  Id.  465;  pired.  485; 
10  Id.  214 ;  1  Ohio  St.  66  :  i  Hawks.  78  ;  210  Selfndge's 
C"a%c.  c-32  Me.  279;  3Halsc.  220;  11  Humph,  zoo;  4 
liarb.  460 ;  2  N.  Y.  193  ;  Coxc,  424  ;  25  -AU.  (N.  S.l  15  ; 
8  H.  Men.  49 ;  16  III.  17.  d-i  C.  &  P.  106  ;  10  Johiu,. 
365  ;  13  Id.  12.  e-Laws  U.  S.  i8bJ,  Vol.  12,  Ch.  19s,  H 
>i  3.  !'•  '^89  ■  Revision  1873-4,??  s3.u-.<.  f-4  HI.  Coinm. 
J 40;  I  Russ.  Cr.  »S4  ;  Hawk.  PI  Or.  Ch.  05,  >  9  ,  Com. 
Dig.  Forcible  Eiit.  (D.  10);  Vincr  Abr.  Riots,  etc. 
\A.)  h-See  Domicii.  ante.  i-Storv  Couil.  L.  Jiu, 
«;  9  Me.  140;  a  liUckf.  407;  8  Ala.  (K.  S.)  4S>  n  U- 


3.  "All  persons  going  about  from  door  to 
door,  or  placing  themselves  in  streets,  high- 
ways, or  other  roads,  to  beg  or  gather  alms, 
and  all  persons  wandering  abroad  and  begging, 
who  have  no  fixed  place  of  residence  in  the 
township,  ward,  or  district  in  which  the  vagrant 
is  arrested." 

4.  "All  persons  who  shall  come  from  any 
place  without  the  State  or  Commonwealth  to 
any  place  within  it  and  shall  be  found  loitering 
or  residing  therein,  and  who  follow  no  labor, 
trade,  occupation,  or  business,  and  have  no» 
visible  means  of  subsistence,  and  can  give  no 
reasonable  account  of  themselves  or  their  busi- 
ness in  such  place." 

The  punishment  for  this  offence  is  labor  upon 
the  poor  farm,  upon  the  roads  or  highways,  or 
confinement  in  the  common  jail,  work-house, 
house  of  correction,  or  poor-house  for  a  term 
of  from  ten  days  to  six  months.  See  General 
Statutes. 

DOMICII LAW   OF. 

DOMICIL  is  that  place  where  a  man  has  his 
true,  fixed,  and  permanent  home  and  principal 
establishment,  and  to  which,  whenever  he  is 
absent,  he  has  the  intention  of  returning.*' 

The  law  of  the  place  of  domicii  governs  as 
to  all  acts  of  the  parties  when  not  controlled 
by  the  law  of  the  place  where  the  contract  was 
made  or  law  of  the  place  where  the  thing  is 
situated.  Personal  property  of  the  woman  fol- 
lows the  law  of  domicii  upon  marriage.  A  di- 
vorce valid  under  the  law  of  domicii  of  both 
parties  is  good  everywhere.'  But  there  must 
be  an  actual  domicii  of  one  party  at  least,!  and 
personal  jurisdiction  over  both  parties  to  make 
a  divorce  binding  extra  territorially.* 

The  state  and  condition  of  the  person,  ac- 
cording to  the  law  of  his  domicii,  will  gen- 
erally, though  not  universally,  be  regarded  in 
other  countries  as  to  acts  done,  rights  acquired, 
or  contracts  made  in  the  place  of  his  native 
domicii ;  but  as  to  acts,  rights,  and  contracts 
done,  acquired  or  made  out  of  his  native  domi- 
cii, the  law  of  place  will  generally  govern  in 
respect  to  his  capacity  and  condition.'  If  a 
person  goes  into  a  foreign  country  and  engages 
in  trade  there,  he  is,  by  the  law  of  nations,  to 
be  considered  a  merchant  of  that  country,  and 
subject  for  all  civil  purposes,  whether  that 
country  be  hostile  or  neutral,"  and  this  whether 
the  effect  be  to  render  him  hostile  or  neutral  in 
respect  to  his  bona  Jide  trade." 

The  disposition  of,  succession  to,  or  distrilju- 
tion  of  the  personal  property  of  a  decedent, 
wherever  situated,  is  to  be  made  in  accordance 

826;  14  Mass.  227;  8  N.  H.  j6o:  13  Johns.  102;  8 
Paige  Ch.  406;  12  Barb.  640:  7  Dana,  181;  3  W.  L. 
lour.  475  ;  Bishop  Marr.  &  Div.  J  7^0.  J-'?  HaRg. 
lied.  6j9 ;  Russ.  &  R.  Cr.  Cds.  237 ;  2  Clark.  &  F.  Ho. 
L.  567;  Furguson  Marr.  &  Div.  08;  8  N.  H.  160;  14 
Mass.  227;  ij  Johns.  192  ;  15  Id.  121  ;  13  Wend.  407, 
8  Paige  Ch.  406 ;  7  Dana,  j8i  ;  2  Blackf.  407.  k-i  Dev. 
&  B.  Eq.  s68  ,  IS  Johns.  121  ,  7  Dana,  181  ;  see  9  Me. 
140.  1-2  Kent  Coiiiin.  .234'  see  Lfj:  loci.  m-S  T.  K. 
<i,  3  B.  &  P.  113,  3C.  Rob.  Ad  111.  12;  4  Id.  107,  i 
Hagc.  Adui.  103,  104;  1  Pet.  C.  C.  159.  2  Crunch.  64. 
u-i  KeutComm.  75 ;  3  B.  &  P.  113  ;  i  C.  Rob.  Adm.  249. 


LAW. 


S" 


to  the  law  of  his  actual  domicil  at  the  time  of 
his  death;'  the  principle  applies  equally  to 
cases  of  voluntary  transfer,  of  intestacy,  and 
of  testaments.P 

Wills  are  to  be  governed  by  the  law  of  the 
domicil  as  to  the  capacity  of  the  parties,'  and 
as  to  their  validity  and  effect  in  relation  to  the 
transfer  of  personal  property,''  but  by  the  law 
of  the  place  where  the  thing  is  situated  as  to 
the  transfer  of  real  property.'  The  forms  and 
solemnities  of  the  place  of  domicil  must  be  ob- 
served.* The  local  law  is  to  determine  the 
character  of  property."  The  interpretation  of 
a  will  is  to  be  according  to  the  law  of  the  place 
of  actual  domicil.^  The  succession  to  the  per- 
sonal property  of  an  intestate  is  governed  ex- 
clusively by  the  law  of  his  actual  domicil  at 
the  time  of  his  death.*  This  includes  the 
ascertainment  of  the  person  who  is  to  be  their 
heir.*  The  question  as  to  whether  debts  are  to 
be  paid  by  the  administrator  from  the  personalty 
or  realty  is  to  be  decided  by  the  law  of  his 
domicil.y 

An  assignment  of  property  for  the  benefit  of 
creditors,  valid  by  the  law  of  the  domicil,  is 
generally  recognized  as  valid  everywhere,*  in 
the  absence  of  a  positive  statute  to  the  con- 
trary ;'  but  not  to  the  injury  of  citizens  of  the 
foreign  state  in  which  property  is  situated.'' 
But  a  compulsory  assignment  by  force  of  statute 
is  not  of  extra  territorial  operation."  Distribu- 
tion of  the  effects  of  insolvent  or  bankrupt 
del)tors  is  to  be  made  according  to  the  law  of 
the  domicil,  sul)ject  to  the  same  qualifications.* 

EX   POST   FACTO    LAW. 

Ex  post  facto  is,  after  the  act.  An  ex  post 
facto  law  is  a  statute  which  would  render  an 
act  punishable  in  a  manner  in  which  it  was  not 
punishable  when  it  was  committed.*  A  law 
made  to  punish  acts  committed  before  the 
existence  of  such  law,  and  which  had  not 
been  declared  crimes  by  preceding  laws.'  By 
the  Constitution  of  the  United  Stales  Congress 
is  forbidden  to  pass  ex  post  facto  laws.«  And 
by  Section  X.,  Subdiv.  i,  of  the  same  instru- 
ment, as  well  as  by  our  own  constitution,  a 
similar   restriction   is   placed    upon   the    State 

0-2  Kent  Comm.  429;  8  Sim.  Ch.  310;  3  Story  C. 
C  755;  II   Miss.  617;    I  Speers  Eq.  3;  4  Bradf.  Suit. 


127;  15  N.  H^i37.     P-S   B.  &   C.  451  :    3  Story  C.  C. 

cl. 
0  fet.  503;  Story  Conn.  i^.  ^  381  ;  4  Johns.  *.,h.  460;  2 
Harr.  &  G.  191 ;  6  Pick.  286:  9  N.  H.  137;  8  Paige  Ch. 


755  ;  3  Hagg.  Eccl.  273  ;  3  Curt.  Eccl.  468;  i  Binn.  336; 
Pet.  503 ;  Story  Confl.  L.  ?  381  ;  4  Johns.  Ch.  460 ;  2 


S19;  I  Mas.  C.  C.  381;  6  Monr.  52;  17  Ala.  (N.  S.) 
286;  29  Id.  72;  6  Vt.  374.  Stocks  are  considered  as 
personal  property  in  this  respect;  i  Crompt.  &  J.  151 ; 
Bligh  (N.  S.)  IS  ;  I  Jarman  Wills,  3.  q-i  Jarman  Wills, 
3.  r-4  Black.  S3  ;  22  Me.  304  ;  2  111.  373;  2  Bail.  436  ; 
5  Pet.  519 :  2  B.  Mon.  582  ;  8  Paige  Ch.  519 ;  3  Curt. 
Eccl.  468;  II  N.  H.  88;  i  M'Cord,  354;  s  Gill.  &  J. 
483.  8-1  Blackf.  372  ;  6  Monr.  527 ;  22  Me.  303 ;  8 
Ohio,  239;  4  Me.  138  ;  see  Lex  ret  Sita.  t-a  Ves.  & 
B.  Ch.  127;  3  Ves.  Ch.  192;  8  Sim.  Ch.  279;  4  Hagg. 
Eccl.  346;  4  Mylne  &  C.  76:  2  Harr.  &  J.  191 ;  i  Binn. 
336  ;  4  Johns.  Ch.  460  ;  i  Mas.  C.  C.  381  ;  12  Wheat. 
"169;  9  Pet.  483.  11-6  Paige  Ch.  630;  Story  Confl.  L. 
i  447  ;  Erskine  Inst,  b,  3,  tit.  9,  g  4.  v-3  Clark  &  F. 
Ho.  L.  544,  570;  4  Bligh,  502;  3  Sim.  Ch.  298;  2 
Brown  Ch.  38  ;  Story  Eq.  Jur.  g  1068  :  9  Pet.  483.  w- 
2  Ves.  Ch.  3s  ;  2  Bos.  P.  229  5  B.  &  C.  438  ;  8  Sim. 
Ch.  310;  14  Mart.  99;  3  Paige  Ch.  182  ;  2  Harr.  &  J. 
1^3  ;  4  Johns.  Ch.  460 ;  1  Mas.  C.  C.  418 ;  15  N.  H.  137. 

33 


legislature.  Such  law  is  void  as  to  those  cases 
in  which,  if  given  effect,  it  would  be  ex  post 
facto  ;  but  so  fair  only.  In  cases  arising  under 
it,  it  may  have  effect;  for  as  a  rule  for  the 
future  it  is  not  ex  post  facto.  There  is  a  dis.- 
tinction  between  ex  post  facto  laws  and  retro- 
spective laws ;  every  ex  post  facto  law  must 
necessarily  be  retrospective,  but  every  retro 
spective  law  is  not  ex  post  facto  law  ;  the  for- 
mer only  are  prohibited.  It  is  fully  settle<J 
that  the  term  ex  post  facto,  as  used  in  the  Con- 
stitution, is  to  be  taken  in  a  limited  sense,  a< 
referring  to  criminal  or  penal  statutes  alone, 
and  that  the  policy,  the  reason,  and  the  hu- 
manity of  the  prohibition  against  passing  ex 
post  facto  laws  do  not  extend  to  civil  cases,  to 
cases  that  merely  affect  the  private  property  of 
citizens.  Some  of  the  most  necessary  acts  of 
legislation  are,  on  the  contrary,  founded  upon 
the  principles  that  private  rights  must  yield  to 
public  exigencies.*' 

Laws  under  the  following  circumstances  are 
to  be  considered  ex  post  facto  laws  within  the 
words  and  intent  of  the  prohibition  : 

1.  Every  law  that  makes  an  act  done  before 
the  passing  of  the  law,  and  which  was  inno- 
cent when  done,  criminal,  and  punishes  such 
action. 

2.  Everylaw  that  aggravates acrime,ormakes 
it  greater  than  it  was  when  it  was  committed. 

3.  Every  law  that  changes  the  punishment, 
and  inflicts  a  greater  punishment  than  the  law 
annexed  to  the  crime  when  committed;  thouf^h 
it  would  be  otherwise  of  a  law  mitigating  the 
punishment.* 

4.  Every  law  that  alters  the  legal  rules  of 
evidence,  and  receives  less  or  different  testi- 
mony than  the  law  required  at  the  time  of  the 
commission  of  the  offence,  in  order  to  convict 
the  offender;  though  it  might  be  otherwise  of 
a  law  merely  modifying  the  remedy  or  mode 
of  procedure.^ 

The  right  to  pass  retrospective  laws,  with 
the  exceptions  above  mentioned,  become  obli- 
gatory, unless  prohibited  by  the  constitution  of 
the  State. ^     And  laws  should  never  be  consid- 

x-Story  Confl.  L.  §  481 ;  2  Ves.  Ch.  3s ;  2  Hagg.  Ecd. 
455  ;  2  Keen,  293.  y-Story  Confl.  L.  J  528 ;  9  Mod.  66-, 
Chanc.  Prec.  511;  2  Ves.  &  B.  Ch.  Ir.  131  ;  2  Keen. 
293.  «.4  Johns.  Ch.  471;  2  H.  Bl.  402;  4  T.  R.  182; 
2  Rose.  Bank,  97;  8  Ves.  Ch.  82;  t  Cr.  M.  &  R.  296; 
see  6  Pick.  312.  «-6  Pick.  286;  14  Martin,  93,  100;  6 
Binn.  353;  Story  Confl.  L.  g  411.  b-5  East.  131;  17 
Mart.  596;  6  Binn.  360;  sCranch.  289;  12  Wheat.  213; 
5  N.  H.  213;  I  Paige  Ch.  237;  i  Harr.  &  M'H.  236. 
C-20  Johns.  229;  6  Binn.  353 ;  6  Pick.  286.  d-Story 
Confl.  L.  2?  323-328,  423,  a.  ;  see  Conflict  op  Laws, 
above,  c-6  C-ranch.  138:  i  Kent  Coram.  408.  f-Lieber 
Encyc.  Am.;  10  Mass.  188;  11  La.  175,  5  Met.  (Mass.y 
187;  4  Barb.  505;  Wall  Jr.  C.  C.  217;  9  Ired.  99;  1 
Texas,  673  ;  13  Me.  255  ;  27  Miss.  704  ;  i  Bosw.  673. 
S-U.  S.  Const.  Art.  i,  2  9.  h-3  Dall.  386;  8  Wheat; 
89  ;  17  How.  463  ;  6  Cranch.  87  ;  8  Pet.  88  ;  11  Id.  421 ; 
see  I  Cranch.  109 ;  9  Id.  374;  i  Gall.  C.  C.  105  ;  2  Pet. 
380,  523,  6?7;  3  Story  Const.  212;  Sergeant  Const.  L. 
356;  2  Pick.  172;  II  Id.  28;  9  Mass.  363;  a  Root, 350; 
5  Monr.  133  ;  x  J.  J.  Marsh.  563;  3  N.  H-  475  ;  7  Johns. 
488;  6  Binn.  271  ;  2  Pet.  681.  I-3  Story  Const.  §  212. 
j-3  Dall.  390.  fe-4  S.  &  R.  354  ;  3  Dall.  396  ;  1  Bay, 
179  ;  7  Johns.  477  ;  see  3  S.  &  R.  169  ;  2  Cranch.  272  ;  a 
Pet.  414;  8  Id.  no;  11  id.  420;  I  Baldwin  C,  C.  74;  5 
Pcnn.  St.  149. 


5ia 


LAW. 


ered  as  applying  to  cases  which  arose  previously 
to  their  passage,  unless  the  legislature   have 
clearly  declared  such  to  be  their  intention.* 
FOREIGN  LAW. 

Foreign  laws  are  the  laws  of  a  foreign 
country,™  not  the  laws  of  the  different  States 
of  this  country. 

The  courts  do  not  judicially  take  notice  of 
foreign  laws;  and  they  must,  therefore,  be 
proved  as  facts."  The  manner  of  proof  varies 
according  to  circumstances.  As  a  general  rule, 
the  best  testimony  or  proof  is  required;  for  no 
proof  will  be  received  which  presupposes  better 
testimony  attainable  by  the  party  who  offers  it. 
When  the  best  testimony  cannot  be  obtained, 
secondary  evidence  will  be  received." 

Exemplified  or  sworn  copies  of  written  laws 
and  other  public  documents  must,  as  a  general 
thing,  be  produced,  when  they  can  be  procured ; 
but  should  they  be  refused  by  the  competent 
authorities,  then  inferior  proof  maybe  admitted." 
Where  our  own  government  has  promulgated  a 
foreign  law  or  ordinance  of  a  public  nature  as 
authentic,  that  is  held  sufficient  evidence  of  its 
existence.P  When  foreign  laws  cannot  be 
proved  by  some  mode  which  the  law  respects 
as  being  of  equal  authority  to  an  oath,  they  must 
be  verified  by  the  sanction  of  an  oath.  The 
usual  modes  of  authenticating  them  are  by  an 
exemplification  under  the  great  seal  of  the 
State,  or  by  a  copy  proved  by  oath  to  be  a  true 
copy,  or  by  a  certificate  of  an  officer  authorized 
liy  law,  which  must  itself  be  duly  authenti- 
cated.' Foreign  unwritten  laws,  customs,  and 
usages  may  be  proved,  and  are  ordinarily 
proved,  by  parol  evidence;  and  when  sucli 
evidence  is  objected  to  on  the  ground  that  the 
law  in  question  is  a  written  law,  the  party  ob- 
jecting must  show  that  fact.""  Witnesses  in 
Cuba,  examined  under  a  commission  touching 
the  execution  of  a  will,  testified,  in  general 
terms,  that  it  was  executed  according  to  the 
law  of  that  country;  and,  it  not  appearing 
from  the  testimony  that  there  was  any  written 
law  upon  the  subject,  the  proof  was  held  suffi- 
cient.* A  defendant  pleaded  infancy  in  an  ac- 
tion upon  a  contract  governed  by  the  law  of 
Jamaica ;  held,  that  the  law  was  to  be  proven 
as  a  matter  of  fact,  and  that  the  burden  lay 
upon  him  to  show  it.' 

Proof  of  such  unwritten  law  is  usually  made 
by  the  testimony  of  witnesses  learned  in  the 

1-12  La.  352  :  see  Bamngton  Stat.  466,  n. ;  7  Johns. 
477;  I  Kent  Comm.  455  ;  Taylor  Civ.  L.  168;  Code, 
I,  14,  7:  Bracton.  i,  4,  _/",  228;  Story  Const.  3  1393; 
I  McLe.in  C.  C.40;  i  Meigs,  437.  3  Dall.  391 ;  i  Blackf. 
193;  2GaU.  C.C  139  ;  I  Yerg.  360;  5  Id.  320;  12  S.  &  R. 
330.  ni-See  ante,  Evidence.  ii-Cowp.  144  ;  3  Esp. 
Cas.  163  :  3  Canr\pb.  i£6  ;  2  Dow.  &  C.  Ho.  L.  171  ;  i 
Cranch,  38  ;  2  Id.  187, 236,237  ;  6  Id.  274;  2  Harr.  &  J. 
193;  36111.  &  J.  234:  4  Conn.  517;  4C0W.  515,  516,  «.  ,■ 
I  Pet.  C.C.229  ;  8Mass.99  ;  I  PaigeCh.  220;  10  Watts, 
i^S.  0-2  Cranch.  237.  p-i  Cranch,  38  ;  i  Dall.  462; 
6  Binn.  321;  12  S.  &  R.  203.  «|-2  Cranch,  238;  2 
Wend.  411  :  6  Id.  475;  58.  &R.523;  15  Id.  84;  2 
Wash.  C.  C.  T75.  r-15  S.  &  R.  87:  2  La.  154.  S-8 
Paige  Ch.  446.  t-8  Johns.  190.  11-2  Cranch.  237;  i 
Pet.  C.  C.  225;  2  Wash.  C.  C.  175  ;  15  S.  &  R.  84  ;  4 
Johns.  Ch.  520;  Cowp.  174;  2  Hagg.  Adm.  App.  15- 
144.  In  England  certificates  of  persons  In  high  au- 
tho/ity  have  been  allowed  as  evidence  in  such  cases.    3 


law  and  competent  to  state  it  correctly  under 
oath."  The  public  seal  of  a  foreign  sovereign 
or  state  affixed  to  a  writing,  purporting  to  be  a 
written  edict,  or  law,  or  judgment,  is  of  itself 
the  highest  evidence,  and  no  further  proof  is 
required  of  such  public  seal.*  But  the  seal  of 
a  foreign  court  is  not,  in  general,  evidence 
without  further  proof,  and  must,  therefore,  be 
established  by  competent  testimony." 

The  acts  of  the  legislatures  of  the  several 
States  shall  be  authenticated  by  having  the  seal 
of  their  respective  States  affixed  thereto.*  But 
the  rules  prescribed  by  acts  of  Congress  do  not 
exclude  every  other  mode  of  authentication, 
and  courts  may  admit  proof  of  the  acts  of  the 
legislatures  of  the  several  States,  although  not 
authenticated  under  the  acts  of  Congress.  Ac- 
cordingly, a  printed  volume,  purporting  on  its 
face  to  contain  the  laws  of  a  sister  State,  is  ad- 
missible as  prima  facie  evidence  to  prove  the 
statute  law  of  that  State.J 

The  effect  of  foreign  laws  when  proved  is 
properly  referable  to  the  court.  The  object  of 
the  proof  of  foreign  laws  is  to  enable  the  court 
to  instruct  the  jury  what  is,  in  point  of  law,  the 
result  from  foreign  laws  to  be  applied  to  the 
matters  in  controversy  before  them.  The  court 
is,  therefore,  to  decide  what  is  the  proper  evi- 
dence of  the  laws  of  a  foreign  country;  and 
when  evidence  is  given  of  those  laws,  the  couK 
is  to  judge  of  their  applicability  to  the  mattei 
in  issue.* 

FORUM— LAW   OF. 

The  law  of  the  forum  (lex  fori)  is  the  law 
of  the  country,  to  the  tribunal  of  which  appeal 
is  made,"  or  where  the  action  or  proceeding  is 
instituted,  or  the  remedy  sought. 

The  forms  of  remedies,  modes  of  proceed 
ing,  and  execution  of  judgments  are  to  be 
regulated  solely  and  exclusively  by  the  laws  of 
the  place  where  the  action  is  instituted.'  The 
law  of  the  forum  governs  as  to  the  nature, 
extent,  and  character  of  the  remedy,*  as  in 
case  of  instruments  considered  sealed  where 
made,  but  not  in  the  country  where  sued  upon," 
and  decides  as  to  the  deprivation  of  the  rem- 
edy. The  law  of  the  forum  is  to  decide  who  are 
proper  ])arties  to  a  suit.''  Foreign  corporations 
may  sue'  and  be  sued,  when  they  have  pro])- 
erty  wiihiu  the  jurisdiction.^  Arrest  and  im- 
prisonment  may   be   allowed   by  the  law   of 

Hagg.  Eccl.  767,  769.  T-2  Cranch,  238  ;  2  Conn.  85  ;  i 
Wash.  C.  C.  363:  4  Dall.  413,  416;  6  Wend.  475  ;  g 
Mod.  66.  TV-3  Johns.  310;  2  Harr.  &  J.  193;  4  Cow. 
526,  «.  ;  3  East.  221.  x-Act  of  Congr.  May  26,  179''. 
y-4  Cranch,  384  ;  12  S.  &  R.  203 ;  6  Binn.  321 ;  5  Leigh. 
571.  «-Story  Confl.  L.  g  638 ;  2  Harr.  &  J.  193  :  3  Id. 
234,242;  4  Conn.  517;  Cowp.  174.  e-5  Clark  &  F. 
Ho.  L.  I.  «-8Id.  I2i;  iiM.&W.  877;  10  B.  &  C. 
903;  5  La.  295;  2  Rand.  303.-  6  Humph.  45;  2  Ga. 
158;  13N.  H.32i;  24  Barb.  68;  4  Zabr.  333  ;  9  Gill. 
I  ;  17  Penn.  St.  91  ;  18  Ala.  (N.  S.)  248 ;  4  McLean  C. 
C.  540;  5  How.  83  :  II  Ind.  385  ;  33  Miss.  423.  jBr-17 
Conn.  500;  37  N.  H.  86;  2  Pat.  &  H.  144.  fc-4  Cow. 
■io8  ;  5  Johns.  239;  2  Caines,  362;  i  B.  &  P.  360;  8 
Pet.  361  ;  2  Gill.  &  J.  234  ;  3  Conn.  523  ;  4  Id.  47,  49  ;  8 
How.  451  ;  9  Mo.  ^6,  157.  Il-ii  Ind.  485 ;  33  Miss. 
423  ;    Merlin  Rep.  Etrang,  g  ii ;  ^estlake  Priv.  Int.  L. 


IS-' 

33  Mil 
ing,  i  ii ;   Westlake  Pri 
i-8B.  &C.  427:    9  Ves.  Ch.  347; 
370  :  13  Pet.  519.    J-9  N.  H.  394;    3  Met.  (Mass.)  4*0 
16  Beav.  Rolls,  287. 


Ch.  347;    4  Johns.  CK 


LAW 


5^3 


the  forum,  though  they  are  not  by  the  law  of 
the  place  where  the  contract  was  made.' 
Where  the  debt  is  discharged  by  the  law  of  the 
place  creating  it,  such  a  discharge  will  amount 
to  a  discharge  everywhere.™  It  must  be  a 
discharge  from  the  debt,  and  not  an  exemption 
from  the  effect  of  particular  means  of  enforcing 
the  remedy."  The  forms  of  judgment  and 
execution  are  to  be  determined  by  the  law  of 
the  forum."  For  the  Law  of  Interest,  as  af- 
fected by  the  law  of  the  forum,  see  Conflict  of 
ILaws,  above.  For  Damages,  see  title,  Dam- 
ages, ante. 

Statutes  of  limitation  affect  the  remedy  only, 
and,  hence,  the  law  of  the  forum  will  be  the 
governing  law.P  But  these  statutes  restrict  the 
remedy  for  citizens  and  strangers  alike.i  The 
restriction  applies  to  a  suit  on  a  foreign  judg- 
ment.' 

The  right  of  set-off  is  to  be  determined  by 
the  law  of  the  forum."  Liens,  implied  hypoth- 
ecations and  priorities  of  claim  generally,  are 
matters  of  remedy.*  A  prescriptive  title  to 
personal  property  acquired  in  a  former  domi- 
cil  will  be  respected  by  the  law  of  the 
forum," 

Questions  of  the  admissibility  and  effect  of 
evidence  are  to  be  determined  by  the  law  of 
the  forum. ^ 

The  law  of  the  place  is  presumed  to  be  that 
of  the  forum  till  the  contrary  is  shown,"  and 
also  the  law  of  the  place  where  the  thing  is 
situated.' 

INTERNATIONAL  LAW  is  that  ex- 
isting and  regulating  the  mutual  intercourse 
between  different  nations.  It  is  distinguished 
as  the  rights  among  nations  and  the  rights  of 
nations.  The  natural  law,  or  the  doctrine  of 
rights  and  of  state,  forms  the  scientific  basis 
of  intemationul  law ;  for  nations,  like  lesser 
communities,  and  like  individuals,  have  rights 
and  correlative  obligations,  moral  claims,  and 
duties.  The  particular  sources  of  international 
law  are  jural  and  moral.  The  jural  elements 
are  :  I.  The  rights  of  states  or  nations  as  such, 
deducible  from  its  nature  and  its  office  as 
protector  of  those  who  live  under  its  law.  2. 
The  right  which  the  state  or  nation  shares 
with  individuals,  and  in  part  with  artificial 
persons,  as  the  rights  of  property,  contract, 
and  reputation ;  and,  3.  The  rights  which  arise 
when  it  is  wronged,  as  those  of  self-protection 
and  redress.  To  these  have  been  joined  by 
some  the  rights  of  punishments  and  of  con- 
quest— the  latter,  at  least,  without  good  reason ; 

l-i  East.  453 :  2  Burr.  io8g ;  5  Clark  &  F.  Ho.  L.  i  ; 
1  B.  &  Ad.  284  ;  14  Johns.  346  ;  3  Mass.  C.  C.  88  ;  5  Id. 
378;  I  Pet.  317;  I  Wash.  C.  C.  376;  10  Wheat,  i.  in- 
5  East.  124;  12  Wheat.  360;  i  W.  Bl.  258  ;  13  Mass.  i  ;  16 
Mart.  297  ;  6  Rob.  (La.)  15;  yCush.  15;  i  Buck.  57,  61  ; 
I  Wooob.  &  M.  115;  23  Wend.  87;  5  Binn.  332;  16 
Johns.  233  ;  7  Johns.  Ch.  297  ;  16  Me.  206.  n-5  Binn. 
381  ;  14  Johns.  346  ;  10  Id.  300  ;  8  B.  &  C.  479  ;  i  Atk. 
Ch.  255;  2H.BI.  553;  7  Me.  337;  IT  Mart.  730;  15 
Mass.  419;  5  Mas.  C.  C.  378.  0-3  Mas.  C.  C.  88 ;  5 
Id.  378  ;  4  Conn.  47;  14  Pet.  67.  p-6  Dowl.  Pari.  Cas. 
116;  5  Clark  &  F.  Ho.  L.  1-16;  8  Id.  121,  140;  11 
Pick.  36  ;  7  Ind.  91 ;  2  Paine  C.  C.  437  ;  36  Me.  362  ; 
Ma  9  B.  Mon.  518 ;  16  Ohio,  145.    q-io  B.  &  C.  903 ;  a 


for  there  is  and  can  be  no  naked  right  of  con- 
quest, irrespective  of  redress  and  self-protec- 
tion. The  moral  elements  are  the  duties  of 
humanity,  comity,  and  intercourse. 

Nations  are  voluntary:  i.  In  deciding  the 
question  what  intercourse  they  will  hold  with 
each  other;  2.  That  they  are  voluntary  in  de- 
fining their  rights  and  obligations,  moral  claims 
and  duties,  although  these  have  an  objective 
existence  beyond  the  control  of  the  will  of 
nations;  and,  3.  That  when  international  law 
has  arisen  by  the  free  assent  of  those  who 
enter  into  certain  arrangements,  obedience  to 
its  provisions  is  as  truly  in  accordance  with 
natural  law — which  requires  the  observance  of 
contracts — as  if  natural  law  had  been  intuitively 
discerned  or  revealed  from  heaven  and  no  con- 
sent had  been  necessary  at  the  outset. 

Aliens.  It  cannot  be  affirmed  that  a  state 
is  obligated,  in  strict  right,  to  admit  foreigners 
into  or  to  allow  them  transit  across  its  territory, 
or  even  to  hold  intercourse  with  them.  All  this 
may  be  its  duty,  and  perhaps,  when  its  territory 
affords  the  only  convenient  pathway  to  the  resl 
of  the  world  or  its  commodities  are  necessary 
to  others  of  mankind,  transit  and  intercourse 
may  be  enforced.  But,  aside  from  these  ex- 
treme cases,  intercourse  is  only  a  duty,  and  not 
definable  with  precision,  as  is  shown  by  the 
endless  varieties  of  commercial  treaties.  It 
can  only  be  said  that  the  practice  of  Christian 
states  is  growing  more  and  more  liberal,  both 
as  regards  admitting  foieigners  into  their  terri- 
tories, and  to  the  enjoyment  of  those  rights  of  per- 
son and  property  which  the  natives  possess,  and 
as  regards  domiciliating  them,  or  even  incorpo- 
rating them,  afterwards,  if  they  desire  it,  into  the 
body  politic.  The  multiplied  and  very  close  re- 
lations which  have  arisen  between  nations  in 
modern  times,  through  domiciled  or  temporary 
residents,  have  given  rise  to  the  question.  What 
law,  in  particular  cases  involving  personal  status, 
properly,  contracts,  family  rights,  and  succession, 
shall  control  the  decisions  of  the  courts  ?  Shall 
it  be  always  the  /ex  loci,  or  sometimes  some 
other  ?  The  answers  to  these  questions  are  given 
\\\  private  international  law,  or  the  conflict  of 
law,  as  it  is  sometimes  called, — a  very  interest- 
ing branch  of  law,  as  showing  how  the  Chris- 
tian nations  are  coming  from  age  to  age  nearer 
to  one  another  in  their  views  of  the  private  rela- 
tions of  men. 

Intercourse  requires  its  agents,  both  those 
whose  office  it  is  to  attend  to  the  relations  of 
states  and  the  rights  of  their  countrymen  in 

Bingh.  (N.  C.)  202,  216;  s  C.  &  F.  Ho.  L.  1  ;  3  Johni. 
Ch.  190 ;  6  Wend.  47s  ;  9  Mart.  526.  For  the  effect  of  a 
discharge  by  statutes  of  limitation,  where  they  are  so 
drawn  as  to  effect  a  discharge  in  a  foreign  state,  see  Story 
Confl.  L.  g  582  ;  II  Wheat.  361  ;  2  Bingh.  (N.  C.)  202  ; 
6  Rob.  La'.  15.  r-5  Clark  &  F.  Ho.  L.  1-21  ;  13  Pet. 
312  ;  2  B.  &  Ad.  413 ;  4  Cow.  528,  «.  10 ;  i  Gall.  C.  C 
371  ;  9  How.  407.  8-2  N.  H.  296;  3  Johns.  263.  t-ia 
La.  An.  289;  Story  Confl.  L.  g  575.  n-17  Ves.  Ch.  8; 
sHen.  &M.  57;  5  Cranch,  358  ;  11  Wheat.  361 ;  but 
see  Ambl.  113.  T-12  La.  An.  410;  2  Bradf.  Surr.  339; 
see  EviDHNCK.  W-4  Iowa,  464  ;  10  Me.  247  ;  6  Jf.  V. 
447;  13  Md.  392  ;  12  La.  An.  673  ;  9  Gill,  i  ;  3  Bosw. 
333-     x-i  Harr.  &  J.  687 ;  see  FoRBicN  Laws,  aata. 


SH 


LAW. 


general, ^nd  those  who  look  after  the  commer 
cial  interests  of  individuals.  The  former  share 
with  public  vessels,  and  with  sovereigns  travel- 
ling abroad,  certain  exemptions  from  the  law 
of  the  land  to  which  they  are  sent.  Their  per- 
sons are  ordinarily  inviolate;  they  are  not  sub- 
ject to  foreign,  civil,  or  criminal  jurisdiction; 
they  are  generally  exempt  from  imposts ;  they 
have  liberty  of  worship,  and  a  certain  power 
over  their  trains,  who  likewise  share  their  ex- 
emptions. Only  within  five  centuries  have 
ambassadors  resided  permanently  abroad — a 
change  which  has  had  an  important  effect  on 
the  relations  of  states.  Consuls  have  almost 
none  of  the  privileges  of  ambassadors,  except 
in  countries  beyond  the  pale  of  Christianity. 

Rights  in  general.  The  rights  of  the  state 
or  nation,  as  such,  may  be  comprised  under 
the  term  sovereignty,  or  be  divided  into  sov- 
ereignty, independence,  and  equality ;  by  which 
latter  term  is  intended  equality  of  rights.  Sov- 
ereignty and  independence  are  two  sides  of  the 
same  property,  and  equality  of  rights  necessarily 
belongs  to  sovereign  states,  whatever  be  their 
size  or  constitution;  for  no  reason  can  be  as- 
signed wliy  all  states,  as  they  have  the  same 
powers  and  destination  in  the  system  of  things, 
should  not  have  identically  the  same  rights. 
States  are  thus,  as  far  as  other  statss  are  con- 
cerned, masters  over  themselves  and  over  their 
subjects,  free  to  make  such  changes  in  their 
laws  and  constitutions  as  they  may  choose,  and 
yet  incapable  by  any  change,  whether  it  be 
union,  or  separation,  or  whatever  else,  of  es- 
caping existing  obligations.  With  regard  to 
every  state,  international  law  only  asks  whether 
it  be  such  in  reality,  whether  it  actually  is  in- 
vested with  the  properties  of  a  state.  With 
forms  of  government  international  law  has  noth- 
ing to  do.  All  forms  of  government,  under 
which  a  state  can  discharge  its  obligations  and 
duties  to  others,  are,  so  far  as  this  code  is  con- 
cerned, equally  legitimate.  Thus,  the  rule  of 
non-intervention  in  the  affairs  of  other  states  is 
a,  well-settled  principle  of  international  law. 
In  the  European  system,  however,  there  is  an 
acknowledged  exception  to  this  rule,  and  also 
a  claim  on  the  part  of  certain  states  to  a  still 
wider  departure  from  the  rule  of  non-interven- 
tion, which  other  slates  have  not  as  yet  ad- 
mitted. It  is  conceded  that  any  />o/iitca/  ac- 
tion of  any  state  or  states  which  seriously 
threatens  the  existence  or  safety  of  others,  any 
disturbance  of  the  balance  of  power,  may  be 
resisted  and  put  down.  This  must  be  regarded 
as  an  application  of  the  primary  principle  of 
self-preservation  to  the  affairs  of  nations.  But 
when  certain  states  claim  a  right  to  interfere  in 
the  internal  affairs  of  others  in  order  to  sup- 
press constitutional  movements  and  the  action 
of  a  people  without  its  own  sphere,  this  is  as 
yet  an  unauthorized  ground  of  interference. 
The  plea  here  is,  on  the  part  of  those  states 
•which  have  asserted  such  a  right,  especially  of 
Austria,  Prussia,  Russia,  and  at  times  of  France, 
that  internal  revolutions  are  the  result  of  wide- 


spread conspiracies,  and  if  successful  anywhere 
are  fatal  to  the  peace  and  prosperity  of  all  ab- 
solute or  non-constitutional  governments.  The 
right,  if  admitted,  would  destroy  by  an  inter- 
national law  all  power,  of  the  people  in  any 
state  over  their  government,  and  would  place 
the  smaller  states  under  the  tutelage  of  two  or 
three  of  the  larger.  England  has  always  pro- 
tested against  this  enlargement  of  the  right  of 
interference,  and  France  has  established  more 
than  one  revolutionary  government  in  spite 
of  it. 

Territory.  As  to  the  question  of  territory, 
international  law  is  tolerably  clear.  Beside 
the  land  and  water  included  within  the  line  of 
boundary  separating  one  state  from  another,  it 
regards  as  territory  the  coast-water  to  the  dis- 
tance of  a  marine  league,  and  the  portions  of 
sea  within  lines  drawn  between  headlands  not 
very  remote,  or,  in  other  words,  those  parts  of 
the  sea  which  are  closely  connected  with  a  par- 
ticular country  when  it  needs  to  defend  itself 
against  attack,  and  its  laws  are  exposed  to  vio- 
lation. The  high  sea,  on  the  other  hand,  is 
free,  and  so  is  every  avenue  from  one  part  of 
the  sea  to  another,  which  is  necessary  for  the 
intercourse  of  the  world.  It  has  been  held  that 
rivei^s  are  exclusively  under  the  jurisdiction  of 
countries  through  which  they  flow,  so  that  the 
dwellers  on  their  upper  waters  have  no  abso- 
lute right  of  passage  to  and  from  the  sea;  but 
practically,  at  present,  all  the  rivers  which  di- 
vide or  run  through  different  states,  are  free  for 
all  those  who  live  upon  them,  if  not  for  all 
mankind.  It  has  been  claimed  that  ships  are 
territory ;  but  it  is  safer  to  say  that  they  are  un- 
der the  jurisdiction  of  their  own  state  until  they 
come  within  that  of  another  state.  By  comity, 
public  vessels  are  exempt  from  foreign  jurisdic- 
tion, whether  in  foreign  ports  or  elsewhere. 

Treaties.  Nations,  like  individuals,  have 
the  rights  of  contract,  and  their  treaties  are  sub- 
ject to  the  same  rules  of  interpretation  and  of 
morality  which  govern  in  municipal  law.  An 
interesting  description  of  treaties  are  those  of 
guaranty,  by  which  sometimes  a  right  of  inter- 
vention in  the  affairs  of  other  states  is  secured 
beforehand.  But  treaties  may  be  broken,  and 
all  other  rights  invaded ;  and  there  is  no  court 
of  appeal  where  wrongs  done  by  states  can  be 
tried.  The  rights  of  self-defence  and  of  re- 
dress now  arise,  and  are  of  such  importance 
that  but  for  redress  by  force  or  war,  and  to  pre- 
vent war,  international  law  would  be  a  very 
brief  science. 

Warfare.  The  laws  and  usages  of  modem 
warfare  show  a  great  advance  of  the  nations 
in  humanity  since  the  middle  ages.  The  fol- 
lowing are  among  the  leading  principles  and 
usages : 

That  declarations  of  war,  as  formerly  prac- 
tised, are  unnecessary ;  the  change  in  this  re- 
spect being  due  chiefly  to  the  intimate  knowl- 
edge which  nations  now  have,  through  resident 
ambassadors  and  in  other  ways,  of  each  other's 
movements  and  dispositions. 


LAW. 


S^S 


That  at  the  opening  of  war  the  subjects  of 
©ne  hostile  state  within  the  territory  of  another 
are  protected  in  their  persons  and  property,  and 
this  notwithstanding  it  is  conceded  that  by  strict 
right  such  property  is  liable  to  confiscation. 

That  war  is  waged  between  states,  and  by 
the  active  war  agents  of  the  parties,  but  that 
non-combatants  are  to  be  uninjured  in  person 
and  property  by  an  invading  army.  Contribu- 
tions or  requisitions,  however,  are  still  collected 
from  a  conquered  or  occupied  territory,  and 
property  is  taken  for  the  uses  of  armies  at  a 
compensation. 

That  combatants,  when  surrendering  them- 
selves in  battle,  are  spared,  and  are  to  be 
treated  with  humanity  during  their  captivity, 
until  exchanged  or  ransomed. 

That  even  public  property,  when  not  of  a 
military  character,  is  exempt  from  the  ordinary 
operations  of  war,  unless  necessity  requires  the 
opposite  course. 

That  in  the  storming  of  inhabited  towns 
great  license  has  hitherto  been  given  to  the 
besieging  party ;  and  this  is  one  of  the  blots  of 
modern  as  well  as  of  ancient  warfare.  But 
humane  commande.-s  avoid  the  bombardment 
of  fortified  towns  as  far  as  possible ;  while  mere 
fortresses  may  be  assailed  in  any  manner. 

The  laws  of  sea-warfare  have  not  as  yet 
come  up  to  the  level  of  those  of  land-warfare. 
Especially  is  capture  allowed  on  the  sea  in 
cases  where  it  would  not  occur  on  the  land. 
Yet  there  are  indications  of  a  change  in  this 
respect;  privateering  has  been  abandoned  by 
many  states,  and  there  is  a  growing  demand 
that  all  capture  upon  the  sea,  even  from  ene- 
mies, except  for  violations  of  the  rules  of  con- 
traband, blockade,  and  search,  shall  cease. 

When  captures  are  made  on  the  sea,  the  title, 
by  modern  law,  does  not  fully  vest  in  the  cap- 
tor at  the  moment,  but  needs  to  pass  under  the 
revision  of  a  competent  court.  The  captured 
vessel  may  be  ransomed  on  the  sea,  unless 
municipal  law  forbids,  and  the  ransom  is  of  the 
nature  of  a  safe-conduct.  If  a  vessel  is  recap- 
tured, or  rescued  from  other  perils,  a  compen- 
sation is  due  to  the  rescuer,  which  is  called 
salvage ;  which  see. 

In  modern  international  law,  questions  of 
neutrality  play  a  great  part.  A  neutral  is  one, 
strictly,  who  affords  assistance  to  neither  ^■xt\.^  ; 
for  assistance  afforded  to  both  alike,  in  almost 
every  case,  would  benefit  one  party  and  be  of 
little  use  to  the  other.  The  neutral  territory,  on 
land  and  sea,  must  be  untouched  by  the  war ; 
and  for  all  violations  of  this  rule  the  neutral 
can  take  or  demand  satisfaction. 

The  principal  liabilities  of  neutral  trade  are 
the  following : 

In  regard  to  the  nationality  of  goods  and 
vessels,  the  rule,  on  the  whole,  has  been  that 
enemy's  goods  were  exposed  to  capture  on  any 
vessel,  and  neutral's  safe  on  any,  and  that  the 
neutral  vessel  was  not  guilty  for  having  enemy's 
goods  on  board.  Owing  to  the  declaration  of 
the  peace  of  Paris  in  1856,  the  humane  rule 


that  free  ships  make  free  goods  will  no  doubt 
become  universal. 

Ceruiin  articles  of  especial  use  in  war  are 
called  contraband,  and  are  liable  to  capture. 
But  the  list  has  been  stretched  by  belligerents, 
e'iptcially  by  England,  so  as  to  include  naval 
stDies  and  pruvisions;  and  then,  to  cure  the 
hardship  of  the  rule,  another — the  rule  of  pre- 
emption— has  been  mtroduced.  The  true  doc- 
trine with  regard  to  contraband  seems  to  be 
that  nothing  can  be  so  called  unless  nations 
have  agreed  so  to  consider  it;  or,  in  other 
words,  that  articles  cannot  become  occasionally 
contraband  owing  to  the  convenience  of  a  bel- 
ligerent. 

An  attempt  of  a  neutral  ship  to  enter  a  block- 
aded place  is  a  gross  violation  of  neutrality; 
and,  as  in  cases  of  contraband  trade  the  goods, 
so  here  the  guilty  vessel,  is  confiscated.  But 
blockade  must  exist  in  fact,  and  not  alone  upon 
paper,  must  be  made  known  to  neutrals,  and, 
if  discontinued,  must  be  resumed  with  a  new 
notification. 

To  carry  out  the  rights  of  war,  the  right  of 
search  is  indispensable ;  and  such  search  ought 
to  be  submitted  to  without  resistance.  Search 
is  exclusi\ely  a  war  right,  excepting  that  ves- 
sels in  peace  can  be  arrested  near  the  coast  on 
suspicion  of  violating  revenue  laws,  and  any- 
where on  suspicion  of  piracy.  The  slave-trade 
not  being  piracy  by  the  law  of  nations,  vessels 
of  other  nations  cannot  be  searched  on  sus- 
picion of  being  engaged  in  this  traffic.  And 
here  comes  in  the  question  which  has  agitated 
the  two  leading  commercial  states  of  Christen- 
dom: How  shall  it  be  known  that  a  vessel  is 
of  a  nationality  which  renders  search  unlaw- 
ful? The  English  claim,  and  justly,  that  they 
have  a  right  to  ascertain  this  simple  fact  by  de- 
tention and  examination;  the  United  States 
contend  that  if  in  so  doing  mistakes  are  com- 
mitted, compensation  is  due,  and  to  this  Eng- 
land has  agreed. 

Law  Merchant.  See  title  Agency  ;  Bail- 
ments; Bonds,  Notes,  and  Bills;  Con- 
tracts, etc.,  ante. 

Lex  Fori.     See  Forum — Law  of. 

Lex  Loci.  See  Place — Law  of.  Place 
of  situation  of  the  thing,  below. 

Lex  Rei  Sit^e.     See  Place  of  situation 

OF  THE  THING,   below. 

Maritime  Law.     See  Admiralty,  above. 

Martial  Law.  See  Military  Law, 
below. 

MEDICAL  LAW  is  that  branch  of  the  law 
which  is  affected  by  medical  facts,  and  in 
which  the  principles  and  practice  of  medicine 
is  required  for  the  elucidation  and  settlement 
of  doubtful  questions  arising  in  the  course  of 
judicial  proceedings.  These  questions  are 
embraced  in  five  different  classes :  they  arise : 
I.  From  the  relations  of  sex;  as,  delivery, 
hermaphroditism,  impotency,  legitimacy,  preg- 
nancy, rape,  sterility.  2.  From  injuries  in- 
flicted upon  the  living  organization  ;  as,  infan- 
ticide,  poisons,  wounds,  personB  found  dead. 


5.6 


LAW. 


1.  From  disqualifying  diseases;  as,  different 
forms  of  mental  alienation  or  derangement. 
4.  From  deceptive  practices ;  as,  feigned  dis- 
eases. 5.  From  miscellaneous  causes ;  as,  age, 
identity,  life  insurance,  presumption  of  senior- 
ship,  and  medical  evidence. 

Abortion  is  the  act  of  miscarrying  or  pro- 
ducing young  before  the  natural  time,  or  before 
the  foetus  is  perfectly  formed.  The  expulsion 
of  the  foetus  during  utero-gestation,  and  before 
it  has  acquired  the  power  of  sustaining  an  in- 
dependent life. 

The  criminal  and  unnatural  means  of  pro- 
ducing abortion  are  of  two  kinds.  General,  or 
those  which  seek  to  produce  the  expulsion 
through  the  constitution  of  the  mother,  which 
are  cathartics,*  diuretics,''  emetics,"  ammena- 
gogues,"*  and  venesection.*  Local  or  mechani- 
cal means,  which  consist  either  of  external 
violence  applied  to  the  abdomen  or  loins,  or 
of  instruments  introduced  into  the  uterus  for 
the  purpose  of  rupturing  the  membranes,  and 
thus  bringing  on  premature  action  of  the 
womb.  These  local  or  mechanical  means  not 
unfrequently  produce  the  death  of  the  mother, 
as  well  as  that  of  the  foetus. 

The  innocent  or  natural  causes  of  producing 
abortion  are  of  two  kinds.  In  the  mother,  as 
great  debility,  disease,  excessive  venereal  in- 
dulgence, habit  of  miscarriage,  malformation 
of  the  pelvis,'  plethora,*  or  irritable  or  nervous 
temperament  in  the  fostus^  or  its  dependencies ; 
usually  disease  existing  in  the  ovum,*  the  mem- 
branes, placenta,J  or  the  foetus  itself. 

See  Death,  below. 

AccoucHMENT  is  delivery  in  child-bed;  the 
act  of  giving  birth  to  a  child.  When  it  is 
necessary  to  prove  the  filiation  of  an  individual 
by  the  accouchment,  it  may  be  proven  by  the 
direct  testimony  of  one  who  was  present,  as  a 
physician,  midwife,  or  other  person.^ 

Apoplexy  and  Paralysis  imply  an  affec- 
tion of  the  brain ;  supposed  to  be  only  different 
degrees  of  the  same  affection.  In  apoplexy 
tlie  patient  is  suddenly  deprived  of  conscious- 
ness and  sensibility,  and  so  continues  for  a 
period  varying  from  a  few  hours  to  a  few  days, 
when  he  dies  or  begins  to  recover.  The  recov- 
ery may,  however,  be  imperfect,  leaving  some 
mental  impairment,  or  loss  of  power  in  the 
nuiscles  of  voluntary  motion,  remaining  for  a 
time,  if  not  for  life.  In  paralysis  there  is  a 
loss  of  power  in  some  of  the  voluntary  muscles 
— those  of  the  arms,  eyes,  face,  or  legs ;  it  may 
be  the  sequel  of  apojilexy,  or  it  may  be  the 
primary  affection ;  occurring  very  much  like  an 

l»-Mecl!cines  that  produce  alvine  (pertaining  to  the 
lower  belly  or  intestines  I  discharges,  or  preternatural 
discharges  of  the  intestines,  purges,  purgatives,  puri- 
fiers. I>-Medicines  that  produce  discharges  of  urine, 
that  increase  the  discharge  of,  or  possess  the  power  to 
provoke  urine.  C-Medicines  that  produce  or  provoke 
vomiting  by  exciting  the  stomach  to  discharge  its  con- 
tents through  the  oesophagus  (or  gullet)  and  mouth,  d- 
Medicines  that  produce  or  promote  the  menstrual  (or 
monthly)  discharge.  O-Bleeding,  blood-letting.  f-A 
cavity  of  the  body  formed  by  the  os  coccygis,  os  sacruiir, 
.•••id  os!^a  innoniinata.  |f-Fulness  or  excess  of  blood. 
,  !)<;  svate  vf  (h?  TCSSeU  9^  fhe  liumaa  body  wbeu  ihcy 


attack  of  apoplexy.  Apoplexy  is  the  abolition 
of  sense  and  voluntary  motion,  from  suspen- 
sion of  the  functions  of  the  cerebrum  ;*  appar- 
ent death;  suspended  animation,  as  fainting, 
swooning.  Paralysis  is  an  abolition  of  func- 
tion, whether  of  intellect,  general  or  special 
sensation,  sympathetic  or  voluntary  motion. 

In  cases  where  wills  are  made  in  that  equivo- 
cal condition  which  sometimes  follows  an  at- 
tack of  apoplexy  or  paralysis,  and  their  validity 
is  contested  on  the  score  of  mental  incompe- 
tency, there  are  generally  two  questions  at 
issue,  viz.:  i.  The  absolute  amount  of  mental 
impairment;  and  2.  The  degree  of  foreign  in- 
fluence exerted  upon  the  testator.  These  ques- 
tions cannot  be  considered  independently  of 
each  other;  neither  of  them  alone  might  be 
sufficient  to  invalidate  an  act,  while  together 
they  might  have  that  effect. 

In  testing  the  mental  capacity  of  paralytics, 
reference  should  be  had  to  the  nature  of  the  act 
in  question.  The  question  is,  "  Had  the  testa- 
tor sufficient  mental  capacity  to  make  the  will 
in  dispute  ?  "  and  not  "  Had  he  sufficient  ca- 
pacity to  make  a  will  ?  "  In  order  to  arrive  at 
correct  conclusions  on  this  point,  we  must  re- 
member, among  other  things,  that  the  power  to 
appreciate  the  terms  of  a  proposition  must  not 
be  confounded  with  the  power  to  discern  its 
consequences  and  relations. 

In  testing  the  mental  capacity  of  one  who 
has  lost  the  power  of  speech,  it  is  difficult,  and 
often  impossible,  to  arrive  at  correct  results. 
If  the  person  is  able  and  willing  to  communi- 
cate his  thoughts  in  writing,  his  mental  capacity 
may  be  clearly  revealed.  If  not  disposed  to 
write  he  may  communicate  by  constructing  sen- 
tences by  the  help  of  the  alphabet,  block  letters, 
or  dictionary;  failing  in  this,  resort  must  be 
had  to  the  expression  of  assent  or  dissent  by 
signs  to  propositions  made  by  others.  If  the 
act  in  question  is  complicated  in  its  relations, 
unreasonable  in  its  dispositions,  or  bears  the 
slightest  trace  of  foreign  influence,  it  will  be 
regarded  with  suspicion ;  for  a  will  thus  drawn 
is  not  absolutely  the  will  of  the  testator,  since 
every  disposition  originated  in  the  minds  of 
others." 

Asphyxy  is  suspended  animation,  particu- 
larly from  suffocation  or  drowning,  or  the  in- 
spiration of  irrespirable  gases;  a  temporary 
suspension  of  the  motion  of  the  heart  and 
arteries ;  cessation  of  breathing  and  pulsation  ; 
fainting;  swooning.  Where  the  cause  of  as- 
phyxy becomes  the  subject  of  legal  inquiry,  it 
is  necessary  to  ascertain  whether  the  person 

are  too  full,  or  overloaded  with  fluids.  ll-Young  in  the 
womb,  from  the  time  it  is  distinctly  formed  tmtil  its 
birth.  Before  this  distinct  formation  it  is  called  ^;«/^rj'i». 
i-That  body  formed  by  the  female,  in  which,  after  im- 
pregnation, the  development  of  the  foetus  takes  place. 
j-The  substance  that  connects  the  ovum  to  the  womb, 
a  soft,  roundish  mass  by  which  the  principal  connection 
is  maintained  between  the  parent  and  the  foetus.  Coxe, 
Quincy.  U-i  Bouv.  Inst.  n.  314.  1-The  front  and 
larger  part  of  the  brain.  m-Fdr  phenomena  and  legal 
consequences  of  paralytic  afflictions,  see  i  Paige  Ch. 
171;  I  Hagg.  Eccl.  502,  577;  2  Id.  84;  I  Curt.  Eccl, 
7S2  ;  Parish  Will  Case,  4  Vols.  N.  y.  1858. 


LAW. 


5'7 


has  been  deprived  of  his  senses  by  accident,  by 
his  own  act,  or  as  the  victim  of  another.  See 
Death,  below. 

Barrenness.     See  Sterility,  below. 

Birth  is  the  act  of  bringing  forth  a  human 
being,  or  of  its  coming  into  life,  of  its  being 
wholly  born.  The  conditions  of  live  birth  are 
not  satisfied  when  a  part  of  the  body  is  born ; 
the  whole  body  must  be  brought  into  the  world, 
and  detached  from  that  of  the  mother  (but  it  is 
not  necessary  that  there  should  be  a  separation 
of  the  umbilical  cord;  that  may  still  connect 
the  child  with  its  mother) ;""  and  after  this 
event  the  child  must  be  alive."  The  circula- 
ting system  must  also  be  changed,  and  the 
child  must  have  an  independent  circulation." 

Breathing,  though  a  usual  sign  of  life,  is  not 
conclusive  that  a  child  was  wholly  born  alive, 
as  breathing  may  take  place  before  the  whole 
delivery  of  the  mother  is  complete.? 

Delivery  or  child-birth;  the  act  of  a  woman 
in  giving  birth  to  a  child. 

The  usual  signs  of  delivery  are : 

If  the  female  be  examined  within  three  or 
four  days  after  the  occurrence  of  delivery,  the 
following  circumstances  will  generally  be  ob- 
served :  greater  or  less  weakness,  a  slight  pale- 
ness of  the  face,  the  eye  a  little  sunken  and 
surrounded  by  a  purplish  or  dark-brown  col- 
ored ring,  and  a  whiteness  of  the  skin  like 
that  of  a  person  convalescing  from  disease. 
The  belly  is  soft,  the  skin  of  the  abdomen  is 
lax,  lies  in  folds,  and  is  traversed  in  various 
directions  by  shining  reddish  and  whitish  lines, 
which  especially  extend  from  the  groin  and 
pubes  to  the  navel.  These  lines  have  some- 
times been  termed  linea  albicantes,  and  are 
particularly  observed  near  the  umbilical  region, 
where  the  abdomen  has  experienced  the  great- 
est distension.  The  breasts  become  tumid  and 
hard,  and,  on  pressure,  emit  a  fluid,  which  at 
first  is  serous  and  afterwards  gradually  becomes 
whiter;  and  the  presence  of  this  secretion  is 
generally  accompanied  with  a  full  pulse  and 
soft  skin,  covered  with  a  moisture  of  a  peculiar 
and  somewhat  acid  odor.  The  areolae  round 
the  nipples  are  dark-colored.  The  external 
genital  organs  and  vagina  are  dilated  and 
tumefied  throughout  the  whole  of  their  extent, 
from  the  pressure  of  the  foetus.  The  uterus 
may  be  felt  through  the  abdominal  parietes, 
voluminous,  firm,  and  globular,  and  rising 
nearly  as  high  as  the  umbilicus.  Its  orifice  is 
soft  and  tumid,  and  dilated  so  as  to  admit  two 
or  more  fingers.  The  fourchette,  or  anterior 
margin  of  the  perinseum,  is  sometimes  torn,  or 
't  is  lax,  and  appears  to  have  suffered  consider- 
able distension.  A  discharge  (termed  the 
lochial)  commences  from  the  uterus,  which  is 
distinguished  from  the  menses  by  its  pale  color. 
Us  peculiar  and  well-known  smell,  and  its  dura- 
tion. The  lochia  are  at  first  of  a  red  color, 
and  gradually  become  lighter  until  they  cease. 

These  signs  may  generally  be  relied  upon  as 
indicating  the  state  of  pregnancy :  yet  it  re- 

Iii-7C.  &P.  I14;  9ld.  25.    n-sC.&P.  32^;   7  Id. 


(juires  much  experience  in  order  not  to  be  de- 
ceived by  appearances. 

The  lochial  discharge  might  be  mistaken  for 
menstruation,  or  fluor  albus,  were  it  not  for  its 
peculiar  smell;  and  this  it  has  been  found  im. 
possible,  by  any  artifice,  to  destroy. 

Relaxation  of  the  soft  parts  arises  as  fre- 
quently from  menstruation  as  from  delivery; 
but  in  these  cases  the  os  uteri  and  vagina  are 
not  so  much  tumefied,  nor  is  there  that  tender- 
ness and  swelling.  The  parts  are  found  pale 
and  flabby  when  all  signs  of  contusion  disap- 
pear aftL-r  delivery  ;  and  this  circumstance  does 
not  follow  menstruation. 

The  presence  of  milk,  though  a  usual  sign 
of  delivery,  is  not  always  to  be  relied  upon ; 
for  this  secretion  may  take  place  independent 
of  pregnancy. 

The  wrinkles  and  relaxation  of  the  abdomen 
which  follow  delivery  may  be  the  consequence 
of  dropsy,  or  of  lankness  following  great  obe- 
sity. This  state  of  the  parts  is  also  seldom 
striking  after  the  birth  of  the  first  child,  as  they 
shortly  resume  their  natural  state. 

Concealed  t/if/zWry  generally  takes  place 

when  the  woman  either  has  destroyed  her  off"- 
spring  or  it  was  born  dead.  In  suspected  cases 
the  following  circumstances  should  be  attended 
to :  I.  The  proofs  of  pregnancy  which  arise  in 
consequence  of  the  examination  of  the  mother. 
When  she  has  been  pregnant,  and  has  been 
delivered,  the  usual  signs  of  delivery,  men- 
tioned above,  will  be  present.  A  careful  in- 
vestigation as  to  the  woman's  appearance  be- 
fore and  since  the  delivery  will  have  some 
weight;  though  such  evidence  is  not  always 
to  be  relied  upon,  as  such  appearances  are  not 
unfrequently  deceptive.  2.  The  proofs  of  re- 
cent delivery.  3.  The  connection  between  the 
supposed  state  of  parturition  and  the  state  of 
the  child  that  is  found;  for  if  the  age  of  the 
child  do  not  correspond  to  that  time  it  will  be 
a  strong  circumstance  in  favor  of  the  mother's 
innocence.  A  redness  of  the  skin  and  an  at- 
tachment of  the  umbilical  cord  to  the  navel  in- 
dicate a  recent  birth.  Whether  the  child  was 
living  at  its  birth,  belongs  to  the  subject  of  in- 
fanticide, which  see  below. 

Pretended  delivery  may  present  itself  in 

three  points  of  view.  I.  When  the  female  who 
feigns  has  never  been  pregnant.  When  tho- 
roughly investigated,  this  may  always  be  de- 
tected. There  are  signs  which  must  be  pres- 
ent and  cannot  be  feigned.  An  enlargement 
of  the  orifice  of  the  uterus,  and  a  tumefaction 
of  the  organs  of  generation,  should  always  be 
present,  and  if  absent  are  conclusive  against 
the  fact.i  2.  When  the  pretended  pregnancy 
and  delivery  have  been  preceded  by  one  or 
more  deliveries.  In  this  case  attention  should 
be  given  to  the  following  circumstances :  the 
mystery,  if  any,  which  has  been  aflTected  with 
regard  to  the  situation  of  the  female ;  her  age ; 
that  of  her  husband ;  and  particularly,  whether 

814.  0-5C.  &P.  539;  9  Id.  154.  p-sC.  &P.  329.  q|- 
2  Annales  d' Hygiene,  327. 


5i« 


LAW. 


aged  or  decrepit.  3.  WTien  the  woman  has 
been  actually  delivered,  and  substitutes  a  living 
for  a  dead  child.  But  little  evidence  can  be 
obtained  on  this  subject  from  a  physical  ex- 
amination. 

Monsters.  (Beings  contrary  in  conforma- 
tion to  the  order  of  nature ;  unnatural  crea- 
tions.)' Although  born  of  women  in  lawful 
wedlock,  cannot  inherit.  Those  who  have, 
however,  the  essential  parts  of  the  human 
f  )rm,  and  have  merely  some  defect  of  confor- 
■lation,  are  capable  of  inheriting  if  otherwise 
qualified.''    See  Delivery,  below. 

No  living  human  birth,  however  much  it 
may  differ  from  human  shape,  can  be  lawfully 
destroyed.*  The  killing  of  a  child,  though 
joined  to  its  mother  by  the  umbilical  cord,  is 
murder.* 

Bruises  are  injuries  produced  by  violence 
upon  the  person  without  breaking  the  contin- 
uity of  the  skin.  It  is  nearly  synonymous  with 
contusion." 

See  Contusions  ;  Wounds,  below. 

Common-sense  is  the  common  association, 
judgment,  and  perception  in  relation  to  per- 
sons and  things  which  agrees  with  that  of  the 
generality  of  mankind.  When  a  particular 
individual  differs  from  the  generality  of  man- 
kind or  persons  in  these  respects,  he  is  said 
not  to  have  common  sense,  or  not  to  be  in  his 
senses.^ 

Contusions  are  injuries  arising  from  shocks 
of  the  body  with  large  surfaces,  which  presents 
no  loss  of  substance  and  no  apparent  wound. 
If  the  skin  be  divided,  the  injury  takes  the 
name  of  a  contused  wound.* 

See  Bruises,  above ;  Wounds,  below. 

Delirium  Febrile  is  a  mental  aberration 
incident  to  fevers,  and  sometimes  in  the  last 
stages  of  chronic  diseases. 

The  aberration  is  mostly  of  a  subjective 
character,  maintained  by  the  inward  activity 
of  the  mind  rather  than  by  outward  impres- 
sions. "  Regardless  of  persons  or  things  around 
him,  and  scarcely  capable  of  recognizing  them 
when  aroused  by  his  attendants,  the  patient 
retires  within  himself,  to  dwell  upon  the  scenes 
and  events  of  the  past,  which  pass  before  it  in 
wild  and  disorderly  array,  while  the  tongue 
feebly  records  the  varying  impressions,  in  the 
form  of  disjointed,  incoherent  discourse,  or  of 
senseless  rhapsody."*  It  comes  on  gradually, 
being  first  manifested  by  talking  while  asleep, 
and  by  a  momentary  forgetfulness  of  persons 
and  things  on  waking.  Fully  aroused,  how- 
ever, the  mind  becomes  clear  and  tranquil, 
and  so  continues  until  the  return  of  sleep,  when 
the  same  incidents  recur.  Gradually  the  men- 
tal disorder  becomes  more  intense,  and  the 
intervals  between  its  returns  of  shorter  duration, 
until  they  disappear  altogether.     Occasionally 

q-2  Dunglinson  Hum.  Phys.  422.  r-2  Bl.  Comm. 
246:  I  Beck  Med.  Jur.  366;  Co.  Litt.  7,  8  :  Dig.  js, 
14;  1  Swift  Syst.  331 :  Fred.  Code,  Pt.  i,  Bk.  i,  t.  4,  j 
4.  H-Traill  Med.  Jur.  47:  see  Briand  M^d.  L6g.  Pt.  1, 
Ch.  6,  Art.  2,  2  3  ;  i  Fodere  Med.  L6g.  §9402-405.  t■^ 
C.  &  P.  814;    ^  Id.  25;    see  1  Beck  Med.  Jur.  478;    i 


the  past  is  revived  with  wonderful  vividness 
and  acquirements  are  displayed  which  the  pa- 
tient before  his  illness  had  entirely  forgotten. 
Instances  are  related  of  persons  speaking  in  a 
language  which,  though  acquired  in  youth, 
had  long  since  passed  from  their  memory. 

The  only  acts  which  can  possibly  be  affected 
by  delirium  are  wills,  which  are  often  made 
in  the  last  illness  during  the  periods  when  the 
mind  is  apparently  clear.  Under  such  cir- 
cumstances it  may  be  questioned  whether  the 
apparent  clearness  was  or  was  not  real ;  and  it 
is  a  question  not  always  easily  answered.  In 
the  early  stages  of  delirium  the  mind  may  be 
quite  clear,  no  doubt,  in  the  intervals,  while  it 
is  no  less  certain  that  there  comes  a  period  at 
last  when  no  really  lucid  interval  occurs  and 
the  mind  is  reliable  at  no  time.  The  person 
may  be  still,  and  even  answer  questions  with 
some  degree  of  pertinence,  while  a  close  ex- 
amination would  show  the  mind  to  be  in  a 
dreamy  condition  and  unable  to  appreciate 
any  nice  relations.  In  all  these  cases  the 
question  to  be  met  is,  whether  the  delirium 
which  confessedly  existed  before  the  act  left 
upon  the  mind  no  trace  of  its  influence; 
whether  the  testator,  calm,  quiet,  clear,  and 
coherent  as  he  seemed,  was  not  quite  uncon- 
scious of  the  nature  of  the  act  he  was  perform- 
ing. The  state  of  things  implied  in  these 
questions  is  not  fanciful.  In  every  case  it  may 
possibly  exist,  and  the  questions  must  be 
met. 

After  obtaining  all  the  light  which  can  be 
thrown  on  the  mental  condition  of  the  testator 
by  nurses,  servants,  and  physicians,  then  the 
character  of  the  act  itself  and  the  circumstances 
which  accompany  it  require  a  careful  investi- 
gation. If  it  should  appear  that  the  mind  was 
apparently  clear,  and  that  the  act  was  a  ration.rd 
act  rationally  done,  consistent  one  part  wiih 
another,  and  in  accordance  with  wishes  or 
instructions  previously  expressed,  and  without 
any  appearance  of  foreign  influence,  then  it 
would  be  established.  A  different  state  of 
things  would  to  that  extent  raise  suspicion  and 
throw  discredit  on  the  act.  Yet  at  the  very 
best  it  will  occasionally  happen,  so  dubious 
sometimes  are  the  indications,  that  the  decision 
will  be  largely  conjectural.^ 

Delirium  Tremens  {Mania-a-potu)  is  a 
mental  disorder  induced  by  the  excessive  and 
prolonged  use  of  intoxicating  liquors.  It 
generally  appears  as  a  sequel  to  a  few  days 
abstinence. 

The  nature  of  the  connection  between  this 
disease  and  abstinence  is  not  yet  clearly  under- 
stood. Where  the  former  succeeds  a  broken 
limb,  or  any  other  severe  accident  that  confines 
the  patient  to  his  bed  and  obliges  him  to  ab- 
stain, it  would  seem  as  if  its  development  were 

Chitty  Med.  Jur.  438.     n-i  Ch.  Pr.  38 ;    see  4  C.  &  P. 

381,487,558,565.     v-i   Chitty  Med.  Jur.  334.     w-Ste 

1  Ch.  Pr.  38 ;    4  C.  &  B.  381.  487,  558,  565 ;    6  Id.  68,  ; 

2  Beck  Med.  Jur.  178.  x-Ray,  Med.  Jur.  346.  y-i 
Hagg.  Eccl.  146,  256,  502,  577;  2  Id.  142  ;  3  Id.  790;  > 
Lee  Eccl.  130;  2  Id.  200. 


LAW. 


5«» 


favored  by  the  constitutional  disturbance  then 
existing.  In  other  cases,  where  the  abstinence 
is  apparently  voluntary,  there  is  some  reason 
to  suppose  that  it  is  really  the  incubation  of  the 
disease,  and  not  its  cause. 

Its  approach  is  generally  indicated  by  a 
sl'.j^ht  tremor  and  faltering  of  the  hands  and 
lower  extremities,  a  Iremulousness  of  the  voice, 
a  certain  restlessness  and  sense  of  anxiety 
which  the  patient  knows  not  how  to  describe 
(ir  account  for,  disturbed  sleep,  and  impaired 
appetite.  These  symptoms  having  continued 
two  or  three  days,  at  the  end  of  which  time 
they  have  usually  increased  in  severity,  the 
patient  ceases  to  sleep  altogether,  and  soon  be- 
comes delirious  at  intervals.  After  a  while 
the  delirium  becomes  constant,  as  well  as  the 
utter  absence  of  sleep.  This  state  of  watchful- 
ness and  delirium  continues  three  or  four  days, 
when,  if  the  patient  recover,  it  is  succeeded  by 
sleep,  which  at  first  appears  in  uneasy  and 
irregular  naps,  and  lastly  in  long,  sound,  and 
refreshing  slumbers.  When  sleep  does  not 
supervene  about  this  time,  the  disease  proves 
latal. 

Delirium  tremens  is  marked  by  some  peculiar 
characters.  Almost  invariably  the  patient  mani- 
fests feelings  of  fear  and  suspicion,  and  labors 
under  continual  apprehension  of  being  made  the 
victim  of  sinister  designs  and  practices.  He 
imagines  that  people  have  conspired  to  rob  and 
murder  him,  and  insists  that  he  can  hear  them  in 
an  adjoining  room  arranging  their  plans  and 
preparing  to  rush  upon  him,  or  that  he  is  forcibly 
detained  and  prevented  from  going  to  his  own 
home.  One  of  the  most  common  hallucina- 
tions in  this  disease  is  that  of  constantly  seeing 
devils,  snakes,  or  vermin  around  him  and  on 
him.  Under  the  influence  of  the  terrors  in- 
spired by  these  notions,  the  wretched  patient 
often  endeavors  to  cut  his  throat,  or  jump  out 
of  the  window,  or  murder  his  wife,  or  some 
one  else  whom  his  disordered  imagination 
identifies  with  his  enemies. 

Delirium  tremens  must  not  be  confounded 
with  other  forms  of  mental  derangement  which 
occur  in  connection  with  intemperate  habits. 
Hard  drinking  may  produce  a  paroxysm  of 
maniacal  excitement,  or  a  host  of  hallucinations 
and  delusions,  which  disappear  after  a  few 
(lays'  abstinence  from  drink  and  are  succeeded 
by  the  ordinary  mental  condition.*  For  in- 
stance, a  prisoner  was  defended  on  the  plea 
that  the  homicide  for  which  he  was  indicted 
was  committed  in  a  fit  of  delirium  tremens. 
There  was  no  doubt  that  he  was  laboring  under 
.''ome  form  of  insanity ;  but  the  fact,  which  ap- 
])e;ired  in  evidence,  that  his  reason  returned 
l)efore  the  recurrence  of  sound  sleep,  rendered 
it  very  doubtful  whether  the  trouble  was  deli- 
rium tremens,  although  in  every  other  respect 
it  looked  like  that  disease. 

Delirium  tremens  annuls  responsibility  for 
any   act    that  may    be    committed   under    its 

«-i  Curt.  C.  C.  I.  a-i  Curt  C.  C.  1  :  s  Mas.  C.  C. 
H ;  Stat?  vs.  Wilson,  Ray  Med.  Jur.  520,      lb-Reg.  vf. 


influence ;  provided,  of  course,  that  the  mental 
condition  can  stand  the  tests  applied  in  other 
forms  of  insanity.  The  law  does  not  look  ttt 
the  remote  causes  of  the  mental  affection  ;  and 
the  rule  on  this  point  is  that  if  the  act  is  not 
committed  under  the  immediate  influence  of 
intoxicating  drinks,  the  plea  of  insanity  is  not 
invalidated  by  the  fact  that  it  is  the  result  of 
drinking  at  some  previous  time.  Such  drink- 
ing may  be  morally  wrong ;  but  the  same  may 
be  said  of  other  vicious  indulgences  which  give 
rise  to  much  of  the  insanity  which  exists  in  the 
world.' 

It  was  held  that  delirium  tremens  was  not  a 
valid  defence,  because  the  prisoner  knew,  by 
repeated  experience,  that  indulgence  in  drink- 
ing would  probably  bring  on  an  attack  of  the 
disease. 

It  is  not  quite  certain  what  the  rule  of  law  is 
in  England.  Two  cases  are  cited  where  the 
plea  of  delirium  tremens  was  admitted  in  ex- 
cuse for  crime. ^ 

Death  is  the  total  anc^  permanent  cessation 
of  all  the  vital  functions;  when  all  the  organs 
have  not  only  ceased  to  act,  but  have  lost  their 
susceptibility  of  renewed  action.  Actual  death 
is  distinguished  from  apparent  death  by  several 
signs,  some  more  conclusive  than  the  others. 
I.  Cessation  of  the  circulatior.  2:  Cessation 
of  the  respiration.  3.  The  fades  Hippocraiii^ 
— wrinkled  brow,  hollow  eyes,  pointed  nose, 
hollow,  wrinkled  temples,  elevted  ears,  re- 
laxed lips,  sunken  cheek  bones,  and  wrinkled 
and  pointed  chin.  4.  Collapsed  and  softened 
state  of  the  eye.  5.  Pallor  and  loss  of  elasti- 
city of  the  skin.  6.  Insensibility  and  im- 
movability. 7.  Extinction  of  muscular  irrita- 
bility. 8.  Extinction  of  animal  heat.  9. 
Muscular  rigidity;  and  10.  The  supervening 
of  putrefaction,  which  depends  something  upon 
age,  sex,  condition  of  the  body,  and  cause  of 
death;  also  upon  period,  place,  and  mode  of 
interment.  The  process  is  increased  by  a  high 
temperature,  moisture,  and  access  to  air. 

Various  indications  as  to  whether  the  4^ath 
is  the  act  of  God  or  the  result  of  violence  may 
be  gathered  from  the  position  and  circum- 
stances in  which  the  body  is  found,  and  the 
condition  of  the  place  where  the  body  is  found. 
I.  Whether  it  be  a  case  of  homicide,  suicide, 
or  visitation  of  God;  and,  2.  Whether,  if  one 
of  homicide,  the  murder  occurred  there,  or 
some  other  place,  the  body  having  been  brought 
there  and  left.  The  points  to  be  noted  are 
whether  the  ground  appears  to  have  been  dis- 
turbed from  its  natural  condition ;  whether 
there  are  any,  and  what,  indications  of  a  strug- 
gle ;  whether  there  are  any  marks  of  footsteps, 
and,  if  any,  their  size,  number,  the  direction  to 
which  they  lead,  and  whence  they  came; 
whether  any  traces  of  blood  or  hair  can  be 
found ;  and  whether  any,  or  what,  instruments 
or  weapons,  which  could  have  caused  death, 

Watson,  and  Reg.  vs.  Simpson,  Taylor  Med.  Jnr.  65*. 
C-Pale,  sunlcen,and  contracted  features.  Theexplaj)»- 
tior)  inore  minutely  follows  the  phras?  aVov^t 


520 


LAW. 


are  found  in  the  vicinity;  and  all  such  instru- 
ments should  be  carefully  preserved,  so  that 
they  may  be  identified.* 

As  thorough  an  examination  as  possible 
should  be  made  of  the  body  before  changing 
its  position,  or  that  of  any  of  the  limbs,  or 
varying  in  any  respect  its  relations  with  sur- 
rounding bodies.  So,  also,  of  the  wounds,  if 
any,  in  order  from  their  nature,  character,  form, 
and  appearance,  to  determine  the  instrument 
by  which  they  were  inflicted,  and  also  their 
agency  in  causing  the  death,  the  direction  from 
which  they  were  dealt,  their  extent,  depth, 
vessels  severed,  etc.  So,  also,  of  the  clothes 
worn  by  the  deceased,  and  any  parts  torn,  or 
presenting  any  unusual  appearance.  A  memo- 
randum should  be  made  of  the  color  of  the  skin, 
the  temperature  of  the  body,  the  existence  and 
extent  of  cadaveric  rigidity  of  the  muscular  sys- 
tem, the  state  of  the  eyes  and  sphincter  muscles, 
noting  at  the  same  time  whatever  swellings, 
ecchymosis,  or  livid,  black,  or  yellow  spots, 
wounds,  ulcers,  contusions,  fractures,  or  luxa- 
tion may  be  present.  The  fluids  which  have 
exuded  from  the  nose,  mouth,  ears,  sexual  or- 
gans, etc.,  should  be  carefully  noted ;  and  when 
the  deceased  is  a  female,  it  will  be  proper  to 
examine  the  sexual  organs  with  care,  with  a 
view  of  ascertaining  whether  before  death  the 
crime  of  rape  had  or  had  not  been  committed. 
The  amount  of  decomposition  should  also  be 
noted,  with  a  view  of  determining  when  the 
death  took  place. 

Evidences  of  Death  by  Violence.  This  in- 
volves the  inquiry  as  to  the  cause  of  death  in 
all  cases  of  the  finding  of  bodies  divested  of 
life  through  unknown  agencies.  It  seeks  to 
gather  all  the  evidence  furnished  by  the  body 
and  surrounding  circumstances  bearing  upon 
this  difficult,  and,  at  best,  doubtful  subject;  it 
more  immediately  concerns  the  duties  of  the 
coroner;  but  is  liable  to  come  up  subsequently 
for  a  more  thorough  and  searching  investiga- 
tion. Hence,  its  briefness  here  needs  no  com- 
ment. 

The  first  point  for  determination  is,  whether 
the  death  was  the  act  of  God,  or  the  result  of 
violence.  Sudden  death  is  generally  produced 
by  a  powerful  invasion  of  the  living  forces  that 
develop  themselves  in  the  heart,  brain,  or  lungs; 
the  first  is  called*  syncope,"  the  second,  apo- 
plexy,' and  the  third,  asphyxia.*  The  two  last 
are  the  most  important  to  be  understood  in  con- 
nection with  the  subject  of  persons  found  dead. 

In  death  from  apoplexy,  the  sudden  invasion 
of  the  brain  destroys  innervation,  by  which  the 
circulation  is  arrested,  each  side  of  the  heart 
containing  its  due  proportion  of  blood,  and  the 
cavities  are  all  distended  from  loss  of  power  to 
propel  its  contents.  Death  by  apoplexy  is  dis- 
closed by  a  certain  apopletic  make,  or  form  of 

C-Dean  Med.  Jur.  257  ;  Beck  Med  Jur.  107,  n.  136,  520. 
«I-Dean  Med.  Jur.  426,  et  seq.  e-Syncope  is  a  Minting 
or  swooning ;  a  diminution,  or  interruption  of  the  motion 
of  the  heart,  and  of  respiration,  accompanied  with  a  sus- 
petision  of  the  action  of  the  brain,  and  a  temporarj'  loss 
•f  scwfitioii,  volition,  and  other  faculties,  Webst.  Pict. 


body,  consisting  of  a  large  head,  short  neck, 
and  plethoric  frame,  from  the  posture  in  which 
the  body  is  found,  and  the  appearances  revealed 
by  dissection,  particularly  in  the  head. 

Death  by  asphyxia  is  more  important  to  be 
understood.  It  is  limited  to  cases  where  the 
heart's  action  is  made  to  cease  through  the  in- 
terruption of  the  respiration,  or  breathing.  It 
is  accomplished  by  all  the  possible  modes  of 
excluding  atmospheric  air  from  the  lungs.  The 
appearance  in  the  body  indicating  death  by  as- 
phyxia are:  violent  discolorations,  eyes  promi- 
nent, firm,  and  brilliant;  cadaveric  rigidity 
early  and  well  marked ;  venous  system  of  the 
brain  full  of  blood;  lungs  distended  with  thick, 
dark-colored  blood;  liver,  spleen,  and  kidneys 
gorged ;  right  cavities  of  the  heart  distended, 
the  left  almost  empty. 

Death  by  burning  presents  a  narrow  white 
line  surrounding  the  burnt  spot;  external  to 
that,  one  of  a  deep-red  tint,  running  by  degrees 
into  a  diffiised  redness.  This  is  succeeded  in 
a  few  minutes  by  blisters  filled  with  serum. 

Death  by  cold  leaves  few  traces  in  the  system. 
Pale  surface,  general  congestion  of  internal 
organs,  sometimes  eflfused  serum  in  the  ventri- 
cles of  the  brain. 

Death  by  drowning  is  caused  by  asphyxia 
from  suffocation  by  nervous,  or  syncopal  as- 
phyxia, or,  by  asphyxia  from  cerebral  conges- 
tion. In  the  first,  besides  other  indications  of 
asphyxia,  the  face  is  pale  or  violet,  a  frothy 
foam  at  the  mouth,  froth  in  the  larynx,  trachea, 
and  bronchi,  water  in  the  trachea,  and  some- 
times in  the  ramifications  of  the  bronchia,  and 
also  in  the  stomach.  In  the  second,  the  face 
and  skin  are  pale,  the  trachea  empty,  lungs  and 
brain  natural,  and  no  water  in  the  stomach.  In 
the  third,  the  usual  indications  of  death  by  apo- 
plexy are  found  on  examination  of  the  brain. 

Death  by  hanging  is  produced  by  asphyxia 
suspending  respiration  by  compressing  the 
larj'nx,  by  apoplexy  pressing  upon  the  veins 
and  preventing  the  returning  of  blood  from  the 
head,  by  fracture  of  the  cervical  vertebrae,  lac- 
eration of  trachea  or  larynx,  or  rupture  of  the 
ligaments  of  the  neck,  or  by  compressing  the 
nerves  of  the  neck.  The  signs  and  indications 
depend  upon  the  cause  of  death.  Among  these 
are  :  face  livid  and  swollen,  lips  distorted,  eye- 
lids swollen,  eyes  red  and  projecting,  tongue 
enlarged,  livid,  compressed,  froth  about  the 
lips  and  nostrils,  a  deep  ecchymosed  marked 
cord  about  the  neck,  sometimes  ecchymosed 
patches  on  different  parts  of  the  body,  fingers 
contracted  or  clenched,  and  the  body  retaining 
its  animal  heat  longer  than  in  other  modes  of 
death. 

Death  by  lightning M^uMy  exhibits  a  contused 
or  lacerated  wound  where  the  electric  fluid  en- 


f- Apoplexy  is  an  abolition  of  sense  and  voluntary  motion, 
from  suspension  of  the  functions  of  the  cerebrum.  The 
cerebrum  is  the  front  and  larger  part  of  the  brain.  Id. 
g-Asphyxia  is  apparent  death,  orfeuspended  animation, 
partic\ilarly  from  suffocation  or  drowning,  or  the  inhala- 
tion of  irrespirable  gases  ;  applied  also  to  the  Coilapse<} 
suto  in  cholera,  witE  want  of  pulse,  14. 


LAW. 


531 


tered  and  passed  out.  Sometimes  an  extensive 
ecchymosis  appears,**  more  commonly  on  the 
back,  along  the  course  of  the  spinal  marrow. 

Death  by  strangulation  presents  much  the 
same  appearance  as  death  by  hanging,  the  mark 
of  the  cord  being  lower  on  the  neck,  more 
horizontal,  and  plainer  and  more  distinctly 
ecchymosed. 

Death  by  starvation  produces  general  ema- 
ciation ;  eyes  and  cheeks  sunken ;  bones  pro- 
jecting ;  face  pale  and  ghastly ;  eyes  red  and 
open;  skin,  mouth,  and  fauces  dry;  gall  blad- 
der large  and  distended ;  body  exhaling  a  fetid 
odor;  heart,  lungs,  and  large  vessels  collapsed; 
early  commencement  of  putrefactive  process. 

Delivery.     See  Birth,  above. 

Delusion  is  a  diseased  state  of  the  mind,  in 
which  persons  believe  things  to  exist  which 
exist  only,  or  in  the  degree  they  are  conceived 
of  only,  in  their  own  imaginations,  with  a  per- 
suasion so  fixed  and  firm  that  neither  evidence 
nor  argument  can  convince  them  to  the  con- 
trary. The  individual  is,  of  course,  insane. 
For  example,  should  a  parent  unjustly  persist, 
without  the  least  ground,  in  attributing  to  his 
daughter  a  course  of  vice,  and  use  her  with 
uniform  unkindness,  there  not  being  the  slight- 
est pretence  or  color  of  reason  for  the  supposi- 
tion, a  just  inference  of  insanity  or  delusion 
would  arise  in  the  minds  of  a  jury;  because  a 
supposition  long  entertained  and  persisted  in, 
after  argument  to  the  contrary,  and  against  the 
natural  affections  of  a  parent,  suggests  that  he 
must  labor  under  some  morbid  mental  delusion.' 

Dementia  is  a  mild  form  of  insanity  char- 
acterized by  mental  weakness  and  decrepitude, 
and  a  total  inability  to  reason  correctly  or  in- 
correctly. The  mind  dwells  only  in  the  past, 
and  the  thoughts  succeed  one  another  without 
any  obvious  bond  of  association.  Delusions, 
if  they  exist,  are  transitory,  and  leave  no  perma- 
nent impression ;  and  for  everything  recent  the 
memory  is  exceedingly  weak.  In  mania,  the 
action  of  the  mind  is  marked  by  force,  hurry, 
and  intensity;  in  dementia,  by  slowness  and 
weakness.  It  is  mostly  the  sequel  of  mania, 
of  which,  in  fact,  it  is  the  natural  termination. 
Occasionally  it  occurs  in  an  acute  form  in 
young  subjects;  and  here  only  it  is  curable. 
In  old  men,  in  whom  it  often  occurs,  it  is  called 
senile  dementia,  and  it  indicates  the  breaking 
down  of  the  mental  powers  in  advance  of  the 
bodily  decay.  It  is  this  form  of  dementia  only 
which  gives  rise  to  litigation  ;  for  in  the  others 
the  incompetency  is  too  patent  to  admit  of 
question.  It  cannot  be  described  by  any  posi- 
tive characters,  because  it  differs  in  fhe  different 
stages  of  its  progress,  varying  from  simple 
lapse  of  memory  to  complete  inability  to  recog- 
niie  persons  or  things.  And  it  must  be  borne 
in  mind  that  often  the  mental  infirmity  is  not 
so  serious  as  might  be  supposed  at  first  sight. 
Many  an  old  man  who  seems  to  be  scarcely 
conscious  of  what  is  passing  around  him,  and 

ll-An  appearance  of  livid  spots  on  the  skin,  occa- 
sioned bv  the  blood  being  forced  o\it  of  its  proper  vessels. 
|-Con»olly,  Insan.  384 ;    Ray  Med.  Jur.  PreJ.  Views,  Jg 


is  guilty  of  frequent  breaches  of  decorum,  needs 
only  to  have  his  attention  aroused  to  a  matter 
in  which  he  is  deeply  interested,  to  show  no 
lack  of  vigor  or  acuteness.  In  other  words, 
the  mind  may  be  damaged  superficially,  while 
it  may  be  sound  at  the  core.  And  therefore  it 
is  that  one  may  be  quite  oblivious  of  names  and 
dates,  while  comprehending  perfectly  well  his 
relations  to  others  and  the  interests  in  which 
he  was  concerned.  It  follows  that  the  im- 
pressions made  upon  casual  or  ignorant  ob- 
servers in  regard  to  the  mental  condition  are 
of  far  less  value  than  those  made  upon  persons 
who  have  been  well  acquainted  with  his  habits 
and  have  had  occasion  to  test  the  vigor  of  his 
faculties. 

The  wills  of  old  men  are  often  contested  on 
the  ground  of  senile  dementia,  and  the  conflict- 
ing testimony  of  observers,  the  proofs  of  foreign 
influence,  and  the  indications  of  mental  ca- 
pacity all  combine  to  render  it  no  easy  task  to 
arrive  at  a  satisfactory  conclusion.  The  only 
general  rule  of  much  practical  value  is  that 
competency  must  be  always  measured,  not  by 
any  fancied  standard  of  intellect,  but  solely  by 
the  requirements  of  the  act  in  question.  A 
small  and  familiar  matter  would  require  less 
mental  power  than  one  complicated  in  its  de- 
tails and  somewhat  new  to  the  testator's  experi- 
ence. Less  capacity  would  be  necessary  to 
distribute  an  estate  between  a  wife  and  child 
than  between  a  multitude  of  relatives  with  un- 
equal claims  upon  his  bounty.  Such  is  the 
principle;  and  the  ends  of  justice  cannot  be 
better  served  than  by  its  correct  and  faithful 
application.  Of  course,  there  will  always  be 
more  or  less  difficulty;  but  generally,  by  dis- 
carding all  legal  and  metaphysical  subtleties 
and  following  the  leading  of  common  sense,  it 
will  be  satisfactorily  suririounted. 

The  legal  principles  by  which  the  courts  are 
governed  are  not  essentially  different  whether 
the  mental  incapacity  proceed  from  dementia 
or  mania.  If  the  will  coincides  with  the  pre- 
viously expressed  wishes  of  the  testator,  if  it 
recognizes  the  claims  of  those  who  stood  in 
near  relation  to  him,  if  it  shows  no  indications 
of  undue  influence — if,  in  short,  it  is  a  rational 
act  rationally  done — it  will  be  established,  and 
very  properly  so,  though  there  may  have  been 
considerable  impairment  of  mind.i  See  In- 
sanity, below. 

Drunkenness  is  the  condition  of  a  person 
who  is  under  the  immediate  influence  of  in- 
toxicating liquors. 

This  condition  presents  various  degrees  of 
intensity,  ranging  from  a  simple  exhilaration  to 
a  state  of  utter  unconsciousness  and  insensi 
bility.  In  the  popular  phrase,  the  term  drunk- 
enness is  applied  only  to  those  degrees  of  it  in 
which  the  mind  is  manifestly  disturbed  in  its 
operations.  In  the  earlier  stages  it  frequently 
happens  that  the  mind  is  not  only  not  disturbed, 

20,  22  ;  I  Powell  Dev.  Jarman  ed.  130,  n.  ;  Shelford 
Lun.  296 ;  3  Add.  Eccl.  70,  90,  180  ;  i  Hagg.  Eccl.  27  ; 
2  Bouvier  Inst.  nn.  2104-2110.  J-a  Phil.  Eccl.  449:  3 
Wash.  C-  C.  580 ;  4  Id.  262,  T  7      .J 


5" 


LAW. 


but  acts  with  extraordinary  clearness,  prompti- 
tude, and  vigor.  In  the  latter  the  thoughts 
obviously  succeed  one  another  without  much 
relevance  or  coherence,  the  perceptive  faculties 
are  active,  but  the  impressions  are  miscon- 
ceived, as  if  they  passed  through  a  distorting 
medium,  and  the  reflective  powers  cease  to  act 
with  any  degree  of  efficiency.  Some  of  the 
hitermediate  stages  may  be  easily  recognized; 
but  it  is  not  always  possible  to  fix  upon  the 
exact  moment  when  they  succeed  one  another. 
In  some  persons  peculiarly  constituted,  a  fit  of 
intoxication  presents  few  if  any  of  these  suc- 
cessive stages,  and  the  mind  rapidly  loses  its 
self-control,  and  for  the  time  is  actually  fren- 
zied, as  if  in  a  maniacal  paroxysm,  though  the 
amount  of  the  drink  may  be  comparatively 
small.  The  same  phenomenon  is  observed 
sometimes  in  persons  who  have  had  some  in- 
jury of  the  head,  who  are  deprived  of  their 
reason  by  the  slightest  indulgence. 

The  habitual  abuse  of  intoxicating  drinks  is 
usually  followed  by  a  pathological  condition  of 
the  brain,  which  is  manifested  by  a  degree  of 
intellectual  obtuseness,  and  some  insensibility 
to  moral  distinctions  once  readily  discerned. 
The  mind  is  more  exposed  to  the  force  of 
foreign  influences,  and  more  readily  induced  to 
regard  things  in  the  light  to  which  others  have 
directed  them.  In  others  it  produces  a  perma- 
nent mental  derangement,  which,  if  the  person 
continues  to  indulge,  is  easily  mistaken  by 
common  observers  for  the  immediate  effects  of 
hard  drinking.  These  two  results — the  me- 
diate and  the  immediate  effects  of  drinking — 
may  co-exist ;  but  it  is  no  less  necessary  to  dis- 
tinguish them  from  each  other,  because  their 
legal  consequences  may  be  very  different. 
Moved  by  the  latter,  a  person  goes  into  the 
street  and  abuses  or  assaults  his  neighbors; 
moved  by  the  former,  the  same  person  makes 
his  will,  and  cuts  off  those  who  have  the 
strongest  claims  upon  his  bounty  with  a  shil- 
ling. In  a  judicial  investigation,  one  class  of 
witnesses  will  attribute  all  his  extravagances  to 
drink,  while  another  will  see  nothing  in  them 
but  the  effect  of  insanity.  The  medical  jurist 
should  not  be  misled  by  either  party,  but  be 
able  to  refer  each  particular  act  to  its  proper 
source. 

Another  remarkable  form  of  drunkenness  is 
called  dipsomania.^  Rather  suddenly,  and 
perhaps  without  much  preliminary  indulgence, 
a  person  manifests  an  insatiable  thirst  for  strong 
drink,  which  no  considerations  of  propriety  or 
prudence  can  induce  him  to  control.  He 
generally  retires  to  some  secluded  place,  and 
there,  during  a  period  of  a  few  days  or  weeks, 
he  swallows  enormous  quantities  of  liquor, 
until  his  stomach  refuses  to  bear  any  more. 
Vomiting  succeeds,  followed  by  sickness,  de- 
pression, and  disgust  for  all  intoxicating  drinks. 

k-Esquirol,  Mai.  Men.  ii.  73  ;  Marc,  de  la  Folie,  ii. 
605;  Ray,  Med.  Jur.  497;  Maciiish,  Anatomy  of  Drunk- 
enness, chap.  14.  l-i  Ves.  Ch.  19;  18  Id.  12.  m- 
ShelfordLun.  274,  304.  n-Co.  Litt.  247,  a.  0-1  Story 
J^.  §  »;2.     p-Russ,  Cr.  8.     <|-See  5  Gray,  86 ;  iiCush. 


This  affection  is  often  periodical,  the  paroxysms 
recurring  at  periods  varying  from  three  months 
to  several  years.  Sometimes  the  indulgence  is 
more  continuous  and  limited,  sufficient,  how- 
ever, to  derange  the  mind,  without  producing 
sickness,  and  equally  beyond  control.  Dipso- 
mania may  result  from  moral  causes,  such  as 
anxiety,  disappointment,  grief,  sense  of  respon- 
sibility; or  physical,  consisting  chiefly  of  some 
anomalous  condition  of  the  stomach.'' 

The  common  law  shows  but  little  disposition 
to  afford  relief,  either  in  civil  or  criminal  cases, 
from  the  immediate  effects  of  drunkenness.  It 
has  never  considered  drunkenness  alone  as 
a  sufficient  reason  for  invalidating  any  act. 
When  carried  so  far  as  to  deprive  the  party  of 
all  consciousness,  strong  presumption  of  fraud  is  ' 
raised ;  and  on  that  ground  courts  may  inter- 
fere.' Drunkenness  in  such  a  degree  as  to 
render  the  testator  unconscious  of  what  he  is 
about,  or  less  capable  of  resisting  the  influence 
of  others,  avoids  a  will."  In  action  for  torts, 
drunkenness  is  not  regarded  as  a  reason  for 
mitigating  damages."  And  courts  of  equity 
decline  to  interfere  in  favor  of  parties  pleading 
intoxication  in  the  performance  of  a  civil  act.* 
The  law  does,  however,  recognize  two  kinds 
of  inculpable  drunkenness,  viz. :  that  which  is 
produced  by  the  "unskilfulness  of  his  physi- 
cian," and  that  which  is  produced  by  the 
"  contrivance  of  enemies. "p  To  this  may  be 
added  cases  where  a  party  drinks  no  more 
liquor  than  he  has  habitually  used  without 
being  intoxicated,  and  which  exerts  an  unusu- 
ally potent  effect  on  the  brain  in  consequence 
of  certain  pathological  conditions.' 

EccHYMOsis.     See  Death,  above. 

Emission  is  the  act  of  sending  out  or  throw- 
ing from  the  body  any  matter  whatever,  as  the 
emission  of  urine,  emission  of  semen,  etc. 
Emission  is  not  necessary  in  the  commission 
of  a  rape  to  complete  the  offence.'  It  is, 
however,  essential  in  the  offence  of  sodomy.* 

Emmenagogues.     See  Abortion,  above. 

Enciente.     See  Pregnancy,  above. 

Epilepsy  is  the  falling  sickness;  so  called 
because  the  patient  falls  suddenly  to  the 
ground ;  it  is  a  disease  characterized  by  gen 
eral  muscular  agitation  occasioned  by  clonic 
spasms  (that  is,  spasms  in  which  the  muscles, 
or  muscular  fibres,  contract  and  relax  alter- 
nately in  quick  succession,  producing  the  ap- 
pearance of  agitation  without  sensation  or 
consciousness,  and  commonly  recurring  at  in- 
tervals.) When  long  continued  and  violent, 
this  disease  is  very  apt  to  end  in  dementia.  It 
gradually  destroys  the  memorj',  and  impairs 
the  intellect,  and  is  one  of  the  causes  of  an 
unsound  mind.* 

FcETiciDE  is  the  act  by  which  a  criminal 
abortion  is  produced." 

479  ;  I  Bennett  &  H.  L.  Cr.'Cas.  113-124.  r-i  Hale  PI. 
Cr.  ;  4C.  &P.  249;  5  Id.  297;  4C.  &P.  249;  5  Id. 
297 ;  6  Id.  251  ;  9  Id.  31  ;  see  1  East.  PI.  Cr.  346-440. 
S-12  Co.  36;  but  see  i  Va.  Cas.  307.  t-8  Ves.  Ch.  87; 
see  Dig.  50,  16,  123;  21,  1,  4,  5.  v-^e^k.  Med.  Jur 
288;  Grey  Med.  Jur.  13J. 


LAW. 


sn 


Vce.tVS  is  the  human  being  from  the  time  its 
parts  are  distinctly  formed  until  its  birth ;  an 
unborn  child  ;  an  infant  in  its  mother's  womb. 

Until  about  the  middle  of  the  fourth  month 
it  is  called  embryo.  At  that  time  the  develop- 
ment of  the  principal  organs  begins  to  be 
evident  and  they  present  something  of  their 
mature  form. 

Although  it  is  often  important  to  know  the 
age  of  the  foetus,  there  is  great  difficulty  in 
ascertaining  the  fact  with  the  precision  required 
in  courts  of  law.  Nothing  on  this  subject  can 
be  learned  solely  from  its  weight,  size,  or  pro- 
gress towards  maturity. 

The  great  difference  between  children  at  birth, 
as  regards  their  weight  and  size,  is  an  indication 
of  their  condition  while  within  the  womb,  and 
is  a  sufficient  evidence  that  nothing  can  be  de- 
cided as  to  the  age  of  the  foetus  by  its  weight 
and  size  at  different  periods  of  its  existence. 

Thousands  of  healthy  infants  have  been 
weighed  immediately  after  birth,  and  the  ex- 
tremes have  been  found  to  be  two  and 
eighteen  pounds.  It  is  very  rare  indeed  to 
find  any  weighing  as  little  as  two  pounds,  but 
by  no  means  uncommon  to  find  them  weighing 
four  pounds.  So  it  is  with  the  length,  which 
varies  as  much  as  that  of  the  adult  does  from 
the  average  height  of  the  race. 

Neither  can  anything  positive  be  learned 
from  the  progress  of  development ;  for  although 
the  condition  of  the  bones,  cartilages,  and  other 
parts  will  generally  mark  with  tolerable  accur- 
acy the  age  of  a  healthy  foetus,  yet  an  uncer- 
tainty will  arise  when  it  is  found  to  be  unhealthy. 
It  has  been  clearly  proved,  by  numerous  dis- 
sections of  new-born  children,  that  the  foetus 
is  subject  to  diseases  which  interfere  with  the 
proper  formation  of  parts,  exhibiting  traces  of 
previous  departure  from  health,  which  had 
interfered  with  the  proper  formation  of  parts 
and  arrested  the  process  of  development. 

Interesting  as  the  different  periods  of  develop- 
ment may  be  to  the  philosophical  inquirer,  they 
cannot  be  of  much  value  in  legal  inquiries,  from 
their  extreme  uncertainty  in  denoting  precisely 
the  age  of  the  foetus  by  unerring  conditions. 

Gestation  is  the  period  during  which  a 
woman  carries  young  in  her  womb,  from  con- 
ception to  delivery;  it  is  pregnancy.  This 
directly  involves  the  question  of  the  duration 
of  pregnancy,  questions  concerning  which  most 
frequently  occur  in  cases  of  contested  legiti- 
macy. That  which  is  termed  the  ustial period 
of  pregnancy  is  ten  lunar  months,  forty  weeks, 
two  hundred  and  eighty  days,  equal  to  about 
nine  calendar  months  and  one  week.  One 
question  that  has  here  been  much  discussed  is 
whether  the  period  of  gestation  has  a  fixed 
iimit,  or  is  capable  of  being  contracted  or  pro- 
ffacted  beyond  the  usual  term.  Many  have 
claimed  that  the  laws  of  nature  on  this  subject 
are  immutable,  and  that  the  foetus,  at  a  fixed 
period,  has   received  all   the   nourishment  of 

T-Montgomery  Preg  264.  w-Coke  Litt.  123  h.  x- 
3 Brown  Ch.  349  ;  Gardner  Peerage  case,  L«  Marchant 


which  it  is  susceptible  from  the  mother,  and 
becomes  as  it  were  a  foreign  body.  Its  expul- 
sion is,  therefore,  a  physical  necessity.  Others 
claim,  and  with  stronger  reasons,  that  as  all 
the  functions  of  the  human  body  that  have  been 
carefully  observed  are  variable,  and  sometimes 
within  wide  limits,  and  as  many  observations 
and  experiments  in  reference  to  the  cow  and 
horse  have  established  the  fact  that  in  the 
period  of  utero-gestation  there  is  more  varia- 
tion with  them  than  in  the  human  species,  there 
should  remain  no  doubt  that  this  period  in  the 
latter  is  always  liable  to  variation.  There  are 
some  women  to  whom  it  is  peculiar  always  to 
have  the  normal  time  of  delivery  anticipated 
by  two  or  three  weeks,  so  that  they  never  go 
beyond  the  end  of  the  thirty-seventh  or  thirty- 
eighth  week,  for  several  pregnancies  in  succes- 
sion.'^ So,  also,  there  are  many  cases  estab- 
lishing the  fact  that  the  usual  period  is  some- 
times exceeded  by  one,  two,  or  more  weeks, 
the  limits  of  which  it  is  difficult  or  impossible 
to  determine.  Lord  Coke  seems  inclined  to 
adopt  a  peremptory  rule  that  forty  weeks  is  the 
longest  time  allowed  by  law  for  gestation." 
But  although  the  law  of  some  countries  pre- 
scribes the  time  from  conception  within  which 
the  child  must  be  bom  to  be  legitimate,  that 
of  England  and  America  fixes  no  precise  limit, 
but  admits  the  possibility  of  the  birth's  occur- 
ring previous  or  subsequent  to  the  usual  time. 
The  following  are  cases  in  which  this  question 
will  be  found  discussed.*  See  Birth,  above; 
Pregnancy,  below. 

Gout  is  an  inflammation  of  the  fibrous  and 
ligamentous  parts  of  the  joints;  it  is  a  chronic 
disease  occurring  by  paroxysms ;  the  parox- 
ysms exacerbating  (increasing  its  violence)  and 
remitting.  It  consists  essentially  in  a  perfectly 
specific  and  topical  (local)  inflammation,  hav- 
ing its  regular  seat  in  the  largest  joint  of  the 
great  toe;  and  an  equally  specific  and  peculiar 
constitutional  febrile  (fever)  affection.  The 
forms  of  this  disease  are  very  irregular,  numep- 
ous,  and  various.  In  cases  of  insurance  on  lives, 
when  there  is  warranty  of  death,  a  man  subject 
to  gout  is  capable  of  being  insured,  if  he  has 
no  sickness  at  the  time  to  make  it  an  unequal 
contract.? 

Hallucination  is  the  faulty  sense  of  errone- 
ous imagination.  Hallucinations  of  the  senses 
arise  from  some  defect  in  the  organs  of  sense, 
or  from  some  unusual  circumstances  attending 
the  object;  They  are  sometimes  symptoms  of 
general  disease,  as  in  fevers.  Maniacal  hallu- 
cinations arise  from  some  imaginary  or  mistaken 
idea;  similar  hallucinations  occur  in  reverj'. 
This  state  of  the  mind  is  sometimes  called  delu- 
sion, or  waking  dreams.  An  attempt  has  been 
made  to  distinguish  hallucinations  from  illu- 
sions ;  the  former  are  said  to  be  dependent  upon 
the  state  of  the  intellectual  organs,  and  the  lat- 
ter on  that  of  sense.*     An  instance   is  given 

Report ;  Croke  Jac.  686  :  7  Hazard,  Register  of  Penn- 
sylvania, 363.  y-2  Park.  Ins.  583.  K-Ray  Msd.  Jur. 
g  99 ;  1  Beck  Med.  Jur.  53S. 


SH 


LAW. 


of  a  temporary  hallucination  of  Ben  Jonson. 
He  told  a  friend  that  he  had  spent  many  a  night 
in  looking  at  his  great  toe,  about  which  he  had 
seen  Turks  and  Tartars,  Romans  and  Carthage- 
nians,  fight  in  his  imagination.*  This  example 
is  unfair  both  to  Jonson  and  the  reader,  for  it 
seems  tortured  out  of  merely  casual  remarks  of 
this  eminent  poet.  If,  instead  of  being  tempo- 
rary, this  affection  is  permanent,  then  it  may  be 
considered  insanity. 

Hermaphrodites  are  human  beings  who 
have  in  appearance  the  sexual  organs  of  both 
sexes,  having  the  parts  of  generation  of  both 
male  and  female.  Hermaphrodites  are  ad- 
judged to  belong  to  that  sex  which  prevails  in 
them.'  The  several  characteristics  of  the  human 
species  are  widely  separated,  and  the  two  sexes 
are  never,  perhaps,  united  in  the  same  indi- 
vidual.'  Cases  of  malformation,  however, 
sometimes  are  found,  in  which  it  is  very  diffi- 
cult to  decide  to  which  sex  the  person  belongs."* 

Hunger.     See  Death  from,  above. 

Idiocy  is  a  natural  defect  of  the  understand- 
ing; a  form  of  insanity  resulting  either  from 
congenital  (natural)  defect  or  some  obstacle  to 
the  development  of  the  faculties  in  infancy.  It 
always  implies  some  defect  or  disease  of  the 
brain,  which  is  generally  smaller  than  the 
standard  size  and  irregular  in  its  shape  and 
proportions.  Occasionally  the  head  is  unnat- 
urally large,  being  distended  by  water.  The 
senses  are  very  imp>erfect  at  best,  and  one  or 
more  are  often  entirely  wanting.  None  can 
articulate  more  than  a  few  words;  while  many 
utter  only  cries  or  muttered  sounds.  Some 
make  known  their  wants  by  signs  or  sounds 
which  are  intelligible  to  those  who  have  charge 
of  them.  The  head,  the  features,  the  expres- 
sion, the  movements,  all  convey  the  idea  of 
extreme  mental  deficiency.  The  reflective  fac- 
ulties are  entirely  wanting,  whereby  they  are 
utterly  incapable  of  any  effort  of  reasoning. 
The  perceptive  faculties  exist  in  a  very  limited 
degree,  apd  hence  they  are  rendered  capable 
of  being  improved  somewhat  by  education,  and 
redeemed,  in  some  measure,  from  their  brutish 
condition.  They  have  been  led  into  habits  of 
propriety  and  decency,  have  been  taught  some 
of  the  elements  of  learning,  and  have  learned 
some  of  the  coarser  industrial  occupations. 
The  moral  sentiments,  such  as  self-esteem,  love 
of  approbation,  veneration,  benevolence,  are 
not  unfrequently  manifested;  while  some  pro- 
pensities, such  as  cunning,  destructiveness, 
sexual  impulse,  are  particularly  active. 

In  some  parts  of  Europe  a  form  of  idiocy 
prevails  endemically  (in  a  manner  peculiar  to 
a  people  or  nation),  called  cretinism.  It  is 
a.^sociaied  with  disease  or  defective  develop- 
ment of  other  organs  besides  the  head.  Cretins 
are  short  in  stature,  their  limbs  are  attenuated, 
the  belly  tumid,  the  neck  thick.    The  muscular 

It-T  CnilyerLun.  34.  to-Co.  Litt.  2,  7  :  Domat  X^h.  Civ. 
Liv.  1,1.2,  ?  1,  n.  Q.  c-2  Dunglinsnn  Hu''!.  Pbv?i!il. 
504;    I  Beclc  Mod.  Jiir.  94-no.      «l-See  2  Med.  Evni. 

JT4  :    t  Briand  Med.  Leg.  Ch.  2,  Art.  2,  ?  2,  n.  2  ;  Grey 
fed.  Jtir.  43,  47;    X  Beck  Med.  Jur.  (11  £d.)  164,  et 


system  is  feeble,  and  their  voluntary  inovetnetits 
restrained  and  undecided.  The  power  of  lan- 
guage is  very  imperfect,  if  not  entirely  wanting. 
In  the  least  degraded  forms  of  this  disease,  the 
perceptive  powers  may  be  somewhat  developed, 
and  the  individual  may  evince  some  talent  at 
music  or  construction.  In  Switzerland  they 
make  parts  of  watches.  Unlike  idiocy,  cretin- 
ism is  not  congenital,  but  is  gradually  devel- 
oped in  the  early  years  of  childhood.  It  is 
owing  chiefly  to  atmospherical  causes,  and  is 
transmitted  from  one  generation  to  another. 
Both  idiocy  and  cretinism  exhibit  various  de- 
grees of  mental  deficiency,  but  they  never  ap- 
proximate to  any  description  of  men  suppostd 
to  be  rational,  nor  can  any  amount  of  education 
efface  the  chasm  which  separates  them  from 
their  better-endowed  fellow-men.  The  older 
law-writers,  whose  observation  of  mental  mani- 
festations was  not  very  profound,  thought 
it  necessary  to  have  some  test  of  idiocy ; 
and  accordingly  Fitzherbert  says,  "  If  he  have 
sufficient  understanding  to  know  and  under- 
stand his  letters,  and  to  read  by  teaching  or  in- 
formation, he  is  not  an  idiot."'  Again,  he  says, 
"A  man  is  not  an  idiot  if  he  hath  any  glimmer- 
ing of  reason,  so  that  he  can  tell  his  parents 
his  age,  or  the  like  common  matters."  l"he 
inference  was,  no  doubt,  that  such  a  man  is  re- 
sponsible for  his  criminal  acts.  At  the  present 
day  such  an  idea  would  not  be  entertained  for 
a  moment,  nor  are  we  aware  of  any  case  on 
record  of  an  idiot  suffering  capital  punishment. 
Of  course,  they  are  totally  incapable  of  any 
civil  acts;  but  in  this  country — in  some  of  the 
States,  at  least — they  would  not  be  debarred 
from  exercising  the  right  of  suffrage.  See  In- 
sanity, below. 

Illusion  is  deceptive  appearance;  it  is  a 
species  of  mania,  in  which  the  sensibility  of 
the  nervous  system  is  altered,  excited,  per- 
verted, or  weakened.  The  patient  is  deceived 
by  the  false  appearance  of  things,  and  his 
reason  is  not  sufficiently  active  and  powerful  to 
correct  the  error;  and  this  last  particular  ia 
what  distinguishes  the  sane  from  the  insane. 
Illusions  are  not  unfrequent  in  a  state  of  health, 
but  reason  corrects  the  errors  and  dissipates 
them.  A  square  tower,  seen  from  a  distance, 
may  appear  round,  but  on  approaching  it  the 
error  is  corrected.  A  distant  mountain  may 
be  taken  for  a  cloud,  but  as  we  approach  we 
discover  the  truth.  To  a  person  in  the  cabin 
of  a  vessel  under  sail,  the  shore  appears  to 
move;  but  reflection  and  a  closer  examination 
soon  destroy  this  illusion.  An  insane  indi- 
vidual is  mistaken  on  the  qualities,  connections, 
and  causes  of  the  impressions  he  actually  re- 
ceives, and  he  forms  wrong  judgments  as  to 
his  internal  and  wxtemal  sensations;  and  his 
reason  does  not  correct  the  error.'  See  Hal- 
lucination, above. 

se^.:  Wharton  &  S.  Med.  Tur.  fad  Ed.)  408,  r/ j^y. 
e-Xntiirn  Previum,  58;^.  f-i  Beck.  Med  Jur.  5:^8 :  Es- 
quirol  M.il.-idies  Mentales,  pr'm.  panic,  lii,  tome  i,  p. 
207 ;  Diet.  des.  Sciences  Medicates,  Hallucin»tum, 
tome  so,  p.  64. 


LAW. 


525 


Imbecility  is  weakness;  want  of  strength; 
feebleness  of  body  and  mind;  not  possessing 
the  vigor  that  usually  belongs  to  men,  and 
which  is  necessary  to  the  due  performance  of 
the  functions  of  the  body  and  intellect.  It  may 
be  natural,  or  induced  by  violence  or  disease. 
It  may  be  congenital  (natural)  or  resulting 
from  an  obstacle  to  the  development  of  the 
faculties,  supervening  in  infancy. 

Generally,  it  is  manifested  both  in  the  intel- 
lectual and  moral  faculties;  but  occasionally 
it  is  limited  to  the  latter,  the  former  being  but 
little,  if  at  all,  below  the  ordinary  standard. 
Hence  it  is  distinguished  into  intellectual  and 
moral.  In  the  former  there  are  seldom  any  of 
the  repulsive  features  of  idiocy,  the  head,  face, 
limbs,  movements,  being  scarcely  distinguish- 
able, at  first  sight,  from  those  of  the  race  at 
large.  The  senses  are  not  manifestly  deficient, 
nor  the  power  of  articulation  ;  though  the  use 
of  language  may  be  very  limited.  The  per- 
ceptive faculties  exhibit  some  activity;  and 
thus  the  more  obvious  qualities  of  things  are 
observed  and  remembered.  Simple  industrial 
operations  are  well  performed,  and,  generally, 
whatever  requires  but  little  intelligence  is 
readily  accomplished.  Occasionally  a  solitary 
faculty  is  prominently,  even  wonderfully  devel- 
oped,— the  person  excelling,  for  instance,  in 
music,  in  arithmetical  calculations,  or  me- 
chanical skill,  far  beyond  the  ordinary  measure. 
For  any  process  of  reasoning,  or  any  general 
observation  or  abstract  ideas,  imbeciles  are 
totally  incompetent.  Of  law,  justice,  morality, 
property,  they  have  but  a  very  imperfect  notion. 
Some  of  the  affective  faculties  are  usually  ac- 
tive, particularly  those  which  lead  to  evil 
habits,  thieving,  incendiarism,  drunkenness, 
homicide,  assaults  on  women. 

The  kind  of  mental  defect  here  mentioned 
is  universal  in  imbecility,  but  it  exists  in  dif- 
ferent degrees  in  different  individuals,  some 
being  hardly  distinguishable,  at  first  sight,  from 
ordinary  men  of  feeble  endowments,  while 
others  encroach  upon  the  line  which  separates 
them  from  idiocy. 

The  various  grades  of  imbecility,  however 
interesting  in  a  philosophical  point  of  view,  are 
not  very  closely  considered  by  courts.  They 
are  governed  in  criminal  cases  solely  by  their 
tests  of  responsibility,  and  in  civil  cases  by  the 
amount  of  capacity,  in  connection  with  the  act  in 
question,  or  the  abstract  question  of  soundness 
or  unsoundness. 

Touching  the  question  of  responsibility,  the 
law  makes  no  distinction  between  imbecility 
and  insanity.* 

In  civil  cases,  the  effect  of  imbecility  is  dif- 
ferently estimated.  In  cases  involving  the 
validity  of  the  contracts  of  imbecile  persons, 
courts  have  declined  to  gauge  the  measure  of 
their  intellects,  the  only  question  with  them 
being  one  of  soundness  or  unsoundness,  and 

a-See  I  Carr.  &  K.  129.  b-4  Dane  Abr.  561 ;  see  4 
Cow.  N.  Y.  207.  c-i  Siory  Eq.  Jur.  g  238.  d-Chitty 
Coatr.  113;  Story  Contr.  g  27;  4  Kxch.  17.    e-i  Uagg. 


"  no  distinction  being  made  between  important 
and  common  affairs,  large  or  small  property."* 

Courts  of  equity,  also,  have  declined  to  in- 
validate the  contracts  of  imbeciles,  except  on 
the  ground  of  fraud.*  Of  late  years,  however, 
courts  have  been  governed  by  other  considera- 
tions. If  the  contract  were  for  necessaries,  or 
showed  no  mark  of  fraud  or  unfair  advantage, 
or  if  the  other  party,  acting  in  good  faith  and 
ignorant  of  the  other's  mental  infirmity,  can- 
not be  put  into  statu  quo,  the  contract  is  valid.* 

The  same  principles  have  governed  the 
courts  in  cases  involving  the  validity  of  the 
marriage  contract.  If  suitable  to  the  condition 
and  circumstances  of  the  party,  and  manifestly 
tending  to  his  benefit,  it  has  been  confirmed, 
notwithstanding  a  considerable  degree  of  in- 
competency, if,  on  the  other  hand,  it  has 
been  procured  by  improper  influences,  mani- 
festly for  the  advantage  of  the  other  party,  it 
has  been  invalidated.'  The  law  has  always 
showed  more  favor  to  the  wills  of  imbeciles 
than  to  their  contracts.  "  If  a  man  be  of  a 
mean  understanding,  neither  of  the  wise  sort 
nor  of  the  foolish,  but  indifferent,  as  it  were, 
betwixt  a  wise  man  and  a  fool — yea,  though  he 
rather  incline  to  the  foolish  sort,  so  that  for  his 
dull  capacity  he  might  worthily  be  called _^^<?j- 
sum  caput  (a  dull  pate),  or  a  dunce — such  a 
one  is  not  prohibited  to  make  a  testament."* 
Whether  the  testament  be  established  or  not, 
depends  upon  the  circumstances  of  the  case; 
and  the  English  ecclesiastical  courts  have 
always  assumed  a  great  deal  of  liberty  in  their 
construction  of  these  circumstances.  The  gen- 
eral principle  is  that  if  the  will  exhibits  a  wise 
and  prudent  disposition  of  property,  and  is  un- 
questionably the  will  of  the  testator,  and  not 
another's,  it  should  be  established  in  the  face 
of  no  inconsiderable  deficiency.'  Very  differ- 
ent views  prevailed  in  a  celebrated  case  in  New 
York.K  The  mental  capacity  must  be  equal  to 
the  act;  and  if  that  fact  be  established,  and  no 
unfair  advantage  have  been  taken  of  the  men- 
tal deficiency,  the  will,  the  marriage,  the  con- 
tract, or  whatever  it  may  be,  is  held  to  be  valid. 

The  term  moral  imbecility  is  applied  to  a 
class  of  persons  who,  without  any  considerable, 
or  even  appreciable,  deficiency  of  intellect, 
seem  to  have  never  been  endowed  with  the 
higher  moral  sentiments.  They  are  unable  to 
appreciate  fully  the  distinctions  of  right  and 
wrong,  and,  according  to  their  several  oppor- 
tunities and  tastes,  they  indulge  in  mischief  as 
if  by  an  instinct  of  their  nature.  To  vice  and 
crime  they  have  an  irresistible  proclivity,  though 
able  to  discourse  on  the  beauties  of  virtue  and 
the  claims  of  moral  obligation.  "While  young, 
many  of  them  manifest  a  cruel  and  quarrelsome 
disposition,  which  leads  them  to  torture  brutes 
and  bully  their  companions.  They  set  all  law 
and  admonition  at  defiance,  and  become  a  pest 
and  a  terror  to  the  neighborhood.  It  is  worthy 
of  notice,  because  the  fact  throws  much  light 

355;  Ray  Med.  Jur.  100.     x -Swinburne,  Wills,  Put*,  I 

».  4.     f-i  Hagg.  384.    K-a6  Wend.  N.  Y.  256.  ' 


5«< 


LAW. 


on  the  nature  of  this  condition,  that  a  very 
large  proportion  of  this  class  of  persons  labor 
under  some  organic  defect.  They  are  scrofu- 
lous, rickety,  or  epileptic,  or,  if  not  obviously 
suffering  from  these  diseases  themselves,  they 
are  born  of  parents  who  did.  Their  progeni- 
tors may  have  been  insane,  or  eccentric,  or 
highly  nervous,  and  this  morbid  peculiarity  has 
hecome,  unquestionably,  by  hereditary  trans- 
mission, the  efficient  cause  of  the  moral  defect 
under  consideration.  Thus  lamentably  consti- 
tuted, wanting  in  one  of  the  essential  elements 
of  moral  responsibility,  they  are  certainly  hot 
fit  objects  of  punishment ;  for  though  they  may 
recognize  the  distinctions  of  right  and  wrong 
in  the  abstract,  yet  they  have  been  denied  by 
nature  those  faculties  which  prompt  men  more 
happily  endowed  to  pursue  the  one  and  avoid 
the  other.  In  practice,  however,  they  have 
been  regarded  with  no  favor  by  the  courts.''  See 
Insanity,  below. 

Impotence  is  the  incapacity  for  copulation 
ov  for  propagating  the  species.  It  differs  from 
sterility,  though  these  terms  have  been  used 
synonymously.  Impotence  may  be  considered 
,-is  accidental  or  temporary,  curable  or  incur- 
able. Absolute  or  incurable  impotence  is  that 
for  which  there  is  no  known  relief,  principally 
originating  in  some  malformation  or  defect  of 
the  genital  organs.  Where  this  defect  existed 
at  the  time  of  marriage  and  was  incurable,  by 
the  ecclesiastical  law  and  the  law  of  many  of 
the  States,  the  marriage  may  be  declared  void 
from  the  beginning.'  But  the  party  naturally 
impotent  cannot  allege  that  fact  for  the  purpose 
of  obtaining  a  divorce.J 

Infanticide  is  the  murder  of  a  new-born 
ir>fant.  It  is  distinguished  from  abortion  and 
foeticide,  which  is  the  destruction  of  life  while 
in  the  mother's  womb.  The  criminal  modes 
most  commonly  resorted  to  to  destroy  the  life 
of  an  infant  are :  I,  suffocation;  2,  drowning; 
3,  cold  and  exposure;  4,  starvation;  5>  wounds, 
fractures,  and  injuries  of  various  kinds;  a 
mode  not  unfrequently  resorted  to  is  the  intro- 
duction of  sharp-pointed  instruments  in  differ- 
ent parts  of  the  body;  also,  luxation  and  frac- 
ture of  the  neck,  accomplished  by  forcil)ly 
twisting  the  head  of  the  child,  or  pulling  it 
backwards;  6,  str?ngulation  ;  7,  poisoning  ;  8, 
intentional  neglect  10  tie  the  umbilical  cord; 
and,  9,  causing  the  child  to  inhale  air  deprived 
of  its  oxygen,  or  gases  positively  deleterious. 
All  these  modes  of  destroying  life,  together 
with  the  natural  or  accidental  ones,  will  be 
found  fully  discoui'sed  by  the  writers  on  medi- 
cal jurisprudence.* 

Birth.  The  crime  of  infanticide  can  be  com- 
mitted only  after  the  child  is  wholly  born.'  This 
question  involves  an  inquiry:  I.  Into  the  signs 
of  maturity,  the  data  for  which  are,  the  length 
and  weight  of  the  fostus,  the  relative  position 

h-Ray  Med.  Jur.  112-130.     1-Com.  Dig.  Snron&'  F. 

(C.  3)  :   Bac.  Abr.  Marriage ,  etc.  (E.  3)  ;    i  Bl.  Comm. 

4^;    I  Beck.  Med.  Jur.  67;    Code,  5,  17,  10;     Paynter 

•  }tUirr.  &  D.  Ch.  8 ;    5  Paige  Cli.  554  ;    Merlin  Rep.  /;«- 

fuissance.    J-3  Phil.  Eccl.  147 ;  1  Eng.  Eccl.  384.     k- 


of  the  centre  of  its  body,  the  proportional  de- 
velopment of  its  several  parts  as  compared 
with  each  other,  especially  of  the  head  as  com- 
pared with  the  rest  of  the  body,  the  degree  of 
growth  of  the  hair  and  nails,  the  condition  of 
the  skin,  the  presence  or  absence  of  the  mem- 
brana  pupillaris,  and,  in  the  male,  the  descent 
or  non-descent  of  the  testicles." 

Life,  etc.  2.  Was  it  born  alive  ?  This  second 
point  presents  an  inquiry  of  great  interest  both 
to  the  legal  and  medical  professions  and  to  the 
community  at  large.  In  the  absence  of  all  di- 
rect proof,  what  organic  facts  proclaim  the  ex- 
istence of  life  subsequent  to  birth  ?  These 
facts  are  derived  principally  from  the  circula- 
tory and  respiratory  systems.  From  the  former 
the  proofs  are  gathered — from  the  character  of 
the  blood,  that  which  is  purely  fretal  being 
wholly  dark,  like  venous  blood,  destitute  of 
fii)rous  matter,  and  forming  coagula  much  less 
firm  and  solid  than  that  which  has  been  sub- 
jected to  the  process  of  respiration ;  so,  also, 
the  coloring-matter  is  darker,  and  contains  no 
phosphoric  acid,  and  its  proportion  of  serum 
and  red  globules  is  comparatively  small.  From 
the  condition  of  the  heart  and  bloodvessels.  The 
circulation  anterior  and  subsequent  to  birth 
must  necessarily  be  entirely  different.  That 
anterior,  by  means  of  the  foetal  openings — the 
foramen  0vale,  the  ductus  arteriosus,  and  the 
ductus  venosus — is  enabled  to  perform  its  cir- 
cuit without  sending  the  entire  mass  of  the 
blood  to  the  lungs  for  the  purpose  of  oxygena- 
tion. When  the  extra-uterine  life  commences, 
and  the  double  circulation  is  established,  these 
openings  gradually  close ;  so  that  their  closure 
is  considered  clear  evidence  of  life  subsequent 
to  birth."  From  the  difference  in  the  distribu- 
tion of  the  blood  in  the  different  organs  of  the 
body.  The  two  organs  in  which  this  difference 
is  most  perceptible  are  the  liver  and  the  lungs 
— especially  the  latter.  The  circulation  of  the 
whole  mass  of  the  blood  through  the  lungs  dis- 
tends and  fills  them  with  blood,  so  that  their 
relative  weight  will  be  nearly  doubled,  and  any 
incision  into  them  will  be  followed  by  a  free 
effusion. 

From  the  respiratory  system  proofs  of  life 
subsequent  to  birth  are  derived.  From  the 
thorax.  Its  size,  capacity,  and  arch  are  in- 
creased by  respiration.  From  the  lungs.  They 
are  increased  in  size  and  volume,  are  projected 
forward,  become  rounded  and  obtuse,  of  a 
]iinkish-red  hue,  and  their  density  is  inversely 
as  their  volume."  The  fact  of  the  specific  grav- 
ity of  the  lungs  being  diminished  in  proportion 
to  their  diminution  in  density  gives  rise  to  a 
celebrated  test — the  hydrostatic — the  relative 
weight  of  the  lungs  with  water.P  The  rule  is, 
that  lungs  which  have  not  respired  are  specific- 
ally heavier  than  water,  and  if  placed  within  it 

I  Beck  Med.  Jur.  509,  et  seq. ;  Dean  Med.  Jur.  179,  et 
seq.;  Ryan  Med.  Jur.  137;  Dr.  Cummins,  Proofof  In- 
fanticide Considered.  I-5  C«rr.  &  P.  329;  6  Id.  349. 
Ill-Dean  Med.  Jur.  140.  n-i  Beck  Med.  Jur.  478,  rf 
seq.:  Dean  Med.  Jur.  142,  <■/ j^^.  o- Dean  Med.  Jur. 
149,  et  seq.     p-i  Beck  Med.  Jur.  459,  et  seq. 


LAW. 


527 


will  sink  to  the  bottom  of  the  vessel.  If  they 
have  respired,  their  increase  in  volume  and  de- 
crease in  density  render  them  specifically  lighter 
than  water,  and  when  placed  within  it  they 
will  float.  There  are  several  objections  to  the 
sufficiency  of  this  test;  but  it  is  fairly  entitled 
to  its  due  weight  in  the  settlement  of  this  ques- 
tion.' From  the  state  of  the  diaphragm.  Prior 
to  respiration  it  is  found  high  up  in  the  thorax. 
The  act  of  expanding  the  lungs  enlarges  and 
arches  the  thorax,  and,  by  necessary  conse- 
quence, the  diaphragm  descends. 

The  fact  of  life  at  birth  being  established, 
the  next  inquiry  is,  how  long  did  the  child  sur- 
vive ?  The  proofs  here  are  derived  from  three 
sources.  The  foetal  openings,  their  partial  or 
complete  closure.  The  more  perfect  the  closure, 
the  longer  the  time.  The  series  of  changes  in 
the  umbilical  cord.  These  are:  i.  The  rviiher- 
ing  of  the  cord.  2.  Its  desiccation  or  drying. 
3.  Its  separation  or  dropping  off- — occurring 
usually  four  or  five  days  after  birth.  4.  Cica- 
trization of  the  umbilicus — occurring  usually 
fiom  ten  to  twelve  days  after  birth.  The 
changes  in  the  skin,  consisting  in  the  process  of 
exfoliation  of  the  epidermis,  which  commences 
on  the  abdomen,  and  extends  thence  succes- 
sively to  the  chest,  groin,  axillae,  interscapular 
space,  limbs,  and,  finally,  to  the  hands  and  feet. 

Insanity  is  unsoundness  of  the  mind;  de- 
rangement of  the  intellect;  it  is  any  degree 
of  mental  derangement,  from  a  slight  degree 
of  wandering  to  distraction.  This  term  is 
rarely  used  to  express  slight  temporary  de- 
lirium. Of  late  years  this  word  has  been 
used  to  designate  all  mental  impairments  and 
deficiencies  formerly  embraced  in  the  terms 
lunacy,  idiocy,  and  unsoundness  of  mind. 
Even  to  the  middle  of  the  last  century  the  law 
recognized  only  two  classes  of  persons  requir- 
ing its  protection  on  the  score  of  mental  dis- 
order, viz. :  lunatics  and  idiots.  The  former 
were  supposed  to  embrace  all  who  had  lost  the 
reason  which  they  once  possessed,  and  their 
disorder  was  called  dementia  accidentalis  ;  the 
latter,  those  who  had  never  possessed  any  reason, 
and  this  deficiency  was  called  dementia  nalu- 
ralis.  Lunatics  were  supposed  to  be  much  in- 
fluenced by  the  moon;  and  another  prevalent 
notion  respecting  them  was  that  in  a  very 
large  pro{x>rtion  there  occurred  lucid  intervals, 
when  reason  shone  out,  for  a  while,  from  be- 
hind the  cloud  that  obscured  it,  with  its  natural 
brightness.  It  may  be  remarked,  in  passing, 
that  lucid  intervals  are  far  less  common  than 
they  were  once  supposed  to  be,  and  that  the 
restoration  is  not  so  complete  as  the  descrip- 
tions of  the  older  writers  would  lead  us  to  infer. 
In  modern  practice,  the  term  lucid  interval 
signifies  merely  a  remission  of  the  disease,  an 
abatement  of  the  violence  of  the  morbid  action, 
a  period  of  comparative  calm.;  and  the  proof 
of  its  occurrence  is  generally  drawn  from  the 
character  of  the  act  in  question.  It  is  hardly 
necessary  to  say  that  this  is  an  unjustifiable  use 
of  the  term,  which  should  be  confined  to  the 

34 


genuine  lucid  interval  that  does  occasionally 
occur.  It  began  to  be  found  at  last  that  a  large 
class  of  persons  required  the  protection  of  the 
law,  who  were  not  idiots,  because  they  had 
reason  once,  nor  lunatics  in  the  ordinary  signi- 
fication of  the  term,  because  they  were  not 
violent,  exhibited  no  very  notable  derange- 
ment of  reason,  were  independent  of  lunar  in- 
fluences, and  had  no  lucid  intervals.  Their 
mental  impairment  consisted  in  a  loss  of  in- 
tellectual power,  of  interest  in  their  usual  pur- 
suits, of  the  ability  to  comprehend  their  rela- 
tions to  persons  and  things.  A  new  term — 
unsoundness  of  mind — was,  therefore,  intro- 
duced to  meet  this  exigency ;  but  it  has  never 
been  very  clearly  defined. 

The  law  has  never  held  that  all  lunatics  and 
idiots  are  absolved  from  all  responsibility  for 
their  civil  or  criminal  acts.  This  consequence 
was  attributed  only  to  the  severest  grades  of 
these  affections, — to  lunatics  who  have  no  more 
understanding  than  a  brute,  and  to  idiots  who 
cannot  number  twenty  pence  nor  tell  how  old 
they  are.  Theoretically  the  law  has  changed 
but  little,  even  to  the  present  day;  but  practi- 
cally it  exhibits  considerable  improvement : 
that- is,  while  the  general  doctrine  remains  un- 
changed, it  is  qualified,  in  one  way  or  another, 
by  the  courts,  so  as  to  produce  less  practical 
injustice. 

Insanity  implies  the  presence  of  disease  or 
congenital  defect  in  the  brain,  and  though  it 
may  be  accompanied  by  disease  in  other  or- 
gans, yet  the  cerebral  affection  is  always  sup- 
posed to  be  primary  and  predominant.  It  is  to 
be  borne  in  mind,  however,  that  bodily  diseases 
may  be  accompanied,  in  some  stage  of  theif 
progress,  by  mental  disorder  which  may  affect 
the  legal  relations  of  the  patient. 

For  all  practical  purposes,  however,  a  defi- 
nition is  unnecessary,  because  the  real  question 
at  issue  always  is,  not  what  constitutes  insanity 
in  general,  but  wherein  consists  the  insan- 
ity of  this  or  that  individual.  Neither  sanity 
nor  insanity  can  be  regarded  as  an  entity  to 
be  handled  and  described,  but  rather  as  a 
condition  to  be  considered  in  reference  to  other 
conditions.  Men  vary  in  the  character  of 
their  mental  manifestations,  insomuch  that 
conduct  and  conversation  perfectly  proper  and 
natural  in  one  might  in  another,  differently 
constituted,  be  indicative  of  insanity.  In  de- 
termining, therefore,  the  mental  condition  of  a 
person,  he  must  not  be  judged  by  any  arbitrary 
standard  of  sanity  or  insanity,  nor  compared 
with  other  persons  unquestionably  sane  or  in-. 
sane.  He  can  properly  be  compared  only  with 
himself.  When  a  person,  without  any  ade- 
quate cause,  adopts  notions  he  once  regarded 
as  absurd,  or  indulges  in  conduct  opposed  to 
all  his  former  habits  and  principles,  or  changes 
completely  his  ordinary  temper,  manners,  and 
dispositions — the  man  of  plain  practical  sense 
indulging  in  speculative  theories  and  projects, 
the  miser  becoming  a  spendthrift  and  the 
q-Dean  Med.  Jur.  154,  et  ttf. 


S«8 


LAW. 


spendthrift  a  miser ;  the  staid,  quiet,  unobtru- 
sive citizen  becoming  noisy,  restless,  and  bois- 
terous ;  the  gay  and  joyous  becoming  dull  and 
disconsolate  even  to  the  verge  of  despair;  the 
careful,  cautious  man  of  business  plunging  into 
hazardous  schemes  of  speculation ;  the  discreet 
and  pious  becoming  shamefully  reckless  and 
profligate — no  stronger  proof  of  insanity  can  be 
had.  And  yet  not  one  of  these  traits,  in  and 
by  itself  alone,  disconnected  from  the  natural 
trails  of  character,  could  be  regarded  as  con- 
clusive proof  of  insanity.  In  accordance  with 
this  fact,  the  principle  has  been  laid  down, 
with  the  sanction  of  the  highest  legal  and 
medical  authority,  that  it  is  the  prolonged  de- 
parture, without  any  adequate  cause,  from  the 
states  of  feeling  and  modes  of  thinking  usual 
to  the  individual  when  in  health,  which  is  the 
essential  feature  of  insanity."^ 

Insanity  in  some  of  its  forms  annuls  all 
criminal  responsibility,  for  there  can  be  no 
crime  nor  offence  if  the  accused  were  in  a  state 
of  madness  at  the  time  of  the  act,*  and  in 
other  forms  disqualifies  its  subject  from  the 
performance  of  certain  civil  rights.  A  kind 
and  degree  of  insanity  which  will  not  excuse  a 
person  for  a  criminal  act  may  render  him 
legally  incompetent  to  the  management  of 
himself  or  his  affairs.' 

Lucid  Intervals  are  those  intervals  bright 
with  the  natural  radiance  of  intellect,  not  dark- 
ened or  confused  by  delirium  or  madness ;  those 
intervals  marked  by  the  natural  and  regular 
operations  of  reason.  It  must  not  be  a  super- 
hcial  tranquillity,  a  shadow  of  repose,  but,  on 
the  contrary,  a  profound  tranquillity,  a  real 
repose.  "  It  must  not  be  a  mere  ray  of  reason, 
which  makes  its  absence  more  apparent  when 
it  is  gone — not  a  flash  of  lightning,  which 
pierces  through  the  darkness  only  to  render  it 
more  gloomy  and  dismal — not  a  glimmering 
which  joins  the  night  to  the  day, — but  a  per- 
fect light,  a  lively  and  continued  lustre,  a  full 
and  entire  day  interposed  between  the  two 
separate  nights  of  the  fury  which  precedes  and 
follows  it;  and,  to  use  another  image,  it  is  not 
a  deceitful  and  faithless  stillness  which  follows 
or  forebodes  a  storm,  but  a  sure  and  steadfast 
tranquillity  for  a  time,  a  real  calm,  a  perfect 
serenity.  In  fine,  without  looking  for  so  many 
metaphors  to  represent  our  idea,  it  must  not  be 
a  mere  diminution,  a  remission  of  the  com- 
plaint, but  a  kind  of  temporary  cure,  an  inter- 
mission so  clearly  marked  as  in  every  respect 
to  resemble  the  restoration  of  health."'  So 
Lord  Thurlow  says,  by  a  perfect  interval,  "  I 
do  not  mean  a  cooler  moment,  an  abatement 
of  pain  or  violence,  or  of  a  higher  state  of 
torture, — a  mind  relieved  from  excessive  pres- 
sure ;  but  an  interval  in  which  the  mind,  hav- 
ing thrown  off  the  disease,  had  recovered  its 
general  habit.""  That  there  sometimes  occurs 
an  intermission  in  which  the  person  appears  to 

r-Gooch,  Lond,  Quart.  Rev.  xliii.  355  ;  Combe  Ment. 
Derang.  196  ;  Meidway  vs.  Croft,  3  Curt.  Eccl.  671.  x- 
Code  Fr.  Art.  64.  S-Bellinghan's  Case,  Collinson,  657. 
t-Pothi«r,  Obi.  Evans  ed.  579.     11-3  Brown  Ch.  234.    v- 


be  perfectly  rational,  restored,  in  fact,  to  hi» 
proper  stlf,  is  an  unquestionable  fact.  It  is 
equally  true  that  they  are  of  rare  occurrence, 
that  they  continue  but  for  a  very  brief  period, 
and  that  with  the  apparent  clearness  there  is  » 
real  loss  of  mental  force  and  acuteness.  In 
most  cases  of  insanity  there  may  be  observed, 
from  time  to  time,  a  remission  of  the  symp- 
toms, in  which  excitement  and  violence  are 
replaced  by  quiet  and  calm,  and,  within  a 
certain  range,  the  patient  converses  correctly 
and  properly.  A  superficial  observer  might  be 
able  to  detect  no  trace  of  disease;  but  a  little 
further  examination  would  show  a  confusion 
of  ideas  and  singularity  of  behavior,  indicative 
of  serious,  though  latent,  disease.  In  this 
condition  the  patient  may  hold  some  correct 
notions,  even  on  a  matter  of  business,  and  yet 
be  quite  incompetent  to  embrace  all  the  rela- 
tions connected  with  a  contract  or  a  will,  even 
though  no  delusion  were  present  to  warp  his 
judgment.  The  revelations  of  patients  after 
recovery  furnish  indubitable  proof  that  during 
this  remission  of  the  symptoms  the  mind  is  in 
a  state  of  confusion  utterly  unreliable  for  any 
business  purpose.' 

Of  late  years — whatever  may  have  been  the 
earlier  practice — courts  have  not  required  that 
proof  of  a  lucid  interval  which  consists  of 
complete  restoration  of  reason,  as  described 
above.  They  have  been  satisfied  wilh  such 
proof  as  was  furnished  by  the  transaction  in 
question.  They  cared  less  to  consider  the  gen- 
eral state  of  mind  than  its  special  manifesta- 
tions on  a  particular  occasion.  "  The  strongest 
and  best  proof  that  can  arise  as  to  a  lucid  in- 
terval is  that  which  arises  from  the  act  itself;  "  if 
that  "is  a  rational  act,  rationally  done,  the 
whole  case  is  proved;"''  "if  she  could  con- 
verse rationally,  that  is  a  lucid  interval."*  This 
is  a  mere  begging  of  the  question,  which  is 
whether  the  act  so  rational  and  so  rationally 
done — and  not  for  that  reason  necessarily  in- 
compatible with  insanity — was  or  was  not  done 
in  a  lucid  interval.  Persons  very  insane,  vio- 
lent, and  full  of  delusions  frequently  do  and 
say  things  evincing  no  mark  of  disease,  while 
no  one  supposes  that  there  is  any  lucid  interval 
in  the  case.  "  It  is  clear  that  persons  essen- 
tially insane  may  be  calm,  may  do  acts,  hold 
conversations,  and  even  pass  in  general  society, 
as  perfectly  sane.  It  often  requires  close  ex- 
amination by  persons  skilled  in  the  disorder,  to 
discover  and  ascertain  whether  or  not  the  men- 
tal derangement  is  removed  and  the  mind  be- 
come again  perfectly  sound.  Where  there  is 
calmness,  where  there  is  rationality  on  ordinary 
subjects,  those  who  see  the  party  usually  con- 
clude that  his  recovery  is  perfect.  .  .  .  When 
there  is  not  actual  recovery,  and  a  return  to 
the  management  of  himself  and  his  concerns 
by  the  unfortunate  individual,  the  proof  of  a 
lucid  interval  is  extremely  difficult."' 

Georget  Des  Mai.  Men.  46  ;  Reid, "Essays  on  Hypochon- 
driacal Affections,  21  Essay  ;  Combe  Men.  Derang.  241  ; 
Ray  Med.  Jur.  376.  W-i  Phill.  Lect.  90.  x-Procter,  3 
Carr.  &  P.  415.    y-2  Hagg.  433. 


LAW. 


529 


In  criminal  car.es,  the  proof  of  a  lucid  inter- 
ral  must  be  still  more  difficult,  in  the  very  na- 
lure  of  the  case.  For  although  the  mental 
manifestations  may  be  perfectly  right,  it  cannot 
be  supposed  that  the  brain  has  resumed  its 
normal  condition.  In  its  outward  expression, 
insanity,  like  many  other  nervous  diseases,  is 
characterized  by  a  certain  periodicity,  whereby 
the  prominent  symptoms  disappear  for  a  time, 
only  to  return  again  within  a  very  limited 
period.  An  epileptic,  in  the  intervals  between 
his  fits,  may  evince  to  the  closest  observer  not 
a  single  trace  of  mental  or  bodily  disease;  and 
yet,  for  all  that,  nobody  supposes  that  he  has 
recovered  from  his  malady.  No  more  does  a 
lucid  interval  in  a  case  of  insanity  imply  that 
the  disease  has  disappeared  because  its  outward 
manifestations  have  ceased.  There  unques- 
tionably remains  an  abnormal  condition  of  the 
brain,  by  whatever  name  it  may  be  called, 
whereby  the  power  of  the  mind  to  sustain 
provocations,  to  resisttemptations,  or  withstand 
any  other  causes  of  excitement,  is  greatly 
weakened. 

Lucid  intervals,  properly  so  called,  should 
not  be  confounded  with  those  periods  of  ap- 
parent recovery  which  occur  between  two  suc- 
cessive attacks  of  mental  disease,  nor  with 
those  transitions  from  one  phasis  of  insanity  to 
another,  in  which  the  individual  seems  to  be  in 
his  natural  condition.  They  may  not  be  essen- 
tially diflerent,  but  the  suddenness  and  brevity 
of  the  former  would  be  likely  to  impart  to  an 
act  a  moral  complexion  very  different  from  that 
which  it  would  bear  if  performed  in  the  larger 
and  more  indefinite  intermissions  of  the  latter. 
Still,  great  forbearance  should  be  exercised  to- 
wards persons  committing  criminal  acts  while 
in  any  of  these  equivocal  conditions.  Those 
who  have  suffered  repeated  attacks  of  mental 
disease  habitually  labor  under  a  degree  of  ner- 
vous irritability,  which  renders  them  peculiarly 
susceptible  to  many  of  those  incidents  and  in- 
fluences which  lead  to  crime.  The  law  may 
make  no  distinction,  but  executive  and  judicial 
tribunals  are  generally  intrusted  with  discre- 
tionary powers,  whereby  they  are  enabled  to 
apportion  the  punishment  according  to  the 
moral  guilt  of  the  party.* 

It  is  the  duty  of  the  party  who  contends  for 
a  lucid  interval,  to  prove  it;  for  a  person  once 
insane  is  presumed  so,  until  it  is  shown  that  he 
had  a  lucid  interval,  or  has  recovered,*  and  yet 
"  were  they  to  run  into  nicety,  proof  might  be 
demanded  of  one's  insanity  at  the  precise 
moment  when  the  act  was  committed."  See 
Insanity,  above. 

Malpractice  is  bad  or  unskilful  practice; 
practice  in  a  physician,  or  other  professional 
person,  whereby  the  health  or  members  of  the 
patient  is  injured;  practice  contrary  to  estab- 

j!-Ray  Med.  Jur.  chap.  Ltic.  Int.  a-Swinb.  77; 
Coke  Litt.  185,  n. ;  3  Brown  Ch.  443  ;  i  Const.  So.  C. 
225 ;  I  Pet.  163  ;  i  Litt.  Ky.  102.  b-Elwell  Malpr.  198, 
*t  seg.  :  7  B.  &  C.  403,  497  ;  6  Bingh.  440  ;  6  Mass.  134  ; 
5  C.  &  P.  333;  I  M.  &  R.  405;  5  Cox  Cr.  Ca.s.  587. 
0-1  Ld.  Rsiym.  213.      d-Elwell  Malpr.  343,  et  seq.;    2 


lished  rules.  Ignorant  malpractice  is  (Tie  ad- 
ministration of  medicines  calculated  to  do  in- 
jury, which  do  harm,  and  which  a  well-edu- 
cated and  scientific  man  would  know  were  not 
proper  in  the  case."*  This  offence  is  a  misde- 
meanor (whether  it  be  occasioned  by  curiosity 
and  experiment,  or  neglect),  because  it  breaks 
the  trust  which  the  patient  has  put  in  a  phy- 
sician, and  lends  directly  to  his  destruction." 
Negligent  malpractice  comprehends  those  cases 
where  there  is  no  criminal  or  dishonest  object, 
but  gross  negligence  of  that  attention  which 
the  situation  of  the  patient  requires,  as  if  a  phy- 
sician should  administer  medicines  while  in  a 
state  of  intoxication  from  which  injury  would 
arise  to  his  patient.  Wilful  malpractice  takes 
place  when  the  physician  purposely  administers 
or  performs  an  operation  which  he  knows  and 
expects  will  result  in  the  death  to  the  indi- 
vidual under  his  care,  as  in  the  case  of  a  crim- 
inal abortion.*  To  the  performance  of  all  sur- 
gical operations  the  surgeon  is  bound  to  bring 
at  least  ordinary  skill  and  knowledge.  He 
must  apply  without  mistake  what  is  settled  in 
his  profession.  He  must  possess  and  prac- 
tically exercise  that  degree  and  amount  cf 
knowledge  and  science  which  the  leading 
authorities  have  pronounced  as  the  result  of 
their  researches  and  experience  up  to  the  time, 
or  within  a  reasonable  time  before  the  issue  or 
question  to  be  determined  is  made.* 

Besides  the  criminal  remedy  for  malpractice, 
the  injured  party  may  in  many  cases  bring  a 
civil  action.'  Civil  cases  of  malpractice  are  of 
very  frequent  occurrence  on  those  occasions 
where  surgical  operations  are  rendered  neces- 
sary, or  supposed  to  be  so,  by  disease  or  injury, 
and  are  so  performed  as  either  to  shorten  a  limb 
or  render  it  stiff,  or  otherwise  prevent  the  free, 
natural  use  of  it,  by  which  the  party  ever  after 
suffers  damages.  This  may  embrace  almost 
every  kind  of  surgical  operation ;  but  nine- 
tenths  of  all  such  cases  arise  from  amputations, 
fractures,  or  dislocation.* 

Medical  Evidence.  See  title  Evidence, 
ante. 

Midwife  is  a  woman  who  assists  other 
women  in  childbirth.  A  midwife  is  required  to 
perform  the  business  she  undertakes  with  proper 
skill ;  and  if  she  is  guilty  of  any  malpractice 
she  is  liable  to  an  action  or  an  indictment  for 
the  misdemeanor.'' 

Miscarriage.     See  Abortion,  above. 

Monomania  is  the  derangement  of  a  single 
faculty,  or  with  regard  to  a  particular  subject, 
the  other  faculties  being  in  their  natural  and 
regular  exercise.  The  most  simple  form  of  this 
disorder  is  that  in  which  the  patient  has  im- 
bibed some  single  notion,  contrary  to  common 
sense  and  to  his  own  expense,  and  which  seems. 

Barb.  216.  e-Elwell  Malpr.  55;  sec  8  East.  347;  '. 
Wils.  259 :  I  H.  Bl.  61  :  Wright, 466;  22  Penn.  St.  261; 
27  N.  H.  460;  13  B.  Mon.  219.  t-$  Day,  260;  9  Conn. 
209  ;  3  Watts,  355 ;  7  N.  Y.  397.  g-Elwell  Malpr.  55. 
h-See  Viner  Abr. /"Ayjiciiw/  Com.  Dig.  Physician: 
8  East.  348 ;  3  Wils.  359  ;  4  C.  &  P.  308,  407,  a. ;  a 
Russ.  Cr.  288. 


«o 


LAW. 


and  no  doubt  really  is,  dependent  on  errors  of 
sensation.  It  is  supposed  that  the  mind  in 
other  respects  retains  its  natural  intellectual 
powers ;  in  order  to  avoid  any  civil  act  done,  or 
criminal  responsibility  incurred,  it  must  mani- 
festly appear  that  the  act  in  question  was  the 
effect  of  monomania.*     See  Delusion,  above. 

Monster.     See  Birth,  above. 

Parturition.  See  Accouchment;  Birth, 
.ibove. 

Pathology  is  that  branch  of  the  medical 
science  which  explains  the  nature  of  diseases, 
their  causes,  and  symptoms ;  or,  the  doctrine 
of  the  causes  and  nature  of  diseases,  compre- 
hending etiology  (causes  of  disease),  nosology 
(names  and  definitions  of  diseases,  their  class, 
genus,  order,  and  species),  symptomatology 
(symptoms  of  diseases),  and  therapeutics  (the 
use  of  diet  and  of  medicines).  Some  degree 
o*^  the  knowledge  of  pathology  is  of  great  con- 
sequence to  the  legal  practitioner.i 

Physician  is  a  person  skilled  in  the  art  of 
niedicine;  one  whose  profession  is  to  prescribe 
remedies  for  diseases;  one  lawfully  engaged  in 
the  practice  of  medicine.  Every  person  who 
offers  his  services  to  the  public  generally  im- 
pliedly contracts  with  the  employer  that  he  is 
in  possession  of  the  ordinary  skill  and  experi- 
ence which  are  possessed  by  those  who  prac- 
tice or  profess  to  understand  the  art  or  science, 
and  which  are  generally  regarded  by  those 
most  conversant  with  the  profession  as  neces*- 
sary  to  qualify  one  to  engage  in  the  business 
successfully.  This  ordinary  skill  may  differ 
according  to  locality  and  means  of  information.^ 
A  physician's  responsibility  is  the  same  when 
he  is  negligent  as  when  he  lacks  ordinary  skill, 
although  the  measure  of  indemnity  and  pun- 
ishment may  be  different.'  Although  a  physi- 
cian is  civilly  and  criminally  responsible  for  his 
conduct  while  discharging  the  duties  of  his 
profession,  he  is  in  no  sense  a  warrantor  or  in- 
surer of  a  favorable  result,  without  an  express 
contract  to  that  effect.™ 

Poison  is  any  agent  capable  of  producing  a 
morbid,  noxious,  or  dangerous  effect  upon  any 
object  endowed  with  life;  of  producing  death. 
A  substance  having  an  inherent  deleterious 
property  which  renders  it,  when  taken  into  the 
system,  capable  of  destroying  life." 

Gaseous  substances  are  classed  as  poisons. 

Irritant  poisons,  when  taken  in  ordinary 
doses,  occasion  speedily  violent  vomiting  and 
purging,  preceded,  accompanied,  or  followed 
by  intense  pain  in  the  abdomen,  commencing 
in  the  region  of  the  stomach.  The  corrosive 
poisons,  as  distinguished  from  those  in  a  more 

1-CycIop.  Pr.  Med.  Sound  and  unsound  of  mind: 
Ray  Ins.  203;  13  Ves.  Ch.  8q  ;  3  Brown  Ch.  444;  i 
Add.  Eccl.  283  ;  2  Id.  102  ;  Haag.  i8  ;  2  Add.  79,  94, 
209;  5  C.  &  P.  t68;  Burrows  Ins.  484,  485.  j-2  Chitty 
Pr.  42,  n.  k-Elwell  Malpr.  22-24.  201  ;  Story  Bailm. 
433:  3C.  &P.  629;  8  Id.  475.  1-ElweIl  Malpr.  27  ; 
Arch.  Cr.  PI.  {1  Rd.)  411  ;  a  Ld.  R.iym  1583  :  3  M.  & 
S.  14,  15  ;  5  Id.  198  ;  1  Law  Cr.  Cas.  169  :  2  Stark.  Ev. 
526;  Broom  Max.  168,  169  ;  4  Der.io,464;  19  Wend. 
345,  346.  in-Elwell  Malpr.  20;  7  C.  &  P.  81.  n- 
Whiarton  &  Stille  Med    Jur.  \  493;    Taylor    Poisons 


limited  sense  termed  irritant,  generally  produce 
their  result  more  speedily,  and  give  chemical 
indications ;  but  every  corrosive  poison  acts  as 
an  irritant  in  the  sense  here  adopted. 
Irritant  poisons  are : 

1.  Mineral: — Metallic :  Kc\A%;  alkalies  and 
their  salts ;  metalloids.    Non-metallic  :  arsenic. 

2.  Vegetable  : — Savin. 

3.  Animal: — Cantharides. 

Narcotic  poisons  act  chiefly  on  the  brain  or 
spinal  marrow.  Either  immediately  or  some 
time  after  the  poison  has  been  swallowed,  tl:e 
patient  suffers  from  headache,  giddiness,  paraly- 
sis, stupor,  delirium,  insensibility,  and,  in  some- 
instances,  convulsions. 

Narcotic  poisons  are : 

1.  Cerebral: — Morphia. 

2.  Spinal  : — Strychtiia. 

3.  Cerebro-Spinal  : — Conia  ;  aconitina. 

The  effects  of  one  class  are,  however,  some- 
times produced  by  the  other — more  commonly 
as  secondary,  but  sometimes  even  as  primary, 
symptoms. 

The  evidence  of  poisoning,  as  derived  from 
symptoms,  is  to  be  looked  for  chiefly  in  the  sud- 
denness of  their  occurrence ;  this  is  perhaps 
the  most  reliable  of  all  evidence  derived  from 
symptoms  in  cases  of  criminal  poisoning;* 
though  none  of  this  class  of  evidence  can  be 
considered  as  furnishing  anything  better  than  a 
high  degree  of  probability;  the  regularity  of 
their  increase ;  this  feature  is  not  universal,  and 
exists  in  many  diseases;  uniformity  in  their 
nature  j  this  is  true  in  the  case  of  comparatively 
few  poisons ;  the  symptoms  begin  soon  after  a 
meal ;  but  sleep,  the  manner  of  administration, 
or  certain  diseases,  may  affect  this  rule  in  the 
case  of  some  poisons ;  -when  several  partake  at 
the  same  time  of  the  same  poisoned  food,  all 
stiffer  from  similar  symptoms  ;'^  the  symptoms 
first  appearing  while  the  body  is  in  a  state 
of  perfect  healths^ 

Appearances  which  present  themselves  on 
post-mortem  examinations  are  of  importance 
in  regard  to  some  classes  of  irritant  poisons ;' 
but  many  poisons  leave  no  traces  which  can  be 
so  discovered. 

Chemical  analysis  often  results  in  important 
evidence,  by  discovering  the  presence  of  pois- 
ons, which  must  then  be  accounted  for;  but  a 
failure  to  detect  it  by  no  means  proves  that  it 
has  not  been  given.' 

The  evidence  derived  fronj  circumstances 
differs  in  nothing  in  principle  from  that  in  case 
of  commission  of  other  crimes. 

Homicide  by  poisoning  is  generally  acciden- 
tal (and  therefore  not  murder),  or  deliberate.' 

(2  Am.  Ed.)  18.  The  history  of  poisoning,  and  many 
remarl<able  early  instances  of  a  wide-spread  use  of 
poisons,  are  recorded  in  works  on  medical  jiirispru- 
dence  ;  see  these,  and  also,  especi.nlly,  Taylor  Poisons; 
Archbold  Cr.  Pr.  (Waterman's  ed.)  940;  Wharton  & 
Stille  Med.  Jur. ;  i  Beekman  Hist.  Jur.  74,  et  seg.  o- 
See  Taylor  Pois.  107 ;  Christison  Pois.  42.  p-2  Park 
Cr.  Cas.  N.  Y.  235;  Taylor  Poisons.,  118.  q-ArchboId 
Cr.  PI.  (Waterman  ed.)948.  r-See  the  Hersey  Case. 
Ma-ss.  1861  ;  Palmer's  Case,  Taylor  Poisons,  697.  S- 
,  Christison  Poisons,  61,  63.     t-See  19  Conn.  388. 


LAW. 


531 


Pkegnancy  is  the  state  of  a  female  who  has 
V  ithin  her  ovary  or  womb  a  fecundated  germ, 
which  gradually  becomes  developed  in  the 
latter  receptacle ;'  the  state  of  a  female  who 
has  conceived,  or  is  with  child. 

The  signs  of  pregnancy  acquire  a  great  im- 
portance from  their  connection  with  the  sub- 
ject of  concealed,  and  also  of  pretended,  preg- 
nancy. The  first  may  occur  in  order  to  avoid 
disgrace,  and  to  accomplish  in  a  secret  manner 
the  destruction  of  offspring.  The  second  may 
l)e  attempted  to  gratify  the  wishes  of  a  husband 
or  relations,  to  deprive  the  legal  successor  of 
his  just  claims,  to  gratify  avarice  by  extorting 
money,  and  to  avoid  or  delay  execution. 

These  signs  and  indications  have  a  twofold 
division.  First,  those  developed  through  the 
general  system,  and  hence  termed  constitu- 
tional ;  Second,  those  developed  through  the 
uv.erine  system,  termed  local  or  sensible. 

The  first,  or  constitutional,  indications  re- 
gard— I.  The  mental  phenomena,  or  change 
wrought  in  the  temperament  of  the  motlier, 
fc>ridenced  by  depression,  despondency,  reridei- 
ing  her  peevish,  irritable,  capricious,  and  way- 
ward ;  sometimes  drowsiness  and  occasionally 
strange  appetites  and  antipathies  are  present. 

2.  The  countenance  exhibits  languor,  and 
what  the  French  writers  term  decomposition  of 
leatures, — the  nose  becoming  sharper  and  more 
elongated,  the  mouth  larger,  the  eyes  sunk  and 
surrounded  with  a  brownish  or  livid  areola, 
and  having  a  languid  expression. 

3.  The  vital  action  is  increased ;  a  feverish 
heat  prevails,  especially  in  those  of  full  habit 
and  sanguine  temperament.  The  body,  ex- 
cept the  breasts  and  abdomen,  sometimes  ex- 
hibits emaciation.  There  are  frequently  pains 
in  the  teeth  and  face,  heartburn,  increased  dis- 
charge of  saliva,  and  costiveness. 

4.  The  mammary  sympathies  give  enlarge- 
ment and  firmness  to  the  breasts ;  but  this  may 
be  caused  by  other  disturbances  of  the  uterine 
system.  A  more  certain  indication  is  found  in 
the  areola,  which  is  the  dark-colored  circular 
disk  surrounding  the  nipple.  This,  by  its 
gradual  enlargement,  its  constantly  deepening 
color,  its  irtcreasing  organic  action  evidenced 
by  its  raised  appearance,  turgescence,  and  glan- 
dular follicles,  is  justly  regarded  as  furnishing 
a  very  high  degree  of  evidence. 

5.  Irritability  of  stomach,  evidenced  by  sick- 
ness at  the  stomach,  usually  in  the  early  part 
of  the  day. 

6.  Suppression  of  the  menses,  or  monthly 
discharge  arising  from  a  secretion  from  the  in- 
ternal surface  of  the  uterus.  This  suppression, 
however,  may  occur  from  diseases  or  from  a 
\  itialed  action  of  the  uterine  system. 

The  second,  termed  local  or  sensible  signs 
and  indications,  arise  mainly  from  the  develop- 
ment of  the  uterine  system  consequent  upon 
impregnation.     This  has  reference — 

I.  To  the  change  in  the  uterus  itself.  The 
Jiew  principle  introduced  causes  a  determina- 
tion of  blood  to  that  organ,  which  develops  at 


first  at  its  fundus,  second  in  its  body,  and 
lastly  in  its  cervix  or  neck.  The  latter  oon- 
stantly  diminishes  until  it  has  become  almost 
wholly  absorbed  in  the  body  of  the  uterus. 
The  OS  uteri  in  its  unimpregnated  state  feels 
firm,  with  well-defined  lips  or  margins.  After 
impregnation  the  latter  becomes  tumid,  softer, 
and  more  elastic,  the  orifice  feeling  circular 
instead  of  transverse. 

2.  To  the  state  of  the  umbilicus,  which  is 
first  depressed,  then  pushed  out  to  a  level  with 
the  surrounding  integuments,  and  at  last, 
towards  the  dose  of  the  period,  protruded  con- 
siderably above  the  surface. 

3.  To  the  enlargement  of  the  abdomen. 
This  commences  usually  by  the  end  of  the 
third  month,  and  goes  on  increasing  during  the 
period  of  pregnancy.  This,  however,  may  re- 
sult from  morbid  conditions  not  affecting  the 
uterus,  such  as  disease  of  the  liver,  spleen, 
ovarian  tumor,  or  ascites. 

4.  To  quickening,  as  rendered  evident  by  the 
foetal  motions.  By  the  former  we  understand 
the  feeling  by  the  mother  of  the  self-induced 
motion  of  the  foetus  in  utero,  which  occurs 
about  the  middle  of  the  period  of  pregnancy. 
But  as  the  testimony  of  the  mother  cannot 
be  always  relied  upon,  her  interest  being  some- 
times to  conceal  it,  it  is  important  to  inquire 
what  other  means  there  may  be  of  ascertaining 
it.  These  movements  of  the  foetus  may  some- 
times be  excited  by  a  sudden  application  of  the 
hand,  having  been  previously  rendered  cold  by 
immersion  in  water,  on  to  the  front  of  the 
abdomen.  Another  method  is  to  apply  one 
hand  against  the  side  of  the  uterine  tumor, 
and  at  the  same  time  to  impress  the  opposite 
side  quickly  with  the  fingers  of  the  other  hand 

But  the  most  reliable  means  consists  in  the 
application  of  auscultation,  or  the  use  of  the 
stethoscope.  This  is  resorted  to  for  the  pur- 
pose of  discovering — 

First,  The  soufHe,  or  placental  sound. 

Second,  The  pulsations  of  the  foetal  hearl. 
The  first  is  a  low,  murmuring,  or  cooing  sound, 
accompanied  by  a  slight  ru^hing  noise,  bu'v. 
without  any  sensation  of  impulse.  It  is  syu' 
chronous  with  the  pulse  of  the  mother,  and 
varies  not  in  its  situation  during  the  course  of 
the  same  pregnancy.  Its  seat  in  the  abdomen 
does  vary  in.  proportion  to  the  progressive  ad- 
vance of  the  pregnancy,  and  it  is  liable  to 
intermissions. 

The  second  is  quite  different  in  its  charac- 
teristics. It  is  marked  by  double  pulsations, 
and  hence  very  rapid,  numbering  from  one 
hundred  and  twenty  to  one  hundred  and  sixty 
in  a  minute.  These  pulsations  are  not  heard 
until  the  end  of  the  fifth  month,  and  become 
more  distinct  as  the  pregnancy  advances. 
Their  source  being  the  foetal  heart,  their  seat 
will  vary  with  the  varying  position  of  the 
foetus.  Auscultation,  if  successful,  not  only 
reveals  the  fact  of  pregnancy,  but  also  the  hfe 
of  the  foetus. 

t-Dunglinson  Med.  Diet.  Preg. 


$3* 


LAW. 


There  is  still  another  indication  of  preg- 
nancy;-and  that  is  a  bluish  tint  of  the  vagina, 
extending  from  the  os  externum  to  the  os 
uteri.  It  is  a  violet  color,  like  lees  of  wine, 
and  is  caused  by  the  increased  vascularity 
of  the  genital  system  consequent  upon  con- 
ception. But  any  similar  cause  other  than 
conception  may  produce  the  same  appear- 
ance. 

Independent  of  what  may  be  found  on  this 
kubject  in  works  on  medical  jurisprudence  and 
midwifery,  that  of  Dr.  Montgomery  on  the 
♦'  Signs  and  Indications  of  Pregnancy  "  is  the 
fullest  and  most  reliable. 

The  laws  relating  to  pregnancy  concern  the 
circumstances  under  and  the  manner  in  which 
the  fact  is  ascertained.  There  are  two  cases 
where  the  fact  whether  a  woman  is  or  has  been 
pregnant  is  important  to  ascertain.  The  one 
is  when  it  is  supposed  she  pretends  pregnancy, 
and  the  other  when  she  is  charged  with  con- 
cealing it. 

Pretended  pregnancy  may  arise  from  two 
causes  :  the  one  when  a  widow  feigns  herself 
with  child  in  order  to  produce  a  supposititious 
heir  to  the  estate.  The  presumptive  heir  may 
in  such  case  have  a  writ  de  ventre  inspiciendo 
(of  examining  the  abdomen),  by  which  the 
sheriff  is  commanded  to  have  such  made,  and 
the  fact  determined  whether  pregnancy  exists 
or  not,  by  twelve  matrons,  in  the  presence  of 
twelve  knights.  If  the  result  determine  the 
fact  of  pregnancy,  then  she  is  to  be  kept  under 
proper  guard  until  she  is  delivered.  If  the 
pregnancy  be  negatived,  the  presumptive  heir 
is  admitted  to  the  inheritance."  A  practice 
quite  similar  prevailed  in  the  civil  law. 

The  second  cause  of  pretended  pregnancy 
occurs  when  a  woman  is  under  sentence  of 
death  for  the  commission  of  a  crime.  At 
common  law,  in  case  this  plea  be  made  before 
execution,  the  court  must  direct  a  jury  of 
twelve  matrons,  or  discreet  women,  to  ascertain 
the  fact,  and  if  they  bring  in  their  verdict 
juick  -with  child  (for  barely  with  child,  unless 
't  be  alive  in  the  womb,  is  not  sufficient),  exe- 
cution shall  be  stayed,  generally  till  the  next 
session  of  the  court,  and  so  from  session  to 
session,  till  either  she  is  delivered  or  proves  by 
the  course  of  nature  not  to  have  been  with 
child  at  all.' 

In  Scotland,  all  that  is  necessary  to  be 
proved,  to  have  execution  delayed,  is  the  fact 
of  pregnancy,  no  difference  bemg  made  whe- 
ther she  be  quick  with  child  or  not.  This  is 
iilso  the  provision  of  the  French  penal  code 
upon  this  subject.  In  this  country,  there  is 
little  doubt  that  clear  proof  that  the  woman 
was  pregnant,  though  not  quick  with  child, 
would  at  common  law  be  sufficient  to  obtain  a 
respite  of  execution  until  after  delivery.  The  dif- 
ficulty lies  in  making  the  proof  sufficiently  clear, 
the  signs  and  indications  being  all  somewhat 

n-i  Sharswood,  Blackst.  Comm.  456;  Croke  Eliz. 
566  ;  4  Brown Ch.  90 ;  2  P.  Will.  Ch.  591  ;  Cox  Cr.  Cas. 
S97.    v-4  Shaiswood,  Blackst.  Comm.  394,  395;  i  Bay, 


uncertain,  some  of  them  wanting,  all  liable  t<i 
variation,  and  conviction  of  the  fact  only  fasten- 
ing upon  the  mind  when  a  number  of  them,  in- 
explicable upon  any  other  hypothesis,  concur 
in  that  one  result.  In  New  York  there  is  a  stat- 
ute regulation ,"  by  which  the  sheriff  is  authorized 
to  summon  a  jury  of  six  physicians  when  a  preg-^ 
nant  female  convict  is  under  sentence  of  death, 
and,  if  the  inquisition  by  them  executed  find 
that  such  convict  is  quick  with  child,  execution 
shall  be  suspended,  and  the  inquisition  trans- 
mitted to  the  governor;  and  whenever  he  shall 
become  satisfied  that  she  is  no  longer  quick 
with  child,  he  shall  issue  his  warrant  for  her 
execution. 

Pregnancy  is  seldom  concealed  except  for 
the  criminal  purpose  of  destroying  the  life  of  the 
foetus  in  utero,  or  of  the  child  immediately 
upon  its  birth.  Infant  life  is  easily  extin- 
guished; while  proof  of  the  unnatural  crime  is 
hard  to  be  furnished.  This  has  led  to  the 
passage  of  laws,  calculated  to  facilitate  the 
proof  and  also  to  punish  the  very  act  of  conceal- 
ment of  pregnancy  and  death  of  the  child,  when, 
if  born  alive,  it  would  have  been  illegitimate. 

Prolicide.  See  Fceticide;  Infanticide, 
above. 

Pulsation  is  the  beating  or  throbbing  of 
the  heart,  or  of  an  artery  in  process  of  carrying 
on  the  circulation  of  the  blood ;  beating  with- 
out pain,  as  distinguished  from  verberation,  or 
beating  with  pain.'' 

Quickening  is  becoming  alive ;  the  sensation 
a  mother  has  of  the  motion  of  the  child  she 
has  conceived.  The  period  when  quickening 
is  first  experienced  varies  from  the  tenth  to  the 
twenty-fifth,  but  is  usually  about  the  sixteenth 
week  from  conception.?  It  was  formerly  sup- 
posed that  either  the  child  was  not  alive  until 
the  time  of  quickening,  or  that  it  had  acquired 
some  new  kind  of  existence  that  it  did  not  pos- 
sess before ;  hence  the  presumption  of  law  that 
dates  the  life  of  the  child  from  that  time.  The 
child  is,  in  fact,  alive  from  the  first  moment  of 
conception,  and,  according  to  its  age  and  state 
of  development,  has  different  modes  of  mani- 
festing its  life,  and,  during  a  portion  of  the 
period  of  gestation,  by  its  motion.  By  the 
growth  of  the  embryo  the  womb  is  enlarged 
until  it  becomes  of  too  great  a  size  to  be  con- 
tained in  the  pelvis;  it  then  rises  into  the  ab- 
domen, when  the  motion  of  the  foetus  is  for  the 
first  time  felt.  Quickening,  as  indicating  a 
distinct  point  in  the  existence  of  the  foetus,  has 
no  foundation  in  physiology ;  for  it  arises 
merely  from  the  relation  which  the  organs  of 
gestation  bear  to  the  parts  that  surround  them  ; 
it  may  take  place  early  or  late,  according  to  the 
condition  of  these  different  parts,  but  not  from 
any  inherent  vitality  for  the  first  time  mani- 
fested by  the  foetus. 

As  life,  by  law,  is  said  to  commence  when  a 
woman  first  becomes  quick  with  child,  so  pro- 

So.  C.  487.  w-See  3  Rev.  Stat.  ch.  37,  gg  ao-aa  of  the 
5th  edition,  x-3  Sharsw.  Bl.  Comm.  120,*  Calvtnut 
Lex.  Pulsare.    y-Denman  Midw.  129. 


LAW. 


533 


curing  an  aboi  l.v,».  aicer  that  period  is  a  misde- 
iit«anor.  Before  this  time,  formerly  the  law 
diJ  not  interfere  to  prevent  a  pregnant  woman 
convicted  of  a  capital  offence  from  being  exe- 
cuted.* If,  however,  the  humanity  of  the  law 
of  the  present  day  would  not  allow  a  woman 
lo  be  executed  who  \%  priviment  enceinte^  i.  e., 
pregnant,  although  not  quick,  it  would  be  but 
carrying  out  the  same  desire  to  interfere  with 
long-established  rules,  to  hold  that  the  penalty 
for  procuring  abortion  should  also  extend  to 
the  whole  period  of  pregnancy. 

Somnambulism  is  the  act  or  practice  of  walk- 
ing m  sleep;  sleep-walking.  The  mental  con- 
dition of  this  affection  is  not  very  unlike  that 
of  dreaming.  Many  of  their  phenomena  are 
the  same ;  and  the  former  differs  from  the  lat- 
ter chiefly  in  the  larger  number  of  the  functions 
involved  in  the  abnormal  process.  In  addition 
to  the  mental  activity  common  to  both,  the  som- 
nambulist enjoys  the  use  of  his  senses  in  some 
degree,  and  the  power  of  locomotion.  He  is 
thereby  enabled  to  perform  manual  operations 
as  well,  frequently,  as  in  his  waking  state. 
The  farmer  goes  to  his  barn  and  threshes  his 
grain ;  the  house-servant  lights  a  fire  and  pre- 
pares the  breakfast  for  the  family;  and  the 
scholar  goes  to  his  desk  and  writes  or  reads. 
Usually,  however,  the  action  of  the  senses  is 
more  or  less  imperfect,  many  of  the  impres- 
sions being  incorrectly  or  not  at  all  perceived. 
The  person  walks  against  a  wall,  or  stumbles 
over  an  object  in  his  path ;  he  mistakes  some 
projection  for  a  horse,  strides  across  it,  and  im- 
agines himself  to  be  riding;  he  hears  the  faint- 
est sound  connected  with  what  he  is  doing, 
while  the  voices  of  persons  near  him,  even  the 
blast  of  a  trumpet,  are  entirely  unnoticed.  Oc- 
casionally the  power  of  the  senses  is  increased 
to  a  degree  unknown  in  the  waking  state.  For 
the  most  part  the  operations  of  the  somnambu- 
list consist  in  getting  up  while  asleep,  groping 
about  in  the  dark,  endeavoring  to  make  his 
way  out  of  the  house  through  doors  or  win- 
dows, making  some  inarticulate  sounds,  per- 
haps, and  all  the  while  unconscious  of  persons 
or  things  around  him.  The  power  of  the  per- 
ceptive faculties,  as  well  as  that  of  the  senses, 
is  sometimes  increased  in  a  wonderful  degree. 

The  somnambulist  always  awakes  suddenly, 
and  has  but  a  faint  conception,  if  any,  of  what 
he  has  been  thinking  and  doing.  If  conscious 
of  anything,  it  is  of  an  unpleasant  dream  im- 
perfectly remembered.  This  fact,  not  being 
generally  known,  will  often  enable  us  to  detect 
simulated  somnambulism.  If  the  person  on 
waking  continues  the  same  train  of  thought 
and  pursues  the  same  plans  and  purposes  which 
he  did  while  asleep,  there  can  be  no  doubt  that 
he  is  feigning  the  affection.  When  a  real  som- 
nambulist, for  some  criminal  purpose,  under- 
takes to  simulate  a  paroxysm,  he  is  not  at  all 
likely  to  imitate  one  of  his  own  previous  parox- 
ysms, for  the  simple  reason  that  he  knows  less 

W.-1  Hale  PI.  Cr.  413.  a-Bl.  Comm.  129.  b-Hoff- 
bauer ;    Die   Psychologie,  etc.  c.  4,  art.  ».     C-Scc  Gray 


than  others  how  he  appeared  while  in  them. 
If,  therefore,  somnambulism  is  alleged  in  any 
given  case,  with  no  other  proof  than  the  occur- 
rence of  former  paroxysms  unquestionably  gen- 
uine, it  must  be  viewed  with  suspicion  if  the 
character  of  the  alleged  paroxysm  differs 
materially  from  that  of  the  genuine  ones.  In 
one  way  or  another,  a  case  of  simulation 
would  generally  be  detected  by  means  of  a 
close  and  intelligent  scrutiny,  so  difficult  is  it  to 
imitate  that  mixture  of  consciousness  and  un- 
consciousness, of  dull  and  sharp  perceptions, 
which  somnambulism  presents.  The  history  of 
the  individual  may  throw  some  light  on  the 
matter.  If  he  has  had  an  opportunity  of  wit- 
nessmg  the  movements  of  a  somnambulist  in 
the  course  of  his  life,  this  fact  alone  would 
rouse  suspicion,  which  would  be  greatly  in- 
creased if  the  alleged  paroxysm  presented 
many  traits  like  those  of  the  paroxysms  pre- 
viously witnessed. 

The  legal  consequences  of  somnambulism 
should  be  precisely  those  of  insanity,  which  it 
so  nearly  resembles.  The  party  should  be  ex- 
empt from  punishment  for  his  criminal  acts, 
and  be  held  amenable  in  damages  for  torts  and 
trespasses.  The  only  possible  exception  to 
this  principle  is  to  be  found  in  those  cases 
where  the  somnambulist,  by  meditating  long 
on  a  criminal  act  while  awake,  is  thereby  led 
to  commit  it  in  his  next  paroxysm.  Such  being 
generally  the  fact,  too  much  indulgence  ought 
not  to  be  shown  to  the  criminal  acts  of  the 
somnambulist.''  But  this  is  rather  refined  and 
hazardous  speculation,  and  seems  like  punish- 
ing men  solely  for  bad  intentions,  because  the 
acts,  though  ostensibly  the  ground  of  punish- 
ment, are  actually  those  of  a  person  deprived 
of  his  reason.  The  truth  is,  however,  that 
criminal  acts  have  been  committed  in  a  state 
of  somnambulism  by  persons  of  irreproachable 
character." 

Sterility  is  barrenness;  unfruitfulness ; 
inability  to  produce  young;  inability  to  im- 
pregnate or  conceive.  When  incurable  at  the 
time  of  marriage,  and  arising  from  impotency, 
it  is  a  good  cause  for  dissolving  a  marriage.* 
See  Impotency,  above. 

Suicide  is  self-destruction;  self-murder;  the 
act  of  designedly  destroying  one's  own  life. 
To  constitute  suicide,  the  person  must  be  of 
years  of  discretion,  and  of  sound  mind.*  This 
was  once  regarded  by  the  common  law  as  ex- 
clusively a  felonious  act;  of  late,  however,  it 
has  been  often  treated  as  the  result  of  insanity, 
to  be  followed  by  all  the  legal  consequences 
of  that  disease,  so  far  as  it  is  practicable.  That 
suicide  may  be  committed  by  a  person  in  the 
full  enjoyment  of  his  reason  there  can  be  nc 
doubt ;  nor  can  there  be  any  doubt  that  it  is 
often  the  result  of  unquestionable  insanity. 
Between  the  two  kinds  of  suicide  here  indi- 
cated, the  medical  jurist  is  obliged  to  discrimi- 

Med.  Jur.  265  ;  \Vharton  &  S.  Med.  Jur. ;  Tirrefl's 
case,  Mass.  d-i  FoederS  MW.  L6g.  \  254.  e-4  BL 
Comm.  190. 


534 


LAW. 


nate,  and  in  performing  this  duty  the  facts  on 
the  subject  should  be  carefully  considered. 

The  instinct  of  self-preservation  is  not  so 
strong  as  to  prevent  men  entirely  from  being 
tired  of  life  and  seeking  their  own  destruction. 
They  may  have  exhausted  all  their  sources  of 
enjoyment,  their  plans  of  business  or  of  honor 
may  have  been  frustrated,  poverty  or  dishonor 
may  be  staring  them  in  the  face,  the  difficulties 
before  them  may  seem  utterly  insurmountable, 
and,  for  some  reason  like  these,  they  calmly 
and  deliberately  resolve  to  avoid  the  evil  by 
ending  their  life.  The  act  may  be  unwise  and 
presumptuous,  but  there  is  in  it  no  element  of 
disease.  On  the  other  hand,  it  is  well  known 
that  suicidal  desires  are  a  very  common  trait 
of  insanity — that  a  large  proportion  of  the  in- 
•sane  attempt  or  meditate  self-destruction.  It 
may  be  prompted  by  a  particular  delusion,  or 
by  a  sense  of  irresistible  necessity.  It  may  be 
manifested  in  the  shape  of  a  well-considered, 
persistent  intention  to  seize  upon  the  first  oppor- 
tunity to  terminate  life,  or  of  a  blind,  automatic 
impulse  acting  without  much  regard  to  means 
or  circumstances.  As  the  disease  gives  way 
and  reason  is  restored,  this  propensity  disap- 
pears, and  the  love  of  life  returns. 

Besides  these  two  forms  of  the  suicidal  pro- 
pensity, there  are  other  phases  which  cannot 
be  referred  with  any  degree  of  certainly  to 
either  of  them.  Persons,  for  instance,  in  the 
enjoyment  of  everything  calculated  to  make 
life  happy,  and  exhibiting  no  sign  of  mental 
disease,  deliberately  end  their  days.  Another 
class,  on  approaching  a  precipice  or  a  body  of 
water,  are  seized  with  a  desire,  which  may  be 
irresistible,  to  take  the  fatal  plunge.  Many  are 
the  cases  of  children  who,  after  some  mild  re- 
proof, or  slight  contradiction,  or  trivial  disap- 
pointment, have  gone  at  once  to  some  retired 
place  and  taken  their  lives.  Every  case  must 
he  judged  by  the  circumstances  accompanying 
it,  always  allowing  the  benefit  of  the  doubt  to 
be  given  to  the  side  of  humanity  and  justice. 

By  the  common  law  suicide  was  treated  as  a 
crime,  and  the  person  forfeited  all  chattels,  real 
or  personal,  and  various  other  property.'  This 
result  can  be  avoided  by  establishing  the  in- 
sanity of  the  party;  vid  in  England,  of  late 
years,  courts  have  favored  this  course  whenever 
the  legal  effect  of  suicide  would  operate  as  a 
punishment.  On  the  other  hand,  where  the 
rights  and  mterests  of  other  parties  are  involved, 
the  question  of  insanity  is  more  closely  scrutin- 
ized ;  and  ample  proof  is  required  of  the  party 
on  whom  the  burden  of  proof  lies. 

In  regard  to  wills  made  just  before  commit- 
ting suicide,  the  prevalent  doctrine  on  this 
point,  both  in  the  United  States  and  in  Eng- 
land, is  that  the  act  of  self-destruction  may  not 
necessarily  imply  insanity,  and  that  if  the  will 

f-4  Btackstone  Comm.  190.  g-j  Pick.  Mass.  94;  i 
Hagg.  Eccl.  109  ;  2  Harr.  Del.  583  :  z  Eccl.  415.  h-3 
Mann.  &  G.  437 ;  5  Id.  639 ;  4  All.  Mass.  96 ;  see  Whar- 
ton, Mental  Unsoundness  ;  Phillips  Ins.  i-13  Mass. 
359 ;  Russ.  &  R.  Cr.  Cas.  523.  ^-i  Beck  Med.  Jur. 
193 ,  Cassan,  Supcrfoetation ;  i  Bnand  Med.  Leg.  prem. 


is  a  rational  act,  rationally  done,  the  sanity  of 
the  testator  is  established.* 

In  life-insurance,  in  every  case  of  intentional 
suicide,  whatever  may  have  been  the  mental 
condition,  the  policy  becomes  void.*" 

In  cases  of  persons  found  dead,  the  cause 
may  not  be  always  perfectly  obvious,  and  it  be- 
comes necessary  to  determine  whether  death 
was  an  act  of  suicide,  or  murder.  This  is  often 
one  of  the  most  difficult  questions  in  the  whole 
range  of  medical  jurisprudence,  requiring  for 
its  solution  the  most  profound  knowledge  of 
surgery  and  physiology,  and  great  practical  sa- 
gacity. In  case  of  death  caused  by  wounds, 
the  kind  and  situation  of  the  weapon,  the  ex- 
tent, direction,  and  situation  of  the  wounds, 
their  connection  with  marks  of  blows,  the  tem- 
per and  disposition  of  the  person,  all  these  and 
many  other  circumstances  must  be  carefully 
and  intelligently  investigated.  The  frequency 
with  which  cases  of  suicide  strongly  resemble, 
in  their  external  characters,  those  of  murder, 
renders  necessary  the  highest  degree  of  skill 
and  careful  discrimination.  If  one  counsels 
another  to  commit  suicide,  and  is  present  at  the 
consummation  of  the  act,  it  is  murder  in  the 
principal.' 

SUPERFCETATION  is  the  conception  of  a  child 
by  a  woman  already  pregnant  with  another, 
during  the  time  of  such  pregnancy.  It  is  a 
doctrine  that  seems  to  be  established  by  numer- 
ous cases.J 

Verberation.     See  Pulsation,  above. 

Wounds  are  any  lesions  of  the  body  whereby 
blood  is  drawn,  including  contusions,  gunshot 
wounds,  incisions,  lacerations,  punctures,  etc. 
To  constitute  a  wound  the  continuity  of  the 
skin  must  be  broken,''  and  not  merely  the 
cuticle,  but  the  true  skin  must  be  divided.'  If 
the  skin  be  broken  the  means  by  which  it  was 
done  are  not  material.  A  kick  may  give  a 
wound."     See  Death,  above. 

Mercantile  Law.  See  titles  Agency; 
Bailments;  Bonds,  Notes,  and  Bills; 
Contracts;  Insurance;  Interest,  etc., 
ETC.,  ante. 

MILITARY  LAW  is  a  system  of  regula- 
tions for  the  government  of  an  army."  It  is  '.o 
be  distinguished  from  martial  law,  which  ex- 
tends to  all  persons.  Martial  law  supercedes 
and  suspends  all  civil  law ;  but  military  law 
is  superadded  and  subordinate  to  the  civil 
law." 

MUNICIPAL  LAW  is  that  governing  a 
single  nation,  slate,  district,  city,  town,  com- 
munity, etc.  It  is  distinguished  from  inter- 
national law. 

PLACE— LAW  OF. 

The  law  of  the  place,  Ux  loci,  and  is,  in  gen- 
eral, only  used  for  law  of  the  place  where  the 
contract  was  made,  or  where  the  act  was  per- 
formed or  to  be  performed. 

Parlie  Ch.  3,  Art.  4  ;  i  Foederfi  M6d.  L*g.  J  299  ;  Buffb> 
Hist.  Nat.  derhommc, /"iw^^r/^.  It-i  Moody  C.C.  278. 
1-8  C.  &  P.  365,  173  ;  I  M.  &  R.  526.  m-i  Moody  C 
C.  318.  n-i  Kent  Comm.  377,  n.  o-See  2  Kent.  Comm 
xo ;  34  Me.  126. 


LAW. 


535 


In  Contracts.  It  is  a  general  principle  ap- 
plying to  contracts  made,  rights  acquired,  or 
acts  done,  relative  to  personal  property,  that  the 
law  of  the  place  of  making  the  contract  or 
doing  the  act  is  to  govern  it,  and  determine 
its  validity  or  invalidity,  as  well  as  the  rights 
of  parties  under  it  in  all  matters  touching  the 
modes  of  execution  and  authentication  of  the 
form  or  instrument  of  contract ;  and  also  in  re- 
lation to  the  use  and  meaning  of  the  language 
in  which  it  is  expressed,  the  construction  and 
interpretation  of  it,  the  legal  duties  and  obliga- 
tions imposed  by  it,  and  the  legal  rights  and 
immunities  acquired  under  it."  This  principle, 
though  general,  does  not,  however,  apply  where 
the  parties  at  the  time  of  entering  into  the  con- 
tract had  the  law  of  another  kingdom  in  view, 
or  where  the  law  of  place  is  in  itself  unjust, 
against  good  morals,  or  contrary  to  the  public 
law  of  the  State,  as  regarding  the  interests  of 
religion  or  morality,  or  the  general  well-being 
of  society.''  And  where  the  place  of  perform- 
ance is  different  from  the  place  where  the  con- 
tract is  made,  it  is  presumed  the  parties  had  the 
law  of  the  former  in  mind. 

The  law  of  place  is  presumed  to  be  the  same 
as  that  of  the  forum  unless  shown  to  be  other- 
wise." 

The  Interpretation,  Formalities,  etc. ;  Con- 
struction and  Obligation  of  Contracts,  etc.  The 
interpretation  of  contracts  is  to  be  governed  by 
the  law  of  the  country  where  the  contract  was 
made."*  The  law  of  place  governs  as  to  the 
formalities  and  authentication  requisite  to  the 
valid  execution  of  contracts.*  But  in  proving 
the  existence  of,  or  seeking  remedies  for  the 
breach,  as  well  as  all  questions  relating  to  the 
competency  of  witnesses,  course  of  procedure, 
etc.,  the  law  of  the  forum  must  govern.'  The 
law  of  place  governs  as  to  the  construction  of 
contracts,*  unless  from  their  tenor  it  must  be 
presumed  they  were  entered  into  with  a  view  to 
the  laws  of  some  other  State."*     This  presump- 

a-i  Bingh.  (N.  C.)  154. 159 :  8  Clark  &  F.  Ho.  L. 
121  ;  I  Pet.  3T7;  13  Id.  378,  379 ;  2  N.  H.  42 ;  5  Id. 
401  ;  13  Id.  321 ;  6  Vt.  102  ;  2  Mass.  88,  89  ;  8Cush.  30  ; 
3  Conn.  253,  472  ;  14  Id.  583  ;  22  Barb.  118;  17  Penn. 
St.  91  ;  2  Harr.  &  J.  193;  3  Gill.  &  J.  234  ;  9  Gill,  i  :  3 
Dev.  161  ;  8  Mart.  95;  4  OhioSt.  241 ;  14  B.  Mon.  5^6; 
19  Mo.  84;  22  Id.  550;  4  Fla.  404;  23  Miss.  42;  12  La. 
An.  607;  3  Story  C.  C.  465;  Ware  Dist.  Ct.  402; 
Story  Confl.  L.  ^  242,  et  seq.  ;  Bayley  Bills  (5th  Ed  ) 
78 ;  Parsons'  Notes  &  B.  ;  2  Kent  Comm.  Lect.  39. 
b-Fergiison  Marr.  &  Div.  383;  2  Burr.  1077;  9  N.  Y. 
271 ;  6  Pet.  172  ;  i  How.  i6g  ;  5  Id.  295  ;  8  Paige  Ch. 
261  ;  17  Johns.  511  ;  13  Mass.  23;  5  Clark  &  F.  Ho.  L. 
11,13;  8  Id.  121  ;  6Whart.  3^i;  2  Met.  (Mass.)  8  ;  1  B. 
_Mon.  32;  5  Ired.  590;  2  Kent  Comm.  458;  Story 
>Confl.  L.  §280.  c-46  Me.  247;  13  La.  An.  673;  13 
Md.  392  ;  9  Gill.  I ;  4  Iowa,  464  ;  but  see  i  Iowa,  388. 
cl-Dougl.  201,  207;  2  B.  &  Ad.  746;  6  T.  R.  224;  i 
Bingh.  (N.  0151-159;  iB.  &Ad.  284;  to  B.  &  C. 
903  ;  2  Hagg.  Cons.  60,  61 ;  8  Pet.  361  ;  13  Id.  378  ;  30 
Ala.  (N.  S.)  253  ;  4  McLean  C.  C.  540 ;  2  Sharsw.  Bl. 
Comm.  141;  Story  Confl.  L.  ^270;  Chitty  Bills,  474. 
e-Story  Confl.  g  123,  260;  11  La.  14;  2  Hill,  227;  37  N. 
H.  86  ;  30  Vt.  42.  f-ii  Ind.  385  ,-9  Gill,  i ;  17  Penn.  St. 
91;  18  Ala.  N.  S.  248  ;  4  McLean  C.  C.  540 ;  3  Id.  545  ;  5 
How.  83;  6  Humph.  75  :  i7Conn.  500;  9^10.56,157;  4 
Gilm.  (Va.)  521 ;  26  Barb.  177;  Story  Confl.  L.  ?(!  567, 
634.  ^-11  Pick.  32  ;  8  Vt.  325  ;  12  N.  H.  S2o;  12  Wheat. 
213  ;  2  Keen,  293  ;  i  B.  &  P.  138  ;  12  Wend.  439  ;  22 
Barb.  118 ;  13  Mart,  soa;  14  B.  Mon.  556;  15  Miss.  79S. 


tion  arises  where  the  place  of  performance  is 
different  from  the  place  of  making.'  An  obliga- 
tion may  be  incurred  under  the  law  of  place 
which  there  is  no  means  of  enforcing  in  that 
country,  and  which  may  be  enforced  in  another 
country  .J 

A  lien  or  privilege  created  by  the  law  of  place 
will  generally  be  enforced  wherever  the  property 
may  be  found,""  but  not  necessarily  in  preference 
to  claims  arising  under  the  law  of  the  forum.' 

A  discharge  Irom  the  performance  of  a  con- 
tract under  the  law  of  place  is  a  discharge 
everywhere."  A  distinction  is  to  be  taken  be- 
tween discharging  a  contract  and  taking  away 
the  remedy  for  a  breach." 

Contracts  Made  Partly  in  one  State  and 
Partly  in  Another.  Where  a  contract  is  made 
partly  in  one  country  and  partly  in  another,  it 
is  a  contract  of  the  place  where  the  assent  of 
the  parties  first  concurs  and  becomes  complete.* 
As  between  the  place  of  making  and  the  place 
of  performance,  where  the  place  of  performance 
is  specified,  the  law  of  the  place  of  perform- 
ance governs  as  to  obligation,  interpretation, 
etc.P  Where  the  contract  is  to  be  performed 
generally,  the  law  of  the  place  of  making  gov- 
erns.i  If  the  contract  is  to  be  performed  partly 
in  one  state  and  partly  in  another,  it  will  be 
affected  by  the  law  of  both  states.'  In  cases 
of  indorsement  of  negotiable  paper,  every  in- 
dorsement is  a  new  contract,  and  the  place  of 
each  indorsement  is  its  place  of  contract.*  The 
place  of  payment  is  the  place  of  contract,  how- 
ever, as  between  indorsee  and  drawer.*  The 
place  of  acceptance  of  a  draft  is  regarded  as 
the  place  of  contract." 

The  legality  or  illegality  of  a  contract  will 
be  determined  by  the  lex  loci,  unless  it  affects 
injuriously  the  public  morals  or  rights,  contra 
venes  the  policy,  or  violates  a  public  law  of  th«i 
countiy  where  it  is  to  be  enforced.'  A  con- 
tract illegal  by  the  law  of  the  place  of  its  mj>k- 
ing  and  performance  will  generally  be  heW  so 

I1-13  Mass.  I.  I-31  Eng.  L.  &  Eq.  433;  17  Johns.  511 ; 
13  Pet.  65  ;  9  La.  An.  185  ;  13  Mass.  23  ;  i  How.  169. 
j-i  B.  &  Ad.  284;  2  Cow.  626;  2  Johns.  345;  i  Pet. 
317;  I  Wash.  C.  C.  376;  10  Wheat,  i ;  Henry  Foreign 
L.  §  81-86  ;  Story  Confl.  L.  g  571.  k-8  Mart.  95  ;  5  La. 
295  ;  Story  Confl.  L.  J?  322,  402.  I-5  Cranch,  289,  298  ; 
12  Wheat.  361.  in-5  M.-iss.  509;  13  Id.  i,  7;  7  Cush. 
'S  ;  4  Wheat.  122,  209  ;  12  Id.  213  ;  2  Mas.  C.  C.  161 ;  a 
Blackf.  394;  3  Caines,  154  ;  24  Wend.  43;  2  Kent  Comm. 
394.  11-3  Mass.  C.  C.  88  ;  s  Id.  378;  4  Conn.  47  ;  14  Pel. 
67  ;  12  Wheat.  347 ;  8  Pick.  194 ;  9  Conn.  314  ;  2  Blackf. 
394;  9  N.  H.  478.  0-2  Parsons' Contr.  94 ;  27  N.  H. 
217,  244  ;  11  Ired.  303;  3  Strobh.  27  ;  i  Gray,  336.  |»- 
5  East.  124;  2  Caines,  154 ;  i  Gall.  C.  C.  371 ;  12  Vt. 
648;  12  Pet.  456;  13  Id.  65;  I  How.  182;  SPaige,  261; 
8  Johns.  189;  17  Id.  511  ;  5  McLean  C.  C.  448 :  27  Vt. 
8  ;  14  Ark.  189  ;  7  B.  Mon.  575  ;  8  Id.  306  :  9  Mo.  56, 
157;  4  Gilm.  (Va.)  521;  21  Ga.  135;  30  Miss.  53;  ? 
Ohio,  134;  4  Mich.  450;  2  Kent  Comm  459;  Story 
Confl.  L.  \  233  ;  but  see  11  Texas,  54.  q-2  B  &  Aid. 
301  ;  5  Clark  &  F.  Ho.  L.  i,  12  ;  i  B.  &  C.  16;  i  Met. 
(Mass.)  82;  6  Cranch,  221;  6  Ired.  107;  17  Miss  220 
r-14  B.  Mon.  556.  8-2  Kent  Comm.  460:  Prec.  in 
Chanc.  128;  17  Johns.  511  ;  9  B.  &  C.  208  ;  13  Mass.  i ; 
25  Ala.  (N.  S.'>  139:  19  N.  Y.  436;  17  Texas.  102  t- 
See  19  N.  Y.  436.  n-3  Gill.  430  ;  1  Q.  B.  43  :  i  (iow.  103 . 
4  Pet.  Ill  :  12  Wend.  439  ;  6  Duer,  34;  8  Met.  (Mass.j 
107:  4  Dev.  124 ;  6  McLean  C.  C.  622  ;  9  Cush.  46:  ij 
N.  y.  290  ;  18  Conn.  138  ;  17  Miss.  220  ;  see  ante,  B0NO& 
Notes,  and  Bills,    v-z  Keat  Comm.  4^8. 


536 


LAW. 


everywhere.*     A  contract  legal  by  the  lex  loci 
will  be  so  everywhere,*  unless : 

1.  It  is  injurious  to  public  rights  ormorality.y 

2.  It  contravenes  the  policy,"  and  it  is  gen- 
erally held  that  the  claims  of  citizens  are  to  be 
preferred  to  those  of  foreigners  in  case  of  a 
conflict  of  rights.  Assignments  under  the  in- 
solvent laws  of  a  foreign  state  are  usually  held 
inoperative  as  against  claims  in  the  state  in  re- 
gard to  personal  property  in  the  jurisdiction  of 
the  lex  Jori.'' 

3.  Or  violates  a  positive  law  of  the  lex  fori. 
The  application  of  the  lex  loci  is  a  matter  of 
comity,  and  that  law  must,  in  all  cases,  yield  to 
the  positive  law  of  the  place  of  seeking  the 
remedy.'' 

Statutes  of  limitation  apply  to  the  remedy, 
but  do  not  discharge  the  debt." 

The  validity  or  invalidity  of  a  contract  as 
affected  by  the  lex  loci  may  depend  upon  the 
capacity  of  the  parties,  or  the  legality  of  the 
act  to  be  done.  The  capacity  of  the  parties  as 
affected  by  questions  of  minority  or  majority, 
jTuardianship  and  other  personal  qualities  or 
disabilities,  is  to  be  decided  by  the  law  of  the 
place  of  making  the  contract.^  Personal  dis- 
qualifications not  arising  from  the  law  of  nature, 
but  from  positive  law,  and  especially  such  as 
are  penal,  are  strictly  territorial,  and  are  not  to 
be  enforced  in  any  other  country  than  where 
they  originate.*  Natural  disabilities,  such  as 
insanity,  imbecility,  etc.,  are  everywhere  recog- 
nized, so  that  the  question  whether  they  are 
controlled  by  the  lex  loci  or  lex  domicilii  seems 
to  be  theoretic  rather  than  practical. 

In  Torts.  Damages  for  the  commission  of 
a  tortuous  act  are  to  be  measured  by  the  law  of 
the  place  where  the  net  was  done.' 

PLACE  OF  SITUATION  OF  THE 
THING. 

Lex  rei  sites  is  law  of  the  place  or  situation 
of  the  thing. 

It  is  the  universal  rule  of  the  common  law 
that  any  title  or  interest  in  land,  or  in  other 
real  estate,  can  only  be  acquired  or  lost  agree- 
ably to  the  law  of  the  place  where  the  same  is 
situate, 8  and  the  law  is  the  same  in  this  respect 
in  regard  to  all  methods  whatever  of  transfer, 
and  evevv  restraint  upon  alienation.'' 

PROSPECTIVE  LAW  is  that  which  is 

W-i  Gall.  C.  C.  375  ;  2  Mass.  88.  89  ;  2  N.  H.  42; 
5  Id.  401 ;  2  Mas.  C.  C.  45g  ;  13  Pet.  65,  78 ;  2  Johns. 
Cas.  355;  I  Nott.  &  M'Cord,  173;  2  Harr.  &  J.  193, 
221,  225;  17  111.  328;  16  Texas,  344-  2  Burr.  1077; 
7  T.  R.  237;  2  Kent  Comm.  458;  Henry  Foreign  L. 
37.  50;  Story  Confl.  L.  ^  243  An  exception  is  said 
to  exist  in  case  of  contracts  made  in  violation  of  the 
revenue  laws.  Cas.  temp-  Hardw.  85 ;  2  C.  Rob. 
Adm.  6:  I  Dougl.  251  ;  i  Cowp  341 :  2  Cr.  M.  &  R. 
311;  2  Kent  Comm  458.  x-i3La.  An.  117.  y-3  Burr. 
1568  ;  Cowp  37;  2  Carr.  &  P.  347;  4  B.  &  Aid.  650;  i 
BOS.  &  P.  340;  6  Mass.  379:  2  Harr  &  J.  193.  as-2 
Bingh.  314;  2  Sim.  Ch.  194;  i  Turn  &  R.  299;  i 
Dowl.  &  C.  342;  16  Johns.  438;  5  Harring.  31;  i 
Green  Ch.  326.  17  Ga.  253.  l»-i  Green  Ch.  326;  5 
Hamng.  31  ;  32  Miss  246;  13  La  An.  280;  21  Barb. 
198  :  but  see  12  Md  54  :  13  Id.  392.  b- 13  Mass.  6:  18 
Pick.  193  ;  I  Green  Ch.  326:  12  Barb  631  ;  17  Miss. 
»47:  see  10  N.  Y.  53.  C-ii  Wheat  361  ;  9  How.  407  : 
BO  Pick.  310;  II  Id.  36;  17  Mass.  55  ;  2  Paine  C.  C. 
«7 :  a  Mas,  C.  C.  751 ;  6  N.  H.  S57 :  6  Vt.  137 ;  8  Port. 


applicable  to  the  future;  it  is  used  in  contra- 
distinction to  retrospective.  To  be  just  a  law 
ought  always  to  be  prospective.' 

REPORT  LAW, 

Reports  are  printed  or  written  collections 
of  accounts  or  relations  of  cases  judicially  argued 
and  determined.  Prior  to  the  year  1800  there 
were  hut  one  or  two  American  reports,  while 
in  England  there  were  very  many.  In  the 
jurisprudence  of  nearly  every  civilized  country, 
the  force  of  adjudicated  precedents  is  to  a 
greater  or  less  degree  acknowledged.  But  in 
no  countries  are  they  so  deferentially  listened 
to,  and,  indeed,  so  implicitly  obeyed  as  in  Eng- 
land and  in  those  countries  which,  like  our 
own,  derive  their  systems  of  judicial  govern- 
ment from  her.  The  European  systems  are 
composed,  much  more  than  either  ours  or  the 
English,  of  codes;  and  their  courts  rely  far 
more  than  ours  upon  the  opinions  of  eminent 
text  writers.  With  us,  we  pay  no  implicit  re- 
spect to  anything  but  a  "  case  in  point,"  and, 
supposing  the  case  to  be  by  an  authoritative 
court,  when  that  is  cited  it  is  generally  taken  as 
conclusive  on  the  question  in  issue.  Hence 
both  the  English  and  American  jurisprudence 
is  filled  with  books  of  reports ;  that  is  to  say, 
with  accounts  of  cases  which  have  arisen,  and 
the  mode  in  which  they  have  been  presented, 
considered,  argued,  and  decided.  It  is  of  late 
years  usual,  in  the  United  States  at  least,  for 
the  courts  to  write  out  their  opinions  and  de- 
liver them  to  the  reporter,  so  that  usually  the 
opinion  of  the  court  is  correctly  given.  Noth- 
ing can  be  so  various,  as  respects  their  grade 
of  merit,  as  the  English  reports  prior  to  about 
the  year  1776,  and  the  lawyer  should  never 
rely  upon  any  one  of  them  without  knowing 
the  character  of  the  volume  which  he  cites. 
Great  judicial  mistakes  have  arisen,  even  with 
the  most  able  courts,  from  want  of  attention  to 
the  different  characters  of  the  old  reporters.^ 

RETROSPECTIVE  LAW  is  that  hav- 
ing reference  to  matters  or  things  existing  before 
its  passage.  Laws  which  operate  upon  some 
subject,  contract,  or  crime  which  existed  before 
their  passage,  are  generally  unjust,  and  are  to 
a  certain  extent  forbidden  by  that  article  of  the 
Constitution  of  the  United  States  which  pro- 
hibits the  passage  of  ex  post  facto  laws,  or  laws 

(Ala.)  84  ;  but  see  5  Clark  &  F.  Ho.  L.  1-17  ;  9  B.  Mon. 
513;  2  Texas,  414;  see  Limitations.  fl-Story  Confl. 
L.  ^  T03  ;  I  Grant  Cas.  51.  The  question  of  disability 
to  make  a  contract  on  account  of  infancy  is  to  be  decided 
by. the  lex  loci.  3  Esp.  163,  597;  17  Mart.  597;  8 
Johns.  189;  I  Grant.  Cas.  51  ;  2  Kent  Comm.  233.  So, 
also,  as  to  contracts  made  by  married  women.  Alleyii, 
72  ;  8  Johns.  189  ;  13  La.  177 ;  5  East.  31  ;  2  Parsons' 
Contr.  84,  III.  O-Story  Confl  L.  ?§9i,  92,  104,620- 
625;  2  Kent  Comm.  459.  f-i  P.  Wms.  395;  i  Pet.  C. 
C.  225;  Story  Confl.  L.  \  307.  g-i  Pick.  81;  6  Id. 
286;  I  Paige  Ch.  220;  2  Ohio,  124  ;  iH.  Bl.  665;  2 
Rose.  Bank.  29  :  2  Ves.  &  B.  Ch.  130;  5  B.  &  C.  438  : 
6  Madd.  Ch.  16  ;.  i  Young  &  C.  114  ;  7  Cranch,  115  ;  10 
Wheat.  192,  465;  6  Id.  597;  4  Cow.  510,  527;  4  Johns. 
Ch.  460 ;  I  Gill.  280  ;  6  Binn.  559  ;  Story  Conrf.  L.  §? 
365,  428.  I1-12  Eng.  L.  &  Eq.  206.  l-i  Bouv.  Inst.  n. 
116.  J-The  fullest  account  which  has  yet  been  given  of 
the  reporters,  their  chronological  order,  merits, history, 
and  the  volumes,  is  Wallace'  "  The  Reporters  Chron* 
logically  Arraogad." 


LAW. 


537 


Impairing  contracts.  The  right  to  pass  retro- 
spective Taws,  with  the  above  excepti6n,  exists 
in  the  several  States,  according  to  their  own 
vonstitutions ;  and  they  become  obligatory  if 
iiot  prohibited  by  such  constitutions.* 

STATUTE    LAW. 

A  Statute  is  a  law  established  by  the  act 
of  the  legislative  power.  An  act  of  the  legis- 
lature. The  written  will  of  the  legislature, 
solemnly  expressed  according  to  the  forms 
necessary  to  constitute  it  the  law  of  the  State. 
This  word  is  used  to  designate  the  written  law 
in  contradistinction  to  the  unwritten  law.  See 
ante,  Common  Law.  An  affirmative  statute 
is  one  which  is  enacted  in  affirmative  terms. 
Such  a  statute  does  not  necessarily  take  away 
the  common  law."  If,  for  example,  a  statute 
without  negative  words  declares  that  when 
certain  requisites  shall  have  been  complied 
with,  deeds  shall  have  a  certain  effect  as  evi- 
dence, this  does  not  prevent  their  being  used 
in  evidence,  though  the  requisites  have  not 
been  complied  with,  in  the  same  manner  as 
they  might  have  been  before  the  statute  was 
passed.^  Nor  does  such  an  affirmative  statute 
repeal  a  precedent  statute  if  the  two  can  both 
be  given  effect.*  A  negative  statute  is  one 
expressed  in  negative  terms,  and  so  controls 
the  common  law  that  it  has  no  force  in  oppo- 
sition to  the  statute.''  A  declaratory  statute  is 
cine  which  is  passed  in  order  to  put  an  end  to 
a  doubt  as  to  what  is  the  common  law  or  the 
meaning  of  another  statute,  and  which  declares 
what  it  is  and  ever  has  been.  A  remedial 
statute  is  one  which  is  made  to  supply  such 
defects  and  abridge  such  superfluities  in  the 
common  law  as  may  have  been  discovered. 
The  term  "  remedial  statute  "  is  also  applied 
to  those  acts  which  give  the  party  injured  a 
remedy ;  and  in  some  respects  such  statutes 
are  penal.'  A  penal  statute  is  one  which  com- 
mands or  prohibits  a  thing,  under  a  certain 
penalty.^  A  statute  affixing  a  penalty  to  an 
act,  though  it  does  not  in  words  prohibit  it, 
thereby  makes  it  illegal.''  A  perpetual  statute 
is  one  for  the  continuance  of  which  there  is  no 
limited  time,  although  it  be  not  expressly  de- 
clared to  be  so.  If  a  statute  which  did  not 
itself  contain  any  limitation  is  to  be  governed 
hy  another  which  is  temporary  only,  the  former 
will  also  be  temporary  and  dependent  upon 
the  existence  of  the  latter.'  A  temporary  stat- 
ute is  one  which  is  limited  in  its  duration  at 
the  time  of  its  enactment.  It  continues  in 
force  until  the  time  of  its  limitation  has  ex- 
pired, unless  sooner  repealed.    A  statute  which 

<I-4  S.  &  R.  364  :  3  Dall.  396:  I  Bay,  179  ;  7  Johns. 
477.  e-Co.  2d  Inst.  200;  Dwarris  Stat.  474.  f-2  Caines, 
1^.  g^-Dwarris  Stat.  474.  h-Bac.  Abr.  Stat.  CG).  I- 
Esp.  Pen.  Act.  i.  j-Esp.  Pen.  Act.  5,  Bac.  Abr.  ;  see 
generally,  Bac.  Abr.  Com.  Dig.  Parlim.  Viner.  Abr. 
Dane  Abr.  Index  ;  Chitty  Pr.  ;  1  Kent  Comm.  447-459  ; 
Barrington  Stat.  Boscawen  Pen.  Stat.  ;  Esp.  Pen.  Act. 
Dwarris  Stat. ;  Sedgw.  Const.  L.  ls-14  Johns.  273;  i 
Binn.  no;  37  Eng.  L.  &  Eq.  475;  14  N.  H.  294;  4 
Iowa,  490 ;  7  Ind.  77.  I-Bac.  Abr.  Stat.  (D).  m-Bac. 
Abr.  Stat.  (F.);  i  Bl.  Comm.  85,86;  Dwarris  Stat. 
6^9  ;  4  Co.  76  ;  1  T.  R.  125;  Skinn.  350;  and  see  Hale, 
HicL  Comm.  L.  (Runnington's  Ed.)  3 ;  i  Kent  Comm. 


by  reason  of  its  nature  has  only  a  single  and 
temporary  operation — e.  g.,  an  appropriation 
bill — is  also  called  a  temporary  statute.  Private 
or  special  statutes  or  acts  are  those  of  which 
will  not  take  notice  without  pleading ;  such  as 
concern  only  a  particular  species  or  person. 
Private  statutes  may  be  rendered  public  by 
being  so  declared  by  the  legislature."  Private 
statutes  will  not  bind  strangers,  though  they 
should  not  contain  any  saving  of  their  right. 
A  general  saving  clause  used  to  be  inserted  la 
all  private  bills ;  but  it  is  settled  that,  even  if 
such  saving  clause  be  omitted,  the  act  will 
bind  none  but  the  parties.  Public  or  general 
statutes  are  those  of  which  the  courts  will  take 
judicial  notice  without  pleading  or  proof. 
They  are  either  general  or  local — that  is,  have 
operation  throughout  the  State  at  large,  or 
within  a  particular  locality.  It  is  not  easy  to 
say  what  limitation  will  render  an  act  local. 
Thus,  it  has  been  held  that  a  public  act  relat- 
ing to  one  county  only  is  not  local  within  the 
meaning  of  the  constitutional  provision  which 
forbids  enactments  of  local  bills  embracing 
more  than  one  subject." 

It  is  a  general  rule  that  when  the  provisions 
of  a  statute  is  general,  everything  which  is 
necessary  to  make  such  provision  effectual  is 
supplied  by  the  common  law,"  and  when  a 
power  is  given  by  statute,  everything  necessary 
for  making  it  effectual  is  given  by  implication.? 

A  statute  which  contravenes  a  provision  of 
the  constitution  of  a  State  by  whose  legislature 
it  was  enacted,  or  of  the  Constitution  of  the 
United  States,  is  in  so  .'ar  void.  The  presump- 
tion, however,  is  that  every  State  statute,  the 
object  and  provision  of  which  are  among  the 
acknowledged  powers  of  the  legislation,  is 
valid  and  constitutional ;  and  such  presump- 
tion is  not  to  be  overcome  unless  the  contrary 
is  clearly  demonstrated.'  Where  a  part  only 
of  a  statute  is  unconstitutional,  the  rest  is  not 
void  if  it  can  stand  by  itself.' 

A  statute  is  not  to  be  deemed  repealed,  merely 
by  the  enactment  of  another  statute  on  the  same 
subject.  There  must  be  a  positive  repugnancy 
between  the  provisions  of  the  new  law  and  the 
old  to  work  a  repeal  by  implication ;  and  even 
then  the  old  law  is  repealed  only  to  the  extent 
of  such  repugnancy.*  This  rule  is  supported 
by  a  vast  variety  of  cases.  There  is,  however, 
a  qualification  to  be  observed  in  the  c;ise  of  a 
revised  law.  Where  the  new  statute  is  in 
effect  a  revision  of  the  old,  it  may  be  treated 
as  superseding  the  former,  though  not  expressly 
so  declared."     A  mere  change  of  phraseology 

459.  11-5  N.  Y.  285  :  2  Sandf.  355  ;  i  Hilt,  483.  o-<"o 
Litt.  235  ;  Co.  2d  Just.  222  :  Bac.  Abr.  Stat.  (B).  p- 
Quando  lex  (iliquid  conretiit,  coticedere  viiietur  et  id 
per  quod  devenitur  ad  aiiud.  (When  the  law  grants 
anything  it  would  also  appear  to  concede  that  by  which 
it  may  be  accessible.)  12  Co.  130,  131 :  Co.  2d  Just. 
306.  «i-6  Cranch,  87;  i  Cow.  564  ;  3  Denio,  381 ;  7N. 
Y.  109;  19  Barb.  81.  r-i  Gray,  i.  t-T6  Pet.  342.  n- 
7  Mass.  T40 ;  12  Id.  537,  545 ;  i  Pick.  4;:;,  45,  154 :  9  Id. 
97;  10  Id.  39  ;  3  Me.  22:  31  Id.  34  ;  42  Id.  53  ;  16 Barb. 
15:5  Eng.  L.  &  Eq.  588 ;  37  N.  H.  295  ,  30" Vt.  344 ;  8 
Texas,  62  ;  14  111.  334 ;  6  B.  Men.  146 :  but  cvmpore  9 
Ind.  337 ;  xo  Id.  566. 


53S 


LAW— LIENS. 


in  the  revision  does  not,  however,  necessarily 
imply  a  change  in  the  law/  Where  a  new 
statute  expressly  repeals  the  former  statute, 
and  the  new  and  the  repeal  of  the  old  are  to 
take  effect  at  the  same  time,  a  provision  in  the 
old  statute  which  is  embodied  in  the  new  is 
deemed  to  have  continued  in  force  without 
suspension."  But  it  has  been  held,  that  where 
the  new  law  does  not  go  into  effect  until  a 
time  subsequent  to  that  at  which  the  repeal 
lakes  effect,  such  a  provision  is  to  be  deemed 
repealed  meantime.^ 

It  is  not  to  be  presumed  in  the  courts  of  any 
State,  that  statutes  which  have  been  enacted  in 
that  State  have  also  been  enacted  in  other 
States.  The  courts  assume  that  the  common 
law  still  prevails,  unless  it  is  shown  to  have 
been  modified.' 

Construction.  Penal  statutes  are  to  be 
strictly  construed.  Remedial  statutes  are  to 
be  liberally  construed.* 

The  apparent  object  of  the  legislature  is  to 
be  sought  for  as  disclosed  by  the  act  itself,  the 
preamble  in  some  cases,  similar  statutes  relat- 
ing to  the  same  subject,  the  consideration  of 
the  mischiefs  of  the  old  law,  and  perhaps  some 
other  circumstances.  All  statutes  are  to  be 
construed  with  reference  to  the  provisions  of 
the  common  law,  and  provisions  in  derogation 
of  the  common  law  are  held  strictly.  In  con- 
struing statutes  of  the  various  States  or  foreign 
countries,  the  Supreme  Court  of  the  United 
States  adopts  the  construction  put  upon  them 
by  the  courts  of  the  State  or  country  by  whose 
legislature  the  statute  was  enacted ;  but  this 
does  not  necessarily  include  subsequent  varia- 
tions of  construction  by  such  courts.* 

Punctuation  is  not  to  be  regarded  in  con- 
struing a  statute.'* 

liease.  See  Con\'eyances,  "  Leases." 

ILegBOy.  See  Conveyances,  "  Wills." 

liCg'al.  See  Law. 

I^eisral  Tender.  See  Money. 

JLcgrates.  See  International  Law. 

lie^islation.  See  Law. 

lie^islative.  See  Office  and  Officers. 

Liej^itiinacy.  See  Children. 

Ijetter.  See  Bailments,  "  Hire;  "  Cont -icrs, 
"  Payments." 

I^etter  of  Advice.  See  Bonds,  Notes,  and 
Bills. 

l<etter  of  Attorney.  See  Agency,  "Attorneys 
in  Fact." 

Iietter  of  Credence.  See  International 
Law. 

LiCtter  of  Credit.  Sec  Mercantile  Law. 

I^ex  I.OCI.  See  Law. 

liCX  Fori.  See  Law. 

IjCX  Rei  Nitte.  See  Law. 

Ijibel  and  Slander.  See  Torts. 

IjIEXS.  See  title  Bailments;  Contracts;  etc. 
A  Lien  is  a  hold  or  claim  which  one  person 
has  upon  the  property  of  another  as  a  security 
for  some  debt  or  charge.  In  every  case  in 
which  property,  either  real  or  personal,  is 
charged  with  the  payment  of  a  debt  or  duty, 

V-2I  Wend.  316:  2  Hill.  380:  4  Sandf  374;  7  Barb. 
iQt  ;  33  N.  H.  246  ;  6  Texas,  34.  w-3  Wis.  667;  15 
III.  595.  X-12  La.  -A^n.  50^  :  but  see  i  Pick.  33.  y-22 
Barb.  118 :  23  Id.  498  ;  2  t)uer,  419  ;  see  ante.  Foreign 
Laws.  «-Dwarrls  Stat.  615,  fi  seq.  a-5  Pet.  280.  b- 
t  Gray,  38a.     w-Whitaker  Liens,     x-2  East.  235.     i"- 


every  such  charge  may  be  denominated  a  liett 
on  the  property.'  It  differs  from  an  estate  in 
or  title  to  the  property,  as  it  may  be  discharged 
at  any  time  by  payment  of  the  sum  for  which 
the  lien  attaches.  It  differs  from  a  mortgage 
in  the  fact  that  the  mortgage  is  made,  and  the 
property  delivered,  or  otherwise,  for  the  ex- 
press purpose  of  security ;  while  the  lien  at- 
taches as  incidental  to  the  main  purpose  of  the 
bailment;  or,  as  in  case  of  a  judgment,  by 
mere  act  of  the  law  without  any  act  of  the 
party.  In  its  more  limited  as  well  as  com- 
moner sense,  the  word  lien  indicates  a  mere 
right  to  hold  the  property  of  another  as  secu- 
rity ;  or  it  is  the  right  which  one  person  pos- 
sesses, in  certain  cases,  of  detaining  property 
placed  in  his  possession  belonging  to  another, 
until  some  demand  which  the  former  has  upon  it, 
is  satisfied.'^  A  qualified  right  which,  in  certain 
cases,  may  be  exercised  over  the  property  of 
another.y  A  lien  is  a  right  to  hold.*  A  lien 
in  regard  to  personal  property  is  a  right  to  de- 
tain the  property  till  some  claim  «r  charge  is 
satisfied.*  The  right  of  retaining  or  continu- 
ing possession  till  the  price  is  paid.*"  Common 
law  lien,  as  distinguished  from  other  classes, 
consi.sts  in  a  mere  right  to  retain  possession 
until  the  debt  or  charge  is  paid.  A  general 
lien  is  the  right  to  retain  the  property  of  an- 
other on  account  of  a  general  balance  due  from 
the  owner."  Of  course  where  a  general  lien 
exists  a  particular  lien  is  included.  A  partic- 
ular lien  is  the  right  to  retain  the  property  of 
another  on  account  of  labor  employed  or 
money  expended  on  that  specific  property."* 
Particular  liens  constitute  the  oldest  class  of 
liens,  and  the  one  most  favored  by  the  common 
law.*  But  the  courts  ceased  to  originate  liens 
at  an  early  period,'  while  general  liens  have 
been  looked  upon  with  jealousy,  being  con- 
sidered encroachments  upon  the  common  law, 
and  founded  solely  in  the  usage  of  and  for  the 
benefit  of  trade.  In  cases  of  a  factor  an  ap 
parent  exception  exists,  as  he  is  allowed  a  lien 
on  the  proceeds  of  the  goods  sold,  as  well  as 
on  the  goods  themselves.  But  this  seems  to 
result  from  the  relation  of  the  parties  and  the 
purposes  of  the  bailment ;  to  effectuate  which, 
and  at  the  wame  time  to  give  a  security  to  the 
factor,  the  law  considers  the  possession,  or 
right  to  possession,  of  the  proceeds  the  san'kc 
thing  as  rhe  possession  of  the  goods  themselves. 
Liens  either  exist  by  law,  arise  from  usage,  or 
are  created  by  express  agreement. 

Common  Law  Liens. 

Liens  which  exist  by  the  common  law  gen- 
erally arise  in  cases  of  bailment.  Thus,  a  par- 
ticular lien  exists  whenever  goods  are  delivered 
to  a  tradesman  for  the  execution  of  the  pur- 
poses of  his  trade  upon  them.*  And  so,  where 
a  person  is,  from  the  nature  of  his  occupation, 

6  East.  25,  n.  x-2  Campb.  579.  a-Met.  Yelv.  67,  n  r 
b-i  Parsons'  Mar.  L.  144  ;  (2)  Whitaker  Liens.  9  »  ( 
Burr.  2221  ;  Dougl  97;  9  B.  &  P.  126.  d-i  B.is  f  " 
494-      e-9  East.  426.      f-3  Bos.  &  P.  42,  26.  404  < 

Atk.  Ch  228;  2  RollcAbr.  92;  3  M.&S.  167.  14  i  >.k 
332;  7  Barb,  113. 


LIENS. 


53$ 


under  a  legal  obligation  to  receive  and  be  at 
trouble  or  expense  about  the  personal  property 
of  another,  in  every  such  case  he  is  entitled  to 
a  particular  lien  upon  it.""  And  sometimes  a 
lien  arises  where  there  is  strictly  no  bailment: 
thus,  where  a  ship  or  goods  at  sea  come  into 
possession  by  finding,  and  he  has  been  at  some 
trouble  or  expense  about  them,  he  is  entitled  to 
retain  the  same  until  reimbursed  his  expenses. 
This  applies  only  to  the  salvors  of  a  ship  and 
cargo  preserved  from  peril  at  sea,'  and  in  case 
of  property  on  shore,  where  a  specific  reward 
is  offered  for  the  restoration, J  and  does  not  ap- 
ply, generally,  it  is  said,  to  things  found  upon 
land,*  unless  so  made  by  custom  or  statute. 

Liens  which  arise  by  usage  are  usually  gen- 
eral liens,  and  the  usage  is  either  the  general 
usage  of  trade,  or  the  particular  usage  of 
parties.*  The  usage  must  be  so  general  that 
the  party  delivering  the  goods  may  be  presumed 
to  have  known  it,  and  to  have  made  the  right 
of  lien  a  part  of  the  contract.™  And  the  lien 
must  be  for  a  general  balance  arising  from 
transactions  of  a  similar  character  between  the 
parties,  and  that  the  debt  must  have  accrued  in 
the  business  of  the  party  claiming  the  lien," 
and  it  seems  that  more  decisive  proof  of  gen- 
eral usage  is  required  in  those  occupations  in 
which  the  workmen  are  required  to  receive 
their  employment  when  offered  them,  such 
as  carriers. °  But  where  a  general  lien  has 
been  once  established,  the  courts  will  not  allow 
it  to  be  disturbed. P 

In  regard  to  a  general  lien  arising  from  par- 
ticular usage  between  the  parties,  proof  of  their 
having  before  dealt  upon  the  basis  of  such  a 
lien  will  be  presumptive  evidence  that  they 
continue  to  deal  upon  the  same  terms. i  If  a 
debtor,  who  has  already  pledged  property  to 
secure  a  loan,  borrow  a  further  sum,  it  will  be 
understood  that  the  creditor's  lien  is  for  the 
whole  debt.'" 

Liens  which  arise  from  Express  Agreement. 
A  general  or  particular  lien  may  be  acquired  in 
any  case  by  the  express  agreement  of  the  parties." 
This  generally  happens  when  goods  are  placed 
in  the  hands  of  a  person  for  the  execution  of 
some  particular  purpose  upon  them,  with  an 
express  contract  that  they  shall  be  considered 
as  a  pledge  for  the  labor  or  expense  which  the 
execution  of  that  purpose  may  occasion;  or  it 
exists  where  the  property  is  merely  pawned  or 

tl-i  Esp  109;  Ld.Raym.  867;  6T  R.  17;  3  B.  & 
P.  42.  l-i  Ld.  Raym.  39-! ;  5  Burr.  2732;  8  East.  57; 
16  Penn  St  393.  j-8  Gill.  218  ;  3  Met.  (Mass.)  352. 
k-2  H  Bl  254;  2  W  Bl.  1117.  I-Whitaker  Liens,  31. 
111-3  B  &  P.  50.  n-Whitaker  Liens,  33;  and  see  i 
Atk  Ch  223,  I  W.  Bl.  651.  0-6  T.  R.  14;  6  East. 
519;  7  Id  224  p-i  Esp  109:  3  Id.  31.  q-i  Atk.  Ch. 
23s;  6T  R.  19  r-2Vern  Ch  691.  s-Cro.  Car.  271 ; 
6T.  R  14.  t-Whi taker  Liens,  27.  n-6  T.  R.  14  ;  3 
Bos  &  P.  4  v-6  T.  R  14  w-Cro  Car.  271.  Nor 
a  hvery  stable  keeper  2  Ld.  Raym.  866:  6  East.  509  ; 
35  Me.  153,  in  the  absence  of  a  statute  allowing  it.  23 
Penn.  St.  193  x-t2  Wend  261  ;  2  Aik.  162  :  14  Vt. 
485;  II  N.  H.  163;  II  Miss.  225;  see  13  Ohio,  167. 
y-20  Pick.  250:  2  Met.  (Mass.)  458;  10  Barb.  67;  4 
Sandf.  661  ;  Wright,  485  ;  30  Me.  152  ;  15  Vt.  544  ;  Con- 
tra. 7  Penn.  St.  376.  z-Met.  Yelv.  67,y; ;  34  Me.  20; 
ai  N.  H   339;  22  Pick.  aio.     a-6  T.  R.  14;  3  Selw.  N. 


delivered  for  bare  custody  to  another,  for  the 
sole  purpose  of  being  a  security  for  a  loan 
made  to  the  owner  on  the  credit  of  it.*  And 
if  a  number  of  tradesmen,  not  obliged  by  law 
to  receive  the  goods  of  any  one  who  offers  for 
the  purposes  of  their  trade,  agree  not  to  receive 
goods  unless  they  may  be  held  subject  to  a  gen- 
eral lien  for  the  balance  due  them,  and  the 
bailor  knows  this,  and  leaves  the  goods,  the 
lien  attaches."  And  the  same  is  true,  of 
course,  of  an  individual  under  similar  circum- 
stances. But  where  the  tradesman  is  obliged 
to  receive  employment  from  any  one  who  offers, 
a  mere  notice  will  not  be  enough  to  give  this 
lien  with  implied  assent,  but  express  assent 
must  be  shown. ^ 

Liens  which  Exist  in  the  Absence  of  any 
Special  Agreement.  Among  the  different 
classes  who  have  liens  by  the  common  law,  in 
the  absence  of  any  special  agreement,  are : 
Agisters  of  cattle  have  no  lien.*  Attorneys 
and  solicitors  have  a  lien  upon  the  papers  of 
their  clients,'^  and  also  upon  judgments  ob- 
tained by  them.y  But  this  lien  is  subject  to 
some  restrictions.'  Bailies  for  hire  generally 
for  work  done  by  them."  Bankers  have  a  lien 
on  all  securities  left  with  them  by  their  em- 
ployers.* Clerks  of  courts  have  a  lien  on  papers 
for  their  fees."  Common  carriers  for  transpor- 
tation of  goods,^  but  not  if  the  goods  are  taken 
tortuously  from  the  owner's  possession,  where 
the  carrier  is  innocent,®  and  on  a  passenger  for 
his  passage-money.'  Part  of  the  goods  may 
be  detained  for  the  whole  freight  of  goods  be- 
longing to  the  same  person.*  Factors  and 
brokers  have  a  lien  on  goods  and  papers'*  on 
part  of  the  goods  for  the  whole  claim,'  but  only 
for  such  goods  as  come  to  them  as  factors.^ 
Innkeepers  may  detain  a  horse  for  his  keeping^ 
if  he  belong  to  a  guest,'  but  not  sell  him™  un- 
less authorized  by  statute,  and  then  in  the  ex- 
press mode  provided;  but  cannot  retake  the 
horse  after  giving  him  up.°  They  may  detain 
the  goods  of  a  traveler,  but  not  of  a  boarder.." 
Their  lien  is  a  particular  lien.P  Pawnees  from 
the  very  nature  of  their  contract,'  but  only 
where  the  pawner  (or  pledgor)  has  authority  to 
make  such  pledge.'  A  pledge,  even  where  the 
pawnee  is  innocent,  does  not  bind  the  owner, 
unless  the  pawner  has  authority  to  make  the 
pledge.'  The  pawnee  does  not  have  a  general 
lien.*     Tailors  have  a  particular  lien."     Ven- 

P.  1163;  4  T.  R.  260;  26  Miss.  182;  4  Wend.  292.  to- 
5T.  R.488;  I  Esp.  66;  3Gilm.(Va.)233;  i  How.  234. 
C-3  Atk.  Ch.  727;  I  P.  Wms.  460;  2  Ves.  Ch.  III.  d- 
I  Ld.  Raym.  752  ;  6  East.  519  ;  7  Id.  224;  1  Doiigl.  i ; 
Wright,  216;  24  Me.  339.  e-i  Dougl.  i  ;  2  Hall,  561 ; 
5  Cush.  137;  Contra.  6  East.  519;  6  Whart.  418.  1-a 
Campb.  631.  )Br-6  East.  622.  h-3  T.  R.  119;  1  Johns. 
Cas.437.«.,-  8Wheat.268;  28Vt.  118;  34  Me.  58?. 
i-6  East.  622  ;  34  Me.  582.  j-ii  Eng  L.  &  Eq.  528. 
It -2  Ld.  Raym.  366;  8  Mod.  173;  6  T.  R.  141.  l-ii 
Barb.  41.  ll»-F.  Moore,  876;  Bac.  Abr.  Jnm  (D.)  :  8 
Mod.  173.  11-8  Mod.  173;  Hob.  42;  Met.  Yelv.  67. 
0-8  Rich.  423.  p-9  East.  433  ;  Cro.  Car.  271  ;  2  E.  D. 
Smith,  195.  q-15  Mass.  408  :  2  Vt.  309  ;  9  Wend.  345  ; 
3  Mo.  219.  i'-3  Atk.  Ch.  44  ;  2  Campb.  336,  «.  s-Paley 
Ag.  151  ;  I  Vern.  Ch.  407;  2  Stark.  21 ;  i  Mas.  C.  C. 
440 ;  2  Mass.  398 ;  4  lohns.  103 ;  i  M.  &  S.  180.  t-15 
Mass.  490.     n-Cro.  Car.  271 ;  9  East.  43J. 

) 


i¥* 


LIENS. 


Jors  of  goods  have  a  lien  for  the  price  so  long 
as  they  retain  possession.'  Warehousemen 
have  a  particular  lien."     So  a  wharfinger.^ 

General  Requisites  of  a  Valid  Lien.  In  all 
these  cases,  to  give  rise  to  the  lien  there  must 
have  been  a  delivery  of  the  property;  it  must 
have  come  into  the  possession  of  the  party 
claiming  the  lien,  or  his  agent.'  A  question 
may  arise  by  whom  the  deliveiy  is  to  be  made. 
"Where  a  person,  in  pursuance  of  the  authority 
and  directions  of  the  owner  of  property,  de- 
livers it  to  a  tradesman  for  the  execution  of  the 
purposes  of  his  trade  upon  it,  the  tradesman 
will  not  have  a  general  lien  against  the  owner 
for  a  balance  due  from  the  person  delivering 
it,  if  he  knew  that  the  one  delivering  was  not 
the  real  owner.*  Thus,  a  carrier,  who,  by  the 
usage  of  trade,  is  to  be  paid  by  the  consignor, 
has  no  lien  for  a  general  balance  against  the 
consignee.*  Nor  can  a  claim  against  the  con- 
signee destroy  the  consignor's  right  of  stoppage 
in  transitu!"  But  a  particular  lien  may  un- 
doubtedly be  derived  through  the  acts  of  agents 
acting  within  the  scope  of  their  employment." 
And  the  same  would  be  true  of  a  general  lien 
against  the  owner  for  a  balance  due  from  him.* 

No  lien  exists  where  the  party  claiming  it 
acquires  possession  by  wrong^  or  by  misrepre- 
sentation,'or  by  his  unauthorized  and  voluntary 
act.«  No  lien  exists  where  the  act  of  the  ser- 
vant or  agent  delivering  the  property  is  totally 
unauthorized,  and  the  pledge  of  it  is  tortious 
against  the  owner,  whether  delivered  as  a 
pledge  or  for  the  execution  of  the  purposes  of  a 
trade  thereupon.''  A  pledge,  even  when  the 
pawnee  is  innocent,  does  not  bind  the  owner 
unless  the  pawner  had  authority.' 

A  delivery  by  a  debtor  for  the  purpose  of 
preferring  a  creditor  will  not  be  allowed  to 
operate  as  a  delivery  sufficient  for  a  lien  to 
attach.^ 

Waiver  of  Lien.  Possession  is  a  necessary 
element  of  common  law  liens;  and  if  the  credi- 
tor once  knowingly  parts  with  that  possession 
after  the  lien  attaches,  the  lien  is  gone.*  But 
there  may  be  a  special  agreement  extending 
the  lien,  though  not  to  affect  third  persons.* 
The  delivery  may  be  constructive"  and  so  may 
possession."  A  lien  cannot  be  transferred,"  but 
property  subject  to  a  lien  may  be  delivered  to 
a  third  person,  as  to  the  creditor's  servant  with 
notice  of  the  lien,  so  as  to  preserve  the  lien  of 

V-yEast.  574;  I  H.  BI.  363  ;  Hob.  41  ;  2  Bl.  Comm. 
448  ;  2  Swaiist.  661  :  6  McLean  C.  C.  472.  ir-i8  III. 
286:  34  Eng.  L.  &  Eq.  116;  31  Miss.  261 ;  13  Ark.  437. 
X-Ware  Dist.  Ct.  354.  y-3  T.  R.  119;  6  East.  25,  «. 
«-i  East.  335 ;  2  Id.  523  ;  2  Campb.  218  ;  Parke  Cas. 
176;  2  Atk.  Ch.  114.  a-sB.  &P.  64.  b-sB.  &P.  42. 
e-9  East.  233  ;  3  B.  &  P.  119  ;  3  Esp.  182  ;  2  East.  237. 
fl-Whitaker  Liens,  39.  e-2  T.  R.  485.  f-i  Campb.  12. 
g-i  Sir.  651 ;  8  T.  R.  310,  610 ;  2  H.  Bl.  254 :  3  W.  Bl. 
:ii7  ;  butsee  4  Burr.  2218.  h-sVes.  Ch.  iii ;  6&ast.  17; 
4  Esp.  174  :  5  T.  R.  604.  1-Paley  Ag.  151  ;  i  Vern.  Ch. 
407  ;  2  Stark.  21  ;  i  Mas.  C.  C.  440 ;  2  Mass.  398 ;  4  Johns. 
103 ;  I  M.  &  S.  140.  j-4  Burr.  2239  ;  3  Ves.  Ch.  85  ;  2 
Campb.  579;  II  East.' 256.  It-Str.  556;  i  Atk.  Ch. 
254;  Ambl.  252  ;  Dougl.Qj;  5  Ohio,  88;  6  East.  25,  «.  ; 
7  Id.  5 ;  3  T.  R.  119 ;  2  Edw.  Ch.  181  ;  5  Binn.  398  ;  3 
Am.  L.  Jour.  128  ;  4  N.  Y.  497 ;  4  Denio,  498  ;  4a  Me. 
50;    II  Cush.  231;    2  Swanst.  561;    23  Vt.  217.      I-36 


the  original  creditor.!*  But  it  must  not  be  d© 
livered  to  the  owner  or  his  agent.i  But  if  the 
property  be  of  a  perishable  nature,  possession 
may  be  given  to  the  owner  under  proper  agree- 
ments.' Neglect  to  insist  upon  a  lien  in  giving 
reasons  for  a  refusal  to  deliver  property  on  de- 
mand, has  been  held  a  waiver.* 

Where  there  is  a  special  agreement  made,  or 
act  done,  inconsistent  with  the  existence  of  the 
lien,  such  as  an  agreement  to  give  credit,  or 
where  a  distinct  security  is  taken,  or  the  pos- 
session of  the  property  is  acquired  for  another 
distinct  purpose,  and  for  that  only,  or  where 
the  property  is  attached  by  the  creditor,  no 
lien  arises.'  But  such  agreement  must  be 
clearly  inconsistent  with  the  lien." 

Rights,  Uses,  and  Remedies  under  a  Lien. 
The  only  remedy  or  use  of  the  lien  at  common 
law  is  to  allow  the  creditor  to  retain  possession 
of  the  goods,'  etc.  And  this  he  may  do  as 
against  assignees  of  the  debtor.'^ 

Maritime  liens  do  not  include  or  require 
possession.  The  word  lien  is  used  in  maritime 
law,  not  in  the  strict  legal  sense  in  which  we 
understand  it  in  courts  of  common  law,  in 
which  case  there  could  be  no  lien  where  there 
was  no  possession,  actual  or  constructive ;  but 
to  express,  as  if  by  analogy,  the  nature  of  claims 
which  neither  presuppose  nor  originate  in  pos- 
session.* A  distinction  is  made  in  the  United 
States  between  qualified  maritime  liens,  which 
depend  upon  possession,  and  absolute  maritime 
liens,  which  do  not  require  nor  depend  upon 
possession. *• 

Builders^  lien  may  be  placed  on  the  common- 
law  ground  that  a  workman  employing  skill 
and  labor  on  an  article  has  a  lien  upon  it  ;•  and 
a  lien  for  the  purpose  of  finishing  the  ship 
where  payments  are  made  by  instalments.*  See 
Material  Men,  below. 

Collision.  In  case  of  collision  the  injured 
vessel  has  a  lien  upon  the  one  in  fault  for  the 
damage  done;"  and  the  lien  lasts  a  reasonable 
time.' 

Deposit  of  a  bill  of  lading  gives  a  lien  for 
the  amount  advanced  on  the  strength  of  the 
security .8    See  Part-owner,  below. 

Dead  Freight.  No  lien  exists  for  dead 
freight.''  The  lien  attaches  only  for  freight 
earned.*  The  lien  is  lost  by  a  delivery  of  the 
goods,!  but  not  if  the  delivery  be  involuntary. 

Wend.  467.  m-AmbL  252.  11-5  Ga.  153.  0-8  Pick. 
73.  p-2  East.  529  ;  7  Id.  5.  q-Whitaker  Liens,  71,  «. / 
2  East.  529  ;  4  Johns.  103.  r-i  Atk.  Ch.  235;  8  T.  R. 
199.  8-1  Campb.  410,  ».  ;  7  Ind.  21  ;  13  Ark.  437;  2 
Blackf.  465.  t-i6  Ves.  Ch.  275;  4  Campb.  146;  2 
Marsh.  339  ;  3  Anstr.  881  :  5  M.  &  S.  180;  Met.  Yelv. 
67,  c.  ;  8  N.  H.  441 ;  17  Pick.  140 ;  15  Mass  389  :  4  Vt. 
549.  n-i  Dutch.  443  ;  32  Me.  319.  v-33  Me.  438  :  i 
Mas.  C.  C.  319.  •9l-\  Burr.  489.  a-22  Eng.  L.  &  Elq. 
62  ;  see  15  Bost.  Law  Rep.  555  ;  16  Id.  1,  264  ;  17  Id. 
93,  421.  b-7  How.  729.  C-2  Rose,  91  ;  4  Barnew.  & 
Aid.  341  ;  I  W.  Rob.  Adm.  i  ;  Wright  Ohio,  660;  4 
Wheat.  438  ;  i  Stor.  C.  C.  68.  d-i  Parsons'  Mar.  Law, 
75  ;  5  Barnew.  &  Aid.  942.  e-i  Notes  of  Cases,  508; 
22  Eng.  L.  &  Eq.  62  ;  Crabb,  580;  10  Law  Rep.  264. 
f-18  Bost.  Law  Rep.  91.  g-s  Taunt.  558 ;  2  Wash.  C. 
0.283.  h-is  East.  547;  3  Maule  &  S.  205.  1-j 
Maule  &  S.  205  ;  Ware  Dist.  Ct.  149 ;  2  Br«v.  No.  C 
233.    j-6  Hill  N.  Y.  43. 


LIENS. 


S4J 


ot  procured  by  fraud.*"  So  it  is  by  stipulations 
inconsistent  with  its  exercise,'  as  by  an  agree- 
ment to  receive  the  freight  at  a  day  subsequent 
to  the  entire  delivery  of  the  goods — a  distinc- 
tion being,  however,  taken  between  the  unload- 
ing or  arrival  of  the  ship,  and  the  delivery  of 
the  goods." 

A  third  person  cannot  take  advantage  of  the 
existence  of  such  lien."  A  vendor,  before  ex- 
ercising right  of  stoppage  in  transitu,  must  dis- 
charge this  lien  by  payment  of  freight." 

Master's  Lien.  In  England,  the  master  has 
no  lien,  at  common  law,  on  the  ship  for  wages, 
■nor  disbursements.? 

But,  by  the  one  hundred  and  ninety-first 
section  of  the  English  Merchant  Shipping  Act 
of  1854,  it  is  provided  that  "  Every  master 
of  a  ship  shall,  so  far  as  the  case  permits,  have 
the  same  rights,  liens,  and  remedies  for  the 
amount  of  his  wages,  which,  by  this  act,  or  any 
law  or  custom,  any  seaman,  not  being  a  master, 
has  for  the  money  of  his  wages."  This  lien  of 
the  master  on  an  English  vessel  may  be  rein- 
forced in  the  admiralty  courts  of  the  United 
States.* 

In  the  United  States,  he  has  no  lien  for  his 
wages.'  This  does  not  apply  to  one  not  master 
in  fact.*  As  to  lien  for  disbursements.*  He 
maybe  substituted  if  he  discharge  a  lien."  But 
he  has  a  lien  on  the  freight  for  disbursements  ;^ 
for  wages  in  a  peculiar  case  ;■*  and  on  the  cargo, 
where  it  belongs  to  the  ship-owners.*  He  may, 
therefore,  detain  goods  against  the  shipper  or 
consignee,  even  after  payment  to  owner,  if  the 
master  give  reasonable  notice.^  The  master  may 
retain  goods  till  a  contribution  bond  is  signed.* 

Material  men  have  a  lien  by  admiralty  law. 
They  are  those  whose  trade  it  is  to  build,  re- 
pair, or  equip  ships,  or  to  furnish  them  with 
tackle  and  provisions  necessary  in  any  kind.* 
In  regard  to  foreign  ships,  it  has  been  lately 
held  that  material  men  have  a  lien  on  the  ship 
only  when  the  supplies  were  necessary,  and 
could  be  obtained  only  on  the  credit  of  the 
ship.*"  The  lien  for  repairs  continues  only  as 
long  as  they  retain  possession,  on  domestic 
ships ;'  and  is  gone  if  possession  is  left.^ 

te-6  Hill  N.  Y.  43.  I-17  How.  53  ;  10  Conn.  104 ;  6 
Pick.  Mass.  248;  4  Barnew.  &  Aid.  50;  4  Mann.  &  G. 
502  ;  4  Bingh.  729  :  3  Barnew.  &  Aid.  497;  32  Eng.  L. 
&  Eq.  210.  m-Sumn.  C.  C.  551 ;  18  Johns.  N.  Y.  157  ; 
14  Mees.  &  W.  Exch.  794  ;  2  Sumn.  C.  C.  589  ;  5  Maule 
&  S.  180;  10  Mass.  510.  11-3  East.  85.  o-i  Parsons' 
Mar.  L.  3S0  ;  15  Me.  314 ;  3  Bos.  &  P.  42.  p-9  East. 
426;  33  Eng.  L.  &  Eq.  600;  i  Barnew.  &  Aid.  575:  5 
i)owl.  &  R.  552;  6  How.  112.  q-22  Bost.  Law  Rep. 
150.  r-2  Paine  C.  C.  201  ;  8  Scrg.  &  R.  Penn.  18:  i 
Pet.  Adm.  223;  11  Id.  175;  3  Mas.  C.  C.  91  ;  14  Penn. 
St.  34;  18  Pick.  Mass.  530.  8-Bee.  Adm.  198.  t-2 
Curt.  C.  C.  427:  14  Penn.  St.  34;  11  Pet.  175.  n-t 
Pet.  Adm.  223:  Bee,  Adm.  116;  3  Mas.  C.  C.  255.  v- 
4  Mass.  91  ;  11  Id.  72  ;  5  Wend.  N.  Y.  315;  18  Pick. 
N.  Y.  530  w-Ware,  149.  x-14  Me.  180.  y-ii  Mass. 
72  ;  5  Wend.  N.  Y.  315  ;  4  Esp.  22  ;  but  see  5  Dowl.  & 
R.  552.  «-ii  Johns.  N.  Y.  23:  2  Sandf.  N.  Y.  55  ;  11 
Me.  150;  13  Id.  357.  a-3  Hagg.  Adm.  129.  b-19  How. 
359.  c-Wright,  Ohio,  660 ;  4  Wheat.  438  :  i  Stor.  C. 
ij.  68.  d-14  Conn.  404  ;  4  Wheat.  438  ;  4  Wash.  C.  C. 
453  ;  I  Parsons'  Mar.  Law,  492,  n.  ;  «nd  se«  \  11.  e- 
See  Day.  Dist.  Ct.  199  ;  Ware  Dist.  Ct.  2d  ed'.  565 ;  3 
Curt.  C.  C.  421.  f-7  Pet.  524;  I  Wall,  Jr.  358;  13 
B*U.  Law  R-p.  183.    g-3o  How.  393.    Ii-si  Id.  4, 248. 


The  several  States  of  the  United  States  are 
foreign  to  each  other  in  this  respect. 

As  to  the  order  of  precedence  of  these  liens.* 
Admiralty  formerly  took  jurisdiction  of  such 
liens,  though  not  strictly  maritime  liens;'  but 
this  jurisdiction  is  now  questioned,'  if  not  de- 
nied.'' 

Giving  credit  will  not  be  a  waiver  of  a  lien 
on  a  foreign  ship,  unless  so  given  as  to  be  in- 
consistent with  the  exercise  of  the  lien.'  See 
Builders,  etc.,  above. 

Owner  of  a  ship  has  a  lien  on  the  cargo  car- 
ried for  freight  earned,  whether  reserved  by  a 
bill  of  lading  or  not.i 

This  lien  is,  at  most,  only  a  qualified  mari- 
time lien.''  The  lien  exists  in  case  of  a  char- 
tered ship'  to  the  extent  of  the  freight  due 
under  the  bill  of  lading.™  But  if  the  charterer 
takes  possession  and  management  of  the  ship, 
he  has  the  lien."  No  lien  for  freight  attaches 
before  the  ship  has  broken  ground."  But  see, 
as  to  the  damages  for  removing  goods  from  the 
ship  before  she  sails. p 

A  part-owner,  merely  as  such,  has  no  lien 
whatever,  but  acquires  such  a  lien  when  any 
of  the  elements  of  partnership  or  agency,  with 
bailment  upon  which  his  lien  may  rest,  enter 
into  his  relation  with  the  other  part-owners.* 

A  part-owner  who  h.is  advanced  more  than 
his  share  towards  building  a  vessel  has  no  lien 
on  her  for  such  surplus,'  and  none,  it  is  said, 
for  advances  on  account  of  a  voyage.* 

That  the  relation  of  partners  must  exist  to 
give  the  lien.* 

And  part-owners  of  a  ship  may  become  part- 
ners for  a  particular  venture." 

The  liens  of  part-owners  and  by  deposit 
of  a  bill  of  lading  are  not  maritime  liens, 
however,  and  xould  not  be  enforced  in  ad- 
miralty. 

Partners.  See  PART-OWNERS,  above; 
Ship's  Husband,  below. 

Seamen's  lien  for  wages  attaches  to  the  ship 
and  freight,  and  the  proceeds  of  both,  and  fol- 
lows them  into  whosoever  hands  they  come  ;^ 
and  lies  against  a  part,  or  the  whole,  of  the 
fund;^  but  not  the  cargo.*     It  applies  to  pro- 

i-7  Pet.  324  ;  1  Sumn.  C.  C.  73  ;  5  Sandf.  N.  Y.  342.  J- 
12  Mod.  447;  6  East.  622 :  4Campb.  298;  7  Taunt.  14; 
4  Barnew.  &  Aid.  630;  2  Brod.  &  B.  4:0 ;  4  Mass.  91  ; 
6  Pick.  Mass.  248;  18  Johns.  N.  Y.  157;  5  Wend.  N. 
Y.  315  ;  5  Sandf.  N.  Y.  97  ;  5  Ohio,  88 ;  4  Wash.  C.  C. 
110;  8  Wheat.  605  ;  Ware  Dist.  Ct.  149  ;  i  Sumn.  C.  C. 
551;  aid.  589;  2  Woodb.  &  M.  C.  C.  151.  k-See  i 
Parsons'  Mar.  Law,  143,  n.  I-4  Cow.  N.  Y.  470;  i 
Paine  C.  C.  358;  4  Barnew.  &  Aid.  630;  20  Bost.  Law 
Rep.  669;  8  Wheat.  605.  in-2  Atk.  Ch.  621 ;  i  Barnew. 
&  Aid.  712;  4  Id.  630:  I  Sumn.  C.  C.  551.  n-i  Cowp. 
143  ;  8  Cranch,  39  :  6  Pick.  Mass.  248  :  4  Cow.  N.  Y. 
470;  Ware  Dist.  Ct.  149  ;  4  Mann.  &  G.  502  ;  26  Eng 
L.  &  Eq.  136.  o-i  Bos.  &  P.  634 ;  5  Binn.  Penn.  392 ; 
3  Gray  Mass.  92.  p-28  Eng.  L.  &  Eq.  210;  1  C.  B. 
328  ;  2  Carr.  &  P.  334 ;  19  Bost.  Law  Rep.  579  ;  2  Gray 
Mass.  92.  q-i  Parsons'  Mar.  Law.  103.  r-6  Pick. 
Mass.  46.  8-4  Pick.  Mass.  4s6;  7  Bingn.  709.  t-'Jo 
Johns.  N.  Y.  61 ;  4  B.  Monr.  Ky.  458;  8  Barnew.  &  C. 
612  ;  Gilp.  Dist.  Ct.  467  ;  4  Johns.  Ch.  N.  Y.  522  :  6 
Pick.  Mass.  120  ;  5  Mann.  &  R.  25.  H-i  Ves.  Sen.  Ch. 
497 ;  3  Woodb.  &  M.  C.  C.  193 ;  10  Mo.  701 ;  9  Pick. 
Mass.  334  ;  but  see  14  Penn.  St.  34.  v-2  Sumn.  C.  C 
443  ;  2  Parsons'  Mar.  L.  579.  W-3  Sumn.  C.  C.  51^ 
286.    at-5  Pet.  675. 


54a 


LIENS— LOSS. 


ceeds  of  a  vessel  sold  under  attachment  of  a 
State  court.y 

This  lien  of  a  seaman  is  of  the  natire  of  the 
frivilegium  of  the  civil  law,  does  not  depend 
upon  possession,  and  takes  precedence  of  a 
bottomry  bond  or  hypothecation.*  Taking  the 
master's  order  does  not  destroy  the  lien.»  Fish- 
ermen on  shares  have  it,  by  statute.  Generally, 
all  persons  serving  in  a  way  directly  and  mate- 
rially useful  to  the  navigation  of  the  vessel.'* 
A  woman  has  it  if  she  performs  seaman's  ser- 
vice.* It  lies  against  ships  owned  by  private 
persons,  but  not  against  government  ships  em- 
ployed in  the  public  service.^ 

A  ship-broker,  who  obtains  a  crew,  has  been 
held  to  have  a  lien  for  his  services,  and  ad- 
vances for  their  wages.* 

Shipper  of  goods  has  a  lien  upon  the  ship,  for 
the  value  of  the  goods  sent,  which  can  be  en- 
forced in  admiralty;'  and,  generally,  every  act 
of  the  master  binds  the  vessel,  if  it  be  done 
within  the  scope  of  his  authority ,8  where  the 
possession  of  the  master  is  not  tortious,  but  un- 
der a  color  of  right.*'  This  does  not  apply  to 
contracts  of  material  men  with  the  master  of  a 
domestic  ship;*  and  the  act  must  have  been 
within  the  scope  of  the  master's  employment.J 
This  lien  follows  the  ship  even  in  the  hands  of 
a  purchaser,  without  notice  before  the  creditor 
has  had  a  reasonable  opportunity  to  enforce  his 
lien.*  If  the  master  borrow  money  for  the 
ship's  necessity,  the  lender  has  a  lien  on  the 
ship  for  the  amount.* 

The  ship's  husband,  if  a  partner,  has  a  part- 
ner's lien ;  if  not,  he  may  have  a  lien  in  the 
proceeds  of  the  voyage  ;■"  or  of  the  ship  herself, 
if  sold,  or  on  her  documents,  if  any  of  these 
have  come  into  his  actual  possession.  And  the 
lien  applies  to  all  disbursements  and  liabilities 
for  the  ship.  But  it  is  doubtful  if  his  mere 
office  gives  him  a  lien." 

Stevedores  have  no  lien.° 

Statutory  Liens.  The  principal  liens  of 
this  class  are  judgment  liens,  and  the  liens  of 
builders  and  material  men. 

At  common  law  a  judgment  is  a  lien  upon 
real  property  from  the  time  of  its  rendition. p 
A  judgment  is  sometimes,  though  very  rarely, 
a  lien  upon  personal  property. 

Mechanics  and  material  men  in  most  of  the 
States  have  a  lien  upon  the  properly  on  which 
they  bestow  their  labor,  or  contribute  materials 
for  repairs,  or  in  the  erection  of  buildings,  etc. 

See  General  Statutes, 

y-2  Wall  C.  C.  592,  overruling  i  Newb.  Adm.  215. 
E-s  Parsons'  Mar.  Law,  581,  and  cases  cited ;  15  Bost. 
Law  Rep.  555;  16  Id.  264  ;  Ware  Dist.  Ct.  134.  a- 
Ware  Dist.  Ct.  185  ;  and  see  2  Hagg.  Adm.  136.  I>- 
Gilp.  Adm.  "jos;  2  Ventr.  181  ;  3  Hagg.  Adm.  376;  2 
Pet.  Adm.  268 ;  Ware  Dist.  Ct.  83  ;  i  Blatchf.  &  H. 
Adm.  423  :  I  Sumn.  C.  C.  384  ;  i  Ld.  Raym.  397;  2 
Strange,  858.  c-t  Hagg.  Adm.  187  ;  18  Bost.  Law  Rep. 
672  ;  I  Newb.  Adm.  5.  d-9  Wheat.  409;  3  Sumn.  C. 
C.  308.  e-i  Blatchf  &  H.  Adm.  189.  f-i  Blatchf.  & 
H.  Adm.  300;  Olcott  Adm.  43  ;  i  Blatchf.  C.  C.  173; 
Ware  Dist.  Ct.  188  ;  i  Sumn.  C.  C.  551  ;  12  How.  y2. 
g'-iy  Me  147  ;  i  W.  Rob.  Adm.  392  ;  2  Eng.  L.  &  Eq. 
536;  18  How.  182  ;  19  Id.  22.  I1-6  McLean  C.  C.  484. 
i-i  Conkling  Adm.  j-i8  How.  182;  see  Crabb,  23  ;  i 
C-  Rob.  Adm.  391-406.      fc-Ware  Dist.  Ct.  188.      I-3 


Ufe  AHHnrance.  See  Tmsura/<c8. 
IjiiiiitHtioiiN.  See  Practice. 
IjIiioh  ami  t'strrlcrs.  See  Conveyancbs. 
liiq II  i dated  UainagreM.  See  Dam ag vs. 
lifqiiidittioii.  See  Payment. 
Liilerary  Property.  See  Copyright. 

liOail.   See   B.\ILMENTS. 

I.iOcal  Ktatutes.  See  Law. 
liOcativc  Calls.  See  Conveyances. 
I..od^or.    See  Bailments;    "Inns,"    LANCLORa 
AND  Tenant. 

I..OSS.  See  Insurance. 
LOST  PAPERS. 

When  agreements,  conveyances,  deeds, 
WILLS,  and  the  like  have  been  lost,  and  it  is 
desired  to  prove  their  contents,  the  party  must 
prove  that  he  has  made  diligent  search,  and  in 
good  faith  exhausted  all  sources  of  information 
accessible  to  him.  For  this  purpose  his  own 
affidavit  is  sufficient.*  On  being  satisfied  of 
this,  the  court  will  allow  secondary  evidence 
to  be  given  of  its  contents.  Even  a  will 
proved  to  be  lost  may  be  admitted  to  probate 
upon  secondary  evidence.''  But  the  fact  of  the 
loss  must  be  proved  by  the  clearest  evidence, 
because  it  may  have  been  destroyed  by  the 
testator  with  an  intention  to  revoke." 

When  a  bond  or  other  deed  was  lost, 
formerly  the  obligee  or  plaintiff  was  compelled 
to  go  into  equity  to  seek  relief,*  but  now  the 
loss  of  any  paper  other  than  a  negotiable  note 
will  not  prevent  the  plaintiff  recovering  at  law 
as  well  as  in  equity.* 

When  a  negotiable  note  has  been  lost, 
the  claimant  must  tender  an  indemnity  to  the 
debtor,  and  file  his  petition  or  complaint  to 
compel  payment.' 

LOST  PROPERTY. 

Rights  and  Duties  of  a  Finder.  The 
finder  is  entitled  to  certain  rights,  and  liable  to 
duties  which  he  is  obliged  to  perform.  This  is 
a  species  of  deposit,  which,  as  it  does  not  arise 
ex  contractu,  may  be  called  a  quasi  deposit, 
and  it  is  governed  by  the  same  general  rules  as 
common  deposits.  The  finder  is  required  to 
take  the  same  reasonable  care  of  the  property 
found  as  any  voluntary  depositary  ex  contractu.* 

The  finder  is  not  bound  to  take  the  goods  he 
finds,  yet  when  he  does  undertake  the  custody, 
he  is  required  to  exercise  reasonable  diligence 
in  preserving  the  property,  and  he  will  be 
responsible  for  gross  negligence.  On  the  other 
hand,  the  finder  of  an  article  is  entitled  to  re. 
cover  all  expenses  which  have  necessarily 
occurred  in  preserving  the  thing  found  ;  as,  if 
a  man  were  to  find  an  animal,  he  would  be 
entitled  to  be  reimbursed  for  its  keeping,  for 

Yeates  Penn.  131 ;  4  Dall.  Penn.  225  ;  8  Me.  298.  m- 
8  Barnew.  &  C.  6t2 ;  16  Conn.  12,  23 ;  3  Woodb.  &  M. 
C.  C.  193.  n-i  Parsons'  Mar.  Law,  100;  2  Curt.  C.  C. 
427;  2  Ves.  &  R.  Ch.  Ir.  242  ;  Cowp.  469.  o-Olcott 
Adm.  120;  I  Wall,  Jr.  370.  p-Met.  Yelv.  67,  / .  ;  Siig- 
den  Vend.  306,  446.  a-i  Atk.  Ch.  446;  i  Grecnlf.  Ev. 
§  349-  b-i  Greenl.  Ev.  (2d  Ed.)  ?§  84,  509,  575  ;  2  Id.  J 
668.  C-8  Met.  Mass.  487;  2  Add.  Eccl.  223:  6  Wend. 
173;  I  Hagg.  Eccl.  115:  3  Pick.  67;  5  B.  Mon.  58;  2 
Curt.  Eccl.  913.  d-i  Chanc.  Cas.  77.  e-3Atk.  214;  i 
Ves.  Ch.  341 ;  5  Id.  235  ;  6  Id.  812  ;  7  Id.  19  ;  3  Ves.  & 
B.  Ch.  Ir.  54.  f-7  B.  &  C.  90  ;  Ry.  &  M.  90  ;  4  Taunt. 
602  ;  2  Ves.  Sr.  Ch.  317  :  16  Ves.  Ch.  430;  see  ante, 
Bailments,  Deposit.  a-Doctor  &  Stud.  Dial.  2  c,  38; 
3  Bulstr.  306,  312;  I  Rolle,  125. 


LOSS— marriage:  and  divorce. 


545 


advertising  in  a  reasonable  manner  that  he  had 
found  it,  and  to  any  reward  which  may  have 
i)een  offered  by  the  owner  for  the  recovery  of 
such  lost  thing.*  And  when  the  owner  does  not 
reclaim  the  goods  lost,  they  belong  to  the  finder.' 

Criminal  Responsibility  of  a  Finder. 
As  to  the  criminal  responsibility  of  a  finder, 
the  result  of  the  authorities  is  that  if  a  man 
finds  goods  that  have  been  actually  lost,  or  are 
reasonably  supposed  by  him  to  have  been  lost, 
and  appropriates  them,  with  intent  to  take  en- 
tire dominion  over  them,  really  believing  when 
he  takes  them  that  the  owner  cannot  be  found, 
it  is  not  larceny ;  but  if  he  takes  them  with  the 
like  intent,  though  lost,  or  reasonably  supposed 
to  be  lost,  but  reasonably  believing  that  the 
owner  can  be  found,  it  is  larceny.* 

Lncld  Intervals.  See  Medical  Law. 

liU^saS^-  See  Bailments,  "  Common  Carriers." 

Maf^nine.  See  Patents. 

magistrate.  See  Office  and  Officers. 

maintenance.  See  Contracts  ;  Criminal  Law. 

Slaker.  See  Bonds,  Notes,  and  Bili.s. 

Plalnractice.  See  Medical  Law. 

Malice.  See  Criminal  Law. 

malicious  Injury;  Miscblef;  Tres- 
pass ;  etc.  See  Criminal  Law. 

Managrer.  See  Corporations. 

mandamus.  See  Practice. 

mandate.  See  Bailments  ;  Practice. 

mania.  See  Medical  Law,  "  Insanity." 

manslanirliter.  See  Criminal  Law. 

manufacturer.  See  Patents. 

manuscript.  See  Copyrights. 

marine.  See  Insurance. 

marital.  See  Marriage. 

maritime  Contract.  See  Contracts. 

mARRIAGE  AND  DITORCE.  See  Con- 
tracts. 

Marriage  is  a  contract,  made  in  due  form 
of  law,  by  which  a  man  and  woman  recipro- 
cally engage  to  live  with  each  other  during 
their  joint  lives,  and  to  discharge  towards  each 
other  the  duties  imposed  by  law  on  the  relation 
of  husband  and  wife. 

CONTRACT    OF   MARRIAGE. 

The  marriage  contract  is  in  law  a  civil  con- 
tract, to  which  the  consent  of  the  parties  is 
essential.  The  marriage  relation  can  only  be 
entered  into,  maintained,  and  abrogated  as 
provided  by  law.  It  is  dissolved  by  death  or 
divorce.  A  marriage  which  is  valid  by  the 
laws  of  the  country  in  which  it  is  contracted  is 
valid  in  this  State.  To  make  a  valid  marriage 
the  parties  must  be  ivilling  to  contract,  able  to 
contract,  and  have   actually  contracted. 

All  persons  are  able  to  contract  marriage 
nnless  they  are  under  the  legal  age,  or  unless 
there  be  other  disability ;  the  age  of  consent  at 
common  law  is  fourteen  in  males  and  twelve 
in  females.'  When  a  person  under  this  age 
marries,  such  person  can,  when  he  or  she 
arrives  at  the  age  above  specified,  avoid  the 


b-Domat.  1,2,/.  9,  J.  2,  «.  a  :  see  Story  Bailm.  ?3S- 
C-i  Bl.  Comm.  296  :  3  Id.  9  ;  2  Kent.  Comm.  290.  The 
acquisition  of  treasure  by  the  finder  is  evidently  founded 


on  the  rule  that  what  belongs  to  none  naturally  becomes 
the  property  of  the  first  occupant ;  res  nullius  natural- 
iter  fit  pritni  occtipantis.  d-J  Denio  Cr.  Cas.  335- 
387  :  2  Id.  353  ;  2  Ben.  &  H.  Lead.  Cr.  Cas.  18  ;  Dearsl. 
Cr.  Cas.  s8o;  Bell  Cr.  Cas.  27;  2  Carr.  &  K.  841  :  6 
Cox  Cr.  Cas.  117 ;  7  M.  &  W.  623 ;  i  Hill,  94  ;  22  Conn. 
153.     a-Reeve;    Dom.  Rel.  336;    2  Kent  Comm.  (6th 


marriage,  or  such  person  or  both  may,  if  the 
other  is  of  legal  age,  confirm  it ;  if  either  of 
the  parties  is  under  seven,  the  marriage  is  void.* 

If  either  party  is  non  compos  mentis  or  in- 
sane,* or  has  a  husband  or  wife  living,*  the 
marriage  is  void.  Consanguinity  and  affinity 
within  the  rules  prescribed  by  law  render  the 
marriage  void. 

The  parties  must  each  be  willing  to  marry 
the  other.  If  either  party  acts  under  compul- 
sion, or  is  under  duress,  the  marriage  is  void- 
able.«  Where  one  of  the  parties  is  mistakea 
in  the  person  of  the  other,  this  requisite  is 
wanting;  but  a  mi.^take  as  to  the  qualities  or 
character  of  the  other  party  will  not  avoid  the 
marriage.'  If  the  apparent  willingness  is  pro- 
duced by  fraud,  the  marriage  will  be  valid 
until  set  aside  by  a  court  of  competent  jurisdic- 
tion, or  by  a  decree  of  divorce.*  Fraud  is 
sometimes  said  to  render  a  marriage  void,  but 
this  is  incorrect,  as  it  is  competent  for  the  party 
injured  to  waive  the  tort,  and  affirm  the  mar- 
riage. Impotency  in  one  of  the  parties  is 
sometimes  laid  down  as  rendering  the  marriage 
void,  as  being  a  species  of  fraud  on  the  other 
party ;  but  it  is  only  a  ground  for  annulling 
the  contract  by  a  court  or  for  a  divorce. 

The  parties  must  actually  make  a  contract 
of  marriage ;  the  form  and  requisites  are  here- 
inafter stated. 

At  common  law  no  particular  form  of  words 
or  ceremony  is  necessary;  mutual  assent  to  the 
relation  of  husband  and  wife  is  sufficient. 
Any  words  importing  a  previous  assent  to 
being  married  to  each  other  are  sufficient  evi- 
dence of  the  contract,  if  legally  consummated. 

Marriage  is  proved,  in  the  absence  of  a 
license  and  certificate  of  the  person  authorized 
to  perform  the  ceremony  or  proved  copies 
thereof,  from  the  subsequent  acknowledgment 
of  the  parties,  or  from  proof  of  cohabitation,  or 
of  general  reputation  resulting  from  the  con- 
duct of  the  parties.*  In  civil  cases  a  marriage 
can  generally  be  proved  by  showing  that  the 
parties  have  held  themselves  out  as  husband 
and  wife,  *nd  by  general  reputation  founded 
on  their  conduct.  There  is  an  exception, 
however,  in  the  case  of  such  civil  suits  as  are 
founded  on  the  marriage  relation,  such  as 
actions  for  the  seduction  of  the  wife,  where 
general  reputation  and  cohabitation  will  not  be 
sufficient.* 

The  civil  effects  of  marriage  are  the  fol- 
lowing : 

1.  It  confirms  all  matrimonial  agreement^ 
between  the  parties ; 

2.  It  creates  the  civil  affinity  which  each 
contracts  towards  the  relations  of  the  other ; 

Ed.)  78;  I  N.  Chip.  254;  10  Humph.  61;  i  Gray,  119; 
see  20  Ohio,  i.  b-i  Sharsw.  Bl.  Comm.  436,  and  noto 
9;  5  lied.  Eq.  487.  C-21  N.  H.  5a;  22  Id.  553;  4 
Johns.  Ch.  343.  d-4  Johns.  53;  22  Ala.  N.  S.  86;  i 
Salk.  120;  I  Sharsw.  Bl.  Comm.  438.  e-2  Hagg.  Cons. 
104,  246.  f-Poynter  Marr.  &  Div.  c.  9.  (f-s  Paige,  43. 
h-See  6  Binn.  405  ;  4  Johns.  52;  7  Wend.  47;  see  10 
N.  H.  388  ;  4  Burr.  2058  ;  i  How.  219,  234  ;  i  Gray, 
119;  2  Me.  102.  1-4  N.  Y.  230;  3  Bradf.  Surr.  369- 
373  ;  6  Conn.  446;  39  Me.  323;  14  N.  H.  450. 


544 


MARRIAGE  AND  DIVORCE. 


3.  The  wife  thereby  acquires  the  name  of 
her  husband ; 

4.  In  general  the  wife  follows  the  condition 
of  her  husband ; 

5.  The  wife  on  her  marriage  loses  herdomi- 
cil  and  acquires  that  of  her  husband ; 

6.  The  children  acquire  the  domicil  of 
their  father; 

7.  It  gives  the  children,  who  are  the  fruits 
of  the  marriage,  the  rights  of  kindred,  not 
only  of  the  father  and  mother,  but  all  their 
kin; 

8.  It  makes  all  the  issue  legitimate. 
Incestuous   marriages  are   those   prohibited 

by  the  law  of  nature.  They  are  generally 
prohibited  by  statute. 

The  marriage  ceremony  may  be  regarded 
either  as  a  civil  ceremony  or  a  religious  sacra- 
ment. 

Husband's  Obligations.  He  is  bound  to 
receive  his  wife  at  home,  and  should  furnish 
her  with  all  the  necessaries  and  conveniences 
which  his  fortune  enables  him  to  do,  and 
which  her  situation  requires ;  but  this  does  not 
include  such  luxuries  as,  according  to  her 
fancy,  she  deems  necessaries.  He  is  bound  to 
love  his  wife  and  to  bear  with  her  faults,  and, 
if  possible,  by  mild  means,  to  correct  them ; 
and  he  is  required  to  fulfil  towards  her  his 
marital  promise  of  fidelity,  and  can,  therefore, 
have  no  carnal  connection  with  any  other 
woman,  without  a  violation  of  his  obligations. 
As  he  is  bound  to  govern  his  house  properly, 
he  is  liable  for  its  misgovemment,  and  he  may 
be  punished  for  keeping  a  disorderly  house, 
even  where  his  wife  had  the  principal  agency, 
and  he  is  liable  for  her  torts,  unless  otherwise 
provided  by  statute. 

Rights.     Being  the  head  of  the  family, 

the  husband  has  a  right  to  establish  himself 
wherever  he  may  please,  and  in  this  he  cannot 
be  controlled  by  his  wife ;  he  may  manage  his 
aifairs  in  his  own  way,  buy  and  sell  all  kinds 
of  personal  property,  without  her  control,  and 
he  may  buy  any  real  estate  he  may  deem 
proper;  but  as  the  wife  acquires  a  right  in  the 
latter,  he  cannot  sell  it  discharged  of  her  in- 
terest, except  by  her  consent,  expressed  in  the 
manner  prescribed  by  the  laws  of  the  State 
where  such  lands  lie. 

Wife's  Obligations.  A  wife  is  under 
obligation  to  love,  honor,  and  obey  her  hus- 
band, and  is  bound  to  follow  him  wherever  in 
the  country  he  may  choose  to  go  and  establish 
himself,  provided  it  is  not,  for  other  causes, 
unreasonable.  She  is  under  obligation  to  be 
faithful  in  chastity  to  her  marriage  vow  .J 

Rights.     A  wife  has  a  right  to  the  love 

and  protecting  care  of  her  husband  ;  she  has  a 
right  to  share  his  bed  and  board ;  she  can  call 
upon  her  husband  to  provide  her  with  neces- 
sary food  and  clothing  according  to  her  posi- 
tion in  life,  and  if  he  neglects  or  refuses  to  do 

J-5  Marun  (N.  S.)6o.  k-Bishop  Marr.  &  Div.  g 
549.  1-6  Harr.  &  J.  485  ;  9  N  H  309  .  9  B.  Mon.  49  ; 
6  W.  &  S.  85.  m-i  Hagg  Ecd.  773 ;  i  Curt.  Eccl.  444  ; 
a  B.  Mon.  142;    2  Paige  Ch.  8;    11  Id.  66.      11-9  Mo. 


so,  she  can  procure  them  on  his  account.  A« 
to  her  rights,  on  decease  of  her  husband,  in 
real  estate,  etc.,  see  General  Statutes, 

Any  woman  who  shall  have  been  married 
out  of  this  Commonwealth,  if  her  husband 
afterward  become  a  resident  thereof,  enjoys  all 
the  rights  as  to  property,  which  she  may  have 
acquired  by  the  laws  of  any  other  State,  Terri- 
tory, or  country,  or  which  she  may  have  ac'. 
quired  by  virtue  of  any  marriage  contract  or 
settlement  made  out  of  this  State. 

DIVORCE  is  the  dissolution  or  partial 
suspension  by  law  of  the  marriage  relation. 
It  is  regulated  by  the  statutes  of  the  different 
States,  and  the  various  statutes  are  by  no 
means  uniform.  Divorces  are  allowed  for 
adultery,  cruelty,  desertion  for  a  specified 
period,  drunkenness  if  habitual,  and  other 
causes.  In  some  States  divorces  are  not  zV 
lowed,  are  allowed  for  adultery  only,  and  in 
others  for  any  of  the  above  or  other  causes. 
For  specific  information  recourse  must  be  had 
to  the  general  statutes  of  the  particular  State. 

Alimony.  Of  those  consequences  which 
result  from  the  direction  or  order  of  the  court, 
the  most  important  are — Alimony,  or  the  allow- 
ance which  a  husband,  by  order  of  court,  pays 
to  his  wife,  living  separate  from  him,  for  her 
maintenance.  The  allowance  may  be  for  her 
use  either  during  the  pendency  of  a  suit, — in 
which  case  it  is  called  alimony  pendente  lite, — 
or  after  its  termination,  called  permanent  ali- 
mony.'' Alimony  is  an  allowance,  not  a  sum 
of  money  nor  a  specific  proportion  of  the  hus- 
band's estate,  given  absolutely  to  the  wife ;  it  is 
a  continuous  allotment  of  sums  payable  at  reg- 
ular intervals  for  her  support  from  year  to 
year.*  AXimony  pendente  lite  is  granted  very 
much  as  a  matter  of  course,  unless  the  wife 
has  sufficient  separate  property,  upon  the  in- 
stitution of  a  suit,""  either  for  the  purpose  of 
obtaining  a  divorce  from  the  bonds  of  matri- 
mony ,">  a  sentence  of  nullity,  or  a  separation 
from  bed  and  board,"  and  whether  the  wife  be 
plaintiff  or  defendant ;  for  it  is  improper  for 
the  parties  to  live  in  matrimonial  cohabitation 
during  the  pendency  of  such  a  suit,  whatever 
may  be  its  result.P  and  therefore,  the  husband 
who  has  all  the  money,  and  the  wife  none,  is 
bound  to  furnish  her,  whether  plaintiff  or  de- 
fendant, with  means  to  defray  her  expenses  in 
the  suit;  otherwise  she  might  be  denied  jus- 
ticci  Alimony,  especially  permanent  alimony, 
pertains  rather  to  a  separation  from  bed  and 
board  than  to  a  divorce  from  the  bond  of  matri- 
mony. Indeed,  it  is  generally  allowed  in  the 
latter  case  only  in  pursuance  of  statutory  pro- 
visions.' It  is  provided  by  statute  in  several 
States  that,  in  case  of  divorce,  the  court  may 
order  the  husband  to  restore  to  the  wife,  when 
she  is  the  innocent  party,  and  sometimes  even 
when  she  is  not,  a  part  or  the  whole  of  the 
property  which  he  received  by  the  marriage. 


539;  18  Me.  308;  I  Band  Ch.  lor.  o-i  Edw.  Ch.  255. 
n-i  Sandf.  Ch.  483-  q-J  Barb.  146;  Walk.  Ch.  421 :  a 
Md.  Ch.  335,  393  ;  seei   lones  N.  C.  528  ;  Bishop  Marr. 


»-i  Sandf.  Ch.  483.     q-2  Barb.  146;  Walk.  Ch.  421 
Id.  Ch.  335,  393  ;  seei   lones  N.  C.  528  ;  Bisho{ 
&  t>-  ^2  569-590-    r-Bishop  Marr.  &  Div.  g  563. 


MAKklACJfi  AKD  DIVORCE. 


S4S 


In  some  cases,  also,  the  court  is  authorized  to 
divide  the  property  between  the  parties,  this 
being  a  substitute  for  the  allowance  of  alimony. 
For  further  particulars,  recourse  must  be  had 
to  the  statutes  in  question.' 

To  entitle  a  wife  to  permanent  alimony,  the 
following  conditions  are  requisite :  I.  Proof  of 
a  legal  and  valid  marriage."  2.  A  subsistence 
of  the  relation  of  husband  and  wife ;'  but  this 
requisite  is  not  generally  indispensable."  3. 
'The  wife  must  be  separated  from  the  bed  and 
l)oard  of  her  husband  by  judicial  decree,  as 
ivoluntary  separation,  for  whatever  cause,  is  in- 
sufficient. Permanent  alimony  must,  as  a  gen- 
eral rule,  be  awarded  by  the  same  decree  that 
grants  the  separation,  or  at  least  in  the  same 
suit,  for  it  is  not,  in  general,  competent  to  main- 
tain an  independent  or  subsequent  suit  for  that 
purpose.^  4.  The  wife  must  not  be  the  guilty 
party.* 

The  amount  to  be  awarded  for  alimony  de- 
pends upon  a  great  variety  of  considerations, 
and  is  governed  by  no  fixed  rules.*  The 
ability  of  the  husband  is  a  circumstance  of 
more  importance  than  the  necessity  of  the  wife, 
especially  in  respect  to  permanent  alimony; 
and  in  estimating  his  ability,  his  entire  income, 
vhether  derived  from  his  property  or  personal 
exertions,  will  be  taken  into  consideration.^  If 
the  wife  has  separate  property,*  or  derives  in- 
come from  her  personal  exertions,  this  will  also 
be  considered.  The  method  of  computation 
is  to  add  the  wife's  annual  income  to  her  hus- 
band's; consider  what,  under  the  circum- 
stances, should  be  allowed  her  out  of  the 
aggregate,  then,  from  the  sum  so  determined, 
deduct  her  separate  income,  and  the  remainder 
will  be  the  annual  allowance  to  be  made  her. 
There  are  various  other  circumstances  besides 
the  ability  of  the  husband;  as,  whether  the 
bulk  of  the  property  came  from  the  wife,  or 
belonged  originally  to  the  husband,*  or  was 
accumulated  by  the  joint  exertions  of  both 
subsequent  to  the  marriage.''  Whether  there 
are  children  to  be  educated  and  supported,  and 
upon  whom  their  support  and  education  de- 
volves.•  The  condition  in  life,  employment, 
health,  and  place  of  residence  of  the  husband, 
as  demanding  a  larger  or  smaller  sum  for  his 
own  support;*  the  circumstance,  condition  in 
life,  health,  necessary  expenditures,  and  place 
of  residence  of  the  wife;«  the  conduct  and 
demeanor  of  the  wife  towards  the  husband 
who  desires  cohabitation,' and  his  as  well;  the 
extent  and  nature  of  the  husband's*  or  wife's 

r-See  also  Bishop  Marr.  &  Div.  cc.  28-30.  s-i  Rob. 
Eccl.  484;  3  Add.  Eccl.  484  :  4  H  &  M.  507;  10  Ga. 
477;  5  Sess.  Cas.  (N.  S.)  1288.  t-i  Lee  Eccl.  621;  1 
Blackt.  3C3o;  i  Iowa,  440;  2  Hagg.  Cons.  395;  Saxt. 
96;  13  Mass.  464 ;  5  Pick.  461  ;  i8  Me.  308;  4  Barb. 
295:  I  Gill  &  J.  463;  8  Yerg.  67.  u-Bishop  Marr.  & 
D.  j  563.  V-Q  Watts.  90;  27  Miss.  630,  6y2  ;  21  Conn. 
185:  1  BlackfTsfc;  8  Yerg.  67.  w-i  Paige  Ch.  276;  2 
Barb.  Ch.  311;  2  III.  242;  Wright,  514;  6  B.  Mon.  496; 
n  Ala.  (N.  S.)  763;  24  N.  H.  564-  x-4  Gill,  105;  7 
Hill,  107;  I  Green,  90;  i  Iowa,  151;  10  Ga.  477.  y-3 
Curt.  Eccl.  3,  41  ;  I  Rich.  Eq.  282;  2  B.  Mon.  370:  5 
Pick.  427;  1  K.  I.  212.  z-2  Phill.  Eccl.  40;  2  Add. 
Eccl.  I.   ik-a  Utt.  337;  4  Uumphr.  510.    b-ii  Ala.  ^N. 


offence ;  the  aggravation  or  encouragement  of 
the  cause  of  separation  by  either,  and  what- 
ever other  circumstances  or  considerations  ad- 
dress themselves  to  the  discretion  of  the  court. 

The  proportion  of  the  joint  income  to  he 
awarded  for  permanent  alimony  ranges  from 
one-third  to  one-half.  In  alimony  pendente  lite, 
it  is  not  usual  to  allow  more  than  about  one- 
fifth.''  Generally,  a  less  proportion  will  be  al- 
lowed out  of  a  large  estate  than  a  small  one 
where  the  question  is  on  alimony  during  the 
suit,  for  then  the  wife  should  live  in  seclusion, 
and  wants  only  a  comfortable  subsistence.' 
The  amount  of  alimony  is  liable  at  any  time  to 
be  diminished  or  increased  at  the  discretion  of 
the  court.J 

Alimony  must  secure  to  the  wife  as  wife,  a 
maintenance  separate  from  her  husband;  an 
absolute  title  in  specific  property,  or  a  sale  of  a 
part  of  the  husband's  estate  for  her  use,  cannot 
be  decreed  or  confirmed  to  her  as  alimony.* 
Nor  is  alimony  regarded,  in  any  general  sense, 
as  the  separate  property  of  the  wife;  hence  she 
can  neither  alienate  nor  charge  it;'  if  she  suffers 
it  to  remain  in  arrears  for  more  than  one  year, 
she  cannot  generally  recover  such  arrears;"  if 
she  saves  up  anything  from  her  annual  allow- 
ance, upon  her  death  it  will  go  to  her  hus- 
band ;°  if  there  are  any  arrears  at  the  time  of 
her  death,  they  cannot  be  recovered  by  her 
executors.*  Her  right  to  alimony  ceases  Ufwn 
the  death  of  her  husband,P  he  being  bound  to 
support  her  only  during  his  life ;  it  ceases  alsa 
upon  reconciliation  and  cohabitation. 

The  extent,  incidents,  and  nature  of  alimony 
is  largely  regulated  by  statute,  and  all  observa- 
tions concerning  them  should  be  very  carefully 
received  in  conjunction  with  the  statutes  of 
the  particular  State  where  the  subject  is  to  ba 
considered.' 

Children — Custody  of.  The  tribunal 
hearing  a  divorce  cause  is  generally  authorized 
by  statute  to  direct,  during  its  pendency  and 
afterwards,  with  which  of  the  parties,  or  with 
what  other  person,  the  children  shall  remain, 
and  to  make  provision  out  of  the  husband's  es- 
tate for  their  maintenance.  There  are  few 
positive  rules  upon  the  subject,  the  matter  being 
left  to  the  discretion  of  the  court,  to  be  exer- 
cised according  to  the  circumstances  of  each 
case.  The  general  principle  is  to  consult  the 
welfare  of  the  child,  rather  than  any  supposed 
rights  of  the  parents,  and  as  between  the  pa- 
rents to  prefer  the  innocent  to  the  guilty.     In 

S.)  763;  3  Harr.  (Del.)  142.  c-3  Paige  Ch.  267  ;  4  Id. 
643  ;  3  Green.  171  ;  2  Litt.  337  ;  10  Ga.  477.  <i-i  Hagg. 
Eccl.  526,  532.  e-5  Pick.  427;  4  Gill.  105;  11  Ala.  (N. 
S.)673.  f-7  Hill  (N.  y.)  207;  5  Dana.  499;  15  III. 
'45.  K-3  Hagg.  Eccl.  657 ;  2  Johns.  Ch.  391  ;  4  Dei. 
Eq.  183;  24  N7H.  564.  n-Bishop  Marr.  &  D.J  613 
1-Id.  JJ  603-619;  2  Phill.  Eccl.  40.  j-8  Sim.  Ch.  31c, 
321,  n. ;  6  W.  &  S.  8s  ;  Bishop  Marr.  &  D.%  591-599. 
lt-3  Hagg.  Eccl.  322  ;  7  Dana,  181  ;  6  Harr.  &  J.  485: 
4  Hen.  &  M.  587;  6  Ired.  293.    I-5  Paige  Ch.  509.    nik 

3  Hagg.  322.  n-6  W.  &  S.  85;  12  Ga.  201.  0-8  Sim. 
Ch.  321 ;  8  T.  R.  545 ;  6  W.  &  S.  85.     p-i  Root.  349; 

4  Hnyw.  75;  4  Md.  Ch.  289.  q-Sec  10  Paige  Ch.  20; 
7  Hill  (N.  Y.)  307;  Bishop  Marr.  &  D.  Jf  6«>-6oa  «, 
619  rf-631. 


546 


MARRIAGE  AND  DIVORCE. 


the  absence  of  a  controlling  necessity  or  very 
strong  propriety  arising  from  the  circumstances 
of  the  case,  the  father's  claim  is  to  be  pre- 
ferred.' 

The  consequences  of  divorce  are  such  as 
flow  from  the  sentence  by  operation  of  law,  or 
flow  from  either  the  sentence  or  the  proceeding 
by  reason  of  their  being  directly  ordered  by  the 
court  and  set  down  of  record.*  In  regard  to 
the  former,  they  are  chiefly  such  as  result  im- 
mediately and  necessarily  from  the  definition 
and  nature  of  a  divorce.  Being  a  dissolution 
of  the  marriage  relation,  the  parties  have  no 
longer  any  of  the  rights,  nor  are  subject  to  any 
of  the  duties,  pertaining  to  that  relation.  They 
are  henceforth  single  persons  to  all  intents  and 
purposes.  It  is  true  that  the  statutes  of  some 
•f  the  States  contain  provisions  disabling  the 
guilty  party  from  marrying  again ;  but  these 
are  in  the  nature  of  penal  regulations,  collateral 
to  the  divorce,  and  which  leave  the  latter  in 
full  force.' 

Defences.  Some  of  the  principal  defences 
in  suits  for  divorce  are:  Connivance,  or  the  cor- 
rupt consent  of  a  party  to  the  conduct  in  the 
other  party  whereof  he  afterwards  complains. 
This  bars  the  right  of  divorce,  because  no  injury 
was  received;  for  what  a  man  has  consented 
to  he  cannot  say  was  an  injury."  Collusion. 
This  is  an  agreement  between  husband  and 
wife  for  one  of  them  to  commit,  or  appear  to 
commit,  a  breach  of  matrimonial  duty,  for  the 
purpose  of  enabling  the  other  to  obtain  the 
legal  remedy  of  divorce,  ^s  for  a  real  injury. 
Where  the  act  has  not  been  done,  collusion  is 
a  real  or  attempted  fraud  upon  the  court; 
where  it  has,  it  is  also  a  species  of  connivance; 
in  either  case  it  is  a  bar  to  any  claim  for  di- 
vorce.' Condonation  applies  chiefly,  though 
not  exclusively,  to  the  offence  of  adultery;  it 
is  the  conditional  forgiveness  or  remission  by 
the  husband  or  wife  of  a  matrimonial  offence 
which  the  other  has  committed.  While  the 
condition  remains  unbroken,  condonation,  on 
whatever  motive  it  proceeded,  is  an  absolute 
bar  to  the  remedy  for  the  particular  injury 
condoned.*  Recrimination.  This  is  a  de- 
fence arising  from  the  complainant's  being  in 
like  guilt  with  the  one  of  whom  he  com- 
plains. It  is  incompetent  for  one  of  the  parties 
to  a  marriage  to  come  into  court  and  complain 
of  the  other's  violation  of  m^.triinonial  duties, 
if  the  party  complaining  is  guilty  likewise. 
When  the  defendant  sets  up  »iuch  violation  in 
answer  to  the  plaintiff's  suit,  this  is  called,  in 
the  matrimonial  law,  recrimination.' 

The  foregoing  defences,  though  available  in 
all  divorce  causes,  are  more  frequently  applic- 
able where  a  divorce  is  sought  on  the  ground 
of  adultery. 

r-Reeve  Dom.  Rel.  fid  Ed.)  453;  40  N.  H.  272  :  16 
Pick.  Mass.  203;  3  Hill  N.  Y.  299;  24  Br\rb.  N.  Y. 
521;  27  Id.  9,  and  cases  cited;  Bisfiop  Marr.  &  P;v. 
Ch.  29.    s-P.ishop  Marr.  &  Div.  §  548.    t-Bishop  Marr. 


&  Div.  M  655-659.  u-Bishop  Marr.  &  Div.  g  332.  v- 
Bishop  Marr.  &  Div.  §350.  w-Bishop  Marr.  &  Div.  J 
35*.  X -Bishop  Marr.  &  Div.  g  389.  y-Bishop  Marr. 
lb  Piv,  2  6^;  37  Miss.  630,  637 ;  17  Mo.  87 ;  6  lad.  229 ; 


Property,  In  regard  to  rights  of  property 
as  between  husband  and  wife,  a  sentence  of 
divorce  leavefs  them  as  it  finds  them.  Conse- 
quently, all  transfers  of  property  which  were 
actually  executed,  either  in  law  or  fact,  continue 
undisturbed;  for  example,  the  personal  estate 
of  the  wife,  reduced  to  possession  by  the  hus- 
band, remains  his  after  the  divorce  the  same  as 
before.  But  it  puts  an  end  to  all  rights  de- 
pending upon  the  marriage  and  not  actually 
vested:  as,  dower  in  the  wife,  all  rights  of  the 
husband  in  the  real  estate  of  the  wife,  and  his 
right  to  reduce  to  possession  her  choses  in  ac- 
tion.y  In  respect  to  dower,  however,  it  should  be 
obseived  thatacontrary  doctrinehas  been  settled 
in  New  York,  it  being  there  held  that  immedi- 
ately upon  the  marriage  being  solemnized  the 
wife's  right  to  dower  becomes  perfect,  provided 
only  she  survives  ^er  husband.* 

Validity  of  Divorce.  Numerous  and  dif- 
ficult questions  are  constantly  arising  in  regard 
to  the  validity  in  one  State  of  divorces  granted 
by  the  courts  or  legislature  of  another  State. 
The  following  propositions  require  the  highest 
consideration  :*  I.  The  tribunals  of  a  country 
have  no  jurisdiction  over  a  cause  of  divorce, 
wherever  the  offence  may  have  occurred,  if 
neither  of  the  parties  has  an  actual  bona  fide 
domicil  within  its  territory.  2.  To  entitle  the 
court  to  take  jurisdiction,  it  is  sufficient  for  one 
of  the  parties  to  be  domiciled  in  the  country ; 
both  need  not  be,  neither  need  the  citation, 
when  the  domiciled  party  is  plaintiff,  be  served 
personally  on  the  defendant,  if  such  personal 
service  cannot  be  made.  3.  The  place  where 
the  offence  was  committed,  whether  in  the 
country  in  which  the  suit  is  brought  or  a  foreign 
country,  is  immaterial.  4.  The  domicil  of  the 
parties  at  the  time  of  the  offence  committed  is 
of  no  consequence,  the  jurisdiction  depending 
on  their  domicil  when  the  proceeding  is  insti- 
tuted and  the  judgment  is  rendered.  5.  It  is 
immaterial  to  this  question  of  jurisdiction  in 
what  country  or  under  what  system  of  divorce 
laws  the  marriage  was  celebrated.  It  should 
be  observed,  however,  that  the  last  proposition 
but  one  is  not  sustained  by  authority  in  Penn- 
sylvania and  New  Hampshire,  it  being  held  in 
those  States  that  the  tribunals  of  the  country 
alone  where  the  parlies  were  domiciled  when 
the  delictum  (fault  or  offence)  occurred  have 
jurisdiction  to  grant  a  divorce.**  And  in  regard 
to  the  second  proposition,  it  is  to  be  observed 
that,  without  personal  citation  within  the  Statt, 
the  divorce  is  not  of  binding  effect  in  any  othac 
State. 

Master.  See  Apprenticeship. 

Master  of  Ship.  See  Bailments;  Contracts. 

Material  Men.  See  Liens. 

Mayhem.  See  Ckiminal  Law. 
6  ^Vatts  &  S.  Penn.  85,  88;  4  Harr.  Del.  440;  8  Conn. 
541  ;  10  Id.  225 :  2  Md.  429 ;  8  Mass.  99  ;  10  Id.  260;  10 
P.iige  Ch.  N.  Y.  420,  424;  5  Blackf.  Ind.  309;  5  Dan. 
Ky.  254;  6  Watts  Penn.  131.  z-4  Barb.  N.  Y.  102  ;  4 
N.  Y.  95  ;  6  Du.  N.  Y.  102,  152,  153.  a-Bishop  Marr. 
&  Div.  Ch.  32.  b-7  Watts,  Penn.  349  ;  8  Waits  &  S. 
Penn.  251 ;  6  Penn.  St.  449  ;  see  30  Penn.  St.  412,416; 
34  N.  H.  S18,  and  cases  there  cited ;  35  Id.  474  ;  and  for 
the  law  of  Louisiana  see  9  La,  Ana.  317. 


NECESSARI ES— NO  VATION. 


547 


Measure.  See  Weights  and  Mbasures. 

Measnre  of  Damagres.  See  Damages. 

Medical  Evidence.  See  Evidence 

Medical  l>aw.  See  Law. 

Memoraiiduni.  See  Contracts  ;  Copyright. 

Merger.  See  Criminal  Law;  Estates. 

Military  l>aw.  See  Law. 

Miscarrlag:e.  See  Medical  Law. 

Mijiideineanor.  See  Criminal  Law. 

Misrepresentation.  See  Contracts. 

Mistalte.  See  Contracts. 

Mitii^ation.  See  Damages. 

Modification.  See  Contracts. 

Mon<*y.  See  United  States  Statittes  at  Large. 

Mortj^ages.  See  Conveyances. 

Mortmain.  See  Corporations. 

Mother,  Motber-in-I^aw.  See  Persons;  Re- 
lations. 

Manlcipal  Corporations.  See  Corpora- 
tions. 

Municipal  T^aw.  See  Law. 

Mnrder.  See  Criminal  Law. 

Mite.  See  Persons. 

Mutilate.  See  Criminal  Law,  "Mayhem." 

Naval  liaw.  See  Admiralty  ;  Maritime  Law. 

N^ECESSARIES.  See  Apprenticeship;  Con- 
tracts ;  etc. 

Necessaries.  The  term  "necessaries"  is 
not  confined  merely  to  what  is  requisite  barely 
to  support  life,  but  includes  many  of  the  con- 
veniences of  refined  society.  It  is  a  relative 
term,  which  must  be  applied  to  the  circum- 
stances and  conditions  of  the  parties.*  Orna- 
ments and  superfluities  of  dress,  such  as  are 
usually  worn  by  the  party's  rank  and  situation 
in  life,''  some  degree  of  education,'  lodging 
and  house-rent,*  horses,  saddles, bridles,  liquors, 
pistols,  powder,  whips,  and  fiddles  have  been 
held  not  to  be  necessaries.' 

The  rule  for  determining  what  are  neces- 
saries is  that  whether  articles  of  a  certain  kind 
or  certain  subjects  of  expenditure  are,  or  are 
not  such  necessaries  as  an  infant  may  contract 
for,  is  a  matter  of  law,  and  for  instruction  by 
the  court ;  but  the  question  whether  any  par- 
ticular things  come  under  these  classes,  and  the 
question  also  as  to  the  quantity,  are  generally 
matters  for  the  jury  to  determine.' 

Infants  may  contract  for  necessaries.Rbut  are 
not  liable  for  borrowed  money,  though  ex- 
pended for  necessaries. "^  Necessaries  for  the 
infant's  wife  and  children  are  necessaries  for 
himself.'  A  wife  is  allowed  to  make  contracts 
for  necessaries,  and  her  husband  is  generally 
responsible  upon  them,  because  his  assent  is 
presumed ;  and  even  if  notice  be  given  not  to 
trust  her,  still  he  would  be  liable  for  all  such 
necessaries  as  she  stood  in  need  of,  but  in  this 

a-yS.  &R.  247.  b-i  Campb.  120;  3  Id.  326;  7C. 
&  P.  52;  1  Hodg.  31  ;  8  T.  R.  578;  1  Leigh.  N.  P. 
135.  C-4  M.  &  W.  727;  6  Id.  48;  loVt.  683;  see  10 
Barb.  489  ;  Chitty  Contr.  140;  1  Parsons'  Contr.  246. 
A-i  Bulstr.  69  ;  1  B.  &  P.  340;  5ee  12  Met.  (Mass.)  "^sg  ; 
13  Id.  306;  1  M.  &  W.  67;  5^.  B.  606.     e-i  Bibb.  519; 

1  M'Cord,  572;  2  Nott.  8c  M'Cord,  524;  2  Humph.  27; 

2  Str.  iioi  ;  1  Mann.  &  G.  550;  and  see  7  C.  &  P.  52  ; 
4  Id.  104;  Holt,  77;  Cart.  216:  11  N.  H.  51;  8  E.xch. 
680.  f-i  Parsons'  Contr.  241  ;  10  Vk  225 ;  12  Met. 
(Mass.)  559  ;  11  N.  H.  51  ;  1  Bibb.  519;  2  Humph.  27  ; 

3  Day,  371;  I  M.  &  G.  550;  6  M.  &  W.  42 ;  6  C. 
&  P.  690.  jf-4  M.  &  W.  727;  13  Id.  252.  Il-i  Salk. 
279;  2  Esp.  472,  «. ;  10  Mod.  67;  I  Bibb.  519;  7 
W.  &S.  83,  88;  10  Vt.  225:  see  i  P.  Wms.  5s8  ;  5 
Esp.  28:  7  N.  H.  368;  2  Hill 'S.  0400;  32N.  H. 
345.  i-Str.  168;  Com.  Dig.  £•«/««/  (B.  5);  i  Sid. 
112;  2  Starkie  Ev.  725 ;  3  Day,  37 ;  i  Bibb.  519;  3 
l^ott.  |!(  M'C.  524  ;    9  Johns.  141 ;    j6  Masgt.  31 ;    14  B. 


case  the  creditor  would  be  required  to  show 
she  did  stand  in  need  of  the  articles  furnished) 
But  if  the  wife  elopes,  though  it  be  not  with 
an  adulterer,  he  is  not  chargeable  even  for 
necessaries ;  the  very  fact  of  the  elopement  and 
separation  is  sufficient  to  put  persons  on  inquiry, 
and  whoever  gives  credit  to  the  wife  afterwards 
gives  it  at  his  peril.'' 

9re|3:Ii{(ence.  See  Acts;  Bailments;  Con- 
tracts ;  etc. 

9reg:llg:ent  Escape.  See  Criminal  Law,  "Ar- 
rest." 

Negotiable  Instrnments.  See  Bondsj 
Notes,  and  Bills. 

Neutrality.  See  International  Law. 

New  and  Vseful  Inventions.  See  Pa- 
tents. 

New  Trial.  See  Evidence  ;  Practice. 

Newly  Discovered  Evidence.  See  Evi- 
dence. 

Nigbt  WalUers.  See  Criminal  Law. 

Nominal  Damages.  See  Damages. 

Nonfeasance.  See  Acts. 

Nonsense.  See  Conveyances,  "  Wills." 

Notes.  See  Bonds,  Notes,  and  Bills. 

Notice.  See  Bonds,  Notes,  and  Bills. 

Notice  of  Protest.  See  Bonds,  Notes,  and 
Bills. 

NOVATION.  See  Contracts,  etc. 

Novation  is  the  substitution  of  a  new  obli- 
gation for  an  old  one,  which  is  thereby  ex- 
tinguished. A  transaction,  whereby  a  debtor 
is  discharged  from  his  liability  to  his  original 
creditor,  by  contracting  a  new  obligation  in 
favor  of  a  new  creditor,  by  the  order  of  his 
original  creditor.  The  term  novation  is  rarely 
employed.  The  usual  common  law  equivalent 
is  assignment  and  sometimes  merger.  Still, 
this  form  of  contract  found  its  way  into  com- 
mon law  treatises  as  early  as  Fleta's  day,  by 
whom  it  was  called  innovatio?' 

If  A.  owes  B.  fifty  dollars ;  B.  owes  C.  the 
same  sum,  and,  at  the  request  of  C,  orders  A. 
to  pay  that  sum,  when  it  shall  fall  due,  to  C. ; 
to  this  A.  consents,  and  B.  discharges  A.  from 
all  obligation  to  him.'*  And  if  A.  owes  B., 
and  B.  owes  C,  and  it  is  agreed  by  these  three 
parties  that  A.  shall  pay  this  debt  to  C,  and 

A.  is  by  this  agreement  discharged  from  his 
debt  to  B.,  and  B.  is  also  discharged  from  his 
debt  to  C,  then  there  is  an  obligation  created 
from  A.  to  C,  and  C.  may  bring  an  action  in 
his  own  name."  The  mutual  assent  of  all 
three  parties  is  necessary  to  make  an  effectual 
novation,  or  substitution."*     This  new  promise 

Mon.  232  ;  Bac.  Abr.  Infancy  (i) ;  see  13  M.  &  W.  252. 
l-i  Salk.  118;  2  Ld.  Raym.  1006.  k-i  Salk.  119;  Str. 
647  ;  I  Sid.  loq  ;  i  Lev.  4  ;  11  Johns.  281  ;  12  Id.  293  ;  3 
Pick.  289;  2  Halst.  146;  2  Kent  Comm.  123;  i  Starkie 
Ev.  696  ;  Bac.  Abr.  Baron  &>  Feme  (H.) ;  Chitty  Contr. 
Index;  i  Hare  &  W.  Sel.  Dec.  104,  106;  Hammond 
Part.  217.  a-See  Fleta  lib.  2,  c.  60,  g  12  ;  Bracton  lib.  3, 
c.  2,  ?  13  ;  but  in  Bracton  we  have  novaiionem  for  inno- 
7/atione>n.  b-A  case  of  novation  is  put  in  Tatlock  vs. 
Harris;  3T.  R.  180.  "  Suppose  A.  owes  B.  £too,  and  B. 
owes  C.  £100,  and  the  three  meet  and  it  is  agreed  between 
them  that  A.  shall  pay  C.  the  jEioo,  B.'s  debt  is  extin- 
guished, and  C.  may  recover  the  sum  against  A."  i 
Parsons'  Contr.  Ch.  13;  2  Barb.  349.     c-3  T.  R.  174 ;  j 

B.  &  Aid.  228;  7N.  H.397;  5B.&Ad.925;  3Bingh.N. 

C.  883  ;  I  Mo.  &  P.  8  ;  2  Mann.  &  G.  644  ;  17  Mass. 
400 ;  3  Scott  N.  R.  125  :  3  Barb.  209  ;  9  Bingh.  372  ;  3 
B.  &C.  842;  5  A.  &  E.  115,  116;  3  Greenl.  (2  Ed.) 
346,  n.  ;  20  Vt.  25  ;  i  E.  L.  &  E.  153, «.  /  14  Conn.  141  ; 
5  Wheat.  277;  »o  Pick.  15.    d-4  C.  8f  P.  93;  t  Id.  a^y 


54< 


NOVATION— NUISANCE. 


is  not  within  the  provisions  of  the  statute  of 
frauds,  relating  to  a  promise  to  pay  the  debt 
of  another;*  for  here  the  debtor  contracts  an 
entirely  new  debt  of  his  own,  the  consideration 
of  which  is  the  absolute  discharge  of  the 
old  debt.  But  there  must  always  be  a  debt 
once  existing  and  now  cancelled,  to  serve  as 
a  consideration  for  the  new  liability.  The  action 
in  all  cases  is  brought  on  the  new  agreement. 
But  in  order  to  give  a  right  of  action  there 
must  be  an  extinguishment  of  the  original  debt.f 

A^Tadani  Pactum.    See  Contracts,  "Naked 

Agreements." 

JKnll  and  Told.  See  Contracts,  etc. 

NUISANCE.  See  Damages  ;  Criminal  Law. 

A  Nuisance  is  that  which  incommodes  or 
annoys ;  something  that  produces  inconvenience 
or  damage.  Nuisances  are  either  private  or 
public.  Private  when  it  affects  individuals,  as 
when  one  man  erects  a  house  so  near  his 
neighbor  as  to  throw  the  water  off  the  roof 
upon  his  neighbor's  land  or  house,  or  to  inter- 
cept the  light  that  his  neighbor  before  enjoyed. 
Public,  when  it  annoys  citizens  in  general,  as 
obstructions  of  the  highway.* 

It  is  difficult  to  say  what  degree  of  annoy- 
ance constitutes  a  nuisance.  If  a  thing  is 
calculated  to  interfere  with  the  comfortable 
enjoyment  of  a  man's  house,  it  is  a  nuisance. •" 
In  relation  to  offensive  trades,  it  seems  that 
when  such  a  trade  renders  the  enjoyment  of 
life  and  property  uncomfortable  it  is  a  nui- 
sance," for  the  neighborhood  have  a  right  to 
j)ure  and  fresh  air.* 

A  thing  may  be  a  nuisance  in  one  place 
which  is  not  so  in  another ;  therefore  the  situ- 
ation or  locality  of  the  nuisance  must  be  con- 
sidered. A  tallow-chandler  setting  up  his 
business  among  other  tallow-chandlers,  and 
increasing  the  noxious  smells  of  the  neighbor- 
hood, is  not  guilty  of  setting  up  a  nuisance 
unless  the  annoyance  is  much  increased  by  the 
new  manufactory."  Such  an  establishment 
might  be  a  nuisance  in  a  thickly-populated 
town  of  merchants  and  mechanics  where  no 
such  business  was  carried  on.  Carrying  on  an 
offensive  trade  for  twenty  years  in  a  place  re- 
mote from  buildings  and  public  roads  does  not 
entitle  the  owner  to  continue  it  in  the  same 
place  after  houses  have  been  built  and  roads 
laid  out  in  the  neighborhood,  to  the  occupants 
of  and  travellers  upon  which  it  is  a  nuisance.' 
The  trade  may  be  offensive  for  noise,K  or  smell,'' 
©r  for  other  reasons.* 

Private  nuisances  may  be  to  corporeal  inheri- 

e--!  Bingh.  (N.  C.)  883 ;  3  Barb.  209 ;  3  T.  R.  1 74.     f-4 

B.  &  C.  163  ;  I  M.  &  W.  124 ;  T4  111.  34  ;  4  La.  An.  281  ;  15 
N.H.  129.  a-3Bl.  Comm.  166,215  ;  i  Hawk.  PI.  Cr.  197. 
b-jjur.  N.S.  571.  C-i  Burr.  333;  5  Esp.  217.  d-aCarr. 
&  P.  485;  6  Rog.  N.  Y.  61.  e-Peake,  91.  f-6  Gray, 
Mass.  473;  see  7  Blackf.  Ind.  514;  2  Carr.  &  P.  483. 
If -2  Show.  327;  22  Vt.  321;  6  Cush.  Mass.  80.  I1-2 
Carr.  &  P.  485 ;  13  Mete.  Mass.  365 ;  i  Den.  N.  Y.  524. 
l-i  Johns.  N.  Y.  78  ;  i  Swan,  Tenn.  213  ;  Thach.  Crim. 
Cas.  Mass.  14 ;  3  East,  192  ;  3  Jur.  N.  S.  570.  j-Fitz- 
hcrbert,  Nat.  Brev.  184.  k-9  Coke,  58  :  but  seeWash- 
burn.  Easements,  l-o  Coke,  58.  ni-Fitzherbcrt,  Nat. 
Brev.  183  ;  3  Rolle,  Abr.  140.  x-i  Campb.  463  ;  6  East. 
208.  n-See  Washburn,  Easements.  O-i  Burr.  337  ;  4 
tsp.  »oo;    1  3tr»nge,  686,  704 ;    »  Chitty,  Crim,  Law, 


tances  ;  as,  for  example,  if  a  man  should  build 
his  house  so  as  to  throw  the  rain-water  which 
fell  on  it  on  my  land;J  or  erect  his  building, 
without  right,  so  as  to  obstruct  my  ancient 
lights  ;*  keep  hogs  or  other  animals  so  as  to 
incommode  his  neighbor  and  render  the.  air 
unwholesome;'  or  to  incorporeal  hereditaments: 
as,  for  example,  obstructing  a  right  of  way  by 
ploughing  it  up,  or  laying  logs  across  it,  and 
the  like;"  or  obstructing  a  spring;*  interfering 
with  a  franchise,  as  a  ferry  or  railroad,  by  a 
similar  erection  Unlawfully  made." 

To  constitute  a  public  nuisance,  there  must 
be  such  a  number  of  persons  annoyed  that  the 
offence  can  no  longer  be  considered  a  private 
nuisance;  this  is  a  fact,  generally,  to  be  judged 
of  by  the  jury."  Public  nuisances  arise  ia 
consequence  of  following  particular  trades,  by 
which  the  air  is  rendered  offensive  and  nox- 
ious :P  from  acts  of  public  indecency,  as  bath- 
ing in  a  public  river  in  sight  of  the  neighboring 
houses  ;i  or  for  acts  tending  to  a  breach  of  the 
public  peace,  as  for  drawing  a  number  of  per- 
sons into  a  field  for  the  purpose  of  pigeon- 
shooting,  to  the  disturbance  of  the  neighbor- 
hood;' or  keeping  a  disorderly  house;*  or  a 
gaming  house;'  or  a  bawdy  house;"  or  a  dan- 
gerous animal,  known  to  be  such,  and  suffering 
him  to  go  at  large,  as  a  large  bulldog  accus- 
tomed to  bite  people;'  or  exposing  a  person 
having  a  contagious  disease,  as  the  small-pox, 
in  public  ;*  and  the  like.  The  bringing  a 
horse  infected  with  the  glanders  into  a  public 
place,  to  the  danger  of  infecting  the  citizens,  is 
a  misdemeanor  at  common  law.*  The  leaving 
unburied  the  corpse  of  a  person  for  whom  the 
defendant  was  bound  to  provide  Christian 
burial,  as  a  wife  or  child,  is  an  indictable 
nuisance,  if  he  is  shown  to  have  been  of  ability 
to  provide  such  burial.' 

The  remedies  are  by  an  action  for  the  dam- 
age done,  by  the  owner,  in  the  case  of  a  private 
nuisance  ;■  or  by  any  party  suffering  special 
damage,  in  the  case  of  a  public  nuisance  ;*  by 
abatement  by  the  owner,  when  the  nuisance  is 
private  ;*  and  in  some  cases  when  it  is  public, 
if  no  riot  is  committed ;"  by  injunction  or  by 
indictment  for  a  public  nuisance.** 

Nnncupative  Will.  See  Conveyancbs, 
"Wills." 

Oath.  See  Evidence. 

Oblieralions.  See  Contracts. 

Obstructing  Process.  See  Criminal  Law. 

Office  anti  Officer.  See  General  Statutes; 
United  States  Statutes  at  Large. 

Omission.  See  Acts. 

607,  n.  p-Croke  Car.  510;  Hawkins  PI.  Cr.  b.  i,  c.  75, 
§  10 ;  a  Ld.  Rayra.  1163;  i  Burr.  333;  i  Strange,  686. 
q-i  Russell,  Crimes,  302  ;  2  Campb  89:  Sid.  168.  r- 
3  Barnew  &  Aid.  184.  s-i  Russ-ell,  Crimes,  298.  t-t 
Russell,  Crimes,  299;  Hawkins,  PI.  Cr.  b.  i,  c.  75,  3  6- 
U-Hawkins  PI.  Cr.  b.  i,  c.  74,  g  i  ;  Bacon,  Abr.  Nui- 
sance {K.')\  9  Conn.  350.  v-4  Burn.  Just.  578.  w-4 
Maule  &  S.  73,  272.  Jt-Dearsl.  Cr.  Cas.  24  :  2  Hurlst. 
&  N.  Exch.  299.  y-2  Den.  Cr.  Cas.  325  ;  see  3  Jur. 
N.  S.  570.  «-3  Blackstone,  Comm.  220.  a-4  Wend. 
N.  Y.  9  ;  3  Vt.  529;  I  Penn.  St.  309  ;  Carth.  194; 
Vaugh.  341  ;  3  Maule  &  S.  472 ;  2  Bingh.  283;  i  Esp. 
148.  b-2  Rolle  Abr.  565  ;  Rolle,  394  ;  3  Bulstr.  198; 
see  3  Dowl.  &  R.  556.  C-9  Coke,  55;  2  Salk.  458;  • 
BlackstQue  Couim  $.    d-a  Bishop.  Cr.  L.  {  8j6. 


OWNER— PARTNERSHIP. 


549 


Opinion.  See  Evidbncb. 
Ordinances.  See  Evidence. 
Ordinnry  Sitiil.  See  Contracts. 
Origfinal  Entries.  See  Accounts. 
OWNER.  See  Assignment :  Bailments;  S albs; 

ETC  ,  ETC. 

An  owner  is  he  who  has  dominion  of  a 
thing,  real  or  personal,  corporeal  or  incorporeal, 
which  he  has  a  right  to  enjoy  and  do  with  as 
he  pleases — even  to  spoil  or  destroy  it,  as  far  as 
the  law  permits,  unless  he  be  prevented  by 
.^ome  agreement  or  covenant,  which  restrains 
his  right.  Although  there  can  be  but  one  ab- 
solute owner  of  a  thing,  there  may  be  a  quali- 
fied ownership  of  the  same  thing  by  many. 
Thus,  a  bailor  has  the  general  ownership  in  the 
thing  bailed,  the  bailee  the  special  ownership. 
The  right  of  the  absolute  owner  is  more  ex- 
tended than  that  of  him  who  has  only  a  quali- 
fied ownership ;  as,  for  example,  the  use  of  the 
thing.  Thus,  the  absolute  owner  of  the  estate, 
that  is,  an  owner  in  fee,  may  cut  the  wood,  de- 
molish the  buildings,  build  new  ones,  and  dig 
wherever  he  may  deem  proper  for  minerals, 
stone,  plaster,  and  similar  things,  which  would 
be  considered  actionable  and  would  not  be 
allowed  in  a  qualified  owner  of  the  estate,  as  a 
(essee  or  a  tenant  for  life.  The  word  owner, 
when  used  alone,  imports  an  absolute  owner," 

When  there  are  several  joint  owners  of  a 
thing — as,  for  example,  of  a  ship — the  majority 
of  them  have  a  right  to  make  contracts  in  re- 
spect to  such  thing  in  the  usual  course  of  busi- 
ness or  repair,  and  the  like,  and  the  minority 
will  be  bound  by  such  contracts.' 

Pardon.  See  Criminal  Law. 

Parents.  See  Persons;  Relations. 

Parol.  See  Evidence;  Leases. 

Part-Owners.  See  Owner. 

Partial  Iioss.  See  Insurance. 

Particular  Estate.  See  Estates. 

Particular  Eien.  See  Liens. 

Parties.  See  Bonds,  Notes,  and  Bills;  Coif- 
tracts,  etc. 

Partners.  See  Partnership;  Members. 

PARTNERSHIP.  See  Assignments;  Bills, 
Bonds,  and  Notes;  Contracts  ;  Conveyances,  etc., 

ETC 

For  Forms,  see  Contract  Forms,  ante. 
GENERAL  PARTNERSHIP. 

Partnership  is  a  voluntary  contract  between 
two  or  more  persons  for  joining  together  their 
money,  goods,  labor,  and  skill,  or  any  or  all  of 
them,  in  some  lawful  commerce  or  business, 
under  an  understanding,  express,  or  implied 
from  the  nature  of  the  enterprise,  that  there 
shall  be  a  communion  of  profit  and  loss  between 
them.*  The  law  of  partnership,  as  administered 
in  England  and  the  United  States,  rests  on  a 
foundation  composed  of  three  materials — the 
common  law,  the  law  of  merchants,  and  the 
Roman  law."* 


loB.  &C.  128;  I  La.An.  457-  e-CollyerPartn.g56.  f- 
Davies  Dist.  Ct.  323 ;  3  Kent  Comm.  30 ;  Story  Partn. 
i  81 ;  2Ga.  18  ;  3C  B.  641,  651 ;  9  Id.  458.  ST-i  Dougl. 
•57I-  I1-3  M.  &  W.  357.  i-9C.  B.  431;  Eng.  C.L. 
Vol.67;  19  L.  J.  ;  C.  P.  243.  j-io  B.  &  C.  140;  6 
Bingh.  793.    k-6  Bingh.  792.     I-2  Bingh.  170.    m-CoIl- 


A  partnership  exists  when  two  or  more  per- 
sons combine  their  property,  skill,  and  labor,  or 
one  or  more  of  them,  in  the  transaction  of  busi- 
ness, for  their  common  profit."  When  a  part- 
nership is  formed  by  written  articles,  it  is  con- 
sidered as  beginning  at  the  date  of  the  articles, 
unless  they  contain  a  stipulation  to  the  con- 
trary.* 

As  a  general  rule,  a  partnership  may  exist  in 
any  business  or  transaction  which  is  not  a  mere 
personal  office,  and  for  the  performance  of 
which  payment  may  be  enforced.*  It  may  be 
created  for  a  special  purpose,  or  confined  by  the 
parties  to  a  particular  line  of  business,  or  even 
a  single  transaction.'  One  partner  may  con- 
tribute all  the  money  or  all  the  stock,  or  all  the 
labor  or  skill  necessary  for  the  purposes  of  the 
firm;  but  in  order  to  make  people  liable  as 
partners  to  each  other,  it  is  necessaiy  that  there 
should  be  a  community  of  profits.^  although 
one  of  them  may  stipulate  to  be  indemnified 
against  loss.**  This,  however,  respects  their 
mutual  claims,  for  however  they  may  stipulate 
with  each  other,  all  who  take  a  share  in  the 
profits,*  and  all  who  allow  themselves  to  be  de- 
scribed and  held  out  as  partners,  are  liable  as 
such  to  those  to  whom  they  have  so  held  them- 
selves out.i  Supposing  the  parties  to  have  be- 
come partners,  the  result  is  that  each  indi- 
vidual partner  constitutes  the  others  his  agents 
for  the  purpose  of  entering  into  all  contracts 
for  him  in  the  scope  of  the  partnership  concern, 
and  consequently,  that  he  is  liable  to  the  perform- 
ance of  all  such  contracts  in  the  same  manner 
as  if  entered  into  personally  by  himself.^  It  is 
not  essential  to  the  existence  of  a  partnership 
that  there  should  be  any  joint  capital  or  stock.' 
Sometimes  a  partnership  exists  between  parties 
merely  as  the  managers  and  disposers  of  the 
goods  of  others.™  A  partnership  is  presumed 
to  be  general  when  there  is  no  stipulations,  or 
no  evidence,  from  the  course  of  business,  to  the 
contrary."  There  may  be  a  partnership  to  trade 
in  land."  A  ship  as  well  as  any  other  chattel, 
may  be  held  in  strict  partnership.?  But  ships 
are  generally  owned  by  parties  as  tenants  in 
common ;  and  they  are  not,  in  consequence  of 
such  ownership,  to  be  considered  as  partners.' 
The  same  is  true  of  any  other  species  of  prop- 
erty in  which  the  parties  have  only  a  com- 
munity of  interest.' 

CONTRACT.  The  formation  of  a  con- 
tract of  partnership  does  not  require  any  par- 
ticular formality.  It  is,  in  general,  sufficient 
that  it  is  formed  by  the  voluntary  consent  of  the 
parties,  whether  that  be  express  or  implied; 
whether  it  be  by  written  articles,  tacit  approba- 

yer  Partn.  ?  17  ;  4  B.  &  Aid.  663;  15  Johns.  409,  443. 
n-14  How.  589  ;  3  Foster  (N.  H.)  438.  0-21  Me.  421, 
422;  Dav.  Dist.  Ct.  320;  7  Penn.  St.  165;  10  Cush. 
458  ;  4  Conn.  568  ;  Story  Partn.  §g  82,  83.  p-3  Kent 
Comm.  154  ;  CoUyer  Partn.  §  1185  ;  12  Mass.  54;  6  Me. 
77;  15  Id.  427.  q-CoUyer  Partn.  g  1185  ;  6  Me.  77  ;  6 
Pick.  120;  24  Id.  19;  Abb.  Shipping, 97;  i4Conn.  404; 
14  Penn.  St.  34,  38  :  T.  Raym.  15  ;  8  Gill.  92.  r-Poth. 
Partn.  g  n.  2  ;  Story  Partn.  J  3 ;  i  Lindley  Partn.  30,  et 
sea. ;  8  Exch.  825 ;  21  Bear.  Rolls,  536 ;  24  Id.  283 ;  a 
C.  B.  (N.  S.)  357. 


5SO 


PARTNERSHIP. 


tion,  or  by  parol  contract,  or  even  by  mere 
acts."  Although  ordinary  partnerships  may  be 
formed  without  any  written  contract,  and  the 
acts  and  words  of  the  parties  are  ordinarily  suf- 
ficient for  that  purpose,  yet,  if  the  object  of  the 
company  be  to  speculate  in  the  purchase  and 
sale  of  land,  the  positive  rules  of  law  and  the 
statute  of  frauds  require  the  partnership  agree- 
ment to  be  in  writing.*  But  this  applies  only 
lo  the  contract  between  the  parties,  for  as  to 
third  persons  the  partnership  may  be  proved 
like  any  other."  A  partnership,  in  general,  is 
constituted  between  individuals,  by  an  agree- 
ment to  enter  together,  into  a  general  or  a  par- 
ticular business,  and  share  the  profits  and  losses 
thereof.'  The  criterion  of  a  partnership  is, 
whether  the  parties  are  to  participate  in  profit. 
If  the  actual  contract  give  a  claim  upon  the 
profits,  or  the  application  of  them,  that  is  a  part- 
nership.* A  participation  in  the  uncertain 
profits  of  trade  renders  one  a  copartner  in  re- 
spect to  the  liabilities  of  the  concern  to  third 
persons.'  But  the  mere  sharing  of  profits,  with- 
out any  connection  whatever  in  the  business,  is 
not  enough  to  constitute  a  partnership.^  Thus, 
if  one  firm  agrees  with  another,  that  each  shall 
continue  and  carry  on  its  business  independ- 
ently, but  that  the  profits  and  losses  of  each 
firm  shall  be  divided  between  the  two,  the  two 
firms  do  not  enter  into  partnership,  nor  do  the 
members  of  one  firm  become  partners  with  the 
members  of  the  other.*  There  need  not,  how- 
ever, be  a  community  of  interests  in  the  prop- 
erty, if  there  be  m  the  profits  and  some  con- 
nection in  the  business.'  But  a  setting  apart  a 
portion  of  the  profits  to  pay  the  debt  of  a  third 
person,  does  not  make  him  a  partner."*  So,  too, 
a  joint  purchase,  but  for  the  purpose  of  distinct 
and  separate  sales  by  each  party  on  his  own  ac- 
count, does  not  constitute  the  purchasers  part- 
ners.' There  are  but  few  cases  where  a  writing 
is  necessary.  Under  the  statute  of  frauds, 
where  there  is  an  agreement  that  a  partnership 
shall  commence  at  some  time  more  than  a  year 
from  the  making  of  the  agreement,  a  writing  is 
necessary.*  With  respect  to  that  part  of  the 
statute  of  frauds  relating  to  lands,  it  has  been 
held  that  a  partnership  may  be  constituted  with- 
out writing,'  and  that  if  a  partnership  is  proved 
to  exist  it  may  be  shown  that  its  property  con- 
sists of  land,  although  there  is  no  signed  agree- 
ment between  the  parties.'  So  it  has  been  held, 
that  an  agreement  to  form  a  partnership  for  the 
purpose  of  buying  and  selling  land  may  be 
proved  by  parol.*    But  this  latter  proposition  is 

S-Story  Partn.  ?86;  3  Kent  Comra.  27;  Dav.  Dist. 
Ct.  320 ;  4  Conn.  568  ;  7  E.  L.  &  E.  305 ;  2  Barb.  Ch. 
136.  t-3  Sumner,  435  ;  iMunf.  510;  15  Penn.  177.  U- 
Davies,  320.  v-iS  Ves.  300.  w-17  Ves.  403  (Sumner's 
Ed.)  and  note,  p.  404;  10  Hill.  526;  i  Foster  (N.H.) 
175;  14  Barb.  474.  x-2  Sandf.  7  ;  15  Conn.  67;  1  Hill, 
526:  4  M.  &  Sel.  240;  3  B.  &  C.  401:  4  East.  144; 
4  B.  &C.  867;  6  Conn.  347;  6  Greenl.  76;  6  Pick. 
124;  3  Mason  138;  22  Vt.  181  ;  31  Id.  395.  y-20  N. 
Y.  (6  Smith)  93.  »-5  Sandf.  113;  i  Seld.  i86.  a- 
19  Barb.  333;  36  Ala.  J33.  b-3  Rich.  L.  37.  C-38 
Me.  553  ;  j>  Mo.  481.  d-S  B.  &  C.  108.  e-20  Beav. 
Rolls.  449.  f-s  Ves.  Ch.  309  ;  10  Cash.  458.  K-s  Hare 
Ch.  369;    3  Pbjll.  a^i  2  Wa  «t  F.  224.    h-See  Day. 


not  generally  conceded.  The  contrary  doc. 
trine  has  the  weight  of  learned  opinion.* 

Persons  may  be  copartners  as  to  third  parties 
and  brought  within  all  the  liabilities  of  part- 
nership as  to  them,  who  are  not  partners  be- 
tween themselves.'  For  whether  they  are 
partners  is  determined  chiefly  by  their  own  in- 
tention ;  but  whether  they  are  partners  in  re- 
spect to  third  parties,  is  determined  by  a  con- 
sideration of  this  intention,  and  also  of  that 
actual  participation  of  profits  which  is  held  to 
require  them  to  participate  in  the  losses,  because 
it  diminishes  the  fund  from  which  the  losses 
are  to  be  paid ;  and  also  of  the  way  and  de- 
gree in  which  the  person  sought  to  be  charged 
as  partner  has  been  held  out  to  'he  world  as 
such,  so  that  the  person  seeking  to  charge  him 
had  good  reason  to  believe  the  debt  of  the 
partnership  carried  with  it  his  responsibility  .J 
Though  a  man  really  have  no  interest  in  the 
firm,  yet  if  he  suffer  himself  to  be  held  out  to 
the  world  as  a  meml^er  of  it,  he  thereby  author- 
izes those  to  whom  he  has  been  held  out  tc 
treat  him  as  a  contracting  party.'  To  make  a 
man  liable  as  nominal  partner,  he  must  have 
been  held  out  as  such  /o  the  plaintiff}  A  con- 
tract to  pay  one  employed  in  certain  business  a 
salary  equal  in  amount  to  a  certain  proportion 
of  the  profits,  will  not  make  such  a  person  a 
partner.  The  question  of  profits  is  of  impor- 
tance only  in  determining  the  amount  of  the 
salary.  Neither  will  a  certain  salary,  together 
with  a  certain  per  cent,  upon  the  profits,  make 
the  receiver  a  partner."  An  agreement  by 
which  a  person  is  to  receive  a  certain  por- 
tion of  the  profits  for  his  salary,  does  not  con- 
stitute a  partnership,  such  person  having  no 
special  interest  in  the  profits  themselves,  as 
profits."  Nor  do  factors  and  brokers  for  a 
commission  on  the  profits,  nor  a  master  of  vessel 
engaging  for  the  share  of  the  profits,"  become 
partners,  and  are  not,  therefore,  liable  for  the 
debts,  as  a  partner  is.  It  is  sometimes  difficult 
to  distinguish  between  partnership  and  tenancy 
in  common.  In  general,  if  the  property  owned 
jointly  is  so  owned  for  the  purpose  of  a  joint 
business,  and  is  so  used,  and  the  profits  result- 
ing from  a  common  fund,  it  is  partnership 
property;  otherwise  not.P 

Though  partnerships  are  usually  formed  by 
participation  in  profits  and  losses,  partners  may 
agree  as  to  any  way  of  dividing  the  losses; 
that  a  partner  shall  have  his  share  of  the  pro- 
fits and  not  be    liable  for   losses.     And   this 

Dist.  Ct.  320;  Story  Partn.  ?  83  ;  3  Sumn.  C.  C.  458- 
471 ;  2  De  Gex  &  J.  52.  1-6  S.  &  B.  333  ;  4  East.  144  ; 
14  Vt.  540;  4  Penn.  St.  30.  J-22  Vt.  511  ;  4  Harring- 
ton, 90;  II  Humph.  271.  Et-io  B.  &  C.  20.  l-io  B.  & 
C.  141  :  1  M.  &  R.  126  S.  C.  in-15  S.  &  R.  137 ;  s  E 
L.  &  E.  67  ;  I  Barr.  255  ;  6  Met.  82  ;  13  Barb.  302  i< 
Id.  309.  n-i2  Conn.  169  ;  iDcnio,  337;  S.  C.3Comst 
132  ;  20  Wend.  70 ;  4  Sandf.  311 ;  i  Foster  (N.  H. ;  93; 
2  G.  Greene.  574  ;  10  Texas,  193  ;  2  Md.  i ;  3  Rich  L. 
37;  2  Strobh.  471 ;  6  Ala.  215;  7  Leigh,  115;  9  C  B. 
431  ;  3  Harr.  &  Johns.  505  ;  6  Conn.  351.  0-15  Masi. 
370;  6  Pick.  335.  |»-Q  Johns.  470';  14  Id.  318  :  i  Gray, 
289;  I  Hill,  234;  15  Wend.  379;  24  Pick.  191;  23  Vt. 
308;  II  Ohio,  364;  20  Ala.  212;  3  Mason,  138;  6 
Greenl.  76;  6  Pick.  12^;  10  Vt.  170;  31  Id.  395. 


PARTNERSHIP. 


551 


agreement  is  valid  as  between  themselves. 
And  this  agreement  will  be  equally  efficacious, 
whether  stated  in  articles,  or  proved  by  circum- 
stances, or  otherwise.  For  partners  among 
themselves  may  make  whatever  bargain  they 
choose.  But  no  such  agreement  will  prevent 
such  partner  from  being  liable  for  the  debts  of 
the  partnership,  unless  the  creditor  knew  of 
this  bargain  between  the  partners,  and  with 
this  knowledge  gave  the  credit  to  the  other 
partners  only.P 

The  liability  of  a  partner  springs  either  from 
his  holding  himself  out  to  the  world  as  a 
partner,  or  from  his  participation  in  the  busi- 
ness and  its  profit  or  loss.  If  these  two  cases 
meet,  as  is  usually  the  case,  they  strengthen 
each  other;  but  either  of  them  alone  is,  in 
general,  sufficient  to  create  this  liability.<i 
There  is  no  liability  as  a  partner,  where  there 
is  neither  a  participation  in  the  profits,  nor  any 
such  use  of  the  defendant's  name  permitted  by 
him  as  justifies  the  plaintiff  in  selling  to  others 
on  his  credit,  although  there  may  be  in  some 
way  or  measure  a  community  of  interest.' 

Proof  of  existence.  Whether  a  partner- 
ship exists  or  not  in  a  particular  case  is  not  a 
mere  question  of  fact,  but  one  of  mixed  law 
and  fact.  It  is,  nevertheless,  generally  to  be 
decided  by  a  jury.'  The  existence  of  a  part- 
nership may  be  proved  by  showing — i.  A 
distinct  agreement  for  a  partnership :  or,  2.  An 
agreement  to  share  profit  and  loss ;  either  of 
these  will  be  conclusive :  or,  3.  An  agreement 
to  share  profits — which  will  be  strong  evidence 
of  a  partnership:  or,  4.  Circumstances  suf- 
ficient to  establish  a  ^«<wz-partnership  which, 
being  proved,  is  held  to  be  prima  facie  evi- 
dence of  a  real  partnership. 

Where  there  is  no  written  agreement,  the 
evidence  generally  relied  upon  to  prove  a  part- 
nership is  the  conduct  of  the  parties,  the  mode 
in  which  they  have  dealt  with  each  other,  and 
the  mode  in  which  each  has,  with  the 
knowledge  of  the  others,  dealt  with  other  per- 
sons. This  can  be  shown  by  the  books  of  ac- 
count, by  the  testimony  of  clerks,  agents,  and 
other  persons,  by  letters  and  admissions,  and, 
in  short,  by  any  of  the  modes  in  which  facts 
can  be  established.* 

Dissolution.  A  partnership  may  be  dis- 
solved in  either  of  the  following  modes  : 

By  the  act  of  the  parties,  as  by  their  mutual 

l»-5  B.  &  Aid.  954  :  3  M.  &  W.  357 :  2  H    Bl.  246 ;  6 

'S.  &  M.  385  ;  I  Story,  374  ;  17  Me.  i8o  ;  7  Ala.  761  ;  1 
^Jampb.  404,  n.  ;  5  Bro.  P.  C.  489 ;  2  Chitty,  120.  q-3 
McLean,  364:  2  Id.  347;  7B.  Mon.  456;  22  Vt.  511. 
v-1  Nott.  &  M'Cord,  447  ;  8  Gill,  92 ;  3  Story,  108.  8- 
Sec  3  Harr.  358;  4  Id.  190;  6  Conn.  347;  1  Nott.  & 
M'C.  20 ;  I  Caines,  184 ;  2  Fla.  541 ;  9  C.  B.  457  ;  3  C. 
B.  (N.  S.)  562,  563;  5  Bingh.  117.  t-As  to  presump- 
tions arising  from  the  joint  retainer  of  solicitors,  see  20 
Beav.  Rolls.  98  ;  7  De  Gex  M.  &  G.  239  ;  7  Hare  Ch. 
159,  164.  For  cases  in  which  partnership  has  been  in- 
ferred from  various  circumstances,  see  4  Russ.  Ch.  247; 
2  Bligh.  (N.  S.)2i5;  3  Brown  Pari.  Cas.  548;  5  Id. 
482;  I  Stark.  81;  2  Campb  45.  u-i  Story  Partn.  J 
268  ;  3  Kent  Comm.  54  ;  Poth  Partn.  n.  149.  ■v-4  Russ. 
Ch.  260,  I  Swan.st.  508;  3  Kent  Comm.  53,  54;  Gow. 
Partn.  (3d  Ed.)  log  ;  Story  Partn.  JJ  84,  271,  273  ;  see  5 
Ark.  »?o.     W-10  N.  y.  (6  Seld.)  ^89.      x-15  Johns.  82. 


consent."  And  where  no  specified  period  is 
limited  for  the  continuance  of  the  partnership, 
either  party  may  dissolve  it  at  his  pleasure.'  If 
the  partnership  be  for  a  time  certain,  one  part- 
ner may  maintain  an  action  against  the  other 
for  a  breach  of  the  articles  in  dissolving  before 
the  period  therein  limited.  And  the  action 
may  be  brought  before  the  expiration  of  the 
time  for  which  the  partnership  was  limited. 
The  damages  would  be  the  profits  which  would 
have  accrued  to  the  plaintiff  from  the  con- 
tinuation of  the  business."  When  a  partner- 
ship is  not  to  endure  for  a  time  certain  by  the 
articles  of  copartnership,  or  where  that  time 
has  expired,  it  may  undoubtedly  be  dissolved 
at  the  pleasure  of  either  partner.*  But  notice 
should  be  given  to  the  other  partner.^  This 
should  be  a  reasonable  notice  where  the  articles 
are  totally  silent  upon  the  subject,  and  where, 
without  such  notice,  injury  would  be  inflicted, 
or  fraud  indicated.*  The  duration  may  be 
gathered  from  the  terms  of  the  articles,  al- 
though not  expressly  provided  for.*  As  against 
third  persons  a  partner  may  withdraw  from  the 
partnership  at  will.'' 

By  the  act  of  God,  as  by  the  death  of  one 
of  the  partners;  and  this  operates  from  the 
time  of  the  death.®  In  such  case  the  di.ssolu- 
tion  takes  place  from  the  time  of  the  death, 
however  numerous  the  association,  and  this  not 
only  to  the  deceased  partner,  but  also  as  to  all 
the  survivors."*  And  the  same  rule  applies  to 
a  silent  partner,*  unless  there  be  an  express 
stipulation  to  the  contrary.'  Although  death 
of  a  partner  operates  a  dissolution  of  the  part- 
nership, the  articles  of  copartnership  may  pro- 
vide for  its  continuance,  by  an  agreement  that 
the  executors,  administrators,  heirs,  or  other 
designated  persons,  shall  take  the  place  of  the 
deceased  partner.8  And  such  express  agree- 
ment for  the  continuance  of  the  partnership 
after  the  death  of  one  partner  is  necessary,  al- 
though the  partnership  is  for  a  term  of  yeare.* 
Absolute  insanity,  or  any  equivalent  disability, 
operates  at  once,  and   ipso  facto,  a  dissolution.* 

By  the  act  of  the  law,  as  by  the  bankruptcy 
of  one  of  the  partners.J  Bankruptcy  of  the 
firm,  or  of  one  partner,  operates  an  immediate 
dissolution.''  An  act  of  bankruptcy  does  not 
dissolve  the  partnership  instanter.  The  adju- 
dication that  he  is  a  bankrupt  is  what  severs 

y-4  Russ.  260;  16  Ves.  so-  *-5  ArV.  280.  n-a  Jur. 
252  :  15  Ves.  227  ;  i  Swanst.  480:  17  Pick.  519  ;  18  Vt. 
107.  b-3  C.  B.  (N.  S.)  561.  C-3  Mer.  6to  ;  6  Cow. 
441  ;  Poth  Partn.  n.  144;  6  Conn.  184:  2  How.  560:  7 
Ala.  CN.  S.)  19  ;  Collyer  Partn.  ?  113 ;  3  Kent  Comm. 
55,56;  Story  Partn.  ^§3'?.  319;  7  Pet.  594 :  5  Met. 
(Mass.")  519;  5  Gill.  I.  d-5  Met.  575  ;  7  Peters,  586, 
594;  Chitty  Contr.  Ed.  i860,  285,  note,  e-17  Pick. 
520.  f-3  Madd.  Ch.  521 ;  2  How.  569.  jf-i  Swanst. 
514,  n.  ;  Id.  520;  2  Ves.  Sen.  33  ;  9  Ves.  500;  3  Dowl. 
76 :  II  S.  &  R.  41 ;  7  Ala.  28.  h-3  Madd.  251 ;  7  Pet. 
586;    M'Clel.  &  Y.  575.     I-Story  Partn.?  295:    2  M.  & 


K.  125  ;  15  Johns.  57 ;  10  N.  H.  161  ;  2  Ves.  &  B.  303  ; 
Gow.  Part.  272.  J-4  Burr.  2174  ;  Cowp.  448;  6  Ves. 
Ch.  126;    5  M.  &  'S._  340.      k-Cowp.  448;    I  Swanst. 


482  ;  5  Ves.  295  ;  15  Id.  218 ;  11  Id.  5  ;  17  Id.  193  ;  15 
Johns.  82,  S.  C. ;  16  Johns.  491  ;  17^.535;  34  Pick. 
8g  ;  2  Doug.  (Mich.)  206  ;  Coll.  Pwt.  P.  i,  Ch.  2,  J  ?  ; 
Story  Part.  \  313. 


>5a 


PARTNERSHIP. 


the  partnership.'  Insolvency  under  the  statute 
would  have  the  same  effect.""  And  bankruptcy 
destroys  the  right  of  a  partner  to  bind  the  firm 
by  an  acknowledgment  of  debt."  But  either  of 
the  solvent  and  competent  partners  may  collect, 
adjust,  and  receipt  for  partnership  accounts." 

By  a  valid  assignment  of  all  the  partnership 
eflfects  for  the  benefit  of  creditors,  either  under 
insolvent  actsP  or  otherwise,''  and  by  a  sale  of 
partnership  eflfects  under  a  separate  execution 
against  one  partner.''  But  the  mere  insolvency 
of  one  or  all  the  members  of  a  partnership 
does  not  itself  operate  a  dissolution. • 

By  the  assignment  of  the  whole  of  one  part- 
ner's interest  either  to  his  copartner  or  to  a 
stranger.'  Where  it  does  not  appear  that  the 
assignee  acts  in  the  concern  after  the  assign- 
ment." Where  it  was  held  that  this  would  not 
ipso  facto  work  a  dissolution.  Any  assign- 
ment of  a  copartner's  interest  in  the  partner- 
ship's funds  operates,  ipso  facto,  a  dissolution. 
So,  the  assignment  of  the  whole  of  a  copart- 
ner's interest.'  And  an  assignment  by  one 
partner  of  his  share  of  the  future  profits  to  an- 
other partner  is  a  dissolution  of  the  partner- 
ship, because  the  essence  of  that  is  a  participa- 
tion of  the  profits.' 

By  the  award  of  arbitrators  appointed  under 
a  clause  in  the  partnership  articles  to  that  effect.* 

By  the  civil  death  of  one  of  the  partners  ,•? 
but  the  absconding  of  a  party  from  the  State 
does  not  of  itself  operate  a  dissolution." 

By  the  extinction  of  the  subject-matter  of 
the  joint  business  or  undertaking,"  and  by  the 
completion  of  the  business  or  adventure  for 
which  the  partnership  was  formed.* 

By  the  termination  of  the  period  for  which 
a  partnership  for  a  certain  time  was  formed." 
If  the  partnership  be  continued,  by  express  or 
tacit  consent  after  that  period,  it  will  be  pre- 
sumed to  continue  on  the  old  terms,*  but  as  a 
partnership  at  will. 

By  the  breaking  out  of  a  war  two  States  in 
which  the  partners  are  domiciled  and  carrying 
on  trade." 

A  partnership  for  a  term  may  be  dissolved 
before  the  expiration  of  the  term,  by  the  decree 
of  a  court  of  equity  founded  on  the  wilful 
fraud  or  other  gross  misconduct  of  one  of  the 

1-ColI.  Partn.  ?  iii ;  5  Ves.  295  ;    Stoi^  Partn.  ?  314. 
m-i  Bland.  418;    a  Ashm.  305.      11-2  Doug.  (Mich.) 
O-Cowp.  445;  5  M.  &Sel.  336;  II  111.  14;  12  Id 
p-CoUyer  Partn.  \  112.     ci-41  Me.  373.     r-CoU 


206.  o-Cowp.  445;  5  M.  &  Sel.  336;  II  111.  14;  i2_Id, 
agS.  p-CoUyer  Partn.  \  112.  C|-4i  Me.  373.  r- 
yer  Partn.  §  112  ;  Cowp.  445 ;  2  Ves.  &  B.  Cn.  Ir.  300  ; 
3  Kent  Comm.  59.  8-24  Pick.  89;  see  x  Bland  Ch. 
408;  a  Ashm.  305;  Poth.  Partn.  n.  148.  t-Collyer 
Partn.  §  no,  note ;  3  Kent  Comm.  59  ;  Story  Partn.  Zg 
307,308:  4  B.  &  Ad.  175;  17  Johns;  525;  iFreem.  Cn. 
«3i  ;  8  W.  &  S.  262.  n-17  Johns.  525  ;  8  Wend.  442  ; 
5  Dana,  213;  i  Whart.  381 ;  1  Dev.  Eq.  481  ;  but  see 
14  Pick.  322.  V-13  Penn.  St.  67;  i  Blatch.  488;  17 
Johns.  535;  I  Freem.  Ch.  (Miss.)  231 ;  5  Dana,  213  ;  8 
W.  &  S.  a62  ;  14  Pick.  322 ;  Collyer  Partr  g  no ;  2  Dev. 
Eq.  481 ;  17  Vt  390.  W-4B  &Ad.  175.  x-Sec  Bis- 
set  Partn  87;  1  W.  Bl.  475  ;  4  B.  &  Ad.  172.  y-CoU- 
yer  Partn.  ?  114  ;  Poth.  Partn.  n.  147.  ^-24  Pick.  80  ; 
see  Story  Partn.  J  298.  a-16  Johns.  401,  402  ;  Poth. 
Partn  nn.  5,  140-143;  Collyer  Partn.  \  115.  b-Poth. 
Partn.  n.  143  ;  Story  Partn.  ?  280.  c-Collyer  Partn.  \ 
119:  Poth.  Partn.  «.  139.  «l-i7  S.  &  R.  165  ;  Chitty 
Boutr.  (Ed.  i860)  285.  e-i6  Johns.  438  ;  3  Kent  Comm. 
fe ;   Story  Partn.  {{  315.  316 ;    3  Bland.  674.     f-Collyer 


partners;'  so  on  his  gross  carelessness  and 
waste  in  the  administration  of  the  partnership, 
and  his  exclusion  of  the  other  partners  from 
their  just  share  of  the  management;*  so  on  the 
existence  of  a  violent  and  lasting  dissension 
between  the  partners,""  where  these  are  of  such 
a  character  as  to  prevent  the  business  from 
being  conducted  upon  the  stipulated  terms,' 
and  to  destroy  the  mutual  confidence  of  the 
partners  in  each  other.i  But  a  partner  cannot, 
by  misconducting  himself  and  rendering  ii 
impossible  for  his  copartners  to  act  in  harmony 
with  him,  obtain  a  dissolution  on  the  ground 
of  impossibility  so  created  by  himself.*  A 
partnership  may  be  dissolved  by  decree  when 
its  business  is  in  a  hopeless  state,  its  continu- 
ance impracticable,  and  its  property  liable  to 
be  wasted  and  lost.* 

The  confirmed  lunacy  of  an  active  partner  is 
sufficient  to  induce  a  court  of  equity  to  decree 
a  dissolution,  not  only  for  the  purpose  of  pro- 
tecting the  lunatic,  but  also  to  relieve  his  co- 
partners from  the  difficult  position  in  which  the 
lunacy  places  them.™  The  same  may  be  said 
of  every  other  inveterate  infirmity,  such  as 
palsy,  or  the  like,  which  has  seized  upon  one 
of  the  partners,  and  rendered  him  incompetent 
to  act  where  his  personal  labor  and  skill  were 
contracted  for." 

But  lunacy  does  not  itself  dissolve  the  firm, 
nor  do  other  infirmities."  The  court  does  not 
decree  a  dissolution  on  the  ground  of  lunacy, 
except  upon  clear  evidence  that  the  malady 
exi.'its,  and  is  incurable. p  A  temporary  illness 
is  not  sufficient."!  A  dissolution  by  the  court, 
on  the  ground  of  insanity,  dates  from  the  de- 
cree, and  not  from  a  prior  day.' 

Dissolution  with  respect  to  Third  Persons. 
The  partnership  as  to  third  persons,  that  is,  the 
liability  of  partners  with  respect  to  third  per- 
sons, cannot  be  dissolved  without  notice  to 
them  that  the  partnership  no  longer  exists. 
Actual  notice  must  be  brought  home  to  persons 
who  have  been  in  the  habit  of  dealing  with 
the  firm;  but  as  to  all  persons  who  have 
had  no  previous  dealings  with  the  firm,  notice 
fairly  given  in  the  public  newspapers  is 
deemed    sufficient."      This    notice    is    neces- 

Partn.  §296;  Chitty  Contr.  (Ed.  i860)  285;  4  Bear. 
Rolls.  502;  21  Id.  482;  2  Ves.  &  B.  Ch.  Ir.  209.  gf- 
CoUyer  Partn.  3  227;  1  Jac  &W.Ch.  592;  2  la.  206;  5 
Ark.  278;  2  Ashm.  300,  310  ;  3  Ves.  Ch.  74.  h-i  Jar- 
man  Conv.  26 ;  Gow.  Partn.  (3d  Ed.)  227  ;  i  Iowa,  537 , 
Collyer  Partn.  \  297  ;  see  4  Sim.  Ch.  11 ;  Story  Partn 
3288;  4  Beav.  Rolls,  503;  14  Ohio,  315.  I-3  Kent 
Comm.  60, 61;  Collyer  Partn.?  297.  j-Beav.  Rolls.  502  . 
21  Id.  482 ;  1  Lindley  Partn.  184,  185.  k-21  Bcav.  Rolls. 
493,494;  3  Hare  Ch.  387.  l-CoUyer  Partn  ?  291  ;  3 
Kent  Comm.  60;  i  Cox,  212  ;  2  Ves.  &  B  Ch.  Ir.  290; 
16  Johns.  491 ;  Gow.  Partn.  (3d  Ed.)  226,  227 ;  i  Lind- 
ley Partn.  180,  182;  3  Kay  &  J.  78,  13  Sim.  Ch.  49s 
m-See  1  Cox  Ch.  107;  i  Swanst.  514,  note;  2  Mylne 
&  K.  125  ;  6  Beav.  Rolls,  324 :  i  De  Gex  M.  &  G.  171 ; 
2  Kay  &  J.  441 ;  Collyer  Partn.  \  292  ,  3  Kent  Comm 
58;  Watson  Partn.  382;  3  Younge  &  C.  184,  Bissct 
Partn  83.  n-Poth.  Partn.  n.  153,  3  Kent  Comm.  62- 
Collyer  Partn  \  295.  0-3  Kent  Comm.  58 ;  Sii  ry 
Partn  ?  295  ;  3  Jur.  358  ;  Bisset  Paitn.  8s.  p-3  Younge 
&  C.  184;  2  Kay  &  J  441.  q-2  Ves.  Sen  Ch.  34,  1 
Cox.  107;  I  Lindley  Partn  182,  183.  r-i  Phil.  172;  2 
Coll.  276:  1  K.  &  J.  765;  I  Lindl.  Partn.  183.  •-Coll- 
yer Partn.  J{  53=»-534- 


PARTNERSHIP. 


553 


sary  to  tenninate  the  agency  of  each  part- 
ner, and,  consequently,  his  power  to  bind  the 
firm.* 

It  is  not  necessary  to  give  notice  of  the  re- 
tirement of  a  dormant  partner  from  the  firm, 
if  the  fact  of  his  being  a  partner  be  unknown 
to  all  the  creditors  of  the  firm ;  if  it  be  known 
to  some,  notice  to  those  must  be  given,  but 
that  will  be  sufficient." 

Notice  of  the  dissolution  is  not  necessary  in 
case  of  the  death  of  one  of  the  partners,  to  free 
the  estate  of  the  deceased  partner  from  further 
liability;'  nor  is  notice,  in  fact,  necessary  in 
any  case  where  the  dissolution  takes  place  by 
operation  of  law.* 

Effect  of  Dissolution.  The  effect  of 
dissolution  as  between  partners  is  to  terminate 
all  transactions  between  them  as  partners,  ex- 
cept for  the  purpose  of  taking  a  general 
account,  and  winding  up  the  concern.*  As  to 
third  persons,  the  effect  of  a  dissolution  is  to 
absolve  the  partners  from  all  liability  for  future 
transactions,  but  not  for  past  transactions  of  the 
firm.'  Dissolution,  however  it  takes  place, 
terminates  altogether  the  power  of  a  partner  to 
carry  on  the  business  concerns  of  the  partner- 
ship, in  a  way  to  bind  former  partners  by  any 
contract  whatever.  The  former  partners  are 
partners  no  longer,  but  tenants  in  common ; 
and  where  there  is  no  agreement  to  the  con- 
trary, each  partner,  after  dissolution,  possesses 
the  same  authority  to  adjust  the  affairs  of  the 
firm,  by  collecting  its  debts,  and  disposing  of 
its  property,  as  before  dissolution ;  but  they 
can  no  longer  bind  each  other,  even  by  vary- 
ing the  form  of  existing  obligations.*  No 
partner  can  indoi-se  a  note  of  the  firm,  even  to 
pay  a  prior  debt  of  the  firm.*  When  a  partner 
dies,  the  partnership  property  goes  to  the  sur- 
vivors for  the  purpose  of  settlement,  and  they 
all  have  the  power  necessary  for  that  purpose, 
and  no  more.''  And  the  survivors  can  charge 
nothing  for  their  trouble  or  labor  in  settling  the 
concern.'  Nor  is  a  partner  entitled  to  com- 
pensation for  extra  services  in  the  absence  of 
an  express  contract,  and  there  is  no  principle 
of  the  law  which  authorizes  an  inquiry  into  the 
Inequality  of  the  services  of  partners,  unless 

t-i  Lindley  Partn.  261,  324;  1  Younge  &  J.  227; 
1  Stark.  164;  7  Price,  193;  i  Campb.  402;  10  East. 
264.  n-Collyer  Partn.  jSg  120,  536;  5  Esp.  89;  i 
Carr.  &   K.  580 ;    i  Met.\Mass.)  19  ;    i   B.  &  Ad.  11 ; 

4  Id.  170;  5  B.  Mon.  170;  Chitty  Tontr.  (Ed.  i860) 
287,  ancl  note;  5  Cow.  534;  i  Lindley  Partn.  326.  v- 
Collyer  Partn.  g  120;  Story  Partn.  J§  162,  336,  343  ;  3 
Kent  Comm.  63;  3  Mer.  Cri.  614;  17  Pick.  519;  Bisset 
Partn.  103,  104.  W-Collyer  Partn.  ?  538  ;  3  Kent  Comm. 
63,  67;  15  Johns.  57:  16  Id.  494.  x-i  Penn.  St.  274, 
3  Kent  Comm.  62,  et  seg.  y-CoUyer  Partn.  §  121; 
Story  Partn.  Ch.  15  ;  3  Kent  Comm.  62,  et  seq.;  2  Cush. 
175;   Poth.  Partn.  n.  155;  3  M'Cord,  378;  4  Munf.  215; 

5  Mas.  C.  C.  56;  Harper,  470;  4  Johns.  224:  6  Cow. 
701  ;  41  Me.  376.  X-13  Vt.  452  ;  Id.  522  ;  24  N.  Y.  Cio 
Smith)  570.  a-5  Ga.  i66;  25  Ala.  474;  33  N.  H.  351; 
1  Cush.  146;  II  Id.  314.  l>-6  Ves.  119,  126;  11  Id.  5; 
15  Id.  218  ;  16  Id.  49,  57 ;  5  M.  &  Sel.  336 ;  31  E.  L.  & 
E.  121 ;  3  Harr.  &  J.  495  ;  6  Cowen,  441  ;  17  Pick.  519  ; 
I  Busb.  Eq.  (N.  C.)  277 ;  4  Wis.  102 ;  i  E.  &  E.  506 ;  16 
La.  30;  iQ  Id.  402.  C-19  Penn.  St.  516;  i  Hare,  153. 
d-i  Head,  93;  Id.  353.  e-6  Ves.  119;  11  Id.  5.  f-i6 
B.  Mon.  355;  2  Kernan,  283;  3  G.  Greene,  186;  23  Mo. 
x%^;  x^  Penn,  St.  469:  IS  Barb.  8/    38  Conn.  {.    n^- 


there  be  an  express  stipulation  to  that  effect.* 
They  are  tenants  in  common  with  the  repre- 
sentatives of  the  deceased,  as  to  the  choses  in 
possession ;  and  they  have  a  lien  on  them  to 
settle  the  affairs  of  the  concern,  and  pay  its 
debts.*  Proper  notice  should  be  given  of  a 
dissolution,  for  a  firm  may  be  bound  by  a  con- 
tract made  after  the  dissolution,  or  retirement 
of  one  or  more,  by  a  former  partner,  in  the 
usual  course  of  business,  with  a  person  who 
had  no  notice  or  knowledge  of  the  dissolu- 
tion.' 

The  power  of  the  partners  subsists  for  many 
purposes  after  dissolution  ;  among  these  are  :« 

1.  The  completion  of  all  the  unfinished  en- 
gagements of  the  partnership. 

2.  The  conversion  of  all  the  property,  means, 
and  assets  of  the  partnership  existing  at  the 
time  of  the  dissolution,  for  the  benefit  of  those 
who  were  partners,  accoi'ding  to  their  respective 
shares. 

3.  The  application  of  partnership  funds  to 
the  payment  of  the  partnership  debts. 

But  although,  for  the  purposes  of  winding 
up  the  concern,  and  fulfilling  engagements 
that  could  not  be  fulfilled  during  its  existence, 
the  power  of  partners  subsists  even  after  dis- 
solution, yet,  legally,  and  strictly  speaking,  it 
subsists  for  those  purposes  only."* 

Rights  of  Creditors  Concerning  Part- 
nership Funds.  The  property  of  a  partner- 
ship is  bound  to  the  payment  of  the  partnership 
debts,  and  the  right  of  a  private  creditor  of  one 
copartner  to  that  partner's  interest  in  the  prop- 
erty of  the  firm,  is  postponed  to  the  right  of  the 
partnership  creditor.'  Where  an  attachment 
by  mesne  process  exists,  such  attachment  is 
allowed;  but  it  is  generally  made  subject  to 
the  paramount  rights  of  the  partnership  cred- 
itors.J  It  is  well  settled  that  if  partnership 
effects  can  be  taken  by  attachment  or  on  execu- 
tion to  secure  or  satisfy  the  debts  of  one  of  the 
partners,  this  can  be  done  only  to  the  extent  of 
that  partner's  interest,  and  subject  to  the  set- 
tlement of  all  partnership  accounts.''  The  gen- 
eral rule  of  law  is,  that  in  levying  an  execution 
against  one  partner  for  his  separate  debt,  the 
officer  may  take   possession  of  all  the  joint 

Story  Partn.  J  326;  Chitty  Contr.  (Ed.  i860)  288;  3 
Kent  Comm.  57 ;  17  Pick.  519.  h-CoUyer  Partn.  ?  119 ; 
15  Ves.  Ch.  227;  5  Man.  &  G.  564:  i  H.  Bl.  156:  3 
Esp.  108  ;  4  M.  &  W.  461,  462  ;  10  Hare  Ch  453  ;  4  De 
Gex  M.  &  G.  542.  Whether  a  dissolution  of  a  partner- 
ship \% per  se  a  breach  of  a  contract  by  the  firm  to  em- 
ploy a  person  in  their  service  is  questionable  ;  3  Hurlst 
&  N.  931.  i-8  How.  414 :  6  Mass.  243  ;  5  N  H.  ico :  4 
Conn.  540;  9  Greenl.  28;  20  Me.  89;  13  Ala.  (N.  S.) 
752  :  18  Conn.  294  ;  6  B.  Mon.  128  ;  7  Id.  210  :  2  Md.  i ; 
18  Ohio,  181;  20  Penn.  St.  76;  i  Foster,  462,-  20  Vt. 
479:  I  Barb.  Ch.  480;  13  Ala.  387;  7  Humph.  106;  3 
Barb.  Ch.  46,  50;  2  Vt.  120;  8  Id.  290;  19  Id  278  ;  Id 
292;  46  Me.  250.  J-6  Mass.  242;  11  Id.  248:  16  Pick 
572  ;  22  Id.  450;  24  Id.  2io;  o  Greenl  28  :  i  Fairf  458 : 
2  Me.  89 ;  5  N.  H.  190 ;  1  Show.  169  ;  1  Salk.  392  ;  i 
Comyns.  277;  8  N.  H.  238;  jo  Id.  77;  12  Id.  276:  4 
Conn.  540;  19  Vt.  278  ;  )6  Johns.  102  ;  6  Johns.  Ch 
186:  13  Cal.  626.  It-Cowp.  445  :  Doug.  650;  i  Ves. 
Sen.  239;  iVes.  Jr.  236;  4^.396;  15  Ves.  557;  ijac. 
&  W.  608 ;  17  Ves.  193  ;  9  Greenl.  33 ;  i  Penn.  St.  198 
I  Ala.  (N.  S.)  I2Q ;  Story  Partn.  J  261 ;  Col!  Partn.  J 
822,  n.  :  I  Wena.  3x1 ;  5  N.  H.  19a ;  5  Blackf.  -yyi-X, 
Dewey,  J, 


554 


PARTNERSHIP. 


property  of  the  firm,  in  order  to  inventory  and 
appraise  it.  He  has  no  authority  to  divide  it ; 
he  can  only  sell  the  joint  interest  of  the  debtor, 
whatever  it  may  be,  and  the  purchaser  will 
stand  in  the  place  of  the  debtor,  and  hold  the 
same  interest  in  the  joint  concern  which  he 
held.  The  levy  of  execution  does  not  give 
the  creditor  a  separate  possession  of  the  goods. 
The  indebted  partner  had  no  such  possession 
himself;  and  the  levy  gives  to  his  creditor  only 
tii.it  which  the  debtor  had ;  and  that  is  a  right 
to  call  for  an  account,  and  then  a  right  to  ihe 
balance  which  may  be  found  to  belong  to  him 
upon  a  settlement. 

In  the  absence  of  statutory  provisions,  an 
officer  cannot  take  or  give,  by  sale,  specific  pos- 
session of  the  partnership  property ;  he  takes, 
and  can  sell  only  the  right  and  interest  of  the 
indebted  partner  to,  and  in  the  whole  fund. 
After  sale  on  execution,  the  officer  should  con- 
vey to  the  purchaser  all  the  right  and  interest 
of  the  indebted  partner  in  the  stock  and  prop- 
erty of  the  partnership. 

Private  creditors  of  one  of  the  partners  can- 
not reach  the  partnership  funds  until  the  claims 
of  the  partnership  creditors  are  satisfied.'  The 
assets  of  a  deceased,  and  of  insolvent  partners, 
if  there  be  a  partnership  and  separate  property, 
will  be  distributed  by  paying  the  firm  debts  out 
of  the  joint  estate,  and  the  individual  debts  out 
of  the  separate  estate ;  the  joint  and  individual 
debts  should  be  kept  separate,  and  the  assets  of 
the  two  estates  marshalled  accordingly ;  joint 
creditors  must  first  resort  to  the  joint  fund,  and 
the  creditors  of  the  individual  partners  to  their 
separate  property;  upon  the  inadequacy  of 
either  of  these,  then  the  joint  or  separate  estate 
may  be  applied,  according  to  the  exigency  of 
the  case ;  if  there  is  no  joint  fund,  nor  any  sol- 
vent partner,  joint  creditors  may  participate 
equally  with  a  private  creditor  in  the  estate  of 
a  deceased  partner,  and  if  there  should  be  a 
surplus  of  the  joint  fund,  the  creditor  of  an  in- 
dividual partner  may  resort  to  that.™ 

MEMBERS. 

Partners  are  members  of  partnership.  Dor- 
mant partners  are  those  whose  names  and 
transactions  as  partners  are  professedly  con- 
cealed from  the  world.  Nominal  partners  are 
ostensible  partners  who  have  no  interest  in  the 
firm  or  business.  Ostensible  partners  are  those 
whose  names  appear  to  the  world  as  partners, 
and  who  in  reality  are  such. 

Persons  who  have  the  legal  capacity  to  make 
other  contracts  may  enter  into  that  of  partner- 
ship.* A  lunatic  seems  not  to  be  absolutely 
(ncapable  of  being  a  partner.**  A  minor  may 
contract   the   relation  of  partner,  as   he   may 

1-8  How.  414:    I  WHliams,  478 ;    14  Texas,  20.     m- 
Pahlman  vs.  Graves,  26  111.  405.     «-Collyer  Part.  ?3  n, 
b-3  Mylne  &  K.  125 ;  6  Beav.  Rolls.  324;   i  Lind- 


Taunt.  35  ;  5  B. 
368  ;    2  Hill,  479  ; 
shitty 


ley  Partn.  76,  77.  c-i  Stark.  25 ;  8  'J 
Aid.  147.  d-5  B.  &  Aid.  147  ;  9  Vt. 
3  Cush.  372  ;  Collyer  Part,  g  528;  CTiitty  Contr.'  (E(i. 
i860),  170,  171 ;  Story  Part.  §37:  3  Kent  Comm.  68; 
J  Lindlev  Part.  74-76.  e-2  Hill,  (S.  C.)  497.  f-Str. 
939;  2  M.  &  S.  205.  g-ColIyer  Partn.  g  14 ;  15  Johns. 
57;  16  Id.  438;  3  Kent  Comm.  62,  67;  i  Bindley  Partn. 
j^.    b-CoUyer  P;u^  -  {  i>  ;    ?  Lindley  Partn.  71.     i-i^ 


make  any  other  trading  contract  which  may 
possibly  turn  out  to  be  for  his  benefit."  This 
contract  is  subject  to  the  right  of  avoidance  by 
the  minor;  but,  as  in  the  case  of  continuing 
contracts,  he  is  presumed  to  ratify  it,  and  will 
be  liable  on  subsequent  contracts  made  on  the 
credit  of  the  partnership  if  he  do  not,  within  a 
reasonable  time  after  he  has  attained  his  full 
^gc>  givfi  notice  of  his  disaffirmance  of  or 
otherwise  repudiate  the  partnership.*  It  has 
been  held  that  if  a  party  who  was  a  member 
of  a  firm  during  his  minority,  does  in  any 
manner  concur  with  in  carrying  on  the  part- 
nership, or  receive  profits  from  it,  after  he 
comes  of  age,  it  amounts  to  a  confirmation, 
and  will  render  him  liable  on  the  contracts  of 
the  firm  made  during  his  minority."  The  person 
with  whom  the  minor  contracts  will  be  bound 
by  all  the  consequences.' 

Persons  domiciled,  and  trading  in  different 
countries  at  war  with  each  other,  cannot  be 
partners.8 

Generally  speaking,  the  common  law  im- 
poses no  restriction  as  to  the  number  of  per- 
sons who  may  carry  on  trade  as  partners."* 

Partners  in  Law.  If  persons  suffer  their 
names  to  be  used  in  a  business,  or  otherwise 
hold  themselves  out  as  partners,  they  are  to  be 
so  considered,  whatever  may  be  the  engage- 
ments between  them  and  the  other  partners.* 
In  such  cases  they  will  be  equally  responsible 
with  the  other  partners,  although  they  receive 
no  profits ;  for  the  contract  of  one  is  the  con- 
tract of  all  .J  This  rule  of  law  arises  not  upon 
the  ground  of  the  real  transaction  between  the 
partners,  but  upon  principles  of  general  policy, 
to  prevent  the  frauds  to  which  creditors  would 
be  liable  if  they  were  to  suppose  that  they  lent 
their  money  upon  the  apparent  credit  of  three 
or  four  persons,  when,  in  fact,  they  lent  it  only 
to  two  of  them,  to  whom,  without  others,  they 
would  have  lent  nothing.*  It  has  been  held 
that  it  is  not  necessary  for  a  person  charging  a 
nominal  partner  to  have  been  aware  of  the 
partnership -at  the  time  of  the  contract,' and 
this  doctrine  has  been  vindicated  on  the  ground 
that  the  object  of  the  rule  is  to  prevent  the 
extension  of  unsound  credit.™  But  the  doc- 
trine has  been  very  much  questioned."  The 
term  "  holding  one's  self  out  as  partner,"  im- 
ports, at  least,  the  voluntary  act  of  the  party 
holding  himself  out,"  but  no  particular  mode 
of  holding  himself  out  is  requisite  to  charge  a 
party.  The  usual  evidence  to  charge  a  party 
in  such  cases  is  that  he  suffered  the  use  of  his 
name  over  the  shop  door,  in  printed  notices, 
bills  of  parcels,  and  advertisements,  or  that  he 

Vt.  540;  3  Kent  Comm.  32,  33;  Collyer  Partn. §86; 
27  N.  H.  252.     |-2  Campb.  802 ;    2  McLean  C.  C.  347; 

5  Mill.  (La.)  406,  409  ;  5  Bingh.  776 ;  10  B.  &  C.  140 ;  1 
M.  &  R.  9;  19  Ves.  459;  i7Vt.  449.  k-2H.  Bl.  235; 
Doiigl.  371 ;  2  W.  Bl.  998  ;  3  Kent  Comm.  32,  33  ;   6  S. 

6  R.  259,  333;  16  Johns.  40;  2  Dob.  148;  2  Nott.  & 
M'Cord,  427;  Collyer  Partn.  §86;  Watson  Partn.  26. 
1-2  H.  Bl.  242;  3  Watts.  39.  in-CoUyer  Partn.  g  86. 
n-See  1  Smith  L.  Cas.  CEng.  Ed.)  507 ;  i  B.  &  C.  140; 
2  McLean  C.  C.  347  ;  Mood.  &  R.  9 ;  i  B.  &  Aid.  11 ; 
8  Ala.  m.  S.)  560;  7  B.  Mon.  456.  o-Collyer  Partn.  } 
97 •  9  Conn,  ja^;  a  Cam(>.  6ij, 


PARTNERSHIP, 


555 


has  done  acts,  or  suffered  his  agents  to  do 
acts,P  no  matter  of  what  kind,  sufficient  to  in- 
duce others  to  believe  him  to  be  a  parfner.<> 
If  there  be  astipulation  that  a  person  appearing 
to  be  a  partner  shall  be  liable  to  no  loss,  he, 
of  course,  will  not  be  liable  as  a  partner  to 
those  who  have  absolute  knowledge  of  such 
stipulation."" 

Dormant  partners  are,  when  discovered, 
equally  liable  with  those  who  are  held  out  to 
the  world  as  partners,  upon  contracts  made 
during  the  time  they  participate  in  the  profits 
of  the  business."  The  principle  upon  which 
dormant  partners  are  liable  is  that,  as  they 
have  the  benefit  of  a  share  in  the  profits  which 
are  a  part  of  the  fund  to  which  a  creditor  looks 
for  payment,  they  shall  be  bound  by  the  bur- 
dens.' Another  reason  given  for  holding  them 
liable  is  that  they  might  otherwise  receive 
usurious  interest  without  any  risk." 

Sharing  Profits.  The  general  result  of  the 
authorities  seems  to  be  that  persons  who  share 
in  the  profits  of  the  concern  are  prima  facie 
liable  as  partners  to  third  persons;  if  they 
have  not  held  themselves  out,  or  allowed 
themselves  to  be  held  out,  as  partners,  they 
may  repel  the  presumption  of  partnership  by 
showing  that  the  legal  relation  of  partnership 
inter  se  does  not  exist.^  This  presumption 
may  be  repelled  by  showing  that  the  persons 
who  receive  a  share  of  the  profits  are  mere  ser- 
vants, agents,  factors,  brokers,  or  other  persons 
receiving  such  share  of  the  profits  in  lieu  of 
wages,  or  commission  for  their  labor,  trouble, 
or  services.''  A  distinction  has  been  sometimes 
made  between  sharing  the  gross  profits  or 
earnings  and  the  net  profits;  but  it  is  far  from 
being  treated  as  decisive  on  the  question  of 
partnership." 

The  contract  must  be  voluntary  among  the 
members ;  therefore  no  stranger  can  be  intro- 
duced into  the  firm  without  a  concurrence  of 
the  whole  firm.?  The  delectus  persona,  as  it  is 
called,  is  so  essentially  necessary  to  the  consti- 
tution of  a  partnership,  that  even  che  executors, 
or  other  representatives  of  partners  themselves 
do  not,  in  their  capacity  of  executors,  or  rep- 
resentatives, succeed  to  the  state  and  condition 
of  partners.'  But  it  may  be  stipulated  that  the 
heirs  or  executors  of  partners  themselves  shall 

p-37  N.  H.  9.  q-CoUyer  Partn.  g  97 ;  3  McLean  C. 
C.  364,  S4Q  ;  3  Campb.  310  ;  1  Ball.  &  B.  9  ;  6  Bingh. 
776;  4  NIoore  &  P.  713;  20  N.  H.  453,  454;  39  Me. 
157.  r-i  Campb.  404  :  5  Brown.  Pari.  Cas.  489  ;  CoU- 
yer  Partn.  ?  98  ;  but  see  Chitty  Bailm.  120.  As  to  how 
knowledge  01  the  terms  of  the  agreement  under  which 

Sarties  are  associated  will  affect  third  persons,  see  6 
let.  (Mass.)  93,  94;  6  Pick.  372;  15  Mass.  339;  4 
Johns.  251  ;  5  Cow.  480  ;  28  Vt.  108.  s-5  Scott,  619, 
635  ;  4  Esp.  89  ;  I  Cr.  &  J.  316 ;  5  Mass.  C.  C.  176 ;  9 
Pick.  272  :  5  Pet.  529  ;  2  Harr  &  G.  159  :  Chitty  Contr. 
(Ed.  i860),  262  ;  5  Watts.  454;  i  Dougl.  371 ;  i  H.  Bl. 
37;  3  Price,  538.  t-i  Story  C.  C.  371,  376;  5  Mas.  C. 
C.  187,  188;  5  Pet.  574  ;  10  Vt.  170;  16  Johns.  40;  16 
East.  174 ;  1  H.  Bl.  31 ;  2  Id.  247 :  CoUyer  Partn.  §  18. 
n-Per  Mansfield,  Dougl.  ^71  ;  4  East.  143  ;  4  B.  &  Aid. 
663  ;  3  C.  6.641,  650  lo  Johns.  226.  v-Collyer  Partn. 
I  85.  w-CoUyer  Partn.  ^25,  39  ;  Story  Partn.  ?§  33,  34, 
49.55;  4Sandf.  311;  14  Pick.  195;  6  Met.  (Mass.)  91  ; 
12  Conn.  69  ;  2  McCord,  421  ;  3  Wils.  40;  but  see  38 
N.  H.  287.      x-See  I  Campb.  330 ;    i6Vt.  119;    10  Id. 


be  partners,*  and  such  stipulation  is  binding.* 
Although  the  delectus  personce,  which  is  inher- 
ent in  the  nature  of  partnership,  precludes  the 
introduction  of  a  stranger  into  the  concern 
against  the  will  of  any  of  the  partners,  yet  no 
partner  is  precluded  from  entering  into  a  sub- 
partnership  with  a  stranger.^  In  such  case  the 
stranger  may  share  the  profits  of  the  particulal 
partner  with  whom  he  contracts. 

Powers.  It  may  be  stated,  as  a  general  prin- 
ciple which  governs  all  partnerships  in  trade, 
that  each  individual  partner  constitutes  the 
others  his  agents  for  the  purpose  of  entering 
into  all  contracts  for  him  within  the  scope  of 
the  partnership  concern,  and,  consequently, 
that  he  is  liable  to  the  performance  of  all  such 
contracts  in  the  same  manner  as  if  entered  into 
personally  by  himself.*  In  truth,  the  law  of 
partnership  is  a  branch  of  the  law  of  principal 
and  agent.  If  two  agree  that  they  should  carry 
on  a  trade  and  share  the  profits  of  it,  each  is  a 
principal  and  each  is  an  agent  for  the  other,  and 
each  is  bound  by  the  other's  contracts  in  carry- 
ing on  the  trade  as  much  as  a  single  principa/ 
would  be  by  the  act  of  an  agent  who  was  ta 
give  the  whole  of  the  profits  to  his  employer. 
Hence  it  becomes  a  test  of  liability  of  one  for 
the  contract  of  another,  that  he  is  to  receive 
the  whole  or  a  part  of  the  profits  arising  from 
that  contract  by  virtue  of  the  agreement  made 
at  the  time  of  the  employment.'  If  an  act  is 
done  by  one  partner  on  behalf  of  the  firm,  and 
it  can  be  said  to  have  been  necessary  for  the 
carrying  on  of  the  partnership  business  in  the  or- 
dinary way,  the  firm  -wiW  prima  facie  be  liable, 
although  in  point  of  fact  the  act  was  not  au- 
thorized by  the  other  partners ;  but  if  the  act 
cannot  be  said  to  have  been  necessary  for  the 
carrying  on  of  the  partnership  business  in  the 
ordinary  way,  the  furm  Will  prima  facie  not  be 
liable.* 

JEach  partner  has  power  to  manage  the  ordi- 
nary business  of  the  firm,  whatever  it  may  be, 
and,  consequently,  to  bind  his  partners,  whether 
they  be  ostensibly  dormant,  actual,  or  normal,* 
by  whatever  he  may  do  in  the  course  of  such 
management,  as  entirely  as  himself.  A  partner 
may,  for  instance,  borrow  money,*  purchase 
goods,J  and  sell''  the  whole  of  the  partnership 
goods  at  a  single  sale.'     So  he  may  pledge  the 

170;  6  Pick.  33s;  14  Id.  193;  6  Met.  (Mass.)  91;  4Me. 
264:  12  Conn.  69;  38  N.  H.  287,  304;  Coll.  Partn.  § 
35  ;  and  note  Abbott,  C.  J.  :  4  B.  &  Aid.  663.  y-7  Pick. 
215.238;  II  Me.  488;  I  Hill  (N.  y.)  234:  8W.  &S.  63; 
16  Ohio,  166  ;  CoUyer  Partn.  gg8, 192  ;  Poth.  Partn.  Ch. 
5,  I  ii.  Art.  91  ;    2  Ro 


7  Pick.  237,  : 
Ch.   34  ;    CoUyer 


Lose  Bank.  254,  z-CoUyer  Partn.  g 
3  Kent  Coram.  55,  56.  a-2  Ves. 
34  ;  t^ollyer  Partn.  9,  228,  et  seq. ;  3  Kent 
Comm.  56,  57;  I  Swanst.  510,  «.,•  9  Ves.  Ch.  500; 
7  Conn.  307.  b-Poth.  Partn.  w.  145.  c-Dig.  lib.  17 
tit.  2,  s.  20;  Poth.  Partn.  Ch.  5,  §  ii,  «.  91.  e-6 
Bingh.  792  ;  Story  Partn.  i ;  20  Miss.  122;  10  N.  H. 
16:  CoUyer  Partn.  §  195;  Poth.  Partn.  c.  5,  «.  90; 
4  Exch.  623,  630.  f-23  Bost.  L.  Rep.  498.  K-io  B.  & 
C.  128;  14  M.  &  W.  11;  4  Exch.  630;  I  Lindley  Partn. 
192-195.  h-7  East.  210;  2  B.  &  Aid.  673;  1  Cr.  &  J. 
316.  l-i  Esp.  406;  CoUyer  Partn.  ^  390,  391 ;  4  Met. 
(Mass.)  577.  J-Comb.  383  ;  2  Carr.  &  K.  828  ;  5  W.  & 
S.  564.  li-Godb.  244;  Cowp.  445;  3  Kent  Comm.  44. 
I-24  Pick.  89;  CoUyer  Partn.  §  394;  i  Brock.  456;  j 
Watts.  22 ;  4  Wash.  C.  C.  234 ;  i  Harr.  Ch.  a. 


5S« 


PARTNERSHIP. 


partnership  goods*  even  in  the  case  of  a  par- 
ticular adventure."  This  principle  does  not 
extend  to  the  case  of  a  joint-purchase  or  sub- 
purchase.*  The  right  of  a  partner  to  dispose 
of  the  property  of  the  firm  extends  to  assign- 
ments of  it  as  security  for  antecedent  debts,  as 
well  as  for  debts  thereafter  to  be  contracted  on 
account  of  the  firm.P  The  assignment  may  be 
for  the  benefit  of  one  creditor  or  of  several,  or 
of  all  the  joint  creditors  where  all  are  admitted 
to  an  equal  participation.'  It  has  been  held 
that  one  partner  may  without  the  consent  or 
knowledge  of  his  copartners  mortgage  all  the 
goods  of  the  firm  to  secure  a  particular  cred- 
itor of  the  firm.'  The  right  of  one  partner  to 
dispose  of  the  partnership  property  is,  how- 
ever, confined  strictly  to  personal  eiffects,  and 
does  not  extend  to  real  estate  held  by  the  part- 
nership.* 

A  partner  may  draw,  accept,  and  indorse 
Ulls,  notes,  and  checks  in  the  name  and  for  the 
jse  of  the  firm,*  and  a  note  or  bill  executed  by 
.>ne  partner  in  the  name  of  the  firm  is  prima 
facie  evidence  that  it  was  executed  for  partner- 
ship purposes."  But  if  a  partnership  be  carried 
on  under  a  single  name,  it  has  been  held  that 
the  legal  presumption  in  regard  to  a  note  signed 
by  that  name,  is,  that  it  was  a  personal  and  not 
a  partnership  note.^  One  partner  may  effect 
insurance,*  and  receive  money  for  the  firm,^ 
may  compromise  with  its  deVjtors  or  creditors,? 
and  release  debts  due  to  it,*  and  such  acts  and 
dealings,  if  they  fall  within  the  ordinary  busi- 
ness of  the  firm,"  will  bind  all  the  other  part- 
ners. A  warranty  of  a  horse  upon  sale  thereof 
by  one  of  several  horse-dealers'  partners  would 
bind  the  others.*"  Upon  the  principle  that  the 
act  and  assurance  of  one  partner,  made  with 
reference  to  business  transacted  by  the  firm, 
will  bind  all  the  partners;  the  acknowledg- 
ment, promise,  or  undertaking  of  one  partner 
with  reference  to  the  contracts  of  the  partner- 
ship, is  held  to  be  the  acknowledgment,  promise, 
or  undertaking  of  all.' 

Power  to  Interfere  with,  or  Dissent  from 
Future  Contracts,  etc.  One  partner  may  inter- 
fere, and,  by  his  dissent  from  future  contracts  by 
his  copartner,  or  from  closing  of  contracts  with 

m-Bam.  343  ;  2  Kent  Comm.  46 ;  Collyer  Partn.  \  396 ; 
10  Hare  Ch.  453;  5  Exch.  480;  6M.  &G.  607.  n-Gow. 
132,  135  note :  J  Rose  Bank.  297;  4  B.  &  C.  867.  o- 
5  B.  &  Aid.  395.  n-Story  Partn.  j  loi ;  5  Cranch.  298 ; 
1  Brock  456  ;  17  Vt.  394.  O-Story  Partn.  \  loi ;  4  Day, 
428;  6  Pick.  360;  4  M'Cord,  519  ;  4  Mas  C.  C.  206;  5 
Watts,  22  ;  I  Hoff.  Ch.  511.  r-i  Met.  (Mass.)  518,  519  ; 
7  Id.  248.  s-i  Met.  (Mass.)  518,519;  Story  Partn.  j 
101  ;  I  Brock.  456,  463.  f-Salk.  126;  7  T.  R.  210;  2 
Peake.  150;  3  Dowl,  219;  B.  N.  P.  279;  20  Miss.  226; 
4  John.<;.  265  ;  Story  Partn.  \  102  ;  5  Blackf.  210  ;  4  Md. 
288.  n-CoUyer  Partn.  g  401,  note;  6  Wend.  615;  16 
Me.  410;  5  Mass.  C.  C.  176;  7  Ala.  N.  S.  119.  v-See 
36  Barb.  610:  38  Me  506;  5  Pick.  11.  w-4Campb.  66; 
Collyer  Partn.  J  438  ;  Story  Partn.  §  102.  x-Holt.  434 ; 
Cowp.  814  y-'Story  Partn.  2  115;  7  0111.40;  Rice, 
891.  «-3  Kent  Coram.  48;  Cnitty  Contr.  (Ed.  i860) 
274 ;  Collyer  Partn  i  468  and  note  ;  Bac.  Abr.  Release 
{D):  3Bingh.  103:  17  Johns.  58;  7  N.  H.  567;  4  Mas. 
C.  C.  232  ;  4  Gill  &  J.  310;  3  Wash.  C.  C.  511  ;  3  C.  B. 
J4'»  745 ;  Story  Partn.  <(  115.  a-6  Beav.  Rolls,  324  ;  2 
Phill.  354.  b-2  B.  &  Aid.  679.  c-i  Taunc  104  ;  Story 
Partn.  \  jot;  i  Esp.  135;  i  Russ.  &  M.  199;  4  B.  & 
Aid.  663;  4  Dowl.  &  R.  7;  I  Salk.  201;  CoUyer  Partn. 


him  which  have  not  become  binding  upon  the 
firm,  he  may,  upon  express  notice  thereof,  avoid 
any  liability  subsequently  arising  upon  such  con- 
tracts if  entered  into,  unless  the  dissenting 
partner  afterwards  assents  to  and  ratifies  the 
transaction."*  But  it  seems  that  the  dissenting 
partner  would  not  be  liable  merely  on  the 
ground  that  the  goods  purchased,  or  the  fruits 
of  the  contract,  came  to  the  use  of  the  firm,* 
unless  they  were  of  some  benefit  to  the  firm.' 
It  has,  however,  been  questioned  whether  the 
dissent  of  one  partner  where  the  partnership 
consists  of  more  than  two,  will  affect  the  validv 
ity  of  partnership  contracts  made  by  the  major- 
ity of  the  firm  in  the  usual  course  of  business, 
and  within  the  scope  of  the  concern.*  In  the 
absence  of  an  express  stipulation,  a  majority 
must  decide  as  to  the  disposal  of  the  partner- 
ship properly,''  but  the  power  of  the  majority 
must  be  confined  to  the  ordinary  business  of  the 
partnership.'  It  does  not  extend  to  the  right 
to  change  any  of  the  articles  thereof,^  nor  to 
engage  the  partnership  in  transactions  for  which 
it  was  never  intended.''  Where  a  majority  is  au- 
thorized to  act,  it  must  be  fairly  constituted,  and 
must  proceed  with  the  most  entire  good  faith.' 

Power  to  Bind  the  Firm  in  Submission,  Arbi- 
tration, Confession  of  Judgment,  etc.  One  part- 
ner cannot  bind  the  firm  by  submitting  any  of 
the  affairs  of  the  firm  to  arbitration,  whether 
by  deed  or  parol."  The  principle  is  that  there 
is  no  implied  authority,  excepting  so  far  as  it  is 
necessary  to  carry  on  the  business  of  the  firm." 
It  might  also  affect  the  rights  of  the  other  part- 
ners to  resort  to  the  ordinary  course  of  justice.* 
Still,  in  some  States,  one  partner  may  submit 
partnership  matters  to  arbitration.P 

One  partner  cannot,  by  confessing  a  volun- 
tary judgment,  bind  his  copartners,  unless 
actually  brought  into  court  by  regular  service 
of  process  against  him  and  his  partner;  a  judg- 
ment so  confessed  will  bind  the  partners  who 
did  it  only.i  Nor  can  one  partner,  by  enter- 
ing an  appearance  for  another,  bind  him  per- 
sonally and  individually,  where  the  latter  is  not 
within  the  jurisdiction,  and  has  not  been  served 
with  process.' 

One  partner  will  he  bound  by  the  fraud  of 

J  422.  d-i  Stark.  164 ;  3  Kent  Comm,  45;  3  Comm. 
124;  I  Campb.  403;  16  Vin.  Abr.  244;  15  Me.  198; 
Collyer  Partn.  ?§^  388,  389 ;  Poth.  Partn.  n.  90.  e-is 
Me.  178,  181 :  3  Conn.  124;  10  East.  204  ;  i  Younee  & 
J.  227,  230.  l-i  Stark.  104 ;  15  Me.  181.  |f-3  Kent 
Comm.  45 ;  Collyer  Partn.  g§  147,  389  and  note ;  Story 
Partn.  2  123;  1  Johns.  Ch.  400;  4  Id.  573,  597;  i  Turn. 
&  R.  Ch.  496,  517,  525.  h-i  Chitty  Com.  L.  234.  1- 
CoUyer  Partn.  J  J97 ;  9  Hare  Ch.  326 ;  3  De  Gex.  &  J, 
123;  4  Kay.  &  J.  733;  2  Phill.  740;    14  Beav.  Rolu. 


367;   2  Dc  Gex.  M.  &  G.  49;  3  Smale  &  G.  176.    J 
Collyer  Partn.  ?  198;  Story  Part.  ?  125;  4  Johns.  Ch 

'3  ;  32  N.  J 

M.  &  S.  41 

urn.  &  R.  t„h.  5 :., . 
S.  3io._  111-3  Kent  Comm.  49:    Story  Partn.  gj  114, 


573:  32  N.  H.  9.  ,_  ,  ^.        .. 

M.  &  S.  488 ;  I  Taunt.  241  ;  i  Sim.  &  S.  Ch.  31.     I- 


Gow.  Partn.  (3d  Ed.)  J98  App. 
It.  241  ;  I  Sim.  &  S.  Ch.  ^i.  1 
10  Hare  Ch.  493  ;    5  De  Gex.  & 


115  ;  3  Bingh.  loi ;  3  Hurlst.  &  N.  500;  i  Cr.  M.  &  R. 
681 ;  3  C.  B.  742,  745  :  19  Johns.  137 ;  I  Pet.  aai :  ColL 
Partn.  \  439,  470.  n-i  Lr.  M.  &  R.  581 ;  3  Bineh.  101. 
O-Collyer  Partn.  §439.  p-Wright,  420 ;  12  S.  &  K. 
243;  3  Monr.  433.  q-i  Wend.  311 ;"  i  Blackf.  352  ;  t 
W.  &  S.  340,  519 ;  7  Id.  172  ;  3  C.  B.  742 ;  Coll.  Part*. 
g  464,  «. ;  4  Moore  &  P.  57.  r-9  Cush.  360;  x  How. 
165. 


PARTNERSHIP, 


557 


hit  copartner  in  contracts  relating  to  the  afFairs 
of  the  copartnership  made  with  innocent  third 
persons.*  This  doctrine  proceeds  upon  the 
ground  that,  where  one  of  two  innocent  persons 
must  suffer  by  the  act  of  a  third  person,  he  shall 
suffer  who  has  been  the  cause  or  occasion  of 
the  confidence  and  credit  reposed  in  such  third 
person.*  The  liability,  therefore,  does  not 
arise  when  there  is  collusion  between  the 
fraudulent  partners  and  the  party  with  whom 
be  deals,"  or  the  latter  have  reason  to  suppose 
that  the  partner  is  acting  on  his  own  account.' 
A  partner  may  be  made  liable  for  other  wrongs 
committed  in  reference  to  the  partnership  busi- 
ness by  his  copartners ;  as,  where  a  partner  in- 
jures a  third  person  by  negligence  in  driving  a 
coach,  the  property  of  the  firm  and  employed 
on  their  business.*  A  joint  conversion  may  be 
raised  in  point  of  law,  by  the  assent  of  the 
partner  to  the  acts  of  his  copartner.*  Demand 
of,  and  refusal  by  one  partner  to  deliver  up 
property  is  evidence  of  a  conversion  by  both.' 
But  the  wilful  tort  of  one  partner  seems  not  in 
general  to  be  imputable  to  the  firm.* 

Private  Arrangements  between  Partners,  etc. 
No  arrangements  between  the  partners  them- 
selves can  limit  or  prevent  their  ordinary  re- 
sponsibilities to  third  persons,  unless  the  latter 
assent  to  such  arrangements.'  But  where  the 
creditor  has  express  notice  of  a  private  arrange- 
ment between  the  partners,  by  which  either  the 
power  of  one  to  bind  the  firm,  or  his  liability 
on  partnership  contracts  is  qualified  or  defeated, 
such  creditor  will  be  bound  by  the  arrange- 
ment.**  The  act  or  contract  of  one  partner, 
even  in  a  transaction  purely  of  a  partnership 
nature,  does  not  bind  the  firm,  if  the  creditor 
has  express  notice  from  the  other  partners  that 
they  will  not  consider  themselves  responsible," 
for  the  authority  of  one  partner  to  bind  the 
firm  is  only  implied ;  and  no  one  can  become 
the  creditor  of  another  against  his  express  and 
declared  will.* 

The  partnership  property  consists  of  the  orig- 
inal stock  and  the  additions  made  to  it  in  the 
course  of  trade.  All  real  estate  purchased  for 
the  partnership,  paid  for  out  of  the  funds  thereof, 
and  devoted  to  partnership  uses  and  trusts, 
whether  the  legal  title  is  in  one  or  all  of  the 
partners,  is  treated  in  equity  in  the  same  man- 
ner as  other  partnership  property  until  the  part- 

»-Collyer  Partn.  \  445  ;  2  B.  &  Aid.  79s  ;  Cowp.  114  ; 
T  Met.  (Mass.)  563  ;    6  Cow.  497;    i  Ry.  &  M.  364  ;    6 

B.  &  C.  561 ;  2  Clark  &  F.  Ho.  L.  250  ;  7  Monr.  617  :  x 
C.impb.  185  ;  7lred.4;  15  Mass.  75,  81,  331 ;  17  Id. 
182;  Bisset  Partn.  76.  t-Story  Partn.  §  108  :  1  Met. 
(Mass.)  562,  563.  u- Bisset  Partn.  80,  81 :  i  East.  48, 
53.  v-Peake,  80,  81  ;  Chitty  Contr.  (Ed.  i860),  280, 
284  ;  2  C.  B.  821 ;  10  B.  &  (J.  298.  w-Chitty  Contr. 
(Ed.  i860)  280,  a  note;  Collyer  Partn.  g  458 ;  12  N.  H. 
276.  x-CoUyer  Partn.  §458;  iM.  &S.  588;  Story 
Partn.  \  166.  y-4  Hill,  13  ;  24  Wend.  169  ;  4  Rawle, 
120.  «-3Dowl.  160;  10  Exch.  352.  a-ColIyer  Partn. 
j  386;  I  B.  &  Aid.  679  ;  3  Kent  Comm.  41  ;    5  Mas.  C. 

C.  187,  188 :  s  Pet.  129  :  3  B.  &  C.  427-  b-CoUyer 
Partn.  \  387;  12  N.  H.  27s;  4  I^d.  129;  38  N.  H. 
287 ;  6  Pick.  372  ;  4  Johns.  251 ;  5  Conn.  597,  598 ;  i 
Campb.  404;  s  Brown  Pari.  Cas.  489;  1  Lindley  Partn. 
260,  */  teq.  267-269.  C-i  Salk.  202  ;  10  East.  264  ;  i 
Stark.  164;  I  Vounge  &  J.  227.     d-Chitty  Contr.  (Ed. 


nership  account  is  settled,  and  the  partnership 
debts  are  paid.*  Leases  of  real  estate  taken 
by  one  partner  for  partnership  purposes,  mines, 
and  trade-marks,  are  held  to  be  partnership 
property.' 

A  peculiar  species  of  interest,  called  good- 
will of  the  trade  or  business,  is  often  treated  as 
in  some  sort  a  part  of  the  partnership  property.* 
It  is  considered  to  enhance  the  value  of  the 
effects  on  it,  is  attendant,  and  will,  therefore,  be 
included  in  a  decree  for  the  sale  of  those 
effects.''  The  good-will  of  a  professional  part- 
nership belongs,  in  the  absence  of  express  stipu- 
lation, exclusively  to  the  survivors.' 

Partners  as  joint  Tenants,  and  Differing 
from  Tenants  in  Common,  etc.  Partners  are 
said  to  be  joint  tenants  of  the  partnership  prop. 
erty,  without  benefit  of  survivorship  inter  seJ 
But  in  addition  to  the  ordinary  right  of  joint 
tenants,  each  partner  has  also  a  power,  singly, 
to  dispose  of  the  entire  right  of  all  the  partners 
in  the  partnership  effects,  for  the  purposes  of 
partnership,  and  in  the  name  of  the  firm.'' 

Partnership  also  differs  from  a  tenancy  in 
common  in  reference  to  the  power  of  disposal, 
and  because,  inter  se,  each  partner  has  a  claim, 
not  to  any  specific  share  or  interest  in  the  prop- 
erty in  specie,  as  a  tenant  in  common  has,  but 
to  the  proportion  of  the  residue  which  shall  be 
found  to  be  due  to  him  upon  the  final  balance 
of  their  accounts,  after  the  conversion  of  the 
assets,  and  the  liquidation  thereout  of  all  the 
claims  upon  the  partnership;  and,  therefore, 
each  partner  has  a  right  to  have  the  same  ap- 
plied to  the  discharge  and  payment  of  all  such 
claims  before  any  one  of  the  partners,  or  his 
personal  representatives,  or  his  individual  cred- 
itors, can  claim  any  right  or  title  thereto.' 

/fa  Partner  has  taken  the  whole  or  any  part 
of  his  share  out  of  the  partnership  stock,  the 
stock  so  taken,  if  identified,  is  applicable  to  the 
payment  of  what,  upon  an  account  taken,  shall 
be  found  to  be  due  from  him  to  the  partner- 
ship, before  it  can  be  applied  to  the  payment 
of  his  separate  creditors."  The  same  rule  will 
apply  to  any  other  property  into  which  the 
partnership  property  may  have  been  converted, 
so  far  and  so  long  as  its  original  character  and 
identity  can  be  distinctly  traced,"  and  hence 
no  separate  creditor  of  any  partner  can,  merely 

i860)  284  :  Collyer  Partn.  J  387.  •-Bisset  Partn.  47- 
56,60;  Story  Partn.  g  98  ;  sVes.  Ch.  189;  3  Swantt 
489  ;  Collyer  Partn.  J  135  ;  10  Cush.  458  ;  4  Met.  «,'7; 
5  Id.  562  ;  3  Kent.  Comm.  37;  27  N.  H.  37.  f-17  Ves. 
Ch.  298;  Bisset  Partn.  60,  61  ;  i  Taunt.  250;  10  Jur. 
106 ;  5  Ves.  Ch.  308  ;  Story  Partn.  ?  98.  K-But  Chan- 
cellor Kent  says :  "  The  good-will  of  a  trade  is  not  part- 
nership stock."  3  Kent  Comm.  64.  Still,  the  eood-wiV 
of  a  business  is  often  recognized  as  a  valuable  interest. 
3  Mer.  Ch.  452.  45"; :  i  Hoff.  Ch.  68 ;  5  Ves.  Ch.  539. 
ll-CoUyer  Partn.  gj  161,  322  :  Story  Partn.  g?  09,  100  ; 
Bisset  Partn.  62.  i-Bisset  Partn.  64 ;  3  Madd.  Ch.  64,- 
Collyer  Partn.  J  163.  J-Bisset  Partn.  34,4s;  7  Jar- 
man  Conv.  67;  Com.  Dig.  AfercAants  (t).)-  Coilyer 
Partn.  ?  123  ;  Story  Partn.  ^  89,  90.  b-Bisset  P-irtn. 
45 ;  Story  Partn  J  90  ;  Cowp.  445.  1-Story  Partn. 
?97;  7  Jarman  Conv.  68;  Cowp.  469;  i  Ves.  Sen. 
Ch.  2^9;  4  Vei.  Ch.  396;  6  Id.  119;  17  Id.  103.  111- 
I  P.  Wms.  180;  Collyer  Partn.  J  120;  Story  Partn.  { 
07.    11-4  Harr.  &  M'U.  167;  Story  Partn,  g  97. 


S5« 


fARTNEUSHlP. 


AS  such  creditor,  take  any  portion  of  the  part- 
nership effects,  by  process  or  otherwise,  except 
for  so  much  as  belongs  to  that  partner,  and  his 
share  or  balance  after  all  prior  claims  thereon 
are  deducted  and  satisfied." 

Each  Partner  has  also  a  specific  lien  on  the 
present  and  future  property  of  the  partnership, 
the  stock  brought  in,  and  everything  coming 
in  lien,  during  the  continuance  and  after  the 
determination  of  the  partnership,  not  only  for 
the  payment  of  debts  due  to  third  persons,  but 
also  for  the  amount  of  his  own  share  of  the 
partnership  stock,  and  for  all  moneys  advanced 
by  him  beyond  that  amount  for  the  use  of  the 
partnership,  as  also  for  moneys  abstracted  by 
h's  copartners  beyond  the  amount  of  his  share. p 
This  lien  attaches  on  real  estate  held  by  the 
partnership  for  partnership  purposes,  as  well  as 
upon  the  personal  estate,'  and  is  co-extensive 
with  the  transactions  on  joint  account.' 

Each  Partner  is  Liable  to  pay  the  whole  Part- 
nership Debts.  In  what  proportion  the  partners 
shall  contribute  is  a  matter  merely  among 
themselves.*  Universally  whatever  agreement 
may  exist  among  the  partners  themselves, 
stipulating  for  a  restricted  responsibility,  and 
however  limited  may  be  the  extent  of  his  own 
separate  beneficial  interest  in,  and  however 
numerous  the  members  of  the  partnership,  each 
individual  member  is  liable  for  the  joint  debt 
to  the  whole  extent  of  his  property.' 

The  a'-t  or  admission  of  one  partner  in  legal 
proceedings,  as  also  notice  to  or  by  one  partner, 
as  a  general  rule,  is  held  to  be  binding  on  the 
firm."  In  an  action  against  partners,  one  may 
enter  an  appearance  for  the  rest,^  but  not  to 
bind  them  personally  and  individually  when 
not  within  the  jurisdiction,  and  not  served  with 
process.'  Where  one  partner  released  an  ac- 
tion after  the  firm  had  instructed  their  attorney 
to  proceed  to  trial,  the  court  refused  to  inter- 
fere.* And  it  seems  that  one  partner  has  also 
the  power  of  suspending  proceedings  in  an  ac- 
tion.? One  partner  may  give  notice  of  aban- 
donment under  a  policy  of  insurance  for  all.* 
Notice  of  dishonor  to  one  of  several  partners, 
joint  indorsers  of  a  bill  or  note,  is  notice  to 
all.'  One  partner  may  act  for  the  others  in 
proceedings  under  the  bankrupt  laws,''  except 
in  the  case  of  a  petition  for  a  fiat.* 

O-Story  Partn.  ?  97  :  9  Me.  28  ;  Collyer  Partn.  ?  822, 
and  notes  :  5  Johns.  Ch.  417.  p-Story  Partn.  2^97,  326, 
441;  CollVer  Partn.  g  125;  3  Kent  Comm.  65,  66;  8 
D.-ina,  278  ;  10  Gill  &  J.  253  ;  20  Vt.  479  ;  9  Cush.  558  ; 
I  Lindley  Partn.  576  ;  i  Ves.  Sen.  239 ;  9  Beav.  Rolls. 
239:  20  Id.  20;  25  Id.  280;  3  Mont.  D.  &  D.  198.  q- 
5  Met.  (Mass.)  562,  577-579,  585.  r-i  Dana,  58;  11 
Ala.  (N.  S.)  412.  H-Per  Mansfield,  5  Burr.  2613.  t- 
Bisset  Partn.  9;  5  Burr.  2611;  2  W.  Bl.  947;  9  East. 
516 ;  5  T.  R.  601  ;  i  Ves.  &  B.  Ch.  Jr.  157  ;  2  Deas. 
148;  6  S.  &  R.  333;  I  Lindley  Partn.  300.  u-ColIyer 
Partn.  ^  441,  442,  443;  15  Mass.  44:  2  Wash.  C.  C. 
388;  4  Conn.  326;  3  Littell,25o;  Story  Partn.  ?  107;  i 
M  &  S  259;  sld.  49;  I  C.  &  P.  5So;  I  Campb.  82;  2 
L'l.  &  M.  318.  ■v-7  T.  R.  207;  17  Vt.  531;  see  2  M'- 
L'ord,  310.  w-9  Cush.  360;  11  How.  165.  X-7  J.  B. 
Moore,  356.  y-Bisset  Partn,  75 ;  Gow.  Partn.  65,  note. 
»-5  M.  &  S.  47.     a-Chitty  Kills,  339;  6  La.  684;  20 


Johns.  176.     b-CoUyer  Partn.  ?  444;  4  Ves.  Ch.  579 

ig  Id.  291  :  1   Rose  Bank,  2 ;  2  Id.   174;  Bisset  Partn. 

lEng.  Ed.)  76.    c-Bissot  Partn.  76.    d-5  Q.  B.  833;  4 


Power  to  Bind  the  Firm  outside  of  Partner- 
ship Transactions,  etc.  A  partner  derives  no 
authority  from  the  mere  relation  of  partnership 
to  bind  the  firm  as  the  guarantor  of  the  debt  of 
another,*  or  as  a  party  to  a  bill  or  note  for  the 
accommodation  of,  or  as  a  mere  and  avowed 
surety  for  another.'  In  neither  of  these  ca.ses 
can  the  act  of  one  partner  bind  the  firm,  unless 
there  be  a  special  authority  for  the  purpose,  or 
one  to  be  implied  from  the  common  course  of 
business,  or  the  previous  course  and  habit  of 
dealing,  with  the  knowledge  and  consent  of  th« 
firm,  or  unless  the  transaction  is  subsequently 
adopted  by  the  firm.'  Whether  it  appears  upon 
the  instrument  or  in  some  other  way,  that  the 
contract  is  one  of  guaranty,  suretyship,  or  accom- 
modation, the  burden  of  proof  is  upon  the  party 
holding  it,  if  he  took  it,  knowing  such  to  be  the 
character  of  the  contract,  to  show  the  facts  neces- 
sary to  render  it  available  against  the  firm.« 
Direct  or  positive  proof  is  not  necessary ;  the 
authority  or  ratification  may  be  inferred  from 
circumstances.'' 

The  Act  of  a  Partner  wholly  unconnected 
with  the  business  of  the  Partnership  does  not 
bind  the  firm.'  Still  a  partner  may  bind  the 
firm  in  matters  out  of  the  usual  course  of  the 
business  of  the  firm,  if  those  matters  arise  out 
of,  and  are  connected  with,  the  regular  transac- 
tions of  the  firm.J  If  one  partner  is  a  trustee, 
and  he  improperly  employs  the  trust  funds  in 
the  partnership  business,  his  knowledge  that 
he  is  doing  so  is  not  imputable  to  the  firm.'' 

If  a  partner  applies  partnership  funds  to  the 
payment  of  his  own  debts  this  act  is  void,  al- 
though the  creditor  did  not  know  that  the 
funds  belonged  to  the  partnership.'  And 
where  any  creditor  of  one  member  of  the  firm 
takes  from  him  either  in  payment  or  security 
for  his  debt  the  paper  of  the  firm,  he  takes  it  in 
fraud  of  the  firm,  and  the  firm  will  not  (unless 
their  interest,  or  assent  and  authority  be  shown) 
be  held." 

Contracts  to  Convey  Peal  Estate.  Contracts 
by  Deed,  etc.  One  partner  without  authority, 
express  or  implied,  from  circumstances  cannot 
bind  the  firm  by  a  contract  to  convey  real  estate 
of  the  partnership  unless  there  be  a  subsequent 
ratification  or  adoption  of  the  contract."     One 

Exch.  623;  Collyer  Partn.  ?  421;  Chitty  Contr.  (Ed. 
i860)  276,  277,  and  notes  ;  Story  Partn.  §  127;  3  Kent 
Comm.  46,  47;  3  Ired.  241  ;  2  Harr.  24;  2  Ala.  (N.  S.) 
502  ;  2  Cush.  309.  e-2  Cush.  309 ;  Coll.  Partn.  J  421  ; 
19  Johns.  154;  I  Wend.  531;  5  Conn.  574;  21  Miss. 
122  ;  31  Me.  452  ;  3  Humph.  507  ;  14  Wend.  133,  138  ;  4 
Hill  ("N.  Y.)  161.  f-Collyer  Partn.  ?  421,  and  note;  3 
Kent  Comm.  46,  47 ;  Chitty  Contr.  (Ed.  t86o)  276,  277 ; 
J  Humph.  597;  4  Hill  (N.  V.)  261.  K-ig  Johns.  154;  7 
Wend.  309;  2  Cush.  314,  315;  2  Penn.  St.  177;  21 
Miss.  122:  22  Me.  188,  189;  31  Id.  454.  I1-2  Cush. 
309;  22  Me.  188,  189;  14  Wend.  133;  2  Littell,  41;  10 
Vt.  268.  1-4  Exch.  623  ;  Collyer  Partn.  ?g  437,  484;  3 
B.  &  Aid.  678  ;  4  Johns.  265:  8  Me.  820  ;  15  Pick.  290; 
3  Conn.  198;  3  Johns.  Ch.  23;  Story  Partn.  JJ  112,  113; 
Chitty  Contr.  (Ed.  i860)  275;  3  Q.  B.  316;  4  Dana, 
378;  2  El.  &  Bl.  61.  J-Coliyer  Partn.  ^  484;  2  B.  & 
Aid.  673.  fc-i  Lindley  Partn.  231 ;  i  Brock,  386.  I-12 
Peters,  229  ;  16  Johns.  34  ;  7  Wend.  326  ;  23  Ala.  558  ; 
24  Miss.  170.  in-14  Wend.  33 ;  11  S.  &  Marsh.  322; 
18  Penn.  40S ;  11  Cush.  62;  4  Sold.  408.  n-5  Hill  (N, 
V.)  107. 


PARTNERSHIP. 


559 


partner  has  no  implied  authority  to  bind  his 
copartners  by  deed,"  but  a  deed  made  by  one 
partner  in  the  name  and  for  the  use  of  the 
members  of  the  firm  will  bind  the  other  part- 
ners, if  they  assent  to  it  or  subsequently  adopt 
it;  and  this  consent  or  adoption  may  be  by 
parol.P  So  one  partner  may  bind  the  firm  to  a 
conveyance  by  deed  of  the  effects  of  the  firm 
which  he  might  have  conveyed  without  deed. 
The  mere  circumstance  of  annexing  a  seal  to 
the  instrument  in  such  a  case  does  not  annul 
a  transfer  so  consummated.'  A  deed  of  as- 
signment of  the  partnership  property,  executed 
by  one  partner  as  his  deed  only,  passes  his 
interest  in  the  property.'  The  rule  that  one 
partner  cannot  bind  his  copartners  by  deed 
does  not  extend  to  releases;^  as  a  release  by  one 
partner  is  a  release  by  all,  so  a  release  to  one 
partner  is  a  release  to  all.* 

The  power  of  a  partner  to  dispose  of  the 
property  of  the  firm  does  not  extend  to  real 
estate  held  by  the  partnership;  one  partner  can- 
not convey  away  real  estate  of  the  firm  without 
special  authority." 

Upon  the  decease  of  one  of  several  partners  his 
personal  representatives  become  tenants  in  com- 
mon with  the  surviving  partners.^  Still,  as  the 
surviving  partner  stands  chargeable  with  the 
whole  of  the  partnership  debts,  he  takes  the 
partnership  property  by  survivorship,  for  all 
purposes  of  holding  and  administering  the 
estate,  until  the  effects  are  reduced  to  money, 
and  the  debts  paid."  The  debts  of  the  part- 
nership must  be  collected  in  the  name  of  the 
surviving  partner.'' 

Profits,  Distribution  of.  As  between  the 
partners,  they  may  by  agreement  stipulate  for 
equal  or  unequal  shares  in  the  profit  and  loss 
of  the  partnership,^  but  in  the  absence  of  any 
express  agreement  or  stipulation  between  them, 
and  of  all  controlling  evidence  and  circum- 
stances, the  presumption  is  held  to  be  that  they 
are  interested  in  equal  shares.*  And  the  cir- 
cumstance that  each  partner  has  brought  an 
unequal  amount  of  capital  into  the  common 
stock,  or  that  one  or  more  have  brought  in  the 
whole  capital,  and  the  others  have  only  brought 
industry,  skill,  and  experience,  would  not  seem 
to  furnish  any  substantial  ground  of  difference 

0-3  Kent  Comm.  47,  48  ;  Story  P.irtn.  g  117,  et 
sea.:  Collyer  Partn.  463.  P-'i  Pick.  400;  4  Met. 
(Mass.)  548:  II  Ohio,  223;  Chitty  Contr.  (Ed.  i860) 
278,  note  ;  Collyer  Partn.  462,  et  seq.  §  469,  et  seg.  q- 
I  Brock.  456;  I  Met.  515;  7  Id.  244;  5  Hill,  107;  8 
Leigh.  415.  r-ii  M.  &  W.  128:  but  see  17  Ves.  Ch. 
193,  200  :  5  Mo.  466.  S-Collyer  Partn.  g  468  ;  2  Co,  68 ; 
4  f .  R.  519:  3  Bingh.  loi  ;  3  Johns.  68;  4  Gill  &  J. 
310;  3  Kent  Comm.  48.  t-March,  202  ;  8  Co.  136;  23 
Pick.  444  ;  3  Penn.  57 ;  5  Gill  &  J.  314  :  22  Pick.  305  ; 
Chitty  Contr.  (Ed.  i860)  275.  n.  u-i  Met.  (Mass.)  518, 
519 ;  Story  Partn.  g  loi ;  i  Brock,  456,  46S ;  3  McLean 
C.  C.  27:  Collyer' Partn.  ?  394.  V-CoUyer  Partn.  ? 
346;  3  Kent  Comm.  37;  Story  Partn.  g  346;  35  N.  H. 
403.  W-3  Kent  Comm.  37 ;  Story  Partn.  g  346 :  Coll- 
yer Partn.  |  129  ;  s  Met.  (Mass.)  576,  585  ;  10  Gill  &  J. 
404;  30  Me.  386;  6  Cow.  441  ;  3  Paige,  527  ;  13  Miss. 
44;  18  Conn.  294;  see  1  Exch.  164:  Year  B.  38  Edw. 
III./.  7,  /.  Accompt.  X-6  Cow.  441  ;  Story  Partn.  g 
346;  3  Kent  Comm.  37;  4  Met.  (Mass.)  540.  y-Story 
Partn.  823.  z-Id.  §  34:  Bisset  Partn.  56,  57;  Collyer 
Partn.  \  •i(>T,    i  Mood.  &  R.  527;  6  Wend.  263;  9  Ala. 

86 


as  to  the  distribution.'  Whether  a  partnership 
includes  the  capital  stock,  or  is  limited  to  the 
profit  and  loss,  must  be  determined  from  the 
agreement  and  intention  of  the  parties.* 

A  bona  fide  sale,  for  a  valuable  consideration, 
by  one  partner  to  another,  of  all  the  partner- 
ship effects,  is  valid,  and  the  property  so  con- 
veyed becomes  the  separate  estate  of  the  pur- 
chaser, although  the  firm  and  both  partners  are 
at  the  time  insolvent.* 

Mutual  Rights — Obligations.  Good  faith, 
reasonable  diligence,  and  skill,  and  the  exer- 
cise of  a  sound  judgment  and  discretion,  lie  at 
the  very  foundation  of  the  relation  of  partner- 
ship. The  same  rules  and  tests  are  to  be  ap- 
plied to  the  conduct  of  partners  as  are  ordi- 
narily applied  to  that  of  trustees.  Indeed,  the 
functions,  rights,  and  duties  of  partners  in  a 
great  measure  comprehend  both  those  of  trus- 
tees and  agents.*  If  the  partnership  suffers 
loss  from  the  gross  negligence,  unskilfulness, 
fraud,  or  other  wanton  misconduct  of  a  partner 
in  the  partnership  business,  or  from  a  known 
deviation  from  the  partnership  articles,  he  is 
ordinarily  responsible  over  to  the  other  partners 
for  all  losses  and  damages  sustained  thereby.* 
A  party  withdrawing  the  funds  of  the  concern, 
thereby  diminishing  the  stock,  and  applying  it 
to  his  own  use,  shall  account  to  the  others  for 
the  injury.'  But  if  one  partner,  acting  fairly, 
and  for  the  best  in  his  judgment,  causes  a  loss, 
he  is  not  answerable  to  the  others.*  Not  only 
gross  frauds,  but  intrigues  for  private  benefit, 
are  clearly  offences  against  the  partnership  at 
large,  and,  as  such,  are  relievable.'' 

As  it  is  the  duty  of  the  partners  to  devote 
themselves  to  the  interests  of  the  concern,  to 
exercise  due  diligence  and  skill  for  the  promo- 
tion of  the  common  benefit  of  the  partnership, 
it  follows  that  they  must  do  it  without  any  re- 
ward or  compensation,  although  the  services 
performed  by  the  partners  are  very  unequal  in 
amount  and  value,  unless  there  is  an  express 
stipulation  for  remuneration.'  So  no  partner 
has  a  right  to  engage  in  any  business  or  specu- 
lation which  must  necessarily  deprive  the  part- 
nership of  a  portion  of  his  skill,  industry,  or 
capital,^  nor  to  place  himself  in  a  position  which 

(N.  S.)372;  13  Id.  732;  2  Murphy,  70;  5  Dana,  2ii  ; 
8  Id.  214 ;  I  Ired.  332  ;  i  J.  J.  Marsh,  506  :  i  Lindley 
Partn.  573  ;  20  Beav.  Rolls,  98  ;  7  DeGex  M.  &  G.  239  ; 
17  Ves.  Ch.  49;  7  Hare,  159;  i  Mood.  &  R.  527.  a- 
Story  Partn.  |  24  ;  3  Kent  Comm.  28,  29;  21  Me.  117. 
b-21  Me.  120;  Collyer  Partn.  §3  169-171  ;  see  5  Taunt. 
74  :  4  B.  &  C.  867  ;  Story  Partn.  g  26.  c-9  Cush.  553  : 
Collyer  Partn.  §2  174,  804,  Q03  ;  21  Conn.  130,  137  ;  21 
N.  H.  462,  469.  d-Collyer  Partn.  \\  178,  182  ;  Story 
Partn.  §  169  ;  3  Story  C.  C.  93,  loi  ;  3  Ves.  &  B.  Ch. 
Ir.  36;  I  Johns.  Ch.  470;  10  Hare  Ch.  522,  536;  14 
Beav.  Rolls,  250:  i  Macn.  &  G.  294:  3  Smale  &  G. 
419;  I  Lindley  Partn.  492,493.  e-i  Sim.  Ch.  8g  ;  Path. 
Partn.  n.  133  ;  3  Kent  Comm.  52,  «.  /  Story  Partn.  g 
173,  and  note,  f-i  J.  J.  Marsh.  507  ;  3  Story  C.  C.  loi. 
K-3  Wash.  C.  C.  224.  h-Collyer  Partn.  ?  179  ;  15  Ve«. 
Ch.  227  ;  2  Kent  Comm.  51,  52  ;  i  Sim.  Ch.  52,  89  ;  17 
Ves.  Ch.  298.  I-7  Paige  Ch.  483 ;  i  Anstr.  94  ;  i 
Johns.  Ch.  157,  165  ;  8  Dana,  219  ;  4  Gill.  338  ;  2  Dey. 
&  B.  123 ;  3  Johns.  Ch.  431  ;  Story  Partn.  g  182  ;  Coll- 
yer Partn.  §  183.  I-3  Kent  Comm.  51,  52;  Collyer 
Partn.  \  184  ;  Story  Partn.  J  177 ;  x  Johns.  Ch.  305;  % 
Sim.  &  S.  Ch.  133. 


56o 


PARTNERSHIP. 


gives  him  a  bias  against  the  discharge  of  his 
duty,'  nor  to  make  use  of  the  partnership  stock 
for  his  own  private  benefit,'  nor  to  introduce 
a  stranger  into  the  concern."  Each  partner 
should  keep  precise  accounts,  and  have  them 
always  ready  for  inspection." 

In  all  ordinary  matters  relating  to  the  part- 
nership, the  powers  of  the  partners  are  co-ex- 
tensive, and  neither  has  a  right  to  exclude  an- 
other from  an  equal  share  in  the  management 
of  the  concern,  or  from  the  possession  of  the 
partnership  effects.*  A  partner  ought  not  to 
transcend  the  ordinary  privileges  of  a  partner 
by  incurring  extravagant  and  unnecessary  ex- 
pense in  the  management  of  the  concern,  though 
for  partnership  purposes.?  The  weight  of  au- 
thority is  in  favor  of  the  power  of  a  majority 
of  the  firm  acting  in  good  faith,  to  bind  the 
minority  in  the  ordinary  transactions  of  the  part- 
nership, and  when  all  have  been  consulted.' 

It  is  the  duty  of  those  upon  whom,  by  ap- 
pointment or  otherwise,  it  devolves,  after  the 
dissolution  of  a  firm,  to  wind  up  the  affairs  of 
the  partnership,  to  act  for  the  best  advantage 
of  the  concern,  to  make  no  inconsistent  use  of 
the  property,  and  to  seek  no  private  advantage 
in  the  composition  of  debts,  or  in  any  other 
transaction  in  the  performance  of  this  business.' 
Nor,  in  this  case,  can  any  partner  claim  any 
commission  for  getting  in  the  debts,  or,  in  any 
other  particular,  reward  or  compensation  for 
his  trouble.* 

Right  of  Action  between.  A  partner  may  sue 
a  copartner  on  an  express  agreement  to  do  any 
act  not  involving  a  consideration  of  the  part- 
nership accounts.*  And  if  partners  finally  bal- 
ance all  their  accounts,  or  a  distinct  part  thereof 
is  entirely  severed  by  them  from  the  rest,  a  suit 
is  maintainable  for  the  balance.*  But  one  part- 
ner cannot  sue  a  copartner  at  law  in  respect  to 
any  matter  growing  out  of  the  transactions  of 
the  partnership,  and  involving  an  examination 
of  partnership  accounts."  If  one  of  a  partner- 
ship who  are  plaintiffs  be  also  one  of  a  partner- 
ship who  are  defendants,  the  action  cannot  be 
maintained ;  for  the  same  party  cannot  be 
plaintiff  and  defendant  of  record  in  the  same 
action.' 

NAME. 

Firm  is  the  persons  composing  a  partnership, 

k-CoUyer  Partn.  g  i86 ;  i  Madd.  &  G.  Ch.  367 ;  Story 
Partn.  gi75;  i  Sim.  &  S.Ch.  124  ;    9  Sim.  Ch.  607 ;  u 


S.  &  R.  41,  48  ;  3  Kent  Comm.  61.  I-Mosely,  3;  ColU 
jrer  Partn.  g  196  ;  6  Madd.  Ch.  367  ;  4  Beav.  Rolls,  534  ; 
16  Id.  485 ;  17  Ves.  Ch.  298  ;  i  Macn.  &  G.  294  ;  i  Sim. 


Ch.  52  ;  24  C.  S.  209.  m-Collyer  Partn.  gg  8,  192  ;  7 
Pick.  238;  8W.  &S.  63:  16  Ohio,  166.  n-Collyer 
Partn.  g  189 ;  2  Jac.  &  W.  Ch.  558 ;  Story  Partn.  g  181  ; 
16  Ves.  Ch.  51;  I  Lindley  Partn.  665,  666;  3  Beav. 
Rolls,  388,  note ;  i  DeGex  &  S.  692 ;  12  Sim.  Ch.  460; 
a  Phill.  222  :  3  Younge  &  C.  655  ;  20  Beav.  Rolls,  210. 
O-Collyer  Partn.  g  190  ;  2  Paige  Ch.  310 ;  16  Ves.  Ch. 
61  ;  2  Jac.  &  W.  Ch.  558  ;  i  Lindley  Partn.  464.  p- 
Collyer  Partn.  g  191.  q-3  Kent  Comm.  45,  and  note; 
see  also  Story  Partn.  g  123,  and  notes  ;  3  Chitty  Com.  L. 
234  :  6  Ves.  Ch.  777  ;  5  Brown  Pari.  Cas.  476, 489  ;  Turn. 
&R.Ch.  S16,  525;  3  Johns.  Ch.  400,  405,406;  4M.  473; 
1  Vem.  Ch.  465.  r-i  Taunt.  104  ;  i  Swanst.  507  ;  2  Id. 
627.  B-i  Knapp.  Priv.  Counc.  312  ;  3  Kent  Comm.  64, 
note;  Story  Partn.  2331,  and  note  ;  17  Pick.  519;  4 
Cratt.  138 ;    Collycr  Partn.  g  199,  and  note.      But  in  i6 


taken  collectively.  The  name,  style  or  title 
under  which  the  members  of  a  partnership 
transact  business. 

The  word  is  used  as  synonymous  with  part- 
nership. The  words  "house,"  "concern," 
and  "  company,"  are  also  used  in  the  same 
sense.  This  name  is  in  point  of  law  conven- 
tional, and  applicable  only  to  the  persons  who, 
on  each  particular  occasion  when  the  name  is 
used,  are  members  of  the  firm.  A  firm  is 
usually  described  in  legal  proceedings  as  cer- 
tain persons  trading  or  carrying  on  busines* 
under,  and  using  the  name,  style,  and  firm  of, 
etc.* 

It  may  be  that  the  names  of  all  the  members 
of  the  partnership  appear  in  the  name  or  style 
of  the  firm,  or  that  the  names  of  only  a  part 
appear,  with  the  addition  of  "  and  company  " 
("&Co."),  or  other  words  indicating  a  par- 
ticipation of  others,  as  partners  in  the  business,'' 
or  that  the  name  of  only  one  of  the  partners, 
without  such  addition,  is  the  name  of  the  firm. 
It  sometimes  happens  that  the  name  of  neither 
of  the  partners  appears  in  the  style  of  the  firm. 
The  proper  style  of  the  firm  is  frequently 
agreed  upon  in  the  partnership  articles ;  and 
where  this  is  the  case,  it  becomes  the  duty  of 
every  partner,  in  signing  papers  for  the  firm,  to 
employ  the  exact  name  agreed  upon."  This 
may  be  necessary,  not  only  to  bind  the  firm 
itself,*  but  also  to  prevent  the  partner  signing 
from  incurring  a  personal  liability  both  to  third 
persons  and  to  his  copartners."  So,  the  name 
which  a  partnership  assume,  recognize,  and 
publicly  use,  becomes  the  legitimate  name  and 
style  of  the  firm,  not  less  so  than  if  it  had  been 
adopted  by  the  articles  of  copartnership,'  and 
the  partner  has  no  implied  authority  to  bind 
the  firm  by  any  other  than  the  firm-name  thus 
acquired.*  Wherefore,  where  a  firm  consisted 
of  J.  B,  and  C.  H.,the  partnership  name  being 
J,  B.  only,  and  C.  H.  accepted  a  bill  in  the 
name  of  J.  B.  &  Co.,  it  was  held  that  J.  B.  was 
not  bound  thereby.'' 

No  FIXED  Name.  If  a  firm  have  no  fixed 
name,  a  signing  by  one,  in  the  name  of  himself 
and  company,  will  bind  the  partnership,'  and  a 
note  in  the  name  of  one,  and  signed  by  him 
"  for  the  firm,"  etc.,  will  bind  the  company.^ 
Where  the  business  of  a  firm  is  to  be  carried 

Vt.  613,  a  partner  who  performed  services  in  settling  up 
the  affairs  of  the  firm  after  dissolution  was  allowed  com- 
pensation for  thenv-  See  also  15  Mass.  120.  t-8  Cranch, 
30;  6  N.  H.  547;  2  Caines,  293;  2  Bingh.  170:  3  Pick. 
423;  Holt,  368;  26  Vt.  754;  II  Pick.  82;  5  Wend.  274; 
I  Stark.  78 ;  6  B.  &  C.  149 ;  2  T.  R.  478 :  a  Conn.  42s ; 
14  Johns.  318  ;  i  Wend.  532  ;  2  T.  R.  483,  n.  :  2  Bingh. 
170;  16  Wend.  601 ;  3  Ala.  347;  15  Mass.  tj6;  13  Ala. 
214  ;  12  Mass.  32  ;  19  Me.  211.  11-6  B.  h.  C.  149  ;  6 
M.&W.  119;  9  Dana,  257;  3  Cal.  292  ;  i^  Ga.  2J3. 
V-2  Fairf.  196;  Minor  (Ala.)  103:  2  B.  &  P.  120; 
4  Bingh.  149;  8  B.  &  C.  345:  6  Taunt.  597;  2  B. 
&  Ad.  822  ;  12  Ohio,  300;  j  Story,  396;  8  Yere.  in. 
a-See  9  Q.  B.  361 ;  9  M.  &  W.  347;  1  Chitty  Bailm. 
49,  and  ante,  page  55  et  seq.  b-i6  Pick.  428,  429.  c- 
CfoUyer  Part,  g  215  ;  i  Story  Part,  g  2o«.    d-Story  Part. 

5102.  e-Collyer  Part,  g  215;  Story  Part,  gg  102,  20a;  2 
ac.  &  W.  Ch.  268;  II  Ad.  &  E.  339;  Poth.  Part.  «». 
100,  loi.  f-2  Pet.  i86,  198.  if-9  M.  &  W.  284.  I1-9 
M.  &  W.  284;  see  Dav.  Dist.  Ct.  325.  I-2  Ohio,  61. 
J -5  Blackf.  99. 


PARTNERSHIP. 


Stt 


on  in  the  name  of  B.  &  D.,  a  signature  of  a 
note  by  the  names  and  surnames  of  the  respec- 
tive parties  is  a  sufficient  signature  to  charge  the 
partnership.*  Where  a  written  contract  is  made 
in  the  name  of  one,  and  another  is  a  secret 
partner  with  him,  both  may  be  sued  upon  it.' 

Individual's  Name  lskd,  etc.  Where 
partners  agree  that  their  business  shall  be  con- 
ducted in  the  name  of  one  person,  whether 
himself  interested  in  the  partnership  business 
or  not,  that  is  the  partnership  name,  and  the 
partners  are  bound  by  it."  Where  that  name 
IS  the  name  of  one  of  the  partners,  and  he  does 
business  also  on  his  own  private  account,  a 
contract  signed  by  that  name  will  not  bind  the 
film,  unless  it  appears  to  have  been  entered 
into  for  the  firm ;  but,  if  there  be  no  proof  that 
the  contract  was  made  for  the  firm,  the  pre- 
sumption will  be  that  it  was  made  by  the  part- 
ner on  his  own  separate  account,  and  the  firm 
will  not  be  responsible." 

Identity  of  Name.  The  name  of  the  firm 
should  be  distinct  from  the  names  of  all  other 
firms.  When  there  is  confusion  in  this  respect, 
the  partners  composing  one  firm  may,  in  some 
cases,  be  made  responsible  for  the  debts  of 
another.'  Merchants  and  lawyers  have  differ- 
ent notions  respecting  the  nature  of  a  firm. 
Merchants  are  in  the  habit  of  looking  upon  a 
firm  as  a  body  distinct  from  the  members  com- 
posing it.P  The  law  looks  to  the  partners 
tliemselves ;  any  change  among  them  destroys 
the  identity  of  the  firm ;  what  is  called  the 
property  of  the  firm  is  their  property,  and  what 
are  called  the  debts  and  liabilities  of  the  firm 
are  their  debts  and  their  liabilities.  In  point 
of  law,  a  partner  may  be  the  debtor  or  creditor 
of  his  copartners ;  but  he  cannot  be  either 
debtor  or  creditor  of  the  firm  of  which  he  is 
himself  a  member.' 

Suits  in  Firm  Name.  A  firm  can  neither  sue 
nor  be  sued  otherwise  than  in  the  name  of  the 
partners  composing  it.  Consequently,  no  ac- 
tion can  be  brought  by  the  firm  against  one  of 
its  partners,  nor  by  one  of  its  partners  against 
it ;  for  in  any  such  action  one  person  at  least 
would  appear  both  as  plaintiff  and  defendant, 
and  it  is  considered  absurd  for  any  person  to 
sue  himself  even  in  form.'  For  the  same  rea- 
son, one  firm  cannot  bring  an  action  against 
another  if  there  be  one  or  more  partners  in 
both  firms.*  Whenever  a  firm  is  spoken  of  by 
its  name  or  style,  the  courts  admit  evidence  to 
show  what  persons  did  in  fact  constitute  the 
firm  at  the  time  in  question.* 

k-3  C.  B.  792.  1-3  Ala.  134 ;  5  Watts.  454.  in-6 
Hill,  322;  I  Denio.  405,  471,  481.  n-Storv  Part.  J 
139;  Collyer  Part.  2  411,  and  note;  5  Pick,  n  ;  9 
Id.  274;  X  Duer,  405  ;  17  S.  &  R.  165;  5  Mas.  C.  C. 
176;  5  Pet.  529;  2  Bouv.  Inst.  n.  mz  et  sef.  o-See 
Pealce  Cas.  80;  7  East.  210;  2  Bell  Comm.  (5th  Ed.) 
670;  3  Martin  N.  S.  39.  As  to  the  right  of  a  surviving 
partner  to  carry  on  the  business  in  the  name  of  the  firm, 
see  7  Sim.  Ch.  127;  Story  Part,  g  100,  «;  Collyer  Part. 
§  162,  ».  p-Cory  Accounts  (2d  Ed.);  Lindley  Partn. 
c  vii,  p.  103.  a-4  Mvlne  &  C.  Ch.  171,  172.  r-i  B. 
&  Aid.  664;  4  M.  &  C.  Ch.  171,  172;  6  Taunt.  598;  6 
Pick.  320,  321  ;  5  Gill.  &  J.  487  ;  Collyer  Part.  §  642,  n. 
S-6  Tauat.  sgj;  a  Bos.  s.  P.  120.     t-6  Taunt.  15;  4 


Change  in  Name,  etc.  If  persons  trade  or 
carry  on  a  business  under  a  name,  style  or 
firm,  whatever  may  be  done  by  them  under 
that  name  is  binding  as  much  as  if  real  names 
had  been  used."  Any  change  of  the  persons 
composing  a  firm  is  productive  of  a  new  sig- 
nification of  the  name.  If,  therefore,  a  legacy 
is  left  to  a  firm,  that  is  a  legacy  to  those  who 
compose  it  at  the  time  the  legacy  vests  ;^  and  if 
a  legacy  is  left  to  the  representatives  of  an  old 
firm,  it  will  be  payable  to  the  executors  or  the 
survivors  of  the  partners  constituting  the  firm 
alluded  to,  and  not  to  its  successors  in  busi- 
ness.'' Again,  an  authority  given  to  a  firm  of 
two  partners  cannot,  it  would  seem,  be  exer- 
cised by  them  and  a  third  person  afterwards 
taken  into  partnership  with  them.*  A  name 
may  be  a  trade-mark  ;  and,  if  it  is,  the  use  of 
it  by  others  will  be  illegal,  if  they  pass  them- 
selves or  their  own  goods  for  the  firm  or  the 
goods  of  the  firm  whose  name  is  made  use  of.' 
Moreover,  if  this  is  done  intentionally,  the 
illegality  will  not  be  affected  by  the  circum- 
stance that  the  imitators  of  the  trade-mark  are 
themselves  of  the  same  name  as  those  whose 
mark  they  imitate.* 

LIMITED  PARTNERSHIP. 

The  purpose  of  limited  partnership  is  to 
enable  a  party  to  put  into  the  stock  of  a  firm  a 
definite  sum  of  money,  and  abide  a  responsi- 
bility and  share  a  profit  which  shall  be  in  pro- 
portion to  the  money  thus  contributed,  and  no 
more.'  Partnerships  of  this  kind  are  wholly 
unknown  to  the  common  law,  and  are  author- 
ized and  regulated  only  by  statute.  See  Gen- 
eral Statutes. 

1.  The  name  or  firm  under  which  the  part- 
nership business  is  to  be  conducted. 

2.  The  general  nature  of  the  business  to  be 
transacted. 

3.  The  names  of  all  the  general  and  spe- 
cial partners  interested  therein;  distinguishing 
which  are  general  partners  and  which  are  spe. 
cial  partners,  and  their  respective  places  of 
residence. 

4.  The  amount  of  the  capital  stock  whicl, 
each  special  partner  shall  have  contributed  to 
the  common  stock. 

5.  The  period  at  which  the  partnership  is  to 
commence,  and  the  period  when  it  will  termi- 
nate. 

Such  certificate  must  be  acknowledged  by 
the  several  persons  signing  the  same,  before 
some  officer   authorized   by  law   to   take  the 

Maule  &  S.  13  ;  2  Keen.  Rolls,  255.  n-i  Chit^  Bailm. 
707;  3  C.  &  P.  296;  2  Campb.  548;  Hays  &  S.  Exch. 
Ir.  43.  v-See  2  Keen  Rolls,  255;  3  Mylne  &  C.  507  ;  7 
De  Gex.  M.  &  G.  673.  w-ii  Ir.  Eq.  451;  i  Lindley 
Partn.  166.  X-6  Bingh.  N.  &  C.  201 ;  see  4  Ad.  &  E 
482;  16  Sim.  Ch.  121;  7  Hare  Ch.  351;  4  Ves.  Ch.  649 
y-2  Keen  Rolls,  213;  4  Kay  &  J.  Ch.  747.  Jt-13  Beav. 
Rolls.  209  ;  3  De  Gex.  M.  &  G.  896.  a-By  the  com- 
mon law  of  partnership,  he  who  had  any  interest  in  the 
stock  and  received  any  proportion  of  the  profits,  is  a 
partner,  and  as  such  is  liable,  in  solido,  for  the  whole 
debts  of  the  firm.  And  mere  joint  stock  companies, 
without  incorporation,  are,  as  to  all  purposes  of  liability, 
like  common  partnerships.  35  Maine,  30U;  i  Clarke 
(Iowa)  369 ;  7  Wend.  542 ;  4  S.  &  R.  356. 


$62 


PARTNERSHIP— PATENTS. 


acknowledgment  of  deeds ;  and  such  acknowl- 
edgment must  be  made  and  certified  in  the 
manner  provided  by  law  for  the  acknowledg- 
ment of  deeds  for  the  conveyance  of  land.  See 
General  Statutes. 

Partnership  Ortlflcate  and  Acknowl- 
edgrnient. 

We,  the  undersigned,  A.  B.,  C.  D.,  and  E.  F., 
and  G.  H.,  as  partners  under  the  name  (or  firm) 
of  B.  &  D.,  will,  on  the  day  of ,  com- 
mence the  business  of  (here  gvtie  the  general  nature 

ef  the  business  to  be  transacted),  and  on  the  

day  of ,  said  partnership  will  terminate. 

The  names  of  the  general  partners,  and  their 
respective  places  of  residence,  are  as  follows  :  A. 

B.,  ,  county,  State  of  ;   C.  D., , 

——county,  State  of . 

The  names  of  the  special  partners,  and  their 
respective  places  of  residence,  are  as  follows  :  E. 

F.,  ,  county,  State   of  ;  and   G.  H., 

, county.  State  of . 

The  amount  of  capital  which  each  of  said  spe- 
cial partners  has  contributed  to  the  common 
stock  of  said  partnership  is  as  follows:    £.  F., 

—  dollars,  and  G.  H., dollars.  A.  B. 

C.  D. 
E.  F. 
G.  H. 

For  form  of  Acknowledgment,  see  that  title,  ante. 
Affidavit. 
To  be  Indorsed  on  the  back  of  Certificate  gf  Partner- 
shift. 

State  of , county,  ss. 

A.  B.,  being  duly  sworn,  says,  that  he  is  one  of 
the  general  partners  of  the  within-named  part- 
nership, and  that  the  amount  of  money  contrib- 
uted by  each  of  the  within-named  special  part- 
ners to  the  common  stock  thereof  is  as  follows: 

E.  F., dollars,  G.  H., dollars  ;  which  said 

amounts  have  been  actually  and  in  good  faith 
contributed  and  applied  to  the  same.  A.  B. 

Subscribed  and  sworn  to  before  me,  this 

day  of ,  A.  D. , 

J.  P.,  yustice  of  the  Peace. 
Partnership— STotice  of  Terms  of. 
Partnership  Notice. 

Notice  is  hereby  given  that  A.  B.,  C.  D.,  and  E. 
P.,  and  G.  H.,  as  partners,  under  the  name  (or 
firm)  of  B.  &  D. ,  will,  on  the day  of ,  com- 
mence the  business  of .  and  on  the 

day  of said  partnership  will  terminate. 

The  names  of  the  general  partners,  and  their 
respective  places  of  residence,  are  as  follows:  A. 

B.,  ,  county,  State  of ;  C.  D., , 

, county,  State  of . 

The  names  of  the  special  partners,  and  their 
respective  places  of  residence,  are  as  follows  :  E. 

F.,  ,  county.  State  of ;  and  G.  H., 

, county.  State  of . 

The  amount  of  the  capital  which  each  of  said 
special  partners  has  contributed  to  the  common 
stock  of  said  partnership  is  as  follows:  E.  P., 
—^dollars,  and  G.  H., dollars. 

Date .  I  Official  Signature  and  Seal,'\ 

[Publish  six  weeks  successively.} 

State  of , county,  ss. 

P.  P.,  being  duly  sworn,  says,  that  he  is  the 
printer  of  (or,  is  in  the  employ  of  P.  P.,  thj;  printer  of) 

the ,  a  nervspaper  published  in  and  of 

general  circulation  in  said  county ;  and  that  the 
notice,  of  which  the  annexed  is  a  true  copy,  was 

published    for  consecutive   weeks  in    said 

newspaper,  commencing  on  the day  of . 

P.  P. 

Subscribed  and  sworn  to  before  me,  this 

day  of .  [Official  Signature  and  Seal.} 

Partnership— Notice  of  Dissolntion. 
Dissolution  of  Partnership. 

The  partnership  heretofore  existing  under  the 

name  of  B.  &  D.,  wherein  A.  B.,  of  ,  

county.  State   of  ,  and  C.   D.,   of  ,  

county.  State  of ,  were  general  partners,  and 

E.  P.,  of ,  county.  State  of ,  and  G. 

b-34  Barb.  3S3.  e-3  Kent  Comm.  36 ;  3  Denio,  43s ; 
}4  Penn.  St.  344. 


H.,of , county.  State  of ,  •were  special 

partners,  is,  this  day  of ,  A.  D. ,  dis- 
solved by  mutual  consent.                               A.  B. 

CD. 
E.  F. 
G'.H. 
The  affairs  of  the  firm  will  be  adjusted  by  C. 

D.,  at ,  etc. 

[Publish  six  weeks  successively. 1 

For  a  debt  owing  by  all  the  partners,  general 
and  special,  in  a  limited  partnership,  a  suit  is 
well  brought  against  the  general  partners  alone ; 
and  a  judgment  and  execution  in  such  suit, 
levied  upon  the  partnership  property,  will  bind 
the  entire  interest  of  all  the  partners.'' 

Actions  by  and  against  a  Limited  Part- 
nership. Special  partners  are  not  liable  for 
the  debts  of  the  partnership  beyond  the  amount 
of  funds  contributed  by  them  respectively  to 
the  common  stock,  and  all  sums  by  them  re- 
ceived, withdrawn,  or  divided,  with  interest 
thereon  from  the  time  when  they  were  so  with- 
drawn or  divided,  if  they  comply  with  the  re- 
strictions of  the  law.  If  they  do  not  they  be- 
come general  partners,  and,  as  such,  are  liable, 
in  solido,  for  the  whole  debts  of  the  firm." 

Parturition.  See  Medical  Law,  "Birth." 

Party.  See  Bills,  Bonds,  and  Notes;  Con- 
tracts, ETC 

Party  Walls.  See  Real  Property. 

Pass-book.  See  Accounts. 

Passengers.  See  Bailments,  "Common  Car- 
riers of." 

Pastures.  See  Real  Property. 

PATEXTS.  See  Copyrights;  Contracts;  Con- 
veyances. 

Any  person  who  has  invented  or  discovered 
any  new  and  useful  art,  machine,  manufacture, 
or  composition  of  matter,  or  any  new  and  use- 
ful improvement  thereof,  not  known  nor  used 
by  others  in  this  country,  and  not  patented  or 
described  in  any  printed  publication  in  this  or 
any  foreign  country,  before  his  invention  or  dis- 
covery thereof,  and  not  in  public  use  or  on  sale 
for  more  than  two  years  prior  to  his  application 
(unless  the  same  is  proved  to  have  been  aban- 
doned), may,  upon  payment  of  the  fees  required 
by  law,  and  other  due  proceedings  had,  obtain 
a  patent  therefor.  See  Statutes,  and  Rules 
OF  Practice,  below. 
Revised  Siaiiites  at  Large,  Forty-third  Congress, 

Approved  June  22,  1874.     \^As  Amended  by 

Act  of  Congress  Approved  August  1 5,  1876.) 

Subject.  Sec. 

Abandonment  by  delay  of  two  years 
averted  when  Commissioner  is  satis- 
fied that  delay  was  unavoidable  4894 
of   application    by   delay   of  two 

years 4854 

Action  for  infringement  ....  4919 

plea 4920 

Administrator   or   executor   to   make 

oath,  when 4896 

Alien  may  file  caveat  after  one  year's 

residence  and  declaration    .  4903 

Amendment  in  reissue  shall  not  intro- 
duce new  matter  ....  4916 
Annual  report,  when  made  and  what 

to  contain 494 

Appeal  from    board  of  examiners-in- 
chief 4904 

from  examiner  of  interferences      .  4904 
mode  of  proceeding  ....    4888-4891 
twenty  days  allowed  in  case  of  in- 
terference           4904 


PATENTS. 


56r 


Subject. 
KppvtA  to  Commissioner  from  exam- 

iner»-in-cnjef 

to     examiners-in-chief    from     ex- 
aminer of  interferences 
to  examiners-in-chief  after  second 

rejection 

to  Supreme  Court,  District  of  Co- 
lumbia        

Applicant,  oath  of,  before  whom  taken 

shall  be  notified  of  interference 
Application,  abandonment  of,  by  delay 

of  two  years 

for  patent,  what  to  contain 
may  be   made  by  executor  or  ad- 
ministrator        

must    be    completed    within    two 

years  

must  be  sworn  to  by  inventor,  if 

living 

right  of  purchaser  before 
Appointments,  hovtr  made 
Article  patented  must  be  so  marked    . 
Assignment  by  instrument  in  writing 
must    be    recorded    within    three 

months 

Assignments    must    be    recorded    in 

Patent-Office 

Assistant     Commissioner,    how     ap- 
pointed      

salary  of 

Bill  in  equity  may  be  filed  to  compel 

issue  of  patent        .... 
Bonds   of  Commissioner,  chief  clerk 

and  financial  clerk 
Caveat,  any  citizen  who  desires  time 
to  complete  invention  may  file  . 
shall   be  filed    in    confidential    ar 

chives         

when    interfering    must   be    com 

pleted  within  three  months 

Certificate  of  copyright  (Chapter  301 

1874)  

of  extension  of  trade-mark 
of  extension  shall  be  recorded 
required  in  filing  trade-mark  . 
Certified  copies,  of  foreign  patents 
of  trade-mark  to  be  evidence 
shall    be    furnished    to    Supreme 

Court  in  appeals 
to  be  placed  in  the  clerk's  office  of 

United  States  courts 
to  be  used  in  evidence 
Chief  clerk,  salary  of        .        .        . 
to  give  bond         .... 
Claim,  what  to  cover 
Clerk  of  United  States  court  may  sum- 

mon  witness  in  interference  cases 
Commissioner,  appeal  to 

how  appointed    .        .        . 

maybe  summoned  as  witness  by 

Supreme   Court,  District  of  Co 

lumbia 

may  establish  rules  in  interference 

cases  

salary  of 

shall  be  notified  of  hearings  by 
Supreme  Court  of  District  of  Co- 
lumbia        

Pommissioner  shall  cause  examination 

to  be  made 

shall  hear  and  decide  tn  extension 
cases  ....... 

shall  not  record  device  which  can- 
not be  a  lawful  trade-mark  . 
to    control    registration    of   labels 
'^Chapter  301,  1874!  .         .        .        . 

to  countersign  patents 
to  establish  regulations    . 
to  establish  rules  for  taking  testi- 
mony   

to  give  bond 

to  have  charge  of  all  books,  records, 

models,  etc 

to  have  charge  of  collections  of  ex- 
ploring expedition  .... 
to  make  rules   for  transfer  trade- 
marks          


Sec. 

40x0 
4909 
4909 

4911-4914 
4892 
4904 

4804 
4888 

4896 

4894 

4895 

i?? 
4900 
4898 

4898 

4895 

475 
477 

4915 

479 

490a 

4903 

490a 


5 
4937 

4 

«I3 

490,  894 
892 
440 
479 


4906 

4910 

476 


4913 


4905 
477 


4913 
4893 
4927 
4939 

4883 
483 

4905 
479 

481 
495 


Sec 

494 

481 

4890 

49a 


Subject. 
Commissioner  to  prescribe  regulations 
in  filing  trade-marks 
to  report  annually  to  Congress 
to  superintend  grant  of  patents  un- 
der direction  of  Secretary  of  the 

Interior 

Composition  of  matter,  specimens  of 

ingredients  may  be  required 
Contracts     for     lithographing,     how 

awarded 

Copyright,  articles  protected  by,  must 
be  marked  (Chapter  301,  1874)     . 
construction   of  statute   (Chapter 

301,  1874) 

fee  for  recording  (Chapter  301, 1874) 

what  may  be  protected  by  (Chapter 

301,1874) 


Counterfeiting    trade-mark,   penalties 

(act  August  14,  1876)      .        .                .  ... 

Damages  cannot  be  recovered  unless 
defendant  has  been  notified  of  in- 
fringement         4900 

for  infringement,  how  obtained      .  4919 

Decision  of  Commissioner,  appeal  from    4911-4914 

Design  patents,  extension  of  .  4933 

subject  to  same  provisions  as  other 

patents       ......  4933 

for  what  granted        ....  49^9 

Designs,  term  of  patent  for    .        .  4931 
Disbursements,  by  disbursing  clerk  of 

Interior  Department,  all      .        .        .  496 

Disclaimer,  effect  of         ....  4917 

how  filed 4917 

must  be  filed   before   commence- 
ment of  suit 4933 

Division  of  patent  on  reissue.        .        .  4916 

Draftsman,  skilled,  salary  of  .        .         .  440 
Drawing    and    specification    shall    be 

part  of  patent 4884 

attached  to  patent  as  part  of  speci- 
fication        4889 

how  signed  and  ^vitnessed  4889 
in  reissue  shall  not  be  amended  ex- 
cept by  model 4916 

Drawings  and  specifications,  how  sup- 
plied to  public  libraries        .        .        .  491 

to  be  printed 490 

copyist  of,  salary        ....  440 
Examination,  applicant  shall  be    no- 
tified of  rejection  on     ...        .  4903 
in  reissue  applications      .        .        .  49t6 
in  applications  for  extension  .  49^6 
to  be  made  of  alleged  invention     .  4"93 
Examiner,  first  assistant,  salary  of       .  440 
in  charge  of  interferences        .        .  .  440 

duty  of 4934 

of  trade-marks,  salary  of .        .        .  440 

principal,  salary  of    .        .        .        .  ^40 

to  report  in  extension  cases     .        .  4C-^ 

second  assistant,  salary  of       .        .  443 

third  assistant,  salary  of  .        ,        .  440 
Examiners-in-chief,  duties  of         .        .     48a,  4Qcq 

how  appointed 476 

legal  and  scientific  ability  of  .        .  4S2 

salary  of 477 

Examiners  maybe  summoned  as  wit- 
nesses   4913 

Exemplary  damages         ....   49x9,  4921 
Extension,  application    for,  must    be 

advertised 493< 

application    for,  referred   to  prin- 
cipal examiner         ....  4936 
certificate  of,  shall  be  recorded       .  4937 
Extension,  evidence  for  and   against, 
shall  be  heard  by  Commissioner        .  493? 
of  patent,  effect  of     ...        .  49*7 
of  patent  granted  prior  to  March  a, 

1861 4924 

of  trade-mark ^ 

shall  inure  to  assignees  to  extent 

of  their  interest       ....  49a8 
sworn    statement    t*    accompany 

application  fo\          ....  4924 
Pee  for  registering  label  (Chapter  301, 

X874)  


5^4 


PATENTS. 


Subject,  Sec. 

Fe«a,  amount  of 4934 

howr  paid 4935 

to  witness  in  interference  cases  4907 
Final  fee,  if  not  paid  within  six  months, 

patent  withheld 4885 

Foreign  patent,  to  give  date  to  Ameri- 
can patent,  when 4887 

trade-mark,  to  limit  duration  of 

American 5 

use  no  bar  to  grant  of  patent .        .  4933 

Forfeited  application,  renewal  of .        .  4897 

infringement,  action  for  ....  4919 

of  trade-mark,  penalty  for  y 

plea    and    special    matters   to    be 

proved 4930 

Injunctions  may  be  granted  by  court 

having  jurisdiction        ....  493o 
Interference,  applicant  shall  be  notified 

of '(^4 

Interfering  patents,  how  set  aside        .  49^8 
Label,  fee  for  registration  of  (Chapter 

301,  187A) ... 

Labels  (Chapter  301, 1874)        .        .        .  .  .  . 

Laborer,  skilled,  salary  of      .        .        .  440 

Librarian,  salary  of 440 

Library 486 

Machinist,  salary  of          ....  440 
Marine  engines,  patented,  must  be  rec- 
ommended by  board  of  engineers    .  ^537 
Messenger  and  purchasing  clerk,  sal- 
ary of 440 

Model  in  reissue  shall  not  be  amended 

except  by  drawing         ....  4916 

Model-room,  attendants  in     .        .        .  440 

to  be  kept  open 484 

Model  shall  be  furnished  if  required    .  4891 
Models  in  design  cases  may  be  dis- 
pensed with    ......  4930 

in  rejected  applications  may  be  re- 
turned          485 

rejected,  may  be  disposed  of  .        .  485 

specimens,  etc.,  how  arranged        .  484 

Money  paid  by  mistake,  how  refunded  4936 

received  to  be  paid  into  Treasury  .  4935 

Oath,  in  trade-marks        ....  a 
made  by  executor  or  administrator 

in  case  of  decease  of  inventor     .  4896 
of  applicant,  before  >vhom  taken  .  4893 
what  to  cover  and  by  whom  ad- 
ministered           4893 

Officers  and  employees  not  to  a<,.,,'.^re 

interest  in  patents         ....  480 
Papers,  badly  written,  printed  at  cost 

of  party  filing 488 

Patent-agent,  punishment  by  Commis- 
sioner subject  to  approval  of  Secre- 
tary     487 

Patent,  a  printed  description  bars  the 

grant  of 4886 

Patent,  duration  of 4884-4886 

for  what  granted        ....  4886 

foreign  use  no  bar  to  grant  of  4887 

Office,  in  Department  of  Interior  .  475 
to  be  withheld  for  non-payment  of 

final  fee 4885 

to  bear  date,  when     ....  4885 

to  expire  at  same  time  with  foreign  4887 

what  to  contain 4884 

Patents,  employees   of  Patent  Office 
not  to  acquire  interest  in      .        .        .  480 
how  issued,  attested  and  recorded  4883 
may  be  granted  to  assignee  4895 
shall  be  countersigned  by  the  Com- 
missioner    4883 

shall  be  signed  by  the  Secretary  of 

the  Interior 4883 

Patented  article  must  be  marked  .        .  4900 
Patentee  shall  be  notified  of  interfer- 
ence            4904 

Penalty  for  deceptive  marking  of  un- 
patented article 4901 

for  false  registration  of  trade-mark  9 

Printed,  claims  of  current  issues  may  be  489 
laws,   decisions,  regulations,  and 

circulars  may  be      ...        .  489 

papers  not  legtbly  written  to  be  488 

specifications  and  drawings  may  be  490 


Subject.  Sec 

Priority  of  invention   determined  by 

primary  examiner  ....  4904 

Public   libraries,  how    supplied   with 

copies  of  specifications  and  drawings  491 

Purchaser  not  liable  for  infringement 

on  article  made  prior  to  application  .  4899 
Purchasing  clerk  and  messenger,  sal- 
ary of 440 

Records  of  patents 475 

Re-examination  to  be  made  after  first 

rejection,  if  desired       ....  4903 

Reissue  application  must  be  sworn  to 
by  inventor  in  patents  granted  since 

July  8,  1870 4895 

by  reason  of  defective  specification  49i6 

for    unexpired    term    of    original 

patent 4916 

Reissue  may  be  granted   to  assignee, 

when 4895 

Reissue  patent  to  contain  no  new  mat- 
ter       4916 

Rejected  applications,  renewal  of  4897 

Rejection,  applicant  shall  be  notified 

of  reasons  for 4903 

Renewal  of  forfeited  appKcation  .  4897 

Report  to  Congress,  when  and  >vhat 

to  contain 4(14 

Revised   Statutes,  accrued  rights  re- 
served under 5557 

acts  of  limitation  not  affected  by  .  5599 

arrangement  and  classification  of .  5600 

do    not   repeal  acts  passed   since 

December  i,  1873     ....  5601 
penalties  and  punishments  under  .  5598 
repeal  provisions         ....  5596 
what  to  embrace        ....  5595 
Royalty  not  to  be  paid  to  United  States 
officers  for  use  of  Springfield  breech- 
loading  system 1673 

Rules  for  taking  testimony,  Commis- 
sioner to  establish         ....  4905 
Seal  of  Patent  Office         ....  478 
Specification   and    drawing   shall   be 

part  of  patent 4884 

defective,  reissue  to  correct    .        .  ^gio 

in  reissue  may  be  amended  on  8uf> 

ficient  proof 4016 

shall  be  signed  and  witnessed         .  4888 

Specifications  and  drawings,  how  sup- 
plied to  public  libraries        .        .        .  491 
and  drawings,  sale  of       .        .        .  491 
and  drawings  to  be  printed                             493 
and  drawings,  uncertified,  price  of              493 
Specimens,  may  be  required  when                    4890 
Statute,  construction  of,  in  copyright 
(Chapter  301,  1874)          .... 
Statutes,  Revised,  what  to  embrace     .             5595 
Supreme  Court,  District  of  Columbia, 

appeal  to 4gxx-4gi4 

may  revise  decisions  of  Commis- 
sioner           49x4 

Surrender  of  old  patent  to  take  effect 

on  reissue 4916 

Trade-mark,  certificate  required  in  fil- 
ing    • 

certified  copies  to  be  evidence         .  4 

Commissioner  to  prescribe  regula* 

tions  for  filing t 

duration  of  ...  3 

fac-simile  to  be  registered         .        .  i 

fee  in  filing  .         .  ,  t 

former  rights  at  law  preserved        <  Si 

fraudulently  registered,  to  rendet 

liable  for  damages    .  9 

how  extended  .  5 

in  use  under  act  July  8, 1870,  maybe 
recorded  free  under  present  rules 
penalty  for  counterfeiting  9 

protection   afforded  by  j 

rights  at  common  law  not  abridged 

by  statute                                   .        .  11 

unlawful  or    fraudulent,   not    pro- 
tected                         ....  t 
what  may  be  a  lawful        ...  3 
who  may  obtain  protection  for  t 
Trade-marks,  accompanying    declara* 
tioo  under  oath t 


PATENTS. 


565 


Subject.  Sec. 

Trade-marks,  penalties  for  counterfeit- 
ing, etc.  (act  March  3,  i88x) 
rules  for  transfer  to  conform  to  laiv 

of  copyrights 4947 

United  States  courts  may  grant  in- 
junctions   4931 

to  have  certified  copies  of  all  pat- 
ents      490 

United  States  officers  not  to  receive 
royalty  for  Springfield  breech-load- 
ing system 1673 

Unpatented  article,  penalty  for  decep- 
tive mark 4901 

Witness,  fees  of,  in  interference  cases  4907 

,        in  interference  summoned  by  clerk 
•  of  United  States  courts  4906 

%vhen  in  contempt     ....  4908 

ORGA?riZATIO?r   OF   THE   PATENT 
OFFICE. 

Title  XI,  Rev.  Stat.,  s.  440,  p.  74. 

There  shall  be  in  the  department  of  the  in- 
terior— in  the  patent-office : 

One  chief  clerk,  at  a  salary  of  two  thousand 
two  hundred  and  fifty  dollars  a  year. 

One  exaniiner  in  charge  of  interferences,  at 
a  salary  of  two  thousand  five  hundred  dollars  a 
year. 

One  examiner  in  charge  of  trade-marks,  at  a 
salary  of  two  thousand  two  hundred  and  fifty 
dollars  a  year. 

Twenty-two  principal  examiners,  at  a  salary 
of  two  thousand  five  hundred  dollars  a  year 
each. 

Twenty-two  first  assistant  examiners,  at  a 
salary  of  one  thousand  eight  hundred  dollars 
a  year  each. 

Twenty -two  second  assistant  examiners,  at  a 
salary  of  one  thousand  six  hundred  dollars  a 
year  each. 

Twenty-two  third  assistant  examiners,  at  a 
salary  of  one  thousand  four  hundred  dollars  a 
year  each. 

One  librarian,  at  a  salary  of  one  thousand 
eight  hundred  dollars  a  year. 

One  machinist,  at  a  salary  of  one  thousand 
six  hundred  dollars  a  year. 

Three  skilled  draughtsmen,  at  a  salary  of 
one  thousand  two  hundred  dollars  a  year  each. 

Thirty-five  copyists  of  drawings,  at  a  salary 
of  one  thousand  dollars  a  year  each. 

One  messenger  and  purchasing  clerk,  at  a 
salary  of  one  thousand  dollars  a  year. 

One  skilled  laborer,  at  a  salary  of  one  thou- 
sand two  hundred  dollars  a  year. 

Eight  attendants  in  the  model-room,  at  a 
salary  of  one  thousand  dollars  a  year  each. 

Eight  attendants  in  the  model-room,  at  a 
salary  of  nine  hundred  dollars  a  year  each." 

Establishment  of  tbe  Patent  Office. 

Sec.  475.  There  shall  be  in  the  depart- 
ment of  the  interior  an  office  known  as  the 
j..itent  office,  where  all  records,  books,  models, 
drawings,  specifications,  and  other  papers  and 
things  pertaining  to  patents  shall  be  safely  kept 
and  preserved. •" 

Offlcern  and  Employees. 

Sec.  476.  There  shall  be  m  the  patent  office 
a  commissioner  of  patents,  one  assistant  com- 
a-Act Aug.  IS,  1876.     b-8  July,  1870,  c.  830,  §  I,  V. 
le.  p.  198.    c-Id.  i  ;  p.  198.    d-Id.  1 4,  p.  199*    e-Id. 


missioner,  and  three  examiners-in-chief,  who 
shall  be  appointed  by  the  president,  by  and 
with  the  advice  and  consent  of  the  senate.  All 
other  officers,  clerks,  and  employees  authorized 
by  law  for  the  office  shall  be  appointed  by  the 
secretary  of  the  interior,  upon  the  nomination 
of  the  commissioner  of  patents.^  See  sec.  169; 
also  act  of  August  15,  1876. 
Salaries. 

Sec.  477.  The  salaries  of  the  officers  men- 
tioned in  the  preceding  section  shall  be  as 
follows : 

The  commissioner  of  patents,  four  thousand 
five  hundred  dollars  a  year. 

The  assistant  commissioner  of  patents,  three 
thousand  dollars  a  year. 

Three  examiners-in-chief,  three  thousand 
dollars  a  year  each.* 

Seal.  ° 

Sec.  478.  The  seal  heretofore  provided  for 
the  patent  office  shall  be  the  seal  of  the  office, 
with  which  letters  patent  and  papers  issued 
from  the  office  shall  be  authenticated.* 

Bonds  of  Commissioner  and  Ctaief 
Clerk. 

Sec.  479.  The  commissioner  of  patents  and 
the  chief  clerk,  before  entering  upon  their 
duties,  shall  severally  give  bond,  with  sureties, 
to  the  treasurer  of  the  United  States,  the  former 
in  the  sum  of  ten  thousand  dollars,  and  the 
latter  in  the  sum  of  five  thousand  dollars,  con- 
ditioned for  the  faithful  discharge  of  their 
respective  duties,  and  that  they  shall  render  to 
the  proper  officers  of  the  treasury  a  true  ac- 
count of  all  money  received  by  virtue  of  their 
offices.' 

Restrictions   upon   Officers  and   Em- 
ployees. 

Sec.  480.  All  officers  and  employees  of  the 
patent  office  shall  be  incapable,  during  the 
period  for  which  they  hold  their  appointments, 
to  acquire  or  take,  directly  or  indirectly,  except 
by  inheritance  or  bequest,  any  right  or  interest 
in  any  patent  issued  by  the  office.* 

Duties  of  Commissioner. 

Sec.  481.  The  commissioner  of  patent!, 
under  the  direction  of  the  secretary  of  the  in- 
terior, shall  superintend  or  perform  all  duties 
respecting  the  granting  and  issuing  of  patents 
directed  by  law ;  and  he  shall  have  charge  of 
all  books,  records,  papers,  models,  machines, 
and  other  things  belonging  to  the  patent  office.* 
Duties  of  Examiners-ln-Chief. 

Sec.  482.  The  examiners-in-chief  shall  be 
persons  of  competent  legal  knowledge  and 
scientific  ability,  whose  duty  it  shall  be,  on  the 
written  petition  of  the  appellant,  to  revise  and 
determine  upon  the  validity  of  the  adverse  de- 
cisions of  examiners  upon  applications  for  pat- 
ents, and  for  reissues  of  patents,  and  in  inter- 
ference cases ;  and,  when  required  by  the  com- 
missioner, they  shall  hear  and  report  upon 
claims  for  extensions,  and  perfonn  such  other 
like  duties  as  he  may  assign  them.' 

Establishment  of  Regrulations. 

Sec.    483.    The    commissioner  of   patents, 

?  12,  p.  aoo.     f-Id.  g  6,  p.  199.     g:-Id.  J  16,  p.  200.     h- 
id- 1  7.  P-  '99-     4-8  J"lyi  1870,  c.  830. 1  lo,  v.  16,  p.  199. 


566 


PATENTS. 


subject  to  the  approval  of  the  secretary  of  the 
interior,  may  from  time  to  time  establish  regu- 
lations, not  inconsistent  with  law,  for  the  con- 
duct of  proceedings  in  the  patent  office.^ 

Arrang^ement   and    Exhibition    of 
Models,  etc. 

Sec.  484.  The  commissioner  of  patents  shall 
cnuse  to  be  classified  and  arranged  in  suitable 
cases,  in  the  rooms  and  galleries  provided  for 
that  purpose,  models,  specimens  of  composi- 
tion, fabrics,  manufactures,  works  of  art,  and 
d  .-signs,  which  have  been  or  shall  be  deposited 
in  the  patent  office;  and  the  rooms  and  gal- 
leries shall  be  kept  open  during  suitable  hours 
for  public  inspection.'' 

Disposals  of  Models  on  Rejected  Appli- 
cations. 

Sec.  485.  The  commissioner  of  patents  may 
restore  to  the  respective  applicants  such  of  the 
models  belonging  to  rejected  applications  as  he 
shall  not  think  necessary  to  be  preserved,  or  he 
may  sell  or  otherwise  dispose  of  them  after  the 
application  has  been  finally  rejected  for  one 
year,  paying  the  proceeds  into  the  treasury,  as 
other  patent  moneys  are  directed  to  be  paid.' 
lilbrary. 

Sec.  486,  There  shall  be  purchased  for  the 
use  of  the  patent  office  a  library  of  such  scien- 
tific works  and  periodicals,  both  foreign  and 
American,  as  may  aid  the  officers  in  the  dis- 
charge of  their  duties,  not  exceeding  the 
amount  annually  appropriated  for  that  purpose.™ 
See  act  of  August  15,  1876. 
Patent-Agrents  may  be  refkised  Recogr- 
nltion. 

Sec.  487.  For  gross  misconduct  the  com- 
missioner of  patents  may  refuse  to  recognize 
any  person  as  a  patent-agent,  either  generally 
or  in  any  particular  case ;  but  the  reasons  for 
such  refusal  shall  be  duly  recorded,  and  be 
subject  to  the  approval  of  the  secretary  of  the 
interior.' 

Printing  of  Papers  Filed. 

Sec.  488.  The  commissioner  of  patents  may 
require  all  papers  filed  in  the  patent  office,  if 
not  correctly,  legibly,  and  clearly  written,  to  be 
printed  at  the  cost  of  the  party  filing  them.* 
Printings  Copies  of  Claims,  liaws,  De- 
cisions, etc. 

Sec.  489.  The  commissioner  of  patents  may 
print,  or  cause  to  be  printed,  copies  of  the  claims 
of  current  issues,  and  copies  of  such  laws,  deci- 
sions, regulations,  and  circulars  as  may  be  neces- 
sary for  the  information  of  the  public.? 
Printing:  Specifications  and  Drawings. 

Sec.  490.  The  commissioner  of  patents  is 
authorized  to  have  printed,  from  time  to  time, 
jfor  gratuitous  distribution,  not  to  exceed  one 
jhundred  and  fifty  copies  of  the  complete  speci- 
fications and  drawings  of  eacVi  patent  hereafter 
issued,  together  with  suitable  indexes,  one  copy 
to  be  placed  for  free  public  inspection  in  each 
capital  of  every  State  and  Territory,  one  for  the 
like  purpose  in  the  clerk's  office  of  the  district 
court  of  each  judicial  district  of  the  United 
Slates,  except  when  such  offices  are  located  in 


1-8  July,  1870,  c.  330,  ?  19,  p.  200 
1-ld.  1 24,  p.  300.  m-fd.  Jis.P- 
MO.    o-Id.  9  18,  p.  200.    p-I 


fe-Id.  2  i3,p.  200. 
15,  p.  200.  n-Id.  2  17,  p. 
[df.  f  ao,  p.  3cx>.     q-iijan.. 


State  or  territorial  capitols,  and  one  in  the 
library  of  congress,  which  copies  shall  be  cer- 
tified under  the  hand  of  the  commissioner  and 
seal  of  the  patent  office,  and  shall  not  be  taken 
from  the  depositories  for  any  other  purpose 
than  to  be  used  as  evidence.' 

Additional   Specifications   and  Draw- 
ing's. 

Sec.  491.  The  commissioner  of  patents  is 
authorized  to  have  printed  such  additional 
numbers  of  copies  of  specifications  and  draw- 
ings, certified  as  provided  in  the  preceding  sec- 
lion,  at  a  price  not  to  exceed  the  contract  price 
for  such  drawings,  for  sale,  as  may  be  warranted 
by  the  actual  demand  for  the  same ;  and  he  is 
also  authorized  to  furnish  a  complete  set  of 
such  specifications  and  drawings  to  any  public 
library  which  will  pay  for  binding  the  same  into 
volumes  to  correspond  with  those  in  the  patent 
office,  and  for  the  transportation  of  the  same, 
and  which  shall  also  provide  for  proper  custody 
for  the  same,  with  convenient  access  for  the 
public  thereto,  under  such  regulations  as  the 
commissioner  shall  deem  reasonable.' 

liittaog^raphingp  and  Eng:ravingr. 

Sec.  492.  The  lithographing  and  engraving 
required  by  the  two  preceding  sections  shall  be 
awarded  to  the  lowest  and  best  bidders  for  the 
interests  of  the  government,  due  regard  being 
paid  to  the  execution  of  the  work,  the  work  to 
be  done  under  the  supervision  of  the  commis- 
sioner of  patents,  who  shall  receive  competitive 
bids  therefor."     Act  of  August  15,  1876. 

Price  of  Copies  of  Specifications  and 
Drawings. 

Sec.  493.  The  price  to  be  paid  for  uncer- 
tified printed  copies  of  specifications  and  draw- 
ings of  patents  shall  be  determined  by  the  com- 
missioner of  patents,  within  the  limits  of  ten 
cents  as  the  minimum  and  fifty  cents  as  the 
maximum  price.' 
Annual  Report  of  the  Commissioner. 

Sec.  494.  The  commissioner  of  patents  shall 
lay  before  Congress,  in  the  month  of  January, 
annually,  a  report,  giving  a  detailed  statement 
of  all  moneys  received  for  patents,  for  copies 
of  records  or  drawings,  or  from  any  other 
source  whatever;  a  detailed  statement  of  all 
expenditures  for  contingent  and  miscellaneous 
expenses;  a  list  of  all  patents  which  were 
granted  during  the  preceding  year,  designating 
under  proper  heads  the  subjects  of  such  patents; 
an  alphabetical  list  of  all  the  patentees,  with 
their  places  of  residence ;  a  list  of  all  patents 
which  have  been  extended  during  the  year ; 
and  such  other  information  of  the  condition  of 
the  patent  office  as  may  be  useful  lo  Congress 
or  the  public."  See  §?  195,  196. 
Custody  of  Collections  of  Explorinur 
Expedition. 

Sec.  495.  The  collections  of  the  exploring 
expedition,  now  in  the  patent  office,  shall  be 
under  the  care  and  management  of  the  com- 
missioner of  patents.^ 

1871,  Res.  No.  5,  V.  i6,p.  590.  r-Id.  s-Id. ;  24Mar., 
1871,  c.  5, 1 1,  V.  17,  p.  2.  t-Id.  g  2,  p.  3.  u-8  July, 
1870,  c.  230,  ig,  Y.  16,  p.  199.  v-4  Aug.  1854,  c.  242.  i 
8,  V.  10,  p.  572. 


PATENTS. 


567 


Dlsbnrseinents  for  Patent  OHlce. 

Sec.  496.  All  disbursements  for  the  patent 
office  shall  be  made  by  the  disbursing  clerk  of 
the  interior  department. 

Copies  of  Records,  etc 
Title  XIII.,  Rev.  Stat.,  p.  168. 
Sec.  892.  Written  or  printed  copies  of  any 
records,  books,  papers,  or  drawings  belonging 
to  the  patent  office,  and  of  letters  patent  au- 
thenticated by  the  seal  and  certified  by  the 
commissioner  or  acting  commissioner  thereof, 
shall  be  evidence  in  all  cases  wherein  the 
originals  could  be  evidence;  and  any  person 
making  application  therefor,  and  paying  the  fee 
required  by  law,  shall  have  certified  copies 
thereof.* 

Copies  of  Foreifrn  I^etters  Patent. 
Sec.  893.  Copies  of  the  specifications  and 
drawings  of  foreign  letters  patent,  certified  as 
provided  in  the  preceding  section,  shall  be 
prima  facie  evidence  of  the  fact  of  the  grant- 
ing of  such  letters  patent,  and  of  the  date  and 
contents  thereof.' 

Printed   Copies   of  Specifications   and 
Drawl  ng^s. 
Sec.  894.   The  printed  copies  of  specifica- 
tions and  drawings  of  patents,  which  the  com- 
missioner of  patents  is  authorized  to  print  for 
gratuitous  distribution,  and  to  deposit  in  the 
Capitols  of  the  States  and  Territories,  and  in  the 
clerk's  offices  of  the  district  courts,  shall,  when 
certified  by  him  and  authenticated  by  the  seal 
of  his  office,  be  received  in  all  courts  as  evi- 
dence of  all  matters  therein  contained.* 
Patented  Articles  connected  irltli  Ma- 
rine £ng;lnes. 
Title  XV.,  Rev.  Stat.,  p.  261 : 
Sec.   1537.    No  patented  article  connected 
with   marine   engines  shall  hereafter  be  pur- 
chased or  used  in  connection  with  any  steam 
vessels  of  war  until  the  same  shall  have  been 
submitted  to  a  competent  board  of  naval  engi- 
neers, and   recommended   by   such  board,  in 
writing,  for  purchase  and  use.* 
No  Royalty  to  be  paid  by  the  United 
States  to  its  Officers  for  Patent  men- 
tioned in  preceding  Section.  (Springfield 
breach-loading  system.) 

Title  XVII.,  Rev.  Stat.,  p.  292 : 
Sec.  1673.  No  royalty  shall  be  paid  by  the 
United  States  to  any  one  of  its  officers  or  em- 
ployees for  the  use  of  any  patent  for  the  system, 
or  any  part  thereof,  mentioned  in  the  preced- 
ing section,  nor  for  any  such  patent  in  which 
said  officers  or  employees  may  be  directly  or 
indirectly  interested.'* 

w-8  July,  1870,  c.  230,  J  69,  V.  16,  p.  200.  x-Id.  g 
57,  p.  207 ;  Brooks  et  al.  vs.  Jenkins  et  al.  3  McLean, 
432 ;  P.  vs.  H.  4  McLean,  370;  P.  vs.  D.  4  Wash.  C. 
C.  215  :  L.  vs.  B.  2  Fish.  89  (see  i  Bond,  361) ;  W.  vs. 
H.  Wood.  &  Min.  260;  E.  vs.  H.  2  Blatch.  12.  y-Id. 
(5  57,  p.  207.  w.-\\  Jan.,  1871,  Res.  5,  v.  16,  p.  590.  a- 
18  July,  1861,  c.  8,  g  3,  V.  12,  p.  268.  b-6  June,  1872, 
c.  316,  V.  17,  p.  261.  c-8  July,  1070,  «.  230,  \  21,  V.  16, 
p.  200:  D.  vs.  W.  6  Blatch.  429.  d-Id.  §  22,  p.  201  ; 
S.  vs.  W.  4  How.  709  ;  P.  vs.  W.  2  Story,  614  ;  S.  vs. 
R.  I  Paine,  441 ;  E.  vs.  H.  6  Blatch.  9  :  D.  vs.  W.  2 
Blatch.  429  ;  W.  vs.  E.  Baldw.  314 ;  B.  vs.  B.  3  Mc- 
Lean, 297.  e-Id.  g  23,  p.  201.  f-Id.  g  24,  p.  201 ;  G. 
vs.  B.  10  How.  477;  H.  vs.  G.  II  How.  248;  LeR.  vs. 
T.  14  How,  156;  O'R.  vs.  M.  15  How.  62;  C.  vs.  B. 
IS  How.  252 ;  K.  vs.  W.  21  How.  322  ;  A.  vs.  B.  &  N. 
2  P.l.  699;  B.  vs.  D.  I  Wall.  521;  J  vs.  B.  7  Wall. 
395 ;  T.  vt.  B.  7  WaU.  327 ;    A.  Co.  vs.}.^  WaU,  583 ; 


PATENTS. 

Patents,  liow  Issued.  Attested,  and  Re- 

corded. 

Title  LX.,  Rev.  Stat.,  Chap,  i,  p.  953: 

Sec.  4883.  All  patents  shall  be  issued  in  the 
name  of  the  United  States  of  America,  under 
the  seal  of  the  patent  office,  and  shall  be 
signed  by  the  secretary  of  the  interior  and 
countersigned  by  the  commissioner  of  patents, 
and  they  shall  be  recorded,  together  with  the 
specifications,  in  the  patent  office,  in  books  to 
be  kept  for  that  purpose." 

Contents  and  Dnration. 

Sec.  4884.  Every  patent  shall  contain  a 
short  title  or  description  of  the  invention  or 
discovery,  correctly  indicating  its  nature  and 
design,  and  a  grant  to  the  patentee,  his  heirs 
or  assigns,  for  the  term  of  seventeen  years,  of 
the  exclusive  right  to  make,  use,  and  vend  the 
invention  or  discovery  throughout  the  United 
States,  and  the  Territories  thereof,  referring  to 
the  specification  for  the  particulars  thereof.  A 
copy  of  the  specification  and  drawings  shall  be 
annexed  to  the  patent  and  be  a  part  thereof.* 
Date  of  Patent. 

Sec.  4885.  Every  patent  shall  bear  date  a.s 
of  a  day  not  later  than  six  months  from  the 
time  at  which  it  was  passed  and  allowed  and 
notice  thereof  was  sent  to  the  applicant  or  his 
agent ;  and  if  the  final  fee  is  not  paid  within 
that  period  the  patent  shall  be  withheld." 
What  Inventions  are  Patentable. 

Sec.  4886.  Any  person  who  has  invented  or 
discovered  any  new  and  useful  art,  machine, 
manufacture  or  composition  of  matter,  or  any 
new  and  useful  improvement  thereof,  not 
known  nor  used  by  others  in  this  country,  and 
not  patented  or  described  in  any  printed  pub- 
lication  in  this  or  any  foreign  country,  before 
his  invention  or  discovery  thereof,  and  not  in 
public  use  or  on  sale  for  more  than  two  year."* 
prior  to  his  application,  unless  the  same  is 
proved  to  have  been  abandoned,  may,  upon 
payment  of  the  fees  required  by  law,  and  other 
due  proceedings  had,  obtain  a  patent  therefor.' 

Patents  for  Inventions  prevlonsly 
patented  abroad. 

Sec.  4887.  No  person  shall  be  debarred 
from  receiving  a  patent  for  his  invention  or 
discovery,  nor  shall  any  patent  be  declared 
invalid,  by  reason  of  its  having  been  firet 
patented  or  caused  to  be  patented  in  a  foreign 
country,  unless  the  same  has  been  introduced 
into  public  use  in  the  United  States  for  more 
than  two  years  prior  to  the  application.     But 

W.  vs.  S.  7  WalL  68s  ;  R.  Co.  vs.  G.  9  Wall.  788 ;  S.  vs. 
W.  10  Wall.  117;  G.  Co.  vs.  W.  14  Wall.  511  ;  M.  vs. 
W.  14  Wall.  620  ;  C.  vs.  B.  17  Wall.  463 ;  C.  vs.  O.  18 
Wall.  120;  H.  vs.  K.  18  Wall.  670;  W.  vs.  P.  i  Gallis. 
437;  O.  vs.  W.  2  Gallis.  51;  A.  vs.  H.  i  Sumn.  432: 
R.  vs.  G.  3  Sumn.  518;  H.  vs.  A.  2  Story,  194;  B.  vs. 
S.  2  Story.  411  ;  C.  vs.  B.  Manuf.  Co.  2  Story,  438 ;  H. 
vs.  S.  3  Wood.  &  M.  17 :  F.  vs.  S.  1  Blatch.  445 ;  P.  vt. 
K.  t  Blatch.  493  ;  H.  vs.  W.  2  Blatch.  194;  McC.  vs. 
S.  2  Blatch.  240;  E  vs.  R.  4  Blatch.  307;  M.  vs.  The 
N.  Y.  Eye  Inf.  5  Blatch.  116 ;  H.  vs.  S.  7  Blatch.  58 ; 
R  r'.v  K.  &  G.  I  Wash.  171  ;  P.  vs.  L.  &  W.  ^  Wash. 
19S  :  K  r'.v.  The  Schuylkill  Bank,  4  Wash.  12  ,"  'V.  vs. 
E.  H.thlw.  314  :  G.  vs.  The  Railroad,  2  Wall.,  jr.,  360; 
S.  zs.  H.  2  McLean,  178;  R.  vs.  B.  &  D.  4  McLean, 
177  ;  H.vs.G.&W.A.  McLean,  461 ;  S.  vs.  H.  i  Fisk. 
Pat.  Cas.  475;  P.  w.  S.  3  FUh.  Pat.  Cas.  476. 


568 


PATENTS. 


every  patent  granted  for  an  invention  which 
lias  been  previously  patented  in  a  foreign  coun- 
iry  shall  be  so  limited  as  to  expire  at  the  same 
lime  with  the  foreign  patent,  or,  if  there  be 
more  than  one,  at  the  same  time  with  the 
one  having  the  shortest  term,  and  in  no  case 
shall  it  be  in  force  more  than  seventeen 
years.* 

Requtsites  of  Application,  description, 
Speciflcatlon,  an<l  Claim. 

Sec.  4888.  Before  any  invenlor  or  discoverer 
shall  receive  a  patent  for  his  invention  or  dis- 
covery, he  shall  make  application  therefor,  in 
writing,  to  the  commissioner  of  patents,  and  shall 
file  in  the  patent  office  a  written  description  of 
the  same,  and  of  the  manner  and  process  of  mak- 
ing, constructing,  compounding,  and  using  it, 
in  such  full,  clear,  concise,  and  exact  terms  as 
to  enable  any  person  skilled  in  the  art  or 
science  to  which  it  appertains,  or  with  which 
it  is  most  nearly  connected,  to  make,  construct, 
compound,  and  use  the  same ;  and  in  case  of  a 
machine,  he  shall  explain  the  principle  thereof, 
and  the  best  mode  in  which  he  has  contem- 
plated applying  that  principle,  so  as  to  distin- 
guish it  from  other  inventions;  and  he  shall 
particularly  point  out  and  distinctly  claim  the 
part,  improvement,  or  combination  which  he 
claims  as  his  invention  or  discovery.  The 
specification  and  claim  shall  be  signed  by  the 
inventor  and  attested  by  two  witnesses.'' 
Drawlngps,  when  Requisite. 

Sec.  4889.  When  the  nature  of  the  case 
admits  of  drawings,  the  applicant  shall  furnish 
one  copy  signed  by  the  inventor  or  his  attorney 
in  fact,  and  attested  by  two  witnesses,  which 
shall  be  filed  in  the  patent  office ;  and  a  copy 
of  the  drawing,  to  be  furnished  by  the  patent 
office,  shall  be  attached  to  the  patent  as  a  part 
of  the  specification.* 

Specimens  of  Ingrredlents,  etc. 

Sec.  4890.  When  the  invention  or  discovery 
is  of  a  composition  of  matter,  the  applicant,  if 
required  by  the  commissioner,  shall  furnish 
specimens  of  ingredients  and  of  the  composi- 
tion, sufficient  in  quantity  for  the  purpose  of 
experiment  .J 

Model,  when  Requisite. 

Sec.  4891.  In  all  cases  which  admit  of  rep- 
resentation by  model,  the  applicant,  if  required 
by  the  commissioner,  shall  furnish  a  model  of 
convenient  size  to  exhibit  advantageously  the 
several  parts  of  his  invention  or  discovery.'' 
Oath  required  Trom  Applicant. 

Sec.  4892.  The  applicant  shall  make  oath 
that  he  does  verily  believe  himself  to  be  the 
original  and  first  inventor  or  discoverer  of  the 
art,  machine,  manufacture,  composition,  or  im- 
provement for  which  he  solicits  a  patent ;  that 
he  does  not  know  and  does  not  believe  that  the 

g-i  July,  1870,  c.  230,  J  25,  V.  16,  p.  201 ;  O'R.  vt. 
M.  15  How.  62 ;  H.  vs.  S'.  I  Fish.  Pat.  Cas.  532  ;  J.  vs. 
C.  I  Fish.  Pat.  Cas.  615.  h-Id.  'i  26,  p.  201 ;  E.  vs.  E. 
7  Wh.  434 :  W.  vs.  U.  s  How.  I ;  H.  vs.  E.  it  How. 
587;  O'K.  VS.  M.  15  How.  62;  C.  vs.  B.  15  How.  252  ; 
LeR.  vs.  T.  22  How.  132 ;  P.  vs.  P.  24  How.  164  ;  T. 
»f.  B.  7  Wall.  327  ;  C.  vs.  B.  17  Wall.  463 ;  L.  vs.  DeG. 
I  Paine,  203;  S.  vs.  R.  i  Paine,  450;  M.  vs.  j.  i 
Blatcfc.  37? ;    G.  &  O,  vs.  J.  Pet.  C.  C.  401 ;    P.  vt.  L. 


same  was  ever  before  known  or  used ;  and  shall 
state  of  what  country  he  is  a  citizen.  Such 
oath  may  be  made  before  any  person  within 
the  United  States  authorized  by  law  to  admin- 
ister oaths,  or  when  the  applicant  resides  in  a 
foreign  country,  before  any  minister,  charg6 
d'affaires,  consul,  or  commercial  agent,  holding 
commission  under  the  government  of  the 
United  States,  or  before  any  notary  public  of 
the  foreign  country  in  which  the  applicant  may 
be." 

Examination  and  Issuing:  Patent. 

Sec.  4893.  On  the  filing  of  any  such  appli- 
cation and  the  payment  of  the  fees  required  by 
law,  the  commissioner  of  patents  shall  cause 
an  examination  to  be  made  of  the  alleged  new 
invention  or  discovery;  and  if  on  such  exami- 
nation it  shall  appear  that  the  claimant  is 
justly  entitled  to  a  patent  under  the  law,  and 
that  the  same  is  sufficiently  useful  and  impor- 
tant, the  commissioner  shall  issue  a  patent 
therefor.™ 

lilniitation  upon  Time  of  Completing 
Applications. 

Sec.  4894.  All  applications  for  patents  shall 
be  completed  and  prepared  for  examination 
within  two  years  after  the  filing  of  the  applica- 
tion, and  in  default  thereof,  or  upon  the  failure 
of  the  applicant  to  prosecute  the  same  within 
two  years  after  any  action  therein,  of  which 
notice  shall  have  been  given  to  the  applicant, 
they  shall  be  regarded  as  abandoned  by  the 
parties  thereto,  unless  it  be  shown  to  the  satis- 
faction of  the  commissioner  of  patents  that 
such  delay  was  unavoidable." 

Patents  Granted  to  Asslfcnee. 

Sec.  4895.  Patents  may  be  granted  and  is- 
sued or  reissued  to  the  assignee  of  the  in- 
ventor or  discoverer;  but  the  assignment  must 
first  be  entered  of  record  in  the  patent  office. 
And  in  all  cases  of  an  application  by  an  as- 
signee for  the  issue  of  a  patent,  the  applica- 
tion shall  be  made  and  the  specification  sworn 
to  by  the  inventor  or  discoverer;  and  in  all 
cases  of  an  application  for  a  reissue  of  any 
patent,  the  application  must  be  made  and  the 
corrected  specification  signed  by  the  inventor 
or  discoverer,  if  he  is  living,  unless  the  patent 
was  issued  and  the  assignment  made  before  the 
eighth  day  of  July,  eighteen  hundred  and 
seventy." 
li%'Iicn  and  on  what  Oath   Executor  or 

Administrator  may  Obtain  Patent. 

Sec.  4896.  When  any  person,  having  made 
any  new  invention  or  discovery  for  which  a 
patent  might  have  been  granted,  dies  before  a 
patent  is  granted,  the  right  of  applying  for  and 
obtaining  the  patent  shall  devolve  on  his  ex- 
ecutor or  administrator,  in  trust  for  the  heirs  at 

&  W.  J  Wash.  198  :  B.  &  M.  vs.  B.  &  J.  3  McLean, 
250.  1-ld.  I  27,  p.  201  ;  O'R.  vs.  M.  15  How.  62  ;  W. 
vs.  G.  3  Ston-,  133.  j-8  July,  1870,  c.  230,  ?  28,  v.  16, 
p.  201.  K-Id.  3  29,  p.  201;  H.  vs.  E,  6  How.  437; 
McC.  vt.  T.  20  How.  409.  1-Id.  g  30,  p.  202;  H.  vt. 
E.  6  How.  437 :  W.  vs.  C.  I  Gal}.  429 ;  C.  vs.  h.  Mills. 
3  Fish.  Pat.  Cas.  536.  m-Id.  g  31,  p.  202.  n-ld.g32, 
p.  202 ;  B.  vs.  D.  I  Bond,  212.  o-Id.  g  33,  p.  202  :  3 
March,  1871,  c.  132,  v.  16,  p.  583;  G.  vt.  L.  w  How. 
477;  S.  vs.  W.  3  Fish.  Pat.  Cas.  343. 


PATENTS. 


569 


Jaw  of  the  deceased,  in  case  he  shall  have  died 
intestate ;  or  if  he  shall  have  left  a  will,  dis- 
posing of  the  same,  then  in  trust  for  his  devi- 
sees, in  as  full  manner  and  on  the  same  terms 
and  conditions  as  the  same  might  have  been 
claimed  or  enjoyed  by  him  in  his  lifetime; 
and  when  the  application  is  made  by  such  legal 
representatives,  the  oath  or  affirmation  required 
to  be  made  shall  be  so  varied  in  form  that  it 
can  be  made  by  them.P 

Renewal   of  Applleatlon    In    Cases    of 
Failnre  to  Pay  Fees  in  Season. 

Sec.  4897.  Any  person  who  has  an  interest 
in  an  invention  or  discovery,  whether  as  in- 
ventor, discoverer,  or  assignee,  for  which  a 
patent  was  ordered  to  issue  upon  the  payment 
of  the  final  fee,  but  who  fails  to  make  payment 
thereof  within  six  months  from  the  time  at 
which  it  was  passed  and  allowed,  and  notice 
thereof  was  sent  to  the  applicant  or  his  agent, 
shall  have  a  right  to  make  an  application  for  a 
patent  for  such  invention  or  discovery  the  same 
as  in  the  case  of  an  original  application.  But 
such  second  application  must  be  made  within 
two  years  after  the  allowance  of  the  original 
application.  But  no  person  shall  be  held  re- 
sponsible in  damages  for  the  manufacture  or  use 
of  any  article  or  thing  for  which  a  patent  was 
ordered  to  issue  under  such  renewed  applica- 
tion prior  to  the  issue  of  the  patent.  And  upon 
the  hearing  of  renewed  applications  preferred 
under  this  section,  abandonment  shall  be  con- 
sidered as  a  question  of  fact.' 

Assignments  of  Patents. 

Sec.  4898.  Every  patent  or  any  interest 
therein  shall  be  assignable  in  law  by  an  instru- 
ment in  writing;  and  the  patentee  or  his  as- 
signs or  legal  representatives  may,  in  like  man- 
ner, grant  and  convey  an  exclusive  right  under 
his  patent  to  the  whole  or  any  specified  part  of 
the  United  States.  An  assignment,  grant,  or 
conveyance  shall  be  void  as  against  any  subse- 
quent purchaser  or  mortgagee  for  a  valuable 
consideration,  without  notice,  unless  it  is  re- 
corded \m  the  patent  office  within  three  months 
from  the  date  thereof' 

Persons  Pnroliasinjr  of  Inventor,  etc., 
may  Use  or  Sell  tiie  Tiling  Pnrcliase«i. 

Sec.  4899.  Every  person  who  purchases  of 
the  inventor,  or  discoverer,  or  with  his  knowl- 
edge and  consent  constructs  any  newly  invented 
or  discovered  machine,  or  other  patentable 
article,  prior  to  the  application  by  the  inventor 
or  discoverer  for  a  patent,  or  who  sells  or  uses 
one  so  constructed,  shall  have  the  right  to  use, 
and  vend  to  others  to  be  used,  the  specific 
thing  so  made  or  purchased,  without  liability 
therefor.' 

Patented  Articles  HTnst  be  Slarkedl  as 
Sncli. 

Sec.  4900.  It  shall  be  the  duty  of  all  pat- 
entees, and  their  assigns  and  legal  representa- 

p-8  July,  1870,  c  230,  ?  34,  V.  16,  p.  J02 ;  R.  Co.  vs. 
G.  9  Wall.  788.  qld  j  35.  P  202.  r-Td  J  36,  p.  203  ; 
W.  VI.  W.  4  How.  712  .  W.  vs.  S  o  How.  109 ;  G.  vs. 
W.  10  How  494:  B.  vt.  McQ  14  How.  539:  K.  71s.  P. 
18  How.  289  :  H.  vs.  D.  19  How.  211 ;  R.  R.  Co  r/s. 
T.  10  Wall.  367  ;  N.  P.  Co.  vs.  J.  14  Wall.  4S2  ;  A.  vs. 
iJ.  17  Wall.  453;   E.  vs.D.  18  Wall.  414:    G.  »*.  C.  4 


tives,  and  of  all  persons  making  or  vending  any 
patented  article  for  or  under  them,  to  give  suf- 
ficient notice  to  the  public  that  the  same  is 
patented;  either  by  fixing  thereon  the  word 
"  patented,"  together  with  the  day  and  year 
the  patent  was  granted;  or  when,  from  the 
character  of  the  article,  this  cannot  Xte  done,  by 
fixing  to  it,  or  to  the  package  wherein  one  or 
more  of  them  is  enclosed,  a  label  containing  the 
like  notice;  and  in  any  suit  for  infringement, 
by  the  party  failing  so  to  mark,  no  damages 
shall  be  recovered  by  the  plaintiff,  except  on 
proof  that  the  defendant  was  duly  notified  of 
the  infringement,  and  continued,  after  such 
notice,  to  make,  use,  or  vend  the  article  so 
patented.* 

Penalty  for  Falsely  IWarklngr  or  I.al>el- 
ling  Articles  as  Patented. 

Sec.  4goi.  Every  person  who,  in  any  man- 
ner, marks  upon  anything  made,  used,  or  sold 
by  him  for  which  he  has  not  obtained  a  patent, 
the  name  or  any  imitation  of  the  name  of  any 
person  who  has  obtained  a  patent  therefor, 
without  the  consent  of  such  patentee,  or  his 
assigns  or  legal  representatives;  or 

Who,  in  any  manner,  marks  upon  or  affixes 
to  any  such  patented  article  the  word  "  patent " 
or  "  patentee,"  or  the  words  "  letters  patent," 
or  any  word  of  like  import,  with  intent  to 
imitate  or  counterfeit  the  mark  or  device  of  the 
patentee,  without  having  the  license  or  consent 
of  such  patentee  or  his  assigns  or  legal  repre- 
sentatives; or 

Who,  in  any  manner,  marks  upon  or  affixes 
to  any  unpatented  article  the  word  "  patent "  or 
any  word  importing  that  the  same  is  patented, 
for  the  purpose  of  deceiving  the  public. 

Shall  be  liable,  for  every  such  oflence,  to  a 
penalty  of  not  less  than  one  hundred  dollars, 
with  costs;  one-half  of  said  penalty  to  the  person 
who  shall  sue  for  the  same,  and  the  other  to  the 
use  of  the  United  Slates,  to  he  recovered  by 
suit  in  any  district  court  of  the  United  States 
within  whose  jurisdiction  such  offence  may 
have  been  committed." 

Filing  and  Effect  of  Caveats. 

Sec.  4902.  Any  citizen  of  the  United  States 
who  makes  any  new  invention  or  discovery, 
and  desires  further  time  to  mature  the  same, 
may,  on  payment  of  the  fees  required  by  law, 
file  in  the  patent  office  a  caveat  setting  forth 
the  design  thereof,  and  of  its  distinguishing 
characteristics,  and  praying  protection  of  his 
right  until  he  shall  have  matured  his  invention. 
Such  caveat  shall  be  filed  in  the  confidential 
archives  of  the  office  and  preserved  in  secrecy, 
and  shall  be  operative  for  the  term  of  one  year 
from  the  filing  thereof;  and  if  application  is 
made  within  the  year  by  any  other  person  for  a 
patent  with  which  such  caveat  would  in  any 
manner  interfere,  the  commissioner  shall  de- 

Blatch  271 ;  P.  vs.  C.  7  Blatch.  195;  B.  vs.  McC.  i 
Bond,  194  :  H.  vs  W.  i  Bond,  407  ;  P.  vs.  J.  15  Barb. 
(N.  Y.)  310.  s-8  July,  1870,  c.  230,  §  37,  V.  16,  p.  203  , 
K.  vs.  W.  21  How.  322  ;  S.  vs.  S.  2  Cun.  C.  C.  555  ;  R. 
vs.  B.  SiT).  i  McLean,  177.  t-Id.  ^38,  p.  <»03  R.  Co. 
vs.  G.  9  Wall.  788 ;  G.  vs.  A.  6  Blatch.  33.  n-ld.  i  39, 
i   P-  ao3- 


570 


PATENTS. 


posit  the  description,  specification,  drawings, 
and  model  of  such  application  in  like  manner 
in  the  confidential  archives  of  the  office,  and 
give  notice  thereof,  by  mail,  to  the  person  by 
whom  the  caveat  was  filed.  If  such  person 
desires  to  avail  himself  of  his  caveat,  he  shall 
file  his  description,  specifications,  drawings, 
and  model  within  three  months  from  the  time 
of  placing  the  notice  in  the  post-office  in  Wash- 
ington, with  the  usual  time  required  for  trans- 
mitting it  to  the  caveator  added  thereto;  which 
time  shall  be  indorsed  on  the  notice.  An  alien 
shall  have  the  privilege  herein  granted,  if  he 
has  resided  in  Ifce  United  States  one  year  next 
preceding  the  filing  of  his  caveat,  and  has 
made  oath  of  his  intention  to  become  a  citizen.^ 
Tiotiee  of  Rejection  of  Claim  for  Patent 
to  be  Given  to  Applicant. 

Sec.  4903.  Whenever,  on  examination,  any 
claim  for  a  patent  is  rejected,  the  commissioner 
sliall  notify  the  applicant  thereof,  giving  him 
briefly  the  reasons  for  such  rejection,  together 
with  such  information  and  references  as  may 
be  useful  in  judging  of  the  propriety  of  renew- 
ing his  application  or  of  altering  his  specifica- 
tion; and  if,  after  receiving  such  notice,  the 
applicant  persists  in  his  claim  for  a  patent, 
with  or  without  altering  his  specifications,  the 
commissioner  shall  order  a  re-examination  of 
the  case.* 

Interferences. 

Sec.  4904.  Whenever  an  application  is 
made  for  a  patent  which,  in  the  opinion  of  the 
commissioner,  would  interfere  with  any  pend- 
ing application,  or  with  any  unexpired  patent, 
he  shall  give  notice  thereof  to  the  applicants, 
or  applicant  and  patentee,  as  the  case  may  be, 
and  shall  direct  the  primary  examiner  to  pro- 
ceed to  determine  the  question  of  priority  of 
invention.  And  the  commissioner  may  issue  a 
patent  to  the  party  who  is  adjudged  the  prior 
inventor,  unless  the  adverse  party  appeals  from 
the  decision  of  the  primary  examiner,  or  of  the 
board  of  examiners-in-chief,  as  the  case  may 
be,  within  such  time,  not  less  than  twenty  days, 
as  the  commissioner  shall  prescribe.* 

Affidavits  and  Depositions. 

Sec.  4905.  The  commissioner  of  patents 
may  establish  rules  for  taking  affidavits  and 
depositions  required  in  cases  pending  in  the 
patent  office,  and  such  affidavits  and  deposi- 
tions may  be  taken  before  any  officer  authorized 
by  law  to  take  depositions  to  be  used  in  the 
courts  of  the  United  States,  or  of  the  State 
where  the  officer  resides.' 

Subpcenas  to  Witnesses. 

Sec.  4906.  The  clerk  of  any  court  of  the 
United  States,  for  any  district  or  Territory 
wherein  testimony  is  to  be  taken  for  use  in  any 
contested  case  pending  in  the  patent  office, 
shall,  upon  the  application  of  any  parly  there- 
to, or  of  his  agent  or  attorney,  issue  a  subpoena 
for  any  witness  residing  or  being  within  such 
district  or  Territory,  commanding  him  to  ap- 
pear and  testify  before  any  officer  in  such  dis- 

V-8  July,  1870,  c.  130,  g  40,  V.  16,  p.  203 ;  B.  vs.  D. 
I  Bond,  313.  w-Id.  I  41,  p.  204.  x-Id.  §  43,  p.  304. 
y-8  July,  1870,  c.  330,  g  43,  V.  16,  p.  204.      z-ld.  '(^,  ^^, 


trict  or  Territory  authorized  to  take  depositions 
and  affidavits,  at  any  time  and  place  in  the 
subpoena  stated.  But  no  witness  shall  be  re- 
quired to  attend  at  any  place  more  than  forty 
miles  from  the  place  where  the  subpoena  is 
served  upon  him.* 

Witness  Fees. 
Sec.  4907.  Every  witness  duly  subpoenaed 
and  in  attendance  shall  be  allowed  the  same 
fees  as  are  allowed  to  witnesses  attending  the 
courts  of  the  United  States.' 

Penalty  for  Faiilngr  to  Attend  or  Re- 
fusing^ to  Testify. 

Sec.  4908.  Whenever  any  witness,  after 
being  duly  served  with  such  subpoena,  neglects 
or  refuses  to  appear,  or  after  appearing  refuses 
to  testify,  the  judge  of  the  court  whose  clerk 
issued  the  subpoena  may,  on  proof  of  such 
neglect  or  refusal,  enforce  obedience  to  the 
process,  or  punish  the  disobedience,  as  in 
other  like  cases.  But  no  witness  shall  be 
guilty  of  contempt  for  disobeying  such  sub- 
poena, unless  his  fees  and  travelling  expenses  in 
going  to,  returning  from,  and  one  day's  attend- 
ance at  the  place  of  examination,  are  paid  or 
tendered  him  at  the  time  of  the  service  of  the 
subpoena;  nor  for  refusing  to  disclose  any 
secret  invention  or  discovery  made  or  owned 
by  himself.** 

Appeals   from   Primary  Examiners  to 
ExaminerS'ln-l'Iiief. 

Sec.  4909.  Every  applicant  for  a  patent  or 
for  the  reissue  for  a  patent,  any  of  the  claims 
of  which  have  been  twice  rejected,  and  every 
party  to  an  interference,  may  appeal  from  the 
decision  of  the  primary  examiner,  or  of  the 
examiner  in  charge  of  interferences  in  such 
case,  to  the  board  of  examiaers-in-chief; 
having  once  paid  the  fee  for  such  appeal." 

From  £xaminers-ln-C'hlef  to  Commis- 
sioner. 

Sec.  49x0.  If  such  party  is  dissatisfied  with 

the  decision  of  the  examiners-in-chief,  he  may, 

on  the  payment  of  the  fee  prescribed,  appeal 

to  the  commissioner  in  person.^ 

From   the   Commissioner   to   the  8n- 

preme  Court,  District  of  Columbia. 

Sec.  491 1.  If  such  party,  except  a  p^riy  to 
an  interference,  is  dissatisfied  with  the  decision 
of  the  commissioner,  he  may  appeal  to  the 
supreme  court  of  the  District  of  Columbia, 
sitting  in  banc." 

Notice  of  such  Appeal. 

Sec.  4912.  When  an  appeal  is  taken  to  the 
Supreme  Court  of  the  District  of  Columbia, 
the  appellant  shall  give  notice  thereof  to  the 
commissioner,  and  file  in  the  patent  office, 
within  such  time  as  the  commissioner  shall 
appoint,  his  reasons  of  appeal,  specifically  set 
forth  in  writing.' 
Proceedings  on  Appeal  to  Supreme 
Court. 

Sec.  4913.  The  court  shall,  before  hearing 
such  appeal,  give  notice  to  the  commissioner 
of  the  time  and  place  of  the  hearing,  and  on 
receiving  such  notice  the  commissioner  shall 

45,  p.  304.    a-Id.  g4S.    b-Id.  gj44.  45-   e-W- 8  46-  «l- 
Id.  g  47,  p.  203.      e-Id.  1 48.      f-S  July,  zSfo,  c.  cja,  ] 

49,  V.  16,  p.  S06. 


PATENTS. 


57t 


give  notice  of  such  time  and  place  in  such 
manner  as  the  court  may  prescribe,  to  all  par- 
ties who  appear  to  be  interested  therein.  The 
party  appealing  shall  lay  before  the  court  cer- 
tified copies  of  all  the  original  papers  and  evi- 
dence in  the  case,  and  the  commissioner  shall 
furnish  the  court  with  the  grounds  of  his  de- 
cision, fully  set  forth  in  writing,  touching  all 
the  points  involved  by  the  reasons  of  appeal. 
And  at  the  request  of  any  party  interested,  or 
of  the  court,  the  commissioner  and  the  exami- 
nes may  be  examined  under  oath,  in  explana- 
tion of  the  principles  of  the  thing-  for  which  a 
jiatent  is  demanded.*' 

determination  of  sncli  Appeal  and  its 
Efl'eet. 
Sec.  4914.  The  court,  on  petition,  shall  hear 
and  delermme  such  appeal,  and  revise  the 
decision  appealed  from  in  a  summary  way,  on 
the  evidence  produced  before  the  commis- 
sioner, at  such  early  and  convenient  time  as 
the  court  may  appoint ;  and  the  revision  shall 
be  confined  to  the  points  set  forth  in  the  reasons 
of  appeal.  After  hearing  the  case  the  court 
shall  return  to  the  commissioner  a  certificate 
of  its  proceedings  and  decision,  which  shall 
be  entered  of  record  in  the  patent  office,  and 
shall  govern  the  further  proceedings  in  the 
case.  But  no  opinion  or  decision  of  the  court 
in  any  such  case  shall  preclude  any  person 
interested  from  the  right  to  contest  the  validity 
of  such  patent  in  any  court  wherein  the  same 
may  be  called  in  question.* 
Patents*  obtainable  by  Bill  in  Equity. 
Sec.  4915.  Whenever  a  patent  on  applica- 
tion is  refused,  either  by  the  commissioner  of 
patents  or  by  the  Supreme  Court  of  the  District 
of  Columbia  upon  appeal  from  the  commis- 
sioner, the  applicant  may  have  remedy  by  bill 
in  equity ;  and  the  court  having  cognizance 
thereof,  on  notice  to  adverse  parties  and  other 
due  proceedings  had,  may  adjudge  that  such 
applicant  is  entitled,  according  to  law,  to  re- 
ceive a  patent  for  his  invention,  as  specified  in 
his  claim,  or  for  any  part  thereof,  as  the  facts 
in  the  case  may  appear.  And  such  adjudica- 
tion, if  it  be  in  favor  of  the  right  of  the  appli- 
cant, shall  authorize  the  commissioner  to  issue 
such  patent  on  the  applicant  filing  in  the  patent 
office  a  copy  of  the  adjudication,  and  otherwise 
complying  with  the  requirements  of  law.  In 
all  cases,  where  there  is  no  opposing  party,  a 
copy  of  the  bill  shall  be  served  on  the  commis- 
sioner; and  all  the  expenses  of  the  proceeding 
shall  be  paid  by  the  applicant,  whether  the 
final  decision  is  in  his  favor  or  not.!  (See  § 
629,  p.  9.) 

ReiHHue  of  DefectlTe  Patents. 
Sec.  4916.  \Mienever  any  patent  is  inopera- 
tive or  invalid,  by  reason  of  a  defective  or 
insufficient  specification,  or  by  reason  of  the 
patentee  claiming  as  his  own  invention  or  dis- 
h-Id.Jsi.  l-Id.?5o.  J-Id.g5«.  k-8 July,  1870,  c. 
83°.  i  53.  V.  16,  p.  205  ;  S.  7'S.  C.  7  Pet.  292  ;  W.  j^s.  R  4 
How.  646  ;  M.  t,s.  G.  I  Bl.  273 ;  R.  vs.  B.  2  Wall.  591  ; 
C  vs.  W.  4  Wall,  saa  ;  B  vs.  V.  8  Wall.  445  i  M.  vs.  L.  8 
Wall.2io;  S.&j.  0. 11  Wall.  516:  C.  z'j.  B.  i7W.nll.  463; 
▲.  vx.  U.  iSumn.  488;  C.  vs.  B.  Manuf.  Co.  2Story,  439; 


covery  more  than  he  had  a  right  to  claim  as 
new,  if  the  error  has  arisen  by  inadvertence, 
accident,  or  mistake,  and  without  any  fraudu- 
lent or  deceptive  intention,  the  commissioner 
shall,  on  the  surrender  of  such  patent  and  the 
payment  of  the  duty  required  by  law,  cause  a 
new  patent  for  the  same  invention,  and  in  ac- 
cordance with  the  corrected  specification,  to  be 
issued  to  the  patentee,  or,  in  case  of  his  death 
or  of  an  assignment  of  the  whole  or  any  undi- 
vided part  of  the  original  patent,  then  to  his 
executors,  administrators,  or  assigns,  for  the 
unexpired  part  of  the  term  of  the  original 
patent.  Such  surrender  shall  take  effect  upon 
the  issue  of  the  amended  patent.  The  com- 
missioner may,  in  his  discretion,  cause  several 
patents  to  be  issued  for  distinct  and  separate 
parts  of  the  thing  patented,  upon  demand  of 
the  applicant,  and  upon  payment  of  the  re- 
quired fee  for  a  reissue  for  each  of  such  reis- 
sued letters  patent.  The  specifications  and 
claim  in  every  such  case  shall  be  subject  to 
revision  and  restriction  in  the  same  manner  as 
original  applications  are.  Every  patent  so 
reissued,  together  with  the  corrected  specifica- 
tion, shall  have  the  same  effect  and  operation 
in  law,  on  the  trial  of  all  actions  for  causes 
thereafter  arising,  as  if  the  same  has  been  orig- 
inally filed  in  such  corrected  form;  but  no 
new  matter  shall  be  introduced  into  the  speci- 
fication, nor  in  case  of  a  machine  patent  shall 
the  model  or  drawings  be  amended,  except 
each  by  the  other;  but  when  there  is  neither 
model  nor  drawing,  amendments  may  be  made 
upon  proof  satisfactory  to  the  commissioner 
that  such  new  matter  or  amendment  was  a  part 
of  the  original  invention,  and  was  omitted  from 
the  specification  by  inadvertence,  accident,  or 
mistake,  as  aforesaid.' 

Disclaimer. 

Sec.  4917.  Whenever,  through  inadvertence, 
accident,  or  mistake,  and  without  any  fraudu- 
lent or  deceptive  intention,  a  patentee  has 
claimed  more  than  that  of  which  he  was  the 
original  or  first  inventor  or  discoverer,  his 
patent  shall  be  valid  for  all  that  part  which  is 
truly  and  justly  his  own,  provided  the  same  is 
a  material  or  substantial  part  of  the  thing 
patented ;  and  any  such  patentee,  his  heirs  or 
assigns,  whether  of  the  whole  or  any  sectional 
interest  therein,  may  on  payment  of  the  fee 
required  by  law,  make  disclaimer  of  such  parts 
of  the  thing  patented  as  he  shall  not  choose  to 
claim  or  to  hold  by  virtue  of  the  patent  or  as- 
signment, stating  therein  the  extent  of  his 
interest  in  such  patent.  Such  disclaimer  shall 
be  in  writing,  attested  by  one  or  more  wit- 
nesses, and  recorded  in  the  patent  office ;  and 
it  shall  thereafter  be  considered  as  part  of  the 
original  specification  to  the  extent  of  the  inter- 
est possessed   by   the  claimant  and  by  those 

A.  vs.  B.  3  Story,  743  ;  W.  vs.  S.  3  Story,  753 ;  W.  vs. 
H.  I  Wood.  &  M.  261,  262  ;  A.  vs.  B.  2  Wood.  &  M. 
138;  W.  vs.  E.  3  Wood.  &  M.  126;  F.  vs.  S.  Co.  a 
Cliff.  379  :  C.  vs.  A.  2  Cliff.  528;  G.  vs.  H.  I  Blatch. 
169  ;  P.vs.H.  4  Blatch.  206  ;  B.  vs.  T.  2  Wall.  jr.  loa  ; 
S.  vs.  W.  2  McLean,  37;  M.  vs.  G.  i  Bond,  315. 


574 


PATENTS. 


claiming  under  him  after  the  record  thereof. 
But  no  such  disclaimer  shall  affect  any  action 
pending  at  the  time  of  its  being  filed,  except 
so  far  as  may  relate  to  the  question  of  unrea- 
sonable neglect  or  delay  in  filing  it.* 

Snlts  Touchlnic  Interferlnj;  Patents. 

Sec.  4918.  Whenever  there  are  interfering 
patents,  any  person  interested  in  any  one  of 
them,  or  in  the  working  of  the  invention 
claimed  under  either  of  them,  may  have  relief 
against  the  interfering  patentee,  and  all  parlies 
interested  under  him,  by  suit  in  equity  against 
the  owners  of  the  interfering  patent ;  and  the 
court,  on  notice  to  adverse  parties,  and  other 
due  proceedings  had  according  to  the  course 
of  equity,  may  adjudge  and  declare  either  of 
the  patents  void  in  whole  or  in  part,  or  inop- 
erative, or  invalid  in  any  particular  part  of  the 
United  States,  according  to  the  interest  of  the 
parties  in  the  patent  or  the  invention  patented. 
But  no  such  judgment  or  adjudication  shall 
affect  the  right  of  any  person,  except  the  parties 
to  the  suit  and  those  deriving  title  under  them 
subsequent  to  the  rendition  of  such  judg- 
ment." 

Snits  for  Infrtnjsrement;  Dnmagres. 

Sec.  4919.  Damages  for  the  infringement  of 
any  patent  may  be  recovered  by  action  on  the 
case,  in  the  name  of  the  party  interested,  either 
as  patentee,  assignee,  or  grantee.  And  when- 
ever in  any  such  action  a  verdict  is  rendered 
for  the  plaintiff,  the  court  may  enter  judgment 
thereon  for  any  sum  above  the  amount  found 
by  the  verdict  as  the  actual  damages  sustained, 
according  to  the  circumstances  of  the  case,  not 
exceeding  three  times  the  amount  of  such  ver- 
dict, together  with  the  costs." 

Pleadingr  and  Proof  In  Actions  for 
Infringrement. 

Sec.  4920.  In  any  action  for  infringement 
the  defendant  may  plead  the  general  issue,  and 
having  given  notice  in  writing  to  the  plaintiff 
or  his  attorney,  thirty  da3'S  before,  may  prove, 
on  trial,  any  one  or  more  of  the  following 
special  matters : 

1.  That  for  the  purpose  of  deceiving  the 
public  the  description  and  specification  filed  by 
the  patentee  in  the  patent  office  was  made  to 
contain  less  than  the  whole  truth  relative  to  his 
invention  or  discovery,  or  more  than  is  neces- 
sary to  produce  the  desired  effect ;  or, 

2.  That  he  had  surreptitiously  or  unjustly 
obtained  the  patent  for  that  which  was  in  fact 
invented  by  another,  who  was  using  reasonable 
diligence  in  adapting  and  perfecting  the  same ; 
or, 

3.  That  it  had  been  patented  or  described  in 
some  printed  publication  prior  to  his  supposed 
jnvciui(Mi  or  discovery  thereof;  or, 

l-ld.  ?  54,  p.  206 ;  S.  vs.  F.  14  How.  218 ;  O'R.  vt. 
M.  15  How.  121  ;  S.  vs.  McC.  19  How.  206  ;  W.  vs.  S. 
I  Story,  294 ;  R.  vs.  C.  1  Story,  600 ;  G.  vs.  S.  i  Blatch. 
.144  ;  ft.  vs.  W.  2  Blatch.  198  ;  T.  vs.  B.  6  Blatch.  95  ; 
VV.  vs.  E.  I  Baldw.  313;  B.  vs.  J.  4  McLean,  449.  m- 
6  July,  1870,  c.  230, 1  58,  V.  16,  p.  207.  n-Id.  f  50,  p. 
20J  ;  D.  vs.  M.  20  How.  198 ;  Corp.  of  N.  Y.  vs.  K.  23 
How.  487  ;  M.  vs.  M.  7  Wall.  515  ;  M.  vs.  W.  14  Wall. 
6jo  ;  M.  vs.  H.  16  Wall.  544  :  P.  vs.  N.  17  Wall.  460. 
O-IJ.  J  61,  p.  208 ;  B.  vs.  P.  8  Wall.  420 ;  W.  vs.  A.  9 
Wall.  737.      p-8  July,  X870,  c.  230,  J  55,  v.  16,  p.  206 ; 


4.  That  he  was  not  the  original  and  first  in- 
ventor or  discoverer  of  any  material  and  sub- 
stantial part  of  the  thing  patented  ;  or, 

5.  That  it  had  been  in  public  use  or  on  sale 
in  this  country  for  more  than  two  years  before 
his  application  for  a  patent,  or  had  been  aban- 
doned to  the  public. 

And  in  notices  as  to  proof  of  previous  in- 
vention, knowledge,  or  use  of  the  thing  patented, 
the  defendant  shall  state  the  names  of  pat- 
entees and  the  dates  of  their  patents,  and 
when  granted,  and  the  names  and  residences 
of  the  persons  alleged  to  have  invented,  or  to 
have  had  the  prior  knowledge  of  the  thing 
patented,  and  where  and  by  whom  it  had  been 
used ;  and  if  any  one  or  more  of  the  special 
matters  alleged  shall  be  found  for  the  defend- 
ant, judgment  shall  be  rendered  for  him  with 
costs.  And  the  like  defences  may  be  pleaded 
in  any  suit  in  equity  for  relief  against  an  alleged 
infringement ;  and  proofs  of  the  same  may  be 
given  upon  like  notice  in  the  answer  of  the  de- 
fendant, and  with  the  like  effect." 
Power  of  Conrts  to  Grant  Injunctions 
and  Estimate  Damag^es. 

Sec.  4921.  The  several  courts  vested  with 
jurisdiction  of  cases  arising  under  the  patent 
laws  shall  have  power  to  grant  injunctions  ac- 
cording to  the  course  and  principles  of  courts 
of  equity,  to  prevent  the  violation  of  any  right 
secured  by  patent,  on  such  terms  as  the  court 
may  deem  reasonable ;  and  upon  a  decree  being 
rendered  in  any  such  case  for  an  infringement, 
the  complainant  shall  be  entitled  to  recover,  in 
addition  to  the  profits  to  be  accounted  for  by 
the  defendant,  the  damages  the  complainant 
has  sustained  thereby;  and  the  court  shall 
assess  the  same  or  cause  the  same  to  be  as- 
sessed under  its  direction.  And  the  court  shall 
have  the  same  power  to  increase  such  damages, 
in  its  discretion,  as  is  given  to  increase  the  dam- 
ages found  by  verdicts  in  actions  in  tlie  nature 
of  actions  of  trespass  upon  the  case.? 

Snlt    for    Infring^ement   ^'here 
Specification  is  too  Broad. 

Sec.  4922.  Whenever,  through  inadvertence, 
accident,  or  mistake,  and  without  any  wilful 
default  or  intent  to  defraud  or  mislead  the  pub- 
lic, a  patentee  has,  in  his  specification,  claimed 
to  be  the  original  and  first  inventor  or  discov- 
erer of  any  material  or  substantial  part  of  the 
thing  patented,  of  which  he  was  not  the  orig- 
inal and  first  inventor  or  discoverer,  every  such 
patentee,  his  executors,  administrators,  and 
assigns,  whether  of  the  whole  or  any  sectional 
interest  in  the  patent,  may  maintain  a  suit  at 
law  or  in  equity,  for  the  infringement  of  any 
part  thereof,  which  was  bona  fide  his  own,  if 

W.  vs.  W.  4  How.  712  ;  H.  vs.  E.  II  How.  587  ;  L.  vt. 
W.  15  How.  546;  S.  vs.  McC.  16  How.  489  ;  D.  vs.  M. 


20  How.  198;    Corp.  of  N.  Y.  vs.  R.  23  How.  487;  M, 
vs.  M.  7  Wall.  515:  R.  Co.  vs.  G.  9  Wall.  788;    M. 
W.  14  Wall.  629  :  M.  vs.  H.  16  Wall.  544 :  P.  vs.  N.  17 


Wall.  460;  N.  vs.  C.  I  Wood.  &  M  34;  W.  vs.  E.  3 
Wood.  &  M.  120:  W.  vs.  W.  I  Blatch.  165;  A.  vs.  B.  1 
Blatch.  486:  W.  vs.  S.  i  Blatch.  536:  G.  vs.  D.  1 
Blatch.  565  ;  G.  vs.  R.  Co.  4  Blatch.  63  :  T.  vs  L.  4 
Blatch.  86 ;  G.  vs.  A.  6  Blatch.  33 :  O.  vs.  E.  4  Wash. 
584:  B.  vs.  Manuf.  Co.  3  Wall.  jr.  196;  B.  w.S.  3  Mc- 
Lean,  523 ;  H.  vs.  W.  i  Bond,  407. 


PATENTS— DESIGNS. 


S73 


it  is  a  material  and  substantial  part  of  the 
thing  patented,  and  definitely  distinguishable 
from  the  parts  claimed  without  right,  notwith- 
standing the  specifications  may  embrace  more 
than  that  of  which  the  patentee  was  the  first 
inventor  or  discoverer.  But  in  every  such  case 
in  which  a  judgment  or  decree  shall  be  ren- 
dered for  the  plaintiff,  no  costs  shall  be  recov- 
ered unless  the  proper  disclaimer  has  been 
entered  at  the  patent  office  before  the  com- 
mencement of  the  suit.  But  no  patentee  shall 
be  entitled  to  the  benefits  of  this  section  if  he 
has  unreasonably  neglected  or  delayed  to  enter 
n  disclaimer.' 

Patent  not  Told  on  Account  of  Prevloas 
Use  in  Forelf^n  Country. 
Sec.  4923.  Whenever  it  appears  that  a  pat- 
entee, at  the  time  of  making  his  application 
for  the  patent,  believed  himself  to  be  the  orig- 
inal and  first  inventor  or  discoverer  of  the  thing 
patented,  the  same  shall  not  be  held  to  be  void 
on  account  of  the  invention  or   discovery,  or 
any  part  thereof,  having  been  known  or  used 
in  a  foreign  country,  before  his  invention  or  dis- 
covery thereof,  if  it  had  not  been  patented  or 
described  in  a  printed  publication.* 
Extension  of  Patents  Oranted  Prior 

to  Marcli  2,  1S61. 
Sec.  4924.  Where  the  patentee  of  any  in- 
vention or  discovery,  the  patent  for  which  was 
granted  prior  to  the  second  day  of  March, 
eighteen  hundred  and  sixty-one,  shall  desire  an 
extension  of  this  patent  beyond  the  original 
term  of  its  limitation,  he  shall  make  applica- 
tion therefor  in  writing  to  the  commissioner  of 
patents,  setting  forth  the  reasons  why  such  ex- 
tension should  be  granted;  and  he  shall  also 
furnish  a  written  statement  under  oath  of  the 
ascertained  value  of  the  invention  or  discovery, 
and  of  his  receipts  and  expenditures  on  account 
thereof,  sufficiently  in  detail  to  exhibit  a  true 
and  faithful  account  of  the  loss  and  profit  in 
any  manner  accruing  to  him  by  reason  of  the 
invention  or  discovery.  Such  application  shall 
be  filed  not  more  than  six  months  nor  less  than 
ninety  days  before  the  expiration  of  the  orig- 
inal term  of  the  patent ;  and  no  extension  shall 
he  granted  after  the  expiration  of  the  original 
term.* 

Wbat  TTotlce  of  Application  for 
Extension  Must  be  Oiven. 
Sec.  4925.  Upon  the  receipt  of  such  appli- 
cation and  the  payment  of  the  fees  required  by 
law,  the  commissioner  shall  cause  to  be  pub- 
lished in  one  newspaper  in  the  city  of  Wash- 
ington, and  in  such  other  papers  published  in 
the  section  of  the  country  most  interested  ad- 
versely to  the  extension  of  the  patent  as  he  may 
deem  proper,  for  at  least  sixty  days  prior  to  the 
day  set  for  hearing  the  case,  a  notice  of  such 
application,  and  of  the  time  and  place  when 

r-8  July,  1870,  c.  230,  2  6°.  v.  16,  p.  207;  O'R.  vs. 
M.  15  How.  62 ;  S.  vs.  McC.  19  How.  lois ;  S.  vs.  F. 
20  How.  378 ;  V.  vs.  C.  I  Bl.  427;  W.  vs.  S.  I  Story, 
273;  R.  vs.  C.  I  Story,  600;  P.  vs.  W.  2  Story,  621  ; 
G.  vs.  S.  I  Blatch.  244;  H.  vs.  W.  2  Blatch.  198, 
199;  B.  vs.  J.  3  McLean,  449.  s-Id.  ?  62,  p.  208; 
J.  vs.  C.  I  Bond,  327;  B.  vs.  S.  i  Fish.  Pat.  Cas. 
516;  H.  vs.  M.  I  Fish.  Pat.  Cas.  586.  t-8  July,  1870, 
c.  330,  2  63,  v.  16,  p.  S08;   C.  vt.'W.  4  Wall.  532. 


and  where  the  same  will  be  considered,  that 
any  person  may  appear  and  show  cause  why  the 
extension  should  not  be  granted." 
Applications  for  Extension,  to  Whon 
to  be  Referred. 
Sec.  4926.  Upon  the  publication  of  the 
notice  of  an  application  for  an  extension,  the 
commissioner  shall  refer  the  case  to  the  prin- 
cipal examiner  having  charge  of  the  class  of 
inventions  to  which  it  belongs,  who  shall  make 
the  commissioner  a  full  report  of  the  case, 
stating  particularly  whether  the  invention  or 
discovery  was  new  and  patentable  when  the 
original  patent  was  granted.'' 

Commissioner  to  Hear  and  I>eclde  the 
Q,nestlon  of  Extension. 

Sec.  4927.  The  commissioner  shall,  at  the 
time  and  place  designated  in  the  published 
notice,  hear  and  decide  upon  the  evidence  pro- 
duced both  for  and  against  the  extension;  and 
if  it  shall  appear  to  the  satisfaction  of  the  com- 
missioner that  the  patentee,  without  neglect  or 
fault  on  his  part,  has  failed  to  obtain  from  the 
use  and  sale  ot  his  invention  or  discovery  a 
reasonable  rt-muneration  for  the  time,  ingenu- 
ity, and  expense  bestowed  upon  it,  and  the  in- 
troduction of  it  into  use,  and  that  it  is  just  and 
proper,  having  due  regard  to  the  public  in- 
terest, that  the  term  of  the  patent  should  be 
extended,  the  commissioner  shall  make  a  cer- 
tificate thereon,  renewing  and  extending  th« 
patent  for  the  term  of  seven  years  from  the  es. 
piration  of  the  first  term.  Such  certificate  shall 
be  recorded  in  the  patent  office ;  and  thereupon 
such  patent  shall  have  the  same  effect  in  law 
as  though  it  had  been  originally  granted  fc» 
twenty-one  years.* 

Operation  of  Extensions. 

Sec.  4928.  The  benefit  of  the  extension  of 
a  patent  shall  extend  to  the  assignees  and 
grantees  of  the  right  to  use  the  thing  patented, 
to  the  extent  of  their  interest  therein.* 

Patents  for  Oesig^ns  Authorized. 

Sec.  4929.  Any  person  who,  by  his  own  in- 
dustry, genius,  efforts,  and  expense,  has  in- 
vented and  produced  any  new  and  origina- 
design  for  a  manufacture,  bust,  statue,  alto-rel 
lievo,  or  bas-relief;  any  new  and  original  de. 
sign  for  the  printing  of  woollen,  silk,  cotton,  or 
other  fabrics ;  any  new  and  original  impression, 
ornament,  patent  [pattern],  print,  or  picture  to 
be  printed,  painted,  cast,  or  otherwise  placed 
on  or  worked  into  any  article  of  manufacture; 
or  any  new,  useful,  and  original  shape  or  con- 
figuration  of  any  article  of  manufacture,  the 
same  not  having  been  known  or  used  by  others 
before  his  invention  or*  production  thereof,  or 
patented  or  described  in  any  printed  publica 
lion,  may,  upon  payment  of  the  fee  prescribed, 
and  other  due  proceedings  had  the  same  as  iu 

u-8  July,  1870,  c.  230,  2  64,  V.  16,  p.  208.  -v-Id  2  65 
w-ld.  g  66,  p.  209  ;  W.  w.  E.  sWood  &M.  120:  G. 
vs.  H.  I  Blatch.  167;  C.  vs.  Y.  2  Blatch.  471.  x-Id. 
9  67,  p.  209  ;  W.  vs.  R.  4  How.  646  ;  B.  vs.  McQ.  14 
How.  549  :  C.  vs.  The  B.  B  Co.  22  How.  223 ,  B.  vs. 
M.  I  Wall.  340;  N.  P.  C.  vs.  J.  14  Wall  452  ;  E  vs. 
D.  18  Wall.  414 ;  G.  vs.  C.  2  Blatch.  146;  B.  vs.  W  3 
Blatch.  307 ;  D.  vs.  R.  Co.  3  Blatch.  488 ;  P.  w.  C.  4 
'   McLean,  353. 


574 


PATKi>JTS— DESIGNS  AND  TRADE-MARKS. 


cases   of   inventions   or   discoveries,  obtain   a 
patent  therefor.* 

Models  of  Deslgrns. 

Skc.  4930.  The  commissioner  may  dispense 
with  models  of  designs  when  tlie  design  can  be 
sufficiently  represented  by  drawings  or  photo- 
graphs.' 

Daration  of  Patents  for  Designs. 

Sec.  4931.  Patents  for  designs  may  be 
granted  for  the  term  of  three  years  and  six 
months,  or  for  seven  years,  or  for  fourteen  years, 
as  the  applicant  may,  in  his  application,  elect.* 

Extension  of  Patents  for  Deslg^ns. 

Sec.  4932.  Patentees  of  designs  issued  prior 
to  the  second  day  of  March,  eighteen  hundred 
and  sixty-one,  shall  be  entitled  to  extension  of 
their  respective  patents  for  the  term  of  seven 
years,  in  the  same  manner  and  under  the  same 
restrictions  as  are  provided  for  the  extension 
of  patents  for  inventions  or  discoveries,  issued 
prior  to  the  second  day  of  March,  eighteen 
hundred  and  sixty-one.* 

Patents  for  Deslg'ns,  ete. 

Sec.  4933.  All  the  regulations  and  provi- 
sions which  apply  to  obtaining  or  protecting 
patents  for  inventions  or  discoveries  not  incon- 
sistent with  the  provisions  of  this  title,  shall 
apply  to  patents  for  designs."* 

FEES. 

Fees  In  Obtaining  Patents,  etc 

Sec.  4934.  The  following  shall  be  the  rates 
for  patent  fees : 

On  filing  each  original  application  for  a 
patent,  except  in  design  cases,  fifteen  dollars. 

On  issuing  each  original  patent,  except  in 
design  cases,  twenty  dollars. 

In  design  cases :  For  three  years  and  six 
months,  ten  dollars;  for  seven  years,  fifteen 
dollars ;  for  fourteen  years,  thirty  dollars. 

On  filing  each  caveat,  ten  dollars. 

On  every  application  for  the  reissue  of  a 
patent,  thirty  dollars. 

On  filing  each  disclaimer,  ten  dollars. 

On  every  application  for  the  extension  of  a 
patent,  fifty  dollars. 

On  the  granting  of  every  extension  of  a 
patent,  fifty  dollars. 

On  an  appeal  for  the  first  time  from  the 
primary  examiners  to  the  examiners-in-chief, 
ten  dollars. 

On  every  appeal  from  the  examiners-in-chief 
*o  the  commissioner,  twenty  dollars. 

For  certified  copies  of  patents  and  other 
■rapers,  including  certified  printed  copies,  ten 
cents  per  hundred  words. 

For  recording  every  assignment,  agreement, 
power  of  attorney,  or  other  paper,  of  three 
hundred  words  or  under,  one  dollar;  of  over 
three  hundred  and  under  one  thousand  words, 
two  dollars ;  of  over  one  thousand  words,  three 
dollars. 

For  copies  of  drawings,  the  reasonable  cost 
of  making  them." 

Mode  of  Payment. 

Sec.  4935.  Patent  fees  may  be  paid  to  the 

X-Id.  3  71,  p.  ao9 ;  C.  vs.  B.  10  Wall.  133  :  G.  Co.  vs. 
W.  14  Wail,  sit ;  B.  rs.  G.  i  Blatch.  247 ;  R.  vs.  B.  4 
Mcl/can,  180.     y-8  July,  187CV  c.  230,  J  72,  v.  15,  p.  210. 


commissioner  of  patents,  or  to  the  treasurer  or 
any  of  the  assistant  treasurers  of  the  United 
States,  or  to  any  of  the  designated  depositaries, 
national  banks,  or  receivers  of  public  money, 
designated  by  the  secretary  of  the  treasury  for 
that  purpose;  and  such  officer  shall  give  the 
depositor  a  receipt  or  certificate  of  deposit 
therefor.  All  money  received  at  the  patent 
office,  for  any  purpose,  or  from  any  source 
whatever,  shall  be  paid  into  the  treasury  as  re- 
ceived, without  any  deduction  whatever."* 
Refunding:. 

Sec.  4936.  The  treasurer  of  the  United 
States  is  authorized  to  pay  back  any  sum  or 
sums  of  money  to  any  person  who  has  through 
mistake  paid  the  same  into  the  treasury,  or  lu 
any  receiver  or  depositary,  to  the  credit  of  the 
treasury,  as  for  fees  accruing  at  the  patent 
office,  upon  a  certificate  thereof  being  made  to 
the  treasurer  by  the  commissioner  of  patents.* 

TRAl>E.MAftK. 
An  Act  to  Antborize  ttae  Regristration 

«)f  Trade-Marks  and  Protect  the  Same. 

Appro\^cd  March  3,  1M81. 

£e  it  eiuuled  by  the  Senate  and  House  oj 
Representatives  of  the  United  States  in  Con- 
gress assembled.  That  owners  of  trademarks 
used  in  commerce  willi  foreign  nations  or  with 
the  Indian  tribes,  provided  such  owners  shall 
be  domiciled  in  the  United  .States  or  located 
in  any  foreign  country  or  tribes,  which,  by 
treaty,  convention,  or  law,  affords  similar  priv- 
ileges to  citizens  of  the  United  States,  may  ob- 
tain registration  of  such  trademarks  by  com- 
plying with  the  following  requirements : 

First.  By  causing  to  be  recorded  in  the 
Patent  Office  a  statement  specifying  name, 
domicile,  location,  and  citizenship  of  the  party 
applying ;  the  class  of  merchandise,  and  the  par- 
ticular description  of  goods  comprised  in  such 
class  to  whicii  the  particulartrade-mark  has  been 
appropriated  ;  a  description  of  the  trade-mark 
Itself,  with  facsimiles  thereof,  and  a  statement 
of  the  mode  in  which  the  same  is  applied  and 
affixed  to  goods,  and  the  length  of  time  during 
which  the  trade-mark  has  been  used. 

Second.  By  paying  into  the  Treasury  of  the 
United  States  the  sum  of  twenty-five  dollars, 
and  complying  with  such  regulations  as  may  be 
prescribed  by  the  Commissioner  of  Patents. 

Sec.  2.  That  the  application  prescribed  in  the 
foregomg  section  must,  in  order  to  create  any 
right  whatever  in  favor  of  the  party  filing  it,  be 
accompanied  by  a  written  declaration  verified  by 
the  person,  or  by  a  member  of  a  firm,  or  by  an 
officer  of  a  corporation  applying,  to  the  efllect 
that  such  parly  has  at  the  time  a  right  to  the 
use  of  the  trademark  sought  to  be  registered, 
and  tlial  no  other  person,  firm  or  corporation 
has  the  right  to  such  use,  either  in  the  identical 
form  or  in  any  such  near  resemblance  thereto 
as  might  be  calculated  to  deceive ;  that  such 
trade -mark  is  used  in  commerce  with  foreign 
nations  or  Indian  tribes,  as  above  indicated ; 

«-Id.  §  73.  a-ld.  2  74.  b-Id  \  76.  c-Id.  \  68.  p.  200 : 
?  75.  P  2»";  24  March,  1871,  c.  5,  \  3,  v.  17,  p.  3.  a-8 
July,  1870,  c.  230,  g  69,  V.  16,  p.  209.     e-ld.  J  70, 


PATENTS— TRADPMVIARKS. 


Sli 


And  that  the  description  and  fac-similes  pre- 
sented for  registry  truly  represent  the  trade- 
mark sought  to  be  registered. 

Sec.  3.  That  the  time  of  the  receipt  of  any 
such  application  shall  be  noted  and  recorded. 
But  no  alleged  trade-mark  shall  be  registered 
unless  the  same  appear  to  be  lawfully  used  as 
such  by  the  applicant  in  foreign  commerce  or 
commerce  with  Indian  tribes,  as  above  men- 
tioned, or  is  within  the  provision  of  a  treaty, 
convention,  or  declaration  with  a  foreign 
power ;  nor  which  is  merely  the  name  of  the 
applicant;  nor  which  is  identical  with  a  regis- 
tered or  known  trade-mark  owned  by  another, 
and  appropriate  to  the  same  class  of  merchan- 
dise, or  which  so  nearly  resembles  some  other 
person's  lawful  trade-mark  as  to  be  likely  to 
cause  confusion  or  mistake  in  the  mind  of  the 
public,  or  to  deceive  purchasers.  In  an  appli- 
cation for  registration  the  Commissioner  of 
Patents  shall  decide  the  presumptive  lawfulness 
of  claim  to  the  alleged  trade-mark;  and  in 
any  dispute  between  an  applicant  and  a  pre- 
vious registrant,  or  between  applicants,  he  shall 
follow,  so  far  as  the  same  may  be  applicable, 
the  practice  of  courts  of  equity  of  the  United 
States  in  analogous  cases. 

Sec.  4.  That  certificates  of  registry  of  trade- 
marks shall  be  issued  in  the  name  of  the 
United  Stales  of  America,  under  the  seal  of 
the  Department  of  the  Interior,  and  shall  be 
signed  by  the  Commissioner  of  Patents,  and  a 
record  thereof,  together  with  printed  copies  of 
the  specifications,  shall  be  kept  in  books  for 
that  purpose.  Copies  of  trade-marks  and  of 
statements  and  declarations  filed  therewith, 
and  certificates  of  registry  so  signed  and  sealed, 
shall  be  evidence  in  any  suit  in  which  such 
trade-marks  shall  be  brought  in  controversy. 

Sec.  5.  That  a  certificate  of  registry  shall 
remain  in  force  for  thirty  years  from  this  date, 
except  in  cases  where  the  trade-mark  is  claimed 
for  and  applied  to  articles  not  manufactured  in 
this  country,  and  in  which  it  receives  protection 
under  the  laws  of  a  foreign  country  for  a  shorter 
period,  in  which  case  it  shall  cease  to  have  any 
force  in  this  country  by  virtue  of  this  act  at  the 
time  that  such  trade-mark  ceases  to  be  exclusive 
property  elsewhere.  At  any  time  during  the 
six  months  prior  to  the  expiration  of  the  term 
of  thirty  years  such  registration  may  be 
renewed  on  the  same  terms  and  for  a  like 
period. 

Sec.  6.  That  applicants  for  registration 
under  this  act  shall  be  credited  for  any  fee  or 
part  of  a  fee  heretofore  paid  into  the  Treasury 
of  the  United  States  with  intent  to  procure 
protection  for  the  same  trade-mark. 

Sec.  7.  That  registration  of  a  trade-mark 
shall  be  prima  facie  evidence  of  ownership. 
Any  person  who  shall  reproduce,  counterfeit, 
copy,  or  colorably  imitate  any  trade-mark 
legistered  under  this  act,  and  affix  the  same  to 
merchandise  of  substantially  the  same  descrip- 
live  properties  as  those  described  in  the  regis- 
tration, shall  be  liable  to  an  action  on  the  case 
for  damages  for  the  wrongful  use  of  said 
tuade-mark  at  the  suit  of  the  owner  thereof; 

37 


and  the  party  s^grieved  shall  also  have  his 
remedy  according  to  the  course  of  equity  to 
enjoin  the  wrongful  use  of  such  trade-mark 
used  in  foreign  commerce  or  commerce  with 
Indian  tribes,  as  aforesaid,  and  to  recover  com- 
pensation therefor  in  any  court  having  jurisdic- 
tion over  the  person  guilty  of  such  wrongful 
act ;  and  courts  of  the  United  States  shall  have 
original  and  appellate  jurisdiction  in  such  cases 
without  regard  to  the  amount  in  controversy. 

Sec.  8.  That  no  action  or  suit  shall  be  main- 
tained under  the  provisions  of  this  act  in  any 
case  when  the  trade -mark  is  used  in  any  un- 
lawful business  or  upon  any  article  injurious 
in  itself,  or  which  mark  has  been  used  with 
the  design  of  deceiving  the  public  in  the 
purchase  of  merchandise,  or  unaer  any  certifi 
cate  of  registry  fraudulently  obtained. 

Sec.  9.  That  any  person  who  shall  procure 
the  registry  of  a  trade-mark,  or  of  himself  as 
the  owner  of  a  trade-mark,  or  an  entry  respect- 
ing a  trade-mark,  in  the  office  of  the  Commis- 
sioner of  Patents,  by  a  false  or  fraudulent 
representation  or  declaratien,  orally  or  in  writ 
mg,  or  by  any  fraudulent  means,  shall  be 
liable  to  pay  any  damages  sustained  in  conse- 
quence thereof  to  the  injured  party,  to  be 
recovered  in  an  action  on  the  case. 

Sec.  10.  That  nothing  in  this  act  shall  pre- 
vent, lessen,  impeach,  or  avoid  any  remedy  at 
law  or  in  equity  which  any  party  aggrieved  by 
any  wrongful  use  of  any  trade-mark  might 
have  had  if  the  provisions  of  this  act  had  not 
been  passed. 

Sec.  II.  That  nothing  in  this  act  shall  be 
construed  as  unfavorably  affecting  a  claim  to  a 
trade-mark  after  the  term  of  registration  shall 
have  expired;  nor  to  give  cognizance  to  any 
court  of  the  United  States  m  an  action  or  suit 
between  citizens  of  the  same  State,  unless  ihe 
trade  mark  in  controversy  is  used  on  goods 
intended  to  be  transported  to  a  foreign  coun- 
try, or  in  lawful  commercial  intercourse  with 
an  Indian  tribe. 

Sec.  12.  That  the  Commissioner  of  Patents 
is  authorized  to  make  rules  and  regulations  and 
prescribe  forms  for  the  transfer  of  the  right  t« 
use  trade-raarks  and  for  recording  such  trans* 
fers  in  his  office. 

Sec.  13.  That  citizens  and  residents  of  this 
country  wishing  the  protection  of  trade  marks 
in  any  foreign  country  the  laws  of  which  re- 
quire registration  here  as  a  condition  precedent 
to  getting  such  protection  there  may  register 
their  trade-marks  for  that  purpose  as  is  above 
allowed  to  foreigners,  and  have  certificate 
thereof  from  the  Patent  Office. 

An  Act  Approved  AoKOSt  5,  1882. 
Be  it  enacted  by  the  Senate  and  Home  of 
Representatives  of  the  United  States  of  America 
in  Congress  assembled.  That  nothing  contained 
in  the  law  entitled  "An  act  to  authonze  the 
registration  of  trade-marks  and  protect  the 
same,"  approved  March  3,  188 1,  shall  prevent 
the  registry  of  any  lawful  trade-mark  rightfully 
used  by  the  applicant  in  foreign  commerce  or 
commerce  with  Indian  tribes  at  the  time  of  the 
passage  of  said  act. 


576 


PATENTS. 


Inft-lngement  of  €opyrl@;hts. 

No  person  shall  maintain  an  action  for  the 
infringement  of  his  copyright  unless  he  shall 
give  notice  thereof  by  inserting  in  the  several 
copies  of  every  edition  published,  on  the  title 
page  or  the  page  immediately  following,  if 
it  be  a  book ;  or  if  a  map,  chart,  musical 
composition,  print,  cut,  engraving,  photograph, 
painting,  drawing,  chromo,  statue,  statuary,  or 
model  or  design  intended  to  be  perfected  and 
completed  as  a  work  of  the  fine  arts,  by  m- 
scribing  upon  some  visible  portion  thereof,  or 
of  the  substance  on  which  the  same  shall  be 
mounted,  the  following  words,  viz. :  "  Entered 

according  to  act  of  Congress,  in  the  year , 

by  A.  B.,  in  the  office  of  the  Librarian  of 
Congress,  at  Washington;"  or,  at  his  option, 
the  word  "  Copyright,"  together  with  the  year 
the  copyright  was  entered,  and  the  name  of 
the  party  by  whom  it  was  taken  out ;  thus — 
"  Copyright,  l8— ,  by  A.  B." 

Copyrlg^ht  Fees. 

Sec.  2.  That  for  recording  and  certifying 
any  instrument  of  writing  for  the  assignment 
of  a  copyright,  the  librarian  of  Congress  shall 
receive  from  the  persons  to  whom  the  service 
is  rendered,  one  dollar;  and  for  every  copy  of 
an  assignment,  one  dollar;  said  fee  to  cover,  in 
either  case,  a  certificate  of  the  record,  under 
seal  of  the  librarian  of  Congress  ;  and  all  fees 
so  received  shall  be  paid  into  the  treasury  of 
the  United  States. 

"Engraving,"  "Cnt,"  and  "Print," 
Otlier  Prints  and  Iialtols.  Commis- 
sioner— Supervision  of  Fees. 

Sec.  3.  That  in  the  construction  of  this  act, 
the  words  "  engraving,"  "  cut,"  and  "  print," 
shall  be  applied  only  to  pictorial  illustrations 
or  works  connected  with  the  fine  arts,  and  no 
prints  or  labels  designed  to  be  used  for  any 
other  articles  of  manufacture  shall  be  entered 
under  the  copyright  law,  but  may  be  registered 
in  the  patent  office,  and  the  commissioner  of 
patents  is  hereby  charged  with  the  supervision 
and  control  of  the  entry  or  registry  of  such 
prints  or  labels,  in  conformity  with  the  regula- 
tions provided  by  law  as  to  copyright  of 
prints,  except  that  there  shall  be  paid  for  re- 
cording the  title  of  any  print  or  label,  not  a 
trade-mark,  six  dollars,  which  shall  cover  the 
expense  of  furnishing  a  copy  of  the  record 
under  the  seal  of  the  commissioner  of  patents, 
lo  the  party  entering  the  same. 

Sec.  4.  That  all  laws  and  parts  of  laws 
inconsistent  with  the  foregoing  provisions  be 
and  the  same  are  hereby  repealed. 

Sec.  5.  That  this  act  shall  take  effect  on  and 
after  the  first  day  of  August,  eighteen  hundred 
and  seventy-four. 

Approved,  June  18,  1874. 

REPEAI.  PROVISIONS. 

'What  Revised  Statutes  Embrace. 

Title  LXXIV.,  Rev.  Stat.,  p.  1091  : 
Sec.  5595.  The  foregoing  seventy-three  titles 
embrace  the  statutes  of  the  United  States,  gen- 
eral and  permanent  in  their  nature,  in  force  on 
the  1st  day  of  December,  one  thousand  eight 


hundred  and  seventy-three,  as  revised  and 
consolidated  by  commissioners  appointed  under 
an  act  of  Congress,  and  the  same  shall  be  desig- 
nated and  cited,  as  the  Revised  Statutes  of  the 
United  States. 
Repeal  of  Acts  Embraced  in  Revision. 

Sec.  5596.  All  acts  of  Congress  passed  prior 
to  said  first  day  of  December,  one  thousand 
eight  hundred  and  seventy-three,  any  portion 
of  which  is  embraced  in  any  section  of  said 
revision,  are  hereby  repealed,  and  the  section 
applicable  thereto  shall  be  in  force  in  lieu 
thereof;  all  parts  of  such  acts,  not  contained 
in  such  revision,  having  been  repealed  or 
superseded  by  subsequent  acts,  or  not  being 
general  and  permanent  in  their  nature  :  Pro- 
vided.  That  the  incorporation  into  said  revision 
of  any  general  and  permanent  provision,  taken 
from  an  act  making  appropriations,  or  from  an 
act  containing  other  provisions  of  a  private, 
local,  or  temporary  character,  shall  net  repeal, 
or  in  any  way  affect  any  appropriation,  or  any 
provision  of  a  private,  local,  or  temporary  char- 
acter, contained  in  any  of  said  acts,  but  the  same 
shall  remain  in  force;  and  all  acts  of  Congress 
passed  prior  to  said  last-named  day,  no  part  of 
which  are  embraced  in  said  revision,  shall  not 
be  affected  or  changed  by  its  enactment. 
Accrued  Rigbts  Reserved. 

Sec.  5597.  The  repeal  of  the  several  acts 
embraced  in  said  revision  shall  not  affect  any 
act  done,  or  any  right  accruing  or  accrued,  or 
any  suit  or  proceeding  had  or  commenced  in 
any  civil  cause  before  the  said  repeal,  but  all 
rights  and  liabilities  under  said  acts  shall  con- 
tinue, and  may  be  enforced  in  the  same  manner, 
as  if  said  repeal  had  not  been  made ;  nor  shall 
said  repeal  in  any  manner  affect  the  right  to  any 
office,  or  change  the  term  or  tenure  thereof. 
Prosecutions  and  Punishments. 

Sec.  5598.  All  offences  committed,  and  all 
penalties  or  forfeitures  incurred  under  any 
statute  embraced  in  said  revision  prior  to  said 
repeal,  may  be  prosecuted  and  punished  in  the 
same  manner  and  with  the  same  effect  as  if  said 
repeal  had  not  been  made. 

Acts  of  liimitation. 

Sec.  5599.  All  acts  of  limitation,  whether 
applicable  to  civil  causes  and  proceedings,  or 
to  the  prosecution  of  off^ences,  or  for  the  re- 
covery of  penalties  or  forfeitures,  embraced  in 
said  revision  and  covered  by  said  repeal,  shall 
not  be  affected  thereby,  but  all  suits,  proceed- 
ings or  prosecutions,  whether  civil  or  criminal, 
for  causes  arising  or  acts  done  or  committed 
prior  to  said  repeal,  may  be  commenced  and 
prosecuted  within  the  same  time  as  if  said  re- 
peal kad  not  been  made. 

Arrangement  and  Classification  of 
Sections. 

Sec.  5600.  The  arrangement  and  classifica- 
tion of  the  several  sections  of  the  revision  have 
been  made  for  the  purpose  of  a  more  conven- 
ient and  orderly  arrangement  of  the  same,  and 
therefore  no  inference  or  presumption  of  a 
legislative  construction  is  to  be  drawn  by  rea- 
son of  the  title  under  which  any  particular 
section  is  placed. 


PATENTS. 


577 


Acta  Passed  Since  December  1,  1873, 
not  Affected. 

Sec.  5601.  The  enactment  of  the  said  re- 
vision is  not  to  affect  or  repeal  any  act  of  Con- 
gress passed  since  the  ist  day  of  December, 
one  thousand  eight  hundred  and  seventy-three, 
and  all  acts  passed  since  that  date  are  to  have 
full  effect  as  if  passed  after  the  enactment  of 
this  revision,  and  so  far  as  such  acts  vary  from, 
or  conflict  with,  any  provision  contained  in  said 
revision,  they  are  to  have  effect  as  subsequent 
statutes,  and  as  repealing  any  portion  of  the 
revision  inconsistent  therewith. 

Approved  June  22,  1874. 
Penalty  for  Selling:  or  Offerings  for  Sale 

Ooods  Bearlnis:  a  Fraudulent  Trade- 
Mark. 

Every  person  who  shall  with  intent  to  de- 
fraud, deal  in  or  sell,  or  keep  or  offer  for  sale, 
or  cause  or  procure  the  sale  of,  any  goods  of 
substantially  the  same  descriptive  properties  as 
those  referred  to  in  the  registration  of  any 
trade-mark,  pursuant  to  the  statutes  of  the 
United  States,  to  which,  or  to  the  package  in 
which  the  same  are  put  up,  is  fraudulently 
affixed  said  trade-mark,  or  any  colorable  imita- 
tion thereof,  calculated  to  deceive  the  public, 
knowing  the  same  to  be  counterfeit  or  not  the 
genuine  goods  referred  to  in  said  registration, 
shall,  on  conviction  thereof,  be  punished  by  fine 
not  exceeding  one  thousand  dollars,  or  im- 
prisonment not  more  than  two  years,  or  both 
such  fine  and  imprisonment. 

Penalty  for  Affixing:  Fraudulent 
Trade-JMark. 

Sec.  2.  That  every  person  who  fraudulently 
affixes,  or  causes  or  procures  to  be  fraudulently 
affixed,  any  trade-mark  registered  pursuant  to 
the  statutes  of  the  United  States,  or  any  color- 
able imitation  thereof,  calculated  to  deceive 
the  public,  to  any  goods,  of  substantially  the 
same  descriptive  properties  as  those  referred  to 
in  said  registration,  or  to  the  package  in 
which  they  are  put  up,  knowing  the  same  to  be 
counterfeit,  or  not  the  genuine  goods,  referred 
to  in  said  registration,  shall,  on  conviction 
thereof,  be  punished  as  prescribed  in  the  first 
section  of  this  act. 

Penalty  for  Putting;  up  Packages 
with  Fraudulent  Trade-Mark. 

Sec.  3.  That  every  person  who  fraudulently 
fills,  or  causes  or  procures  to  be  fraudulently 
filled,  any  package  to  which  is  affixed  any 
trade-mark,  registered  pursuant  to  the  statutes 
of  the  United  Stales,  or  any  colorable  imita- 
tion thereof,  calculated  to  deceive  the  public, 
with  any  goods  of  substantially  the  same  de- 
scriptive properties  as  those  referred  to  in  said 
registration,  knowing  the  same  to  be  counter- 
feit, or  not  the  genuine  goods  referred  to  in 
said  registration,  shall,  on  conviction  thereof, 
be  punished  as  prescribed  in  the  first  section  of 
this  act. 

Manufacturing:  Fraudulent  Trade- 
Mark. 

Sec.  4.  That  any  person  or  persons  who 
shall,  with  intent  to  defraud  any  person  or  per- 
sons, knowingly  and  wilfully  cast,  engrave,  or 
manufacture,  or  have  in  his,  her,  or  their  pos- 


session, or  buy,  sell,  offer  for  sale,  or  deal  in, 
any  die  or  dies,  plate  or  plates,  brand  or  brands, 
engraving  or  engravings,  on  wood,  stone,  metal, 
or  other  substance,  moulds,  or  any  false  repre- 
sentation, likeness,  copy,  or  colorable  imitation 
of  any  die,  plate,  brand,  engraving,  or  mould 
of  any  private  label,  brand,  stamp,  wrapper, 
engraving  on  paper  or  other  substance,  or  trade- 
mark, registered  pursuant  to  the  statutes  of  the 
United  States,  shall,  upon  conviction  thereof, 
be  punished  as  prescribed  in  the  first  section  of 
this  act. 
Dealing:  In  Fraudulent  Trade-Mark. 

Sec.  5.  That  any  person  or  persons  who 
shall,  with  intent  to  defraud  any  person  or  per- 
sons, knowingly  and  wilfully  make,  forge,  or 
counterfeit,  or  have  in  his,  her,  or  their  posses- 
sion, or  buy,  sell,  offer  for  sale,  or  deal  m,  any 
representation,  likeness,  similitude,  copy,  or 
colorable  imitation  of  any  private  label,  brand, 
stamp,  wrapper,  engraving,  mould,  or  trade- 
mark, registered  pursuant  to  the  statutes  of  the 
United  States,  shall,  upon  conviction  thereof, 
be  punished  as  prescribed  in  the  first  section  of 
this  act. 

Possession  of  Empty  Box  or  Package 
Having:  Kegistered  Trade-Mark. 

Sec.  6.  That  any  person  who  shall,  with  in- 
tent to  injure  or  defraud  the  owner  of  any  trade- 
mark, or  any  other  person  lawfully  entitled  to 
use  or  protect  the  same,  buy,  sell,  offer  for  sale, 
deal  in  or  have  in  his  possession  any  used  or 
empty  box,  envelope,  wrapper,  case,  bottle,  or 
other  package,  to  which  is  affixed,  so  that  the 
same  may  be  obliterated  without  substantial 
injury  to  such  box  or  other  thing  aforesaid,  any 
trade-mark,  registered  pursuant  to  the  statutes 
of  the  United  States,  not  so  defaced,  erased, 
obliterated,  and  destroyed  as  to  prevent  its 
fraudulent  use,  shall,  on  conviction  thereof,  be 
punished  as  p»-escribed  in  the  first  section  of 
this  act. 
Proceedings      to     Detect      Fraudulent 

Trade-Mark — Jurisdiction    of  United 

States  Courts. 

Sec.  7.  That  if  the  owner  of  any  trade-mark, 
registered  pursuant  to  the  statutes  of  the  United 
States,  or  his  agent,  make  oath,  in  writing,  that 
he  has  reason  to  believe,  and  does  believe,  that 
any  counterfeit  dies,  plates,  brands,  engravings 
on  wood,  stone,  metal,  or  other  substance,  or 
moulds  of  his  said  registered  trade-mark,  are 
in  the  possession  of  any  person,  with  intent  to 
use  the  same  for  the  purpose  of  deception  and 
fraud,  or  makes  such  oaths  that  any  counter- 
feits or  colorable  imitations  of  his  said  trade- 
mark, label,  brand,  stamp,  wrapper,  engraving 
on  paper  or  other  substance,  or  empty  box, 
envelope,  wrapper,  case,  bottle,  or  other  pack- 
age, to  which  is  affixed  said  registered  trade- 
mark not  so  defaced,  erased,  obliterated,  and 
destroyed  as  to  prevent  its  fraudulent  use,  are 
in  the  possession  of  any  person,  with  intent  to 
use  the  same  for  the  purpose  of  deception  and 
fraud,  then  the  several  judges  of  the  circuit  and 
district  courts  of  the  United  States  and  the 
commissioners  of  the  circuit  courts  may,  within 
their  respective  jurisdictions,  proceed  under  the 


578 


PATENTS. 


law  relating  to  search-warrants,  and  may  issue 
a  search-warrant  authorizing  and  directing  the 
marshal  of  the  United  States  for  the  proper 
district  to  search  for  and  seize  all  said  counter- 
feit dies,  plates,  brands,  engravings  on  wood, 
stone,  metal,  or  other  substance,  moulds,  and 
said  counterfeit  trade-marks,  colorable  imita- 
tions thereof,  labels,  brands,  stamps,  wrappers, 
engravings  on  paper,  or  other  substance,  and 
said  empty  boxes,  envelopes,  wrappers,  cases, 
bottles,  or  other  packages  that  can  be  found ; 
and  upon  satisfactory  proof  being  made  that 
said  counterfeit  dies,  plates,  brands,  engravings 
on  wood,  stone,  metal,  or  other  substance, 
moulds,  counterfeit  trade-marks,  colorable  imi- 
tations thereof,  labels,  brands,  stamps,  wrap- 
pers, engravings  on  paper  or  other  substance, 
empty  boxes,  envelopes,  wrappers,  cases,  bot- 
tles, or  other  packages,  are  to  be  used  by  the 
holder  or  owner  for  the  purposes  of  deception 
and  fraud,  that  any  of  said  judges  shall  have 
full  power  to  order  all  said  counterfeit  dies, 
plates,  brands,  engravings  on  wood,  stone, 
metal,  or  other  substance,  moulds,  counterfeit 
trade-marks,  colorable  imitations  thereof,  labels, 
brands,  stamps,  wrappers,  engravings  on  paper 
or  other  substance,  empty  boxes,  envelopes, 
wrappers,  cases,  bottles,  or  other  packages,  to 
be  publicly  destroyed. 

Penalty  for  Abcttingr  Tfolation  of 
Preceding;  Sections. 

Sec.  8.  That  any  person  who  shall,  with  in- 
tent to  defraud  any  person  or  persons,  know- 
ingly and  wilfully  aid  or  abet  in  the  violation 
of  any  of  the  provisions  of  this  act,  shall,  upon 
conviction  thereof,  be  punished  by  a  fine  not 
exceeding  five  hundred  dollars,  or  imprison- 
ment not  more  than  one  year,  or  both  such 
fine  and  imprisonment. 

Approved  August  14,  1876. 

RULES  OF  PRACTICE 
In  tbe  United  States  Patent  Office. 

No.  of 
Paragraph. 
Abandonment  of  application  by  neglect 
to  complete  or  prosecute  it         .        .  7i  39i  ^'7 
by  filing  a  formal  one  ....  27 

by  non-payment  of  final  fee       .        .  38 

may  be  proved  on  interference         .         41,  51 
Administrators.     (See  Executors.) 
Affidavits  to  support  application  to  be 

received  only  as  to  practicability         .  31 

Amendments,  when  they  may  be  made         31,  60 
only  on  Commissioner's  order  after 

second  rejection        ....  31 

and  recommendation  of  examiner 

or  board 31 

must  introduce  nothing  new    .        .  3a 

enlarging  claim  must  be  sworn  to  .  n 

not  received  pending  interference    .  60 

Appeals,  regulation  respecting  hearings 

on  them 49 

case  re-opened  after  decision  only 

on  Commissioner's  order        .        .  45 

to   examiners-in-chief   in    ex  parte 

cases 43-45 

when  they  may  be  taken   .    s    .  4*1  44 
course  of  proceeding  prescribed      .  43 
all  preliminary  questions  to  be  set- 
tled first 44 

reasons  of  appeal  to  be  filed,  of  what 

character 4^ 

examiner  to  answer  before  hearing  43 

oral  hearing,  when    allowed,   and 
hew  conducted  43>  49 


No.  of 
Paragraph 
Appeals,  to  what  extent  the  decision 

may  be  revised 43 

to    examiners-in-chief   in    interfer- 
ence cases 48,  55 

reasons  of  appeal  and  brief  required  48 

to    Commissioner    on    preliminary 

?|uestions  from  examiner  44 
rom  examiner  of  trade-marks  86 
from    examiners-in-chief,  regula- 
tions          46>  48 

on  motions  in  contested  cases      .       _     50 
from     Commissioner    to    supreme 
court  of  the  District  of  Columbia, 
regulations  to  be  observed      .        .  47J 

when  to  be  heard  ....  47 

none  in  interference  cases  ...  48 

Applications,  requisites  to  filing     .        .  7 

when  application  takes  date     .        .  7 

by  whom  to  be  made  ....  8 

in  cases  of  reissues      ....  6a 

how  to  be  written  and  signed  .        .  9 

alterations  in  them,  how  noted        .  9 

to  contain  but  one  invention,  unless 

connected 15 

if  more,  such  to  be  struck  out  as 

applicant  elects  ...  16 

may  be  prosecuted  by  correspond- 
ence or  attorney        ....  30 

or  by  assignee 30 

abandoned    if     not   completed    or 

prosecuted  for  two  years        .         .  7,  39,  127 
how  long  considered  pending  .        .  127 

kept  secret  while  pending  .        .  124 

except  as  required  by  other  business  12U 

when  patented   or  abandoned,  in- 
formation given  respecting  them       135,  137 
when  patented  or  abandoned,  mod- 
els open  for  general  inspection     .  126 
specifications    and    drawings   also 

when  called  for         ....  126 

may  be  put  in  interference  when 

renewed 41, 51 

may  be  divided  when  in  interference  61 

upon  what  conditions         ...  *<« 

for  reissue,  what  must  accompany .  63 

for  registration  of  trade-mark  .        .  84 

Arguments,  oral,  when  heard,  and  at 

what  length 43, 49 

not  permitted   before  examiner  in 

extension  cases 78 

against  extensions  from  parties  not 

remonstrants 75 

Assignee,  patent,  when  issued  to   .        .         3,  100 
to  prosecute  application  jointly  with 
inventor,  or  severally,  according 

to  interest 30 

when  to  hold  correspondence  ^vith 

the  office 120 

Assignments,  what  is  requisite  to  make 

them  valid 98 

of  the  whole  interest  of  an  undi- 
vided part  thereof    ....  98 
grants  of  territorial  rights         .        .              103 
both  must  be  recorded  in  the  Patent 

Office 1C3 

patent  may  then  issue  to  assignee  .  1^0 

not  unless  recorded  when  final  fee 

is  paid 100 

correspondence  to  be  with  assignee 

or  his  agent 101,130 

conveyances  of  rights  not  exclusive, 

licenses,  etc 104 

need  not  be  recorded  ....  104 

what     papers    respecting     assign- 
ments will  not  be  recorded     .        .  99 
of  patents  and  trade-marks,  when 
to  be  recorded    ....       15,  xoo,  X03 

of  trade-marks 15 

Attorneys  may  be  employed  to  prose- 
cute applications 3a 

recommendations  and  suggestions 

as  to  employing  them      .        .        .  131 

cannot  inspect    papers   without   a 
power.        ......  133 

correspondence  usually  to  be  with 
them  only lao 


PATENTS. 


579 


No.  of 
Paragraph. 
Attorneys,  if  that  is  not  satisfactory, 
power  to  be  revoked        ....  lai 

appearing    for   conflicting    parties, 

they  are  to  be  notified 
may  be  restricted,  or  excluded  for 

misconduct 

Briefs,  required  in  interference  cases    . 
Caveat,  how  filed,  and  by  whom    . 
must  embrace  but  one  invention 
how  fully  it  must  be  described  ._ 
to    be    accompanied    by   drawings 
when  practicable      .... 
oath  required,  what  it  must  contain 
cannot  be  withdrawn  or  altered 
additional  papers  restricted  to  orig- 
inal invention 

copies  of  it  will  be  furnished    . 

may  berenewed 

notice  of  conflicting  application 
counter  application  to  be  filed  in 

three  months 

interference  to  be  declared 

must  be  filed,  or  a  copy,  if  relied  on 

as  proof Sec.  6, 113 

Claim  in  distinct  form  must  follow  spe- 
cification   13 

not  in  conflict  in  interference  may 

be  withdrawn 

Commissioner,  appeals  to,  from  exam- 
iners   . 

examiners-in-chief    .... 
examiners  of  trade-marks 
appeals  to,  on  contested  motions 
appeals  from,  to  the  supreme  court 
of  District  of  Columbia    . 
Composition  of  matter,  specimens  when 

required 

Copies  of  designs  must  accompany  ap- 
plications   

trade-marks  also 

will  be  furnished   of  papers  to  be 

amended 

caveat  papers  to  the  party 

of   specifications,  dravkrings,  and 

patents 

made  on  parchment  if  required    . 
from  works  in  the  library 
of  what  will  be  furnished  in  inter- 
ference cases      

testimony  in  interference  and  ex- 
tension cases     

orders  for,  must  specify  particulars 
Correspondence  sufficient  for  prosecut- 
ing applications 

regulations  for  conducting  it    . 
must  be  addressed  to  the  Commis- 
sioner of  Patents      .... 
a  separate  letter  required  for  each 

distinct  matter 

Office  will  act  only  on  written  com- 
munications       

to  be  with  either  party,  assignee  or 

attorney  only 101, 120 

postage  must  be  prepaid  after  July 

1,1873 iia 

receipt  of  assignments  for   record 
not  acknowledged    ....  105 

Date  of  patent 38 

Depositions,  how  to  be  drawn  up  .      114,  115-X18 
to  be  certified   by  the   magistrate, 

and  how Sec 

how  to  be  closed  and  sent  to  the 

Office Sec. 

the  printing  of  them  required   in 

general 

Designs,    patents    for,   and   to   whom 

granted 

how  long  to  run 
proceedings  on  applications 
model,  not  required,  when 
if  illustrated  by  photograph  or  en- 
graving, how  mounted    . 
ten  extra  copies  then  required  . 
if  by  drawing  must  conform  to  rules 

for  drawings 83 

except  in  certain  case?       ...  »  19 


133 

'^ 
92 

95 
95 

97 
94 
96 

96 

96 

93 

93.93 

93 
93 


61 

44-50 

46-48 

86 

50 

47.48 

34 

83 
9 

37 
96 

126 

126 
136 

61 

118 
107 

30 
I 19-130 

119 

119 

130 


3,113 

3.  "3 

118 

79 
80 
81 
82 

83 
83 


18 


13 
33 

19 
19 

19 

a,  c,  19 

b,  h,  19 

c,  d,  19 
tl,  19 
0»9 

/19 
f.  »9 
A,  19 

».  19 


»,  »9 


No.  of 
Parag^ph 
Disclaimers,  for  what  made,  and   by 
whom 6t 

how  prepared,  and  the  effect  they 

have 6{ 

Drawings  to  be  furnished  with  applica- 
tion when  practicable     .... 

new,  when  required  on  reissues 

must  be  referred  to  in  the  specifica- 
tion        

having  them  prepared  by  artists  ad- 
vised     

three  editions  to  be  printed  and  pub- 
lished by  the  Office  .... 

process  by  which  they  are  prepared 

original  drawings  must  be  adapted 
to  the  process 

quality  of  paper  and  ink  required     . 

dimensions     and    arrangement    of 
figures 

artistic  charact-er  of  work  . 

rules  to  be  observed     .... 

scales      

reference  letters,  rules  as  to      . 

title,  signatures,  and  arran^^ement  . 

figure  for  the  Official  Gazette    . 

to  bear  no  irrelevant  figure  or  in- 
scription       

these  rules  to  be  strictly  enforced, 
and  how 

exceptions  as  to  designs  and  trade 
marks 

specimen  drawings  furnished  on  re- 
quest     

to  be  amended  on  reissue  by  model 
only;  exception 
Kvidence,   Office    records,    and    books 
may  be  used  on  hearing.         .  Sec.  6,  1x3 

notice  of  using  them  to  be  given      Sec.  6,  X13 

printing  of  testimony  and  argument 

recommended 

Examination  of  applications,  in  what 
order  pursued 

renewed  after  first  rejection,  if  re- 
quested         

objections  to  form  to  be  first  consid- 
ered       

of  original  claim  rene<Ared  on  appli- 
cation for  reissue       .... 

of  papers  not  permitted  to  attorney 

without  power 

Examiners,  appeals  from  .        .        .     42-45,  43, 13 
Exceptions  to   testimony,  v^hen  to  be 
taken  

notice  to  be  given  to  Office  and  ad- 
verse party 

what  will  be  allowed  .... 
Executors  and  administrators,  when  to 
sign  application  and  oath 

when  patent  shall  issue  to  them 
Extensions,  when  petition  must  be  filed 

an  application  required  for  each  di- 
vision of  patent         .... 

cannot  be  granted  after  patent  has 
expired 

what  statements  must  accompany 
petition         .... 

when  they  must  be  furnished 

questions  to  be  considered  on  the 
hearing 

proof  respecting  them  required 

opposition,   how   made    and    what 
must  accompany  it  . 

notice  of  it,  and  reasons  to  be  fur 
nished  petitioner 

and  filed  in  the  Office  . 

testimony  in  contested  cases     . 

notice  of  taking  testimony 

time  of  closing,  how  determined 

how  to  be  served  .... 

when  ex  parte  will  be  received 

referred  to  examiner,  and  his  report 

no  hearing  before  him 

hearing 

hearing  adverse  parties  who  have 
not  filed  opposition  ....  75 

have  precedency  in  examination      ,  if 


64 


1x8 
39 
33 
39 

67 
133 


xx6 


zxO 
xx6 


70 

69 

70 

73 
73 

73 
73 

71 

71.75 

71.75 

74.78 

74 

Sec.  4,  2x3 

i 

49 


Sfie 


PATENTS. 


No.  of 
Paragraph. 
Peas,  tariff  ot,  and  charges  107 

to  be  paid  in  advance  ....  xoo 

in  >vhat  money xio 

to  what  official  they  may  be  paid    .  109 

if  sent  by  mail,  at  the  owner's  risk  .  no 

on  appeal  to  the  supreme  court  of 

the  District  of  Columbia  47 

final,  on  grant  of  patent,  when  to  be 

paid X08 

consequence  of  default  .  108 

Final  fee  on  grant  of  patent,  when  to 

be  paid xoS 

consequence  of  default        .        .        .  108 

Foreign  patent,   effect    of,    on   United 
States  patent  for  same  indention         .  8g 

application  here  should  mention  it 

and  its  date gi 

has  precedence  in  order  of  exam- 
ination        29 

requisites  of  oath  in  such  application  90 

Hearings  generally 49 

before  examiners-in-chief  on  request  42 

before  interference  examiner  54 

before  the  supreme  court  of  the  Dis- 
trict of  Columbia       ....  47 
Information  furnished  on  rejections       .         33-35 

in  interferences 61 

not  as  to  pending  applications  .        .  124 

exception  when  necessary  for  other 

business 128 

as  to  rejected  and  abandoned  appli- 
cations               125-127 

not  as  to  merit  of  inventions  or  on 

law  points 129 

Inspection  of  papers  restricted  after  ap- 
plication rejected 122 

Intercourse  between  the  Oflfice  and  its 

suitors  should  be  in  writing  .        .        .      130, 133 
personal  with    examiners  discour- 
aged       133 

Interferences,  in  what  cases  declared   .         51.5a 
only  when  the  subject  is  found  pat- 
entable          59 

the  claims  must  be  complete  for  is- 
suing patent 51 

the  issue  must  be  clearly  defined      .  51 
may  be  declared  to  ascertain  aban- 
donment               4X-5X 

preliminary  to  be  firstdeclared.  (See 

Preliminary  Statements.)  53 

judgment     in    default   thereof    or 

founded  on  its  contents  ...  53 

further  proceedings     .        .  .         53, 54 

notice  of  interference  to  be  given, 

and  how 56 

presumption  in  favor  of  first  appli- 
cant        57 

order  of  taking  testimony  ...  57 

appeal    to    examiners-in-chief   and 

Commissioner 48,  55,  59 

in  what  cases  dissolved       ...  59 

before  whom  motion  to  dissolve  is 

heard 59 

specifications,  hov/  far  open  to  in- 
spection        61 

claims  not  in  conflict  may  be  with- 
drawn, etc. 6t 

second,  on  what  showing  granted  .  60 

Joint  inventors,  what  patents  they  may 

have 3 

Label — circular  in  relation  to  registra- 
tion.    (Appendix.) 
Letters  to  the  Office.    (See  Correspond- 
ence.) 
Library,  rules  for  consulting    .  136 
Licenses  under  patent  need  not  be  re- 
corded                      X04 

Mistake,  moneys  paid  under,  when  re- 
funded           XXX 

Model,  when  required,  and  how  to  be 

made 24,  25 

must  exhibit  every  feature  claimed  24 

working,  desirable        ....  26 

^vhen  returned  to  applicant  27,  28 

may    be    amended    on    reissue    by 
drawing  only ;  exception  $4 


No.  of 
Paragraph. 
Models  of  designs,  when  dispensed  with  8a 
open  to  general  inspection  in  pat- 
ented and  abandoned  cases    .  i2< 
Moneys,    how     to     bo     paid,    and     to 

whom 106,  X09,  XIO 

in  what xio 

paid  by  mistake,  when  refunded      .  xzi 
if  sent  by  mail,  are  at  the  owner's 

risk xzo 

Motions  in  contested  cases,  regulations  50 
before  vi'hcm  heard      ....  50 
appeal  to  Commissioner     ...  50 
to  postpot.c  liling  preliminary  state- 
ment       53 

hearing  in  extension  cases      .        .  78 

taking  testimony  in  the  same        .  78 

in  interference  cases    ...  58 

generally Sec.  5,  I13 

Motion  to  dissolve  interference,  before 

whom  heard 59 

New  trials    in    interference    cases,  on 

what  showing  granted  ....  60 
Notice  of  appeal  to  supreme  court  of 

District  of  Columbia        ....  47 

motions  in  contested  cases        .        .  50 

interferences 56 

to  caveator  of  conflicting  application  92,  93 

opposition  to  extension  and  service  71,  75 
taking  testimony  in  extension  cases 

and  service 74. 77 

taking  testimony  generally  and  ser- 
vice        Sec.  1,  1x3 

what  proof  of  service  is  required      Sec.  2, 1x3 
and  proof  of  service  to  be  attached 

to  the  deposition  .        Sec.  2, 113 

exceptions  to  testimony             .  xx6 
to  conflicting  parties  who  have  the 

same  attorney 123 

Oath  to  application,  by  ^vhom   made 

and  before  whom 8,  10,  6a 

supplemental  to  amendment  xi 

in  extension  cases,  what  required    .  73 

when  invention  is  patented  abroad  .  90 

for  caveat 94 

Patents,  who  may  obtain ....  x-o 

in  case  the  inventor  dies     ...  2 

in  case  of  joint  inventors  ...  3 

to  assignee a, xoo 

for  what  causes  granted  or  refused  .  4-6 

proceedings  to  obtain  ....  7-37 

for  inventions  patented  abroad         .  89 
withheld  for  non-payment  of  final 

fee 38,  X08 

granted  on  renewed  application       .  39-4X,  zo8 

when  dated 38 

reissued,  granted  for  the  remainder 

of  the  original  term  ....  65 
division  of,  on  reissue          ...  66 
for  designs.     (See  Designs.) 
cannot  be  extended  after  expiration  6g,  70 
returned  when  reissue  is  refused      .  67 
when  they  expire,  in  case  of  foreign  89 
Pending  cases,  what  are  such  .                .  X27 
Personal  attendance  of  suitors  unneces- 
sary       30 

Preliminary  statements     ....  53 
virhat  they  should  contain,  and  hoxv 

be  prepared        .....  53 

when  open  to  inspection    ...  53 
judgment    for    default    thereof    or 

founded  thereon        ....  53 
proof  precluded  of  earlier  invention 

than  they  claim          ....  53 

not  evidence  for  the  signer  53 

motion  to  postpone  time  for  filing   .  53 

Records  of  Oftice  and  books  in  library 

may  be  used  as  evidence  Sec   6,  X13 

notice  of  intent  to  use  them  to  be 

given Sec.  6,  X13 

Re-examination  of  applications  33 
Reference    letters    in    drawing;   direc- 
tions                  .       .  y".  ig 

References,  specific,  to  be  -furnished  if 

demanded 34 

copies    of,    to   be  furnished    if  re- 
quested          )4 


PATENTS. 


581 


No.  of 
Paragraph. 
References,  if  rejected  cases,  all  needful 

information  given 3S 

Rehearing    of   interferences,  on    v^hat 

showing  granted 60 

Reissues,    to    whom    granted,  and    in 

what  cases 6a 

when  the  inventor  or  assignee  must 

sign  application         ....  63 
what  must  accompany  the  petition               63 
the  original  patent  must  be  surren- 
dered                   67 

loss    of    original    patent    must    be 

shown,  and  a  copy  furnished  .  67 

patent  may  be  returned  if  any  claim 

is  refused 67 

^rhat  may  be  embraced      ...  64 

no  new  matter  to  be  introduced  into 

specification 64 

drawings  and  model  to  be  amended 

only  by  each  other  ;  exceptions     .  64 
take  precedence  in  order  of  exami- 
nation                  ag,  65 

original  claims  subject  to  re-exami- 
nation    67 

may  be  in  several  divisions  66 

no  division  to  be  issued  till  all  are 

decided 66 

when  the  reissued  patents  expire    .  65 

Rejected  cases,  how  renewed  .        .        .  39-4^ 

Rejection  of  application,  applicant  to 

be  notified 33, 34 

Renewed  applications  ....  39, 41 
Service  of  notices  .  50,  71,  75.  Sees,  x,  a,  113 
Signatures  to  petition  and  specification       8,  g,  17 

drawings £'>  ^9 

Specifications,  what  is  required  in  them  ia-17 

must  point  out  new  improvements 

specially 14 

and  distinguish    between  ^vhat   is 

new  and  old 14 

must  be  followed  by  a  distinct  claim  la 
how  signed  and  witnessed         .        .  17 
must  contain  but  one  invention,  un- 
less connected 15 

if  more,  such  to  be  struck  out  as  ap- 
plicant elects x6 

to  be  amended  and  revised  as  exam- 
iner requires 36 

will  not  be  returned  for  that  pur- 
pose        37 

copies  will  be  furnished      ...  37 

each  division  on  a  reissue  to  have  a 

distinct  one 66 

for  a  design,  requisites        ...  81 

for  a  trade-mark,  requisites  .  84 

aid   of  counsel  in   preparing  them 

recommended 131 

Specimen  drawings  furnished    on    re- 
quest    ai 

Specimens  of  compositions  when   re- 
quired    34 

Subpoenas  for  witnesses  to  be  issued  by 

clerks  of  United  States  courts      .        .  117 

Substitution  of  attorney  made  only  by 

one  expressly  authorized        .                 .  13a 
Supreme  court  of  the  District  of  Colum- 
bia, appeals  to 47 

how  to  institute  and  prosecute  ap- 
peals to 47 

appeals  to,  do  not  lie  in  interference 

cases 48 

Testimony    in    interference    cases,    in 
what  order  to  be  taken  ....  57 
postponement  of  taking,  how   ob- 
tained                  58 

in  extension  cases,  what  is  required  73 

when  to  be  taken,  and  by  whom      .         74,76 
when  ex  parte  depositions  may  be 

used Sec.  4,  X13 

notice  of  taking,  and  service             .  77 
closing    the   same,    and    postpone- 
ments                  78 

in  general,  rules  for  taking         .        .  113 

what  notice  to  be  given  of  taking, 

and  how  served  .        Sec.  i,  113 

yvbat  proof  of  service  required  .        Sec.  a,  113 


No.  of 
Paragraph 
Testimony  must  be  attached  to  the  de- 
position     Sec  a.  XX4 

depositions  to  be  certified  by  magis- 
trate, and  how   ....        Sec.  3,  1J3 

how  to  be  closed  and  forwarded       Sec.  3,  iij 

rules  for  drawing  them  up  114,115 

if  prevented  from  being  taken,  pro- 
ceedings for  relief  Sec.  5,  113 

caveat  must  be  filed,  if  relied  on  or 
a  copy Sec.  6,  113 

records  of  the  Office  and  books  in 
the  library  made  evidence  Sec.  6,  113 

notice  must  be  given  previously       Sec.  6,  113 

depositions     not    pursuant    to    the 
rules  inadmissible     .... 

exceptions  to  depositions,  when  al- 
lowed   

when  they  must  be  taken  . 

notice  of  them  to  be  given  immedi- 
ately      

when  open  to  inspection,  and  copies 
furnished 

printing  of  them  required  in  general 

attendance  of  witnesses,  how  se- 
cured     

Trade-marks,  who  may  obtain  exclU' 
sive  title  to 

what  he  mast  do  to  obtain  it 

how  long  (he  right  will  endure 

characteristics    essential    to    their 
validity 

may  be  illustrated  by  photographs 
etc 

ten  extra  copies  required  in  each 
case 

to  follow  the  same  rules  as  in  de 
sign  cases 

certain  exceptions 

assignment  and  fees    ... 

when  to  be  recorded    . 
Withdrawing  papers  not  allowed 
Witnesses,  their  attendance,   how  se 
cured  


X16 


Z16 
X16 


ix« 


X18 
1x8 


XX7 


s-8 

14 


9 

9 

9 

19 

15 

15 

37.  »2» 


Sec  /, 


X17 

The  following  information  and  regulations, 
designed  to  be  in  strict  accordance  •with  the 
revised,  consolidated,  and  amended  law  relat- 
ing to  patents  for  inventions  and  designs,  and 
to  trade-marks,  are  published  for  gratuitous 
distribution. 

Copious  forms  to  which  inventors  and  attor- 
neys are  recommended  to  conform  as  nearly  as 
possible,  will  be  found  in  an  appendix. 

Printed  copies  of  the  revised  and  amended 
law  may  also  be  obtained  by  applying  to  the 
patent  office. 

WHO  MAY  OBTAI]V  A  PATEWT. 

1.  Any  person,  whether  citizen  or  alien, 
being  the  original  and  first  inventor  or  discov- 
erer of  any  new  and  u.seful  art,  machine, 
manufacture,  or  composition  of  matter,  or  any 
new  asd  useful  improvement  thereof,  m.-xy  ob- 
tain a  patent  for  his  invention  or  discovery, 
subject  to  the  conditions  as  to  public  use  and 
abandonment  hereinafter  named. 

Who,  irinvcntor  dies  or  Assigns. 

2.  In  case  of  the  death  of  the  inventor,  the 
patent  may  be  applied  for  by,  and  will  issue 
to,  liis  executor  or  administrator.  In  case  of 
an  assignment  of  the  whole  interest  in  the 
invention,  or  of  the  whole  interest  in  the  patent 
if  granted,  the  patent  will  issue  to  the  as- 
signee, upon  the  request  of  the  latter,  or  bis 
assignor;  and  so,  if  the  assignee  holds  an 
undivided  part  interest,  the  patent  will,  upon  a 
similar  request,  issue  jointly  to  him  and  the 


5«« 


PATENTS. 


inventor;  but  the  assignment  must  first  have 
been  entered  of  record,  and  at  a  day  not  later 
than  the  date  of  the  payment  of  the  final  fee  ; 
and  the  application  must  be  duly  made,  and  the 
specification  sworn  to  by  the  inventor. 
Of  Joint  Inventors. 

3.  Joint  inventors  are  entitled  to  a  joint 
patent ;  neither  can  claim  one  separately ;  but 
the  independent  inventors  of  separate  and  in- 
dependent improvements  in  the  same  machine 
cannot  obtain  a  joint  patent  for  their  separate 
i.iventions;  nor  does  the  fact  that  one  man 
furnishes  the  capital  and  the  other  makes  the 
invention  entitle  them  to  take  out  a  joint  patent. 

"What  will  Bar  a  Patent. 

4.  A  patent  will  not  be  granted  to  an  appli- 
cant if  what  he  claims  as  new  has  been,  before 
his  invention,  patented  or  described  in  any 
printed  publication  in  this  or  any  foreign 
country,  or  been  invented  or  discovered  in  this 
country,  nor  if  he  has  once  abandoned  his  in- 
vention, nor  if  it  has  been  in  public  use  or  on 
sale  more  than  two  years  previous  to  his  appli- 
cation. 

IVtaen  Knowledge  of  Invention  Abroad 
is  no  Bar. 

5.  If  it  appears  that  the  inventor,  at  the  time 
of  making  his  application,  believes  himself  to 
be  the  first  inventor  or  discoverer,  a  patent  will 
not  be  refused  on  account  of  the  invention  or 
discovery,  or  any  part  thereof,  having  been 
known  or  used  in  any  foreign  country  before 
his  invention  or  discovery  thereof,  it  not  ap- 
pearing that  the  same,  or  any  substantial  part 
thereof,  had  before  been  patented  or  described 
in  any  printed  publication. 

Of  Prior  Knowledgre  or  Use. 

6.  Merely  conceiving  the  idea  of  an  im- 
provement or  machine  is  not  an  "  invention  " 
or  "  discovery."  The  invention  must  have 
been  reduced  to  a  practical  form,  either  by  the 
construction  of  the  machine  itself,  or  of  a 
model  thereof,  or  by  making  a  drawing  of  it, 
or  by  such  disclosure  of  its  exact  character  that 
a  mechanic,  or  one  skilled  in  the  art  to  which 
it  relates,  can  and  does,  from  the  description 
given,  construct  the  improvement,  or  a  model 
thereof,  before  it  will  prevent  a  subsequent  in- 
ventor from  obtaining  a  patent. 

mode:  of  proceeoixo  to  obtaiht 

A   PATEXT. 

APPLICATION. 
What  is  required  in  an  Application. 

7.  No  application  for  a  patent  can  be  placed 
upon  the  files  for  examination  until  the  fee  is 
paid,  the  specification  and  the  petition  and 
oath  are  filed,  and  the  drawings  and  a  model 
or  specimens  (when  required)  are  furnished. 
The  application  must  be  completed  and  pre- 
pared for  examination  within  two  years  after 
the  filing  of  the  petition ;  and  in  default 
thereof,  or  upon  failure  of  the  applicant  to 
prosecute  the  same  within  two  years  after  any 
action  thereon,  of  which  notice  shall  have  been 
mailed  to  him  or  his  agent,  it  shall  be  regarded 
as  abandoned,  unless  it  be  shown  to  the  satis- 
faction of  the  commissioner,  that  such  delay  was 
Hnavoidable, 


//  is  desirable  that  everything  necessary  to 
make  the  application  complete  should  be  depos- 
ited in  the  office  at  the  same  time.  If  other 
wise,  a  letter  should  accompany  each  part, 
stating  to  what  application  it  belongs,  and  giv- 
ing the  date  thereof. 

When  Application  takes  Date. 

For  all  purposes  of  office  practice,  the  date 
of  an  application  for  a  patent  will  be  fixed  at 
the  time  when  the  first  fee  has  been  paid,  an 
acceptable  drawing  or  model  received,  and  a 
specification,  properly  signed,  witnessed,  and 
sworn  to,  filed.  After  such  date,  and  during 
the  pendency  of  an  application,  either  the 
drawing  or  model  (but  not  both  at  the  same 
time),  may  be  withdrawn  for  correction,  but 
the  specification  will  not  be  permitted  to  be 
withdrawn  for  any  purpose  whatever. 
Application  and  Oath,  by  Whom  Slade. 

8.  The  application  and  oath  must  be  made 
by  the  actual  inventor,  if  alive,  even  if  the 
patent  is  to  issue  to  an  assignee ;  but  where  the 
inventor  is  dead,  the  application  and  oath  must 
be  made  by  his  executor  or  administrator. 

Of  Drawing  Applications. 

9.  The  application  must  be  in  writing,  in  the 
English  language,  and  addressed  to  the  com- 
missioner of  patents.  The  petition  and  speci- 
fication must  be  separately  signed  by  the  ap- 
plicant. The  specification,  claims,  and  all 
amendments  must  be  written  in  a  fair,  legible 
hand;  otherwise,  the  office  may  require  them  to 
be  printed;  and  all  interlineations  or  erasures 
should  be  clearly  marked  in  a  marginal  or 
foot-note  written  on  the  same  sheet  of  paper. 
All  the  papers  constituting  the  application 
should  be  attached  together.  Legal-cap  paper 
is  deemed  preferable,  and  a  wide  margin 
should  always  be  left  upon  the  left-hand  side 
of  the  page. 

Oath,  and  its  STatnre. 

10.  The  applicant,  if  the  inventor,  must 
make  oath  or  affirmation  that  he  does  verily 
believe  himself  to  be  the  original  and  first  in- 
ventor or  discoverer  of  the  art,  machine,  manu- 
facture, composition,  or  improvement  for  which 
he  solicits  a  patent ;  that  he  does  not  know  and 
does  not  believe  that  the  same  was  ever  before 
known  or  used ;  and  shall  state  of  what  coun- 
try he  is  a  citizen,  and  of  what  a  resident.  If 
the  application  be  made  by  an  executor  or  ad- 
ministrator, the  form  of  the  oath  will  be  cor- 
respondingly changed.  The  oath  or  affirma- 
tion may  be  made  before  any  person  within  the 
United  States,  authorized  by  law  to  administer 
oaths,  or,  when  the  applicant  resides  in  a  for- 
eign country,  before  any  minister,  charg6 
d'affaires,  consul,  or  commercial  agent,  hold- 
ing commission  under  the  government  of  the 
United  States,  or  before  any  notary  public  of 
the  foreign  country  in  which  the  applicant  may 
be,  the  oath  being  attested  in  all  cases,  in  this 
and  other  countries,  by  the  proper  official  seal 
of  such  notary. 

Oath  to  Amendments. 
It.  In   case   the   applicant   by   amendment 
seeks  tQ  introduce  anv  claim  pr  glaims,  not 


PATENTS. 


583 


!rabstantiall]r  embraced  in  the  original  affidavit, 
he  will  be  required  to  file  a  supplemental  oaih 
relative  to  the  invention  as  covered  by  such 
new  or  enlarged  claina  or  claims;  and  such 
supplemental  oath  must  be  upon  the  same 
paper  which  contains  the  proposed  amendment. 

SPECIFICATIO^V. 

Specifications,  tbeir  Reqalsites. 

12.  The  specification  is  a  written  description 
of  the  invention  or  discovery,  and  of  the  man- 
ner and  process  of  making,  constructing,  com- 
pounding, and  using  the  same,  and  is  required 
to  be  in  such  full,  clear,  concise,  and  exact 
terms,  avoiding  unnecessary  prolixity,  as  to 
enable  any  person  skilled  in  the  art  or  science 
to  which  it  appertains,  or  with  which  it  is  most 
nearly  connected,  to  make,  construct,  com- 
pound, and  use  the  same.  It  must  be  followed 
by  a  specific  and  well-defined  claim  of  the 
part,  improvement,  or  combination  which  the 
applicant  regards  as  his  invention  or  discovery. 

Further  Reqnisltes. 

13.  Where  there  are  drawings,  the  specifica- 
tion should  refer  by  letters  and  figures  to  the 
different  parts ;  and  it  must  set  forth  the  pre- 
cise invention  for  which  a  patent  is  claimed, 
explaining  the  principle  thereof  and  the  best 
mode  in  which  the  applicant  has  contemplated 
applying  that  principle,  so  as  to  distinguish  it 
from  other  inventions. 

Specifications    Must   Point   Out   Im- 
provements. 

14.  In  all  applications  for  patents  upon  mere 
improvements  the  specification  must  particu- 
larly point  out  the  part  or  parts  to  which  the 
improvement  relates,  and  must  by  explicit 
language  distinguish  between  what  is  old  and 
what  is  claimed  as  the  improvement,  so  that 
the  office  and  the  public  may  understand  ex- 
actly for  what  the  patent  is  granted ;  and  in 
such  cases  the  description  and  the  drawings,  as 
well  as  the  claims,  should  be  confined  to  the 
specific  improvement  and  such  parts  as  neces- 
sarily co-operate  with  it. 

Application  Must  Embrace  bat  one  In- 
vention. 

15.  Two  or  more  separate  and  independent 
inventions  cannot  be  claimed  in  one  applica- 
tion ;  but  where  several  inventions  relating  to 
the  same  subject  are  necessarily  connected  each 
with  the  other,  they  may  be  so  claimed. 

If  More,  one  Must  be  Elected. 

16.  If  more  than  one  invention  is  claimed 
in  a  single  application,  and  they  are  found  to 
he  of  such  a  nature  that  a  single  patent  may 
not  be  issued  to  cover  the  whole,  the  office 
will  require  the  inventor  to  confine  the  descrip- 
tion and  claim  of  the  pending  application  to 
whichever  invention  he  may  elect;  the  other 
inventions  may  be  made  the  subject  of  separate 
applications. 

Specifications,  How  Sigrued  and 
Witnessed. 

17.  The  specification  must  be  signed  by  the 
inventor,  or  by  his  executor  or  administrator, 
and  must  be  attested  by  two  witnesses.  Full 
names  must  be  given,  and  all  names,  whether  of 
a^^licant^  or  -witnesseSf  must  be  legibly  written. 


I>RAWIN«S. 

nrawin^s  to  be  Furnlstaed. 

18,  I'lie  apjjlicant  for  a  patent  is  required 
by  law  to  furnish  a  drawing  of  his  invention, 
where  the  nature  of  the  case  admits  of  it. 

Tbree  Editions  Pnblisbed  by  the 
Office. 

19.  Three  several  editions  of  patent  draw- 
ings are  printed  and  published :  one  for  office 
use,  certified  copies,  etc.,  of  the  size  and  char- 
acter of  those  attached  to  patents,  the  work 
being  about  6  by  9^  inches;  one  reduced  to 
half  that  scale,  or  one -fourth  the  surface,  of 
which  four  will  be  printed  on  a  page  to  illus- 
trate the  volumes  distributed  to  the  courts,  etc. ; 
and  one  reduction — to  about  the  same  scale — 
of  a  selected  portion  of  each  drawing,  to  illus- 
trate the  "  Official  Gazette." 

By  What  Process  Prepared. 
This  work  will  all  be  done  by  the  photo- 
lithographic or  other  analogous  process,  and  in 
consequence  the  character  of  each  original 
drawing  must  be  brought  as  nearly  as  possible 
to  a  uniform  standard  of  excellence,  suited  to 
the  requirements  of  the  process,  and  calculated 
to  give  the  best  results,  in  the  interests  of  in- 
ventors, of  the  office,  and  of  the  public  gen- 
erally. The  following  rules  will  therefore  be 
rigidly  enforced,  and  any  departure  from  them 
will  be  certain  to  cause  delay  in  the  examina- 
tion of  an  application  for  letters  patent. 
Paper  and  Ink  Required  for  Orij^inals. 

a.  Drawings  should  be  made  upon  paper 
stiff  enough  to  stand  in  the  poitfolios,  the  sur- 
face of  which  must  be  calendered  and  smooth. 
"  Two-sheet"  bristol-board,  or  sheets  cut  from 
Whatman's  hot-pressed  drawing-paper,  "anti- 
quarian "  size,  are  recommended. 

Indian  ink  of  good  quality,  to  the  exclusion 
of  all  other  kinds  of  ink  or  color,  must  be  em- 
ployed, to  secure  perfectly  black  and  solid  work. 

Dimensions. 

b.  The  size  of  a  sheet  on  which  a  drawing 
is  made  should  be  exactly  10  by  15  inches. 
One  inch  from  its  edges  a  single  marginal  line 
is  to  be  drawn,  leaving  the  "sight"  precisely  8 
by  13  inches.  Within  this  margin  all  work 
and  signatures  must  be  included.  One  of  the 
smaller  sides  of  the  sheet  is  regarded  as  its  top, 
and,  measuring  downward  from  the  marginal 
line,  a  space  of  not  less  than  i^  inch  is  to  be 
left  blank  for  the  insertion  of  title,  name,  num- 
ber, and  date.  The  signatures  will  be  placed 
in  a  space  left  at  the  bottom  of  the  sheet. 

Quality  of  Work. 

c.  All  drawings  must  be  made  with  the  pen 
only,  using  the  blackest  Indian  ink.  Every 
line  and  letter  (signatures  included)  must  be 
absolutely  black.  This  direction  applies  to  all 
lines,  however  fine,  to  shading,  and  to  lines 
representing  cut  surfaces  in  sectional  views. 
All  lines  must  be  clean,  sharp,  and  solid,  and 
they  must  not  be  too  fine  or  crowded.  Surface 
shading,  when  used,  shouhd  be  left  very  open. 
Sectional  shading  should  be  by  oblique  parallel 
lines,  which  may  be  about  one-twentieth  of  an 
inch  apart.  The  usual  reduction  will  bring 
them  tq  about  one-sixtieth  of  jm  inch  dist«u-»c«. 


5«4 


PATENTS. 


P«rspl«nlty,  Hlindinsr,  «tr. 

d.  Drawings  should  be  made  with  the  fewest 
/Ines  possible  consistent  with  clearness.  By 
observing  this  rule  the  eflfectiveness  of  the 
work  after  reduction  will  be  much  increased. 
Shading  (except  on  sectional  views)  should  be 
used  only  on  convex  and  concave  surfaces, 
where  it  should  be  used  sparingly,  and  may 
even  there  be  dispensed  with  if  the  drawing  is 
otherwise  well  executed.  The  plane  upon 
which  a  sectional  view  is  taken  should  be  indi- 
cated on  the  general  view  by  a  broken  or  dotted 
line.  Heavy  lines  on  the  shade  sides  of  objects 
should  be  used,  except  where  they  tend  to 
thicken  the  work  and  obscure  letters  «f  refer- 
ence. The  light  is  always  supposed  to  come 
from  the  upper  left-hand  corner,  at  an  angle  of 
forty-five  degrees. 

Imitations  of  wood  or  surface-graining  must 
never  be  attempted. 

8ca1e. 

e.  The  scale  to  which  a  drawing  is  made 
ought  to  be  large  enough  to  show  the  mechan- 
ism without  crowding,  and  two  or  more  sheets 
should  be  used  if  one  does  not  give  sufficient 
room  to  accomplish  this  end ;  but  the  number 
of  sheets  must  never  be  increased  unless  it  is 
absolutely  necessary.  On  the  other  hand,  when 
an  invention  is  simple  and  easily  understood,  it 
should  be  shown  on  a  small  scale,  and  un- 
necessary space  should  not  be  occupied,  even 
on  a  single  sheet. 

It  often  happens  that  an  invention,  although 
constituting  but  a  small  part  of  a  machine,  has 
yet  to  be  represented  in  connection  with  other 
and  much  larger  parts.  In  such  cases  a  gen- 
eral view  on  a  small  scale  is  recommended, 
with  one  or  more  of  the  invention  itself  on  a 
much  larger  scale. 

liettern  of  Reference. 

f.  Letters  of  reference  must  be  well  and 
carefully  formed ;  they  are  of  the  first  impor- 
tance. When  at  all  possible,  no  letter  of  refer- 
ence should  measure  less  than  one-eighth  of  an 
inch  in  height,  that  it  may  bear  reduction  to 
one-twenty-fourth  of  an  inch,  and  they  may  be 
much  larger  when  there  is  sufficient  room. 

Reference  letters  must  be  so  placed  in  the 
close  and  complex  parts  of  drawings  as  not  to 
interfere  with  a  thorough  comprehension  of  the 
same,  and  to  this  end  should  rarely  cross  or 
mingle  with  the  lines.  When  necessarily 
grouped  around  a  certain  part,  they  should  be 
placed  at  a  little  distance,  where  there  is  avail- 
able space,  and  connected  by  short  broken 
lines  with  the  parts  to  which  they  refer.  They 
must  never  appear  upon  shaded  surfaces,  and, 
when  it  is  difficult  to  avoid  this,  a  blank  space 
must  be  left  in  the  shading  where  the  letter 
occurs,  so  that  it  shall  appear  perfectly  distinct 
and  separate  from  the  work. 

If  the  same  part  of  an  invention  appears  in 
more  than  one  figure,  it  should  always  be  rep- 
resented by  the  same  letter. 

When  it  is  necessary  to  turn  a  drawing  upon 
its  side  in  reading  a  certain  figure,  its  number 
and  reference  letters  should  be  made  to  corre- 


spond, and  should  be  so  placed  that  the  sheet 
will  be  turned  to  the  right. 

Signal nren  and  Title. 

g.  The  signature  of  the  inventor  is  to  be 
placed  at  the  lower  right-hand  corner  of  the 
sheet,  and  the  signatures  of  the  witnesses  at 
the  lower  left-hand  corner,  all  within  the  mar- 
ginal line.  (See  specimen  sheet.)  The  title 
should  be  written  with  pencil  on  the  back  of 
the  sheet.  The  permanent  names  and  title 
will  be  supplied  subsequently  by  the  office  in 
uniform  style. 

Arrnn^^ement  of  Figrnres,  eto. 

When  figures  are  larger  than  the  width  of 
the  sheet,  the  latter  is  turned  on  its  side,  and 
the  space  for  heading  will  be  left  at  the  right, 
and  that  for  the  signatures  at  the  left,  occupy- 
ing the  same  space  and  position  as  in  the  up- 
right subjects,  so  that  the  heading  and  names 
will  read  right  when  the  drawing  is  held  in  an 
upright  position. 

Special  Flgmre  for  Official  Gazette. 

h.  As  a  rule,  one  view  only  of  each  inven- 
tion can  be  shown  in  the  Gazette  illustra- 
tions. The  selection  of  that  portion  of  a 
drawing  best  calculated  to  explain  the  nature 
of  the  specific  improvement  would  be  facili- 
tated, and  the  final  result  improved,  by  the 
judicious  execution  of  a  figure  with  express 
reference  to  the  Gazette,  but  which  might,  at 
the  same  time,  act  as  one  of  the  figures  re- 
ferred to  in  the  specification.  For  this  purpose, 
the  figure  may  be  a  plan,  elevation,  section,  or 
perspective  view,  according  to  the  judgment  of 
the  draughtsman.  It  must  not  cover  a  space 
exceeding  sixteen  square  inches.  All  its  parts 
should  be  especially  open  and  distinct,  with 
very  little  or  no  shading,  and  it  must  illustrate 
the  invention  claimed  only,  to  the  exclusion  of 
all  other  details.  (See  Fig.  I.,  opposite  page 
42.)  When  well  executed,  it  will  be  used 
without  curtailment  or  change ;  but  any  attempt 
at  excessive  fineness,  crowding,  or  unnecessary 
elaborateness  of  detail,  will  insure  its  rejection 
for  Gazette  purposes. 

How  Transmitted. 

/.  Drawings  should  be  rolled  for  transmission 
to  the  office,  not  folded. 

To  Contain  Nothing:  Irrelevant. 

No  agent's  nor  attorney's  stamp,  nor  any 
written  address,  will  be  permitted  upon  the 
face  of  a  drawing  within  or  without  the  mar- 
ginal line. 

These  rules  do  not  apply  to  drawings  for  de- 
signs and  trade-marks,  as  the  ofiice  does  not 
duplicate  these,  (See  Rules  for  Designs  and 
Trade-Marks.) 

Conformity  of  Drawlniers  to  Rules, 
How  Enforced. 

20.  The  foregoing  rules  relating  to  drawings 
will  be  rigidly  enforced;  and  all  drawing  not 
artistically  executed  in  conformity  therewith 
will  be  returned  to  the  respective  applicants,  or, 
at  the  applicant's  option  and  cost,  the  office 
will  make  the  necessary  corrections. 

Specimen  Drawlng^s  Furnished. 

21 ,  A  specimen  drawing,  illustrating  arrange- 


PATENTS. 


585 


ment,  style,  and  quality  of  work,  will  be  fur- 
nished upon  request. 

Kew  Drawin;c<*  on  RelHsn«s. 

22.  All  reissue  applications  must  be  accom- 
panied by  new  thick  paper  drawings,  as  in  orig- 
inal applications. 

Einployingr  Artixts  Advised. 

23.  Applicants  are  advised  to  employ  com- 
petent artists  to  make  their  drawings. 

KionEi.. 

Mo«Iels,  Wben  Required— Wliat  tbey 

Must  Miow. 

24.  A  model  will  be  required  in  every  case 
where  the  nature  of  the  invention  admits  of 
such  illustration,  except  in  applications  upon 
designs.  It  must  clearly  exhibit  every  feature 
of  the  machine  which  forms  the  subject  of  a 
claim  of  invention,  but  should  not  include 
other  matter  than  that  covered  by  the  actual  in- 
vention or  improvement,  unless  it  is  necessary 
to  the  exhibition  of  a  working  model.  When 
the  invention  is  a.  composition  of  matter,  a 
specimen  of  each  of  the  ingredients  and  of  the 
composition,  properly  marked,  must  accompany 
the  application. 

How  Made. 

25.  The  model  must  be  neatly  and  substan- 
tially made  of  durable  material,  metal  being 
deemed  preferable ;  and  should  not  in  any  case 
be  more  than  one  foot  in  length,  width,  or 
height.  If  made  of  pine  or  other  soft  wood,  it 
should  be  painted,  stained,  or  varnished.  Glue 
must  not  be  used,  but  the  parts  should  be  so 
connected  as  to  resist  the  action  of  heat  or 
moisture. 

IrVorkliigr  Models  Desirable. 

26.  A  working  model  is  always  desirable,  in 
order  to  enable  the  office  fully  and  readily 
to  understand  the  precise  operation  of  the 
machine. 

Retnrning^  Models. 

27.  The  model,  unless  it  is  deemed  neces- 
sary that  it  be  preserved  in  the  office,  or  unless 
it  be  otherwise  disposed  of,  may  be  returned  to 
the  applicant  upon  demand,  and  at  his  expense, 
in  all  cases  where  an  application  has  been  re- 
jected more  than  two  years ;  and  the  model, 
in  any  pending  case  of  less  than  two  years' 
standing,  may  be  returned  to  the  applicant 
upon  the  filing  of  a  formal  abandonment  of 
the  application,  signed  by  applicant  in  person. 

Returning:  Exiiibits. 

28.  Models  filed  as  exhibits,  in  interference 
and  other  cases,  may  be  returned  to  the  api^li- 
cant  or  otherwise  disposed  of  at  the  discretion 
of  the  commissioner. 

THE  EXAMINATIOKT. 
Order  of  Maiciiig:  Examinations. 

29.  All  cases  in  the  patent  office  are  classi- 
fied and  taken  up  for  examination  in  regular 
order;  those  in  the  same  class  being  examined 
and  disposed  of,  as  far  as  practicable,  in  the 
order  in  which  the  respective  applications  are 
completed.  When,  however,  the  invention  is 
deemed  of  peculiar  importance  to  some  branch 
of  the  public  service,  and  when,  for  that  reason, 
the  head  of  some  department  of  the  govern- 
ment specially  requests  immediate  action,  the 
cas«  will  be  taken  up  out  of  its  order,     Th.ese, 


with  applications  for  extensions,  for  reissue, 
and  for  letters  patent  for  inventions  for  which 
a  foreign  patent  has  already  been  obtained, 
which  cases  have  precedence  over  all  others, 
are  the  only  exceptions  to  the  above  rule  in 
relation  to  the  order  of  examination.  If  an 
application  is  found  to  conflict  with  a  caveat, 
its  examination  will  be  suspended  as  herein- 
after provided. 

The  first  step  in  the  examination  of  any 
application  will  be  to  determine  whether  it  h, 
in  all  respects,  in  proper  form.  If,  however, 
an  objection  as  to  form  is  not  vital,  the  exami- 
ner may  proceed  to  the  consideration  of  the 
application  on  its  merits;  but  in  such  case  he 
must,  in  his  first  letter  to  applicant,  state  all  his 
objections,  whether  formal  or  otherwise. 
Attendance  or  Applicants  Unnecessary. 

30.  Ihe  personal  attendance  of  the  appli- 
cant at  the  patent  office  is  unnecessary.  The 
business  can  be  done  by  correspondence  or  by 
attorney ;  and  if  there  has  been  an  assignment 
of  the  whole  or  of  an  undivided  part  of  the 
invention,  the  assignee,  or,  in  the  latter  case, 
the  assignee  and  the  inventor  jointly,  will  be 
recognized  as  the  proper  party  to  prosecute  the 
application. 

Wben  Amendments  may  be  Made. 

31.  The  applicant  has  a  right  to  amend  after 
the  first  rejection;  and  he  may  amend  as  often 
as  the  examiner  presents  any  new  references. 
After  a  second  rejection,  and  at  any  time  before 
the  issue  of  a  patent,  special  amendments  may 
be  made  on  approval  by  the  commissioner,  if 
sufficient  reason  therefor  be  shown.  But  such 
amendments  must  first  be  submitted  to  the 
tribunal  last  acting  on  the  case,  for  recommen- 
dation or  objection.  Affidavits  in  support  of 
applications  will  not  be  received  at  any  stage 
of  the  examination,  unless  the  office  denies 
that  the  device  is  operative. 

Requisites  of  Amendments. 

32.  All  amendments  of  the  model,  drawings, 
or  specification,  in  the  case  of  original  applica- 
tions which  are  capable  of  illustration  by  draw- 
ing or  model,  must  conform  to  at  least  one  of 
them  as  they  were  at  the  time  of  the  filing  of  the 
application  ;  further  changes  than  this  can  only 
be  made  by  filing  a  new  application.  If  the 
invention  does  not  admit  of  illustration  by 
drawing,  amendment  of  the  specification  may 
be  made  upon  proof  satisfactory  to  the  commis- 
sioner that  the  proposed  amendment  is  a  part 
of  the  original  invention. 

How  Tbey  Mnst  be  Drawn. 

All  amendments  of  specifications  or  claims 
must  be  made  on  separate  sheets  of  paper  fi cm 
the  original,  and  must  be  filed  in  the  manner 
above  directed.  Even  when  the  amendmcnl 
consists  in  striking  out  a  portion  of  the  specifi- 
cation or  other  paper,  the  same  course  should 
be  observed.  No  erasure  must  be  made  by 
the  applicant.  In  every  case  of  amendment 
the  exact  word  or  words  to  be  stricken  out  or 
inserted  should  be  clearly  specified,  and  the 
precise  point  indicated  where  the  erasure  or 
insertion  is  to  be  made. 


5«6 


PATENTS. 


Proceedlngrs  on  Rejection. 

33.  "Whenever,  on  examination,  any  claim 
for  a  patent  is  rejected  for  any  reason  whatever, 
the  applicant  will  be  notified  thereof,  and  the 
reasons  for  such  rejection  will  be  given,  to- 
gether with  such  information  and  references  as 
may  be  useful  in  judging  of  the  propriety  of 
prosecuting  his  application  or  of  altering  his 
specification;  and  if,  after  receiving  such  notice, 
he  shall  persist  in  his  claim  for  a  patent,  with 
or  without  altering  his  specification,  the  case 
will  be  re-examined. 

Fnrnistaln^   Specific   Refcrencen,  and 
Cople.H  of  References*. 

34.  Upon  the  rejection  of  an  application  for 
want  of  novelty,  the  examiner  must  cite  the 
best  references  at  his  command,  and  the  appli- 
cant will,  if  he  demands  it,  be  entitled  to  a 
specific  reference  (by  name,  date,  and  class,  or 
the  equivalent  thereof)  to  the  article  or  articles 
by  which  it  is  anticipated.  If  he  desires  a 
copy  of  the  cases  so  referred  to,  or  of  the  plates 
or  drawings  connected  with  them,  they  will  be 
forwarded  to  him,  if  in  the  possession  of  the 
office,  on  payment  of  the  cost  of  making  such 
copies. 

Reference  of  Abandoned  Case. 

35.  When  the  rejection  of  an  application  is 
founded  upon  another  case  previously  rejected, 
but  not  withdrawn  or  abandoned,  the  applicant 
will  be  furnished  with  all  information  in  rela- 
tion to  the  previously  rejected  case  which  is 
necessary  for  the  proper  understanding  and 
management  of  his  own.  But  this  rule  does 
not  authorize  the  citation  of  pending  applica- 
tions as  references. 

Specifications   to   be  Corrected  as  Re- 
qnired. 

36.  The  specification,  especially  if  the  claim 
be  amended,  must  be  amended  and  revised,  if 
required  by  the  examiner,  for  the  purpose  of 
correcting  inaccuracies  of  description  or  un- 
necessary prolixity,  and  of  securing  correspond- 
ence between  the  statement  and  description  of 
the  invention  and  the  claim.  Mere  errors  of 
orthography  or  of  grammatical  construction 
will  be  corrected  by  the  examiner  in  charge. 

No   Removing^   Papers.      Copies   Fnr- 
nisiied. 

37.  The  office  will  not  return  specifications 
for  amendment ;  and  in  no  case  will  any  per- 
son be  allowed  to  take  any  papers,  drawings, 
models,  or  samples  from  the  office.  If  ajjpli- 
cants  have  not  preserved  copies  of  such  pn]iers 
as  they  wish  to  amend,  the  office  will  furnish 
them  on  the  usual  ^erms. 

DATE   OF   PATENT. 

Dating:  Patents:  H'itlilield  if  Final  Fee 

is  not  Paid. 

38.  Every  patent  will  bear  date  as  of  a  day 
not  later  than  six  months  from  the  time  at 
which  the  application  was  passed  and  allowed 
and  notice  thereof  was  mailed  to  the  applicant 
or  his  agent,  and  if  the  final  fee  (or,  in  case 
the  fee  has  been  paid  to  the  treasurer  or  any  of 
the  assistant  treasurers,  or  any  of  the  designated 
depobitaries  of  the  United  States,  the  certificate 
of  deposit)  be  not  received  at  the  office  within 
that  penod,  the  patent  will  be  i^'ithheld.     The 


party  may,  however,  obtain  a  patent  upon  a 
new  application,  as  hereinafter  provided. 

A  pntcnt  will  not  be  antedated. 
WITHDRAWN     AND     REJECTED    AP- 
PEICATIOXS. 
Renewing;;  Applications. 

39.  When  an  application  for  a  patent  has 
been  rejected  and  the  applicant  fails  to  renew 
the  same,  or  to  file  a  new  one  within  two  years 
after  the  date  when  notice  of  the  last  official 
action  was  mailed  to  him  or  to  his  agent,  his 
application  will  be  held  to  have  been  aban- 
doned. 

Any  act  which  calls  such  rejected  applica- 
tion up  for  farther  consideration,  within  the 
time  mentioned,  will  be  regarded  as  constitut- 
ing a  renewal. 

Fees  Required  with  Renewed  Applica* 
tion. 

40.  When  a  new  application  is  filed  in  place 
of  an  old  one,  a  new  fee  will  invariably  be 
required. 

Delay  IWnst  be  Snfliciently  Accounted 
For. 

41.  Upon  the  hearing  of  applications  at- 
tempted to  be  renewed  after  the  expiration  of 
the  two  years  after  any  action  thereon,  it  must 
be  shown  to  the  satisfaction  of  the  commis- 
sioner that  such  delay  was  unavoidable. 

APPEAES. 
Appeals  io  Examiners-in-Chief. 

42.  Every  applicant  for  a  patent  or  the 
reissue  of  a  patent,  any  of  the  claims  of 
which  have  twice  been  rejected,  may  appeal 
from  the  decision  of  the  primary  examiner 
in  such  case  to  the  board  of  examiners-in- 
chief,  having  once  paid  a  fee  of  ten  dollars. 
For  this  purpose  a  petition  in  writing  must  be 
filed,  signed  by  the  party,  or  his  authorized 
agent  or  attorney,  praying  an  appeal,  and  set- 
ting forth  the  reasons  upon  which  the  appeal  is 
taken. 

Reasons  of  Appeal  and  Answer. 

This  statement  of  the  reasons  of  appeal 
should  point  out  distinctly  and  specifically  the 
supposed  errors  of  the  examiner's  action,  and 
should  constitute  a  brief  of  the  argument  upon 
which  the  applicant  will  rely  in  support  of  his 
appeal.  Before  the  appeal  is  entertained  by 
the  board,  this  statement  will  be  submitted  to 
the  primary  examiner,  who  will  make  answer 
in  writing  touching  all  the  points  involved 
therein. 

If  the  appellant  desires  to  be  heard  orally 
before  the  board,  he  should  so  indicate  when 
he  files  his  appeal;  a  day  of  hearing  will  then 
be  fixed,  and  due  notice  of  the  same  be  given 
him. 

Proceedini^s  on  Appeal. 

43.  The  examiners-in-chief  will  consider 
the  case  as  it  was  when  last  passed  upon  by 
the  primary  examiner,  merely  revising  his  de- 
cisions so  far  as  they  were  adverse  to  the  a|> 
pellant.  If,  however,  they  discover  any  reason 
not  given  by  the  examiner,  why  a  patent  should 
not  issue,  they  should  make  a  statement  to  that 
effect  to  the  commissioner. 

If  affidavits  are  received  under  Rule  31, 
after  the  case  has  been  appealed,  the  applica- 


PATENTS. 


587 


tton  will  be  remanded  to  the  examiner  for  re- 
consideration. 

PrereqniMlteM  to  Appeal. 

44.  There  must  be  two  rejections  upon  the 
claims  as  originally  filed,  or,  if  amended  in  a 
matter  of  substance,  upon  the  amended  claims ; 
and  all  the  claims  must  be  passed  upon  and  all 
preliminary  and  intermediate  questions  must  be 
settled  before  the  case  is  appealed  to  the  board. 

Appeal  from  Examiner  to  Commls- 
tiioner. 
;  Decisions  of  examiners  upon  preliminary  or 
intermediate  questions,  or  refusals  to  act,  once 
repeated,  will  be  re-examined,  by  the  commis- 
sioner in  person,  upon  written  application  set- 
ting forth  the  grounds  of  the  appeal,  and 
answer  thereto  by  the  examiner  as  in  other  ap- 
peals. For  appeals  of  this  class  no  fee  is 
required. 

Rehearing^  of  Appealed  Cases. 

45.  Cases  which  have  been  heard  and  de- 
cided on  appeal  will  not  be  reopened  by  the 
examiner  without  the  written  authority  of  the 
commissioner;  and  cases  which  have  been 
decided  by  the  examiners-in-chief  will  not 
be  reheard  by  them,  except  upon  the  same 
authority. 

Cases  which  have  been  deliberately  decided 
by  one  commissioner  will  not  be  reconsidered 
by  his  successor  upon  the  same  state  of  facts. 
They  may,  however,  be  reopened  in  accord- 
ance with  the  general  principles  which  govern 
the  granting  of  new  trials. 

Appeals  from  Examiners-in>€lilef. 

46.  All  cases  which  have  been  acted  on  by 
the  board  of  examiners-in-chief  may  be  brought 
before  the  commissioner  in  person,  upon  a  writ- 
ten request  to  that  effect,  and  upon  the  payment 
of  the  fee  of  twenty  dollars  required  by  law. 

Appeals  to  Supreme  Court— Proceed- 
ing's. 

47.  From  an  adverse  decision  upon  the 
claims  of  an  application  an  appeal  may  be 
taken  to  the  supreme  court  of  the  District  of 
Columbia  sitting  in  banc.  In  taking  such  ap- 
peals the  applicant  is  required,  under  the  rules 
of  the  court,  to  pay  to  the  clerk  of  the  court 
a  docket-fee  of  ten  dollars,  and  he  is  also  re- 
quired by  law  to  lay  before  the  court  certified 
copies  of  all  the  original  papers  and  evidence 
in-  the  case.  The  petition  should  be  filed  and 
the  fee  paid  at  least  ten  days  before  the  com- 
mencement of  the  term  of  court  at  which  the 
appeal  is  to  be  heard. 

Immediately  upon  taking  an  appeal  the  ap- 
pellant must  give  notice  thereof  to  the  commis- 
sioner of  patents,  and  file  in  the  patent  office 
his  reasons  of  appeal,  specifically  set  forth  in 
•writing. 

The  docket  for  the  trial  of  cases  appealed 
from  the  decision  of  the  commissioner  of  pat- 
ents will  be  called  on  the  first  day  of  each 
session  of  the  supreme  court  of  the  District  of 
Columbia  in  general  term.  These  sessions  are 
held  three  in  each  year,  and  begm  respectively 
on  the  first  Monday  in  January,  the  third  Mon- 
day in  April,  and  the  fourth  Monday  in  Sep- 
tember. 


Appeal  in  Interference  Cases — None  to 
Supreme  Court. 

48.  In  cases  ol  interference  parties  have  the 
same  remedy  by  appeal  to  the  examiners-in- 
chief,  and  to  the  commissioner,  as  in  ex-parU 
cases ;  but  no  appeal  lies  in  such  cases  from 
the  decision  of  the  commissioner.  Appeals  in 
interference  cases  should  be  accompanied  with 
a  brief  statement  of  the  reasons  therefor;  and 
l)Oth  parties  will  be  required  to  file  briefs  of 
their  arguments  at  least  five  days  before  the 
day  of  hearing.  Printed  briefs  are  in  all  cases 
preferred. 

HEARINCS. 
HearinK-s,  Kej^ulations  for. 

40.  All  cases  pending  before  the  commis- 
sioner, the  board  of  examiners-in-chief,  or  the 
examiner  in  charge  of  interferences,  will  stand 
for  argument  at  12  o'clock  on  the  day  of 
hearing,  unless  some  other  hour  be  specially 
designated.  If  either  party  in  a  contested  case, 
or  the  appellant  in  an  ex-parte  case,  appears  at 
that  time,  he  will  be  heard,  but  a  contested 
case  will  not  be  taken  up  for  oral  argument 
after  the  day  of  hearing,  except  by  the  consent 
of  both  parties.  If  the  engagements  of  the 
tribunal  before  whom  the  case  is  pending  are 
such  as  to  prevent  it  from  being  taken  up  on 
the  day  of  hearing,  a  new  assignment  will  be 
made,  or  the  case  will  be  continued  from  day 
to  day  until  heard.  Unless  otherwise  ordered 
before  the  hearing  begins,  oral  arguments  will 
be  limited  to  one  hour  for  each  counsel.  After 
any  case  has  been  argued,  nothing  further  re- 
lating thereto  will  be  heard  unless  requested 
by  the  tribunal  having  the  decision  of  the  case; 
and  all  interviews  for  this  purpose,  with  parties 
in  interest  or  their  attorneys,  will  be  invariably 
denied. 

MOTIOK^S  ISr  COBTTESTED  CASES. 
Motions,  Reg:ulatlons  for. 

50,  In  contested  cases  reasonable  notice  of 
all  motions,  and  copies  of  the  motion,  papeirs, 
and  affidavits,  must  be  served  upon  the  oppo- 
site party  or  his  attorney.  Proof  of  such  ser- 
vice must  be  made  before  the  motion  will  be 
entertained  by  the  office;  and  motions  will  not 
be  heard  in  the  absence  of  either  party  except 
upon  default  after  due  notice.  Motions  will 
be  heard  in  the  first  instance  by  the  officer  or 
tribunal  before  whom  the  particular  case  may 
be  pending;  but  an  appeal  from  the  decision 
rendered  may  be  taken  to  the  commissioner  in 
person. 

INTERFERENCES. 

51.  An  "  interference  "  is  a  proceeding  in- 
stituted for  the  purpose  of  determining  the 
question  of  priority  of  invention  between  two 
or  more  parties  claiming  the  same  patentable 
subject-matter.  It  may  also  be  resorted  to  for 
the  purpose  of  procuring  evidence  relating  to 
the  alleged  abandonment  or  the  public  use  of 
an  invention. 

Before  the  declaration  of  an  interference  all 
preliminary  questions  must  be  settled  by  the 
primary  examiner,  and  the  issue  clearly  de- 
fined; the  invention  which  is  to  form  the  sub- 
ject of  the  controversy  must  be  decided  to  b« 


S«8 


PATENTS. 


patentable,  and  the  claims  of  the  respective 
parties  must  be  put  in  such  condition  that  they 
will  not  require  alteration  after  the  interference 
has  been  finally  decided,  unless  the  testimony 
adduced  upon  the  trial  should  necessitate  such 
change.     (See  ?  41.) 

M'hen  l>eclared. 

An  interference  will  be  declared  in  the  fol- 
lowing cases : 

First.  When  two  or  more  parties  have  ap- 
pRcations  pending  before  the  office  at  the  same 
time,  and  their  respective  claims  conflict  in 
whole  or  in  part. 

Second.  When  two  or  more  applications  are 
p>ending  at  the  same  time,  in  each  of  which  a 
like  patentable  invention  is  shown  or  described, 
and  claimed  in  one  though  not  specifically 
claimed  in  all  of  them. 

Third.  When  an  applicant,  having  been  re- 
jected upon  an    unexpired    patent,   claims   to 
have  made  the  invention  before  the  patentee. 
Interferences  with  Patents. 

5a.  The  fact  that  one  of  the  parties  has  al- 
ready obtained  a  patent  will  not  prevent  an 
interference;  for,  although  the  commissioner 
has  no  power  to  cancel  a  patent  already  issued, 
he  may,  if  he  finds  that  another  person  was  the 
prior  inventor,  give  him  a  patent  also,  and  thus 
pi  ace  both  parlies  on  an  equal  footing  before 
the  courts  and  the  public. 

Prellmlnitry  Interferences;  Proceed- 
ing's.   Preliminary  Statements. 

53.  Before  the  declaration  of  an  interference 
proper  a  preliminaiy  interference  will  be  de- 
clared, in  which  the  primary  examiner  will  no- 
tify the  respective  parties  when  the  applications 
of  the  other  parties  were  filed,  together  with 
their  names  and  residences.  Each  party  to 
the  interference  will  be  required  to  file  a  state- 
ment under  oath,  giving  a  detailed  history  of 
the  invention,  showing  the  date  of  the  original 
conception,  and  the  date  that  the  invention 
was  reduced  to  drawings  or  model,  and  the 
date  of  its  completion,  and  the  extent  and 
character  of  use.  The  parties  will  be  strictly 
held  in  their  proof  to  the  dates  set  up  in  their 
preliminary  statements.  This  statement  must 
be  sealed  up  before  filing  (to  be  opened  only 
by  the  exaaiiner  of  interferences),  and  tlie 
name  of  the  party  filing  it  and  the  subject  of 
the  invention  indicated  on  the  envelope. 

These  statements  shall  not  be  open  to  the 
inspection  of  the  opposing  parties  until  boih 
have  been  filed,  or  until  the  time  for  filing  both 
has  expired;  nor  then,  until  they  have  been 
examined  by  the  proper  officer  and  found  to  be 
satisfactory.  At  the  time  of  the  examination 
of  the  preliminary  statements  the  examiner  of 
interferences  will  also  make  an  examination 
of  the  preliminary  declaration  (instituted  by 
the  primary  examiner),  in  order  to  ascertain 
whether  or  not  the  issue  between  the  parties 
has  been  clearly  defined.  If  it  be  found,  upon 
such  examination,  that  the  prelimmary  declara- 
tion is  ambiguous  in  this  particular,  the  inter- 
ference will  be  suspendetl  and  the  case  returned 
lo  the  primary  examiner  for  amendment. 


XflTect  of  Preliminary  fittatement. 

If  the  party  upon  whom  rests  the  burden  01 
proof  fails  to  file  a  preliminary  statement,  or  if 
his  statement  fails  to  overcome  the />rima  facie 
case  made  by  the  respectives  dates  of  applica- 
tion, or  if  it  shows  that  he  has  abandoned  his 
invention,  or  that  it  has  been  in  public  use 
more  than  two  years  before  his  application,  the 
other  party  will  be  entitled  to  an  immediate 
adjudication  of  the  case  upon  the  record;  un- 
less a  presumption  is  created  that  his  right  to  a 
patent  is  affected  by  the  alleged  public  use  of 
the  invention,  in  which  case  the  interference 
may  be  proceeded  with. 

If  the  earlier  applicant  fails  to  file  a  prelimi- 
nary statement,  no  testimony  will  subsequently 
be  received  from  him  going  to  prove  that  he 
made  the  invention  at  a  date  prior  to  his  appli- 
cation. The  preliminary  statement  can  in  no 
case  be  used  as  evidence  in  behalf  of  the  party 
making  it.  Its  use  is  to  determine  whether 
the  interference  shall  be  proceeded  with,  and 
to  serve  as  a  basis  of  cross-examination  for  the 
other  party. 

If  either  party  requires  a  postponement  of 
the  time  for  filing  the  preliminary  statements, 
he  must  present  his  reasons  therefor,  in  the  form 
of  an  affidavit,  prior  to  the  day  previously  fixed 
upon. 

Hearing  of  Interferences. 

54.  Where  no  testimony  is  taken  by  the  ap- 
plicant upon  whom  rests  the  burden  of  proof, 
or  where  testimony  has  been  taken  by  such  ap- 
plicant, but  not  by  the  other  party  during  the 
time  assigned  to  the  latter,  the  case  will  be 
considered  closed,  and  upon  motion  duly  made 
at  the  expiration  of  the  time  assigned  to  such 
parties,  respectively,  may  be  set  for  hearing  at 
any  time  not  less  than  ten  days  thereafter. 

Appeals  In  Interferences. 

55.  In  cases  of  interlerence  appeals  may  be 
taken  to  the  examiners-in  chief  and  to  the 
commissioner,  in  the  manner  provided  in  Rule 
48. 

Notice  to  Parties  of  Interference. 

56.  When  an  interference  is  declared,  notice 
will  be  given  to  both  parties  or  to  their  attor- 
neys. When  one  of  the  parties  has  received 
a  patent,  duplicate  notices  will  be  sent  to  the 
patentee  and  to  his  attorney  of  record.  Where 
one  of  the  parties  resides  abroad  and  has  no 
known  agent  in  the  United  States,  in  addition 
to  the  notice  sent  by  mail  notice  may  be  given 
by  publication  in  a  newspaper  of  general  circu- 
lation in  the  city  of  Washington  once  in  a  weelc 
for  three  successive  weeks. 

Order  ofTakinfr  Testimony. 

57.  In  cases  of  interference  the  party  who 
first  filed  so  much  of  his  application  for  a  pat- 
ent as  is  required  by  Rule  7,  will  be  deemed 
the  first  inventor  in  the  absence  of  all  proof  to 
the  contrary.  A  time  will  be  assigned  in  which 
the  other  party  shall  complete  his  direct  testi- 
mony; and  a  further  time  in  which  the  ad- 
verse party  shall  complete  the  testimony  on  his 
side;  and  a  further  time  in  which  the  party 
who  first  took  testimony  may  take  rebutting 


PATENTS. 


589 


testimony,  but  shall  take  no  other.  If  there 
are  more  than  two  parties,  the  times  for  taking 
testimony  will  be  so  arranged  that  each  shall 
have  a  like  opportunity  in  his  turn,  each  being 
held  to  go  forward  and  prove  his  case  against 
those  who  filed  their  application  before  him. 
Postponing:  Taking  Testimony. 

58.  If  it  becomes  necessary  for  either  party 
to  have  the  time  for  taking  his  testimony,  or 
for  the  hearing,  postponed,  he  must  make  ap- 
plication for  such  postponement,  and  must  show 
sufficient  reason  for  it  by  affidavit  as  provided 
in  Rule  113,  filed  before  the  time  previously 
appointed  has  elapsed,  if  practicable,  and  must 
also  furnish  his  opponent  with  copies  of  his 
affidavits  and  with  reasonable  notice  of  the 
time  of  hearing  his  motion. 

Prerequisite  to,  and  Dissolving: 
Interferences. 

59.  An  interference  will  not  be  declared 
until  the  subject-matter  involved  is  decided  to 
be  patentable.  If  after  being  declared  it  is 
found  that  no  interference  in  fact  exists,  or  that 
there  has  been  such  irregularity  in  declaring 
the  same  as  will  preclude  the  proper  determi- 
nation of  the  question  of  right  between  the 
parties,  it  will  be  dissolved,  and  an  appeal  may 
be  taken  to  the  commissioner  in  person. 

Concessions  of  Priority. 
If,  during  the  continuance  of  an  interference, 
it  shall  appear  that  neither  party  is  entitled  to 
a  patent  by  reason  of  abandonment,  public  use, 
or  any  other  statutory  bar,  the  examiner  of  in- 
terferences, or  examiners-in-chief,  as  the  case 
may  be,  will  direct  the  attention  of  the  com- 
missioner to  the  facts,  either  by  a  report,  if 
before  the  hearing,  or  in  the  decision  of  the 
question  of  priority,  if  the  interference  comes 
to  a  regular  hearing.  The  commissioner,  if  in 
his  judgment  it  is  necessary,  will  then  suspend 
the  interference  and  remand  the  cases  to  the 
principal  examiner  for  the  determination  of  any 
of  these  questions. 

If  judgment  be  based  upon  a  concession  of 
priority  by  either  of  the  parties,  such  conces- 
sion must  be  in  writing,  and  under  the  signa- 
ture of  the  inventor  himself;  and  if  there  has 
been  an  assignment,  the  assignee  must  join  in 
the  concession. 

Amendments   Pending:  Interferences — 
Rehearing:  and  Second  Interferences. 
60.  No  amendments  to  the  specifications  will 
be  received  during  the  pendency  of  an  inter- 
ference, except  as  provided  in  section  61.     A 
second  interference  will  not  be  declared  upon 
a  new  application  on  the  same  invention  filed 
by  either  party  during  the  pendency  of  an  in- 
terference, or  after  judgment,  nor  a  rehearing 
be  granted,  unless  it  be  shown  to  the  satisfac- 
tion of  the  commissioner  (in  person)  that  the 
party  desiring  a  new  interference  or  rehearing 
has  new  and  material  testimony  which  he  could 
not  have  procured  in  time  for  the  hearing,  or 
unless  other  sufficient  reasons  be  shown,  satis- 
factory to  the  commissioner. 
Pari  of  Application   only  in   Inter- 
ference. 
Ox.  When  an   application   is  adjudged    to 


interfere  with  a  part  only  of  another  pending 
application,  the  interfering  parties  will  be  per- 
mitted to  see  or  obtain  copies  of  so  much  only 
of  the  specifications  as  refers  to  the  inter- 
fering claims.  And  either  party  may,  if  he  so 
elect,  withdraw  from  his  application  the  claims 
adjudged  not  to  interfere,  and  file  a  new  appli- 
cation therefor :  Provided,  That  the  claims  so 
withdrawn  cover  inventions  which  do  not  in- 
volve the  devices  in  interference  :  And  pro- 
vided also.  That  the  devices  in  interference  are 
eliminated  from  the  new  application.  In  such 
case  the  latter  will  be  examined  without  refer- 
ence to  the  interference  from  which  it  was 
withdrawn. 

RKISSUEN. 
^Vho  9fay  Apply  for  Relssne. 

62.  A  reissue  is  granted  to  the  original 
patentee,  his  legal  representatives,  or  the  as- 
signees of  the  entire  interest,  when,  by  reason 
of  a  defective  or  insufficient  specification,  or  by 
reason  of  the  patentee  claiming  as  his  invention 
or  discovery  more  than  he  had  a  right  to  claim 
as  new,  the  original  patent  is  inoperative  or 
invalid,  provided  the  error  has  arisen  from 
inadvertence,  accident,  or  mistake,  and  with- 
out any  fraudulent  or  deceptive  intention.  In 
the  cases  of  patents  issued  and  assigned  prior 
to  July  8,  1870,  the  application  for  reissue  may 
be  made  by  the  assignee ;  but,  in  the  case  of 
patents  issued  or  assigned  since  that  date,  the 
application  must  be  made  and  the  specification 
sworn  to  by  the  inventor,  if  he  be  living. 

IVliat  Must  Accompany  Petition. 

63.  The  petition  for  a  reissue  must  be  ac- 
companied with  a  certified  copy  of  the  abstract 
of  title,  giving  the  names  of  all  assignees  own- 
ing any  undivided  interest  in  the  patent ;  and 
in  case  the  application  is  made  by  the  inventor, 
it  must  be  accompanied  with  the  written  assent 
of  such  assignees.  In  applications  for  reissue, 
under  several  different  divisions,  a  petition, 
oath,  drawing,  and  specification  must  accom- 
pany each  division. 

What  Amendments  Allowed. 

64.  The  general  rule  is,  that  whatever  is 
really  embraced  in  the  original  invention,  and 
so  described  or  shown  that  it  might  have  been 
embraced  in  the  original  patent,  may  be  the 
subject  of  a  reissue ;  but  no  new  matter  shall 
be  introduced  into  the  specification,  nor  shall 
the  model  or  drawing  be  amended  except  each 
by  the  other;  but,  when  there  is  neither  model 
nor  drawing,  amendments  may  be  made  upon 
proof  satisfactory  to  the  commissioner  that  such 
new  matter  or  amendment  was  a  part  of  the 
original  invention,  and  was  omitted  from  the 
specification  by  inadvertence,  accident,  or  mis- 
take, as  aforesaid. 

Take  Precedence  in  Examination. 

65.  Reissued  patents  expire  at  the  end  of 
the  term  for  which  the  original  patents  were 
granted.  For  this  reason  applications  for  reis- 
sue will  take  precedence,  in  examination,  of 
original  applications. 

Division  of  Patents. 

66.  A  patentee  in  reissuing  may,  at  his  op- 
tion, have  a  separate  patent  for  each  distinct 


590 


PATENTS. 


ind  separate  part  of  the  invention  compre- 
hended in  his  original  patent,  by  paying  the 
required  fee  in  each  case,  and  complying  wilh 
the  other  requirements  of  the  law,  as  in  origi- 
nal applications.  Each  division  of  a.  reissue 
constitutes  the  subject  of  a  separate  specifica- 
tion descriptive  of  the  part  or  parts  of  the 
invention  claimed  in  such  division ;  and  the 
drawing  may  represent  only  such  part  or  parts. 
.\11  the  divisions  of  a  reissue  will  issue  simul- 
taneously. If  there  be  controversy  as  to  one, 
the  others  will  be  withheld  from  issue  until  the 
eontroversy  is  ended. 
Orifpinal  Claim  to  be  Examtnetl  Anew. 

67.  In  all  cases  of  applications  lor  reissues, 
the  original  claim,  if  reproduced  in  the  amended 
specification,  is  subject  to  re-examination,  and 
may  be  revised  and  restricted  in  the  same 
manner  as  in  original  applications.  The  ap- 
plication for  a  reissue  must  be  accompanied  by 
a  surrender  of  the  original  patent,  or,  if  lost, 
then  by  an  affidavit  to  that  effect  and  a  certified 
copy  of  the  patent ;  but  if  any  reissue  be  re- 
fused, the  original  patent  will,  upon  request,  be 
returned  to  the  applicant. 

DISCI.AI1IIER8. 

68.  Whenever,  by  inadvertence,  accident,  or 
mistake,  the  claim  of  invention  in  any  patent  is 
too  broad,  embracing  more  than  that  of  which 
the  patentee  was  the  original  or  first  inventor, 
some  material  or  substantial  part  of  the  thing 
patented  being  truly  and  justly  his  own,  the 
patentee,  his  heirs  or  assigns,  whether  of  a 
whole  or  of  a  sectional  interest,  may,  upon 
payment  of  the  duty  required  by  law,  make 
disclaimer  of  such  parts  of  the  thing  patented 
as  the  disclaimant  shall  not  choose  to  cinim 
or  to  hold  by  virtue  of  the  patent  or  assign- 
ment, stating  therein  the  extent  of  his  interest 
in  such  patent;  which  disclaimer  shall  be  in 
writing,  attested  by  one  or  more  witnesses, 
shall  be  recorded  in  the  patent  office,  and  shall 
thereafter  be  considered  as  part  of  the  original 
specification,  to  the  extent  of  the  interest  pos- 
sessed by  the  claimant  and  by  those  claiming 
under  him  after  the  record  thereof. 

EXTEXSIOXS. 
What  Patents  May  be  Extended. 

69.  Power  is  vested  in  the  commissioner  to 
extend  any  patent  granted  prior  to  March  2, 
1861,  for  seven  years  from  the  expiration  of  the 
original  term ;  but  no  patent  granted  since 
March  2,  1861,  can  be  extended.  When  a 
patent  has  been  reissued  in  two  or  more  divi- 
sions, separate  applications  must  be  made  for 
the  extension  of  each  division. 

When  to  File  Petition  and  Pay  Fee. 

70.  The  applicant  for  an  extension  must  file 
his  petition  and  pay  in  the  requisite  fee  not 
more  than  six  months  nor  less  than  ninety 
days  prior  to  the  expiration  of  his  patent. 

No  certificate  of  extension  will  be  signed 
after  the  expiration  of  the  patent.  Parties  are 
cautioned  to  make  their  application  for  exten- 
sion in  time  to  allow  the  testimony  to  be  taken, 
*he  hearing  to  be  had,  and  decision  made,  so 
that  the  final  fee  may  be  paid  and  the  certifi- 


cate signevi  before  the  patent  expires;  other- 
wise, extension  will  be  denied. 

Remonstrants,  H'hat  is  Re<inlred 
of  Them. 

71.  Any  person  who  intends  to  oppose  an 
application  for  extension  must  give  notice  of 
such  intention  to  the  applicant  or  his  attorney 
of  record  within  the  time  hereafter  named,  and 
furnish  him  with  a  statement  of  his  reasons  of 
opposition.  After  this  he  will  be  regarded  as 
a  party  in  the  case,  and  will  be  entitled  to 
notice  of  the  time  and  place  of  taking  testi- 
mony, to  a  list  of  the  names  and  residences  of 
the  witnesses  whose  testimony  may  have  been 
taken  previous  to  his  service  of  notice  of  opjxt- 
sition,  and  to  a  copy  of  the  application  and  of 
any  other  papers  on  file,  upon  paying  the  cost 
of  copying.  He  must  also  immediately  file  a 
copy  of  such  notice  and  reasons  of  opposition, 
with  proof  of  service  of  the  same,  in  the  patent 
office.     (See  sec.  75.) 

If  the  extension  is  opposed  on  the  ground 
of  lack  of  novelty  in  the  invention,  the  reasons 
of  opposition  should  contain  a  specific  state- 
ment of  any  and  all  matter  relied  upon  for  this 
purpose. 

What  is  Required  of  Petitioner. 

72.  The  applicant  for  an  extension  must  fur- 
nish to  the  office  a  statement  in  writing,  under 
oath,  of  the  ascertained  value  of  the  invention, 
and  of  his  receipts  and  expenditures  on  account 
thereof,  both  in  this  and  foreign  countries. 
This  statement  must  be  made  particular  and  in 
detail,  unless  sufficient  reason  is  set  forth  why 
such  a  statement  cannot  be  furnished.  It  must 
m  all  cases  be  filed  wilh  the  petition.  No  ex- 
ceptions will  be  made  to  this  rule. 

Such  statement  must  also  be  accompanied 
with  a  cerlified  abstract  of  title  and  a  declara- 
tion, under  oath,  setting  forth  the  extent  of  ap- 
plicant's interest  in  the  extension  sought. 

Points  to  be  Considered— Proofs 
Required. 

73.  The  questions  which  arise  on  each  ap- 
plication for  an  extension  are : 

1 .  Was  the  invention  new  and  useful  when 
patented  ? 

2.  Is  it  valuable  and  important  to  the  public, 
and  to  what  extent? 

3.  Has  the  inventor  been  reasonably  remu- 
nerated for  the  lime,  ingenuity,  and  expense 
bestowed  upon  it,  and  the  introduction  of  it 
into  use?  If  not,  has  his  failure  to  be  so  re- 
numerated  arisen  from  neglect  or  fault  on  his 
part? 

4.  What  will  be  the  effect  of  the  proposed 
extension  upon  the  public  interests? 

No  proof  will  be  required  from  the  appli- 
cant upon  the  first  question  unless  the  invention 
is  assailed  upon  those  points  by  opponents. 

To  enable  the  commissioner  to  come  to  a 
correct  conclusion  in  regard  to  the  second  point 
of  inquiry,  the  applicant  must,  if  possible,  pro- 
cure the  testimony  of  persons  disinterested  in 
the  invention,  which  testimony  should  be  taken 
under  oath.  '  This  testimony  must  distinguish 
carefully  between  the  specific  devices  covered  by 


PATENTS. 


59» 


the  claims  of  the  faient  and  the  gefieral  ma- 
chine in  which  those  devices  may  be  incorpo- 
rated. 

In  regard  to  the  third  point  of  inquiry,  in 
addition  to  his  own  oalh,  showing  his  receipts 
and  expenditures  on  account  of  the  invention, 
the  applicant  must  show,  by  testimony  under 
oath,  that  he  has  taken  all  reasonable  measures 
to  introduce  his  invention  into  general  use; 
and  that,  without  neglect  or  fault  on  his  part, 
he  has  failed  to  obtain  from  the  use  and  sale 
of  the  invention  a  reasonable  remuneration  for 
the  time,  ingenuity,  and  expense  bestowed  on 
the  same,  and  the  introduction  of  it  into  use. 
Tafcinfi:  Testimony  and  Giving:  Notice. 

74.  In  case  of  opposition  to  the  extension 
of  a  patent  by  any  person,  both  parties  may 
take  testimony,  each  giving  reasonable  notice 
to  the  other  of  the  time  and  place  of  taking 
said  testimony,  which  shall  be  taken  according 
to  the  rules  hereinafter  prescribed. 

Remonstrants,  Their  Duties  and 
Prlvlletijres. 

75.  Any  person  desiring  to  oppose  an  exten- 
sion must  serve  his  notice  of  opposition,  and 
file  his  reasons  therefor,  at  least  ten  days  before 
the  day  fixed  for  the  closing  of  testimony ;  but 
parties  who  have  not  entered  formal  opposition 
in  time  to  put  in  testimony  may,  at  the  discre- 
tion of  the  commissioner,  be  permitted  to  ap- 
pear on  the  day  of  hearing,  and  make  argu- 
ment upon  the  record  in  opposition  to  the  grant 
of  the  extension.  But  in  such  case  good  cause 
for  the  neglect  to  make  formal  opposition  must 
be  shown. 

Time  of  Taking  Testimony. 

76.  In  contested  cases  no  testimony  will  be 
received,  unless  by  consent,  which  has  been 
taken  within  thirty  days  next  after  the  filing  of 
the  petition  for  the  extension. 

Service   of  Notice   to  Take  Testimony. 

77.  Service  of  notice  to  take  testimony  may 
be  made  upon  applicant,  upon  the  opponent, 
npon  the  attorney  of  record  of  either,  or,  if 
there  be  no  attorney  of  record,  upon  any  at- 
torney or  agent  who  takes  part  in  the  service 
of  notice,  or  in  the  examination  of  the  wit- 
nesses of  either  party.  Where  notice  to  take 
testimony  has  already  been  given  to  an  op- 
ponent, and  a  new  opponent  subsequently  gives 
notice  of  his  intention  to  oppose,  the  examina- 
tion need  not  be  postponed,  but  notice  thereof 
may  be  given  to  such  subsequent  opponent  by 
mail  or  by  telegraph.  This  rule,  however, 
does  not  apply  to  ex-parte  examinations,  or 
those  of  which  no  notice  has  been  given  when 
notice  of  opposition  is  served. 

Taklner  Testimony  and  Hearing'.    Ref> 
erence  to  Examiner. 

78.  In  the  notice  of  the  application  for  an 
extension  a  day  will  be  fixed  for  the  closing  of 
testimony,  and  the  day  of  hearing  will  also  be 
named.  Application  for  a  postponement  of  the 
day  of  hearing,  or  for  further  time  for  taking 
testimony,  must  be  made  and  supported  accord- 
ing to  the  same  rules  as  are  to  be  observed  in 
other  contested  cases;  but  they  will  not  be 
granted  in  such  a  manner  as  to  cause  a  risk  of 

88 


preventing  a  decision  prior  to  the  expiration 
of  the  patent.  Immediately  upon  the  closing 
of  the  testimony  the  application  will  be  referred 
to  the  examiner  in  charge  of  the  class  to  which 
the  invention  belongs  for  the  report  required 
by  law ;  and  said  report  shall  be  made  not  less 
than  five  days  before  the  day  of  hearing.  As 
this  report  is  intended  for  the  information  of 
the  commissioner,  neither  the  parties  nor  their 
attorneys  will  be  permitted  to  make  oral  argu- 
ments before  the  examiner.  In  contested  cases 
briefs  are  deemed  desirable,  and  these  should 
always  be  filed  at  least  five  days  before  the  day 
of  hearing. 

DESIONS. 
Designs,  ^hat  are  Patentable. 

79.  A  patent  for  a  design  may  be  granted  to 
any  person,  whether  citizen  or  alien,  who,  by 
his  own  industry,  genius,  efforts,  and  expense, 
has  invented  or  produced  any  new  and  original 
design  for  a  manufacture,  bust,  statue,  alto-re- 
lievo, or  bas-relief;  any  new  and  original  de- 
sign for  the  printing  of  woollen,  silk,  cottqn,  or 
other  fabrics ;  any  new  and  original  impres- 
sion, ornament,  pattern,  print,  or  picture,  to  be 
printed,  painted,  cast,  or  otherwise  placed  on 
or  worked  into  any  articles  of  manufacture ;  or 
any  new,  useful,  and  original  shape  or  configu- 
ration of  any  article  of  manufacture,  the  same 
not  having  been  known  or  used  by  others  be- 
fore his  invention  or  production  thereof,  or 
patented  or  described  in  any  printed  publica- 
tion, upon  payment  of  the  duty  required  by 
law,  and  other  due  proceedings  had  the  same 
as  in  cases  of  inventions  or  discoveries. 

How  liOng  the  Patents  Inure. 

80.  Patents  for  designs  are  granted  for  the 
term  of  three  and  one-half  years,  or  for  seven 
years,  or  for  fourteen  years,  as  the  applicant 
may,  in  his  application,  elect. 

Proceedings  in  Applications. 

81.  The  proceedings  in  applications  for  pat- 
ents for  designs  are  substantially  the  same  as 
for  other  patents.  The  specification  must  dis- 
tinctly point  out  the  characteristic  features  of 
the  design,  and  carefully  distinguish  between 
what  is  old  and  what  is  held  to  be  new.  The 
claims  also  should  be  as  distinct  and  specific  as 
in  the  case  of  patents  for  inventions  or  discov- 
eries. 

Models,  When  not  Required. 

82.  When  the  design  can  be  sufficiently  rep- 
resented by  drawings  or  photographs  a  model 
will  not  be  required. 

Illustrations,  How  Prepared. 

83.  Whenever  a  photograph  or  an  engraving 
is  employed  to  illustrate  the  design,  it  must  be 
mounted  upon  a  thick  Bristol-board  or  draw- 
ing-paper, ten  by  fifteen  inches  in  size;  and* 
the  applicant  will  be  required  to  furnish  ten 
extra  copies  of  such  photograph  or  engraving 
(not  mounted),  of  a  size  not  exceeding  seven 
and  a  half  inches  by  eleven.  Negatives  will 
no  longer  be  required. 

Whenever  the  design  is  represented  by  a 
drawing,  each  of  the  ten  copies  must  be  made 
to  confonn  as  nearly  as  possible  to  the  rules  laid 
down  for  drawings  of  mechanical  inventions. 


59* 


PATENTS 


TRADE-MARKS. 

Rnles— Act  of  Marcli  3,  ISSl. 
Wbo  may  obtain  Registration. 

X.  (a.)  Any  person,  firm,  or  corporation  domiciled 
in  the  United  States  or  located  in  any  foreign  country 
which,  by  treaty,  convention,  or  law,  affords  similar 
privileges  to  citizens  of  the  United  States,*  and  who  is 
entitled  to  the  exclusive  use  of  any  trade-mark  and 
uses  the  <.ame  in  commerce  with  foreign  nations  or  with 
Indian  tribes. 

(6.)  Any  citizen  or  resident  of  this  country  wishing 
the  protection  of  his  trade-mark  in  any  foreign  country 
the  laws  of  which  require  registration  in  the  United 
States  as  a  condition  precedent. 

Statutory  ReqairementK. 

3.  Every  applicant  for  registration  of  a  trade-mark 
must  cause  to  be  recorded  in  the  Patent  Office — 

(a  )  The  name,  domicile,  and  place  of  business  or 
location  of  the  firm  or  corporation  desiring  the  protec- 
tion of  the  trade-mark,  and  the  residence  and  citizen- 
ship of  individual  applicants. 

(6.)  The  class  of  merchandise  and  the  particular 
description  of  goods  comprised  in  such  class  to  which 
the  trade-mark  has  been  appropriated 

{c.)  A  description  of  the  trade-mark  itself,  with  fac- 
similes thereof,  and  the  mode  in  which  it  has  been  ap- 
plied and  used 

(J  )  The  length  of  time  during  which  the  trade-mark 
has  been  used  by  the  applicant  on  the  class  of  goods 
described. 

3.  A  fee  of  twenty-five  dollars  is  required  on  filing 
each  application,  except  in  the  cases  hereinafter  named. 
(See  pars.  16  and  17.) 

The  Application. 

4.  An  application  for  the  registration  of  a  trade-mark 
will  consist  of  a  statement  and  specification,  a  declara- 
tion or  oath,  and  the  fac-simile,  with  duplicates  thereof 
The  statement  and  declaration  should  be  written  on  one 
side  of  the  paper  only 

5.  These  should  be  preceded  by  a  letter  of  advice 
requestmg  registration  and  signed  by  the  applicant 

6.  The  statement  should  announce  the  full  name, 
citizenship,  domicile,  residence,  and  place  of  business 
of  the  applicant  (or  if  the  applicant  be  a  corporation, 
under  the  laws  of  what  State  or  nation  incorporated),  with 
a  full  and  clear  specification  of  the  trade-mark,  particu- 
larly discriminating  between  its  essential  and  non-essen- 
tial features.  It  should  also  state  from  what  time  the 
trade-mark  has  been  used  by  the  applicant,  the  class  of 
merchandise,  and  the  particular  goods  comprised  in 
such  class  to  which  the  trade-mark  is  appropriated,  and 
the  manner  in  which  it  has  been  applied  to  the  goods 

7.  The  declaration  should  be  in  the  form  of  an  oath 
by  the  person,  or  by  a  member  of  the  firm,  or  by  an 
officer  of  the  corporation  making  the  application,  to  the 
effect  that  the  party  has  at  the  time  of  filing  his  appli- 
cation a  right  to  the  use  of  the  trade-mark  described  in 
the  statement;  that  no  other  person,  firm,  or  corpora- 
tion has  a  right  to  such  use,  either  in  the  identical  form 
or  m  such  near  resemblance  thereto  as  might  be  calcu- 
lated to  deceive  ;  that  such  trade-mark  is  used  in  law- 
ful commerce  with  foreign  nations  or  Indian  tribes,  one 
or  more  of  which  should  be  particularly  named ;  and 
that  it  is  truly  represented  in  the  fac-simile  for  registry. 

8.  This  oath  may  be  taken  within  the  United  States, 
before  a  notary  public,  justice  of  the  peace,  or  the  judge 
or  clerk  of  any  court  of  record.  In  any  foreign  country 
It  may  be  taken  before  the  secretary  of  a  legation  or 
consular  officer  of  the  United  States,  or  before  any  per- 
son duly  qualified  by  the  laws  of  the  country  to  admin- 
ister oaths,  whose  official  character  shall  be  certified  by 
a  representative  of  the  U.  S.  having  an  official  seal. 

Fac>siniiles  to  be  Filed. 

9.  Where  the  trade-mark  can  be  represented  by  a 
fac-simile  which  conforms  to  the  rules  for  drawings  of 
mechanical  patents,t  such  a  drawing  may  be  furnished 
by  applicant,  and  the  additional  copies  will  be  produced 
by  the  photolithographic  process  at  the  expense  of  the 
office.  Or  the  applicant  may  furnish  one  fac-simile  of 
the  trade-mark,  mounted  on  a  card  ten  by  fifteen  inches 
ill  size,  and  ten  additional  copies  upon  flexible  paper, 
not  mounted ;  but  in  all  cases  the  sheet  containing  the 
mounted  fac-simile  or  the  drawing  must  be  signed  by 

•  The  following  countries  have  treaties  with  the  United  States 
at  this  time,  viz.:  Russia.  Belgium,  France,  Austria,  the  Ger- 
man Empire,  and  Great  Britain. 

t  These  rules  are  furnished  on  application  by  letter  to  the 
CfftniniMlffiiCT 


the  applicant  or  his  authorized  attontey,  and  autlMab 
catea  by  two  witnesses. 

Proceeding's  In  the  Office. 

10.  All  applications  for  registration  are  considered  ic 
the  first  instance  by  the  trade-mark  examiner  An  ad- 
verse decision  by  such  examiner  upon  the  applicant's 
right  to  registration  will  be  reviewed  by  the  Commis- 
sioner in  person  upon  petition  without  fee. 

11.  No  trade-mark  will  be  registered  unless  it  shall  be 
made  to  appear  that  the  same  is  used  as  such  by  the 
applicant  in  commerce  with  foreign  nations  or  with 
Indian  tribes,  or  is  within  the  provisions  of  a  treaty, 
convention,  or  declaration  with  a  foreign  power,  nor 
which  is  merely  the  name  of  the  applicant,  nor  which 
is  identical  with  a  known  or  registered  trade-mark 
owned  by  another  and  appropriated  to  tlie  same  class 
of  merchandise,  or  which  so  nearly  resembles  some 
other  person's  lawful  trade-mark  as  to  be  likely  to  cause 
confusion  in  the  public  mind  or  deceive  purchasers. 

la.  In  case  of  conflicting  applications  for  registration, 
or  in  any  dispute  as  to  the  right  to  use  which  may  arise 
between  an  applicant  and  a  prior  regiMrant,  the  office 
will  declare  an  interference,  in  order  that  the  parties 
may  have  opportunity  to  prove  priority  of  adoption  or 
right ;  and  the  proceedings  on  such  interference  will 
follow,  as  nearly  as  practicable,  the  practice  in  inter- 
ferences upon  applications  for  patents  ,  but  each  appli- 
cant and  registrant  will  be  held  to  the  dale  of  adoption 
alleged  in  the  statement  filed  with  his  application  On 
the  petition  of  any  party  dissatisfied  with  the  decision 
of  the  examiner  of  interferences  the  case  wil'.  be  reviewed 
by  the  Commissioner  without  fee. 

13.  When  these  requirements  have  been  complied 
with,  and  the  office  has  adjudged  the  trade -mark  law- 
fully registrable,  a  certificate  will  be  issued  by  the  Com- 
missioner, under  seal  of  the  Interior  Departmen',  to  the 
eflfect  that  applicant  has  complied  with  the  law,  and  that 
he  is  entitled  to  the  protection  of  his  trade-mark  in  such 
case  made  and  provided  Attached  to  the  certit«<;ate 
will  be  a  fac-simile  of  the  trade  mark  and  a  printed  copy 
of  the  statement  and  declaration. 

14.  The  protection  for  such  trade-mark  will  remain 
in  force  for  thirty  years,  and  may,  upon  the  payment  of 
a  second  fee,  be  renewed  for  thirty  years  longer,  except 
in  cases  where  such  trade-mark  is  claimed  for  and  ap- 
plied to  articles  not  manufactured  in  this  country,  and 
in  which  it  receives  protection  under  the  laws  of  any 
foreign  country  for  a  shorter  period,  in  which  case  it 
will  cease  to  have  force  in  this  country,  by  virtue  of  the 
registration,  at  the  same  time  that  the  trade-mark  ceases 
to  be  exclusive  property  elsewhere. 

15.  The  right  to  the  use  of  any  trade-mark  is  assign- 
able by  an  instrument  in  writing,  and  such  assignment 
of  a  registered  trade-mark  must  be  recorded  in  the 
Patent  Office  within  sixty  days  after  its  execution,  in 
default  of  which  it  may  be  void  as  against  any  subse- 
quent purchaser  or  mortgagee  for  a  valuable  considera- 
tion, without  notice.  No  particular  form  of  assignment 
or  conveyance  is  prescribed,  but  the  trade-mark  must 
be  identified  by  the  certificate  number. 

16.  Owners  of  trade-marks  for  which  protection  has 
been  sought  by  registering  them  in  the  Patent  Office 
under  the  Act  of  July  8,  1870  (declared  unconstitutional 
by  the  Supreme  Court  of  the  United  States),  may  regis- 
ter the  same  for  the  same  goods,  without  fee,  on  com- 
pliance with  the  foregoing  requirements.  With  each 
application  of  this  character  a  specific  reference  to  the 
date  and  number  of  the  former  certificate  is  required. 

17.  Applicants  whose  cases  were  filed  under  the  act 
of  1870,  either  prior  to  or  since  the  decision  of  the  Su- 
preme Court  tfeclarine  it  unconstitutional,  which  are 
now  pending  before  the  office,  are  advised  to  prepare 
applications  in  conformity  with  the  law  and  foregoing 
rules.  On  the  receipt  of  such  an  application,  referring 
to  the  date  of  the  one  formerly  filed,  all  fees  paid  there- 
on will  be  duly  applied.  Those  who  have  paid  only 
^10  as  a  first  fee  are  advised  that  the  law  does  not  pro., 
vide  for  a  division  of  the  legal  fee  of  $25,  and  that  the 
remainder  of  the  entire  fee  is  required  before  the  appli- 
cation can  be  entertained. 

FOREIGN  PATENTS. 

Forelgrn  Patents,  Their  Effect  on 

Home  Patents. 

89.  The  taking  out  of  a  patent  in  a  foreign 

country  does  not  prejudice  a  patent  previously 

obtained  here ;  nor  does  it  prevent  obtaining  a 

patent  here  subsequently,  unless  the  inventioa 


PATENTS. 


593 


ahall  have  been  introduced  into  public  use  in 
the  United  States  for  more  than  two  years 
prior  to  the  application ;  but  when  a  patent  is 
taken  out  in  this  country  for  an  invention  pre- 
viously patented  abroad,  the  American  patent 
will  expire  at  the  same  time  with  the  foreign 
patent,  or  if  there  be  more  than  one,  at  the 
same  time  with  the  one  having  the  shortest 
term ;  but  in  no  case  shall  it  be  in  force  more 
than  seventeen  years. 

Oatb    when   Invention  Is   Patented 
Abroad. 

■90.  When  application  is  made  for  a  patent 
for  an  invention  which  has  been  already 
patented  abroad,  the  inventor  will  be  required 
to  make  oath  that,  according  to  the  best  of  his 
knowledge  and  belief,  the  same  has  not  been 
in  public  use  in  the  United  States  for  more  than 
two  years  prior  to  the  application  in  this  country. 

statement  Required  of  Applicant. 

gi.  An  applicant  whose  invention  has  been 
patented  abroad  should  state  the  fact  that  a 
foreign  patent  has  actually  been  obtained,  giv- 
ing its  date,  and  if  there  be  more  than  one,  the 
date  of  each. 

€ATEATS. 

Caveat,  Filing:  and   Proceeding's 

Tbereou. 

92.  Any  citizen  of  the  United  States,  or 
alien  who  has  resided  for  one  year  last  past  in 
the  United  States,  and  has  made  oath  of  his 
intention  to  become  a  citizen  thereof,  can  file  a 
caveat  in  the  secret  archives  of  the  patent  office 
on  the  payment  of  a  fee  of  ten  dollars  therefor. 
And  if,  at  any  time  within  one  year  thereafter, 
another  person  applies  for  a  patent  with  which 
such  caveat  would  in  any  manner  interfere, 
such  application  will  be  suspended,  and  notice 
thereof  will  be  sent  to  the  person  filing  the 
caveat,  who,  if  he  shall  file  a  complete  applica- 
tion within  the  prescribed  time,  will  be  entitled 
to  an  interference  with  the  previous  applica- 
tion, for  the  purpose  of  proving  priority  of  in- 
vention, and  obtaining  the  patent,  if  he  be  ad- 
judged the  prior  inventor.  The  caveator,  if 
he  would  avail  himself  of  his  caveat,  must  file 
his  application  within  three  months  from  the 
day  on  which  the  notice  to  him  is  deposited  in 
the  post-office  at  Washington,  adding  the  regu- 
lar time  for  the  transmission  of  the  same  to 
him ;  and  the  day  when  the  time  for  filing 
expires  will  be  mentioned  in  the  notice  or 
indorsed  thereon. 

Notice  of  Conflicting  Application 
Renewing:  Caveats. 

93.  The  caveator  will  not  be  entitled  to 
notice  of  any  application  pending  at  the  time 
of  filing  his  caveat,  nor  of  any  application  filed 
after  the  expiration  of  one  year  from  the  date 
of  filing  the  caveat ;  but  he  may  renew  his 
caveat  at  the  end  of  one  year  by  paying  a 
second  caveat  fee  of  ten  dollars,  wliich  will 
continue  it  in  force  for  one  year  longer,  and 
to  on  from  year  to  year  as  long  as  he  may 
desire.  If  a  caveat  is  not  renewed  at  the  end 
of  the  year  for  which  it  was  filed,  it  will  no 
longer  be  regarded  as  in  the  secret  archives  of 
ftie  office. 


Oath  of  Caveator. 

94.  No  caveat  can  be  filed  in  the  secret 
archives  of  the  office  unless  accompanied  by 
an  oath  of  the  caveator  that  he  is  a  citizen  of 
the  United  States,  or,  if  he  is  an  alien,  that  he 
has  resided  for  orte  year  last  past  within  the 
United  States,  and  has  made  oath  of  his  inten- 
tion to  become  a  citizen  thereof;  nor  unless  the 
applicant  also  states,  under  oath,  that  he  be- 
lieves himself  the  original  and  first  inventor  of 
the  art,  machine,  or  improvement  set  forth  in 
his  caveat. 

Description  of  Invention  Required. 

95.  A  caveat  need  not  contain  as  particular 
a  description  of  the  invention  as  is  requisite  in 
a  specification ;  but  still  the  description  should 
be  sufficiently  precise  to  enable  the  office  to 
judge  whether  there  is  a  probable  interference 
when  a  subsequent  application  is  filed.  A 
caveat,  equally  with  an  application,  must  be 
limited  to  a  single  invention  or  improvement. 

No  Altering:  or  Withdrawing:  Papers 
Allowed. 

96.  Caveat  papers  cannot  be  withdrawn 
from  the  office  nor  undergo  alteration,  after 
they  have  once  been  filed;  nor  will  additional 
caveat  papers  relative  to  the  same  invention  be 
received,  except  upon  the  payment  of  an  addi- 
tional fee;  but  the  caveator,  or  any  person 
properly  authorized  by  him,  can  at  any  time 
obtain  copies  of  the  papers  at  the  usual  rates. 

I>rawing:s  Required. 

97.  When  practicable,  the  caveat  must  be 
accompanied  by  full  and  accurate  drawings, 
separate  from  the  specifications,  well  executed 
on  tracing-muslin  or  paper  that  may  be  folded, 
and  of  the  same  size  as  demanded  in  drawings 
for  patents. 

ASSIGNMENTS. 
Patents  and  Trade-Marks  Assig:nable. 

98.  A  patent  or  trade-mark  may  be  assigned, 
either  as  to  the  whole  interest  or  any  undivided 
part  thereof,  by  an  instrument  of  writing.  No 
particular  form  of  words  is  necessary  to  consti- 
tute a  valid  assignment,  nor  need  the  instru- 
ment necessarily  be  sealed,  witnessed,  or 
acknowledged. 

Iictters,  etc..  Respecting:  Assigpnmenls 
not  Recorded. 

99.  Letters,  copies  of  assignments,  or  ex 
parte  statements  in  relation  to  assignments  are 
not  proper  subject-matters  for  record. 

Assignment  to  be  Recorded  before 
Patent  Issues  to  Assig:nee. 

100.  In  every  case  where  it  is  desired  that 
the  patent  shall  issue  to  an  assignee,  the  assign- 
ment must  be  recorded  in  the  patent  office  at  a 
date  not  later  than  the  day  on  which  the  final 
fee  is  paid. 

Correspondence  to  be  with  Assig:nees. 

loi.  When  the  patent  is  to  issue  in  the 
name  of  the  assignee,  the  entire  correspond' 
ence  will  be  with  him  or  his  authorized 
agent. 

Orants  of  Territorial  Ri8:hts. 

102.  A  patentee  may  not  only  assign  the 
whole  or  an  undivided  interest  in  his  patent, 
but  he  may  grant  and  convey  an  exclusive 
right  under  his  patent  to  the  whole  or  an/ 


594 


PATENTS. 


specified  portion  of  the  United  States  by   an 

instrument  in  writing. 

Asslgrnmenta,  etc..  When  to  be  Recorded. 

103.  Every  assignment  or  grant  of  an  exclu- 
sive territorial  right,  as  well  as  of  an  interest  in 
a  patent  or  trade-mark,  mu»t  be  recorded  in  the 
patent  office — if  a  patent,  within  three  months, 
if  a  trade-mark,  within  sixty  days,  from  the 
execution  thereof;  otherwise  it  will  be  void  as 
against  any  subsequent  purchaser  or  mortgagee 
for  a  valuable  consideration,  without  notice; 
but,  if  recorded  after  that  time,  it  will  protect 
the  assignee  or  grantee  against  any  such  subse- 
quent purchaser,  whose  assignment  or  grant  is 
not  then  on  record. 

lilcenses,  etc..  Need  not  be  Recorded. 

104.  The  patentee  may  convey  separate 
rights  under  his  patent  to  make,  or  to  use  or  to 
sell  his  invention,  or  he  may  convey  territorial 
or  shop  rights  which  are  not  exclusive.  Such 
conveyances  are  mere  licenses,  and  need  not 
be  recorded. 

Receipt  of  Asslg:nnients,  «tc.,  not  Ac- 
knowlcdg'ed. 

105.  The  receipt  of  assignments  is  not  gen- 
erally acknowledged  by  the  office;  they  will  be 
recorded  in  their  turn  within  a  few  days  after 
their  reception,  and  then  transmitted  to  the 
person  entitled  to  them. 

OFFICE  FEES,   AND  HOW  PAYABLE. 
Fees,  etc..  Payable  In  Advance. 

106.  Nearly  all  the  fees  payable  to  the 
patent  office  are  positively  required  by  law  to 
be  paid  in  advance ;  that  is,  upon  making 
application  for  any  action  by  the  office  for 
which  a  fee  is  payable.  For  the  sake  of  uni- 
formity and  convenience,  the  remaining  fees 
will  be  required  to  be  paid  in  the  same 
manner. 

Tariff*  of  Fees. 

107.  The  following  is  the  tariff  of  fees  estab- 
lished by  law : 

On  filing  every  application  for  a  design 

patent  for  three  years  and  six  months    .  $10  00 

On  filing   every   application   for  a  design 

patent  for  seven  years         .        .        .        .     15  00 

On  filing  every  application  for  a  design 
patent  for  fourteen  years    .        .        .        .    30  00 

On  filing  every  caveat 10  00 

On  filing  every  application  for  a  patent  for 

an  invention  or  discovery  .  .     15  00 

On  issuing  each  original  patent  for  an  in- 
vention or  discovery »o  00 

On  filing  a  disclaimer 10  00 

On  filing  every  application  for  a  reissue     .     30  00 

On  filing  every  application  for  a  division 
of  a  reissue 30  00 

On  filing  every  application  for  an  extension    50  00 

On  the  grant  of  every  extension  .  .5000 

On  filing  the  first  appeal  from  a  primary 
examiner  to  examiners-in-chief  .    xo  00 

On  filing  an  appeal  to  the  Commissioner 
from  examiners-in-chief     ....     ao'oo 

On  depositing  a  trade-mark  for  registra- 
tion   35  00 

On  depositing  a  label  for  registration  6  00 

For  every  certified  copy  of  a  patent  or 
other  instrument,  for  every  100  words    .  xo 

For  certified  copies  of  drawings,  the  reas- 
onable cost  of  making  them. 

For  recording  every  assignment  of  300 
words  or  under x  00 

For  recording  every  assignment,  if  over 
300  and  not  over  1,000  words     .  .       a  00 

For  recording  every  assignment,  if  over 
1,000  >vsrds 3  00 


For  uncertified  copies  of  the  specification* 
and  accompanying  drawings  of  patents 
issued  since  July  i,  X871 : 

Single  copies 9% 

Twenty  copies  or  more,  whether  of  one 
or  several  patents,  per  copy       ...  10 

For  uncertified  copiesof  the  specifications 
and  drawings  of  patents  issued  prior  to 
July  I,  1871,  the  reasonable  cost  of  mak- 
ing the  same. 

Orders  for  Copies  mnst  Specify  Par- 
ticulars. 

In  ordering  copies  of  any  drawing  or  speci- 
fication the  name  of  the  inventor  and  patentee, 
the  title  of  the  invention,  and  the  date  of  the 
patent  must  be  given ;  and  for  any  search  re- 
quired in  consequence  of  the  omission  of  any 
of  these  data,  a  charge  of  one  dollar  may  be 
made.  So,  in  ordering  a  copy  of  an  assign- 
ment, the  /Her  and  page  of  the  record,  as  well 
as  the  name  of  the  inventor,  must  be  given, 
otherwise  an  extra  charge  will  be  made  for  the 
time  consumed  in  making  any  search  that  may 
become  necessary. 
Final  Fee,  Patent  Forfeited  If  not  Paid. 

108.  The  final  fee  upon  a  patent  must  be 
paid  within  six  months  after  the  time  at  which 
the  application  was  allowed  and  notice  thereof 
mailed  to  the  applicant,  or  his  agent;  and  if 
the  final  fee  for  such  patent,  or  a  certificate 
of  deposit  for  the  amount,  be  not  received  at 
the  office  within  that  time,  the  patent  will  be 
forfeited,  and  the  invention  therein  described 
will  become  public  property,  as  against  the  ap- 
plicant therefor,  unless  he  shall  make  a  new 
application  within  two  years  from  the  date  of 
notice  of  the  original  allowance. 

Sloney  for  Fees,  How  Paid. 

log.  The  money  for  the  payment  of  fees 
may  be  paid  to  the  commissioner,  or  to  the 
treasurer  or  any  of  the  assistant  treasurers  of 
the  United  States,  or  to  any  of  the  designated 
depositaries,  national  banks,  or  receivers  of 
public  money,  designated  by  the  secretary  of 
the  treasury  for  that  purpose,  who  shall  give 
the  depositor  a  receipt  or  certificate  of  deposit 
therefor,  which  shall  be  transmitted  to  the  pat- 
ent office.  When  this  cannot  be  done  without 
much  inconvenience,  the  money  may  be  re- 
mitted by  mail,  and  in  every  such  case  the 
letter  should  state  the  exact  amount  enclosed. 
Letters  containing  money  may  be  registered. 
Post-office  money-orders  now  afford  a  safe  and 
convenient  mode  of  transmitting  fees.  All 
such  orders  should  be  made  payable  to  the 
"  commissioner  of  patents." 

The  weekly  issue  will  close  on  Saturday  at 
12  o'clock. 

When  patents  are  to  issue  to  assignees  the 
assignment  must  be  on  record  before  the  clos- 
ing of  the  issue,  and  the  request  to  issue  to  an 
assignee  must  be  made  in  writing  at  the  time 
of  paying  the  final  fee. 

If  Sent  by  Mall,  is  at  Owner's  Risk. 

no.  Ail  money  sent  by  mail,  either  to  or 
from  the  patent  office,  will  be  at  the  risk  of  the 
owner.  In  no  case  should"  money  be  sent  en- 
closed with  models.  All  payments  to  or  by 
the  office  must  be  paid  in  specie,  treasury  notes, 


PATENTS. 


SOS 


national-bank  notes,  certificates  of  deposit,  or 
post-office  money-orders. 

REPAYMENT  OF  MOXET. 
Refandiii^  Money  Paid  by  9Iistake. 

111.  Money  paid  by  actual  mistake  will  be 
refunded,  but  a  mere  cliange  of  purpose  after 
tlie  payment  of  money  will  not  entitle  a  party 
to  demand  such  return. 

POSTAGE. 
PoNtagre,  When  to  be  Prepaid. 

112.  After  the  first  day  of  July,  1873,  the 
postage  on  all  matter  sent  to  the  patent  office 
by  mail  must  be  prepaid  in  full,  otherwise  it 
will  not  be  received. 

TAKIXO    AND    TRAXSMITTINO    TES- 
TIMONY. 
Taking'  Testimony. 

113.  In  extension,  interference,  and  other 
contested  cases,  the  following  rules  have  been 
established  for  taking  and  transmitting  evi- 
dence : 

Notice  of,  to  be  Given. 

1.  Before  the  deposition  of  a  witness  or  wit- 
nesses is  taken  by  either  party,  due  notice  shall 
be  given  to  the  opposite  party,  as  hereinafter 
provided,  of  the  time  and  place  when  and 
where  such  deposition  or  depositions  will  be 
taken,  with  the  names  and  residences  of  the 
witness  or  witnesses  then  and  there  to  be  ex- 
amined, so  that  the  opposite  party,  either  in 
person  or  by  attorney,  shall  have  full  opportu- 
nity to  cross-examine  the  witness  or  witnesses : 
Provided,  That  if  the  opposite  party,  or  his 
counsel,  be  actually  present  at  the  taking  of 
testimony,  witnesses  not  named  in  the  notice 
may  be  examined,  but  not  otherwise;  and  ihat 
neither  party  shall  take  testimony  in  more  than 
one  place  at  the  same  time,  nor  so  nearly  at 
the  same  time  as  not  to  allow  reasonable  time 
to  travel  from  one  place  of  examination  to  the 
other. 

How  to  be  Served. 

2.  The  notice  for  taking  testimony  must  be 
served  by  delivering  a  copy  to  the  adverse 
party,  or  his  agent,  or  altorney  of  record  or 
counsel,  as  provided  in  Rule  77,  or  by  leaving 
a  copy  at  the  party's  usual  place  of  I'esidence 
with  some  member  of  the  family  who  has  ar- 
rived at  the  years  of  discretion,  or  by  leaving 
the  same  at  the  office  of  the  attorney;  and 
such  notice  shall,  with  proof  of  service  of  the 
same,  and  a  certificate,  duly  sworn  to,  giving 
the  manner  and  time  of  viaking  the  service, 
be  attached  to  the  deposition  or  depositions, 
whether  the  party  cross-examine  or  not. 

How  to  Certify  and  Forward  Deposi- 
tion. 

3.  The  magistrate  before  whom  the  deposi- 
tion is  taken  must  append  thereto  his  certificate, 
stating  the  time  and  place  at  which  it  was  taken, 
the  name  of  the  witness,  the  administration  of 
the  oath,  at  whose  request  the  testimony  was 
taken,  the  occasion  upon  which  it  is  intended 
to  be  used,  the  names  of  the  adverse  party  (if 
any),  and  whether  they  were  present;  a,nd 
immediately  upon  the  close  of  the  examination 
he  shall  securely  seal  up  all  the  evidence,  etc., 
and  forward  the  same  forthwith  to  the  com- 
missioner of  patents,  making  upoa  the  enve- 


lope a  certificate,  giving  the  title  of  the  case 
and  the  date  of   sealing  and  addressing  the 
package. 
Ex-parte  Testimony  in  Extensions. 

4.  In  cases  of  extension  w|iere  no  opposition 
is  made,  ex-parte  testimony  will  be  received 
from  the  applicant ;  and  such  testimony  as  may 
have  been  taken  by  the  applicant  prior  to  notice 
of  opposition  will  be  received,  unless  taken 
within  thirty  days  after  filing  the  petition  for 
the  extension :  Provided,  That  immediately 
upon  receiving  notice  of  opposition  the  appli- 
cant shall  give  notice  to  the  opposing  party  or 
parties  of  the  names  and  residences  of  the 
witnesses  whose  testimony  has  thus  been  taken. 

Proceeding's  if  Testimony  cannot  be 
Obtained. 

5.  If  either  party  shall  be  unable,  for  good 
and  sufficient  reasons,  to  procure  the  testimony 
of  a  witness  or  witnesses  within  the  stipulated 
time,  it  shall  be  the  duty  of  said  party  to  give 
notice  of  the  same  to  the  commissioner  of  pat- 
ents, accompanied  by  statements,  under  oath, 
of  the  cause  of  such  inability,  and  of  the 
names  of  such  witnesses,  and  of  the  facts  ex- 
pected to  be  proved  by  them,  and  of  the  steps 
which  have  been  taken  to  procure  said  testi- 
mony, and  of  the  time  or  times  when  efforts 
have  been  made  to  procure  it ;  which  notice  to 
the  commissioner  shall  be  received  by  him 
previous  to  the  day  of  hearing  aforesaid. 
Copies  of  the  papers,  and  notice  of  any  motion 
based  upon  them,  must  also  be  served  upon  the 
opposite  party,  as  provided  in  Rule  50. 

Introducing'   Caveats,   Records,   and 
Books. 

6.  Whenever  a  party  relies  upon  a  caveat  to 
establish  the  date  of  his  invention,  the  caveat 
itself,  or  a  certified  copy  thereof,  must  be  filed 
in  evidence,  with  due  notice  to  the  opposite 
party,  as  no  notice  can  be  taken  by  the  office 
of  a  caveat  filed  in  its  secret  archives. 

The  official  records  of  the  office,  and  books 
and  documents  contained  in  the  library,  and 
other  books  in  general  circulation,  may  be  used 
at  the  hearing;  but  notice  of  any  special  mat- 
ter contained  therein,  upon  which  a  party  relies, 
should  be  given  to  the  opposite  party  previous 
to  the  day  set  for  closing  testimony. 

Depositions,  How  Drawn  Up. 

114.  The  folios  of  each  deposition  must  be 
numbered  consecutively,  and  the  name  of  the 
witness  be  plainly  and  conspicuously  written  at 
the  top  of  each  folio.  It  is  deemed  desirable 
that  the  testimony  be  taken  upon  legal-cap 
paper,  with  a  wide  margin  on  the  left-hand 
side  of  the  page,  and  that  only  one  side  of  the 
sheet  be  written  upon. 

Form  of  Testimony. 

115.  The  testimony  may  be  taken  in  narra- 
tive form ;  but,  if  either  party  desires  it,  it 
must  be  taken  in  answer  to  interrogatories, 
having  the  questions  and  answers  committed  to 
writing  in  their  regular  order  by  the  magistrate, 
or,  unless  by  consent,  by  some  person  not  in- 
terested in  the  case,  either  as  a  party  thereto  or 
as  attorney.  The  deposition,  when  complete, 
must  be  signed  by  the  witness. 


596 


PATENTS. 


KxcIndfiiK  nepoHltlonii. 

Ii6.  No  evidence  touching  the  matter  at 
issue  will  be  considered  upon  the  day  of  hear- 
ing which  shall  not  have  been  taken  and  filed 
in  compliance  with  these  rules ;  but  no  notice 
will  be  taken  of  any  merely  formal  or  technical 
objection  which  shall  not  appear  to  have 
wrought  a  substantial  injury  to  the  party  rais- 
ing it;  and  in  such  case  it  should  be  made  to 
appear  that,  as  soon  as  the  party  became  aware 
•f  the  objection,  he  immediately  gave  notice 
thereof  to  the  office,  and  also  to  the  opposite 
party,  informing  him  at  the  same  time  that,  un- 
less corrected,  he  shall  urge  his  objection  at 
the  hearing;  but  this  rule  is  not  to  be  construed 
so  as  to  modify  well-established  rules  of  evi- 
dence, which  will  be  applied  strictly  in  all 
practice  before  the  office. 

Snbpcenas  for  'Witnesses. 

117.  The  law  requires  the  clerks  of  the 
various  courts  of  the  United  States  to  issue 
subpoenas,  to  secure  the  attendance  of  wit- 
nesses whose  depositions  are  desired  to  be  read 
in  evidence  in  any  contested  cases  in  the 
patent  office. 

Testimony,  liflien  Open. 

118.  In  contested  cases,  whether  of  inter-. 
Terence  or  of  extension,  parties  may  have  ac- 
cess to  the  testimony  on  file  prior  to  the  hear- 
ing, in  presence  of  the  officer  in  charge;  and 
copies  may  be  obtained  by  them  at  the  usual 
rates. 

Prlntlns  of  It  Reqnlred. 

As  a  general  rule  printed  copies  of  the  testi- 
mony will  be  required,  but  this  requirement 
may  be  dispensed  with  on  special  application 
to  the  commissioner,  and  showing  satisfactory 
reasons  therefor. 

Three  printed  copies  should  be  furnished, 
two  for  the  use  of  the  office  and  one  for  the 
use  of  the  opposing  party.  These  copies  must 
be  filed  not  less  than  one  week  previous  to  the 
day  of  hearing. 

It  is  also  desirable  that  all  arguments  should 
be  submitted  in  printed  form,  and  all  argu- 
ments filed  at  least  two  days  previous  to  the 
day  of  hearing. 

KFI^ES   OF   CORRESPOJri>EW€E. 
Correspondence  with  Office,  How  Con- 
ducted. 

119.  All  correspondence  must  be  in  the 
name  of  the  "  commissioner  of  patents,"  and 
all  letters  and  other  communications  intended 
for  the  office  must  be  addressed  to  him ;  and 
after  July  i,  1873,  postage  must  be  prepaid  in 
full.  If  addressed  to  any  of  the  other  officers 
of  the  bureau  they  will  not  be  noticed,  unless 
it  be  seen  that  the  mistake  was  owing  to  in- 
advertence. A  separate  letter  should  in  every 
case  be  written  in  relation  to  each  distinct 
subject  of  inquiry  or  application,  the  subject  of 
the  invention  and  the  date  of  filing  being  al- 
ways carefully  noted. 

Correspondence  to  be  Witli  Party,  or 
Attorney  or  Assig^nee,  Only. 

I30,  When  an  agent  has  filed  his  power  of 
attorney,  duly  executed,  the  correspondence 
will,  in  ordinary  cases,  be  held  with  him  only ; 


and  a  double  correspondence  with  an  assignee 
and  the  inventor,  or  with  an  attorney  and  his 
principal,  if  generally  allowed,  would  largely 
increase  the  labor  of  the  office.  The  assignee 
of  an  entire  interest  in  an  invention  is  entitled 
to  hold  correspondence  with  the  office  to  the 
exclusion  of  the  inventor. 

If  Principal  Dissatisfied,  Mast 
Revoke  Power. 

121,  If  the  principal  becomes  dissatisfied  he 
must  revoke  his  power  of  attorney  and  notify 
the  office,  which  will  then  communicate  with 
him. 

Inspection  of  Papers  After  Second 
Rejection. 

122.  After  a  second  rejection  none  of  the 
papers  can  be  inspected,  save  in  the  presence 
of  a  sworn  officer ;  nor  will  any  of  the  papers 
be  returned  to  the  applicant  or  agent. 

Conflicting;  Parties  Havine  the  Same 
Counsel  Notified. 

123.  Whenever  it  shall  be  found  that  two  or 
more  parties  whose  interests  are  in  conflict  are 
represented  by  the  same  attorney,  the  examiner 
in  charge  will  notify  each  of  said  principal 
parties,  and  also  the  attorney,  of  this  fact. 

Applications  Kept  Secret. 

124,  Aside  from  the  caveats,  which  are  re- 
quired by  law  to  be  kept  secret,  all  pending  ap- 
plications are,  as  far  as  practicable,  preserved 
in  like  secrecy.  No  information  will  therefore 
be  given  those  inquiring  whether  any  particular 
case  is  before  the  office,  or  whether  any  par- 
ticular person  has  applied  for  a  patent. 

ITot  After  They  Are  Determined. 

125.  But  information  is  given  in  relation  to 
any  case  after  a  patent  has  issued,  or  after  a 
patent  has  been  refused,  and  the  further  prose- 
cution of  the  application  is  abandoned  or  barred 
by  lapse  of  time. 

Are  Then  Open  to  Inspection. 

126,  The  models,  in  such  cases,  are  so  placed 
as  to  be  subject  to  general  inspection.  The 
specifications  and  drawings  in  any  particular 
case  can  be  seen  by  any  one  having  particular 
occasion  to  examine  them,  and  copies  thereof, 
as  well  as  of  patents  granted,  will  be  furnished 
at  the  cost  of  making  them.  Copies  will  be 
made  on  parchment,  at  the  request  of  the  ap- 
plicant, on  his  paying  the  additional  cost. 

Cases  Nesrlected  for  Two  Tears 
Treated  as  Abandoned. 

127.  Even  after  a  case  is  rejected,  the  appli- 
cation is  regarded  as  pending,  unless  the  appli- 
cant allows  the  matter  to  rest  for  two  years 
without  taking  any  further  steps  therein,  in 
which  case  it  will  be  regarded  as  abandoned, 
and  will  no  longer  be  protected  by  any  rule  of 
secrecy.  The  specifications,  drawings,  and 
model  will  then  be  subject  to  inspection  in  the 
same  manner  as  those  of  patented  or  withdrawn 
applications. 

Information  as  to  Pending:  Cases, 
When  Given. 

128,  Information  in  relation  to  pending  cases 
is  given  so  far  as  it  becomes  necessary  in  con- 
ducting the  business  of  the  office,  but  no  further. 
Thus,  when  an  interference  is  declared  between 
two  pending  applications,  each  of  the  contest' 


PATENTS. 


597 


ants  is  entitled  to  a  knowleage  of  so  much  of 
his  opponent's  case  as  to  enable  him  to  conduct 
his  own  understanding!/. 

No  Information  Furnished  an  to  In- 
ventions or  the  L<aw  of  Patents  In 
General. 

129.  The  office  cannot  respond  to  inquiries 
as  to  the  novelty  of  an  alleged  invention  in  ad- 
vance of  an  application  for  a  patent,  nor  to 
inquiries  founded  upon  brief  and  imperfect  de- 
scriptions, propounded  with  a  view  of  ascertain- 
ing whether  such  alleged  improvements  have 
been  patented,  and  if  so,  to  whom ;  nor  can  it 
act  as  an  expounder  of  the  patent  law,  nor  as 
counselor  for  individuals,  except  as  to  questions 
arising  within  the  office.  A  copy  of  the  rules, 
with  this  section  marked,  sent  to  the  indivic'ual 
making  an  inquiry  of  the  character  referred  to, 
is  intended  as  a  respectful  answer  by  the  office. 

Intercourse  With  the  Office  to  be 
In  Vkriiiugr. 

130.  All  business  with  the  office  should  be 
transacted  in  writing.  Unless  by  the  consent 
of  all  parties,  the  action  of  the  office  will  be 
based  exclusively  on  the  written  record.  No 
attention  will  be  paid  to  any  alleged  verbal 
promise  or  understanding,  in  relation  to  which 
there  is  any  disagreement  or  doubt. 

ATTORNETS. 

131.  Any  person  of  intelligence  and  good 
moral  character  may  appear  as  the  agent  or  the 
attorney  in  fact  of  an  applicant,  upon  filing  a 
proper  power  of  attorney.  As  the  value  of 
patents  depends  largely  upon  the  careful  prep- 
aration of  the  specification  and  claims,  the 
as5.istance  of  competent  counsel  will,  in  most 
cases,  be  of  advantage  to  the  applicant,  but  the 
value  of  their  services  will  be  proportioned  to 
their  skill  and  honesty.  So  many  persons  have 
entered  this  profession  of  late  years  without 
experience  that  too  much  care  cannot  be  exer- 
cised in  the  selection  of  a  competent  man. 
The  office  cannot  assume  responsibility  for  the 
acts  of  attorneys,  nor  can  it  assist  applicants  in 
making  a  selection.  It  will,  however,  be  a  safe 
rule  to  distrust  those  who  boast  of  the  posses- 
sion of  special  and  peculiar  facilities  in  the 
office  for  procuring  patents  in  a  shorter  time  or 
(viih  more  extended  claims  than  others. 

Powers  of  Attorney,  Their  Effect. 

132.  Powers  of  attorney  to  authorize  the 
attorney  to  substitute  for,  or  associate  with,  him- 
self a.  second  agent,  must  contain  a  clause  of 
substitution ;  but  such  powers  will  not  au- 
thorize '.he  second  agent  to  appoint  a  third. 
Rog'ulations  for  Practice  of  Attorneys. 

133.  A  power  of  attorney  must  be  filed  in 
every  case,  both  by  original  and  associate  attor- 
neys, before  such  attorney  will  be  allowed  to 
inspect  ]iapers  or  take  action  of  any  kind.  Par- 
lies or  their  attorneys  will  be  permitted  to  ex- 
amine their  cases  in  the  attorney's  room,  but 
not  in  the  rooms  of  the  examiners.  Personal 
interviews  with  examiners  will  be  discouraged. 
All  intercourse  in  relation  to  pending  cases 
ought  to  be  in  writing. 

Bcstrictlngr  Attorneys  for  miscondnct. 

134.  Attorneys  will  be  expected  to  conduct 


their  business  with  Ihe  office  with  decorum  and 
courtesy.  For  gross  misconduct  the  commis- 
sioner may  refuse  to  recognize  any  person  as  a 
patent  agent,  either  generally  or  in  any  particu- 
lar case ;  and  for  lesser  offences  attorneys  may 
be  refused  the  privilege  of  oral  interviews,  and 
be  required  to  transact  all  business  with  the 
office  in  M'riting. 

Transacting^    Business    Throuffh    Del^ 
g'ates  in  Congrress  Discouragred. 

135.  As  members  of  Congress  cannot  ex- 
amine cases,  or  act  in  them  without  regular 
powers  of  attorney,  and  as  cases  cannot  be 
taken  up  out  of  their  regular  order  upon  their 
request,  and  as  the  delay  in  transmitting  papers 
to  and  from  the  capitol  involves  a  loss  of  time 
which  would  be  avoided  by  communicating 
directly  with  the  office,  applicants  are  recom- 
mended not  to  add  to  the  sufficiently  arduous 
duties  of  their  representatives  by  ordering  copies 
or  attempting  to  transact  business  with  the 
office  through  them. 

I.IBRARV. 
liibrary  Re^^ulations. 

136.  No  persons  are  allowed  to  take  books 
from  the  library  except  those  employed  in  the 
office. 

All  books   taken  from  the   library  must  be 
entered  in  a  register  kept  for  the  especial  pur- 
pose, and  returned  on  the  call  of  the  librarian. 
Any  book  lost  or  defaced  must  be  replaced 
by  another. 

Patentees   and   others   doing  business   with 

the  office  can  examine  the  books  only  in  the 

library-hall  or  the  attorney's  room  in  the  office. 

All  translations  will  be  made  at  the  usual 

rates  by  the  office. 

No  person  will  be  allowed  to  make  copies  or 
tracings  from  works  in  the  library.  Such  copies 
will  be  furnished  at  the  usual  rates. 

ELLIS  SPEAR, 
Acting  Commissioner, 
Approved. 
C.  Delano, 

Secretary  of  the  Interior. 

PRACTICAI.  FORMS. 

Form. 

Petition,  by  a  sole  inventor 

by  joint  inventors 

by  an  inventor  for  himself  and  an  assignee 
by  an  administrator       .... 
by  an  executor         ..... 
for  a  reissue  (^by  an  inventor  for  himself 

or  an  assignee) 

(by  assignees) 

for  an  extension  (by  a  patentee) 

(by  an  administrator) 
for  a  patent  for  a  design 
for  registration  of  a  trade-mark 
for  registration  of  a  label  Appendix, 

for  the  renewal  of  a  rejected  application  I3 
for  the  renewal  of  a  forfeited  application  13 
with  power  of  attorney  .        .        -13 

Power  of  attorney 14 

revocation  of 15 

Specification,  for  a  machine  (with  drawing)  .     16 

for  a  process 17 

for  a  composition  of  matter         .        .        .18 

for  a  design 19 

for  a  trade-mark so 

amendment  of 91 

Oath.by  a  sole  inventor  (citizen  of  the  United 

States,  or  alien) m 

by  an  applicant  for  reissue  {iaventor)       .    ag 


598 


PATENTS. 


Form. 
Oath  by  an  applicant  for  reissue  (assignees) .    34 

extension  (patentee) 35 

(executor) so 

supplemental,  to  accompany  a  new  or  en- 
larged claim 37 

to  the  loss  of  letters  patent  .  .38 

by  an  administrator  as  to  loss  of  letters 

patent sg 

by  an  applicant  for  the  registration  of  a 

trade-mark 30 

Appeals  from  an  examiner  to  examiners-in- 
chief  (ex  parte  cases)         31 

examiner  of  trade-marks  to  commissioner  31a 

(interferences) 33 

examiners-in-chief  to  commissioner  .        .    33 
commissioner  to  Supreme  Court  of  the 

District  of  Columbia 34 

rules  of  the  Supreme  Court  in    .        .        .35 

Disclaimer 36 

Caveat 37 

Assignments,  entire  interest  (before  issue  of 

patent 38 

(in  patent) 39 

undivided  interest   in  patent,  including 

extension 40 

exclusive  territorial  grant    .        .        .        .41 

License,  shop-right 43 

with  royalty 43 

Trade-mark,  transfer  of 44 

Extensions,  statement  and  account .  .    45 

reasons  of  opposition  (by  individuals)      .    46 
Depositions,  notice  of  taking  testimony,  and 

proof  of  service 47 

form  of 48 

certificate  of  officer 49 

Label Appendix. 

PETITION. 

1.  By  a  Sole  Inventor. 

To  the  Commissioner  of  Patents : 

Your  petitioner,  a  resident  of , ,  prays 

that  letters  patent  be  granted  to  him  for  the  in- 
vention set  forth  in  the  annexed  specification. 

A.  B. 

2.  By  Joint  Inventors. 
To  the  Commissioner  of  Patents: 

Your  petitioners,  residing  respectively  in  , 

,  and , ,  pray  that  letters  patent  may 

be  granted  to  them,  as  joint  inventors,  for  the  in- 
vention set  forth  in  the  annexed  specification. 

A.  B. 
C.  D. 
8.  By  an  Inventor  for  Himself  and  an 

Assignee. 
To  the  Commissioner  of  Patents  : 

Your  petitioner,  a  resident  of ,  prays  that 

letters  patent  may  be  granted  to  himself  and  C. 

D.,  of ,  as  his  assignee,  for  the  invention  set 

forth  in  the  annexed  specification,  the  assignment 
to  the  said  C.  D.  having  been  duly  recorded  in  the 
Patent  Office,  in  liber ,  page .  A.  B. 

4.  By  an  Administrator. 

To  the  Commissioner  of  Patents  : 

Your  petitioner,  A.  B.,  of , ,  administra- 
tor of  the  estate  of  C.  D.,  deceased  (as  by  reference 
to  the  duly-certified  copy  of  letters  of  administration, 
hereto  annexed,  will  more  fully  appear),  prays  that 
letters  patent  may  be  granted  to  him  for  the  in- 
vention of  the  said  C.  D.,set  forth  in  the  annexed 
specification.  A.  B., 

Administrator ,  etc, 

5.  By  an  Executor. 

To  the  Commissioner  of  Patents  : 

Your  petitioner,  A.  B.,  of , ,  executor  of 

the  last  will  and  testament  of  C.  D.,  deceased  (as 
by  reference  to  the  duly-certified  copy  of  letters  testa- 
mentary, hereto  annexed,  will  more  fully  appear),  prays 
that  letters  patent  may  be  granted  to  him  for  the 
invention  of  the  said  C.  D.,  set  forth  in  the  an- 
nexed specification.  A.  B., 

Executor,  etc. 

6.  For  a  Reissue  (By  the  Inventor). 

To  the  Commissioner  of  Patents : 

Your  petitioner,  of , ,  prays  that  he  may 

be  allowed  to  surrender  the  letters  patent  for  an 
improvement   in  coal-scuttles,  granted  to  him 


May  x6, 1867,  whereof  he  is  now  sole  owner  {&> 
whereof  C.  JJ.,  on  whose  behalf  and  with  whose  as- 
sent this  application  is  made,  is  now  sole  owner,  by  as- 
signment), and  that  letters  patent  may  be  reissued 
to  him  (or  the  said  C.  D.;,  for  the  same  invention, 
upon  the  annexed  amended  specification.  Ac- 
companying this  petition  is  an  abstract  of  title, 
duly  certified,  as  required  in  such  cases. 

A.  B. 
Assent  of  Assignee  to  Reissue. 

The  undersigned,  assignee  of  the  entire  {or  an 
undivided)  interest  in  the  above-mentioned  letters 
patent,  hereby  assents  to  the  accompanying  ap- 
plication. C.  D. 

7.  For  a  Reissue  (By  Assig'nee). 
[  To  be  used  only  luhen  the  inventor  is  dead,  or  the 

original  patent  was  issued  and  assigned  pri»r  t» 

July  8,  1 870.  J 
To  the  Commissioner  of  Patents  : 

Your  petitioners,  of  the  city  of ,  State  of 

,  pray  that  they  may  be  allowed  to  surrender 

the  letters  patent  for  an  improvement  in  coal- 
scuttles, granted  May  16,  1867,  to  E.  P.,  now  de- 
ceased, whereof  they  are  now  owners,  by  as- 
signment, of  the  entire  interest,  and  the  letters 
patent  may  be  reissued  to  them  for  the  same  in- 
vention, upon  the  annexed  amended  specification. 
Accompanying  this  petition  is  an  abstract  of  title, 
duly  certified,  as  required  in  such  cases. 

A.  B. 
C.  D. 

8.  For  an  Extension  (By  a  Patentee. 
To  the  Commissioner  of  Patents  : 

Your  petitioner,  now  residing  at , ,  prays 

that  letters  patent  No.  13841,  for  an  improvement 
in  steam-engines,  granted  to  him  August  17, 1853, 
may  be  extended  for  seven  years  from  and  aftei 
the  expiration  of  the  original  term.  A.  B. 

9.  For  an  Extension  (By  an  Adminis- 
trator). 
To  the  Commissioner  of  Patents  : 

Your  petitioner,  A.  B.,  of , ,  administra- 
tor of  the  estate  of  C.  D.,  deceased  (as  by  reference 
to  the  duly  certified  copy  of  letters  of  administration, 
hereto  annexed,  will  more  fully  appear),  residing  at 

, ,  prays  that  letters  patent  No.  12842,  for 

an  improvement  in  stoves,  granted  to  said  C.  D., 
August  24, 1853,  may  be  extended  for  seven  years 
from  and  after  the  expiration  of  the  original  term. 
A.  B. ,  Administrator. 

10.  For  liCtters  Patent  for  a  Besig^n. 
To  the  Commissioner  of  Patents: 

Your  petitioner,  residing  in , ,  prays  that 

letters  patent  may  be  granted  to  him  for  the  term 
of  three  and  one-half  yeari>  (or  seven  years,  <?r  four- 
teen years),  for  the  new  and  original  design  set 
forth  in  the  annexed  specification.  A.  B. 

11.  For  tlie  Kegrisf  ration  of  a  Trade- 

mark. 

To  the  Commissioner  of  Patents: 

The  undersigned  presents  herewith  a 
fac-simile  of  his  lawful  trade-mark,  and 
requests  that  the  same,  together  with  th< 
accompanying  statement  and  declaration 
may  be  registered  in  the  United  Statei. 
Patent  Office  in  accordance  with  the  lay. 
in  such  cases  made  and  provided. 

A.  B. 

12.  For  the  Renewal  of  an  Application. 

To  the  Commissioner  of  Patents: 

Your  petitioner  represents  that  on  May  8,  1868, 
he  filed  an  application  for  letters  patent  for  an 
improvement  in  churns,  >vhich  application  was 
allowed  July  7, 1868,  but  that  he  failed  to  make 
payment  of  the  final  fee  within  the  time  allowed 
by  la\v.  (Or,  which  application  has  been  rejected,  but 
has  not  been  abandoned.)  He  now  makes  renewed 
application  for  letters  patent  -for  said  invention, 
and  prays  that  the  original  specification,  oath, 
drawings,  and  model  may  be  used  as  a  part  of 
this  application.  A.  B. 


PATENTS. 


599 


1$.  Petition  with  Power  of  Attorney. 

To  the  Commissioner  of  Patents  : 

Yo«r  petitioner,  a  resident  of  the  city  of , 

State  of ,  prays  that  letters  patent   may  be 

granted  to  him  for  the  invention  set  forth  in  the 
annexed  specification;  and  he  hereby  appoints 
C.  D.,  of  the  city  of ,  State  of ,  his  attor- 
ney, with  full  power  of  substitution  and  revoca- 
tion, to  prosecute  this  application,  to  make  alter- 
ations and  amendments  therein,  to  receive  the 
patent,  and  to  transact  all  business  in  the  Patent 
Office  connected  therewith.  A.  B. 

14.  Power  of  Attorney. 

If  the  power  of  attorney  be  given  at  any  time  other 
than  that  of  making  application  for  patent,  it  will  be  in 
substantially  the  following  form  : 
To  the  Commissioner  of  Patents  : 

The  undersigned  having,  on  or  about  the  aoth 
day  of  July,  1859,  made  application  for  letters 
patent  for  an   improvement  in   a  horse-power, 

hereby  appoints  C.  D.,  of  the  city  of ,  State 

of ,  his  attorney,  with  full  power  of  substitu- 
tion and  revocation,  to  prosecute  said  application, 
to  make  alterations  and  amendments  therein,  to 
receive  the  patent,  and  to  transact  all  business  in 
the  Patent  Office  connected  therewith. 

A.  B. 

Signed  at ,  and  State  of ,  this  day 

of ,  A.  D. . 

15.  Revocation  of  Power  of  Attorney. 

The  undersigned  having,  on  or  about  the  26th 
day  of  December,  1867,  appointed  C.  D.,  of  the 
city  of ,  State  of ,  his  attorney,  to  prose- 
cute an  application  for  letters  patent,  made  on  or 
about  the  ist  day  of  June,  1868,  for  an  improve- 
ment in  the  running-gear  of  wagons,  hereby  re- 
vokes the  power  of  attorney  then  given. 

Signed  at , ,  this  21st  day  of  July,  i86g. 

SPECIFICATION. 

16.  For  a  Alaclilne. 

To  all  whom  it  may  concern  : 

Be  it  known  that  I  (liere  insert  the  name  of  the 

inventor),  of ,  in  the  county  of ,  and  State 

of  ,  have  invented  a  new  and  useful  im- 
provement in  saw-toothing  machines,  which  im- 
provement is  fully  set  forth  in  the  following  spe- 
cification, reference  being  had  to  the  accom- 
panying drawings: 

The  object  of  my  invention  is  to  rapidly  form, 
on  the  blade  of  a  handsaw,  teeth  gradually  de- 
creasing in  size  from  the  broad  to  the  narrow  end 
of  the  blade,  by  the  combination,  in  a  saw-tooth- 
ing machine,  of  a  tapering  barrel,  E,  and  a  chain, 
or  its  equivalent,  with  rollers,  a  01,  for  feeding, 
or  with  a  slide  for  carrying  the  blade  A,  as  shown 
in  the  perspective  view.  Fig.  i,  of  the  accom- 
panying drawing. 

(Here  follows  the  drawing.') 

The  machine  is  illustrated  more  in  detail  in  the 
plane  view,  Fig.  3,  and  in  the  vertical  section. 
Fig.  2,  in  which  it  has  not  been  deemed  neces- 
sary to  show  the  driving  mechanism.  The  blade 
is  held  by  and  between  the  two  upper  rollers, 
a  a\  (the  latter  being  a  feed-roller),  and  two  lower 
rollers,  h  ii,  and  is  made  to  traverse  in  the  direc- 
tion of  the  arrow,  at  a  gradually  decreasing 
speed,  by  causing  a  barrel,  D,  to  unwind  a  chain 
or  its  equivalent  from  a  tapering  barrel,  E,  on  the 
shaft,  B.  The  several  shafts  have  their  bearings 
in  a  simple  frame,  H,  the  front  portion  h  of  the 
latter  forming  a  table,  v^rhich,  in  conjunction 
with  the  lower  rollers,  supports  the  blade,  as  the 
latter  is  caused  to  traverse  with  its  edges  in  con- 
tact with  fttie  adjustable  guides  j'jy,  on  the  frame. 
In  this  table  is  a  fixed  die  or  anvil, y,  on  which 
the  blade  bears,  and  in  vt^hich  is  a  triangular 
notch,  corresponding  in  shape  to  a  punch,  e,  on  a 
rapidly  revolving  disk,  G. 

As  the  blade  moves  at  a  gradually  decreasing 
speed  in  the  direction  of  the  arrov^^,  the  punch 
will  strike  triangular  pieces  from  its  edge,  and 
the  result  will  be  the  formation  of  the  desired 
graduated  teeth. 

It  will  be  evident  that  the  driving-barrel,  D, 
may  be  tapering,  and  the  barrel,  E,  cylindrical, 
•r  that  both  barrels  may  be   tapering,  and  ar- 


ranged to  feed  gradually  taster  instead  of  gradu- 
ally slower,  with  the  same  result,  and  that  the 
blade  may  be  clamped  to  a  guided  sliding  bed, 
controlled  by  a  tapering  barrel  and  cord  or  chain. 

I  claim  as  my  invention: 

The  combination  in  a  saw-toothing  machine: 
substantially  as  described,  of  a  tapering  barre.. 
and  chain,  with  a  roller  for  feeding  the  blade. 

Witnesses,  C.  D.  A.  B. 

E.  F. 

17.  For  a  Process. 

To  all  whom  it  may  concern : 

Be  it  known  that  I  (here  insert  the  name  ef  the 

inventor),  of ,  in  the  county  of ,  and  State 

of ,  have  invented  a  nev^  and  useful  process 

for  separating  smut  and  other  impurities  from 
wheat,  which  process  is  fully  set  forth  in  the  fol- 
lovt^ing  specification : 

This  invention  relates  to  that  class  of  processes 
employed  for  removing  "smut "  and  other  im- 
purities mixed  with  and  adhering  to  grain  ;  and 
It  consists  in  mixing  "  newly-slaked  "  lime,  while 
yet  warm,  with  the  grain  before  it  is  passed 
through  the  smut-mill. 

In  carrying  out  our  invention,  take  of  lime, 
newly  slaked  and  while  yet  warm,  one  and  a 
half  pounds  to  each  hundred  pounds  of  wheat. 
Mix  the  lime  well  with  the  wheat,  let  it  stand 
one  hour,  then  pass  it  through  a  smut-mill  in  the 
usual  way,  and  it  will  be  found  that  all  the  lime, 
smut,  dirt,  and  other  impurities  attached  to  the 
wheat,  of  every  kind,  and  which  no  smut-mill, 
without  my  liming  process,  will  fully  separate, 
will  be  entirely  removed,  and  the  flour  will  be  as 
white  and  as  sweet  as  though  made  from  the 
best  of  wheat. 

We  are  aware  that  lime  has  before  been  used 
for  the  purpose  of  cleaning  wheat,  being  first 
mixed  with  the  grain  as  above  proposed,  and  the 
whole  being  then  passed  through  a  smut-mill; 
but  in  all  previous  processes,  so  far  as  we  are 
aware,  the  lime  has  been  used  in  a  cold  state, 
and  for  this  reason  they  have  proved  ineffectual. 
We  propose  to  take  lime  newly  slaked  and  while 
yet  warm. 

■We  claim  as  our  invention  : 

The  process  of  cleaning  wheat  by  mixing  with 
it  lime  newly  slaked  and  warm  before  passing  it 
through  a  smut-mill,  so  as  to  cleanse  the  wheat 
from  all  impurities,  substantially  as  described. 

A.  B 

Witnesses,  E.  F.  C.  d! 

G.  H. 

18.  For  a  Composition  of  matter. 

To  all  whom  it  may  concern  : 

Be  it  known  that  I  (here  insert  the  vaine  o/'  thr 

inventor),  of ,  in  the  county  of ,  and  Statc- 

of ,  have  invented  a  new  and  useful  com- 
pound, called  "wool-oil,"  which  compound  is 
fully  described  in  the follo^ving  specification: 

This  invention  relates  to  that  class  of  com- 
pounds used  to  lubricate  wool  in  the  process  of 
manufacture  ;  and  it  consists  in  a  composition 
formed  by  mixing  any  one  or  more  of  the  oils 
ordinarily  used  in  manufacturing  wool,  such  as 
olive,  lard,  or  rape-seed  oil,  with  a  solution  of  an 
oil-soap. 

To  prepare  the  wool-oil,  take  a  quantity  of  oil- 
soap  of  any  kind,  provided  the  quality  be  good, 
and  dissolve  the  same  in  hot  water,  say  about 
thirty  pounds  of  oil-soap  to  thirty  gallons  of 
water,  or  a  sufficient  quantity  of  soap  to  saturate 
the  water.  Then  take  equal  parts,  by  measure., 
of  olive,  lard,  rape-seed,  or  any  other  kind  of  oil 
which  can  be  used  on  wool  in  the  process  of  its 
manufacture,  and  mix  with  it  the  preparation 
aforesaid,  to  wit,  the  soap  solution,  which,  after 
such  mixture,  is  ready  to  be  used  on  the  wool 
with  as  beneficial  an  effect  as  if  pure  oil  only  had 
been  used.  This  wool-oil  will  not  decompose  by 
age,  because  the  oil  of  soap  neutralizes  the 
stearine  in  the  oil;  hence  there  is  noth-ng  to  de- 
compose. And  for  the  same  reason  spontaneous 
combustion  cannot  be  produced. 

I  claim : 

A  compound  consisting  of  an  oil  or  oils,  ordi- 
narily.used  in  the  lubrication  of  wool,  in  combine 


0OO 


PATENTS. 


tion  with  a  solution  of  an  oil-soap,  substantially 
aa  and  for  the  purpose  specified.  C.  D. 

Witnesses,  K.  F. 
G.  H. 
19.  For  a  Design. 

To  all  whom  it  may  concern: 

Be  it  knoNvn  that  I  (here  insert  the  name  of  the 

originator  of  the  design),  of ,  in  the  county  of 

,  and  State  of ,  have  originated  and  de- 
signed a  pattern  for  carpets,  or  other  fabrics,  of 
which  the  following  is  a  full,  clear,  and  exact  de- 
scription, reference  being  had  to  the  accompany- 
ing photographic  illustration  or  drawing,  making 
part  of  this  specification  : 

The  nature  of  my  design  is  fully  represented  in 
the  accompanying  photographic  illustration,  to 
which  reference  is  made. 

A  represents  a  portion  of  the  body  of  the  car- 
pet, and  B  a  portion  of  the  border.  The  body 
may  be  ornamented  with  any  figures  that  maybe 
selected  ;  but  the  border  consists  of  three  parallel 
stripes,  the  middle  one  wide,  and  the  other  two 
narrow.  Along  the  middle  stripe  of  the  border 
run  two  angular  bars,  crossing  each  other  and 
intertwining,  as  shown,  while  the  narrow  stripes 
are  ornamented  with  rows  of  spots  arranged  in 
groups  of  three,  so  as  to  form  triangles. 

I  prefer  to  make  the  middle  stripe  white  and 
the  side  stripes  red,  while  the  intertwining  bars 
are  of  gold  and  green  ;  but  I  do  not  consider  the 
colors  selected  to  be  an  essential  element  in  my 
design. 

I  am  aware  that  carpet-borders  composed  of  a 
wide  central  stripe  and  two  narrow  side  stripes 
E.re  not  new,  and  I  do  not  claim  them.  The  dis- 
.'^tinctive  character  of  my  design  is  found  in  the 
I  gures,  which  are  wrought  into  a  border  thus 
tomposed  of  stripes. 

Wnat  I  claim  as  my  invention  is  : 

A  design  for  a  carpet  in  which  the  border  is 
i  omposed  of  stripes  ornamented  substantially  in 
me  manner  above  described. 

20.  For  a  Trade-lflark. 

To  all  whom  it  may  concern  : 

Be  it  known  that  I,  A.  B.,*  a  citizen  of  the 

United  States  residing  at ,  in  the  county  of 

. ,  and  State  of ,  and  doing  business  at , 

have  adopted    for  my  use  a  trade-mark  for 
(as  the  case  may  be)  of  which  the  following  is  a 
full,  clear,  and  exact  specification  : 

My  trade-mark  consists  of  the  letters  and  words 

(or  arbitrary  symbols,  as  the  case  may  be) . 

These  have  generally  been  arranged  as  sho^vn  in 
the  accompanying  fac-simile.  Kllere  give  a  full 
description  oj  the/ac-siiiiile,  includnigalt its/eatures.) 

But  may    be    omitted    and changed    at 

pleasure  without  materially  altering  the  charac- 
ter of  my  trade-mark,  the  essential  features  of 
which  are 

This  trade-mark  I  have  used  continuously  in 
my  business  since ,  18—. 

The  class  of  merchandise  to  which  this  trade- 
mark is  appropriated  is ,  and  the  particular 

description  ot  goods  comprised  in  such  class  on 

which  I  use  the  said  trade  mark  is 1.     It  has 

been  my  practice  to  {,fiere  state  Jut/y  the  manner  oJ 
applying  it  to  the  goods  or  the  packages  t.ontaintng 
them) 

A  B. 

Witnesses,  C.  D. 
E.  F. 

21.  Amendment. 
Washington,  D  C  ,  July  20, 1869. 

To  the  Commissioner  of  Patents  : 

In  the  matter  of  my  application  for  letters  pat- 
ent for  an  improvement  in  >vagon-brakes,  I  here- 
by amend  my  specification  by  striking  out  all  be- 
tween the  ninth  and  twentieth  lines  inclusive,  on 
page  3  ;  by  inserting  the  words  "  connected  with  " 

•  The  first  parai;raph  of  the  statement  shuuM  l>e  modified  to 
conform  to  tlie  linuiiistaiues  ol  each  applicant.  If  a  firm,  the 
duniuile  and  place  of  lousiness  are  required;  if  a  corporation, 
under  what  State  or  either  laws  incorporated,  where  lu<.aied  and 
\'Ai.e  of  business  ;  if  a  person  not  an  American  citizen,  of  what 
counivT  he  •»  a  ciiiren  (or  subject,  as  the  case  may  be),  etc. 

The  description  of  the  goods  or  which  the  trade  mark  It 
used  sliould  be  in  the  same  Xmixa^c  in  the  fir>l  and  last  pan- 


after  the  word  "  and  '  in  the  first  line  of  the  sec- 
ond claim  ;  and  by  striking  out  the  third  claim 
and  substituting  therefor  the  following  : 

3.  The  combination  of  the  self-acting  brake  C, 
pin  A,  and  slotted  flanges  D,  substantially  as  de- 
scribed, and  for  the  purposes  set  forth. 

A.  B. 
By  C.  D.,  his  Attorney  in  Fact. 
OATHS. 
22.  By  a  Sole  Inventor. 
{To follow  Specification.) 

State  of ,  county  of ,  ss. 

A.  B. ,  the  above-named  petitioner,  being  duly 
sworn  (or  affirmed),  deposes  and  says  that  he 
verily  believes  himself  to  be  the  original  and  first 
inventor  of  the  improvement  in  seed-drills  de- 
scribed and  claimed  in  the  foregoing  specifica- 
tion ;  that  he  does  not  know  and  does  not  be- 
lieve that  the  same  was  ever  before  known  or 

used  ;  and  that  he  is  a  citizen  of ,  and  a  resi« 

dent  of .  A.  B. 

Sworn  to  and  subscribed  before  me,  this  13th 
day  of  March,  1869.  C.  D. 

Justice  of  the  Pecut. 

[If  the  applicant  be  an  alien,  the  sentence  "  and  that 
he  is  a  citizen  of  the  United  States"  will  be  omitted, 
and  in  lieu  thereof  will  be  substituted,  "  and  that  he  is  a 
citizen  of  the  republic  of  Mexico,"  or  "and  that  he  is 
a  subject  of  the  king  of  Italy,"  or  "of  the  queen  of 
Great  Britain,"  or  as  the  case  may  be. 

If  the  applicants  claim  to  he  joint  inventors,  the  oath 
will  read  "  that  they  verily  believe  themselves  to  be  the 
original,  first,  and  joint  inventors,"  etc. 

If  the  inventor  be  dead,  the  oath  will  be  taken  by  the 
administrator  or  executor,  and  will  declare  nis  belief 
that  the  party  named  as  inventor  was  the  original  and 
first  inventor.] 

23.  By  an  Applicant  for  a  Reissue 

(Inventor). 
State  of ,  city  and  county  of ,  ss.  : 

A.  B.,  the  above-named  petitioner,  being  duly 
sworn  (or  affirmed),  deposes  and  says  that  he 
verily  believes  that,  by  reason  of  an  insufficient 
or  defective  specification,  his  aforesaid  letters 
patent  are  inoperative  or  invalid ;  that  the  said 
error  has  arisen  from  inadvertence,  accident,  or 
mistake,  and  without  any  fraudulent  or  deceptive 
intention,  to  the  best  of  his  knowledge  and  be- 
lief; that  he  is  the  sole  owner  of  said  letters  pat- 
ent (or,  that  E.  F.  is  the  sole  owner  of  said  letters  pat- 
ent, and  that  this  application  is  made  on  the  behalf,  and 
with  the  consent  of  said  E.  F.)  ;  and  that  he  verily 
believes  himself  to  be  the  first  and  original  inven- 
tor of  the  improvement  set  forth  and  claimed  in 
this  amended  specification.  A.  B. 

Sworn  to  and  subscribed  before  me,  this  26th 
day  of  July,  1869.  CD., 

\^Notarial  seal.\  Notary  Public. 

24.  By  an  Applicant  for  a  Reissue 

(Assignee). 

\To  be  used  only  when  the  inventor  is  dead,  or  when 
the  patent  tvas  issued  and  assigned  prior  to  July  8, 
1870.] 

State  of ,  county  of ,  ss. : 

A.  B.  and  C.  D.,the  above-named  petitioners, 
being  duly  sworn  (or  affirmed),  depose  and  say 
that  they  verily  believe  that,  by  reason  of  an  in- 
sufficient specification,  the  aforesaid  letters  pat- 
ent granted  to  E.  F.  are  inoperative  ;  that  the 
said  error  has  arisen  from  inadvertence,  accident, 
or  mistake,  and  without  any  fraudulent  or  decep- 
tive intention,  to  the  best  of  their  knowledge  and 
belief;  that  the  entire  title  to  said  letters  patent 
is  vested  in  them  ;  and  that  they  verily  believe 
the  said  E.  F.  to  be  the  first  and  original  inventor 
of  the  invention  set  forth  and  claimed  in  the  fore- 
going amended  specification;  and  that  the  said 
E.  F.  is  nov«^  deceased.  A.  B. 

C.  D. 

Sworn  to  and  subscribed  before  me,  this  X4th 
day  of  November,  1869.  A.  B., 

Justice  of  the  Peace. 

25.  By  an  Applicant  f6r  Extension 

(Patentee). 

State  of——,  county  of ,  ss. : 

A.  B.,the  above-named  applicant,  baing  duly 


PATENTS. 


6oi 


sworn  (or  affirmed),  deposes  and  says  that  the 
foregoing  statement  and  account  by  him  signed 
are  correct  and  true  in  all  respects  and  particu- 
lars, to  the  best  of  his  knowledge  and  belief. 

A.  B. 
Sworn  to  and  subscribed  before  me,  this  ist  day 
of  November,  A.  D.  1868.  C.  D., 

justice  of  the  Peace. 

S6.  By  an  Applicant  Tor  an  Extension 
(Executor). 

State  of ,  county  of ,  ss.  : 

A.  B.,  executor  of  the  last  will  and  testament 
«f  Simon  Newcome,  deceased,  being  duly  sworn 
(or  affirmed),  deposes  and  says  that  the  foregoing 
statement  and  account  by  him  subscribed  are 
correct  and  true  in  all  respects  and  particulars, 
to  the  best  of  his  information,  knowledge,  and 
belief.  A.  B., 

Executor,  etc. 

Sworn  to  and  subscribed  before  me,  this  aoth 
day  of  May,  1869.  CD., 

y-ustice  of  the  Peace. 

87.  Supplemental  Oath  to  Accompany 
a  New  or  an  Eiilarg'ed  Claim. 

State  of ,  county  of ,  ss. : 

A.  B.,  whose  application  for  letters  patent  for 
an  improvement  in  seed-drills  was  filed  in  the 
United  States  Patent  Office,  on  or  about  the  15th 
day  of  March,  1869,  being  duly  sworn  {or  affirmed*, 
deposes  and  says  that,  in  addition  to  the  claims 
originally  made,  he  verily  believes  himself  to 
be  the  original  and  first  inventor  of  the  improve- 
ment as  described  and  claimed  in  the  foregoing 
amendment,  and  that  he  does  not  know,  and 
does  not  believe,  that  the  same  was  ever  before 
known  or  used.  A.  B. 

Sworn  to  and  subscribed  before  me,  this  nth 
day  of  July,  1870.  CD., 

yustice  of  the  Peace. 

38.  Oatli  as  to  the  Eoss  of  Eetters 
Patent. 

State  of ,  county  of ,  ss. : 

A.  B.,  of  said  county,  being  duly  sworn  {or  af- 
firmed), doth  depose  and  say  that  the  letters  pat- 
ent No.  12313,  granted  to  him,  and  bearing  date 
on  the  gth  day  of  January,  A.  D.  1855,  have  been 
either  lost  or  destroyed  ;  that  he  has  made  dili- 
gent search  for  the  said  letters  patent  in  all  places 
where  the  same  would  probably  be  found,  if  ex- 
isting, and  that  he  has  not  been  able  to  find  them. 

A.  B. 

Subscribed  and  sworn  to  before  me,  this  5th 
day  of  October,  1868.  CD., 

Justice  of  the  Peace. 

39.  Oath  of  Administrator  as  to  the 
Eoss  of  Eetters  Patent. 

tstate  of ,  county  of ,  ss.  : 

A.  B.  ,of  said  county,  being  duly  sworn,  doth 
depose  and  say  that  he  is  administrator  of  the  es- 
tate of  E.  F.,  deceased,  late  of  Boston,  in  said 
county;  that  the  letters  patent  No.  12219,  granted 
to  said  E.  F.,  and  bearing  date  on  the  gth  day  of 
January,  A.  D.  1855,  have  been  lost  or  destroyed, 
as  he  verily  believes;  that  he  has  made  diligent 
search  for  the  said  letters  patent  in  all  places 
where  the  same  v/ould  probably  be  found,  if  ex- 
isting, and  especially  among  the  papers  of  the 
decedent,  and  that  he  has  not  been  able  to  find 
said  letters  patent.  A.  B., 

Administrator,  etc. 

Subscribed  and  sworn  to  before  me,  this  5th 
day  of  October,  x858.  C  D., 

Justice  of  the  Peace. 

30.  Oath  of  Applicant  for  Registration 
of  a  Trade-Mark. 

State  of ,  county  of ,  ss. : 

A  B.,  being  duly  sworn,  deposes  and  says  that 
he  is  the  applicant  named  in  the  foregoing  state- 
ment;  that  he  verily  believes  that  the  foregoing 
statement  is  true  ;  that  he  has  at  this  time  a  right 
to  the  use  of  the  trade-mark  therein  described; 
that  no  other  person,  firm,  or  corporation  has  the 
fight  to  such  use,  either  in  the  identical  form  or 
in  any  such  near  resemblance  thereto  as  might 
pe  calculated  to  deceive  ;  that  it  is  used  by  him 


in    commerce    with   foreign    nations  or    Indian 

tribes,  and  particularly  with (here  name  out 

or  more  foreign  tialiom  or  Indian  tribes, or  both,  at  the 
lase  may  be),  and  that  the  description  and  fac- 
similes presented  for  record  truly  rtpresent  the 
trade-mark  sought  to  be  registered.  A   B. 

Sworn  and  subscribed  before  me,  a ,  thlt 

day  of ,  x8— .  O.  H., 

Justice  oj  the  Feact. 

APPEAES. 

31.  From  the  Examiner  to  the  Exam- 
iners-ln-<'hier. 

To  the  Commissioner  of  Patents: 

Sir  :  I  hereby  appeal  to  the  examiners-in-chief 
from  the  decision  of  the  principal  examiner  in  the 
matter  o-f  my  application  for  letters  patent  for  an 
improvement  in  wagon-brakes,  which,  on  the 
20th  day  of  July,  1869,  was  rejected  the  second 
time.  The  following  are  assigned  for  reasons  of 
appeal:  {Here  foilow  the  reasons.)  A.  B. 

31a.  From  the  Examiner  of  Trade- 
]tlarl<s  to  (lie  Commissioner. 

To  the  Commissioner  of  Patents: 

Sir  :  I  hereby  appeal  to  you  in  person  from  the 
decision  of  the  examiner  of  trade-marks,  dated 
November  15,  1872,  in  the  matter  of  my  applica- 
tion for  the  registration  of  a  trade-mark  for 
cigars.  The  following  are  the  reasons  assigned  : 
(Here  follow  the  reasons.) 

33.  From  the  Examiner  in  Charg^e  of 
Interferences  to  the  Examiners-in- 
Chief. 

To  the  Commissioner  of  Patents  : 

Sir:  I  hereby  appeal  to  the  examiners-in-chief 
from  the  decision  of  the  piincipal  examiner  in 
charge,  in  the  matter  of  the  interference  between 
my  application  for  letters  patent  for  improve- 
ment in  sewing-machines  and  the  letters  patent 
of  A.  B.,  in  which  priority  of  invention  ^va8 
awarded  to  said  A.  B.  The  following  are  as- 
signed for  reasons  of  appeal :  (Here  follozv  the 
reasons.)  C  D. 

33.  From  the  Examiners-in-Chief  to 
the  Commissioner. 

To  the  Commissioner  of  Patents: 

Sir  :  AVe  hereby  appeal  to  the  commissioner  in 
person  from  the  decision  of  the  examiners-in- 
chief,  in  the  matter  of  our  application  for  the  re- 
issue of  letters  patent  for  an  improvement  in 
cotton-presses,  granted  to  A.  B.,  May  i8,  1865. 
The  following  are  assigned  for  reasons  of  appeal : 
{Here  follow  the  reasons.)  C  D. 

E.  F. 

34.  From  the  Commissioner  to  the  Sn- 

{>renie  Court  of  the  District  of  Colnni- 
»ia. 

■Washington,  D.  C.,  July  20,  1871. 
To  the  Supreme  Court  of  the  District  of  Colum- 
bia, in  banc : 

The  petition  of  A.  B.,  of ,  in  the  county  of 

,  and ,  respectfully  showeth  :  That  he 

has  heretofore  invented  a  new  and  useful  im- 
provement in  velocipedes  ;  that  on  or  about  the 
1st  day  of  May,  1870,  he  applied  to  the  Patent 
Office  of  the  United  States  for  a  patent  for  the 
same  (or  for  the  reissue  of  a  patent  granted  therefor 
under  date  of  June  10,  1862),  and  complied  with  the 
requirements  of  the  several  acts  of  Congress,  and 
with  the  rules  of  the  Patent  Office  prescribed  in 
such  cases;  that  his  said  application  was  rejected 
by  the  Commissioner  of  Patents  on  appeal  to  him 
on  or  about  June  20,  1871  ;  that  he  has  filed  in 
said  office  due  notice  to  the  Commissioner  of 
Patents  of  this,  his  appeal,  accompanied  with 
the  reasons  of  appeal;  and  that  the  commis- 
sioner has  furnished  him  with  complete  copies 
of  all  the  original  papers  and  evidence  in  the 
case,  all  of  which,  together  with  a  copy  of  the 
reasons  of  appeal,  accompany  this  petition,  and 
are  to  be  taken  as  a  part  hereof. 

And  the  said  A.  B.  prays  that  his  said  appeal 
may  be  heard  and  determined  by  your  honorable 
court  at  such  early  time  as  may  be  appointed  for 
that  purpose ;  and  that  the  Commissioner  of 
Patents  may  be  duly  notified  of  the  same,  an4 


«(K 


PATENTS. 


directed  in  wnat  manner  to  give  notice  thereof 
to  the  parties  interested.  A.  B. 

To  the  Commissioner  of  Patents  : 

A.  B.,  of ,  in  the  county  of ,  and  State 

of ,  hereby  gives  notice  that  he  has  appealed 

from  your  decision,  rendered  on  or  about  the  aoth 
day  of  June,  1871,  rejecting  his  application  for  a 
patent  {or  for  a  reissue  of  a  patent  granted  to  him 
June  10,  1862)  for  an  improvement  in  velocipedes  ; 
and  of  this  you  are  respectfully  requested  to  take 
notice. 

And  the  said  A.  B.  assigns  the  following  rea- 
sons for  appealing  from  the  said  decision  of  the 
Commissioner  of  Patents,  viz.  : 

(Here  foUoiv  reasons,  which  should  be  full  and  ex- 
plicit, and  constitute  a  brief  0/  the  appellanVs  argu- 
ment.) A.  B. 

35.  Rales  of  the  Supreme  Court  In  Ap« 
peals  from  the  Commissioner  of  Pat- 
ents, Adopted  November  30.  1870. 

1.  The  appellant's  petition  shall  be  addressed  to  the 
court,  and  shall  be  substantially  a<;  follows  : 

To  the  Supreme  Court  of  the  District  of  Colum- 
bia, in  banc, ,  187-. 

The  petition  of ,  a  citizen  of ,  in  the 

(State,  Territory,  District)  of ,  respectfully 

shows  as  follows : 

a.  About  the  day  of ,  18 — ,  I  invented 

(describe  the  subject  of  the  desired  patent  in  the  identi- 
cal -words  of  the  application  to  the  Patent  Office). 

b.  On  the  day  of ,  18 — ,  in  the  manner 

prescribed  by  law,  I  presented  my  application  to 
the  Patent  Office,  praying  that  a  patent  be  issued 
to  me  for  said  invention. 

c.  Such  proceedings  were  had   in  said   office, 

upon  said  application,  that  on  the  day  of 

,  18 — ,  it  was  rejected  by  the   Commissioner 

of  Patents. 

d.  I  thereupon  appealed  to  this  court,  and  gave 
notice  thereof  to  the  Commissioner,  and  filed  in 
his  office  the  following  reasons  for  said  appeal : 

e.  The  Commissioner  of  Patents  has  furnished 
me  a  complete  copy  of  all  the  proceedings  in  his 
office  upon  my  said  application,  v^rhich  copy  has 
been  filed  herewith,  and  is  to  be  taken  as  part 
hereof. 

f.  And  thereupon  I  pray  that  the  court  do  revise 
and  reverse  said  decision,  to  the  end  that  justice 
may  be  done  in  the  premises. . 

2.  This  petition  shall  be  filed  in  the  clerk's  office  of 
this  court:  and  as  soon  as  the  petitioner  has  made  the 
deposit  required  by  law  at  the  commencement  of  suits 
in  this  court,  or  said  deposit  has  been  dispensed  with, 
the  clerk  shall  enter  the  case  in  a  docket  to  be  provided 
by  him  for  the  purpose,  and  in  which  a  brief  of  said  fil- 
ing and  of  all  subsequent  proceedings  in  the  case  shall 
be  entered  as  and  when  they  successively  occur,  down 
to  and  including  the  final  decision. 

3.  The  clerk  shall  provide  a  minute-book  of  his  office, 
in  which  he  shall  record  every  order,  rule,  judgment,  or 
decree  of  the  court  in  each  case,  in  the  order  of  time  in 
which  said  proceedings  occur :  and  of  this  book  there 
shall  be  two  alphabetical  indexes,  one  showing  the 
name  of  the  party  applying  for  the  patent,  and  the  other 
designating  the  invention  by  its  subject-matter  or  name. 

4.  The  cases  in  the  docket  of  c.-iiises  shall  be  succes- 
sively numbered  from  No.  i  onward,  and  each  case 
shall  also  be  designated  by  the  number  assigned  to  it  on 
the  records  of  the  patent  office. 

5.  This  docket  shall  be  called  for  the  trial  of  the  cases 
thereon  on  the  first  day  of  each  session  of  this  court  in 
general  term,  provided  the  petition  has  been  filed  ten 
days  before  the  commencement  of  the  term. 

6.  The  opinions  of  the  court,  when  written,  shall  be 
kept  by  the  clerk  in  the  order  of  their  delivery  and  in  a 
temporary  book-file,  indexed;  and  when  so  many  have 
been  delivered  as  will  make  a  volume  of  convenient  size 
he  shall  cause  them  to  be  bound. 

7.  The  clerk  shall  furnish  to  any  applicant  a  copy 
?f  any  paper  in  any  of  said  appeals  on  payment  of  the 
(awful  lees. 

8.  Hearings  of  said  appeals  shall  be  subject  to  the 
rules  of  the  court  provided  for  other  causes  therein. 

9.  When  the  testimony  of  the  commissioner,  or  of  any 
examiner,  touching  the  principles  of  invention  in  ques- 
tion shall  be  deemed  necessary,  it  shall  be  taken  orally 
in  open  court,  unless  otherwise  ordered  by  the  court. 


And,  in  such  case,  the  courc  may  order  it  to  be  reduced 
to  writing,  and  filed  or  entered  on  lU  minutes,  if  it 
think  proper. 

10.  The  final  judgment  or  order  of  the  court  shall  not 
recite  any  of  the  facts  made  to  appear  in  the  case,  but 
ihall  be  to  the  following  effect : 

This  appeal  having  been  heard  upon  the  record 
from  the  Patent  Office  (and  upon  the  testimony  of 
the  Comf/.issioner  of  Patents),  (of  one  of  the  exam- 
iners), (touching  the  principles  of  the  invention),  and 
having  been  argued  by  (counsel  for)  the  petitioner 
and  (for)  the  Commissioner: 

It  is  thereupon  ordered  and  adjudged  that  the 
(petition  be  dismissed)  (Commissioner  do  issue  to  the 
petitioner  a  patent),  (as  prayed),  (granting  the  petitioner 
\so  and  so\). 

And  that  the  clerk  of  this  court  transmit  to  the 
Commissioner  of  Patents  a  copy  of  this  decree 
duly  authenticated. 

36.  Disclaimer. 

To  the  Commissioner  of  Patents  : 

Your  petitioner,  A.  B.,  of ,  county  of 

and   State   of  ,   represents    that   he   has,   by 

grants  duly  recorded  in  the  United  States  Patent 
OfSce  (liber  — ,  p.  — ),  become  the  owner  of  an  ex 
elusive  right  within  and  for  the  several  States  of 
(Maine,  New  Hampshire,  and  Vermont),  to  make, 
use,  and  vend  to  others  to  be  used,  a  certain  im- 
proved mechanical  movement,  for  which  letters 
patent  of  the  United  States  were  granted  to  C. 

D.,  of ,  in  the  county  of  ,  and  State  of 

,  April  I,  1869;  that  he  has  reason  to  believe 

that,  through  inadvertence,  accident,  or  mistake, 
the  specification  and  claim  of  said  letters  patent 
are  too  broad,  including  that  of  which  said  pat- 
entee was  not  the  first  inventor.  Your  petitioner, 
therefore,  hereby  enters  his  disclaimer  to  that 
part  of  the  claim  in  said  specification  %vhich  is  in 
the  following  words,  to  wit : 

I  also  claim  the  sleeves  A  B,  having  each  a 
friction  cam,  C,  and  connected,  respectively,  by 
means  of  chains  or  cords  K  L  and  M  N,  with  an 
oscillatory  lever,  to  operate  substantially  as 
herein  shown  and  described.  A.  B. 

Witness,  C.  D. 

37.  Caveat. 

The  petition  of  A.  B.,  of ,  in  the  county  of 

,  and  State  of ,  respectfully  represents  : 

That  he  has  made  certain  improvements  in 
velocipedes,  and  that  he  is  now  engaged  in  mak- 
ing experiments  for  the  purpose  of  perfecting  the 
same,  preparatory  to  applying  for  letters  patent 
therefor.  He  therefore  prays  that  the  subjoined 
description  of  his  invention  may  be  filed  as  a 
caveat  in  the  confidential  archives  of  the  Patent 
Office.  A.  B. 

Specification. 

The  following  is  a  description  of  my  newly-in- 
vented velocipede,  which  is  as  full,  clear,  and 
exact  as  I  am  able  at  this  time  to  give,  reference 
being  had  to  the  drawing  hereto  annexed. 

This  invention  relates  to  that  class  of  veloci- 
pedes in  which  there  are  two  wheels  connected 
by  a  beam  forming  a  saddle  for  the  rider,  the 
feet  being  applied  to  cranks  that  revolve  the 
front  wheel. 

The  object  of  my  invention  is  to  render  it  un- 
necessary to  turn  the  front  wheel  so  much  as 
heretofore,  and  at  the  same  time  to  facilitate 
the  turning  of  sharp  curves.  This  I  accom 
plish  by  fitting  the  front  and  the  hind  wheels  on 
vertical  pivots,  and  connecting  them  by  means 
of  a  diagonal  bar,  as  shown  in  the  drav^ing,  so 
that  the  turning  of  the  front  wheel  also  turns  the 
back  wheel  with  a  position  at  an  angle  with  the 
beams,  thereby  enabling  it  easily  to  turn  a  curve. 

In  the  drawing,  A  is  the  front  wheel,  B  the 
hind  wheel,  and  C  the  standards  extending  from 
the  axle  of  the  front  wheel  to  the  vertic£.i  pivot  a 
in  the  beam  b,  and  D  is  the  cross-bar  upon  the 
end  of  a,  by  which  the  steering  is  done.  The 
hind  wheel,  B,  is  also  fitted  with  jaws,  c,  and  a 
vertical  pivot,  d.  A.  B. 

\Vitnesses,  C.  D. 
E.  F. 

[The  form  of  oath  will  be  subst.^ntlally  that  provided 
for  original  applications,  except  that,  .is  a  caveat  c»n 
only  be  filed  by  a  citizen,  or  an  alien  who  has  resided 


PATENTS. 


603 


for  one  year  )ast  past  In  the  Uniterl  States,  and  made 
oath  of  his  intention  to  become  a  citizen,  the  oath  should 
be  modified  accordingly.] 

ASSIGNMENTS. 

SS.  Of  an  Undivided  Fractional  Inter- 
est  in  an  Invention  before  the  Istsue 
of  I^etterH  Patent. 

In  consideration  of  one  dollar,  to  me  paid  by 

C.  D.,  of ,  I  do  hereby  sell  and  assign  to  said 

C.  D.  an  undivided  half  of  all  my  right,  title,  and 
interest  in  and  to  a  certain  invention  in  plows,  as 
fully  set  forth  and  described  in  the  specification 
which  I  have  prepared  (if  the  application  has  been 
\mlready  made,  say  "  and  filed  "  )  preparatory  to  ob- 
taining letters  patent  of  the  United  States  there- 
fsr.  And  I  do  hereby  authorize  and  request  the 
Commissioner  of  Patents  to  issue  the  said  letters 
patent  jointly  to  myself  and  the  said  C.  D.,  our 
heirs  and  assigns. 

Witness  my  hand,  this  16th  day  of  February, 
x868.  A.  B. 

39.  Of  the  Entire  iMtercst  in  Ectters 
I*atoi3t. 

in  consideration  of  five  hundred  dollars,  to  me 

in  hand  paid  by  C.  D.,of  ,  I  do  hereby  sell 

and  assign  to  the  said  C.  D.  all  my  right,  title, 
and  interest  in  and  to  the  letters  patent  of  the 
United  States,  No.  41806,  for  an  improvement  in 
locomotive  head-lights,  granted  to  me,  July  30, 
1864,  the  same  to  be  held  and  enjoyed  by  the  said 
C.  D.  to  the  full  end  of  the  term  for  which  said 
letters  patent  are  granted,  as  fully  and  entirely  as 
the  same  would  have  been  held  and  enjoyed  by 
me  if  this  assignment  and  sale  had  not  been 
made. 

Witness  my  hand,  this  loth  day  of  June,  i86g. 

A.  B. 

40.  Of  an  Undivided  Interest  in  the 
Eetters  Patent  and  Exten»iion  thereof. 

In  consideration  of  one  thousand  dollars,  to  me 

paid  by  C.  D.,  of ,  I  do  hereby  sell  and  assign 

to  the  said  C.  D.  one  undivided  fourth  part  of  all 
my  right,  title,  and  interest  in  and  to  the  letters 
patent  of  the  United  States,  No.  10485,  for  an 
improvement  in  cooking-stoves,  granted  to  me. 
May  i5, 1855;  the  same  to  be  held  and  enjoyed 
by  the  said  C.  D.  to  the  full  end  of  the  term  for 
which  said  letters  patent  are  granted,  and  for 
the  term  of  any  extension  thereof,  as  fully  and 
entirely  as  the  same  would  have  been  held  and 
enjoyed  by  me  if  this  assignment  and  sale  had 
not  been  made. 

>Vitness  my  hand,  this  7th  day  of  January, 
1869.  A.  B. 

41.  Exclusive  Territorial  Grant  by  an 

AsKigrnee. 

In  consideration  of  one  thousand  dollars,  to  me 
paid  by  C.  D.,  of ,  I  do  hereby  grant  and  con- 
vey to  the  said  C.  D.  the  exclusive  right  to  make, 

use,  and  vend  within  the  State  of ,  and  in  no 

other  place  or  places,  the  improvement  in  corn- 
planters  for  which  letters  patent  of  the  United 
States,  dated  August  15,  1867,  were  granted  to 
E.  F.,  and  by  said  E.  F.  assigned  to  me,  Decem- 
ber 3,  1867,  by  an  assignment  duly  recorded  in 
liber  X8,  p.  416,  of  the  records  of  the  Patent 
Office,  the  same  to  be  held  and  enjoyed  by  the 
said  C.  D.  as  fully  and  entirely  as  the  same  would 
have  been  held  and  enjoyed  by  me  if  this  grant 
had  not  been  made. 

Witness  my  hand,  this  igth  day  of  March,  1868. 

A.  B. 
43.  Eicense— Shop-Right. 

In  consideration  of  fifty  dollars,  to  be  paid  by 

the  firm  of  S.  J.  &  Co.,  of ,  I  do  hereby  license 

and  empower  the  said  S.  J.  &  Co.  to  manufac- 
ture, at  a  single  foundry  and  machine  shop  in 
said ,  and  in  no  other  place  or  places,  the  im- 
provement in  cotton-seed  planters  for  which  let- 
ters patent  of  the  United  States,  No.  71846,  were 
granted  to  me,  November  13,  1868,  and  to  sell  the 
machines  so  manufactured  throughout  the  Uni- 
ted States,  to  the  full  end  of  the  term  for  ^vhich 
said  letters  patent  are  granted. 

Witness  my  band,  this  asd  day  of  April,  1869. 

A.  B. 


43.  Elcense— Wot  ExclnslTe— With 
Royally. 

This  agreement,  made  this  i3th  day  of  Septem- 
ber, 1868,  between  A.  B.,  party  of  the  first  part, 
and  C.  D.  &  Co.,  party  of  the  second  part,  wit- 
nesseth,  that,  whereas  letters  patent  of  the  Uni- 
ted States  for  an  improvc-ment  in  horse-rakes 
were  granted  to  the  party  of  the  first  part,  dated 
October  4,  1867;  and  whereas  the  party  of  the 
second  part  is  desirous  of  manufacturing  horse- 
rakes  containing  said  patented  improvement : 
now,  therefore  the  parties  have  agreed  as  fol- 
lows: 

1.  The  party  of  the  first  part  hereby  licenses 
and  empowers  the  party  of  the  second  part  to 
manufacture,  subject  to  the  conditions  herein- 
after named,  at  their  factory  in  ,  and  in   no 

other  place  or  places,  to  the  end  of  the  term  for 
which  said  letters  patent  were  granted,  horse- 
rakes  containing  the  patented  improvements, 
and  to  sell  the  same  within  the  United  States. 

2.  The  party  of  the  second  part  agrees  to  make 
full  and  true  returns  to  the  party  of  the  first  part, 
under  oath,  upon  the  first  days  of  July  and  |anu- 
ary  in  each  year,  of  all  horse-rakes  containing  the 
patented  improvements  manufactured  by  them. 

3.  The  party  01  the  second  part  agrees  to  pay 
to  the  party  of  the  first  part  five  dollars,  as  a 
li:ense-fee  upon  every  horse-rake  manufactured 
by  said  party  of  the  second  part  containing  the 
patented  improvements  ;  provided,  that  'f  the 
said  fee  be  paid  upon  the  days  provided  herein 
for  semi-annual  returns,  or  within  ten  days 
thereafter,  a  discount  of  fifty  per  cent,  shall  be 
made  from  said  fee  for  prompt  payment. 

4.  Upon  a  failure  of  the  party  of  the  second 
part  to  make  returns,  or  to  make  payment  of 
license-fees,  as  herein  provided,  for  thirty  days 
after  the  days  herein  named,  the  party  of  the  first 
part  may  terminate  this  license  by  serving  a 
written  notice  upon  the  party  of  the  second  part ; 
but  the  party  of  the  second  part  shall  not  thereby 
be  discharged  from  any  liability  to  the  party  of 
the  first  part  for  any  license-fees  due  at  the  time 
of  the  service  of  said  notice. 

In  witness  whereof,  the  parties  above  named 
(the  said  Uniontuwn  Agricultural  Works,  by  its  presi- 
dent) have  hereunto  set  their  hands  the  day  and 
year  first  above  written.  A.  B. 

C.  D.&Co. 
41.  Transfer  of  a  Trade-mark, 

We,  A.  B.  and  C.  D.,  of ,  partners  under  the 

firm-name  of  B.  &  D.,  in  consideration  of  five 
hundred  dollars,  to  us  paid  by  E.  F.,  of  the  sama 
place,  do  hereby  sell,  assign,  and  transfer  to  the 
said  E.  F.,  and  his  assigns,  the  exclusive  right  to 
use  in  the  manufacture  and  sale  of  stoves  a  cer- 
tain trade-mark  for  stoves  deposited  by  us  in  the 
United  States  Patent  Office,  and  recorded  there- 
in July  15,  1870  ;  the  same  to  be  held,  enjoyed,  and 
used  by  the  said  E.  F.,  as  fully  and  entirely  as 
the  same  would  have  been  held  and  enjoyed  by 
us  if  this  grant  had  not  been  made. 
Witness  our  hands,  this  20th  day  of  July,  1870. 

A.  B. 
C.  D. 
EXTENSIONS. 
45.  Statement  and  Acconnt. 
In  the  matter  of  the  application  of  A.  B.,of  the 
city,  county,  and  State  of  New  York,  executrix 
of  the  last  will  and  testament  of  C.    £>.,  de- 
ceased, for  extension  of  letters  patent  No.  10817, 
granted  to  him  January  g,  1855,  for  improve- 
ments in  mowing-machines. 
To  the  Commissioner  of  Patents : 

The  applicant  respectfully  represents  that,  prior 
to  obtaining  the  letters  patent  now  sought  to  be 
extended,  the  said  C.  D.  was  a  farmer  ;  that  his 
attention  was  called  to  the  subject  of  mowing- 
machines,  by  the  difficulty  of  cutting  grass  by  the 
machines  then  in  use;  that,  after  numerous  pa- 
tient and  costly  experiments,  he  succeeded  in 
perfecting  his  invention  and  in  obtaining  his  pat- 
ent. He  immediately  made  arrangements  to 
manufacture  the  improvement,  and  for  this  pur- 
pose sold  three-fourths  of  his  farm.  He  then, 
with  others,  built  a  factory  and  commenced  oper« 
ations  ;  but,  two  years  afterward,  the  cstablisb' 


<<H 


PATENTS. 


ment  was  destroyed  by  fire,  without  insurance. 
In  the  exposure  at  the  fire  C.  D.  contracted  a  dis- 
ease which  confined  him  to  the  house  for  three 
years,  when  he  died,  leaving  Applicant,  his  exec- 
utrix and  widow,  with  a  large  family  and  small 
means.  Nevertheless,  applicant  made  every  ef- 
fort to  induce  manufacturers  to  use  the  improve- 
ment, and  at  last  succeeded  in  inducing  the  firm 
of  E.  T.  &  Co.,  of ,  to  recommence  the  man- 
ufacture of  the  machines.  But  after  four  years 
the  firm  failed,  being  largely  in  debt  to  applicant 
for  royalties.  After  this  it  became  impossible  for 
applicant  to  do  anything  with  the  invention. 
She  wrote  to  various  manufacturers,  and  made 
personal  application  to  others,  but  found  them 
unwilling  to  make  arrangements  to  pay  royalties, 
cr  to  use  *:he  invention  in  any  way,  unless  she 
would  sell  the  patent,  including  the  extension, 
for  a  nominal  sum.  She  states,  however,  that  she 
has  at  length  succeeded  in  perfecting  an  agree- 
ment with  G.  H.  &  Co.,  of ,  conditioned  upon 

the  extension,  whereby  the  said  firm  agreed  to 
manufacture  the  patented  machines,  and  to  pay 
her  a  royalty  of  three  dollars  upon  each  one  made. 
Aside  from  the  interest  so  vested  in  G.  H.  &  Co. 
the  entire  interest  in  the  extension  remains  vested 
in  her,  and  she  has  made  no  assignment,  con- 
tract, or  agreement  of  any  kind  for  the  sale  or 
assignment  of  the  extended  term  to  any  person 
whatsoever. 

The  following  is  believed  to  be  a  correct  state- 
ment of  receipts  and  expenditures,  and  is  as  full 
as  it  is  possible  to  make  it : 

Receipts. 
From  profits  from  business  (for  partic- 
ulars of  which  see  schedule  A)    .        .  $1,336  00 
From  royalties  from  E.  T.  &Co.  (for  de- 
tails of  which  see  Schedule  B)     .        .     2,341  50 
From  sale  of  shop-right  to  L.  M.   .        .       35000 


Total  receipts $31827  50 

Expenditures. 
Expense  of  procuring  patent  .        .        .        350  00 

Net  receipts $3,577  5° 

The  invention  is  exceedingly  useful,  as  will  be 
abundantly  proved.  The  testimony  will  show 
that  it  has  been  introduced  upon  20,000  mowing- 
machines,  and  has  increased  the  value  of  said 
machines  not  less  than  three  dollars  each.  It  is 
evident,  therefore,  that  the  public  have  been 
greatly  benefited  by  the  use  of  this  invention  ; 
while  the  fact  that  C.  D.  invested  his  entire  time 
and  means,  and  finally  lost  his  life  in  the  prose- 
cution of  his  invention,  is  respectfully  offered  as 
proof  that  he  has  not  been  adequately  remuner- 
ated for  his  time,  ingenuity,  and  expense  be- 
stowed upon  this  invention,  and  the  introduction 
thereof  into  use. 
Respectfully  submitted.  A.  B., 

£jcecuirzji:. 
\Here  follows  oath.     See  Form  ^^.\ 
46.  Reasons   of  Opposition   to   an   ex- 
tension (by  Individuals). 
In  the  matter  of  the  application  of  A.  B.  for  an 
extension  of  letters  patent  for  improvements 
in  sewing-machines,  No.  12213,  dated  May  15, 

1855- 
To  the  Commissioner  of  Patents: 

\Ve  wish  to  oppose  the  application  above  re- 
ferred to,  for  the  following  reasons,  viz.  : 

1.  Applicant  was  not  the  original  and  first  in- 
ventor of  the  improvement  claimed  by  him  in 
said  letters  patent,  the  same  having  been  fully 
described  in  the  English  patent  No.  37,  of  the 
year  1853. 

2.  If  said  alleged  invention  was  ever  made  by 
applicant,  which  we  deny,  it  is  not  useful. 

3.  Said  invention  is  not  valuable  and  important 
to  the  public. 

4.  Applicant  has  been  adequately  remunerated 
for  his  time,  ingenuity,  and  expense  in  originating 
and  perfecting  his  alleged  invention. 

5.  Applicant  has  not  used  due  diligence  in  intro- 
ducing his  alleged  invention  into  general  use. 

6.  Applicant  has  assigned  to  other  parties  all 
interest  in  the  extension  ;  and  the  extension,  if 
Cranted,  would  not  be  for  his  benefit. 


(See  assignment  to  C.  D.,  dated  April  1, 1864; 
recorded  June  2,  1864,  in  liber  J'u,  page  217.) 

7.  The  statement  and  account  filed  by  applicant 
do  not  present  a  true  statement  of  his  receipts 
and  expenditures.  £.  F. 

G.  H. 
I.  K. 
DEPOSITIO^TN. 
47.  STotlce  or  Tallin)^  Testimony. 
Boston,  Mass.,  March  29,  i86g. 
In  the  matter  of  the  interference  between  the  ap- 
plication of  A.  B.  for  a  paper-collar  machine, 
and   the  patent  No.  85038,  granted  December 
15, 1868,  to  C.  D.,  now  pending  before  the  Com- 
missioner of  Patents. 

Sir:  You  are  hereby  notified  that  on  Wednes- 
day, March  31,  1869,  at  the  office  of  E.  F.,  esq., 
No.  30  Court  street,  Boston,  Massachusetts,  at 
nine  o'clock  in  the  forenoon,  I  shall  proceed  to 
take  the  testimony  of  G.  H.,  J.  K.,  and  L.  M.,  all 
of  Boston,  as  witnesses  in  my  behalf. 

The  examination  will  continue  from  day  to  day 
until  completed.  You  are  invited  to  attend  aaa 
cross-examine.  A.  B., 

By  R.  Q..  his  Attorney . 

,  Providence,  Rhode  Island. 

Proof  of  Servicb. 

State  of ,  county  of ,  ss. : 

Personally  appeared  before  me,  a  justice  of  the 
peace,  the  above-named  A.  B.,  who,  being  duly 
sworn,  deposes  and  says  that  he  served  the  above 
notice  upon  O.  P.,  the  attorney  of  the  said  C.  D., 
at  one  o'clock  p.  m.  of  the  30th  day  of  March, 
1869,  by  leaving  a  copy  at  his  office  in  Providence, 
Rhode  Island,  in  charge  of  his  partner,  Ri  S. 

A.  B, 
Sworn  to  and  subscribed  before  me,  this  31st 
day  of  March,  i86g.  E.  F. 

(Service  may  be  acknowledged  by  the  party  upon 
whom  it  is  made  as  follows  : 

Service  of  the  above  notice  acknowledged.     C.  D., 
By  E.  F.,  his  Attorney.) 

48.  Form  of  I>epo«ition. 

Before  the  Commissioner  of  Patents,  in  the 
matter  of  the  interference  between  the  applica- 
tion of  A.  B.  for  a  paper-collar  machine,  and  the 
letters  patent,  No.  85038,  granted  December  15. 
1S68,  to  C.  D. 
Depositions  of  witnesses  examined  on  behalf  of 

A.  B.,  pursuant  to   the  annexed  notice,  at  the 

office   of  E.   F.,   No.  30  Court  Street,  Boston, 

Massachusetts,  on  Wednesday,  March  31,1869. 

Present  S.  T.,  esq.,  on  behalf  of  A.  B.,  and  V. 

\V.,  esq., on  behalf  of  C.  D. 

G.  H.  (i.»J 

G.  H.,  being  duly  sworn  {or  afTirmed),  doth  de- 
pose and  say,  in  answer  to  interrogatories  pro- 
posed to  him  by  S.  T.,  esq.,  counsel  for  A.  B.,  as 
follows,  to  wit : 

Question  i.  What  is  your  name,  age,  residence, 
and  occupation? 

Answer  i.  My  name  is  G.  H. ;  I  am  forty-three 
years  of  age  ;  I  am  a  manufacturer  of  paper  col- 
lars, and  reside  in  Chelsea,  Massachusetts. 

Question  2,  etc. 

And  in  answer  to  cross-interrogatories  pro- 
posed to  him  by  V.  W.,  esq.,  counsel  for  C.  D., 
he  saith : 

Cross-question  I.  How  long  have  you  known 
A.  B.  ? 

Answer  i. 

G.  H.    1 

49.  Certifloate  of  Officer. 

( To  follotv  deposition.) 

State  of ,  county  of ,  ss. 

At  Boston,  in  said  county,  on  the  31st  day  of 
March,  A.  D.  1869,  before  me  personally  appeared 
the  above-named  G.  H.,  and  made  oath  that  the 
foregoing  deposition,  by  him  subscribed,  contains 
the  truth,  the  whole  truth,  and  nothing  but  the 
truth.  The  said  deposition  is  taken  at  the  re- 
quest of  A.  B.,  at  the  time  and  place  named  in 
the  notice  hereto  attached,  to  be  used  upon  the 
hearing  of  an  interference  between  the  claims  of 
the  said  A.  B.  and  those  of  C.  D.,  before  the  Coni* 

&-See  Rule  114. 


1>AT£NTS— I'AYMENt. 


605 


mlasionsr  of  Patents,  on  the  3d  day  of  May,  A.  D. 
1869. 

The  said  C.  D.  was  duly  notified,  as  appears  by 
the  original  notice,  hereto  annexed,  and  attended 
by  V.  W.,  esq.,  his  counsel.  E.  F., 

Justice  0/  the  Peace. 

The  niagistrate  shall  then  append  to  the  deposition 
the  notice  under  which  it  was  talicn,  shall  seal  up  the 
testimony  and  direct  it  to  the  commissioner  of  patents, 
placing  upon  the  envelope  a  certificate,  in  substance  as 
follows ; 

I  hereby  certify  that  the  within  deposition  of 
G.  H.  (if  the  package  contains  more  than  one  deposi- 
tion, give  all  the  naniesi,  relating  to  the  matter  of 
Interference  between  A.  B.  and  C.  D.,  was  takeiv, 
sealed  up,  and  addressed  to  the  Commissioner  of 
Patents  by  me  this  36th  day  of  April,  A.  D.  iSfig. 

E.  F., 
Justice  0/  the  Peace. 

Registration  of  Prints  and  liabels. 

liy  an  act  of  Congress  approved  June  18,  1874  (to 
take  effect  on  and  after  the  ist  day  of  August,  1874),  it 
is  provided  that  certain  prints  and  labels  may  be  regis- 
tered in  this  office. 

Sec.  3.  That  in  the  construction  of  this  act  the  words 
"engraving,"  "cut,"  and  "print,"  shall  be  applied 
only  to  pictorial  illustrations  or  works  connected  with 
the  fine  arts,  and  no  prints  or  labels  designed  to  be  used 
for  any  other  articles  of  manufacture  shall  be  entered 
under  the  copyright  law,  but  may  be  registered  in  the 
patent  office.  And  the  commissioner  of  patents  is 
hereby  charged  with  the  supervision  and  control  of  the 
entry  or  registry  of  such  prints  or  labels,  in  conformity 
with  the  regulations  provided  by  law  as  to  copyright 
of  prints,  except  that  there  shall  be  paid  for  recording 
the  title  of  any  print,  or  label,  not  a  trade-mark,  six 
dollars,  which  shall  cover  the  expense  of  furnishing  a 
copy  of  the  record  under  the  seal  of  the  commissioner 
of  patents  to  the  party  entering  the  same. 

Sec.  4.  That  all  laws  and  parts  of  laws  inconsistent 
with  the  foregoing  provisions  be  and  the  same  are 
hereby  repealed. 

Sec.  s.  That  this  act  shall  take  effect  on  and  after  the 
ist  day  of  August,  eighteen  hundred  and  seventy-four. 

Approved,  June  18,  1874. 

The  words  "  prints  "  and  "  labels  "  as  used  in  this  act, 
so  far  as  it  relates  to  registration  in  the  Patent  Ofhce, 
are  construed  as  synonymous,  and  are  defined  as  any 
device,  picture,  word  or  words,  figure  or  figures  (not  a 
trade-mark)  impressed  or  stamped  directly  upon  the 
articles  of  manufacture,or  upon  a  slip  or  piece  of  paper, 
or  other  material,  to  be  attached  in  any  manner  to 
manufactured  articles,  or  to  bottles,  boxes  and  packages 
containing  them,  to  indicate  the  contents  of  the  package, 
the  name  of  the  manufacturer  or  the  place  of  manufac- 
ture,  the  quality  of  goods,  directions  for  use,  etc. 

By  the  words  "articles  of  manufacture,"  to  which  such 
print  or  label  is  applicable  by  said  act,  are  meant  all  vend- 
ible commodities  produced  by  hand,  machinery,  or  art. 

But  no  such  print  or  label  can  be  registered  unless  it 
properly  belong  to  an  article  of  commerce,  and  be  as 
above  defined  :  nor  can  the  same  be  registered  as  such 
print  or  label  when  it  amounts  in  law  to  a  technical 
trade-mark. 

To  entitle  the  owner  of  any  such  print  or  label  to 
register  the  same  in  this  office,  it  is  necessary  that  five 
copies  of  the  same  be  filed,  one  of  which  copies  shall  be 
certified  under  the  seal  of  the  commissioner  of  patents, 
and  returned  to  the  registrant. 

The  certificate  of  such  registration  will  continue  in 
Ibrce  for  twenty-eight  years. 

The  fee  for  registration  of  a  print  or  label  is  six  dollars, 
to  be  paid  in  the  same  manner  as  fees  for  patents. 

The  benefits  of  this  act  seem  to  have  been  originally 
confined  to  citizens  or  residents  of  the  United  States, 
but  appear  to  be  extended  to  British  subjects  and  citizens 
of  Germany  by  existing  treaties. 
Form  ol°  Application  for  Registration 
of  Prints  and  Isabels. 
\Making  necessary  changes  to  suit  each  ctu*.\ 
[For  an  Individual.] 
To  the  Commissioner  of  Patents : 

a-2  Greenl.  Ev.  509.  b-5  Masse.  Droit  Commercial, 
429.  C-3  Halst.  172  ;  4  N.  H.  296;  4  Dev.  &  B.  435. 
d-2  Nott.  &  M'Cord,  519.  e-Com.  Dig.  Merchant,  4. 
f-Pbillips's  £v.  (Cowen  and  H.  ed.)  n.  387.    §^-i  Burr. 


The  undersigned,  A.  B.,  of  thecity  of  Brooklyn, 
county  of  Kings,  and  State  of  New  York,  and  a 
citizen  of  the  United  States  (or  resident  therein,  as 
the  case  may  be),  hereby  furnishes  five  copies  of  a 
label  (or  print,  as  the  case  may  be),  to  be  used  foi 

,  of  which  he  is  the  sole  proprietor.     The 

title  of  said  label  (or  print)  is ,  and  the   said 

label  (or  print)consists  of  the  words  and  figures  as 
follows,  to  wit : (Description.) 

And  he  hereby  requests  that  the  said  print  (or 
label)  be  registered  in  the  Patent  Office,  in  accord- 
ance with  the  act  of  Congress  to  that  effect,  ap- 
proved June  18, 1874.  , 

Brooklyn,  N.  Y.,  August  i,  1883.  Proprietar. 

[For  a  Corporation.] 
To  the  Commissioner  of  Patents: 

The  applicant,  a  corporation  created  by  author- 
ity of  the  laws  of  the  State  of  New  York  (or  other 
authority,  as  the  case  may  be),  and  doing  business  at 

,  in  said  State,  hereby  furnishes  five  copies  of 

a  label  (or  print,  as  the  case  may  be),  to  be  used  for 
^— ,  of  which  it  is  the  sole  proprietor.    The  title 

of  said  print  (or  label)  is ,  and  the  said  label 

consists  of  the  >vords  and  figures  as  follows,  to 
wit; (Description.) 

And  it  is  hereby  requested  that  the  said  label 
(or  print)  be  registered  in  the  Patent  Office,  in 
accordance  with  the  act  of  Congress  to  that 
effect,  approved  June  18,  1874. 

Witness  the  seal  of  said  corporation  at , 

,  X883. 

\Seal.\  , 

President  [or  other  a^fflcerl 

Pathology.  See  Medicai.  Law. 

Pawn.  See  Bailments. 

Pawnbroker.  See  Agency. 

Payment.  See  Contracts. 
Payment  is  the  fulfilment  of  a  promise,  or 
the  performance  of  an  agreement.  The  dis- 
charge, in  money,  of  a  sum  due.  The  word 
payment  is  not  a  technical  term;  it  has  been 
imported  into  law  proceedings  from  the  ex- 
change, and  not  from  law  treatises.  When 
payment  is  pleaded  as  a  defence,  the  defendant 
must  prove  the  payment  of  money  or  something 
accepted  in  its  stead  made  to  the  plaintiff,  or 
some  person  authorized  in  his  behalf  to  receive 
it.*  Payment  in  its  most  general  acceptation  is 
the  accomplishment  of  every  obligation,  whether 
it  consists  in  giving  or  doing.  In  a  more  re- 
stricted sense  payment  is  the  discharge  in  money 
of  a  sum  due.** 

Payment  must  be  made  in  coined  money  (or 
treasury  notes  made  legal  tender)  if  the  cred- 
itor insists  upon  having  it."  Copper  cents  are 
not  legal  tender  under  the  United  States  Con- 
stitution.* Payment  by  merchant  must  be  made 
in  money  or  by  bill."  But  the  creditor  may 
waive  this  right,  and  anything  which  he  has 
accepted  as  satisfaction  for  the  debt  will  be  con- 
sidered as  payment. 

Upon  a  plea  of  payment,  the  defendant  may 
prove  a  discharge  in  bank-notes.  Negotiable 
notes  of  individuals,  or  a  debt  already  due 
from  the  payee,  delivered  and  accepted,  or  dis- 
counted as  payment.'  Bank-notes  in  conform- 
ity to  usage  and  common  understanding,  are 
regarded  as  cash,*  unless  objev..ed  to."*  Treas- 
ury notes  are  not  cash.'  Giving  a  check  is 
not  considered  as  payment ;  but  the  holder  may 
treat  it  as  a  nullity  if  he  derives   no  benefit 

452  ;  3  Id.  1516 ;  9  Johns.  120  ;  6  Md.  37.  h-Met. 
M.iss.  356 ;  8  Ohio,  169  ;  10  Me.  475  :  2  Cr.  &  J.  16,  n. ; 
5  Yerg.  199;  4  F.sp.  267;  3  Humph.  16a;  6  AU-  (ti. 
S.)  226.     i-3  Conn.  534. 


6o6 


PAYMENT. 


from  it,  provided  he  has  not  been  guilty  of 
negligence,  so  as  to  cause  injury  to  the  drawerJ 

Payment  in  forged  bills  is  generally  a  nullity.'' 
So  also  of  counterfeit  coin ;  but  an  agreement 
to  sell  goods  and  accept  specific  money  is  go9d, 
and  payment  of  these  coins  is  valid,  even 
though  they  be  counterfeit.'  And  the  forged 
notes  must  be  returned  in  a  reasonable  time,  to 
throw  the  loss  upon  the  debtor."  Payment  to 
a  bank  of  its  own  notes  which  are  received 
and  afterwards  discovered  to  be  forged  is  a 
good  payment."  A  forged  check  received  as 
cash,  and  passed  to  the  credit  of  a  customer,  is 
a  good  payment."  Payment  in  bills  of  an  in- 
solvent bank,  where  bolh  parties  were  innocent, 
has  been  held  no  payment. p  On  the  other 
hand,  it  has  been  held  good  payment.' 

If  a  bill  of  exchange  or  promissory  note  be 
given  to  a  creditor,  and  accepted  as  payment, 
it  shall  be  a  good  payment.'  But  regularly  a 
bill  of  exchange  or  note  given  to  a  creditor 
shall  not  be  a  discharge  of  the  debt  till  pay- 
ment of  the  bill,  unless  so  accepted.*  If  a 
debtor  gives  his  own  promissory  note,  it  is  not 
payment,  unless  it  is  so  expressly  agreed,'  and 
when  so  expressed  it  extinguishes  the  debt." 
Whether  there  was  such  an  agreement  is  a 
question  for  the  jury.''  And  if  payment  be 
made  in  the  note  of  a  factor  or  agent  employed 
to  purchase  goods,  or  intrusted  with  the  money 
to  be  paid  for  them;  if  the  note  be  received  as 
payment  it  will  be  good  in  favor  of  the  princi- 
pal,'' but  not  if  received  conditionally;  and 
this  is  a  question  of  fact  for  the  jury.''  A  bill 
of  exchange  drawn  on  a  third  person,  and 
accepted,  discharges  the  debt  as  to  the  drawer.? 
And  in  an  action  to  recover  the  price  of  goods, 
payment  by  a  bill  not  dishonored  has  been  held 
as  good  defence.*  Retaining  a  draft  on  a  third 
party  an  unreasonable  length  of  time  will  oper- 
ate as  payment  if  loss  be  occasioned  thereby.' 
In  the  sale  of  a  chattel,  if  a  note  of  a  third  per- 
son be  accepted  for  the  price,  it  is  good  pay- 
ment.'' Not  so,  however,  if  the  note  be  the 
promise  of  one  of  the  partners  in  payment  of  a 
partnership  debt.' 

Payment  may  be  made  through  the  interven- 

1-2  Parsons'  Contr.  136:  2  Campb.  515;  8  T.  R.  451  ; 
2  Bos.  &  P.  518  :  4  Ad.  &  El.  952  ;  4  Johns.  296 ;  i  Hall 
(N.  Y.)56;  30  N.  H.  256:  but  see  14  How.  240.  k-io 
Wheat.  333:  2  Johns.  455;  6  Hill,  340;  7  Leigh,  617;  3 
Hawks,  568 ;  2  Harr.  &  J.  368  ;  4  Gill.  &  J.  463 ;  4  Hi. 
392;  II  Id.  137:  3  Penn.  St.  330:  5  Conn.  71.  l-i  T. 
K.  225;  14  S.  &  R.  51.  in-7  Leigh,  617;  11  111.  137. 
n-i  Parsons'  Contr.  220.  0-4  Dall.  234;  S.  C.  i  Binn. 
27;  10  Vt.  141.  p-7  T.  R.  64;  13  Wend.  loi  ;  11  Vt. 
576;  10  N.  H.  365;  22  Me.  85.  q-i  W.  &  S.  92  ;  6 
Mass.  185:  12  Ala.  280;  8  Yerg.  175.  The  point  is 
siill  unsettled,  and  is  said  to  be  a  question  of  intention 
rather  than  of  law.  Story  Prom.  Notes  125,*  477,*  641. 
r-Comm.  Dig.  Merchant  (F.);  30  N.  H.  540:  27  Ala. 
iN.S.)  254;  16  IlL  161;  2  Duer.  133;  14  Ark.  267;  4 
Rich.  600;  34  Me.  324.  s-Skinn.  410;  i  Salk.  124.  t- 
10  Pet.  567 ;  6  Cranch.  253 ;  4  Mason,  142 ;  1  Wend. 
424  ;  9  Id.  278,  279  ;  15  Johns.  247:  9  Id.  310  ;  8  Cow. 
77 ;  I  Id.  359 ;  3  Wend.  66 ;  5  Id.  85  :  8  Johns.  389 ;  9 
Conn.  23  ;  8  Id.  472  ;  2  N.  H.  525  ;  4  Gill  &  Johns.  305  ; 
2  Id.  493;  3  Harr.  &  Johns.  193  ;  2  Vt.  290;  4  Id.  555  ; 


I  ivI'Cord,04;  i  Wash.  C.  C.  328,  449;  3  Serg.  &  R. 
233  ;  6  T.  R.  5»  ;  7  Id.  64  ;  5  Id.  513  •  Wrightw.  32  ;  i 
Neville  &  Man.  229  ;    6  Mass.  143  ;    Poth.  Ob.  //.  3,  c. 


tion  of  a  third  party  who  acts  as  the  agent  of 
both  parties ;  as,  for  example,  a  stakeholder. 
If  money  be  deposited  with  him  to  abide  the 
event  of  a  legal  wager,  neither  party  can  claim 
it  until  the  wager  is  determined,  and  then  he  is 
bound  to  pay  it  to  the  winner.*  If  the  wager  is 
illegal,  the  depositor  may  reclaim  the  money 
any  time  before  it  is  paid  over.'  So  also  with 
an  auctioneer.' 

A  transfer  of  funds  called  by  the  civil  law 
phrase  a  payment  by  delegation,  is  payment 
only  when  completely  effected  ;«  and  an  actual 
transfer  of  claim  or  credit  assented  to  by  all  the 
parties  is  a  good  payment.''  When  money  is 
sent  by  letter,  even  though  the  money  is  lost,  it 
is  good  payment,  and  the  del)tor  is  discharged, 
if  he  was  expressly  authorized  or  directed  by 
the  creditor  so  to  send  it,  or  if  such  authority 
can  be  presumed  from  the  course  of  trade.* 
But  even  if  the  authority  be  given  or  inferred, 
at  least  ordinary  diligence  must  be  used  by  the 
debtor  to  have  the  money  safely  conveyed.^ 

Payment  must  be  of  the  whole  sum  ;  and  even 
where  a  receipt  in  full  has  been  given  for  a  pay- 
ment of  part  of  an  ascertained  sum,  it  has  been 
held  not  to  be  an  extinction  of  the  debt.*  But 
payment  of  a  part  may  be  left  to  the  jury  as 
evidence  that  the  whole  has  been  paid;'  and 
payment  of  a  part  at  a  different  time,"  or  place," 
or  in  any  way  more  beneficial  to  the  creditor 
than  that  prescribed  by  the  contract,  is  good." 
Giving  a  chattel,  though  of  less  value  than  the 
debt,  is  a  discharge,?  or  rendering  certain  ser- 
vices, with  the  consent  of  the  creditor,'  or 
assigning  certain  property.'  So  if  a  stranger 
pay  a  part,  or  give  his  note  for  a  part,  and  this 
is  accepted,  it  is  a  good  payment  of  the  debt." 
And  where  a  creditor,  by  process  of  law,  com- 
pels the  payment  of  a  part  of  his  claim,  this  is 
generally  a  discharge  of  the  v.holc' 

The  Payment  must  have  been  Accepted 
Knowingly.  Thus,  if  the  money  is  counted 
out,  and  the  payee  takes  a  part  and  puts  it  in  a 
bag,  this  is  a  good  payment,  and  if  any  is  lost 
it  is  the  payee's  loss."  Where  A.  paid  B. 
£100,  in  the  redemption  of  a  mortgage,  and  B. 

l'^-  3t  2  3 ;  Thompson  Rills,  192,  194.  11-5  Wend.  85. 
V-9  Johns.  310.  w-i  B.  &  Aid.  14;  7  B.  &  C.  17.  x- 
6  Cow.  i8x;  9  Johns.  310;  10  Wend.  271.  y-io  Mod. 
37.     SB-4  Esp.  Cas.  46  :  3  Campb.  41T ;  i  M.  &  M.  28  ; 

4  Bingh.  454;  5  M.  &  S.  62.  a-3  Wils.  553;  2  Dall. 
100;  13  S.  &  R.  318;  2  Wash.  C.  C.  191.  b-3  Cow. 
272;  I  Dev.  &  B.  291.  c-4  Dev.  91,  460.  d-4  Campb 
37.  e-4  Taunt.  474;  5  T.  R.  405  ;  8  B.  &  C.  221  ;  29 
Eng.  L.  &  Eq.  424 ;  31  Id.  452 ;  see  2  Parsons'  Contr. 
138.  f-2  M.  &  W.  244  ;  I  Mann.  &  R.  614.  «f-2  Par- 
sons' Contr.  137.  I1-4  Bingh.  112;  2  B.  &  Aid.  30:  5 
Id.  228;  7  N.  H.  345,  397;  17  Mass.  400.  This  seems 
to  be  very  similar  to  payment  by  drawing  and  accept- 
ance of  a  bill  of  exchange.  1-Peakc  67;  11  M.  &  W. 
233'  j-See  3  Mass.  249 ;  Ry.  &  M.  149  :  i  F.xch.  477; 
Peake  186.  k-5  Co.  177;  2  B.  &  C.  477:  5  East.  230; 
3  N.  H.  518;  II  Vt.  60;  26  Me.  88;  37  Id.  361;  10  Ad. 
&  El.  121 ;  4  Gill  &  J.  301; ;  9  Johns.  333  ;  17  Id.  169  ■. 
It  How.  100.  1-5  Cranch,  11;  3  N.  H.  518.  ni-2 
Met.  (Mass.)  283.  11-3  Hawks.  580.  0-15  M.  &  W. 
23.     p-Dyer.  75,  «.•  2  Littell,  49:  3  Barb.  Ch.  621.    <|- 

5  Day,  3S9.  r-5  Johns.  386;  13  ^fass.  424.  B-ii  East. 
390:  4  R.  &  C.  500;  13  Ala.  (N.  S.)  353:  14  Wend. 
116;  2  Met.  (Mass.)  283.  t-ii  S.  &  R.  78:  16  Johns. 
121 ;  2  Seld.  179;  6  Cush.  38;  3  Parsons'  Contr.  232. 
U-s  Mod.  398. 


PAYMENT. 


607 


bacTe  C.  put  it  in  his  closet,  and  C.  did  so,  and 
A.  demanded  liis  papers,  which  B.  refused  to 
deliver;  and  A.  demanded  back  his  money, 
and  B.  directed  C.  to  give  it  to  him,  and  C.  did, 
it  was  held  to  be  a  payment  of  the  mortgage  J 
Generally,  there  can  be  but  little  doubt  as  to 
acceptance  and  non-acceptance,  and  the  ques- 
tion is  one  of  fact  for  the  jury  to  determine 
under  the  circumstances  of  each  particular  case. 
Of  course,  where  notes  or  bank-bills  are  given 
in  payment  of  the  debt,  the  evidence  that  they 
were  so  given  is  to  be  the  same  as  evidence  of 
any  other  fact  relating  to  payment. 

Payment  into  Court  is  depositing  a  sum 
of  money  with  the  proper  officer  of  the  court 
by  the  defendant  in  a  suit,  for  the  benefit  of  the 
plaintiff  and  in  answer  to  his  claim. 

In  the  absence  of  statutory  provisions  it  may  be 
made  under  a  rule  of  court  granted  for  that  pur- 
pose, in  which  case  notice  of  an  intention  to  ap- 
ply must,  in  general,  have  been  previously  given. 

The  effect  is  to  divest  the  plaintiff  of  all 
right  to  withdraw  the  money"  except  by  leave 
of  court,*  and  to  admit  conclusively  every  fact 
which  the  plaintiff  would  be  obliged  to  prove 
in  order  to  recover  the  money;'  as,  that  the 
amount  tendered  is  due,*  for  the  cause  laid  in 
the  complaint,*  to  the  plaintiff  in  the  character 
in  which  he  sues,**  the  jurisdiction  of  the  court ;' 
that  the  contract  was  made"*  and  broken  as 
alleged,*  but  only  in  reference  to  the  amount 
paid  in,'  and  nothing  beyond  such  facts.s 

Generally,  it  relieves  the  defendant  from  the 
payment  of  costs  until  judgment  is  recovered 
for  a  sum  larger  than  that  paid  in."* 

The  Effect  of  payment  is:  i.  To  dis- 
charge the  obligation ;  and  it  may  happen  that 
one  payment  will  discharge  several  obligations 
by  means  of  a  transfer  of  the  evidences  of 
obligation.'  2.  Payment  does  not  prevent  a 
recoveiy  when  made  under  a  mistake  of  fact. 
The  general  rule  is,  that  mistake  or  ignorance 
of  law  furnishes  no  ground  to  reclaim  money 
paid  voluntarily  under  a  claim  of  rightj  But 
acts  done  under  a  mistake  or  ignorance  of  an 
essential  fact  are  voidable  and  reUevable.  Laws 
of  a  foreign  country  are  matters  of  fact,''  and 
the  several  United  States  are  foreign  to  each 
other  in  this  respect.  In  Kentucky  and  Con- 
necticut there  is  a  power  of  recovery  equally, 
in  cases  of  mistake  of  law  and  of  fact.'  In 
Ohio  it  may  be  remedied  in  equity."  In  New 
York  a  distinction  is  taken  between  ignorance 

T-Viner  Abr.  Payment  (E).  w-i  Wend.  191 ;  i  E. 
D.  Smith,  398  ;  3  Watts.  248.     x-i  Coxe,  298.     y-i  B. 

6  C.  3 ;  6  M.  &  W.  9  ;  2  Scott  (N.  S. )  56  ;  9  Dowl.  ai ; 
I  Dougl.  (Mich.)  330;  24  Vt.  140;  and  see  7  Cush.  556. 
«-i  Campb.  558  ;  2  Id.  341  ;  s  Mass.  365  ;  2  Wend.  431  ; 

7  Johns.  315.  »-5  Bingh.  28,  32;  2  Bos.  &  P.  530;  5 
Pick.  285;  6  Id.  340.  b-2  Campb.  441.  c-5  Esp.  17. 
d-3  Campb.  52 ;  3  Taunt.  95.  e-i  B.  &  C.  3.  f-7 
Johns.  315;  3  Eng.  L.  &  Eq.  548.  g-i  Greenl.  Ev.  § 
tab :  and  see  2  Man.  &  G.  208,  233  ;  5  C.  &  P.  247.  h- 
I  Wash.  10;  3  Cow.  36;  3  Wend.  336  ;  2  Miles,  65;  2 
Rich.  64 ;  24  Vt.  140.  As  to  the  capacity  in  which  the 
officer  receiving  the  money  acts,  see  i  Coxe,  298 ;  2 
Bailey,  28;  17  Ala.  293.  i-Poth.  Ob.  554  «.  j-2  Kent 
Comm.  491;  2  Greenl.  Ev.  ?  123.  K-Story  (tonst.  J2 
407,  411 ;  9  Pick.  112.  I-19  Conn.  548;  3  B.  Mon.  5101; 
4ld.  igo.     lU-ii  Ohio,  223.     u-i8  Wend.  422  ;  2  Barb. 

39 


of  law  and  mistake  of  law,  giving  relief  in  the 
latter  case."  In  England  money  paid  under  a 
mistake  of  law  cannot  be  recovered  back."  3. 
Part  payment  of  a  note  will  have  the  effect  of 
waiver  of  notice  as  to  the  whole  sum.  4.  Pay- 
ment of  a  part  of  the  debt  will  bar  the  applica- 
tion of  the  statute  of  limitations  as  to  the  resi- 
due,P  even  though  made  in  goods  and  chat- 
tels.' But  it  must  be  shown  conclusively  that  the 
payment  was  made  as  a  part  of  the  larger  debt.' 

Evidence  that  anything  has  been  done  aid 
accepted  as  payment  is  evidence  of  payment. 

A  receipt  is  prima  facie  evidence  of  pay- 
ment ;  but  a  receipt  acknowledging  the  recep- 
tion of  ten  dollars  and  acquitting  and  releasing 
from  all  obligations,  would  be  a  receipt  for  ten 
dollars  only.*  And  a  receipt  is  only  prima 
facie  evidence  of  payment.*  And  it  may  be 
shown  that  the  particular  sum  stated  in  the  re- 
ceipt was  not  paid,  and  also  that  no  payment 
has  been  made." 

Payment  may  be  presumed  by  the  jury  in  the 
absence  of  direct  evidence :  thus,  possession 
by  the  debtor  of  a  security  after  the  day  of  pay- 
ment, which  security  is  usually  given  upon 
payment  of  the  debt,  is  prima  facie  evidence 
of  payment  by  the  debtor.^  If  the  acceptor 
produce  a  bill  of  exchange,  such  possession  is 
prima  facie  evidence  of  payment." 

Payment  is  also  conclusively  presumed  from 
lapse  of  time.  After  twenty  years'  non-demand, 
unexplained,  the  court-  will  presume  a  pay- 
ment without  the  aid  of  a  jury.*  Facts  which 
destroy  the  reason  of  this  rule  may  rebut  the 
presumption.?  And  a  jury  may  infer  a  payment 
from  a  shorter  lapse  of  time,  especially  if  there 
be  attendant  circumstances  favoring  the  pre- 
sumption." 

A  presumption  may  arise  from  the  course  of 
dealing  between  the  parties  on  the  regular 
course  of  trade;  thus,  after  two  years  it  was 
presumed  that  a  workman  had  been  paid,  as  it 
was  shown  that  the  employer  paid  his  workmen 
every  Saturday  night,  and  this  man  had  been 
seen  waiting  among  others.* 

A  receipt  for  the  last  year's  or  quarter's  rent 
is  prima  facie  evidence  of  the  payment  of  ali 
the  rents  previously  due.**  If  the  last  instaU 
ment  on  a  bond  is  paid  in  due  form,  it  is  evi- 
dence that  the  others  have  been  paid ;  if  paid 
in  a  different  form,  that  the  parties  are  acting 
under  a  new  agreement, 

508.  0-4  Ad.  &  El.  858.  p-22  N.  H.  219  ;  6  Md.  201 ; 
8  Mass.  134;  28  Eng.  L.  &  Eq.  454.  q-2  Cr.  M.  &  R. 
337;  4  Ad.  &  El.  71 ;  4  Scott  (N.  R.)  119.  r-i  Cr.  M. 
&  R.  252 ;  a  Bingh.  (N.  C.)  241  ;  6  M.  &  W.  824 ;  a 
Miss.  663  :  24  Id.  92  ;  9  Ark.  455  ;  11  Barb.  554  ;  24  Vt. 
ai6;  see  also  2  Parsons'  Contr.  353-359.  S-2  Ves.  Ch. 
10:  5  B.  &  Aid.  606;  18  Pick.  325;  1  Edw.  Ch.  341. 
t-2  Taunt.  241;  7  Cow.  334;  4  Ohio,  346.  For  cases 
explaining  this  rule  see  also  2  Mas.  C.  C.  141 ;  11  Mass. 
27;  9  Johns.  310:  4  Harr.  &  M'H.  219;  3  Caines,  14. 
n-2  T.  &  R.  366 :  26  N.  H.  12  :  9  Conn.  401 ;  2  N.  J. 
59  ;  10  Humph.  188 ;  13  Penn.  St.  46.  v-i  Stark,  374  ; 
gS.  &  R.  385.  W-7S.  &  R.  116;  4  Johns.  296;  2  Pick. 
204.  X-i  Campb.  27 ;  14  S.  &  R.  15  ;  6  Cfow.  401 ;  a 
Cranch.  180.  y-i  Pick.  60;  a  La.  481.  35-7  S.  &  R. 
410.  As  to  presumptions  against  the  existence  of  the 
debt,  see  5  Barb.  63.  a-i  Esp.  296 ;  see  also  3  Campb. 
10.     b-2  Pick.  204. 


66i 


PAYMENT. 


Where  receipts  have  been  regularly  given 
for  the  same  amount,  but  for  a  sum  that  was 
smaller  than  was  due  by  the  agreement,  it  was 
held  evidence  of  full  payment." 

When  to  be  Made.  Payment  must  be 
made  at  the  exact  time  agreed  upon.  Where 
payment  is  to  be  made  at  a  future  day,  of 
course  nothing  can  be  demanded  till  the  time 
of  payment,  and,  if  there  be  a  condition  pre- 
cedent to  the  liability,  not  until  the  condition 
has  been  performed.  And  where  goods  had 
been  sold  "at  six  or  nine  months'  credit"  the 
debtor  was  allowed  the  option.*  Where  no 
lime  of  payment  is  specified,  the  money  is  to 
be  paid  immediately  on  demand.®  When  pay- 
ment is  to  be  made  at  a  certain  time,  it  may  be 
made  at  a  different  time  if  the  plaintiff  will 
accept.'  The  debtor  cannot  compel  the  creditor 
to  receive  payment  before  the  debt  is  due. 

Where  to  be  Made.  Payment  must  be 
made  at  the  place  agreed  upon,  unless  both  the 
parties  consent  to  a  change.  If  no  place  of 
payment  is  mentioned,  the  payer  must  seek  out 
the  payee.*  So,  too,  the  creditor  is  entitled  to 
call  for  payment  of  the  whole  of  his  claim  at 
one  time,  unless  the  parties  have  stipulated  for 
payment  in  parcels.  Questions  of  payment  by 
executors,  administrators,  and  guardians  are 
regulated  by  statute.  As  a  general  rule  debts 
are  to  be  paid  first,  then  specific  legacies.  The 
personal  property  is  made  liable  for  the  tes- 
tator's debts,  and  after  that  is  exhausted,  the 
real  estate. 

Who  may  Make.  Payment  may  be  made 
by  the  primary  debtor,  and  by  other  persons 
from  whom  the  creditor  has  a  right  to  demand 
it.  An  agent  may  make  payment  for  his 
principal.  An  attorney  may  discharge  the 
debt  against  his  client.''  One  of  any  number 
of  joint  and  several  obligors,  or  one  of  several 
joint  obligors,  may  discharge  the  debt.*  Pay- 
ment may  be  made  by  a  third  person,  a  stranger 
to  the  contract. 

It  may  be  stated  generally,  that  any  act  done 
by  any  person  in  discharge  of  the  debt,  if  ac- 
cepted by  the  creditor,  will  operate  as  payment. 
To  Whom  to  be  Made.  Payment  is  to  be 
made  to  the  creditor.  But  it  may  be  made  to 
an  authorized  agent.  And  if  made  in  the 
ordinary  course  of  business,  without  notice  re- 
quiring the  payment  to  be  made  to  himself,  it 
is  binding  upon  the  principal.i  Payment  to  a 
third  person  by  appointment  of  the  principal, 
will  be  substantially  payment  to  the  principal.^ 
I'ayment  to  the  agent  who  made  the  contract 
with  the  payee  (without  prohibition)  is  pay- 

C-4  Martin,  6g8.  d-s  Taunt.  338.  e-Viner  Abr. /'tj^- 
Mfniiji.);  1  Pet.  455  ;  4  Rand.  346.  f-Viner  Abr. /Viy- 
ment  (H).  g-J.  B.  Moore  Priv.  Connc.  274 ;  Shep. 
Touchst.  378  ;  2  Brod.  &  B.  165  ;  2  M.  &  S.  120 ;  2  M.  & 
W.  223  :  20  Eng  L.  &  Eq.  498.  h-5  Bingh.  506.  l-Viner 
Abr.  Payment  (B).  J-ir  East.  36;  6  Mann.  &  G.  166; 
Cowrp.  257;  48.^  Aid.  39s:  3  Stark.  Cas.  16;  i 
Campb.  477.  h-i  Phill.  Ev.  200.  I-i  Campb.  339  ;  16 
Johns.  86;  2  Gall.  C.  C.  565;  10  B.  &C.  755.  m-6  M. 
&  S.  156.  n-ii  East.  36.  o-n  E.-ist.  36.  p-3  B  & 
P.  485;  15  East.  65.  q-s  B.  &  Aid.  27.  r-ii  East. 
36;  sM.  &S.  147;  2C.  &P.  49  «-i  W.  Bl.  8  :  I 
Wash.  C.  C.  9;    I  CaU,  147.    t-i  CaU,  147;    1  Coxe, 


ment  to  the  principal.'  But  payment  may  be 
made  to  the  principal  after  an  authority  given 
to  an  agent  to  receive.™  Payment  to  a  broker 
or  factor  who  sells  for  a  principal  not  named  is 
good."  Payment  to  an  agent  when  he  is 
known  to  be  such  will  be  good  if  made  upon 
the  terms  authorized,"  if  there  be  no  notice  not 
to  pay  him  ;P  and  even  after  notice,  if  the 
factor  had  a  lien  on  the  money  when  paid.i  If 
the  broker  sell  goods  as  his  own,  payment  is 
good  though  the  mode  varies  from  that  agreed, 
on.' 

Payment  to  an  attorney  is  as  effectual  as 
payment  to  the  principal  himself."  The  attor- 
ney of  record  may  give  a  receipt  and  discharge 
the  judgment'  if  made  within  one  year."  Not 
so  of  an  agent  appointed  by  the  attorney  to 
collect  the  debt.^  Payment  by  an  officer  to  an 
allorney  whose  power  had  been  revoked  before 
he  received  the  execution  did  not  discharge 
the  officer.''  Payment  to  one  of  two  copart- 
ners discharges  the  debt,''  even  after  dissolu- 
tion.?  So  payment  to  one  of  two  joint  creditors 
is  good,  though  they  are  not  partners.*  But 
payment  by  a  banker  to  one  of  several  joint 
depositors,  without  the  assent  of  the  others, 
was  held  a  void  payment.* 

Payment  to  the  wife  of  the  creditor  is  not  a 
discharge  of  the  debt  unless  she  is  expressly 
or  impliedly  his  agent.'*  An  auctioneer  em- 
ployed to  sell  real  estate  has  no  authority  to 
receive  the  purchase  money  by  virtue  of  that 
appointment  merely."  Usually  the  terms  of  the 
sale  authorize  him  to  receive  the  purchase 
money.*  Payment  was  made  to  a  person  sit- 
ting in  the  creditor's  counting-room,  and  appar- 
ently doing  his  business,  and  it  was  held  good," 
but  payment  to  an  apprentice  so  situated  was 
held  not  to  be  good.'  Generally,  payment  to 
the  agent  must  be  made  in  money  to  bind  the 
principal.*  Power  to  receive  money  does  not 
authorize  an  agent  to  commute**  nor  submit  to 
arbitration.' 

An  agent  authorized  to  receive  money  can- 
not bind  his  principal  by  receiving  goods,J  or  a 
note  '^  but  a  subsequent  ratification  would 
remedy  any  such  departure  from  authority ; 
and  it  is  said  that  slight  acts  of  acquiescence 
will  be  deemed  ratification.  Payment  to  one 
of  several  joint  creditors  of  his  part,  will  not 
alter  the  nature  of  the  debt  so  as  to  enable  the 
others  to  sue  separately.'  Payment  to  one  of 
several  executors  is  sufficient.*"  Payment  to  a 
trustee  generally  concludes  the  cestui  que  trust 
in  law." 

214;  1  Pick.  347;  10  Johns.  220;  2  Bibb.  382.  n-i 
Me.  257.  ■v-2  Dougl.  623.  w^-13  Mass.  465  ;  3  Yeates, 
7  :  se«  also  i  Des.  Ch.  461.  x-8  Wend.  542  :  15  Ves, 
Ch.  iy8:  2Blackf.  371:  i  111.  107 ;  6M.  &S.  156;  i 
Wash.  C.  C  77.  y-4  C.  &  P.  108 :  and  see  7  N.  H. 
568.  a-4  J.  J.  Marsh,  367.  a-i  M.&  R.  145  :  Ry-  & 
M.  364 ;  4  Eng.  L.  &  Eq.  342.  b-2  Scott  (N.  R.)  372 
I  Addis.  316;  2  Freem.  178  ;  23  Me.  335.  c-i  Mood. 
&  R.  326.  d-sM.  &W.  645.  e-iM.  &W.  200;  5 
Taunt'.  307.  f-2  Cr.  &  M.  304.  jf-it  Mod.  71 ;  10  B. 
&  C.  760.  h-i  Wash.  C.  C.  454  ;  I  Pick.  347.  1-S 
How.  891 ;  see  also  Story  Ag.  3  99.  I-4  C.  «  P.  501. 
k-i  Salk.  442  ;  2  Ld.  Raym.  928  ;  5  M.  &  W.  645.  1- 
1  Tyrwh.  488.      m-3  Atk.  Ch.  695.      n-S  B.  &  Ad.  94 


PERSONS— PERSON Al-  rROPERTY— PLEADINGS. 


609 


Subsequent  ratification  of  the  ngent's  acts  is 
equivalent  to  precedent  autliority  to  receive 
money.* 

Peace— Snrety  to  Keep,  etc.  See  Criminal 
Law. 

Penalty.  See  Bonds  or  Obligations;  Con- 
tracts, ETC. 

Performance.  See  Contracts. 

Peril,  Perils  of  the  He».  See  Insurance. 

Perjury.  See  Criminal  Law. 

Perpetuating  Testimony.  See  Evidence. 

PEKSOXS.  See  various  sub-heads,  ante  and  post. 

A  PERSON  is  a  man,  woman,  or  child,  con- 
sidered as  opposed  to  things,  or  distinct  from 
them.  A  human  being.  A  natural  being.  A 
man  considered  according  to  the  position  (pri- 
vate or  officii.!)  which  he  holds  in  law,  with  all 
the  rights  to  which  the  place  he  holds  entitles 
him,  and  the  duties  which  it  imposes."  A  cor- 
poration which  is  an  artificial  person.''  The 
term  "person,"  as  is  seen,  is  more  extensive 
than  man — including  artificial  beings,  as  cor- 
porations, as  well  as  natural  beings.  But  when 
the  word  "  persons"  is  spoken  of  in  legislative 
acts,  natural  persons  will  be  intended,  unless 
something  appear  in  the  context  to  show  that  it 
applies  to  artificial  persons."  Natural  persons 
are  divided  into  males,  or  men,  and  females,  or 
women.  Men  are  capable  of  all  kinds  of  en- 
gagements and  functions,  while  women  are  re- 
stricted by  the  law,  both  civil  and  political. 
Persons  are  also  divided  into  citizens  and 
aliens,  when  viewed  with  regard  to  their  poliii- 
cal  rights.  When  they  are  considered  in  rela- 
tion to  their  civil  rights,  they  are  living  or 
civilly  dead.  Persons  are  again  divided  into 
legitimate  and  illegitimate,  when  considered  as 
to  their  rights  by  birth.  When  viewed  in  their 
domestic  relations  they  are  divided  into  parents 
and  children ;  husbands  and  wives ;  guardians 
and  wards ;  and  masters  and  servants. 

Personal  Chattels.  See  Personal  Property. 

Personal  Contract.  See  Contracts. 

Personal  Covenant.  See  Contracts. 

PERSONAL  PROPERTY.  See  Real  Prop- 

■RTT. 

Personai^  property  is  the  right  or  interest 
which  a  man  has  in  things  personal.  The 
right  or  interest  less  than  a  freehold  which  a 
man  has  in  realty,  or  any  right  or  interest  which 
he  has  in  things  movable.  Every  tangible 
thing  which  is  the  subject  of  ownership  not 
forming  a  part  or  parcel  of  real  property.  Per- 
sonal property  is  to  be  distinguished  from  things 
personal.  There  may  be,  for  example,  a  per- 
sonal estate  in  really,  as  chattels  real ;  but  the 
only  property  which  a  man  can  have  in  things 
personal  must  be  a  personal  property.  The 
essential  idea  of  personal  property  is  that  of 
property  in  a  thing  movable  or  separable  from 
the  realty,  or  of  perishability  or  possibility  of 
brief  duration  of  interest  as  compared  with  the 

z-Poth.  Ob.  n.  528.  a-See  i  Bouv.  Inst.  «.  137. 
For  the  derivation  of  the  word  person  as  it  is  understood 
in  larw,  see  i  Toulher,  «.  168;  1  Bouv.  Inst.  ».  1890, 
note.  b-i  Sharsw.  Bl.  Comm.  123;  4  Bingh.  669; 
Woode«on  Lect.  116;  i  Mod.  164.  c-2  111.  178.  d-See 
2  Shapsw.  Bl.  Comm.  14,  and  notes  ;  384,  and  notes,  e- 
II  East.  362 ;  12  Me.  337 ;  5  B.  &  C.  829  ;  9  Id.  561 :  10 
Ad.  &  Ei.  753.      f- Walker  Am.  L.  211 ;    4  Dane  Abr. 


owner's  life  in  a  thing  real,  without  any  action 
on  the  part  of  the  real  owner.* 

A  crop  growing  in  the  ground  is  personal 
property  so  far  as  not  to  be  considered  an  in- 
terest in  land  under  the  statute  of  frauds.*  It 
is  a  general  principle  in  this  country,  that  stock 
held  in  corporations  is  to  be  considered  as  per- 
sonal property.'  Title  to  personal  property  is 
acquired:  i.  By  original  acquisition  by  occu- 
]3ancy ;  as,  by  capture  in  war,  by  finding  a  lost 
thing.  2.  By  original  acquisition,  by  accession. 
3.  By  original  acquisition,  by  intellectual  labor; 
as,  copyrights  and  patents  for  inventions.  4. 
By  transfer,  which  is  by  act  of  law,  by  for- 
feiture, by  judgment,  by  insolvency,  by  intes- 
tacy. 5.  By  transfer  by  act  of  the  party,  by 
gift,  by  sale.* 

Persuasion.  See  Acts. 

Petit  l.arccny.  See  Criminal  Law. 

Petit  Treason.  See  Criminal  Law. 

Physician.  See  Medical  Law. 

1*1  racy.  See  Copyright  ;  Criminal  Law. 

Place  of  Business.  See  Bills,  Bonds,  and 
Notes. 

PLEADINGS.  Sec  Copyrights;  Patents,  etc 
Pleadings  are  the  written  statements  of  the 
parties,  to  an  action,  suit,  or  other  judicial  pro- 
ceeding, by  which  the  matter  in  controversy  is 
brought  to  an  issue,  t.  e.,  a  single  point,  affirmed 
on  on*  Bide  and  denied  on  the  other.  The 
written  statements  of  the  plaintiffs  cause  of 
action,  and  of  the  defendant's  ground  of  de- 
fence. 

In  Civil  Practice,  pleadings  are  state- 
ments in  a  logical  and  legal  form  of  the  facts 
which  constitute  the  plaintiff's  cause  of  action, 
or  the  defendant's  ground  of  defence  ;  »t  is  the 
formal  mode  of  alleging  that  on  the  record 
(ihis  is  in  writing,  whereby  it  is  made  a  part  of 
the  record  by  filing,  entering,  or  recording  by  the 
proper  officer  of  the  court)  which  constitutes 
the  support  or  the  defence  of  the  party  in  evi- 
dence.'' The  object  of  pleading  is  to  secure  a 
clear  and  distinct  statement  of  the  claims  of 
each  party,  so  that  the  controverted  points 
may  be  exactly  known,  examined,  and  decided, 
and  the  appropriate  remedy  or  punishment  ad- 
ministered.' Good  pleading  consists  in  good 
matter  pleaded  in  good  form,  in  apt  lime,  and 
due  order.J  Good  matter  includes  all  facts  and 
circumstances  necessary  to  constitute  the  cause 
of  complaint,  or  ground  of  defence,  and  no 
more.  It  does  not  include  argument  or  mat- 
ters of  law.  But  some  matters  of  fact  need 
not  be  stated,  though  it  be  necessary  to  estab- 
lish them  as  facts.     Such  are,  among  others : 

I.  Facts  of  which  the  courts  take  notice  by  vir- 
tue of  their  being  courts :  as,  the  time  of  acces- 
sion of  the  head  or  ruler  of  the  government;' 
time  and  place  of  convening  the  legislature  or  of 

670 ;  Sullivan  Land  Titles,  71  ;  Hilliard  Real  Prop. 
18.  RT-See  generally  16  Vin.  Abr.  335;  8  Com.  Dig. 
474,  562  ;    I  Belt.  Supp.  Ves.  Ch.  49,  121,  j6o,  198,  255. 


368,  369,  399,  412,  478 ;  3  Id.  10,  40,  129,  290,  291,  341 
I  Vern.  Cn.  3,  170,  412;  2  Salk.  449  ;  2  Ves.  Ch.  £9, 
176,261,271,336,683:  7  Id.  453.  li-3  T.  R.  11:9; 
Dougl.  278 ;  Com.  Dig.  PI.  (A) ;  Bac.  Abr.  PI.  &  PI.  ; 
Cowp.  682.  i-See  Cowp.  682 ;  Dougl.  159.  J-Co.  Litt. 
303.    k-2  Ld.  Kaym.  794. 


6id 


1>LEADINGS. 


Con':;ress  ;•  pviLlic  stiUitcs,  and  the  facts  they 
ascertain,'  including  ecclesiastical,  civil,  and 
marine  laws ;«  but  not  private''  or  foreign  laws  ;* 
common  law  rights,  duties,  and  general  cus- 
toms ;J  the  days  of  the  week;  public  holidays, 
etc. ;'  political  divisions ;'  the  meaning  of  Eng- 
lish words  and  terms  of  art  in  ordinary  accepta- 
tion;" their  own  course  of  proceedings;"  and 
that  of  courts  of  general  jurisdiction." 

2.  Facts  which  the  law  presumes :  as,  the 
innocence  of  a  party ;   illegality  of  an  act,  etc.P 

3.  Matters  which  the  other  party  should 
plead,  as  being  more  within  his  knowledge.^ 

4.  Mere  matters  of  evidence  of  facts.'' 

5.  Unnecessary  matter :  as,  a  second  breach 
of  condition,  where  one  is  sufficient;'  or  intent 
to  defraud,  where  the  facts  alleged  constitute 
fraud.* 

6.  Irrelevant  matter."  Such  matter  may  be 
rejected  without  injury  to  the  pleading,  if 
\/holly  foreign  to  the  cause,  or  repugnant  ;^  but 
in  many  cases  matter  must  be  proved  as  stated, 
if  stated.* 

7.  The  matter  stated  must  be  true  and  sus- 
ceptible of  proof ;  but  legal  fictions  when  allow- 
able may  be  stated  as  facts.* 

The  pleadings  should  be  according  to  the 
established  forms.^  This  rule  is,  however,  one 
merely  of  caution,  as  many  radical  changes 
have  been  made  in  the  various  States  in  the 
law  of  pleading.  Still,  reference  to  and  some 
regard  for  old  forms  will  be  found  quite  profit- 
able. In  general,  facts  should  be  stated  logic- 
ally, in  their  natural  order,  with  certainty, 
clearly  and  distinctly.  So  that,  the  party  who 
is  to  answer,  the  court  and  jury,  who  is  to  try 
the  cause,  may  readily  understand  what  is 
meant  *  with  precision,*  and  with  brevity.''  The 
facts  stated  must  not  be  insensible  or  repug- 
nant,* nor  ambiguous  or  doubtful  in  meaning,"* 
nor  argumentative,"  nor  by  way  of  recital ;''  and 
should  be  stated  according  to  their  legal  effect 
and  operation.*  As  to  the  time  of  pleading,  see 
General  Statutes. 

The  order  of  pleading  different  matters  is 
of  importance  as  affecting  the  defendant,  who 
may  oppose  the  plaintiff's  suit  in  various  ways. 
The  order  is  as  follows : 

1.  To  the  jurisdiction  of  the  court. 

2.  To  the  disability,  etc.,  of  the  person;  i. 
Of  the  plaintiff;  2.  Of  the  defendant. 

3.  To  the  plaintiff's  complaint,  correct  de- 
claration, or  petition   (in  other  words  to  the 

e-See  I  Saund.  131.  f-i  T.  R.  45.  k-IA.  Raym. 
338.  I1-2  Dougl.  97.  i-2  Carth.  273  ;  4  R.  I.  523.  j- 
Ld.  Raym.  1542;  Co.  Litt.  175;  Cro.  Car.  561.  It- 
Salk.  269;  6  Mod.  81;  4  Dowl.  48:  4  Fla.  158.  1- 
Marsh.  124 ;  Co.  2d  Inst.  557 ;  4  B.  &  Aid.  242  ;  6  111. 
73.  m-i  RoUe  Abr.  86,  525.  n-i  T.  R.  118;  2  Lev. 
176:  10  Pick.  470;  see  i6  East.  39.  o-i  Saund.  73;  5 
McLean  C.  C.  167;  10  Pick.  470:  3  B.  &  P.  183:  i 
Greenl.  Ev.  g?  4-6.     p.4  M.  &  S.  105  ;  i  B.  &  Aid.  463  ; 


2  Wlls.  147;  6  Johns.  105  ;  16  East.  343  ;  6  Conn.  130. 
q-i  Sharsw.  Bl.  Coram.  293,  n.  ;  8  T.  R.  167;  2  H.  P.I. 
530  ;  2  Johns.  415  ;  9  Cal.  286  ;  i  Sandf.  89  ;  ^  Cow. 
96.  r-QCo.96;  Willis,  130;  25  Barb.  457;  7'Texas, 
603;  6BIackri73:  i  N.Chipm.  29^.  s-2  Johns.  443  ;  i 
Saund.  58,  n.  1  ;  33  Miss.  474;  4"lnd.  409;  23  N.  H. 
415  ;  12  Barb.  27  ;  2  Green.  577.  t-i6  Texas,  335  ;  see 
;M.  &  S.  182.     u-i  Chitty  PI.  209.     v-7  Johns.  462  ;  3 


plaintiff's  cause  of  action  as  it  appears  in  his 
first  pleading). 

4.  To  the  writ  (or  summons,  etc.)  1,  To 
the  form  of  the  writ,  first  matter,  apparent  on 
the  face  of  it.  Second  matter  not  appearing  on 
the  writ.     2.  To  the  action  of  the  writ. 

5.  To  the  action  itself  in  bar. 

This  is  the  natural  order  of  pleading,  be- 
cause each  subsequent  plea  admits  that  there 
is  no  foundation  for  the  former.''  An  excep- 
tion exists  where  matter  is  pleaded  which  has 
arisen  or  come  to  the  plaintiff's  knowledge 
since  the  last  continuance,  or  since  the  last 
stage  of  the  suit,  and  where  the  subject-matter 
is  one  over  which  the  court  has  no  jurisdiction, 
a  failure  to  plead  such  new  matter  cannot  con- 
fer jurisdiction.' 

Whatever  may  be  the  names  given,  rules 
made  by  courts,  or  methods  prescribed  by  the 
legislature,  or  pursued  by  the  parties,  court, 
or  jury,  the  end  of  pleading  is  still  the  same, 
namely,  the  production  of  one  or  more  points 
in  issue,  where  a  single  fact  is  affirmed  by  one 
party  and  denied  by  the  other.i  See  General 
Statutes,  title  Civil  Practice. 

In  Criminal  Practice  the  rules  of  plead- 
ing are  the  same  as  in  civil  practice;  there  is, 
however,  less  liberty  of  amendment  of  indict- 
ments and  informations. 

The  order  of  the  defendant's  pleading  is  as 
follows : 

1.  To  the  jurisdiction. 

2.  In  abatement. 

3.  Special  pleas  in  bar,  as,  former  acquittal, 
former  conviction,  pardon,  etc. 

4.  The  general  issue.  See  General  Sta- 
tutes, title  Criminal  Practice. 

In  Equity  Practice  pleadings  consist  in 
formal  written  allegations  or  statements  of  the 
respective  parties  on  the  record  to  maintain  the 
suit,  or  to  defeat  it,  of  which,  when  contested 
in  matters  of  facts  they  propose  to  offer  proofs, 
and  in  matters  of  law  to  offer  arguments  to  the 
court.''  The  substantial  object  of  pleading  is 
the  same,  but  the  forms  and  rules  of  pleading 
are  very  different  in  law  and  in  equity.  See 
Equity,  ante,  and  General  Statutes,  title 
Practice. 

Pledge.  See  Baii-ments. 

Poi^;oii.  See  Medical  Law. 

Policy.  See  Insurance. 

PolysBHiy.  Sec  Criminai.  Law,  "  Bigamy." 

Pounds,  bee  Animals. 

Day,  472  ;  2  Mass.  283  ;  8  S.  &  R.  124 ;  it  Ala.  145 ;  16 
Texas,  656;  7  Cal.  348;  23  Conn.  134  ;  1  Ducr,  242  ;  6. 
Ark.  468;  I  Ala.  N.  S.  320.  W-7  Johns.  321  ;  3  Day,, 
283:  Phill.  Ev.  160.  X-2  Barr.  667;  4  B.  &  P.  140.  | 
>"-Co.  Litt.  303;  6  East.  561 ;  8  Co.  48,  i.  «-Cowp. 
682  ;  2  B.  &  P.  267  ;  Co.  Litt.  303  ;  13  East.  307 :  33 
Miss.  669;  I  Hempst.  228.  B-13  Johns.  437  ;  19  Ark. 
695 ;  5  Duer,  689.  b-36  N.  H.  458  ;  1  Chitty  PI.  212. 
C'-i  Salk.  324  ;  7  Co.  25  ;  25  Conn.  431 ;  5  Blackf.  339. 
d-5  M.  &  S.  38  ;  Yelv.  36.  e-Co.  Litt.  303  ;  5  Blackf. 
557.  f-2  Bulstr.  214;  Ld.  Raym.  1413.  Jf-Steph.  PI. 
378-392;  16  Mass.  443  ;  12  Pick.  251  ;  3  Stew.  319;  sea 
General  Statutes,  h-13  La.  An.  147;  41  Me.  102; 
7  Gray,  -^8  :  5  R.  I.  23<;  ;  2  Bosw.  267  ;  1  Grant  Cas. 
7.=.g;  4  Johns.  241  ;  3  Miss. "704;  20  Id.  656;  i  Chitty 
PI.  425  ;  see  16  Tex.  IT4  ;  4  Iowa,  158.  i-io  S.  &  R. 
229  ;  17  Texas,  52.  j-4  Gower,  464.  fc-Story  Eq.  PJ. 
^4.  n- 


PRACTICE— REAL  PROPERTY. 


6  It 


Power.  See  Authority. 

Power  of  Attorney-  See  Agbncv,  "Attorneys 
in  Fact." 

PRACTICE.  See  Copyrights;  Patents;  Plead- 
ings. 

Practice  is  the  form,  manner,  and  order  iii 
which  legal  or  equitable  proceedings  are  in- 
stituted, conducted,  and  concluded  in  the 
various  courts,  whether  civil,  criminal,  or 
equitable,  according  to  the  rules  prescribed  by 
the  law  and  in  such  courts.  It  includes  juris- 
diction, limitation,  parties,  and  pleading.  A 
settled,  uniform,  and  long-continued  practice, 
without  objection,  is  evidence  of  what  the  law 
is;  and  such  practice  is  based  on  principles 
which  are  founded  in  justice  and  convenience.'' 

Precedents.  See  Authority. 

Pregnanc.T.  See  Medical  Law. 

Premeditation.  See  Criminal  Law,  "  Inten- 
tion," etc. 

Premises.  See  Conveyances,  "  Deeds,  Leases, 
Mortgages,"  etc. 

Premium.  See  Insurance. 

Presentment.  See  Bills,  Bonds,  and  Notes. 

Presumptions.  See  Evidence. 

Price.  See  Contracts. 

Prima  Facie.  See  Evidence. 

Principals.  See  Agenxv. 

Promissory  Aotes.  See  Bills,  Bonds,  and 
Notes. 

Property.  See  Personal  Property;  Real 
Property;  etc.,  etc 

Proposals.  See  Contracts. 

Protest.   See  Bills,  Bonds,  and  Notes. 

Proviso.  See  Bonds  or  Obligations,  Convey- 
ances, ETC 

Publisher.  See  Copyright. 

<inack.  See  Medical  Law,  "Malpractice." 

Question.  See  Evidence. 

<iuicUening^.  See  Medical  Law. 

^uiet  Enjoyment.  See  CoN\'EYANCES,"Deeds." 

<tult  Claim.  See  Conveyances,  "  Deeds." 

<luotatlons.  See  Authorities. 

Railway.  See  Bailments. 

Rape.  See  Criminal  Law. 

Ratification.  See  Acts;  Agency. 

REAL.  PROPERTY.  See  Bonds,  etc.  ;  Con- 
veyances, ETC. ;  Personal  Property. 

Real  property  includes  land  and  what- 
ever is  erected  or  growing  thereon,  and  what- 
ever is  above  or  beneath  the  surface  thereof,* 
including  houses  standing  and  trees  growing 
upon  the  land  but  not  chattels  like  stock  upon 
a  farm,  or  furniture  in  a  house.  Houses  and 
even  growing  trees  may  acquire  the  character 
of  personal  property ;  and  various  chattels, 
originally  movable,  may  acquire  the  character 
of  real  property.  Thus  a  dwelling-house  erected 
upon  the  land  of  another  with  his  assent,  is  the 
personal  property  of  the  builder.''  So,  if  a 
nurseryman  plant  trees  for  the  purpose  of  grow- 
ing them  for  market,  upon  land  hired  by  him, 
they  would  be  personal  property."  So,  crops 
while  growing,  planted  by  the  owner  of  the 
land,  are  a  part  of  such  real  properly ;  but  if 
sold  by  him  when  fit  for  harvesting  they  become 

it-2  Russ.  19,  570  ;  ajac.  232;  5  T.  R.  380  ;  lYounge 
&  J.  167,  168  ;  2  Cr.  &  M.  55  ;  Ram.  Judg't  Ch.  7 ;  see 
8  S.  Coll.  (N.  C.)  599,  600.  a-2  Bl.  Comm.  17-19;  1 
.\m.  L.  Mag.  271  ;  Co.  Litt.  4,  a.  b-6  N.  H.  515  ;  6 
Me.  452  ;  8  Pick.  404.  C-i  Met.  (Mass.)  27;  4  Taunt. 
316.  d-5  B.  &  C.  829.  e-4M.  &W.  343;  2  Dana, 
ao6;  2  Rawle,  161.  f-4  Met.  (Mass.)  584  ;  9  B.  &  C. 
561 ;  7  N.  H.  523.  ir-4  Mass.  266.  h-i  T.  R.  701  ;  i 
Met.  (Mass.)  541  ;  10  Conn.  318.  1-Wms.  Ex.  613-615; 
II  Co.  50;  10  Paige  Ch.  162  ;  30  Penn.  St.  185.  j-6 
Me.  I j^.      M-?  Wasbb.   H.  Prop.  427.      1-.^  M.  ^  NV. 


personal,*  and  a  sale  of  such  crops,  though  not 
fit  for  harvest,  as  personal,  is  good."  So,  trees 
growing,  though  not  in  a  nursery,  may  be 
changed  into  the  category  of  personal  property, 
if  sold  to  be  cut  without  any  right  to  have  them 
stand  to  occupy  the  land.'  But  if  the  owner  of 
land  in  fee  sold  the  trees  growing  thereon  to  an- 
other and  his  heirs,  to  be  cut  at  his  pleasure,  the 
property  in  the  trees  would  be  real.*  The  sama 
rule  would  apply  to  property  in  fee  in  a  dwell- 
ing-house, though  the  owner  only  has  the  right 
to  have  it  stand  upon  the  land  of  another. 
And  one  may  own  a  chamber  in  a  house  as  his 
separate  real  estate-i^  So,  a  large  class  of  ar- 
ticles originally  wholly  movable,  and  which 
may  be  at  the  time  even  disconnected  with  the 
land,  may  be  regarded  as  real  property,  from 
having  been  fitted  or  actually  applied  to  use  in 
connection  with  real  estate,  such  as  keys  in 
locks  fastened  upon  doors ;  mill-stones  and 
irons,  though  taken  out  of  the  mill  for  repair- 
ing; window-blinds,  though  temporarily  re- 
moved from  the  house;  and  fragments  of  a 
dwelling-house  destroyed  by  a  tempest;*  and 
a  conveyance  of  a  "  saw-mill "  with  the  land, 
passed  iron  bars  and  chains  then  in  it,  which 
had  been  fitted  for  and  used  in  operating  iO 
See  various  subjects,  below. 

Abandoned  Land.  See  Derelict,  etc., 
below. 

Adverse  enjoyment  (or  possession  or  ex- 
ercise of  an  easement  or  privilege  under  a 
claim  of  right  against  the  owner  of  the  land 
out  of  which  the  easement  is  derived)*  if  open' 
and  continued  uninterruptedly™  for  the  term 
of  twenty  years,  raises  a  conclusive  presump- 
tion of  a  grant,  provided  that  there  was,  during 
the  time,  some  one  in  existence,  in  possession, 
and  occupation,  who  was  not  under  disability 
to  resist  the  use." 

Adverse  possession,  or  the  enjoyment  of 
land  or  such  estate  as  may  be  conveyed,  etc., 
under  such  circumstances  as  to  indicate  that 
such  enjoyment  has  been  commenced  and  con- 
tinued under  an  assertion  or  color  of  right  on 
the  part  of  the  possessor."  When  actual  p  and 
has  been  adverse  for  twenty  years,  of  which  a 
juiy  are  to  judge  from  the  circumstances,  the 
law  raises  the  presumption  of  a  grant.'  But 
this  presumption  arises  only  when  the  use  or  oc- 
cupation would  otherwise  have  been  unlawful.' 

Possession  is  not  adverse :  I .  When  both 
parties  claim  under  the  same  title.*  2.  When 
the  possession  of  the  one  parly  is  consistent  with 
the  title  of  the  other.*  3.  When,  in  contem- 
plation of  law,  the  claimant  has  never  been  out 
of  possession."  4.  When  the  occupier  has  ac- 
knowledged  the  claimants'  titles.^ 

500;  4  Ad.  &  E.  369.     ni-9  Pick.  251  ;  8  Gray,  441 ;  17 

Wend.  564;  26  Me.  440;  20  Penn.  St.  331  ;  2N.H.  255; 
old.  454;  2  Rich.  136;  I  Ad.  &E.  788.  n-2\Vashb.R. 
Prop.  48.  0-3  East.  394;  i  Pick.  466  ;  2S.&R.  527;  3 
Penn.  St.  132  ;  8  Conn.  440;  2  Aik.  364  ;  9  Johns.  174  ;  18 
Id.  40  355;  5  Pet.  402  ;  4  Bibb.  530.  P-3S.&R.  517;  7 
Id.  192  ;  2  Wash.  C.  C.  478.  q-Angell  Water-Courses, 
8s.  et  seg.  r-3  Me.  120;  6  Cow.  617,677;  8  Id.  589  ;  4  S. 
&  R.  456;  see  2  Smith  L.  Cas.  307-416.  8-Co.  Litt.  s. 
396.  t-8  East.  248.  u-i  Ld.  Raym.  329.  v-Seei  B.  flt 
P.  542 ;  S  B,  &  C.  717 ;  a  Bouv.  la^t.  nn.  2193,  3194,  a^ji. 


6l2 


REAL  PROPERTY. 


Air  is  not  a  subject  of  property ;  it  belongs 
equally  to  all  men,  being  indispensable  to  their 
existence.  But  no  man  has  a  right  to  use  the 
air  over  another  man's  land  in  such  a  manner 
as  to  be  injurious  to  him.  And  to  poison  or 
materially  change  the  air,  to  the  annoyance  of 
the  public,  is  a  nuisance.'  An  easement  of 
light  and  air  coming  over  the  land  of  another 
cannot  be  acquired  by  prescription  in  the 
United  States,*  though  the  rule  is  otherwise 
in  England.* 

Alluvion  is  that  gradual  and  imperceptible 
increase  of  the  earth  on  a  shore  or  bank  of  a 
river,  by  the  force  of  water,  as  the  current  or 
Waves  (alluvion  differs  from  avulsion  in  this, 
the  latter  is  sudden  and  perceptible).  Such  in- 
crease is  so  gradual  that  no  one  can  judge  how 
much  is  added  at  each  moment  of  time.^  The 
proprietor  of  the  bank,  increased  by  the  allu- 
vion, is  entitled  to  the  addition,  this  being  re- 
garded as  the  equivalent  for  the  loss  he  may 
sustain  for  the  breaking  in  or  encroachment  of 
the  waters  upon  his  land.*  The  increase  is 
to  be  divided  among  riparian  proprietors  by 
the  following  rule :  Pleasure  the  whole  extent 
of  their  ancient  line  on  the  river,  and  ascertain 
how  many  feet  each  proprietor  owned  on  this 
line;  divide  the  newly-formed  river  line  in 
equal  parts,  and  appropriate  to  each  proprietor 
as  many  of  these  parts  as  he  owned  feet  on  the 
old  line,  and  then  draw  lines  from  the  points 
at  which  the  proprietors  respectively  bounded 
on  the  old  to  the  points  thus  determined  as  the 
points  of  division  on  the  newly-formed  shore. 
In  applying  this  rule  allowance  must  be  made 
for  the  projections  and  indentations  on  the  old 
line.'  When  the  increase  is  instantaneous,  it 
belongs  to  the  State,  upon  the  ground  that  it 
Was  a  part  of  the  bed  of  the  river  of  which  it 
is  proprietor.**  Sea-weed  which  is  thrown  upon 
the  beach,  partaking  of  the  nature  of  alluvion, 
belongs  to  the  owner  of  the  beach.*  But  sea- 
weed below  low-water  mark,  on  the  bed  of  a 
navigable  river,  belongs  to  the  public* 

Appurtenances.     See  Conveyances. 

Areas  are  enclosed  yards  or  openings  in 
houses;  also,  open  places  adjoining  to  the 
house.* 

Avulsion,  or  the  tearing  away  or  removal 
of  a  considerable  quantity  of  soil  from  the  land 
of  one  man,  and  its  deposit  upon  or  annexation 
to  the  land  of  another,  suddenly  and  by  the 
perceptible  action  of  the  water,'  does  not  de- 

T-Cro.  Car.  510;  2  Ld.  Raym.  1163;  i  Burr.  333 ; 
1  Str.  686  ;  Dane  Abr.  IV-6  Gray,  255  ;  14  Id.  583;  3 
Watts,  327  ;  10  Barb.  543  ;  13  Wend.  263;  I9ld.3c<):  4 
Sandf.  Ch.  438  ;  2  Conn.  597;  16  111.  217;  i  Greene  Ch. 
57 ;  I  Dudl.  131  ;  5  Rich.  311  ;  26  Me.  436;  11  Md.  i  ; 
10  Ala.  (N.  S. )  63.  x-8  Ell.  &  B.  39  :  sec  2  Washb.  R. 
Tn'yi.  6-2,  et  sef.  y-lnst.  i,  2,  t.  i,  J  20;  3  B.  &  C.  91. 
Z-i  W.nshb.  R.  Prop.  451  :  2  Md.  Ch.  Dec.  485 ;  i  Gill. 
&  J.  249  ;  4  Pick.  273;  17  Id.  41  ;  i  Hawks,  56;  6  Mar- 
tin, 19  ;  Ji  Ohio,  311  ;  10  Pet.  662  ;  5  Wheat.  380.  a- 
17  Pick.  41  ;  9  ^ie.  44  ;  17  Vt.  3S7.  b-17  Ala.  9;  2  Rl. 
Cunim.  69.  C-7  Met.  (Mass.)  373  ;  2  Johns.  322  ;  3  B. 
&  Ad.  967.  <l-9  Conn.  38.  e-i  Chitty  Pr.  176.  f-2 
W.nshb.  R.  Prop.  452.  Jf-Bract.  221 ;  Hargr.  Tract, 
d'Jure  mar. ;  Schuttes  Aq.  Rights,  115-138.  Il-ii  Me. 
483;  23  Id.  no;  24  Id.  192;  13  Ohio,  308  ;  10  Yerg. 
477;    ijVt.  533;    17  Id.  109.      J-TouUicr  n.  171.    J-16 


prive  the  first  owner  of  the  property  thus  torn 
away  or  rcmoved.8 

Benches.     See  "Waste,  below. 

Betterments  are  improvements  of  a  higher 
character  than  mere  repairs,''  and  also  denote 
additional  value  which  the  property  acquires 
from  some  public  improvement,  as  laying  out, 
widening,  etc.,  streets,  etc. 

Boundaries  are  those  separations,  natural 
or  artificial,  which  mark  the  confines  or  line 
of  two  contiguous  estates,*  and  those  objects 
placed  or  existing  at  the  angles  of  the  bound- 
ary lines  Boundaries  are  frequently  denoted 
by  monuments  fixed  at  the  angles;  in  such 
case  the  connecting  lines  are  always  presumed 
to  be  straight,  unless  described  to  be  other- 
wise.J 

Artificial  boundaries  are  those  erected  by 
man ;  the  ownership  in  case  of  such  bounda- 
ries must  of  course  turn  mainly  upon  circum- 
stances peculiar  to  each  case,*  generally  ex- 
tending to  the  centre.'  A  tree  standing  directly 
on  the  line  is  the  joint  property  of  both  pro- 
prietors;" otherwise,  where  it  only  stands  so 
near  that  the  roots  penetrate."  Land  bounded 
on  a  highway  extends  to  the  centre,  though  a 
private  street,"  unless  the  description  excludes 
the  highway.?  See  Courses;  Lines  and 
Corners;  Monuments;  below. 

Natural  boundaries  are  natural  objects  re- 
maining where  they  were  placed  by  nature.  A 
river  or  stream  is  a  natural  boundary,  and  the 
centre  of  the  stream  is  the  line.' 

The  order  of  marshalling  boundaries  is  as 
follows : 

1.  The  highest  regard  is  had  to  natural 
boundaries. 

2.  To  lines  actually  run  and  corners  marked 
at  the  time  of  the  grant. 

3.  If  the  lines  and  courses  of  an  adjoining 
tract  are  called  for,  the  lines  will  be  extended, 
if  they  are  sufficiently  estaljlished,  and  no 
other  departure  from  the  deed  is  required, 
preference  being  given  to  marked  lines. 

4.  To  courses  and  distances.'' 

Parol  evidence  is  often  admissible  to  identify 
and  ascertain  the  locality  of  monuments  called 
<for  by  a  description ;'  and  where  the  description 
is  ambiguous  the  parties  may  be  shown.'  Com- 
mon reputation  may  be  admitted  to  identify 
monuments,  especially  if  of  a  public  or  ques- 
tionable nature." 

Pick.  235:  6  Monr.  179;  3  Ohio,  382;  1  McL.  C.  C 
519;  2  Washb.  R.  Prop.  632.  k-5  Taunt.  20;  3  Id 
138;  8  B.  &  C.  259.  1-4  Hill,  309  ;  6 Conn.  471.  in-i2 
N.  H.  454.  n-i  Mood.  &  M.  112;  3  Rolle,  141  ;  3 
Greenl.  Ev.  §  617.  0-8  Gush.  595  ;  i  Sandf.  323,  374. 
n-15  Johns.  454;  11  Conn.  60;  i  Allen,  443;  3  Washb. 
R.  Prop.  635.  «|-i3  Johns.  252  ;  20  Id.  91;  6  Co«  ■ 
579  ;  I  Rand.  417;  3  Id.  33  ;  4  Pick.  268  ;  i  Halst.  i  ; 
4  ftlason  C.  C.  349  ;  9  N.  H.  461;  i  Tayl.  136;  11 
Miss.  366;  5  H.  &  J.  195,  245.  As  to  a  pond,  see  13 
Pick.  261  ;  9  N.  H.  461 ;  10  Me.  224;  13^.198;  16 
Id.  257.  As  to  sea-shore,  see  2  Johns.  362;  5  Gray, 
335;  13  Id.  254.  r-i  Greenl.  Ev.  |  301,  n.  »-i3  Pick. 
267;  19  Id.  445.  t-i  Met.  (Mass.)  378;  7  Pick.  274. 
n-2  'Washb.  R.  Prop.  636:  i  Greenl.  Ev.  (>  145  ;  J 
Hawks,  116 ;  I  McLean  C.  C.  45,  518 ;  10  N.  H.  432  ;  4 
Id.  214  :  2  A.  K.  Marsh,  158  ;  9  Dana,  322,  465  ;  6  V%\. 
341 ;  8  Leiph,  497  ;  3  Ohio,  a8», 


REAL  PROPERTY. 


613 


Brick  Eaxth.    See  Waste,  below. 

Buildings.  Every  edifice  erected  or  fixed 
upon  or  over  the  soil,  whether  composed  of 
stone,  brick,  marble,  wood,  or  other  proper 
substance  connected  together  and  designed  for 
use  in  the  position  in  which  it  is  erected  or 
fixed,  is  an  accessory  to  the  soil,  and  is  therefor 
real  estate  and  belongs  to  the  owner  of  the 
soil.^    See  Land;  Waste,  below. 

Caveat  Emptor.  ("  Let  the  purchaser 
take  heed,"  that  is,  let  the  person  buying  see 
that  the  title  be  good.)"  In  every  sale  of  real 
property  a  purchaser's  right  to  relief  at  law  or 
in  equity  on  account  of  defects  or  incumbrances 
in  or  upon  the  property  sold,  depends  solely 
upon  the  covenants  for  title  which  he  has  re- 
ceived,''  unless  there  be  a  fraud  on  the  part  of 
the  vendor.^ 

Clay.    See  Waste,  below. 

Coal.     See  Waste,  below. 

Coasts,  or  margins  of  a  country  bounded  by 
the  sea,  include  the  natural  appendages  of  the 
territory  which  rise  out  of  the  water,  although 
they  are  not  of  sufficient  firmness  to  be  in- 
habited or  fortified.  Shoals  perpetually  covered 
with  water  are  not,  however,  comprehended 
under  the  name  of  coast.  The  small  islands 
situate  at  the  mouth  of  the  Mississippi,  com- 
posed of  earth  and  trees  drifted  down  by  the 
river,  which  are  not  of  sufficient  consistency  to 
support  the  purposes  of  life,  and  uninhabited, 
though  resorted  to  for  shooting  birds,  are  a 
part  of  the  coast.* 

Corporations.  In  case  of  corporations, 
the  same  property  may  assume  character  of 
both  real  and  personal.  Thus,  if  a  corporation 
hold  real  estate,  such  as  a  mill  or  banking 
house,  it  would  be  in  the  hands  of  the  corpora- 
tion real  estate,  but  as  constituting  a  part  of  the 
property  owned  and  represented  in  the  form  of 
stock  by  the  members  constituting  the  body  of 
the  corporation  it  is  personal  estate.*  But  the 
shares  in  corporate  property  may  be  real  estate 
when  declared  to  be  so  by  the  charter  creating 
it,  or  when  the  corporation  is  merely  consti- 
tuted to  hold  and  manage  lands.*" 

CoiTRSES  are  directions  of  a  line  with  refer- 
ence to  a  meridian.  Where  there  are  no  monu- 
ments, the  land  must  be  bounded  by  the  courses 
and  distances  mentioned  in  the  patent  or  deed." 
When  the  lines  are  actually  marked,  they  must 
be  adhered  to,  though  they  vary  from  the  course 
mentioned  in  the  deed.*  See  Boundaries, 
above. 

Creeks  are  lesser  streams  than  rivers."     A 

V-CruiseDig.  tit.  i,§46.  w-Tayler.  ac-Sugd.Vend. 
425;  Co.  Lilt.  384,  a.;  Butl.note;  Dougl.  665  :  i  Salk. 
211  ;  2  Freem.  Ch.  i  ;  3  Swanst.  Ch.  651  ;  1  Co.  i ;  17 
Pick.  475;  II  Ga.  311 ;  i  S.  &  R.  52.  y-3  B.  &  P. 
162  ;   14  Me.  133  ;    30  Id.  266  ;    2  Caines,  192  ;    2  Johns. 


510  :  5  Id.  79  ;  9  Id.  36 ;  24  Penn.  St.  142  ;  4  Gill.  300  ; 
3  Md.  551;  I  Spence,  353;  4  111.  334;  11  Id.  146;  8 
Leigh,  658  ;  7  Gratt.  238  ;  15  15.  Mon.  627  ;  Freem.  Ch. 
134.276;  3  I  red.  408  ;  3  Humphr.  347;  5  Iowa,  293  ; 
consult  Rawle  Cor.  z-5  C.  Rob.  Adtn.  385,  c.  a-3 
M.  &  W.  422;  Angell  &  .A.mes,  i*  557.  b-2  P.  Wms. 
127;  2  Conn.  507;  10  Mass  150.  c-4  Wheat.  444 ;  3 
Pet.  96;  3  Murph.  82;  2  Harr.  &J.  267;  5  Id.  254. 
d-»  Overt.  304 ;    7  Wheat.  7.    e-ig  Pick.  184 ;    Cowp. 


creek  passing  through  a  deep,  level  marsh,  and 
navigable  by  small  craft,  may,  under  legislative 
authority,  be  obstructed  by  a  dam,  or  wholly 
filled  up  and  converted  into  house  lots,  such 
obstructions  not  being  in  conflict  with  any  act 
of  Congress  regulating  commerce.' 

Curtesy  is  the  estate  to  which  a  man  is  en- 
titled by  common  law,  on  the  death  of  his 
wife,  in  the  lands  or  tenements  of  which  she 
was  seized  in  possession  in  fee  simple  or  other- 
wise during  their  coverture,  provided  they 
have  had  lawful  issue  born  alive  which  might 
have  been  capable  of  inheriting  the  estate.  It 
is  the  freehold  estate  for  the  term  of  his  natural 
life.K    See  title  Conveyances,  ante. 

Curtilage  is  the  enclosed  space  immedi- 
ately surrounding  a  dwelling-house,  contained 
within  some  enclosure.* 

Deeds.     See  title  Conveyances,  ante. 

Derelict  Land  is  that  which  is  abandoned 
or  diverted  by  its  former  owner.  Also  land 
left  uncovered  by  the  receding  of  water  from 
its  former  bed.''  When  left  so  by  degrees  the 
derelict  land  belongs  to  the  owner  of  the  soil 
adjoining;  but  when  the  sea  retires  suddenly 
it  belongs  to  the  government.' 

Devi.se.     See  Conveyances,  "  Wills." 

Detainer  is  the  withholding  of  possession 
of  real  property  from  its  owner.  This  may  be 
either  lawful  and  peaceable,  or  unlawful  and 
forcible.  The  detainer  is  lawful  where  the  en- 
try has  been  lawful,  and  the  estate  is  held  by 
virtue  of  some  right.  It  is  unlawful  and  forci- 
ble where  the  entry  has  been  unlawful  and 
with  force,  and  it  is  retained  by  force  against 
right ;  or  even  where  the  entry  has  been 
peaceable  and  lawful,  if  the  detainer  be  by 
force  and  against  right :  as,  if  a  tenant  at  will 
should  detain  with  force  after  the  will  has  de- 
termined, he  will  be  guilty  of  a  forcible  de- 
tainer.J 

A  forcible  entry  or  detainer  consists  of  the 
unlawful  or  forcible  taking  or  keeping  posses- 
sion of  lands  or  tenements  by  means  of  threats, 
force,  or  arms,  and  without  authority  of  law.* 
If  a  party  enter  peaceably,  and  then  turn  out 
the  possessor  by  force,  or  frighten  him  out  of 
the  possession  by  threats,  it  is  a  forcible  entry." 
As  to  forcible  detainer,  the  same  violence  or 
terror  which  will  make  an  entry  forcible  will 
also  make  a  detainer  forcible.™  A  forcible 
entry  and  a  forcible  detainer  are  separate  and 
distinct  causes  of  action  and  oflfences."  Force, 
either  actually  applied  or  justly  to  be  feared 
from  the  conduct  of  the  defendant,  is  essential 

86.  f-2  Pet.  245;  I  Pick.  180;  21  Id.  344;  3  Met. 
(Mass.)  202 ;  2  Stockt.  211  ;  see  4  B.  &  Aid.  589.  jf-i 
Washb.  R.  Prop.  127.  x-See  Blount  Spelman ;  10 
Cush.  480;  4  Bl.  Comm.  224;  i  Hale  PI.  Cr.  558;  a 
Russ.  Cr.  13 ;  i  Id.  790;  Russ.  &  R.  289  ;  i  C.  &  K. 
84;  2  Mich.  250.  I1-2  Rolle  Abr.  170;  2  Bl.  Comra. 
262;  I  Crabbe  R.  Prop.  109.  I-2  Bl.  Comm.  262;  i 
Brown  Civ.  L.  239;  i  Sumn.  C.  C.  328,  490;  i  Gall. 
133;  Bee  Adm.  62,  178,  260  ;  Ware  Dist.  Ct.  332.  J- 
Hawk.  PI.  Cr.  Ch.  64,  g  22  ;  2  Chitty  Pr.  238  ;  Com. 
Dig.  Det.  B.  2;  8  Cow.  216;  i  Hall,  240;  4  Johns. 
\a%  ;  4  Bibb.  501.  It-See  Com.  Dig.  h.  t.  :  Gabbett 
Crim.  L.  I-Bac.  Abr.  Fore.  Ent.  B.  m-i  Russ.  311. 
11-33  Cal.  339 ;  I  Sei^;.  &  Rawle,  124;  8  Cowen,  22$. 


6i4 


REAL  PROPERTY. 


to  support  the  action  or  prosecution."  Gener- 
ally, the  person  having  the  right  of  possession 
to  land  entered  upon  by  another,  or  kept  from 
him  unlawfully  by  a  tenant  holding  over,  may 
enter  and  take  possession,  using  as  much  force 
as  may  be  necessary  for  that  purpose :  provided, 
that  in  so  doing  he  commits  no  act  amounting 
to  a  breach  of  the  peace,  or  leading  directly 
thereto.P  See  Estates  at  Sufferance,  be- 
low. 

Doors.     See  Waste,  below. 
(   DovEHOUSBi     See  Waste,  below, 
'    Drainage  through  another  man's  land  can 
only   be   had   under   legislative   authority,    or 
where  the  right  is  granted  or  exists  by  pre- 
scriptton.i  or  by  consent  of  the  owner. 

Dripping  water  from  one  house  upon  another 
can  only  be  allowed  where  the  owner  has  ac- 
quired the  right  by  grant  or  prescription ;  and 
no  one  has  a  right  to  construct  his*house  so  as 
to  let  the  water  drip  over  his  neighbor's  land.' 

Easements  are  rights  in  the  owner  of  one 
parcel  of  land,  by  reason  of  such  ownership,  to 
use  the  land  of  another  for  a  special  purpose 
not  inconsistent  with  the  general  property  of 
such  owner.*  Easements  are  as  various  as  the 
exigencies  of  domestic  convenience  or  the  pur- 
poses to  which  buildings  or  lands  may  be  ap- 
plied. 

The  following  easements  or  rights  attach  to 
land  as  incidents  or  appurtenances,  viz. : 

1.  Pasture  in  other  land. 

2.  Fishing  in  other  waters. 

3.  Taking  game  on  other  land. 

4.  Taking  wood,  minerals,  or  other  produce 
of  the  soil,  from  other  land, 

5.  Receiving  air,  light,  or  heat  from  or  over 
other  land. 

6.  Receiving  or  discharging  water  over,  or 
having  support  to  buildings  from,  other  land. 

7.  Going  on  other  land  to  clear  a  mill- 
stream,  or  repair  its  banks. 

8.  To  draw  water  from  a  spring  there,  or  do 
some  other  act  not  involving  ownership. 

9.  Carrying  on  an  offensive  trade.* 

10.  Burying  in  a  church  or  a  particular 
vault." 

Some  of  these  are  affirmative  or  positive; 
that  is,  authorizing  the  commission  of  acts  on 
the  lands  of  another  actually  injurious  to  it; 
as,  a  right  of  way ;  or  negative,  being  only  con- 
sequently injurious;  as,  forbidding  the  owner 
from  building  to  the  obstruction  of  light  to  the 
dormant  (or  existing)  tenement.'' 

All  easements  must  originate  in  a  grant  of 
the  property,  or  an  agreement,  express  or  im- 
plied, of  the  owner  of  the  servient  (or  subordi- 

0-5  Cal.  156.  p-i  Handy,  521  ;  8  Eng.  C.  L.  280 ;  7 
T.  R.  421 :  a  Foster  (N.  H.)  13;  4  Johns.  149;  1  Watts 
&  Serg.  90 ;  7  Mete.  147-157  ;  13  Pick.  39  ;  6  Car.  &  P. 
284;  I  Man.  &  Gr.  644;  55  Eng.  C.  L.  757  ;  8  T.  R. 
360;  31  Me.  293.  Q-See  3  Kent  Comm.  436;  7  M.  & 
"•  3S4 ;  Washb.  Easm.  r-i  RoUe  Abr.  107 ;  see  3  Kent 
Comm.  436:  Dig.  43,  23,  4,  6  ;  11  Ad.  &  E.  40.  8-2 
Washb.  R.  Prop.  25.  t.-2  Bingh.  (N.  C.)  134;  s  Met. 
(Mass.)  8.  a-Washb.  Easm.;  8  Ho.  L.  Cas.  362  ;  3 
B.  &  Ad.  735  ;  II  Q.  B.  666.  v-Tudor  L.  Cas.  107  ;  2 
Washb.  R.  Prop.  26.  w-Gale  Easm.  23,  81,  128;  2 
Bl.  Comm.  263.      x-2  Wash.   R.  Prop.  56-60,  82-85, 


nate)  tenement.  The  evidence  of  their  exist- 
ence, by  the  common  law,  may  be  by  proof  oC 
the  agreement  itself,  or  by  prescription  requir- 
ing actual  and  uninterrupted  enjoyment  im 
memorially,  or  for  upwards  of  twenty  years,  tc 
the  extent  of  the  easement  claimed,  from  which 
a  grant  is  implied.  A  negative  easement  does 
not  admit  of  possession;  use  therefore  is  not 
essential  to  its  existence.* 

Easements  are  extinguished:  I.  By  release. 
2.  By  merger,  when  the  two  tenements  or  par- 
cles  of  land  are  united  under  the  same  title 
and  to  the  same  person.  3.  By  necessity,  as 
by  a  license  to  the  servient  owner  to  do  some 
act  inconsistent  with  its  existence.  4.  By  ces- 
sation of  enjoyment,  when  acquired  by  pre- 
scription, the  non-user  being  evidence  of  a  re- 
lea,se,  when  the  abandonment  has  continued  at 
least  as  long  as  the  user  from  which  the  right 
arose.  In  some  cases  a  shorter  time  will  suf- 
fice.* 

Eminent  domain  is  a  power  to  take  private 
property  for  public  use.y  which  exists  only  in 
cases  where  public  convenience  or  necessity 
demands  its  exercise.*  This  right  may  be  exer- 
cised upon  both  corporeal  property,  as  land,  or 
incorporeal,  as  franchises.' 

Eminent  domain  is  distinguished  from  pub- 
lic domain,  which  is  property  owned  absolutely 
by  the  State  in  the  same  manner  as  an  indi- 
vidual holds  his  property.'' 

Entry.     See  Detainer,  above. 

Equity  of  redemption  is  a  right  which  a 
mortgagee  of  property,  or  other  person  having 
an  interest  in  it,  has  of  redeeming  it  after  it 
has  been  forfeited  at  law  by  the  non-payment 
of  the  money  secured  when  due,  with  interest 
and  costs.  Any  person  who  is  interested  in  the 
mortgaged  property,  or  any  part  of  it,  or  who 
has  a  legal  estate  therein,  or  a  legal  or  equit- 
able lien  thereon,  provided  he  comes  in  as 
privy  (a  partaker,  person  interested,  etc.)  in 
estate  with  the  mortgagor,  may  exercise  the 
right.  These  include  heirs,  devisees,  execu- 
tors, administrators,  and  assignees  of  the  mort- 
gagor;" subsequent  incumbrancers  ;*  judgment 
creditors;"  tenants  for  years;'  ajanitress;*  dow- 
ress  and  tenant  by  curtesy  ;••  one  having  an 
easement.' 

Escrow.     See  Conveyances,  ante. 

Estates  may  be  limited  in  duration  to  the 
life  of  one's  self — to  the  life  of  another,  or 
others.J 

—■ IN    common    are   those   held    in  joint 

possession  by  two  or  more  persons  at  the  same 
time  by  several  and  distinct  titles,^ 

453-456 ;  Wa.shb.  Easm.  y-6  How.  556.  «-6  How. 
545.  H-23  Pick.  360  ;  6  How.  529  ;  i  Rice,  383  ;  11  N 
H.  19;  17  Conn.  454.  b-^7  Am.  Jur.  121;  2  Kent 
Comm.  339  ;  3  Yerg.  389  ;  6  How.  540.  C-Coote  Mortg. 
516;  2  Root.  509  ;  2  Hayw.  22  ;  14  Vt.  501 ;  10  Paige 
Ch.  49  :  9  Mass.  422.  rt-5  Johns.  Ch.  35 ;  2  Barb.  Ch. 
371 ;  I  Dana,  23  ;  8  Gush.  46.  e-2  Litt.  382  ,  4  Hen.  & 
M.  loi  ;  4  Verg.  lo :  2  Cal.  ^95  ;  2  Dev.  &  B.  285.  f-8 
Met.  (Mass.)  517;  7  N.  V.  44.  gr-i  Vem.  Ch.  190 :  2 
White  &  L.  L.  Cas.  752.  I1-14  Pick.  98.  i-22  Pick. 
401.  1-1  Washb.  R.  Prop.  88;  2  Sharsw.  Bl.  Comm.  120. 
k-i  Washb.  R.  Prop.  415  ;  2  Bl.  Comm.  191  ;  3  Flin» 
off  R.  Prop.  345 ;  i  Prest.  Est.  139. 


REAL  PROPERTY. 


6 1  J. 


Estates  on  Condition.  See  Conveyances  ; 
Conditions. 

IN  COPARCENARY  are  those  which  sev- 
eral persons  hold  as  one  heir,  whether  male  or 
female.  Such  estates  have  three  unities,  time, 
title,  and  possession ;  but  the  interests  of  the 
coparceners  may  be  unequal.J 

BY  the  curtesy  are  those  to  which  a 

husband  is  entitled  upon  the  death  of  his  wife, 
in  the  lands  or  tenements  of  which  she  was 
seized  and  possessed  in  fee  simple  or  fee  tail 
during  their  coverture,  provided  they  have  law- 
ful issue  born  alive,  and  possibly  capable  of  in- 
heriting her  estate.'' 

IN  DOWER  are  those  which  a  widow 

has  for  her  life  in  some  portion  of  the  lands 
and  tenements  of  which  her  husband  was 
seized  at  any  time  during  coverture,  and  which 
her  issue  might  have  inherited  if  she  had  any, 
and  which  is  to  take  effect  in  possession  from 
the  death  of  her  husband.* 

IN  expectancy  are  those  giving  a  pres- 
ent or  vested  contingent  right  of  future  enjoy- 
ment; one  in  which  the  right  to  taking  or 
receiving  the  profits  is  postponed  to  some  future 
period.'' 

,  Fee    Simple.      See   Conveyances, 

ante. 

,  Fee  Tail.    See  Conveyances,  ante. 

of  inheritance  are  those  which  may 

descend  to  heirs.*  Such  are  all  freehold  estates, 
except  estates  for  life." 

OF  joint  tenancy  are  those  where 

several  persons  have  any  subject  of  property 
jointly  between  them  in  equal  shares  by  pur- 
chase." The  right  of  survivorship  is  the  dis- 
tinguishing characteristic  of  these  estates." 

FOR  life  are  freehold  estates,  not  of 

inheritance,  but  which  are  held  by  the  tenant 
for  his  own  life,  or  the  life  or  lives  of  one  or 
more  other  persons,  or  for  an  indefinite  period, 
which  may  endure  for  the  life  or  lives  of  per- 
sons in  being,  and  not  beyond  the  period  of  a 
life.P 

IN  POSSESSION  are  those  where  the  ten- 
ant is  actually  taking  or  receiving  the  rents 
and  other  advantages  arising  therefrom.' 

IN  REMAINDER  are  those  limited  to  take 

effect  in  possession  or  in  enjoyment,  or  in  both, 
suliject  only  to  any  term  of  years  or  contingent 
interest  that  may  intervene  immediately  after 
the  regular  expiration  of  a  particular  estate  of 
freehold,  previously  created  together  with  it,  by 

>-i  Washb.  R.  Prop.  414  ;  2  Sharsw.  Bl.  Comm.  188  ;  4 
Kent  Comm.  366.  li-i  Washb.  R.  Prop.  128  ;  2  Crabb  R. 
Pr  ip,  ?  1074  ;  Co.  Litt.  30,  a.  :  2  Sharsw.  Bl.  Comm.  126  ; 
1  C.reenl.  Cruise  Dig.  153  ;  4  Kent  Comm.  373,  n.  a.  l-i 
Washb.  R.  Prop.  14Q ;  Park.  Dow.  5  ;  2  Sharsw.  Bl. 
Comm.  i2q  ;  4  Kent  Comm.  41  ;  i  Greenl.  Cruise  Dig.  64. 
x-i  Greenl.  Cruise  Dig.  701.  z-i  Washb.  R.Prop.  51  ;  i 
Steph.  Comm.  218.  in -Crabb  R.  Prop.  945.  n-i  Washb. 
R.  Prop.  406;  Wms.  R.  Prop.  T12;  1  Bl.  Comm.  180. 
O-Litt.  \  280.  p-i  Washb.  R.  Prop.  88;  2  Crabb  R. 
Prop.  \  1020:  I  Greenl.  Cruise  Dig.  102  ;  Co.  Litt.  42, 
a. :  Br'oct.  Lib.  4  Ch.  28,  §  207.  q-2  Crabb  R.  Prop.  ^ 
2322  ;  2  Sharsw.  Bl.  Comm.  163  ;  1  Greenl.  Cruise  Dig. 
701.  r-2  Fearne  ConN  Rem.  (Sm.  Ed.)  g  159  ;  2  Sharsw. 
Bl.  Comm.  163  ;  Greenl.  Cruise  Dig.  701 ;  4  Kent 
Comm.  209.  s-2  Sharsw.  Bl.  Coram.  175  ;  Co.  Litt. 
92  ;    Crabb  R.  Prop,  g  2345.     <;-Plowd.  151 ;    j  Greenl. 


the  same  instrument,  out  of  the  same  subjed 

of  property.' 

IN  REVERSION  are  residues  of  estates 

left  in  the  grantor,  to  commence  in  possession 
after  the  determination  of  some  particular  estate 
granted  out  by  him.»  The  residue  of  an  estate 
which  always  continues  in  him  who  made  a 
particular  grant.' 

IN  SEVERALTY  are  those  held  by  single 

persons  in  their  own  right  only,  without  any 
other  person  being  joined  or  connected  with 
them  in  point  of  interest  during  their  estate." 

AT  sufferance  are  interests  of  tenants 

who  have  come  rightfully  into  possession  of 
lands  by  permission  of  the  owner,  and  continue 
to  occupy  the  same  after  the  period  for  which 
he  is  entitled  to  l.old  by  such  permission.^ 
This  estate  is  uncommon,  but  is  recognized  as 
an  estate  so  far,  that  the  landlord  must  enter 
before  he  can  bring  ejectment  against  the  ten- 
ant.* If  the  tenant  has  personally  left  the 
house,  the  landlord  may  break  the  doors." 
And  generally,  the  landlord  may  use  force  to 
regain  possession,  subject  only  to  indictment  if 
any  injury  is  committed  against  the  public 
peace.y     See  Detainer,  above. 

At  Will  are  those  by  which  the  tenant 

has  made  entry  under  a  lease  to  hold  during 
the  joint  wills  of  the  parties  to  the  same.* 
Such  estates  are  rare,  being  generally  con- 
strued into  estates  for  years,  or  from  year  to 
year  by  the  decisions  of  the  courts,  or  by 
statute.' 

For  Years  are  interests  in  lands  by 

virtue  of  a  contract  for  the  possession  of  them 
for  a  definite  and  limited  period  of  time''  to 
suit  the  contracting  parties.  The  length  of 
time  for  which  the  estate  is  to  endure  is  of  no 
importance  in  ascertaining  its  character,  unless 
otherwise  declared  by  statute.* 

Eviction  is  total  where  a  possessor  is 
wholly  deprived  of  his  rights  in  the  premises. 
It  is  partial  where  the  possessor  is  deprived  of 
only  a  portion  of  them,  as  if  a  third  person 
comes  in  and  ejects  him  from  the  possession  of 
half  his  land,  or  establishes  a  right  to  some 
easement  over  it  by  a  title  prior  to  that  under 
which  he  holds.  With  respect  to  the  premises 
leased,  an  eviction  consists  in  taking  from  a 
tenant  some  part  of  the  premises  of  which  he 
was  in  possession,  not  in  refusing  to  put  him  in 
possession  of  something  which  by  the  agree- 
ment  with  his   landlord  he  should   have  en 

Cruise  Dig.  817 ;  Co.  Litt.  22  b,  142  b.  n-2  Bl.  Comm. 
179;  I  Greenl.  Cruise  Dig.  829;  i  Wa,shb.  R.  Prop. 
112.  v-i  Washb.  R.  Prop.  302;  2  Bl.  Comm.  150;  Co. 
Litt.  n  b;  Smith  Landl.  &  T.  217;  Crabb  R.  Prop.  { 
1543.  w-3  T.  R.  292  :  8  Id.  403 :  i  M.  &  G.  644.  x-i 
Bingh.  58;  17  Pick.  263,  266.  y-7  T.  R.  431 ;  i  Cush. 
482  ;  7  Met.  (Mass.)  147  ;  14  M.  &  W.  437  ;  4  Johns. 
150  :  I  W.  &  S.  90;  I  Washb.  R.  Prop.  390,  396;  7  M. 
&  G.  316;  13  Johns.  23s;  13  Pick.  36.  x-Co.  Litt.  55, 
a.  :  Tudor  L.  Cas.  10  ;  Smith  Landl.  &  T.  16  ;  2  Sharsw. 
Bl.  Comm.  145  :  4  Kent  Comm.  no ;  i  Washb.  R.  Prop. 
370.  »-i  Washb.  R.  Prop.  370;  4  Kent  Comm.  115: 
Tudor  L.  Cas.  14  ;  4  Rawle,  123  :  i  T.  R.  159.  b-a 
Sharsw.  Bl.  Comm.  140;  2  Crabb  R.  Prop.  ^  1267;  Bac. 


Abr.  Leases  ;  Wms.  R.  Prop.  195;  i  Washb.  R.  Propi. 
298  ;  I  Piatt  Leases,  47.  c-15  Mass.  439  ;  t  N.  H.  350; 
i^  S.  &  R.  60 ;  4  Kent  Comm.  93. 


6i6 


REAL  PROPERTY. 


joyed,*  and  in  order  to  effect  a  suspension  of 
rent  there  must  be  something  equivalent  to  an 
expulsion  from  the  premises,  and  not  a  mere 
trespass  or  disturbance  in  the  enjoynjent  of 
them.*  It  is  not  necessary,  however,  in  order 
to  produce  the  eviction  of  a  tenant,  that  there 
should  be  actual  physical  expulsion,  for  a  land- 
lord may  do  many  acts  tending  to  diminish  the 
enjoyment  of  the  premises,  short  of  an  expul- 
sion, which  will  amount  to  an  eviction  in  law ; 
as,  if  he  erects  a  nuisance  so  near  the  leased 
premises  as  to  deprive  the  tenant  of  the  use  of 
them,  or  if  he  otherwise  intentionally  disturbs 
the  tenant's  enjoyment  to  such  an  extent  as  to 
injure  his  business  or  destroy  the  comfort  of 
himself  and  family,  it  will  amount  to  an  eviction.^ 

Fee  Simple.     See  Conveyances,  ante. 
Tail.     See  Conveyances,  ante. 

Fences  are,  in  general,  regulated  by  local 
laws.  Generally,  fences  or  boundaries  are  to 
be  built  on  the  line ;  the  expense,  when  made 
according  to  law,  is  borne  equally  between  the 
jiarties.  A  partition  fence  is  presumed  to  be 
the  common  property  of  both  owners  of  the 
land.*  When  built  upon  the  land  of  one  of 
them  it  is  his ;  but  if  it  were  built  equally  upon 
the  land  of  both,  at  their  joint  expense,  each 
vould  be  the  owner  in  severalty  of  the  part 
standing  on  his  own  land.''  See  WASTE,  below. 

Fields.     See  Waste,  below. 

Firewood.     See  Waste,  below. 

Fish-pond.     See  Waste,  below. 

Fixtures  are  personal  chattels  affixed  to 
real  estate,  which  may  be  severed  and  removed 
by  the  party  who  has  affixed  them,  or  by  his 
personal  representative,  against  the  will  of  the 
owner  of  the  freehold.  Questions  frequently 
arise  as  to  whether  given  appendages  to  a  house 
or  land  are  to  be  considered  part  of  the  real 
estate,  or  whether  they  are  to  be  treated  as 
personal  property.  The  latter  are  movable,  the 
former  are  not.  The  annexation  may  be  actual 
or  constructive.  i.  By  actual  annexation  is 
understood  every  mode  by  which  a  chattel  can 
be  joined  or  united  to  the  freehold.  The 
article  must  not  be  merely  laid  upon  the 
ground ;  it  must  be  fastened,  fixed,  or  set  into 
the  land,  or  into  some  such  erection  as  is  un- 
questionably a  part  of  the  realty ;  otherwise  it 
is  in  no  sense  a  fixture.'  Locks,  iron  stoves  set 
in  brick  work,  posts,  and  window  blinds,  afford 
examples  of  actual  annexation.^  Some  things, 
however,  have  been  held  to  be  parcel  of  the 
realty  which  are  not  annexed  or  fastened  to  it ; 
for  example,  deeds  or  chattels  which  relate  to 
the  title  of  the  inheritance,  and  go  to  the  heir.* 
But  loose,  movable  machinery,  used  in  prose- 
cuting any  business,  to  which  the  freehold  is 

d-i2  Wend.  529.  e-4  Wend.  505;  5  Sandf.  542:  T. 
Jones,  148  ;  1  Yerg.  779.  f-8  Conn.  727  ;  2  Ired.  350  ; 
I  Sandf.  260  ;  4  N.  Y.  217.  |f-8  B.  &  C.  257,  259,  n. 
4t;  20  111.3?4.  h-5  Taunt.  20;  2  Greenl.  Ev.  617;  see 
9  Wa.shb.  R.  Prop.  79,  80.  1-B.  N.  P.  34 :  3  East.  38  ; 
o  Id.  2T5:  I  Taunt.  21  :  Poth.  Traite  des.  Ch.  §  1.  J- 
See  5  Hayw.  109  :  20  Johns.  29  ;  i  Harr.  &  J.  289 ;  3 
M'Cord,  5S3  ;  9  Conn.  63;  i  Miss.  508,  620;  7  Mass. 
432;  15  Id.  159;  4  Ala.  314.  h-Shep.  Touchst.  469. 
I-12  N.  H.  ?05  ;  see,  however,  2  W.  &S.  116,  390.  m- 
Shep.  Xoucnst.  90:    Potb.  Trai(e  des.  Ch.  I  i.     n-3 


adapted,  cannot  be  considered  part  of  the  real 
estate,  nor  in  any  way  appurtenant  to  it;'  so 
deer  in  a  park,  fish  in  a  pond,  and  doves  in  a 
dove-house,  go  to  the  heir,  and  not  to  the 
executor,  being,  like  keys  and  heirlooms,  con- 
structively annexed  to  the  inheritance." 

The  general  rule  is,  that  fixtures  once  an- 
nexed to  the  freehold  become  a  part  of  the 
realty.  But  to  this  rule  there  are  exceptions ; 
as,  I.  Where  there  is  a  manifest  intention  to 
use  the  fixture  in  some  employment  distinct 
from  that  of  the  occupant  of  the  real  estate? 
2.  Where  it  has  been  annexed  merely  for  the 
purpose  of  carrying  on  a  trade ;°  for  the  fact 
that  it  was  put  up  for  such  a  purpose  indicates 
an  intention  that  the  thing  should  not  become 
a  part  of  the  freehold."  But  if  there  is  a  clear 
intention  that  the  thing  should  be  permanently 
annexed  to  the  realty,  its  being  used  for  pur- 
poses of  trade  would  not,  perhaps,  bring  the 
case  within  one  of  the  exceptions.? 

Where  the  question  arises  between  an  execu- 
tor and  the  heir-at-law,  the  rule  is  strict  that 
whatever  belongs  to  the  estate  to  which  the 
fixture  appertains  will  go  to  the  heir ;  but  if 
the  ancestor  manifested  an  intention  (which 
may  be  inferred  from  circumstances)  that  the 
things  affixed  should  be  considered  personalty, 
they  will  be  so  ^treated,  and  will  go  to  the 
executor.i 

As  between  a  vendor  and  vendee  the  same 
strictness  applies  as  between  an  executor  and 
an  heir-at-law ;  for  all  fixtures  which  belong  to 
the  premises  at  the  time  of  the  sale,  or  which 
have  been  erected  by  the  vendor,  whether  for 
purjjoses  of  trade  or  manufacture,  or  not,  as 
potash  kettles  for  manufacturing  ashes,  and  the 
like,  pass  to  the  vendee  of  the  land,  unless 
they  have  been  expressly  reserved  by  the  terms 
of  the  contract.'' 

The  same  rule  applies  as  between  mortgagor 
and  mortgagee. 

As  between  devisee  and  executor,  things 
permanently  annexed  to  the  realty  at  the  time 
of  the  testator's  death  pass  to  the  devisee — his 
right  to  fixtures  being  similar  to  that  of  a 
venflee.' 

As  between  a  landlord  and  his  tenant  the 
strictness  of  the  ancient  rule  has  been  much 
relaxed.  The  rule  is  understood  to  be  that  a 
tenant,  whether  for  life,  for  years,  or  at  will, 
may  sever  at  any  time  before  the  expiration  of 
his  tenancy,  and  carry  away  all  such  fixtures 
of  a  chattel  nature  as  he  has  himself  erected 
upon  the  demised  premises  for  the  purposes  of 
ornament,  domestic  convenience,  or  to  carry  on 
trade,  provided,  always,  that  the  removal  can  l'>e 
effected  without  material  injury  to  the  freehold." 

East.  88;  4  Watts.  330.  o-See  H.  BI.  260.  p-i  H. 
Bl.  260;    and  see  title  Landlord  and  Tenant,  ante. 

8 -See  Bac.  Abr.  Exr.  Admr.  ;  2  Str.  1141  ;  1  P.  Wms. 
h.  94;  B.  N.  P.  34.  r-6  Cow.  663;  20  Johns.  20.  !»- 
15  Alass.  159  ;  i  Atk.  Ch.  477  ;  16  Vt.  124;  12  N.  H. 
205.  t-2  Barn.  &  <^.  80.  n-ift  Day,  322  :  j6  Mass 
449;  4  Pick.  310;  2  Dev.  376;  i  Bail.  541  ;  7  Barb. 
263  ;  I  Denio,  92;  19  N.  Y.  234.  And  see  for  adjudica- 
tions to  this  effect  upon  specific  articles,  Taylor  Landl. 
&  Ten.  g  544-560,  and  post,  title  J.^m>l.OiiD  and  Tbm- 

ANT, 


REAL  PROPERTY. 


617 


A  tenant  for  years  may  remove  fixtures  at 
Rny  lime  before  he  gives  up  the  possession  of 
the  premises,  although  it  may  be  alter  his  term 
has  expired,  and  he  is  holding  over;'  but  ten- 
ants for  Life,  or  at  will,  having  uncertain  in- 
terests in  the  land,  have,  after  the  determina- 
tion of  their  estates,  not  occasioned  by  their 
own  fault,  a  reasonable  time  within  which  to 
remove  their  fixtures." 

If  a  tenant  quits  possession  of  land  without 
removing  such  fixtures  as  he  is  entitled  to,  the 
property  in  them  immediately  vests  in  the  land- 
lord; and  though  they  are  subsequently  severed, 
the  tenant's  right  to  them  does  not  revive.  If, 
therefore,  a  tenant  desires  to  have  any  such 
things  upon  the  premises  after  the  expiration 
of  his  term,  for  the  purpose  of  valuing  them  to 
an  incoming  tenant,  or  the  like,  he  should  take 
care  to  get  the  landlord's  consent,  otherwise  he 
will  lose  his  property  in  them  entirely.*  The 
rights  of  parties  with  respect  to  particular  ar- 
ticles are  sometimes  regulated  by  local  customs, 
especially  as  between  outgoing  and  incoming 
tenants;  and  in  cases  of  this  kind  it  becomes  a 
proper  criterion  by  which  to  determine  the  char- 
acter of  the  article,  and  whether  it  is  a  fixture  or 
not.  See  Landlord  and  Tenant;  Grow- 
ing Crops;  Emblements;  Fixtures,  etc. 

Floors.     See  Waste,  below. 

Freehold.  See  Estates  of  Freehold, 
;il)ove. 

Fruit  Trees.     See  Waste,  below. 

Fuelling  Mill.     See  Waste,  below. 

Furnaces.    See  Waste,  below. 

Gardens  or  grounds,  set  apart  for  flowers 
and  plants,  are  parcels  of  the  houses  to  which 
they  belong,  and  pass  with  them.' 

Gates.     See  Waste,  below. 

Grant.     See  Conveyances,  ante. 

Gravel.     See  Waste,  below. 

Grist  Mill.     See  Waste,  below. 

Ground-rent  is  a  rent  paid  for  the  privilege 
•f  building  on  another  man's  land.  It  is  a 
freehold  estate  created  by  deed,  and  perpetual 
by  the  terms  of  its  creation ;  and  no  mere  lapse 
of  time  without  demand  raises,  at  common  law, 
a  presumption  that  the  estate  has  been  released.* 
See  Conveyances,  ante. 

Growing  Crops.  See  Landlord  and 
Tenant,  ante. 

Hedges.     See  Waste,  below. 

Heirlooms  include  charters,  deeds,  and 
•ther  evidences  of  the  title  of  land,  together 
iwith  the  box  or  chest  in  which  they  are  con- 

▼-I  B.  &  C.  79 ;  2  East.  88.  w-s  Atk.  Ch.  13.  x-i 
p.  &  Ad.  394;  2  M.  &  W.  450.  y-2  Co.  32  ;  Plowd. 
171;  Co.  Litt.  $  b,  ^6  ti,  b :  see  F.  Moore,  24;  Bac. 
Abr.  Grants.  1.  «-i  Whart.  229.  a-Co.  Litt.  3  <j,  185 
>;  7  Co.  ly  b :  Cro.  Eliz.  ^72;  Broke  Abr.  Charters 
pi.  13;  2  Bl.  Comm.  28;  14  VinerAbr.  291.  l>-6Mod. 
S14;  Woodfall  LandK  &  T.  178.  c-Cro.  E!iz.  89;  3 
Leon,  214;  I  Plowd.  171;  2  Wms.  Saund.  401,  n.  2  ;  4 
Penn.  St.  93.  d-i  P.  Wms.  603  ;  Cro.  Jac.  526 ;  2  Co.  32  ; 
Co.  Litt.  5  </,  36  a,b  ;  2  Wms.  Saund.  401,  n.  2.  e-8 
Wheat.  I  :  1  Dana,  481  :  3  Ohio  St.  463  ;  4  McLean  C.  C. 
483;  5  Johns.  272  :  2  Paine  C.  C.  74.  f-3  Atk.  Ch.  134; 
3  Sneed.  228  :  1  Yerg.j6o;  24  Vt.  560;  2  Johns.  Cas. 
4ji.  gr-See  2  Greenl.  Ev.  ?  242.  Ii-2  Mass.  97  ;  3  N. 
; ;  10  Conn.  431  ;  12  La.  An.  541 ;  27  Vt.  739.  i- 
k.  68 ;  7  Gray,  83 ;  5  Conn.  497.    J-4  Moss.  630 ;  , 


«.  335 
J5  Pic 


tained,  the  keys  of  a  house,  and  the  fish  in  a 
fish  pond.' 

Houses,  if  divided  into  several  apartments 
having  no  communication  with  each  other,  are 
considered  as  so  many  distinct  and  separate 
houses.''  In  a  conveyance  or  lease  of  a  house, 
the  enclosed  space  immediately  surrounding  it 
and  contained  within  some  enclosure,  and  the 
garden,  will  pass,  even  without  the  words 
"with  the  appurtenances"  being  added."  In 
a  conveyance  or  lease  of  a  house  with  the  ap- 
jnirtenances,  no  more  will  pass,  although  other 
lands  have  been  occupied  witli  the  bouse.*  See 
Waste,  below. 

Improvements,  as  between  the  rightful 
owner  and  an  occupant  who  in  good  faith  has 
put  them  on,  belong  to  the  rightful  owner  of  the 
land,  without  compensation  for  the  increased 
value.  This  is  the  common  law,"  though  the 
rule  is  otherwise  in  equity,'  and  by  the  statutes 
of  some  States. 

Incumbrances  are  any  rights,  or  interests 
in  land,  which  may  be  held  by  third  persons, 
which  diminishes  the  value  of,  but  not  the  right 
to  pass  such  land.8  Of  these  are  public  high- 
ways;''  a  private  right  of  way;'  a  claim  of 
dower,J  though  inchoate  only ;"  an  outstanding 
mortgage,'  other  than  one  which  the  covenantee 
is  bound  to  pay;"  a  liability  to  tax  laws."  But 
does  not  include  a  condition  on  which  an 
estate  is  held.°  The  vendor  of  real  estate  is 
bound  to  disclose  incumbrances,  and  to  deliver 
to  the  purchaser  the  instruments  by  which  they 
were  created  or  on  which  the  defects  arise; 
and  the  neglect  of  this  is  to  be  considered 
fraud.P  The  interest  on  incumbrances  is  to  be 
kept  down  by  the  tenant  for  life,i  to  the  extent 
of  rents  accruing;''  and  for  any  sum  paid  beyond 
that  he  becomes  a  creditor  of  the  estate.* 
When  the  whole  incumbrance  is  removed  by  a 
single  payment,  the  share  of  the  tenant  for  life 
is  the  present  worth  of  the  annuity,  for  the  life 
of  the  tenant,  equal  to  the  annual  amount  of 
the  interest  which  he  would  be  obliged  to  pay.* 
This  rule  applies  to  estates  held  in  dower;"  in 
curtesy ;'  in  tail  only  in  special  cases." 

Innings  or  lands  may  be  gained  from  the 
sea  by  drainage.* 

Irrigation.  The  owner  of  land  over  which 
there  is  a  current  stream  is,  as  such,  the  pro- 
prietor of  the  current.^  A  riparian  proprietor 
may  avail  himself  of  the  river  for  irrigation, 
provided  such  river  be  not  materially  lessened, 
and  the  water  absorbed  be  imperceptible  or 
trifling.*    See  Springs,  below. 

23  Ala.  (N.  S.)  616.  Il-2Me.  22;  22  Pick.  447  ;  3  N. 
1.260.  1-5  Me.  94;  30  Id.  392.  IM-2N.  H.458;  12 
Mass.  304;  8  Pick.  Mass.  547:  11  S.  &  R.  109;  4 
Halst.  139.  11-30  Vt.  655  ;  5  Oliio  St.  271 ;  5  Wis.  407. 
0-3  Gray,  515  ;  6  Id.  572.  |>-Sugden  Vend.  6;  1  Vcs. 
Sr.  96.  «|-i  Washb.  R.  Prop.  95-97,  257,  573 ;  j  Edw. 
Ch.  312  ;  5  Johns.  Ch.  482  ;  5  Ohio,  28.  r-31  Eng.  L. 
&  Eq.  345;  Tudor  L.  Cas.  60.  8-2  Atk.  Ch.  463;  1 
Bail.   Eq.   397.      t-i   Wa.shb.   R.   Prop.  96,573.     M-io 


Mass.  315,  n.  ;  5  Pick.  146;  10  Paige  Ch.  71,  11:8;  3 
Md.  Ch.  Dec.  324;  7  H.  &  J.  367.  v-i  Washb.  R. 
Prop.  142.      W-i  Washb.  R.  Prop.  80;    Tudor  L.  Cas. 


613;  2  Law  Gaz.  265,  270;  3  P.  Wms.  229.  x-Law  of 
Sewers,  31.  y-4  Masoii  Q.  C.  400.  v-AngeU  WaKX 
Cowses,  ^ 


6iS 


REAL  PROPERTY. 


Islands  when  they  first  arise  in  the  open 
sea  belong  to  the  first  occupant ;  but  when  ihey 
are  newly  formed  so  near  the  shore  as  to  be 
within  the  boundary  of  some  State,  they  belong 
to  that  State.  Islands  which  arise  in  rivers, 
when  in  the  middle  of  the  stream,  belong  in 
equal  parts  to  the  riparian  owners.  When  they 
arise  merely  on  one  side,  they  belong  to  the 
riparian  owner  up  to  the  middle  of  the  stream,' 
See  Coasts,  above ;  Water,  below. 

Jointure.     See  Estates,  ante. 

Keys  of  a  house  are  considered  real  estate, 
and  descend  to  the  heir  with  the  inheritance.'* 

Land  includes  any  ground,  soil,  earth,  min- 
eral, or  liquids,  and  all  natural  and  artificial 
growth.  It  may  be  wild,  cultivated,  arable,  or 
otherwise.  It  includes  in  general  all  build- 
ings erected  upon  it,"  with  some  exceptions; 
if  a  stranger  voluntarily  erects  buildings  on 
another's  land,  they  will  belong  to  the  owner 
of  the  land,  and  will  become  a  part  of  it,'' 
though  under  peculiar  circumstances  they 
would  be  considered  as  personal  property .•  It 
includes  mines,  except  mines  of  gold  and  sil- 
ver; and  a  grant  of  public  lands  will  include 
these  also.' 

Lease.     See  title  Conveyances,  ante. 

License  may  be  by  conveyance  duly  ac- 
knowledged,^  by  parol,**  or  by  implication  from 
circumstances,  as  opening  a  door  in  response 
to  a  knock.'  It  is  distinguished  from  an  ease- 
ment, which  implies  an  interest  in  the  land  to 
be  affected,  and  is  also  distinguished  from  a 
lease,  which  is  a  right  to  take  the  profits  of 
land.  It  may  be  and  often  is  coupled  with  a 
conveyance  of  some  interest  in  the  land  itself, 
or  right  to  take  the  profits.^  It  may  be  granted 
by  the  owner,  or,  in  many  cases,  by  a  servant.* 
An  executory  license  may  be  revoked  at  the 
pleasure  of  the  grantor.*  In  general,  a  mere 
license  may  be  revoked  at  the  grantor's  pleas- 
ure," although  the  licensee  has  incurred  ex- 
pense." Not  so  a  license  closely  coupled  with  a 
transfer  of  title  to  personal  property."  An  exe- 
cuted license,  which  destroys  an  easement  en- 
joyed by  the  licenser  in  the  licensee's  land, 
cannot  be  revoked.?  The  effect  of  an  executed 
license,  though  revoked,  is  to  relieve  or  excuse 
the  licensee  from  liability  for  acts  done  properly 
in  the  pursuance  thereof,  and  their  conse- 
quences.' The  licensee's  improvements  on 
lands  are  without  compensation,  in  equity.'" 

n-Washb.  R.  Prop.  ;  Kent  Comm.  b-ii  Co.  50  b  ; 
30  Eng.  L.  &  Eq.  598;  see  5  Blackf.  417;  5  Taunt.  £i8. 
C-9  Day,  374.  d-i6  Mass.  449.  e-4  Miss.  514;  5 
Pick.  487  Ts  Id.  203,  402 ;  6  N.  H.  555  ;  10  Me.  371 ;  i 
Dana,  591  ;  i  Burr.  144.  f-3  Kent  Comm.  378,  n. ;  i 
N.  Y.  572.  g'-2  Parsons'  Contr.  22.  I1-13  M.  &  \V. 
838  :  4  M.  &  S.  562 ;  7  Barb.  4 ;  i  Washb.  R.  Prop.  148. 
l-Hob.  62  ;  2  Greenl.  Ev.  \  427.  l-i  Washb.  R.  Prop. 
M,i.  li-Cro.  Elir.  246;  2  Greenl.  Ev.  427.  I-i  Washb. 
R.  Prop.  148.  ni-ii  Mass.  433;  15  Wend.  380.  n-io 
Conn.  378;  23  Id.  223  ;  3  Duer,  355;  11  Met.  (Mass.) 
251 ;  2  Gray,  302  ;  24  N.  H.  364  :  13  Id.  264  ;  4  Johns. 
4i8;  3  Wis.  117;  iDev.  &B.  492;  13M.  &W.  838; 
37  Eng.  L.  &  Eq.  489;  5  B.  &  Ad.  i ;  see  14  S.  &  R. 
«67.  0-8  Met.  (Mass.)  34;  11  Conn.  525;  13  M.  &  W. 
Exch.  856;  II  Ad.  &  E.  34.  p-9  Met.  (Mass.)  302  ;  2 
Gill.  321  ;  3  Wis.  124:  3  Duer,  255;  7  Bingh.  682  ;  3 
p.  ^  C.  332  ;  5  Id.  221.      q-6  Duer,  a6j;  23  Barb.  336; 


Liens.     See  that  title,  ante. 

Lime.     See  Waste,  below. 

Lines.  When  a  line  is  mentioned  in  a 
deed  as  ending  at  a  particular  monument  it  is 
to  be  extended  in  the  direction  called  for 
without  regard  to  distance  until  it  reach  the 
boundarj','  and  a  marked  line  is  to  be  adhered 
to  although  it  depart  from  the  course.*  Where 
a  number  of  persons  settle  simultaneously,  or  at 
shortintervals,thesameneighborhood,  and  their 
tracts,  if  extended  in  certain  directions,  would 
overlap  each  other,  the  settlers  sometimes  by 
agreement  determine  upon  dividing  lines, 
which  are  called  consentible  lines.  These  lines, 
when  fairly  agreed  upon,  have  been  sanctioned 
by  the  courts;  and  such  agreements  are  con- 
clusive upon  all  persons  claiming  under  the 
parties  to  them,  with  notice,  but  not  upon  botia 
Jide  purchasers  for  a  valuable  consideration 
without  notice,  actual  or  constructive."  Lines 
fixed  by  compact  between  nations  are  binding 
on  their  citizens  and  subjects.' 

Lines  and  corners  in  conveyances  and 
surveys  are  the  boundary  lines  and  their  angles 
with  each  other." 

Meadows.     See  Waste,  below. 

Metals.     See  Waste,  below. 

Mills  conveyed  with  their  appurtenances, 
even  without  the  land,  carries  the  whole  right 
of  water  enjoyed  by  the  grantor,  as  necessary 
to  its  use,  and  as  a  necessary  incident;*  and  a 
devise  of  a  mill  carries  the  land  used  with  it 
and  the  right  to  use  the  water.'  A  mill  in- 
cludes not  only  the  building  in  which  the  busi- 
ness is  carried  on,  but  includes  the  site,  the 
dam,  and  other  things  annexed  to  the  freehold 
necessary  for  its  beneficial  enjoyment.*  As  to 
manufacturing  machinery,  see  Fixtures,  above, 
and  title  Landlord  and  Tenant,  "  Crops,'* 
"  Emblements,"  "  Fixtures,"  etc.  See  Wastb, 
below. 

Mines  of  gold  and  silver  and  the  preciom 
metals  belong  to  state  or  sovereign,'  but  pass 
by  a  grant  of  land,  without  exception  or  reser- 
vation, from  the  state  or  government.**  Mines 
of  other  minerals  belong  to  the  owner  of  the 
soil,  and  pass  by  a  conveyance  thereof,  unless 
separated;"  but  the  owner  may  convey  hi< 
mines  by  a  separate  and  distinct  conveyance  so 
as  to  create  one  freehold  in  the  soil  and  another 
in  the  mines.*  In  case  of  a  separate  owner- 
ship the  owner  of  the  mine  must  support  the 

18  Pick.  569;  2  Gray,  302  ;  10  Conn.  378;  13  N.  H. 
264;  7  Id.  237;  7  Taunt.  374;  5  B.  &  C.  221.  r-3  Wis. 
117;  Story  Eq.  Jur.  §1237;  Angell  Water  Courses,  J 
318.  8-1  Tayl.  110,  303  :  2  Id.  I ;  2  Hawks,  219  ;  3  Id. 
21.  t-7  Wheat.  7;  2  Overt.  304;  3  Call.  239;  4  Monr. 
29  ;  7  Id.  333;  2  Bibb.  261 ;  4  Id.  503.  n-3  S.  &  R. 
323;  5  Id.  273:  17  Id.  57;  9W.  &S.  66.  v-ii  Pet. 
209;  I  Overt.  269;  I  Ves  Sr.  Ch.  450;  i  Atk.  Ch.  2;  i 
P.  Wms.  723-727;  I  Vern.  Ch.  48:  t  Ves.  Ch.  19;  2 
Id.  284  ;    3S.  &R.  331.     W-17  Miss.  459  ;    31  Ala.  66; 

5  Foster  &  H.  471  ;  10  Gratt.  445  ;  16  Ga.  141.  x-Cro. 
ac.  121.  y-iS.  &R.  169;  see  5  S.  &  R.  107 ;  10  Id. 
63;  2  Caines  Cas.  87;  3  N.  H.  190;  7  Mass.  6;  6  Me. 
154,  436:  16  Id.  281.  z-3  Mass.  280;  see  6  Me.  436. 
a-i  Plowd.  310  :  3  Kent  Comm.  37S,  n.  to-14  Cal.  375; 
17  Id.  199;    3  Washb.  R.  Prop.  626.      e-i  N.  Y.  564; 

19  Pick.  314.  d-i  Penn.  726;  7  Cush.  3(1 ;  8  Id.  zi, 
5  M.  &  W.  JO, 


REAL  PROPlikTY. 


619 


RUperincumbent  soil,*  and  ancient  buildings 
and  other  erections/  Opening  new  mines  by 
a  tenant  is  waste,  unless  the  lease  includes 
them  ;•  but  if  mines  be  already  open  it  is  not 
waste  to  work  them  even  lo  exhaustion.*' 

The  occupant  of  public  lands  who  holds 
them  for  agricultural  purposes,  holds  them 
subject  to  the  right  of  any  person  to  dig  for 
gold.'     See  Waste,  below. 

Money  often  has  the  character  of  realty  at- 
tached to  it,  so  far  as  being  heritable  and  the 
like,  by  equity,  where  it  is  the  proceeds  of  real 
estate  wrongfully  converted  into  money,  or 
which  ought  to  be  converted  into  real  estate.^ 

Monuments  or  permanent  landmarks,  estab- 
lished or  erected  to  indicate  and  mark  bound- 
aries of  lands,  may  be  either  natural  or  arti- 
ficial objects :  as,  rivers,  known  streams, 
springs,  or  marked  trees,''  and  even  posts  set 
up  at  the  corners,'  and  in  a  clearing.™  When 
monuments  are  established  they  must  govern, 
although  neither  courses,  nor  distances,  nor 
computed  contents  correspond."  See  Bound- 
aries, above. 

Orchards.     See  Waste,  below. 

Parcenary.  See  Estates  in  Parcenary, 
above. 

Partition  Fence.     See  Fences,  above. 

Plats,  or  map  of  land,  on  which  are  marked 
the  courses  and  distances  of  the  different  lines, 
may  be  given  in  evidence  in  ascertaining  the 
position  of  the  land  and  what  is  included,  and 
may  serve  to  settle  the  figure  of  a  survey  and 
correct  mistakes." 

Park.     See  Waste,  below. 

Parlor.     See  Waste,  below. 

Pews  in  churches  are  sometimes  real  and 
sometimes  personal  estate,  depending,  gener- 
ally, upon  local  statutes ;  though,  in  the  ab- 
sence of  statute  law,  it  would  seem  they  were 
interests  in  real  estate  and  partake  of  its  char- 
acter.P 

Possessed  applies  to  the  right  and  enjoy- 
ment of  a  person  having  a  term  who  is  said  to 
be  possessed,  but  not  seized.' 

Possibilities  are  merely  contingent  interests 
in  real  or  personal  property ."■  It  is  uncertain 
whether  the  contingency  may  happen  or  not; 
whether  the  interest  will  be  realized  or  not. 

Prescription  is  a  mode  of  acquiring  title 
to  incorporeal  hereditaments,*  by  immemorial 
or  long  continued  enjoyment.     The  length  of 

e-i2  Q.  B.  739  ;  5  M.  &  W.  60;  12  Exch.  259.  f-2 
Hurlst.  &  N.  828.  {r-Co.  Litt.  53,  b:  2  Bl.  Comm. 
282  ;  I  Taunt.  410  :  Hob.  234.  ta-i  Taunt.  410  ;  19 
Pcnn.  St.  324;  6  Munf.  134:  1  Rand.  258;  10  Pick. 
460;  I  Cow.  460;  see  Smith  Landl.  &  Ten.  192,  193, 
■.  1-5  Cal.  140,308;  6  Id.  148.  j-3  Wheat.  577; 
1  Brown  Ch.  6,  497;  13  Pick.  154.  It -6  Wheat.  582  :  7 
Id.  10;  3  Ohio,  284  ;  5  Id.  534  ;  5  N.  H.  524  ;  3  Dev. 
75.  1-5  Ohio,  534.  111-7  Cow.  723  ;  see  3  Dev.  75.  n- 
1  Con.  605 ;  5  Id.  346 :  6  Id.  706 ;  7  Id.  723  ;  2  Mass. 
380;  6  Id  131;  3  Pick.  401  ;  5  Id.  135;  3  Gill.  &  J. 
142  ;  2  Harr.  &  J.  260  ;  5  Id.  163,  255  ;  1  Hanr.  &  McH. 
355:  2  Id.  416;   Wright,  176;  5  Ohio,  534  ;  Cooke,  146; 

4  Hen.  &  M.  125  :  i  Call.  429 ;  3  Id.  239  ;  11  Me.  325  ; 
I  Hayw.  22 ;   3  Hawks.  91 ;  3  Murph.  88 ;    4  Monr.  32  ; 

5  Id.  175  ;  5  J.  J.  Marsh.  578  ;  6  Wheat.  582 ;  4  Wash. 
C.  C.  15.  0-5  Monr.  160;  see  17  Mass.  211  ;  5  Me. 
219 ;  7  Id.  61 ;  4  Wheat.  444 ;  14  Mass.  149.    p-i  Pick. 


time  necessary  to  raise  a  strict  prescription  was 
limited  to  sixty  years.*  Grants  of  incorporeal 
hereditaments  are  presumed  upon  proof  of 
enjoyment  of  the  requisite  character  for  a  period 
of  years  equal  to  that  fixed  by  statute  as  the 
period  of  limitation  of  real  actions."  Prescrip- 
tion properly  applies  only  to  incorporeal  here- 
ditaments,' such  as  easements  of  water,  light 
and  air,  way,  etc."     A  class  of  franchises.* 

Quarries,  When  a  farm  is  let  with  an  open 
quarry  the  tenant  may,  when  not  restrained  by 
his  contract,  take  out  the  stone ;  but  he  has  no 
right  to  open  new  quarries.   See  Mines,  alxjve. 

Reliction  is  an  increase  of  land  by  the 
retreat  or  recession  of  a  sea,  lake,  or  river. 
Lands  left  dry  by  the  sudden  or  sensible  reces- 
sion of  the  sea,  or  of  a  river  which  flows  and 
reflows  with  the  tide,  belong  to  the  sovereign 
or  State,  unless  the  property  in  the  land  so  re- 
lected  has  been  granted  to  individuals ;  in  other 
words,  the  right  of  property  in  the  soil  is  not 
changed  by  the  change  of  the  water.  But 
where  the  recession  is  gradual  and  insensible, 
or  where  it  takes  place  in  fresh  water  rivers, 
the  soil  of  which  belongs  to  riparian  proprie- 
tors, the  lands  so  relicted  belong  to  the  pro- 
prietors of  the  estates  which  are  thereby  in- 
creased.y  But  this  reliction  must  be  from  the 
sea  in  its  usual  state,  for  if  it  should  inundate 
the  land  and  then  recede,  this  would  be  no  re- 
liction.* If  a  navigable  lake  recede  gradually 
and  insensibly,  the  derelict  land  belongs  to  the 
adjacent  riparian  proprietors ;  but  if  the  reces- 
sion be  sudden  and  sensible,  such  land  belongs 
to  the  State.'  See  Avulsion;  Alluvion, 
above. 

Remainders  are  remnants  of  estates  in  real 
property  expectant  on  a  particular  estate  created 
together  with  it  at  the  same  and  one  time.  A 
contingent  remainder  depends  on  a  contingency 
which  may  or  may  not  happen ;  a  vested  re- 
mainder is  one  by  which  the  present  interest 
passes  to  the  property,  though  to  be  enjoyed  in 
future.* 

Repairs.  What  a  party  is  bound  to  do, 
when  the  law  imposes  upon  him  the  duty  to 
make  necessary  repairs,  does  not  appear  to 
be  very  accurately  defined.  Natural  and  un- 
avoidable decay  in  the  buildings  must  always 
be  allowed  for,  when  there  is  no  express  cov- 
enant to  the  contrary ;  and,  it  seems,  the  lessee 

104:  16  Wend.  28:  5  Met.  (Mass.)  J32.  q-Boc.  Tr. 
335;  Poph.  76;  Dyer,  369.  r-i  Madd.  Ch.  549.  s-See 
title  Conveyances,  ante.  t-32  Hen.  VlII;  8  Pick. 
308  ;  7  Wheat.  79  ;  4  Mason  C.  C.  402  ;  2  Greenl.  539  ; 
see  9  Cush.  171;  29  Vt.  43:  24  Ala.  (N.  S.)  130;  29 
Penn.  St.  22.  11-3  Kent  Comm.  442;  12  Wend.  J30; 
19  Id.  365  ;  27  Vt.  265  :  2  Bail.  loi  ;  4  Md.  Ch.  Dec. 
386;  T3  N.  H.  360:  4  Day,  244;  10  S.  &  R.63;  9  Pick. 
251 ;  see  14  Barb.  511 :  3  Me.  120;  1  B.  &  P.  400;  5  B. 
&  Aid.  232.  v-3  Barb.  105  ;  Finch  L.  132.  w-4  Mas. 
C.  C.  ^97;  4  Rich.  536;  20  Penn.  St.  331  ;  t  Crompt. 
M.  &  R.  217 ;  I  Gale  &  D.  205,  210,  n. ;  Tudor  L.  Cas, 
114:  Washb.  Easm.  x-Co.  Litt.  114;  10  Mass.  70  ; 
10  S.  &  R.  401.  y-Woolrych  Wat.  29-36;  Schultes 
Agr.  Rights,  138 ;  Ang.  Tide-wat.  264-267  ;  3  B.  &  C. 
91  ;  9  Conn.  41 ;  2  Md.  Ch.  Dec.  485  ;  13  N.  V.  296;  s 
Bingh.  163.  SB-Ang.  Tide-wat.  264-267 ;  Hargrave 
Tracts,  15;  16  Viner  Abr.  574.  a-i  Hawks.  56;  i  Gill. 
&  J.  249.    b-Sees  Johns.  sSS;  i  Yeates,  340, 


6ao 


REAL  PROPERTY. 


will  satisfy  the  obligation  the  law  imposes  on 
him  by  delivering  the  premises  at  the  expiration 
of  his  tenancy  in  a  habitable  state.  Questions 
in  relation  to  repairs  most  frequently  arise  be- 
tween the  landlord  and  tenant.  When  there  is 
no  express  agreement  between  the  parties,  the 
tenant  is  always  required  to  do  the  necessary 
repairs."  He  is,  therefore,  bound  to  put  in 
windows  or  doore  that  have  been  broken  by 
him,  so  as  to  prevent  any  decay  of  the  premises ; 
but  he  is  not  required  to  put  a  new  roof  on  an 
old,  worn-out  house.^  An  express  covenant  on 
the  part  of  the  lessee  to  keep  a  house  in  re- 
pair, and  leave  it  in  as  good  a  plight  as  it  was 
when  the  lease  was  made,  does  not  bind  him  to 
repair  the  ordinary  and  natural  decay."  As  to 
the  time  when  the  repairs  are  to  be  made,  it 
would  seem  reasonable  that  when  the  lessor  is 
bound  to  make  them,  he  should  have  the  right 
to  enter  and  make  them,  when  a  delay  until 
after  the  expiration  of  the  lease  would  be  in- 
jurious to  the  estate ;  but  when  no  such  dam- 
age exists,  the  landlord  should  have  no  right 
to  enter  without  the  consent  of  the  tenant.' 
When  a  house  has  been  destroyed  by  accidental 
fire,  neither  the  tenant  nor  the  landlord  is 
bound  to  rebuild,  unless  obliged  by  some  agree- 
ment so  to  do.« 

Reversion  is  the  residue  of  an  estate  left  in 
the  grantor  to  commence  after  the  determina- 
tion of  some  particular  estate  granted  out  by 
him ;  the  return  of  the  land  to  the  grantor  and 
his  heirs  after  the  grant  or  lease  is  over.'' 

Revocation.     See  License,  above. 

Rooms      See  Waste,  below. 

Seashore  is  that  space  of  land  on  the  hor- 
de of  the  sea  between  high  and  low  water- 
mark.' At  common  law  the  seashore  belongs 
to  the  State  or  sovereign.^  The  rights  of  fish- 
ery and  navigation  remain  unimpaired  by  the 
grant  of  lands  covered  by  navigable  water.'' 
The  power  of  the  States  is  absolute,  except  so 
far  as  it  is  controlled  by  the  federal  constltu- 
tion^'  and  they  may  regulate  the  use  of  their 
shores  and  the  fisheries  thereon,  provided  such 
regulations  do  not  interfere  with  the  acts  of 
Congress.™  The  public  right  of  fishing  in- 
cludes shrimping  and  gathering  all  shell-fish, 
or  other  fish,  whose  natural  habitat  is  between 
high  and  low  water- mark." 

Sea-weed  when  cast  upon  the  land  belongs 
to  the  owner  of  the  land  adjoining  the  sea- 
shore, upon  the  ground  that  it  increases  grad- 
ually, it  being  useful  as  a  manure  or  in  pro- 
tection of  the  ground,  and  being  some  compen- 

e-Woodfall  Landl.  &  Ten.  244;  6  Cow.  475.  d-2 
E»p.  590.  e-Woodfall  Landl.  &  Ten.  256  ;  see  7  Gray, 
550.  And  it  has  been  held  that  such  a  covenant  does 
not  bind  him  to  rebuild  a  house  which  has  been  de- 
Itroyed  by  a  public  enemy.  i  Dall.  210  ;  see  1  Dyer, 
33,  «.  I-See  18  TouUier,  n.  297.  g-^  Paige  Ch.  355  ; 
J  T.  R.  708  ;  Foublanqiie,  h.  i,e.  s,^-^:  see  6  T.  R. 
650;  4  Campb.  275  ;  Com.  627  ;  2  Show.  401 ;  sVes. 
Ch.34;  Co.  Litt.  27,  a  note,  I  ;  3  Johns.  44  ;  6Mass. 
63;  Piatt.  Coy.  266  ;  Com.  'D\%.  Condition  (h.  12);  i 
Sand.  322,  «.  I,  323, «.  7:  2  Id.  158,  i^.  «.  7&  10;  Bouv. 
Inst.  Index.  li-Co.  Litt.  142,  6.  1-Hargr.  St.  Tr.  12  ; 
6  Mass.  435,  439  ;  I  Pick.  180,  182  :  5  Day,  22  ;  12  Me. 
•37;  a  Zabr.  441 ;  27  Eng.  L.  &  £q.  242 ;  4  PeG.  M.  & 


sation  for  the  encroachment  of  the  sea  upon 

the  land.o 

Seeds  which  have  been  sown  in  the  earth 
immediately  become  a  part  of  the  land  in 
which  they  have  been  sown.P 

Seizin  is  the  possession  of  real  property 
with  an  intent  on  the  part  of  the  occupant  to 
claim  a  freehold  interest.' 

Shelves.     See  Waste,  below. 

Shoals.     See  Coasts,  above. 

Shore  includes  only  such  land  on  the  side 
of  a  sea,  lake,  or  river,  where  the  water  ebbs 
and  flows,  as  lies  between  high  and  low-water 
mark. 

Soil.     See  Waste,  below. 

Springs  are  the  exclusive  property  of  the 
owner  of  the  soil.  When  another  has  an  ease- 
ment or  right  to  draw  water  from  such  a  spring, 
acquired  by  grant  or  prescription,  and  the 
spring  fails,  the  easement  ceases ;  but  if  it  re- 
turns the  right  revives.  The  owner  of  land  on 
which  there  is  a  natural  spring  has  a  right  to 
use  it  for  domestic  and  culinary  purposes,  and 
for  watering  his  cattle ;  and  he  may  make  an 
aqueduct  to  another  part  of  his  land,  and  use 
all  the  water  required  to  keep  the  aqueduct  in 
order,  or  to  keep  the  water  pure.*"  He  may  also 
use  it  for  irrigation,  provided  the  volume  be 
not  materially  decreased."  The  owner  of  the 
spring  cannot  lawfully  turn  the  current,  or  give 
it  a  new  direction ;  he  is  bound  to  let  it  enter 
the  inferior  estate  on  the  same  level  it  has  been 
accustomed  to,  and  at  the  same  place,  for  every 
man  is  entitled  to  a  stream  of  water  flowing 
through  his  land  without  diminution  or  altera- 
tion.' The  owner  of  the  superior  inheritance, 
or  land  on  which  there  is  a  spring,  has  no  right 
to  deprive  the  owner  of  the  estate  below  him  ;■ 
nor  can  he  detain  the  water  unreasonably.^ 

Statute.     See  Waste,  below. 

Stiles.     See  Waste,  below. 

Stone.     See  Waste,  below. 

Strawberry  Beds.    See  Waste,  below. 

Surrender.     See  Conveyances,  ante. 

Surveys  made  by  authority  of  law,  and  duly 
returned  into  the  land  office,  are  matters  of 
record,  and  of  equal  dignity  with  the  patent.* 

Tenure  is  the  mode  by  which  one  holds  an 
estate  in  lands ;  the  species  of  right  or  title  to 
real  property. 

Timber.     See  Waste,  below. 

Transfer.     See  title  Conveyances,  ante. 

Trees  are  a  part  of  the  real  estate  while 
growing  and  before  they  are  serered  from  the 

G.  206.  I-Angell  TIde-w.  20,  rt  seg.  ;  3  Kent  Comm. 
347;  27  Eng.  L.  &  Eq.  S42;  6  Mass.  435;  i  Dutch, 
525  ;  16  Pet.  367  ;  3  How.  221  ;  3  Zabr.  624.  k-6  Gill. 
121.  1-AngeII  Tide-w.  50.  in-4  Wash.  C.  C.  371 ;  j8 
How.  71 ;  4  Zabr.  80;  2  Pet.  245.  n-s  Day,  22  ;  2  B.  & 
P.  472  ;  22  Me.  353.  0-2  Johns.  313,  323  ;  see5Vt.223. 
p-Inst.  2,  I,  32.  q-8N.  H.58;  i  Washb.  R.  Prop.35. 
r-15  Conn.  366.  »-Angell  Water  Courses,  34.  t-6 
East.  206  ;  2  Conn.  584  ;  see  3  Rawie,  84  ;  12  Wend.  330 ; 
10  Conn.  213;  14  Vt.  239.  n-i  Yeates,  574  ;  s  Pick. 
175  ;  3  Harr.  &  J.  231  ;  12  Vt.  178  ;  13  Conn.  303  ;  14 
111.  492.  V-I7  Johns.  306;  2  B.  &  e.  910.  w-3  A.  K. 
Marsh.  226;  2  J.  J.  Marsh.  160;  see  3  Me.  126;  5  Id. 
24;  14  Mass.  149;  X  Harr.  &  J.  30I ;  x  Overt.  199  ;  t 
Dev.  &  B.  76. 


REAL  PROPERTY. 


621 


freehold;  but  as  toon  as  they  are  cut  down 
they  are  personal  property.  Trees  belong  to 
the  owner  of  the  land  where  they  grow ;  but 
if  the  roots  go  out  of  one  man's  land  into  that 
of  another,  or  the  branches  spread  over  the 
adjoining  estates,  such  roots  or  branches  may 
be  cut  oft*  by  the  owner  of  the  land  into  which 
they  thus  grew.*  When  the  roots  grow  into 
the  adjoining  land,  the  owner  of  such  land  may 
lawfully  claim  a  right  to  hold  the  tree  in  com- 
mon with  the  owner  of  the  land  where  it  was 
planted ;  but  if  the  branches  only  overshadow 
the  adjoining  land,  and  the  roots  do  not  enter 
it,  the  tree  wholly  belongs  to  the  owner  of  the 
estate  where  the  roots  grow.?  When  the  tree 
grows  directly  on  the  boundary-line,  so  that 
the  line  passes  through  it,  it  is  the  property  of 
both  owners,  whether  it  be  marked  as  a  bound- 
ary or  not.*     See  Waste,  below. 

Vest.  An  estate  is  vested  in  possession 
when  there  exists  a  right  of  present  enjoyment; 
and  an  estate  is  vested  in  interest  when  there 
is  a  present  fixed  right  of  future  enjoyment.* 

Vested  remainders  are  estates  by  which 
the  present  interest  passes  to  the  party,  though 
to  be  enjoyed  in  the  future,  and  by  which  the 
estate  is  invariably  fixed  to  remain  to  a.  deter- 
minate person,  after  a  particular  estate  is  ex- 
tinguished.** 

View.  Every  one  is  entitled  to  a  view  from 
his  premises ;  but  he  thereby  acquires  no  right 
over  the  property  of  his  neighbors.  The  erec- 
tion of  buildings  which  obstruct  a  man's  view, 
therefore,  is  not  unlawful,  and  such  buildings 
cannot  be  considered  a  nuisance.' 

Warranty.  See  title  Conveyances,  "  Cov- 
enants," ante. 

Wainscot.     See  Waste,  below. 

Warren.     See  Waste,  below. 

Waste  is  any  spoil  or  destruction  done,  or 
permitted,  to  lands,  houses,  or  other  real  prop- 
erty to  the  prejudice  of  the  owner  or  his  heirs. 
It  may  be  voluntary  or  permissive. 

Permissive  waste  to  buildings  consists  in 
omitting  to  keep  them  in  tenantable  repair; 
suffering  the  timbers  to  become  rotten  by  neg- 
lecting to  cover  the  house;  or  suffering  the 
walls  to  fall  into  decay  for  want  of  plastering ; 
or  the  foundation  to  be  injured  by  neglecting  to 
turn  off  a  stream  of  water,  and  the  like.  At 
common  law,  the  mere  suffering  of  a  house  to 
remain  unroofed,  if  it  was  so  at  the  commence- 
ment of  the  lease,  would  not  be  waste ;  but  a 
tenant  assumed  the  responsibility  of  any  other 
part  of  the  house  thereby  becoming  ruinous  or 
decayed ;  and  so  although  no  injury  or  destruc- 
tion of  a  house  by  lightning,  tempest,  or  the 
public  enemy,  would  not  be  waste,  yet  to  suf- 
fer it  to  remain  ruined  would  be.*     Permissive 

X-Rolle,  394;  3  Bdstr.  19S  ;  Viner  Abr.  Trees,  6, 
Nuisance  (W.  i) ;  1  Suppl.  to  Ves.  Jr.  138  ;  2  Suppl. 
Ves.  Ch.  162,  448 ;  6  Ves.  Ch.  109.  y-i  Ld.  Raym. 
737.  Z-I2  N.  H.  454.  a-Feame  Cont.  Rem.  2.  'd-2 
Bour.  Inst.  n.  1831.  e-o  Co.  58,  d.  d-2  Rolle  Abr. 
818  ;  F.  Moore,  69  ;  10  Ad.  &  E.  398  :  4  Leon,  240.  e- 
4  B.  &  P.  aoS;  10  B.  &  C.  312.  f-s  T.  R.  373;  6  Ves. 
Ch.  328  :  2  Hill,  157;  2  B.  &  P.  86.  s-Co.  Litt.  51,  6. 
b-2  Rolle  Abr.  817.      l-i  Campb.  227.     j-Co.  Litt.  sj. 


waste  in  houses,  as  a  general  rule,  is  now  only 
punishable  when  a  tenant  is  bound  to  repair, 
either  expressly  or  by  implication." 

Voluntary  waste  is  committed  upon  culti- 
vated fields,  orchards,  gardens,  meadows,  and 
the  like,  whenever  a  tenant  uses  them  con- 
trary to  the  usual  course  of  husbandry,  or  in 
such  a  manner  as  to  exhaust  the  soil  by  neg- 
ligent or  improper  tillage.'  It  is,  therefore, 
waste  to  convert  arable  land  into  woodland, 
or  the  contrary.*  Cutting  down  fruit  trees, 
although  planted  by  the  tenant  himself,  is 
waste.''  So  if  an  outgoing  tenant  plough  up 
strawberry  beds  which  he  has  bought  of  a 
former  tenant  when  he  entered.'  When  lands 
are  leased  on  which  there  are  open  mines  of 
metal,  or  coal,  or  pits  of  gravel,  lime,  clay,  brick 
earth,  and  the  like,  the  tenant  may  dig  out  of 
such  mines  or  pits,  but  he  cannot  open  any 
new  mines  or  pits  without  being  guilty  of  waste  j 
any  carrying  away  of  the  soil  is  also  waste." 
Voluntary  waste  is  committed  in  houses  by 
pulling  them  down,  or  by  removing  wain- 
scots, floors,  benches,  furnaces,  windows,  doors, 
shelves,  and  other  things  once  fixed  to  the  free- 
hold, although  they  have  been  erected  by  the 
lessee  himself,  unless  they  were  mere  fixtures ; 
and  this  kind  of  waste  may  take  place  not  only 
in  pulling  down  houses,  or  parts  of  them,  but 
also  in  changing  their  forms,  as  if  a  tenant  pull 
down  a  house  and  erect  a  new  one  in  its  place, 
whether  it  be  larger  or  smaller  than  the  fii-st,' 
or  convert  a  parlor  into  a  stable,  or  a  grist-mill 
into  a  fuelling-mill,™  or  turn  two  rooms  into 
one."  The  building  of  a  house  where  there 
was  none  before,  by  the  strict  rules  of  the  com- 
mon law,  was  said  to  be  waste  ;•>  and  taking  it 
down  after  it  was  built  was  waste  also.P  Volun- 
tary waste  may  be  committed  upon  timber ;  and 
in  those  countries  where  timber  is  scarce  and 
valuable,  the  law  is  strict  in  this  respect.  The 
law  of  waste  accommodates  itself  to  the  varying 
wants  and  conditions  of  different  countries; 
that  will  not,  for  instance,  be  waste  in  an  entire 
woodland  country  which  would  be  so  in  a 
cleared  one.  The  extent  to  which  wood  and 
timber  on  such  land  may  be  cut  without  waste, 
is  a  question  of  fact  for  a  jury  to  determine  un- 
der the  direction  of  the  court.i  A  tenant  may 
always  cut  trees  for  the  repair  of  houses,  fences, 
hedges,  stiles,  gates,  and  the  like;'  and  for 
making  and  repairing  all  instruments  of  hus- 
bandry ;  as  plows,  carts,  harrows,  rakes,  forks, 
etc.  ;•  and  he  may,  when  unrestrained  by  the 
terms  of  the  lease,  cut  timber  for  firewood,  if 
there  be  not  enough  dead  timber  for  such  pur- 
poses;* but  where,  under  such  circumstances, 
he  is  entitled  to  cut  down  timber,  he  is  re- 
strained, nevertheless,  from  cutting  ornamental 

6.  k-Com.  Dig.  H^asie,  D.  4 ;  14  East.  489  ;  a  Hfll  N. 
Y.  ZKT.  6  Barb.  13;  Co.  Litt.  53,  i ;  1  Sch.  &  L.  Ch.  8. 
1-2  Rolle  Abr.  815.  in-a  Rolle  Abr.  814,  815.  n-2 
Rolle  Abr.  815.  O-Co.  Litt.  53,  a.  p-Com.  Dig.  Waste 
(D.  2):  2  East.  88;  i  B.  &  Ad.  161 ;  8  Mass.  416 :  i 
Met.  (Mass. )  27  ;  4  Pick.  •^10 ;  to  N.  Y.  234 ;  16  Conn. 
322  ;  2  M'Cord,  329  ;  1  Harr.  &  J.  289  ;  i  Watts,  378. 
q-7  Johns.  227.  r-Co.  Litt.  53,  6.  s-Wood  Inst.  344. 
t-Com.  Dig.  Waste  (D  5)  ;  Fitzherbert  Nat.  Br«v.  S9w». 


622 


REAL  PROPERTY. 


trees,  or  those  planted  for  shelter  ;•  or  to  ex- 
clude objects  from  sight.'  A  tenant  of  a  dove- 
liduse,  warren,  park,  fish-pond,  or  the  like, 
would  also  be  guilty  of  waste,  if  he  took  away 
animals  therefrom  to  such  an  extent  as  not  to 
leave  as  large  a  stock  of  them  as  he  found 
when  he  came  in.*  Windfalls  are  the  prop- 
erty of  the  landlord ;  for  whatever  is  severed 
by  inevitable  events,  as,  by  a  tempest,  or  by  a 
trespasser,  and  by  wrong,  belongs  to  him  who 
has  the  mheritance.* 

In  general,  a  tenant  is  answerable  for  waste 
although  it  is  committed  by  a  stranger,  for  he 
is  the  custodian  of  the  property,  and  must  take 
his  remedy  over.'  But  he  is  not  liable  when 
the  damage  is  caused  by  lightning,  tempest,  or 
a  public  enemy.*  He  is  also  liable  at  common 
law  for  all  damages  done  by  fire,  accidental  or 
otherwise,  upon  the  premises,  unless  this  be 
excepted  in  the  lease,  though  accidental  fires 
will  not,  through  statutory  enactment  through- 
out the  States,  render  him  liable.  The  pro- 
tection afforded  by  these  statutes  extends  only 
to  a  case  of  accidental  fire — that  is,  to  one 
which  cannot  be  traced  to  any  particular  or 
wilful  cause — and  stands  opposed  to  the  negli- 
gence of  either  servants  or  masters ;  and  there- 
fore an  action  still  lies  against  a  person  upon 
whose  premises  a  fire  commences  through  the 
negligence  of  himself  or  his  servants,  and  is 
productive  of  injury  to  his  neighbor.* 

The  redress  for  injuries  of  the  foregoing 
character  are  either  preventive  or  corrective, 
which  may  forfeit  the  tenant's  further  occu- 
pancy of  the  premises,  as  well  as  subject  him 
to  exemplary  damages  for  all  injury  done. 

Water.  A  pool  of  water,  or  a  stream  or 
water-course,  is  considered  as  part  of  the  land ; 
hence  a  pool  of  twenty  acres  would  pass  by 
the  grant  of  twenty  acres  of  land  without 
mentioning  the  water.*"  A  mere  grant  of  water 
passes  only  a  fishery ;«  but  the  owner  of  land 
over  which  water  flows  may  grant  the  land,  re- 
serving the  use  of  all  the  water  to  himself,  or 
may  grant  the  use  of  all  or  a  portion  of  the 
water,  reserving  the  fee  of  the  land  to  himself.* 

Water-courses  in  a  legal  sense  are  compre- 
hended under  the  general  name  of  land ;  so  that 
a  grant  of  land  conveys  to  the  grantee  not  only 
fields,  meadows,  and  the  like,  but  also  all  the 
rivers  and  streams  which  naturally  pass  over 
the  surface  of  the  land."      Those   who  own 

n-6  Ves.  Ch.  419.  ■V-16  Ves.  Ch.  375 ;  7  Ired.  F.q.  T97 ; 
6  Barb.  9.  w-Co.  Litt.  53  ;  2  Leon,  222.  X-3P.  Wms. 
a68;  11  Co.  81  ;  Bac.  Abr.  Waste,  D.  2.  y-2  Dougl. 
745;  I  Taunt.  198;  I  Denio,  104.  as-Co.  2d  Inst.  303; 
F.  Moore,  69;  5  Co.  21;  Shepp.  Touchst.  173:  4  Kent 
Comm.  77.     a-i  Denio,  207  ;  8  Johns.  421 ;    3  Harring. 

t43  :  21  Pick.  378;  I  Halst.  127;  6  Taunt.  44;  Tayl. 
•andl.  &  T.  196.  l»-2  Bl.  Comm.  18;  2  N.  H.  255, 
391  ;  I  Wend.  255,  391  ;  5  Cow.  216;  5  Conn.  497;  14 
Mass.  49;  8  Mete.  (.Mass.)  466;  2  Harr.  &  J.  195  ;  8 
Penn.  St.  13.  c-Co.  Litt.  4^;  s  Cow.  216.  d-26  Vt. 
64:  3  Hill  N.Y.  418;  22  Pick.  33^!:  6  Met.  (Mass.) 
131 ;  18  F.ng.  L.  &  Eq.  164.  e-Co.  Litt  4  ;  2  Brownl. 
142:  2  N.  H.  255;  5  Wend.  423.  f-Angell  Water 
Courses,  3  ;  3  Kent  Comm.  354 ;  4  Mason  C.  C.  397. 
Sr-Cro.  Jac.  556:  9  N.  H.  502;  24  Id.  364;  9  Watts, 
119;  20  Penn  St.  85;  3  Rawie,  84;  4  Eng.  L.  &  Eq. 
•6s:  I  B.  &  Aid.  874;  3  Green,  116;  4  111.  .453;  38  Me. 


land  bounding  upon  a  water-course  .are  gener- 
ally known  as  riparian  proprietors.'  By  the 
rules  of  the  common  law  all  proprietors  of 
lands  have  precisely  the  same  rights  to  waters 
flowing  through  their  domains,  and  one  can 
never  be  permitted  so  to  use  the  stream  as  to 
injure  or  annoy  those  situated  on  the  course  of 
it,  either  above  or  below  him.  They  have  no 
property  in  the  water  itself,  but  a  simple  right 
to  use  it;  accordingly  while  each  successive 
riparian  proprietor  is  entitled  to  the  reasonable 
use  of  the  water  for  the  supply  of  his  natural 
wants,  and  for  the  operation  of  mills  and  ma- 
chinery, he  has  no  right  to  flow  the  water  back 
upon  the  proprietor  above  ;*  nor  to  discharge  it 
so  as  to  flood  the  proprietor  below ;''  nor  to  di- 
vert the  water,'  even  for  the  purpose  of  irriga- 
tion, unless  it  be  returned  without  essential 
diminution  ;■'  nor  to  obstruct  or  detain  it,  ex- 
cept for  some  reasonable  purpose,  such  as  to 
obtain  a  head  of  water  for  a  mill,  and  to  be 
again  discharged,  so  as  to  allow  all  on  the 
same  stream  a  fair  participation ;''  nor  to  cor- 
rupt the  qualify  of  the  water  by  unwholesome 
or  discoloiing  impurities.'  But  while  such  are 
the  rights  of  the  riparian  proprietors  when  un- 
affected by  contract,  these  rights  are  subject  to 
endless  modifications  on  the  part  of  those  en- 
tilled  by  their  enjoyment,  either  by  grant,"  or 
by  reservation,"  or  by  a  license,""  or  by  agree- 
ment,P  or  by  twenty  years  adverse  enjoyment, 
from  which  a  grant  or  contract  will  be  im- 
plied,<i  in  such  a  way  as  to  adapt  the  uses  of 
the  water  to  the  complex  and  multiplying  de- 
mands and  improvements  of  civilization. 

Wherever  a  water-course  divides  two  estates 
each  estate  extends  to  the  thread  or  central  line 
of  the  stream;  but  the  riparian  owner  of 
neither  can  lawfully  carry  off  any  part  of  the 
water  without  the  consent  of  the  other  oppo- 
site, each  riparian  proprietor  being  entitled  not 
to  half  or  any  other  proportion  of  the  water, 
but  to  the  whole  bulk  of  the  stream  undivided 
and  indivisible.''  Where  an  island  is  on  one 
side  of  a  river,  so  as  to  give  the  riparian  owner 
of  that  side  only  one- fourth  of  the  water,  he  has 
no  right  to  place  obstructions  at  the  head  of 
the  island  to  cause  one-half  of  the  stream  to 
descend  on  his  side  of  the  river,  but  the  owner 
opposite  is  entitled  to  the  natural  flow  of  the 
remaining  three-fourths.* 

243.     h-17  Johns.  306:  3  Hill,  531 ;  5  Vt.  371 ;  3  Harr. 

6  J.  231.  I-17  Conn.  288;  13  Johns.  212;  10  Barb. 
518;  24  Ala.  (N.  S.)  130;  28  Vt.  670;  38  Eng.  L.  & 
Eq.  526.  j-38  Eng.  L.  &  Eq.  241 ;  13  Mass.  420;  5, 
Pick.  17s  ;  8  Me.  253;  12  Wend.  330;  4  111.  496.  fe-, 
17  Barb.  654  ;  10  Cush.  367  ;  6  Ind.  324;  28  Vt.  450  ;  6 
Penn.  St.  32  ;  29  Id.  08  ;  4  Mason  C.  C.  401 ;  17  John*. 
306;  13  Conn.  303.  I-24  Penn  St.  298  ;  22  Barb.  297; 
3  Rawle,  397;  8  Eng.  L.  &  Eq.  217;  3  Hill,  479;  4 
Ohio,  833.  in-3  Conn.  373;  13  Johns.  525;  17  Me. 
281  ;  3  Hill  N.  Y.  418  ;    6  Met.  (Mass. )  131 ;    7  Id.  94  ; 

7  Penn.  St.  318 ;  18  Eng.  L.  &  Eq.  164;  9  N.  H.  282 ; 
3  N.  Y.  253.  11-6  N.  Y.  33;  20  Vt.  250.  0-2  Gill.  221; 
13  Conn.  303:  I  Met.  (Mass.)  331  ;  14  S.  &  R.  267;  4 
East.  107.  p-19  Pick.  449;  21  Id.  417:  22  Id.  333;  3 
Harr.  &  J.  282;  17  Wend.  126.  q-6  East.  208;  i 
Campb.  403  :  4  Mason  C.  C.  397:  6  Scott,  167:  9  Pick. 
251.  r-13  Johns.  212;  8  Me.  253;  3  Sr.mn.  C.  C.  189; 
13  Mass.  507;  I  Paige  Ch.  447.     s-io  Wend.  260. 


REAL  PROPERTY— RECEIPTS. 


623 


Where  there  is  an  underground  flow  of 
water  so  well  defined  as  to  be  a  constant 
stream,  the  owner  of  the  land  through  which 
it  flows  has  no  right  to  divert  it  to  the  injury 
of  the  person  on  whose  land  it  comes  to  the 
•urface  as  a  spring.? 

Wharfs,  the  several  States  being  owners 
of  the  soil  of  tide  waters  within  their  respective 
territories,  may  by  law  authorize  and  regulate 
the  erection  of  wharfs  thereon,  until  the  gen- 
eral government  shall  have  legislated  upon  the 
subject.'  In  the  navigable  fresh-water  rivers 
the  riparian  proprietors,  being  the  owners  of 
the  bed  of  the  stream,  may  wharf  out  to  the 
channel,  subject  only  to  the  condition  that  they 
do  not  materially  interrupt  the  navigation. 

Windfalls.     See  Waste,  above. 

Windows.     See  Waste,  above. 

Woods.     See  Waste,  above. 

Renson.  See  AuTHORrriES. 

Rebutting^.  See  EviubNCE. 

RECEIPTS.  See  Bailments  ;  CoirTRACTs;  Con- 
veyances ;  Releases. 

A  Receipt  is  a  written  acknowledgment  of 
payment  of  money  or  delivery  of  chattels. 

An  Acquittance  is  a  discharge  or  release 
from  a  debt.  The  writing  which  is  evidence 
of  the  discharge.  A  receipt  in  full,  which  bars 
a  further  demand.  An  agreement  in  writing 
to  discharge  a  party  from  an  engagement  to 
pay  a  sum  of  money.  It  differs  from  a  release 
in  this,  that  the  latter  is  under  seal,  while  an 
acquittance  is  not.'  But  though  not  under  seal 
it  has  nearly  the  same  effect  as  a  release." 

A  receipt  is  often  useful  as  evidence  of  facts 
collateral  to  those  stated  in  it.  It  proves  the 
payment,  and  whatever  inference  may  be 
legally  drawn  from  the  fact  of  the  payment 
described,  will  be  supported  by  the  receipt. 
Thus,  receipts  for  rent  for  a  given  time  have 
been  heXd  fritna  facie  evidence  of  the  payment 
of  all  rent  previously  accrued.*  And  they 
have  been  admitted  on  trial  of  a  writ  of  right, 
as  showing  acts  of  ownership  on  the  part  of 
him  who  gave  them."  A  receipt  given  by  A. 
to  B.  for  the  price  of  a  horse,  afterwards  levied 
on  as  the  property  of  A.,  but  claimed  by  B., 
was  once  admitted  as  evidence  of  ownership 
against  the  attaching  creditor.^  A  receipt  "  in 
pill  of  all  accounts,"  the  amount  being  less 
than  that  called  for  by  the  accounts  of  the  party 
giving  it,  was  held  in  his  favor  evidence  of  a 
mutual  settlement  of  accounts  on  both  sides, 
and  a  payment  of  the  balance  ascertained  to  be 
due  after  setting  off  one  account  against  the 
other.*     A  receipt  given  by  an  attorney  for 

p-25  Penn.  St.  258  ;  29  Id.  59  ;  6  Paige  Ch.  435  ;  i 
Story  C.  C.  387 ;  see  12  M.  &  W.  324  ;  28  Vt.  49  ;  An- 
gell  Water  Courses,  J§  109,  114.  q-4  Ga.  26;  7  Cush. 
53  ;  2  Harr.  &  M.  H.  244;  11  Gill.  &  J.  351.  r-Poth. 
Oblig.  781.  8-1  Rawle,  391  ;  3  Salk.  298,  pt.  2  ;  Co. 
Litt.  212,  a.  273.  If  not  under  seal  it  is  necessary 
to  show  a  consideration  therefor.  3  P.  R.  413;  i  Barr. 
450.  t-is  Johns.  479;  I  Pick.  332;  2  E.  D.  Smith,  58. 
U-7  C.  B.  21.  v-2  Harr.  78.  ■w-9  Wend.  132.  X-14 
Ala.  500.  y-3  Johns.  185.  z-i  111.  45.  a-Russ.  &  R. 
Cr.  Cas.  227;  7  C.  &  R.  549.  b-3  Dowl.  &  R.  332;  2 
B.  &  Aid.  501,  «/  II  Lond.  Jur.  806;  i  East.  460;  i 
Speers,  53.     C-i  Pet.  C.  C.  182  ;  i  Rich.  3s;  i  Harriog. 


securities  he  was  to  collect  and  account  for 
has  been  held  presumptive  evidence  of  the 
genuineness  and  justness  of  the  securities.* 
And  when  a  general  receipt  is  given  by  an 
attorney  for  an  evidence  of  debt  then  due,  it 
will  be  presumed  he  received  it  in  his  capacity 
as  attorney  for  collection ;  and  it  is  incumbent 
on  him  to  show  he  received  it  for  some  other 
purpose  if  he  would  avoid  an  action  for  neglect 
in  not  collecting.^ 

A  receipt  is  executed  by  the  person  to  whom 
the  deli  very  or  payment  is  made,  and  maybe  used 
as  evidence  against  him  on  the  general  principle 
which  allows  the  admission  or  declaration  of  a 
party  to  be  given  in  evidence  against  himself. 
As  an  instrument  of  evidence,  the  receipt  of 
one  person  is,  in  general,  inoperative  against 
another,  although  often  useful  as  a  voucher  in 
the  private  settlement  of  accounts.  And  re- 
ceipts of  public  oflScers  are  sometimes  admis- 
sible/^r  se*  It  is  essential  to  a  receipt  that  it 
acknowledge  the  payment  or  delivery  referred 
to.*  Also,  the  receipt  must,  from  the  nature 
of  the  case,  be  in  writing,  and  must  be  deliv- 
ered to  the  debtor;  for  a  memorandum  of  pay- 
ment made  by  the  creditor  in  his  own  books  is 
no  receipt.'' 

The  mere  acknowledgment  of  payment 
made  is  not  treated  in  law  as  binding  or  con- 
clusive in  any  high  degree.  So  far  as  a  simple 
acknowledgment  of  payment  on  delivery  is 
concerned,  it  is  presumptive  evidence  only," 
and  is,  in  general,  open  to  explanation,*  being 
an  exception  to  the  general  rule  that  parol  evi- 
dence cannot  be  admitted  to  contradict  or  vary 
a  written  instrument.*  T^us,  a  party  may 
always  show,  in  explanation  of  a  receipt  lim- 
ited to  such  acknowledgment,  the  actual  cir- 
cumstances under  which  it  was  made,'  e.  g., 
that  it  was  obtained  by  fraud,*  or  given  under 
a  mistake,''  or  that,  in  point  of  fact,  no  money 
was  actually  paid  as  stated  in  it.' 

IN    CONTRACTS,    ETC. 

A  receipt  may  embody  a  contract,  and,  in 
tins  case,  it  is  not  open  to  the  explanation  or 
contradiction  permitted  in  the  case  of  a  simple 
receipt.^  The  fact  that  it  embodies  an  agree- 
ment, brings  it  within  the  rule  that  all  matters 
resting  in  parol  are  merged  in  the  writing." 
Thus,  a  receipt  which  contains  a  clause  amount- 
ing to  an  agreement  as  to  the  application  to  be 
made  of  the  money  paid — as  when  it  is  ad- 
vanced on  account  of  future  transactions — is 
not  open  to  parol  evidence  inconsistent  with  it.' 
A  bill  of  parcels  with  prices  aflRxed,  rendered 
by  a  seller  of  goods  to  a  purchaser,  with  a  re- 

■; ;  3  Id.  317  ;  4  Id.  206 ;  7  Cow.  334  ;  16  Wend.  460  :  16 
Me.  475  ;  5  Ark.  6i  ;  11  Ma.ss.  27,  363  ;  3  McLean  C. 
C.  265  ;  6  B.  Mon.  199 ;  2  Johns.  Cas.  438 ;  i  Per.  &  D. 
437;  3  B.  &  C.  431  ;  8  Gill.  179;  3  Jones,  501.  <l-2 
Johns.  378;  9  Id.  310;  6  Ala.  811 ;  8  ALi.  (N.  S.)  59  :  4 
Vt.  308  ;  21  Id.  222  ;  3  Mcl..ean  C.  C.  387  ;  4  Barb.  265  ; 
5  Duer,  294;  5  J.J.  Marsh.  79;  5  Mich.  171.  e-5 
Johns.  68  :  2  Met.  (Mass.)  283.  f-8  Johns.  389.  g- 
Wright,  764;  4  Harr.  &  McH.  219.  I1-6  Barb.  58;  3 
Dana,  427.  I-2  Strobh.  390 ;  3  N.  Y.  168  ;  10  Vt.  06 ; 
but  see  i  J.  J.  Marsh.  583.  j-4  Gray,  i86.  li-See 
ante,  Evidence.  l-sInd.xo9;  14  Weed.  116;  12  Piolc 
40,562;  15  Id.  437. 


624 


RECEIPTS. 


ceipt  of  psiyment  executed  at  the  foot,  was  held 
in  one  case  to  amount  to  a  contract  of  sale  of 
the  goods,  and  therefore,  not  open  to  parol 
explanation,  while,  in  another  case,  a  similar 
hill  was  held  merely  a  receipt,  the  bill  at  the 
head  being  deemed  only  a  memorandum  to 
show  to  what  the  receipt  applied."  A  bill  of 
l.iJing  which  usually  contains  words  of  receipt 
stating  the  character,  quantity,  and  condition 
of  the  goods  as  delivered  to  the  carrier,  is  the 
subject  of  a  somewhat  peculiar  rule.  It  is 
lield  that  so  far  as  the  receipt  is  concerned,  it 
may  be  explained  by  parol."  But  as  respects 
the  agreement  to  carry  and  deliver,  the  bill  is  a 
contract,  to  be  construed  like  all  other  con- 
tracts, according  to  the  legal  import  of  its 
terms,  and  cannot  be  varied  by  parol." 

Where  the  payment  is  made  in  some  particu- 
lar currency  or  medium,  as  doubtful  bank-bills, 
a  promissory  note  of  another  person,  etc., 
clauses  are  often  inserted  in  receipts  specifying 
the  condition  in  which  such  mode  of  payment 
ii  accepted.  The  general  rule  is  that  nego- 
tiable paper  given  in  payment  is  presumed  to 
have  been  accepted  on  the  condition  that  it 
shall  not  work  a  discharge  of  the  demand 
unless  the  paper  shall  ultimately  produce  satis- 
faction; and  if  an  intent  to  accept  it  absolutely 
djes  not  affirmatively  appear,  the  creditor  is 
entitled,  in  case  the  paper  turned  out  to  him  is 
dishonored,  to  return  it  and  claim  to  be  paid 
anew.P  If  the  receipt  is  silent  on  that  subject, 
it  is  open  to  explanation,  and  the  creditor  may 
rc-but  it  by  proof  that  the  payment  admitted 
was  in  fact  made  by  a  note,  bill,  check,  bank- 
notes, afterwards  ascertained  to  be  counterfeit, 
or  notes  of  a  bank  in  fact  insolvent,  though  not 
known  to  be  so  to  the  parties,  etc.i  But  if  the 
agreement  of  the  parties  is  specified  in  the  re- 
ceipt, the  clause  which  contains  it  will  bind 
the  parties,  as  being  in  the  nature  of  a  con- 
tract.' A  receipt  for  a  note  taken  in  payment 
of  an  account  will  not,  in  general,  constitute  a 
defence  to  an  action  on  the  account,  unless  it 
apjiears  by  proof  that  the  creditor  agreed  to 
receive  the  note  as  payment,  and  take  the  risk 
of  its  being  paid.* 

IN    DEEDS, 

The  effect  to  be  given  to  a  receipt  for  the 
consideration-money,  so  frequently  inserted  in 
a  deed  of  real  property,  has  been  the  suljject 
of  numerous  and  conflicting  adjudications. 
The  general  principle  settled  by  weight  of 
authority  is,  that  for  the  purpose  of  sustaining 
the  conveyance  as  against  the  vendor  and  his 

m-3  Cranch,  311  ;  i  Bibb.  271.  11-6  Ma^s.  422  ;  7 
Id.  297 ;  T  N.  Y.  321 ;  10  Id.  529  ;  25  Barb.  16  ;  5  Duer, 
538  ;  I  Abb.  Adm.  209,  397;  but  see  i  Bail.  174.  0-25 
B  irb.  16  ;  3  Sandf.  7.  p-See  ante.  Payment,  q-i 
Wash.  C.  C.  338;  I  W.  &  S.  521 ;  2  Johns.  Cas.  438;  % 
Johns.  4SS  ;  13  Wend.  loi ;  3  McLean  C.  C.  26$  ;  5  J. 
I.  Marsh.  78  ;  but  see  3  Caines  Cas.  14  ;  i  Munf.  460;  i 
Met.  (Mass.)  156.  r-4  Vt.  555;  1  Rich,  iii  ;  16  Johns. 
277;  23  Wend.  345;  2  Qill.  &  J.  493;  3  B.  Mon.  3153. 
8-10  Md.  27.  t-iBinn.  502;  26  Mo.  56;  4Hill(N.  Y.) 
6 13.  U-16  \^end.  460  ;  4  Johns.  23 ;  14  Id.  210  ;  2  Hill 
(N.  Y.)  554  :  10  Vt.  96 ;  12  Id.  443 :  3  N.  H.  170 ;  4  Id. 
229.  397;  I  M'Cord,  514;  7  Pick.  533;  i  Rand.  219;  4 
])ev.  355;  3  Hawks.  82;  6  Me.  364;"  5  B.  &  Aid.  606; 
S  Ala.  324 ;  J  Load,  Jur.  693 ;  3  Harring.  354 ;  13  Miss. 


privies,  the  receipt  is  conclusiva;  they  are 
estopped  to  deny  that  a  consideration  was  paid 
sufficient  to  sustain  the  conveyance.'  But  in  a 
subsequent  action  for  the  purchase  money,  or 
upon  any  collateral  demand,  e.  g.,  in  an  action 
to  recover  a  debt  which  was  in  fact  paid  by  the 
conveyance,  or  in  an  action  for  damages  for 
breach  of  covenant  in  the  deed,  and  the  like, 
the  grantor  may  show  that  the  consideration 
was  not,  in  fact,  paid — that  an  additional  con- 
sideration to  that  mentioned  was  agreed  for, 
etc."  And  when  the  deed  is  attacked  fo' 
fraud,  or  is  impeached  by  creditors  as  volun- 
tary, and  therefore  void,  or  when  the  object  is 
to  show  the  conveyance  illegal,  the  receipt 
may  be  explained  or  contradicted.^ 

IN  FULL,  ETC. 

When  a  receipt  acknowledges  payment  "in 
full "  of  a  specified  debt,  or  "  in  full  of  all  ac- 
counts" or  of  "all  demands"  the  instrument  is 
of  much  higher  and  more  conclusive  character. 
It  does  not,  indeed,  like  a  release,  operate  upon 
the  demand  itself,  extinguishing  it  by  any  force 
or  virtue  in  the  receipt,  but  it  is  evidence  of 
a  compromise  and  mutual  settlement  of  the 
rights  of  the  parties.  The  law  infers  from 
such  acknowledgment  an  adjustment  of  the 
amount  due  after  consideration  of  the  claims 
of  each  party,  and  the  payment  of  the  specified 
sum  as  a  final  satisfaction.*  This  compromise, 
thus  shown  by  the  receipt,  will  often  operate  to 
extinguish  a  demand,  although  the  creditor 
may  be  able  to  show  he  did  not  receive  all  that 
he  justly  ought.*  If  the  rights  of  a  party  are 
doubtful,  are  honestly  contested,  and  time  is 
given  to  allow  him  to  satisfy  himself,  a  receipt 
in  full,  though  given  for  less  than  his  just  rights, 
will  not  be  set  aside.  Thus,  in  general,  a  re- 
ceipt in  full  is  conclusive  when  given  with  a 
knowledge  of  the  circumstances,  and  when  the 
party  giving  it  cannot  complain  of  any  misappre- 
hension as  to  the  compromise  he  was  making, 
or  of  any  fraud.'  But  receipts  of  this  character 
are  not  wholly  exempt  from  explanation  :  fraud 
or  misrepresentation  may  be  proved,  and  so 
may  such  mistake  as  enters  into  and  vitiate.^ 
the  compromise  of  the  demand  admitted.*  The 
evidence  in  explanation  must  be  clear  and  full, 
and  addressed  to  the  point  that  there  was  not 
in  fact  an  intended  and  valid  compromise  of 
the  demand.  For  if  the  compromise  was  not 
binding,  the  receipt  in  full  will  not  aid  it.  The 
receipt  only  operates  as  evidence  of  a  com- 
promise which  extinguished  the  claim.* 

238 ;  5  Conn.  113 ;  i  Harr.  &  G.  130  :  »  Humph.  584 ;  > 
Gill.  84;  I  J.  J.  Marsh.  387;  3  Md.  Ch.  Dec.  411  ;  3 
Ind.  212;  IS  111.  230;  I  Stockt.  Ch.  492.  But  there  are 
many  contrary  cases.  See  i  Me.  2  :  5^.232;  7  Johns. 
341;  3  M'Cord,  552;  I  Johns.  Ch.  390;  i  Harr.  &  J. 
252;  I  Hawks.  64;  4Hen.  &M.  T13;  2  Ohio,  182;! 
B  &  C.  704.  v-3  Zabr.  465 ;  3  Md.  Ch.  Dec.  .«6i ;  21 
Penn.  St.  480;  20  Pick.  247  ;  12  N.  H.  248.  w-io  Vt. 
4^1  ;  2  Dev.  247;  Wright,  764;  21  N.  H.  85.  x-See 
Accord  AND  Satisfaction.  y-sVt.  520:  i  Esp.  173  ; 
I  Campb.  392 ;  2  Strobh.  203.  «-Brayt.  75  :  i  Campb. 
394:  Coxe,  48;  2  Brev.  223;  4  Harr.  &  McH.  219  ;  4 
Barb.  26s;  i  Edw.  Ch.  loi,  427  ;  2  Harring.  392;  a 
Harr.  &  9.  44.  a-26  Me.  88 ;  4  Denio,  166 ;  2  .M'Cord, 
320;  4  Wash.  C.  C.  $63. 


RECEIPTS— RELEASES. 


625 


LARCENY  AND  FORGERY  OF. 

A  receipt  may  be  the  sul)ject  of  larceny*"  or 
of  forgery ,«  and  it  is  a  sufficient  "  uttering  "  of  a 
forged  receipt  to  place  it  in  the  hands  of  a  per- 
son for  inspection,  with  intent  fraudulently  to 
induce  him  to  make  an  advance  on  the  failh 
that  the  payment  mentioned  in  the  spurious 
receipt  has  been  made.* 

Receipt— Account  Generally. 

9 Place ,  Date . 

Received  of  A.  B.  the  sum  of  dollars  on 

account  (.for ).  C.  D. 

Receipt— Chattels,  Papers,  etc. 

Place ,  Date . 

Received  of  A.  B.  the  chattels  (or  papers,  etc.) 
described  in  the  following  schedule,  viz.:  (describ- 
ing them). 

\l/  the  chattels  or  papers  are  received /or  any  spe- 
cial purpose,  add :  For  the  purpose  of,  etc.,  specifying 
the  purpose.)  C.  D. 

Receipt— Debt. 

Paid  through    Third  Person. 

Received   this day  of ,  of  Mr.  C.  D.,  by 

the  hand  of  E.  F.,  the  sum  of  twenty-five  dollars 
in  full,  for  certain  goods  {or  otherwise)  bought  by 

said  C.  D.  of  me,  between  the day  of and 

the day  of .  A.  B. 

Receipt— Debt. 

Due  from  Intestate. 
$ Philadelphia. 

Received  this day  of ,  of  A.  R.,  admin- 
istrator of  the  estate  of  D.  D.  (late)  of .de- 
ceased, the  sum  of  dollars  in  full  of  a  debt 

owing  me  by  said  D.  D.,in  his  lifetime,  for  house- 
hold goods,  by  me  sold  him.  \Signed\    A.  B. 

Receipt— In  Full  of  all  Demands. 
$ Place ,  Date . 

Received  of  A.  B.  the  sum  of dollars  in  full 

of  all  demands  against  him.  C.  D. 

Recei  pt— In  tercst. 

Received  this day  of ,  of  C.  D. , dol- 
lars in  full,  for  one  year's  interest  of  one  thousand 

dollars,  due  me  the day  of ,  on  a  bond  of 

said  C.  D.,  dated  the day  of .  A.  B. 

Another. 

Received  this day  of ,  of  Mr.  C.  D.,  the 

sum  of dollars,  for  one  year's  interest  of  one 

thousand  dollars,  due  me  on  the day  of 

last,  on  a  bond  from  said  C.  D.  to  me. 

lSigned\    A.  B. 
Another. 

July . 

Received  on  the  within  obligation dollars 

interest.  A.  B. 

Recelpt^IiCgacy. 
Received  this day  of ,  of  E.  X.,  execu- 
tor of  the  last  will  and  testament  of  D.   D.,  of 

,  deceased,  the  sum  of  four  thousand  dollars 

in  full  of  a  legacy  bequeathed  me  by  said  last  will 
and  testament.  \Signcd\    A.  B. 

Receipt — M  on  ey . 

$ Place ,  Date . 

Received  of  A.  B. dollars  (for,  eic.> 

C.  D. 
A-nothr> — On  a  Bond. 

Received  the day  of ,  of  C.  D.,  the  sum 

of dollars,  in  part  payment  of  the  sum  of  one 

thousand  dollars,  due  me  from  said  C.  D.,  on  his 
bond,  bearing  date  the day  of .       A.  B. 

Another — For  Alonry  Paid  hy  a  Third  Person. 

$ Place ,  Date . 

Received  of  A.  B. ,  by  C.  F. ,  the  sum  of dol- 
lars.                                                                      C.  D. 
Another. 

Received  this day  of ,  of  Mr.  C.  D.,  the 

sum  of dollars,  in  part  payment  of  a  greater 

sum  due  me  on  a  bond  executed  by  said  C.  D. 

A.  B. 

b-2  Abb.  Pr.  211.  c-Russ.  &  R.  227:  7  C.  &  P.  459. 
d-i4  Ene.  L.  &  Eq.  556.     f-See  Poth.  Ob.  nn.  608, 609. 


AnotJur. 

January . 

Received  on  the  wittiin  obligation dollars, 

principal.  A.  B. 

Another. 
Paid  by  a  Third  Person  for  the  Use  0/  Another. 

Received  this day  of ,  of  C.  D. ,  esq. ,  the 

sum  of  fifty  dollars  in  full,  for  work  done  by  Mr. 
E.  F.  for  work  done  said  C.  D.  by  the  order  and 
for  the  use  of  said  E.  F.  A.  B. 

Another. 

Received  this day  of ,  of  E.  F. ,  esq. ,  the 

sum  of  fifty  dollars,  by  the  order  and  for  the  use 

of  C.  D.,  for  work  and  labor  in .  A.  B. 

Receipt — Pnrcliase-Money. 

Know  all  men  by  these  presents : 

That  I,  A.  B.  (of ),  hereby  acknowledge  the 

receiptfrom  C.  D.  (of ),  of  five  hundred  dollars, 

being  the  last  payment,  and  in  full,  of  one  thou- 
sand dollars,  by  said  C.  D.  paid  as  the  considera- 
tion of  the  purchase  of  a  certain  tract  and  parcel 

of  land,  situate  in  ,  etc.   {as  in  the  agmment, 

bond  or  conveyance  described). 

That  of  the  entire  sum  of  the  five  hundred  dol> 
lars  aforesaid,  and  every  part  thereof,  I  do,  by 
these  presents,  for  me,  my  heirs,  executors,  and 
administrators,  acquit  and  discharge  said  C.  D. 
his  heirs,  executors,  and  administrators  forever. 

In  witness,  etc.  A.  B. 

Another. 

Received  this  day  of ,  of  the  within- 
named  C.  D.,  the  sum  of  five  hundred  dollars, 
being  the  full  consideration  and  purchase-money 
within  mentioned  remaining  to  be  paid  me. 

\Vitness,  E.  F.  A.  B. 

Receipt— To  take  Care  of  an<I  Redeliver 
Property  on  Demand. 

A.  B.,  plaintiff.      ^ 

vs.  >     (Name  of  court.) 

C.  D.,  defendant.) 

Place ,  Date . . 

Received  of  C.  C,  constable,  of  ,  of   said 

county,  the  following  property,  by  him  levied  en 
in  the  above  entitled  action,  to  wit :  {here  describe 
the  property  specifically ,  so  it  can  be  identifiecfi,  prom- 
ising to  redeliver  such  property  to  said  officer  on 
demand.  B.  E. 

Receipt — Rent. 
$ Place ,  Date . 

Received  of  A.  B.  the  sum  of dollars,  on* 

month's  rent,  due  this  day,  for  my  (or  the  dwelling- 
house  of  E.  F.)  on  lot  ,  in  street,  in , 

now  occupied  by  A.  B.  C.  D. 

Recital.  See  Conveyanxes. 

Recog^nition.  See  Agency. 

Refreshing'  Memory.  See  Evidence. 

Refnsal.  See  Acts. 

Registers.  See  Evidence. 

REl<EAS£S.  See  Contracts  ;  Receipts. 

A  RELEASE  is  the  giving  up  or  abandoning  a 
claim  or  right  to  the  person  ag.ninst  vi'hom  the 
claim  exists,  or  the  right  is  to  be  exercised  or 
enforced.  An  express  release  is  one  directly 
made  in  terms  hy  deed  or  other  suitable  means. 
An  implied  release  is  one  which  arises  from 
acts  of  the  creditor  or  owner,  without  any  exv 
press  agreement.' 

A  release  by  operation  of  law  is  one,  which 
though  not  expressly  made,  the  law  presumes 
in  consequence  of  some  act  of  the  releasor; 
for  instance,  when  one  of  several  joint  obligors 
is  expressly  released,  all  otntrs  are  also  re- 
leased by  operation  of  law,*  unless  otherwise 
provided  by  statute. 

Releases  may  either  give  up,  discharge,  or 
abandon  a  right  of  action,  or  convey  a  man's 
interest  or  right  to  another  who  has  possession 


gr-3  Salk.  298;    Hab.  10,66; 
207. 


Mod.  380;    7  John*. 


626 


RELEASE— SALES. 


of  it  or  some  estate  in  the  same.'  In  the 
former  class,  a  mere  right  is  surrendered ;  in 
the  other,  not  only  a  right  is  given  up,  but  an 
interest  in  the  estate  is  conveyed  and  becomes 
vested  in  the  releasee. 

In  general,  the  words  of  a  release  will  be  re- 
strained by  the  particular  occasion  of  giving  it.' 

In  releasing  an  interest  in  real  estate  the 
words  generally  used  in  the  conveyance  are : 
"  Remised,  released,  and  forever  quit-claimed. "J 
See  Conveyances ;  Quit-claim  Deeds;  ante. 

REIiEASE  FORMS. 

Release — Of  all  Claims,  Demands,  etc. 

I,  A.  B.,  of ,  in  the  county  of ,  and  State 

of .  for  and  in  consideration  of  the  sum  of 

dollars,  the  receipt  of  which  is  hereby  acknowl- 
edged, do  hereby  release  and  forever  discharge 

C.  D.  ',of ,  in,  etc.),  his  heirs,   executors,  and 

administrators,  of  and  from  all  actions,  causes 
of  action,  suits,  controversies,  claims,  and  de- 
mands whatsoever,  for  and  by  reason  of  any 
matter,  cause,  or  thing,  from  the  beginning  of 
the  world  to  this day  of . 

In  witness  whereof,  I  have  hereunto  set  my 
hand  the  day  and  year  last  above  written. 

Executed  in  presence  of  A.  B. 

Release—lttntnal  of  all  Demands,  etc. 

This  release,  made  this  day  of  ,  be- 
tween A.  B.  'of ),  of  the  first  part,  and  C.  D. 

(jf— — ),  of  the  second  part,  witnesseth: 

That  the  said  parties  have  this  day  cancelled 
and  delivered  up  to  each  other  certain  covenants, 
bonds,  notes,  and  other  written  agreements, 
upon  which  the  one  party  claimed  to  have  de- 
mands upon  the  other  party.  And  the  said  claims 
and  instruments,  so  cancelled  and  delivered  up, 
being  supposed  and  intended  to  be  all  the  claims 
and  evidence  of  claims  by  either  of  said  parties 
upon  the  other.  And  in  consideration  thereof, 
each  of  said  parties,  the  said  A.  B.  and  C.  D., 
does  hereby,  for  himself  and  his  legal  representa- 
tives, release  and  forever  discharge  the  other  of 
and  from  all  actions,  causes  of  action,  suits,  con- 
troversies, claims,  and  demands  whatsoever,  so 
that  neither  of  them  shall  have  any  claim  on  the 
other,  directly  or  indirectly,  on  any  agreement, 
contract,  or  supposed  liability,  or  thing  under- 
taken, done,  07  omitted  to  be  done,  from  the  be- 
ginning of  the  world  to  the day  of . 

In  witness  whereof,  the  said  parties  have  here- 
unto set  their  hands  the  day  and  year  last  above 
written.  A.  B. 

Executed  in  presence  of  C.  D. 

Rent.  See  Landlord  and  Tenant. 

Repairs.  See  Landlord  and  Tenant,  "  Land- 
brd." 

Repeal.  See  Law,  "Statute  Law." 

Reports.  See  Authorities. 

Reputation.  See  Evidence. 

Re-salc.  See  Sales. 

Rescue.  See  Criminal  Law,  "Arrest,"  etc. 

Reservation.  See  Contracts. 

Residence.  See  Domicil. 

Retrospective.  See  Law. 

Revocation.    See  Authority;  Agency;  Con- 
cracts. 
'  Robbery.  See  Criminal  Law. 

Rudeness.  See  Criminal  Law. 

Rumor.  See  Evidence. 

Rules.  See  Patents. 

li-Shep.  Touchst.  320;  Litt.  444;  Nelson  Abr.:  Bac. 
Abr.  :  Vin.  Abr.  ;  Rolle  Abr.  l-i  Ley.  235;  3  Id.  273  ; 
J  Show.  151;  2  Id.  47:  2Mod.  108,  «;  3^.277;  T. 
Raym.  393;  Palm.  218.  Littleton  says,  a  release  of  all 
demands  is  the  best  and  strongest  release,  g  508.  Coke 
says,  claims  is  a  stronger  word,  Co.  Litt.  291,  b.  In  the 
following  cases  a  construction  has  been  given  to  the 
terms  quoted.  A  release  of  "  all  actions,  suits,  and  de- 
mands," 3  Mod.  277:  "all  actions,  debts, duties, and  de- 
mands," Id.  I,  64  :  8  Co.  150,  h  ;  ■2  Saund.  6,  a  ;  all  de- 
mands, 5  Co.  70,  I) ;  2  Mod.  281 :  3  Id.  185,  278:  12  Id. 
465;    I  Lev.  99;    Salk.  578;    ■  Rolle,  20:    2  Conn.  120. 


SAIiEK.  See  Assignment  ;  Comtracts;  Cokv" 
Ances;  Personal  Property;  Real  Property;  etc. 

A  Sale  is  an  agreement  by  which  one  of 
two  contracting  parlies,  called  the  seller,  gives 
a  thing  and  passes  the  title  to  it,  in  exchange 
for  a  certain  price  in  current  money,  to  the 
other  party,  who  is  called  the  buyer  or  pur- 
chaser, who,  on  his  part,  agrees  to  pay  such 
price.'  This  contract  differs  from  a  barter  or 
exchange  in  this :  That  in  the  latter,  the  price 
or  consideration,  instead  of  being  paid  in 
money,  is  paid  in  goods  or  merchandise  suscep- 
tible of  a  valuation.''  It  differs  from  accord 
and  satisfaction,  because  in  that  contract  the 
thing  is  given  for  the  purpose  of  quieting  a 
claim,  and  not  for  a  price.  An  onerous  gift, 
when  the  burden  it  imposes  is  the  payment  of 
a  sum  of  money,  is,  when  accepted,  in  the 
nature  of  a  sale.  When  partition  is  made  be- 
tween two  or  more  joint  owners  of  a  chattel,  it 
would  seem  the  contract  is  in  the  nature  of  a 
barter.'  An  absolute  sale  is  one  made  and 
completed  without  any  condition  whatever.  A 
conditional  sale  is  one  which  depends  for  its 
validity  upon  the  fulfilment  of  some  condition.* 
A  forced  sale  is  one  made  without  the  consent 
of  the  owner  of  the  property,  by  some  officer 
appointed  by  law,  as  by  a  marshal,  constable, 
or  sheriff,  in  obedience  to  a  mandate  of  a  com- 
petent triljunal.  This  sale  has  the  effect  to 
transfer  all  the  rights  the  owner  had  in  the 
property,  but  it  does  not,  like  a  voluntary  sale 
of  personal  properly,  guarantee  a  title  to  the 
thing  sold ;  it  merely  transfers  the  rights  of  the 
person  as  whose  properly  it  has  been  seized. 
This  kind  of  sale  is  sometimes  called  a  judicial 
sale.  A  voluntary  sale  is  one  made  freely, 
without  constraint  by  the  owner  of  the  thing 
sold.  This  is  the  common  case  of  sales,  and 
to  this  class  the  general  rules  of  the  law  of 
sales  apply.  A  private  sale  is  one  made  volun- 
tarily, and  not  by  auction.  A  public  sale  is 
one  made  at  auction  to  the  highest  bidder. 
Auction  sales  are  sometimes  voluntary,  as, 
when  the  owner  chooses  to  sell  his  goods  in 
this  way,  and  then  as  between  the  seller  and 
buyer  the  usual  rules  relating  to  sales  apply; 
or  they  are  involuntary  or  forced  when  the 
same  rules  do  not  apply. 

A  sale  of  a  chattel  is  an  exchange  thereof  for 
money.®  And  proof  of  an  exchange  will  not 
support  an  averment  of  a  sale  of  goods.'  For 
a  sale  to  be  valid  in  law,  there  must  be  parties, 
a  consideration,  and  a  thing  to  be  sold.  All 
persons  may  be  parties  to  a  sale,  unless  thef 
labor  under  the  disabilities  and  restraints  al- 
ready mentioned.  Consideration  also  has  been- 
considered.     The  existence  of  the  thing  to  be 

"All  actions,  quarrels,  trespasses,"  Dyer,  2171,  PI.  2 ; 
Cro.  Jac.  487.  "All  errors  and  all  actions,  suits  and 
writs  of  error  whatsoever,"  T.  Ravm.  399.  "All  suits," 
8  Co.  150.  "  Covenants,"  5  Co.  70,  h.  J-Litt.  §  445. 
a-Pardessus,  Dr.  Com.  n;  6  Noy.  Max.  Ch.  42; 
Shep.  Toust.  244  :  2  Kent  Comm.  363  :  Poth.  Vente.  n. 
I.  b-3  Salk.  157:  12  N.  H.  390:  'o  Vt.  457.  C-See 
II  Pick.  311.  d-See4  Wash.C  C.  588;  10  Pick.  522; 
18  Johns.  141;  8  Vt.  154;  2  Rawle.  326;  Coxe,  292 ;  2 
A.  K.  Marsh,  430.  e-An  exchange  is  not  a  sale,  j 
Salk.  157;  12  N.  H.  309.     f-10  Vt.  457. 


SALES. 


627 


•old,  or  the  subject-matter  of  the  contract,  is 
essential  to  the  validity  of  the  contract.*  If  a 
horse  be  dead  before  the  sale,  or  merchandise 
be  destroyed  by  fire,  bolh  parties  being  ignorant 
thereof,  the  sale  is  wholly  void.  If  a  substan- 
tial part  of  the  thing  sold  be  non-existent,  the 
buyer  has  his  option  to  rescind  the  sale,  or  take 
the  remainder  with  a  reasonable  abatement  of 
the  price.''  A  mere  contingent  possibility,  not 
coupled  with  an  interest,  is  no  subject  of  sale ; 
as,  ail  the  woo5  one  shall  ever  have.'  But  a 
valid  sale  may  be  made  of  the  wine  that  a  vine- 
yard is  expected  to  produce ;  or  the  grain  that 
a  field  is  expected  to  grow;  or  the  milk  that  a 
cow  may  yield  during  the  coming  year;  or  the 
future  young  born  of  a  female  animal  then 
owned  by  the  vendor  ;i  or  the  wool  that  shall 
hereafter  grow  upon  his  sheep.  If  rights  are 
vested,  or  possibilities  are  distit.ctly  connected 
with  interest  or  property,  they  mtiy  be  sold.''  A 
sale  maybe  good  in  part,  and  \  old  as  to  the 
residue ;  good  as  between  the  panics,  but  void 
33  to  creditors;  good  as  to  some  of  the  credit- 
ors, but  void  as  to  others.' 

There  is  a  presumption  that  every  sale  is  to 
he  consummated  at  once ;  that  the  chattel  is  to 
be  delivered,  and  the  price  paid  without  delay. 
If,  therefore,  nothing  appears  but  an  offer  and 
an  acceptance,  and  the  vendee  goes  his  way 
without  making  payment,  it  is  a  breach  of  the 
contract,  and  the  vendor  is  not  bound  by  the 
sale.  But  if  there  was  a  delivery  of  the  chattel, 
or  the  receipt  of  earnest,  or  of  part  payment, 
either  of  these  is  evidence  of  an  understanding 
that  something  should  remain  to  be  performed 
in  ftituro;  and  the  legal  presumption  is  re- 
butted. So,  where  the  terms  of  the  contract 
expressly  postpone  delivery,  or  payment,  or 
both,  to  a  future  day,  here  also  the  sale  is  valid. 
No  one  can  give  a  good  title  who  has  no  good 
title.  If  a  mere  finder,  and  still  more  if  a 
thief,  sells  what  he  has  found  or  stolen  to  A., 
and  A.  buys  in  good  faith,  and  so  sells  to  B., 
and  B.  to  C,  and  C.  to  D.,  etc.,  the  original 
owner  may  reclaim  his  property  wherever  it 
may  be,  and  take  it  without  any  payment  to 
the  holder,  any  more  than  if  that  holder  were 
the  thief  himself."  If  the  owner  has  been  de- 
ceived and  defrauded  into  parting  with  his 
property,  so  that  he  could  claim  it  from  the 
taker,  yet  if  he  voluntarily  parted  with  the 
property,  he  cannot  reclaim  it  from  one  who  in 
good  faith  buys  it  from  the  fraudulent  party ; 
.lot  even  if  the  fraud  amoutited  to  a  felony." 
No  one  can  be  made  to  buy  of  another  without 
his  own  assent.  Thus,  if  A.  sends  an  order  to 
1>.  for  goods,  and  C.  sends  the  goods,  he  cannot 

g:-T  Leon,  42 ;  Hob.  132  :  4  E.  L.  &  E.  471  :  S.  C.  7 
Exch.  208;  5M.&Sel.228.  l»-2  Kent  Comm.  469.  i- 
Hob.  132;  I  Hare,  556.  j-5  Yerg.  195  ;  26  E.  L.  &  E.  491; 
F.C.  10  Exch.  298.  k-3T.  R.  88;  3Merriv.  667.  l-ii 
Pick.  76.  m-i4  Martin CI^.)  17;  s  Ohio,  202  ;  2  Harr. 
&  Johns.  308  ;  8  Mass.  518  ;  i  Johns.  479  ;  1  Yeates,478; 

5  S.  &  R.  130  ;  I  Dana,  195  ;  10  Peters.  161  ;  22  Wend. 
185.  n-13  Barb.  372  ;  3  Diier.  373  :  6  Gratt.  268  ;  13 
111.  610:  38  Me.  561  ;  3  Duer,  341  :  i  Seld.  41  :  34  E.  L. 

6  E.  607  ;  S.  C.  II  Exch.  577.  O-z  Hurlstone  &  Norm. 
Exch.  564.    p-Story  Sales  (3d  Ed.)  2  348  ;  i  Pet.  C.  C. 


sne  for  the  price,  if  A.  repudiates  the  sale,  al- 
though C.  had  bought  B.'s  business." 
CAVEAT  EMPTOR. 

In  sales  of  personal  property,  the  purchaser 
buys  at  his  own  risk,  unless  the  seller  gives  an 
express  warranty,  or  unless  the  law  implies  a 
warranty  from  the  circumstances  of  the  case, 
or  the  nature  of  the  thing  sold,  or  unless  the 
seller  be  guilty  of  fraudulent  misrepresentation, 
or  concealment  in  respect  to  a  material  induce- 
ment to  the  sale.P 

CONDITIONAL  SALES. 

In  General.  In  every  sale,  unless  other- 
wise expressed,  there  is  an  implied  condition 
that  the  price  shall  be  paid  before  the  buyer 
has  a  right  to  possession ;  this  is  a  condition 
precedent.  "  If  I  sell  my  horse  for  money,  I 
may  keep  him  until  I  am  paid."<i  But,  al- 
though the  vendee  may  not  have  the  right  of 
possession  in  the  article  bought  until  the  price 
is  paid,  yet  the  right  oi  property  passes  by  the 
bargain;  and  if  the  properly  is  lost  while  yet 
in  the  possession  of  the  vendor,  without  his 
fault,  the  loss  will  fall  on  the  purchaser.'  But 
in  an  action  for  non-delivery  the  buyer  need 
only  aver  that  he  was  ready  and  willing  to  re- 
ceire  and  pay  for  them,  and  that  the  seller  re- 
fused to  *deliver  them,  without  averring  an 
actual  tender.*  Generally,  wherever  in  a  con- 
tract for  sale  it  is  stated  that  some  precise  act 
is  to  be  done  by  either  party,  this  may  amount 
to  a  condition,  though  not  so  expressed  As 
where  in  a  contract  for  a  sale  of  goods,  the 
words  were,  "  to  be  delivered  on  or  before  "  a 
certain  day,  this  is  a  condition  precedent,  and 
if  they  were  not  delivered  on  or  before  that 
day,*  (and  the  delivery  must  have  been  made 
at  a  reasonable  time  on  that  day,  or  the  vendee 
is  not  bound),"  the  purchaser  is  not  bound  to 
take  the  goods.  So,  if  the  goods  are  to  be 
delivered  on  "  request,"  the  buyer  must  allege 
and  prove  a  request,  this  being  a  condition 
precedent  to  his  acquiring  a  complete  right.* 
But  if  the  seller  has  incapacitated  himself  from 
delivering,  by  reselling  or  otherwise,  no  request 
is  necessary.* 

In  sales  called  "  contracts  of  sale  or  return," 
the  property  in  the  goods  passes  to  the  pur- 
chaser, subject  to  an  option  in  him  to  return 
them  in  a  fixed  time,  or  a  reasonable  time ;  and 
if  he  fail  to  exercise  this  option  in  so  returning 
them,  the  sale  becomes  absolute,  and  the  price 
of  the  goods  may  be  recovered  in  an  action  for 
goods  ~sold  and  delivered.*  And  what  is  a 
reasonable  time  within  which  a  contract  is  to 
be  performed,  or  an  act  to  be  done,  is,  in  the 
absence  of  any  contract  between  the  parties,  a 
question  of  law  for  the  court,  to  be  determined 

301;  4  Johns.  421;  20  Id.  196;  I  Wend.  185;  11  Met. 
(Mass.)  550.  q-Noy  Max.  p.  88  :  7  East.  571  ;  8  Barb. 
328.  r-6  Dana,  49 :  24  Me.  366  ;  6  Rand.  (Va.)  473. 
8-2  B.  &  P.  447 ;  I  Ea.st.  203  ;  5  Johns.  179 ;  i  Caincs, 
45;  2  Wnis.  Saund.  350  «.  (3').  t-2  Man.  &  G.  395.  M- 
Id.  v-5  T.  R.  409  ;  3  M.  &  W.  2s8.  w-Yelv.  (Met.  s 
Ed.)  76  n. ;  5  B.  &  Aid.  712  ;  14  Mass.  96.  x-j  E.  L. 
&  E.  311  S.  C.  ;  16  Q.  B.  493  ;  6  A.  &  E.  829  ;  Pcake'« 
Gas.  56:  16  Me.  17 ;  9  Pick.  441 ;  2  Fairf.  414;  7  Cudl. 
48s;  3  East.  116. 


tfsS 


SALES. 


by  a  view  of  all  the  circumstances  of  the  parti- 
cular case.y 

In  sales  at  auction  there  are  generally  condi- 
tions of  sale;  and  where  these  are  distinctly 
made  known  to  the  buyer,  they  are  of  course 
binding  on  him,  and  the  auctioneer  or  the 
owner  of  the  goods  is  bound  on  his  part.* 

Any  misstatement,  made  fraudulently,  and 
capable  of  having  any  effect  on  the  sale,  will 
avoid  it.  Nor  will  the  conditions  of  sale  be 
binding  against  a  purchaser,  if  so  framed  as  to 
give  the  seller  advantages  which  the  buyer 
could  not  readily  apprehend  or  understand 
without  legal  knowledrje  or  advice;  for  the 
buyer  is  discharged  from  a  purchase  made 
under  "  catching  conditions."' 

Mortgage  of  Personal  Property.'' 

DELIVERY.  While,  as  between  the  par- 
ties, the  properly  passes  by  a  sale  without 
delivery,  it  is  not  valid,  in  general,  as  against  a 
third  party  without  notice,  without  delivery. 
For  if  the  same  thing  be  sold  by  the  vendor  to 
two  parties,  by  conveyances  equally  valid,  he 
who  first  gets  possession  will  hold  it."  In  gen- 
eral where  there  is  a  completed  sale,  and  no 
change  of  possession,  this  retention  of  posses- 
sion by  the  vendor  is  a  badge  of  fraud,  and 
will  avoid  the  sale  in  favor  of  a  part)*who  sub- 
sequently acquires  title  to  the  property  in  good 
faith,  and  without  knowledge  of  the  sale.*  The 
delivery  may  be  symbolical,  or  a  part  for  the 
whole;*  and  a  delivery  of  the  key,  the  property 
being  locked  up,  is  so  far  a  delivery  of  the 
goods  that  it  will  support  an  action  of  trespass 
against  a  subsequent  purchaser,  who  gets  pos- 
session of  them.'  Marking  timber  on  a  wharf, 
or  goods  in  a  warehouse,  operates  as  a  deliveiy; 
goods  bought  at  a  shop,  weighed  or  measured, 
and  separated,  and  left  by  the  owner  until 
called  for,  are  sufficiently  delivered.  So  se- 
lecting and  marking  sheep,  then  in  possession 
of  one  who  was  requested  by  the  vendee  to 
retain  possession  of  them  for  him,  is  a  sufficient 
delivery. K  But  if  goods  are  sent,  even  under  a 
contract  of  sale,  to  be  applied  by  the  receiver 
to  a  particular  purpose,  to  which  purpose  they 
were  not  and  could  not  be  applied,  the  sender 
does  not  lose  his  property  in  them  by  delivery, 
but  may  recover  them  back.""  And  if  property 
be  awarded  to  one  by  arbitrators,  at  a  certain 
price,  the  tender  of  the  price  does  not  pass  the 
property,  unless  the  other  party  accept  the 
price.' 

If  no  time  be  appointed  for  delivery,  or  for 
payment,  the  acts  must  be  done  within  a  rea- 
sonable time;  and  if  neither  party  does  any 
thing  within  that  period,  the  contract  is  deemed 
dissolved.^     If  the  goods  are  to  be  delivered 


y-2  Greenl.    240;    16    Me.   164;    i_  Hawks.   41;    3 

j3o;    3  M.    '      ""     '     

-6  E.  &  B.  659.     »-2  Jur.  1078 ;    4  Bing.  N.  C. 


W.   445;     I   Id.   545;    20  Me. 


Sumner,    530 ;    3 

317.     «-6  £.&!.„,.     ..  _^ .    ,  _ -„ 

463  :  3  A.  &  E.  355  ;  2  Jur.  29  ;  4  Camp.  140.  b-See 
ante.  Mortgages,  c-2  Kent  Comm.  522 :  4  Binn. 
858;  10  S.  &  R.  419;  2  Atk.  115.  d-See  16  Ohio,  509. 
e-2j  Vt.  265;  o  Barb,  511;  jg  Id.  416;  11  Cush.  282; 
30  Me.  406.  1-2  Atk.  79.  e-2  Vt.  374;  12  Cush.  27; 
Id.  31.  b-i  B.  &  C.  S  :  3  Id.  422  ;  9  East.  12  ;  i  Id. 
S44;  5T.  R.  294:  9  W.  Bl.  1154.    1-X5  East.  too.   J-i 


when  requested,  the  purchaser  may  sue  with- 
out proving  a  request,  provided  the  seller  has 
incapacitated  himself  from  delivering  them,  as 
by  a  resale  or  the  like,*  but,  in  general,  a  re- 
quest must  be  made  before  the  seller  can  b» 
sued  for  non-delivery.'  And  if  the  vendee, 
either  by  the  express  terms  of  the  contract  01 
from  its  nature,  is  to  designate  the  manner  or 
place  of  delivery,  he  must  do  this  before  he 
can  maintain  his  action.™  If  a  day  be  fixed 
either  for  delivery  or  payment,  the  seller  has 
the  whole  of  it;  and  if  any  one  of  several  days, 
the  seller  has  the  whole  of  all  of  them.  If  on 
a  certain  day,  at  a  certain  place,  then  it  must 
be  d;jne  at  a  convenient  time  before  sunset,  be- 
cause the  presence  of  the  other  party  is  neces- 
sary, and  the  law  does  not  require  him  to  be 
there  through  the  whole  twenty-four  hours." 
The  seller  is  to  keep  the  thing  sold  until  the 
time  of  delivery,  with  ordinary  care,  and  is 
liable  for  the  want  of  that  care,  or  of  good 
faith ;  but  if  he  does  so  keep  it,  he  is  not  liable 
for  its  loss,"  unless  it  perish  through  a  defect 
against  which  he  has  warranted.  If  the  par- 
ties are  distant  from  each  other,  the  seller  must 
follow  the  directions  of  the  buyer  as  to  the  way 
of  sending  the  thing  sold  to  him,  and  then  a 
loss  in  the  transportation  will  fall  on  the  buyer,' 
unless  attributable  to  the  negligence  of  the 
seller ;  if  the  seller  disregards  such  orders,  the 
loss  in  transportation  falls  on  him,  though  it 
does  not  happen  through  his  neglect.  If  the 
directions  are  general,  as  "  by  a  carrier,"  with- 
out naming  any  one,  usual  and  proper  precau- 
tions must  be  taken,  and  will  protect  the  seller. 
The  vendor,  in  delivering  goods  to  a  carrier, 
must  exercise  due  care  and  diligence,  so  as  to 
provide  the  consignee  wtth  a  remedy  over 
against  the  carrier.'  And  it  is  a  part  of  his 
duty  to  give  such  notice  of  the  sending  them 
by  ship  or  otherwise  as  will  enable  the  buyer 
to  insure  or  take  other  precautions.'  If  the 
contract  be  to  deliver  the  thing  ordered  at  the 
residence  or  place  of  business  of  the  buyer,  the 
seller  is  liable,  although  such  delivery  becomes 
impossible,  unless  it  becomes  so  through  the 
act  of  the  buyer."  If  the  seller  refuse  to  deli- 
ver it  at  the  time  and  place  agreed  on,  and  it 
perish  afterwards  without  his  fault,  he  is  liable 
for  it.  But  if  he  be  ready,  and  the  vendor 
wrongfully  refuse  or  neglect  to  receive  it,  the 
seller  is  not  liable,  unless  the  thing  perishes 
through  his  gross  and  wanton  negligence.  And 
if  the  vendee  unreasonably  neglect  or  refuse  to 
comply  with  conditions  precedent  to  delivery, 
or  to  receive  the  goods  on  delivery,  the  seller 
may,  after  due   delay  and  proper  precautions, 

Salk.  113  ;  13  M.  &  W.  27;  23  Vt.  114.  k-io  East.  359; 
5  B.  &  Aid.  712.  1-5  T.  R.  409;  3  M.  &  W.  254;  i 
Taylor,  140 ;  3  Price,  68.     m-i   Duer,  277;   14  Q.   B 


728.  11-2  Man.  &  G.  395.  O-i  Busb.  L.  253.  p-Cowp. 
204  ;  6  Foster,  415  ;  i  Gray,  536  •  6  Port.  (Ala.)  138;  3 
P.  Wms.  186;  3  B.  &  P.  584 ;  5  Price,  630 ;  Dan.  &  L, 


6;  28  E.  L.  &  E.  586  :  S.  C.  10  Exch.  342.  q-3  Camp. 
414 ;  14  East.  475 ;  i  Bing.  N.  C.  671  :  8  T.  R.  330.  r-3 
Camp.  129;  Brown  Sales  \  526;  2  Kent  Comm.  500;  j 
T.  R.  189.  S-2  Camp.  56  «;  10  East.  530;  5  C.  &  P. 
182;  Pet.  C.  C.  85;  Id.  831. 


SALES. 


629 


resell  them,  and  hold  the  buyer  responsible  for 
any  deficit  in  the  price.'  It  is  common  and 
generally  advisable  to  sell  them  at  auction ; 
^ut  this  is  not  neoessary."  If  the  seller  sell  on 
credit,  the  goods  are  to  be  delivered  without 
payment;  but  if  the  buyer  becomes  insolvent 
before  the  time  of  delivery,  the  seller  may  de- 
mand security,  and  refuse  to  deliver  the  goods 
without  it/  If  no  place  of  delivery  be  spe- 
cially expressed  in  the  contract,  the  store,  shop, 
farm  or  warehouse  where  the  article  is  sold, 
made,  grown,  or  deposited,  is  in  general  the 
place  of  delivery.*  If,  however,  a  particular 
pJace  be  appointed  by  the  contract,  the  goods 
must  be  delivered  there  before  an  action  will 
lie  for  their  price.'  If  expressly  deliverable  to 
the  vendee,  but  no  place  is  named,  it  may  be 
delivered  to  him  where  he  is,  or  at  his  house, 
or  place  of  business.  Except  so  far  as  this 
option  of  the  seller  is  controlled  by  the  nature 
of  the  article.  For  if  the  purchaser  brought  a 
load  of  cotton  to  be  worked  in  his  mill,  it  can- 
not, under  an  agreement  of  delivery,  be  deliv- 
ered at  his  distant  dwelling-house,  nor  should 
a  load  of  hay  for  his  stable,  or  cooking- range  for 
his  kitchen,  be  delivered  at  his  store  on  the 
wharf. 

The  vendee  is  bound  to  receive  and  pay  for 
the  thing  sold  at  the  time  and  place  expressed 
or  implied  in  the  contract  of  sale,  and  to  pay 
all  reasonable  charges  for  keeping  it  after  sale 
and  before  delivery.y  And  if  he  refuse  so  to 
tnke  and  pay  for  the  goods  sold,  he  will  be 
liable  to  an  action  for  the  price,  or  in  a  special 
action  for  damages,  unless  he  can  show  inca- 
pacity to  contract,  or  sufficient  error,  duress,  or 
fraud. 

Effect.  Upon  a  completed  sale  the  prop- 
erty in  the  thing  sold  passes  to  the  purchaser.* 
If  It  be  sold  for  cash  and  the  price  be  not  paid, 
or  if  it  be  sold  on  a  credit,  but  by  the  terms  of 
the  bargain  is  to  remain  in  the  hands  of  the 
vendor,  the  vendor  has  a  lien  on  it  for  the 
price  ;*  and  only  payment  or  tendor  gives  the 
vendee  a  right  to  possession.  And  if  it  be  sold 
on  credit,  and  the  buyer  by  the  terms  of  the 
bargain  has  the  right  of  immediate  possession 
without  payment,  but  the  thing  sold  actually 
remains  in  the  possession  of  the  seller  until  the 
credit  has  expired,  and  the  price  is  still  unpaid, 
the  seller  then  has  a  lien  for  the  price.''  If  it 
be  sold  on  credit,  and  there  is  no  agreement  in 
respect  to  the  delivery  or  possession  of  the 
goods,  the  purchaser  at  once  has  a  complete 
right  not  only  of  property  but  of  possession," 

t-4Bing.  722;  4Esp.  251;  5S.  &R.19;  5  Johns.  395. 
n-i  S:>iul.  279  ;  4  Barb.  564.  v-S  T.  R.  215;  4  B.  &  C. 
948  ;  6  East.  614  ;  1  H.  LI.  357  ;  3  T.  R.  464.  w-2  Kent 
Comm.  505  ;  5  Cowen,  516 ;  4  Wend.  380 ;  3  W.  &  S.  295. 
X-19  Me.  147;  20 Id.  325.  y-2oVt.2i.  Z-5B.&C.862; 
I  Nev.  &  M.  202;  Bell'sConim.  166;  7East.  558;  Com. 
Dig.  Agreement,  B.  3;  6  B.  &  C.  362  ;  9  Foster,  121  ;  2 
Moody  &  R.  566;  1  Salk.  113.  a-4  B.  &  C.  948 ;  8 
Barb.  328;  13  Penn.  St.  146;  5  B.  &  Ad.  313;  4  Camp. 
237:  2  M.  &  Sel.  397;  1  Salk.  113;  i  Md.  37: 
SI  Penn.  St.  359;  14  B.  Mon.  413.  b-Dan.  &  L. 
193;  21  Cal.  178;  Id.  227.  c-32  Me.  191;  t  Swanst. 
200;  2Comst.  293;  n  111.  558;  15  Id.  347.  d-6  B.  & 
C.  36a;  6  Dana,  48;  13  Pick.  183;  4  Law  Rep.  276;  7 
Dana.  61.    e-sB.  &C.  857;   a  H.  Bl.  504;   4  B.  &  P. 


subject  only  to  defeasance  under  the  law  of 
stoppage  in  transitu.  If  the  property  passes, 
though  not  the  right  of  possession,  and  the 
thing  sold  perish,  the  loss  falls  on  the  pur- 
chaser."* The  vendor's  lien  is  destroyed  by"  a 
delivery  of  the  goods,  or  by  a  delivery  of  a  part, 
without  an  intention  to  separate  it  from  the 
rest,  but  with  an  intention  thereby  to  give  pos- 
session of  the  whole.  Mere  delivery  of  a  part 
will  not,  however,  divest  the  vendor  of  his  lien, 
as  to  the  whole,  if  anything  remains  to  be  done 
by  the  vendor  to  the  part  undelivered."  If  sold 
for  cash,  and  the  money  be  not  paid  within  a 
reasonable  time,  the  vendor  may  treat  the  sale 
as  null.' 

The  property  does  not  pass  absolutely  unless 
the  sale  be  completed ;  and  it  is  not  completed 
until  the  happening  of  any  event  expressly  pro- 
vided for,  or  so  long  as  anything  remains  to  be 
done  to  the  thing  sold,  to  put  it  into  a  condition 
for  sale,  or  to  identify  it,  or  discriminate  it  from 
other  things.^  Nor  is  the  sale  completed  while 
anything  remains  to  be  done  to  determine  its 
quantity,  if  the  price  depends  on  this ;  unless 
this  is  to  be  done  by  the  buyer  alone,''  But 
where  the  thing  to  be  done  by  the  vendor  is  but 
trifling,  or  is  but  a  mathematical  computation, 
this  rule  will  not  apply.*  If  the  parties  in- 
tended that  the  sale  should  be  complete  before 
the  article  sold  is  weighed  or  measured,  the 
property  will  pass  before  this  is  done.J  And 
even  if  earnest,  or  a  part  of  the  price  be  paid, 
the  sale  is  not  complete  under  these  circum- 
stances, and  if  it  finally  fail,  the  money  paid 
may  be  recovered  back.'' 

PARTIES. 

As  a  general  rule,  all  persons  sui  juris,  may 
be  either  buyers  or  sellers.  There  is  a  class  of 
persons  who  are  incapable  of  purchasing,  ex- 
cept stib  modo,  as  infants ;  and  another  class, 
who,  in  consequence  of  their  peculiar  relation 
with  regard  to  the  owner  of  the  thing  sold,  are 
totally  incapable  of  becoming  purchasers,  while 
that  relation  exists ;  these  are  trustees,  guar- 
dians, assignees  of  insolvents,  and  generally  all 
persons  who,  by  their  connection  with  the 
owner,  or  by  being  employed  concerning  his 
affairs,  have  acquired  a  knowledge  of  his  prop- 
erly, as  attorneys,  conveyancers,  and  the  like. 

PRICE,  The  price  to  be  paid  must  be  cet, 
tain,  or  so  referred  to  a  definite  standard  that 
it  may  be  made  certain  ;'  as,  what  another  man 
has  given ;  or  what  another  man  shall  say  should 
be  the  price.       But   if  this  third  party  refuse 

6g;  6  East.  614;  7  Wend  404;  i  Camp.  427;  9  Barb. 
511 ;  2  Gray,  196 ;  11  Law.  Rep.  561  ;  i  B.  &  C  514 ;  4 
Mass.  405  ;  21  Cal.  80.  f-Dyer,  50,  a;  i  Salk.  113; 
Contra  3  Camp.  426.  ar-43  N.  H.  141  ;  7  E.  &  B.  885; 
4  H.  &  N.  402;  20  N.  Y.  (6  Smith)  495.  I1-6  B.  &  C. 
360;  2  Cromp.  &  M.  5^5;  2  Camp.  240;    13  East.  522; 

2  M.  &  Sel.  397 ;  5  Taunt.  617  :  6  B.  &  C.  388  ;  4  Bing. 
N.  C.  676  ;  7  Gratt.  240  ;  7  Wend.  404  ;  15  Johns.  349  ; 

3  Mason,  112;  6  Cowen,  250;  3  Wend.  112;  7  Cowen, 
185  ;  10  Barb.  95  ;  1  Pick.  476;  13  Id.  175  ;  14  Me.  400; 
34  Id.  289  ;  35  Id.  385;  15  Penn.  St.  528;  18  Id.  91  ;  25 
id.  208;  20  Pick.  280;  3  N.  H.  382;  2  Foster,  172.-  7 
Dana,  61.  I-2  Bing.  N.  C.  151  ;  S.  C.  »  Scott.  238 ;  20 
Mo.  553.  J-20  Pick.  280.  k-is  Penn.  St.  208;  4  Seld. 
291.  1-4  Pick.  189;  3  Sumner,  539;  ao  Mo.  553;  ■• 
Penn.  St.  460. 


630 


SALES. 


:>  fix  the  price,  the  sale  is  void."  A  sale  may 
•e  made  of  an  article  for  what  it  is  worth,  for 
hat  can  be  ascertained  by  experts."  The  thing 
ol(i  must  be  specific  and  capable  of  certain 
dentification.  There  must  be  an  agreement  of 
mind  as  to  this ;  and  if  there  be  an  honest  error 
as  to  price,  or  as  to  the  substantial  and  essential 
qualities  of  the  thing  sold,  the  sale  may  be 
treated  as  null." 

To  constitute  a  sale  there  must  be  a  price 
S  ;reed  upon ;  but  upon  the  maxim  u/  certtim 
eit  quod  reddi  cer turn  potest,  a  sale  may  be  valid, 
although  it  is  agreed  that  the  price  for  the  thing 
sold  shall  be  determined  by  a  third  person. p 
The  price  must  be  an  actual  or  serious  price, 
with  an  intention  on  the  part  of  the  seller  to 
require  its  payment.  If,  therefore,  one  should 
sell  a  thing  to  another,  and  by  the  same  agree- 
ment he  should  release  the  buyer  from  the  pay- 
ment, this  would  not  be  a  sale,  but  a  gift,  be- 
cause in  that  case  the  buyer  never  agreed  to 
pay  any  price,  the  same  agreement  by  which 
the  title  to  the  thing  is  passed  to  him  discharg- 
ing him  from  all  obligations  to  pay  for  it.  As 
to  the  quantum  of  the  price,  that  is  altogether 
immaterial,  unless  there  has  been  fiaud  in  the 
transaction.  The  price  must  be  certain  or  de- 
termined, but  it  is  sufficiently  certain,  if,  as 
before  observed,  it  be  left  to  the  determination  of 
a  third  person  ;i  and  an  agreement  to  pay  for 
goods  what  they  are  worth  is  sufficiently  certain."^ 
The  price  must  consist  in  a  sum  of  money 
which  the  buyer  agrees  to  pay  to  the  seller;  for, 
if  paid  in  any  other  way,  the  contract  would  be 
an  exchange  or  barter,  and  not  a  sale. 

The  consent  of  the  contracting  parties,  which 
is  of  the  essence  of  a  sale,  consists  in  the  agree- 
ment of  the  will  of  the  seller  to  sell  a  certain 
thing  to  the  buyer  for  a  certain  price,  and  the 
will  of  the  buyer  to  purchase  the  same  thing 
for  the  same  price.    Care  must  be  taken  to  dis- 
tinguish between  an  agreement  to  enter  into  a 
future  contract,  and  a  present  actual  agreement 
to  make  a  sale.     The  consent  is  certain  when 
the  parties  expressly  declare  it.     This  in  some 
cases  it  is  requisite  should  be  in  writing.'    This 
writing  may  be  a  letter.'     When  a  party,  by  his 
cts,  approves  of  what  has  been  done,  as  knovv- 
igly  using  goods  which  have  been  left  at  his 
ouse  by  another,  who  intended  to  sell  them, 
e  will  by  that  act  confirm  the  sale. 
In  order  to  pass  the  property  by  a  sale,  there 
must  be  an  express  or  implied  agreement  that 
the  title  shall  pass.     An  agreement  for  the  sale 
of  goods  K  prima  facie  ^  bargain  and  sale  of 
those  goods ;  but  this  arises  merely  from  the 
presumed  intention  of  the  parties,  and  if  it  ap- 
pear that  the  parties  have  agreed,  not  that  there 

ni-St»ry  Sales,  3  220.  n-io  Bingh.  487,  382  ;  12  Tred. 
L.  79,  166.  0-9  M.  &  W.  54 ;  I  M.  &  R  293  ;  38  Penn. 
St.  491.  |»-4  Pick.  179:  see  10  Bingh.  382,  387;  ii  Ired. 
166;  12  Id.  79.  q-4  Pick.  179  ;  Poth.  Vente.  n  24.  x- 
Coxe,  26T ;  Poth.  Vente.  «.  26 :  see  2  Summ.  C.  C.  539  ; 
20  Mo.  553 :  22  Penn.  St.  460.  r-See  ante,  Frauds. 
M-4  Bingh.  653;  3  Met.  (Mass.)  207;  16  Me.  458.  t-4 
Wash.  C.  C.  79 ;  see  zo  Ohio,  304  ;  3  Sandf.  230 :  i  C. 
B.  .385.  n-5  B.  &  C.  862  :  6  Dana,  48:  7  Id.  61  ;  13 
Pick.  183.     v-5  B.  &  C   862 ;  6  Dana,  48  ;  7  Id.  61 ;  13 


shall  be  a  mutual  credit  by  which  the  property 
is  to  pass  from  the  seller  to  the  buyer,  and  the 
buyer  is  bound  to  pay  the  price  to  the  seller, 
but  that  the  exchange  of  the  money  for  the 
goods  shall  be  made  on  the  spot,  no  property  is 
transferred,  for  it  is  not  the  intention  of  the  par 
ties  to  transfer  any."  But,  on  the  contrary 
when  the  making  of  part  payment,  or  naming  a 
day  for  payment,  clearly  shows  an  intention  in 
the  parties  that  they  should  have  some  time  to 
complete  the  sale  by  payment  and  delivery,  and 
that  they  should  in  the  meantime  be  trustees 
for  each  other,  the  one  of  the  property  in  the 
chattel,  and  the  other  in  the  price. 

As  a  general  rule,  when  a  bargain  is  made 
for  the  purchase  of  goods,  and  nothing  is  said 
about  payment  and  delivery,  the  property  passes 
immediately,  so  as  to  cast  upon  the  purchaser 
all  future  risk,  if  nothing  remains  to  be  done  to 
the  goods,  although  he  cannot  fake  them  away 
without  paying  the  price. ^ 

Subject-matter  of  Sale.  There  must  be 
a  thing  which  is  the  object  of  the  sale;  for  if 
the  thing  sold  at  the  time  of  the  sale  had  ceased 
to  exist,  it  is  clear  that  there  could  be  no  sale; 
if,  for  example,  you  and  I  being  in  Philadel- 
phia, I  sell  you  my  house  or  horse  in  Chicago, 
and  at  the  time  of  the  sale  it  be  burned  down 
or  dead,  it  is  manifest  there  was  no  sale,  as 
there  was  not  a  thing  to  be  sold."  It  is  evi- 
dent, too,  that  no  sale  can  be  made  of  things 
not  in  commerce;  as  the  air,  the  water  of  the 
sea,  and  the  like.  When  there  has  been  a 
mistake  made  as  to  the  article  sold,  there  is  nc 
sale;  as,  for  example,  where  a  broker  who  is 
the  agent  of  both  parties,  sells  an  article,  and 
delivers  to  the  seller  a  sold  note  describing  the 
article  sold,  as  "  St.  Petersburg  clean  hemp," 
and  bought  note  to  the  buyer  as  "  Riza  Rhine 
Hemp,"  there  is  no  sale.'' 

There  must  be  an  agreement  as  to  the  speci- 
fic goods  which  form  the  basis  of  the  contract 
of  sale ;  in  other  words,  to  make  a  perfect  sale, 
the  parties  must  have  agreed,  the  one  to  part 
with  the  title  to  a  specific  article,  and  the  other 
to  acquire  such  title.  An  agreement  to  sell 
one  hundred  bushels  of  wheat,  to  be  measured 
out  of  a  heap,  does  not  change  the  property 
until  the  wheat  has  been  mensuren.J 

TRANSITU,    STOPPAGE   IN. 

What  the  Right  of  Stoppage  is,  anii 
WHO  HAS  IT.  Stoppage  in  transitu  is  the  right 
which  resides  in  the  vendor  of  goods  upon 
credit,  to  recall  them,  upon  discovering  the 
insolvency  of  the  vendee,  before  the  goods 
have  reached  him,  or  any  third  party  has  ac- 
quired boiia  fide  rights  in  them.*     This  right 

Pick.  i8i.  w-See  1  Leon,  42  ;  Hob.  132;  7  Exch.  Ch- 
208;  5  M.  &  S.  228;  2  Kent  Coinm.  640.  x-5  Taunt. 
786,  788 ;  5  B.  &  C.  4^7 ;  7  East.  569  ;  2  Campb.  337 ;  4 
Q.  B.  747;  9  M.  &  W.  805  ;  I  Moore  &  P.  778.  y-3 
Johns.  179;  15  Id.  349:  2  N.  Y.  258;  5  Taunt.  176;  7 
Ohio,  127:  3  N.  H.  282:  6  Pick.  280:  6  Watts,  29;  a 
El.  &  Bl.  88s:  and  see  6  B.  &  C.  ^88;  7  Gratt.  240;  34 
Me.  289;  25  Penn.  St.  208  ;  22  N.'H.  T72;  24  Id.  337; 
7  Dana,  61  ;  n  Humph.  206;  11  Ired.  609.  x-Seeante, 
Bailments;  21  Ohio  St.  281  ;  Reasons  for  this  rule.  5 
Ohio.  88-o8. 


SALES. 


63» 


exists,  strictlj  speaking,  only  when  the  vendor 
has  parted  with  the  goods.  If  they  have  never 
left  his  possession,  he  has  a  lien  on  them  for  the 
full  payment  of  their  price ;  but  not  this  right 
of  stoppage.*  The  mere  insolvency  or  bank- 
ruptcy of  the  vendee  will  not,  /fr  se,  amount  to 
a  stoppage  in  transitu  ;  for  there  must  be  some 
act  on  the  part  of  the  consignor  indicative  of 
his  intention  to  repossess  himself  of  the  goods.'* 
Notice  of  the  consignor's  claim  and  purpose 
given  to  the  carrier  before  delivery  is  suffi- 
cient." Notice  should  be  given  to  the  carrier, 
middleman,  or  other  person  having  at  the  time 
the  actual  custody  of  the  goods ;  or  given  to 
such  a  person  that  it  may  reach  the  carrier 
before  delivery  ;*  and  it  should  be  given  to  the 
carrier  having  possession,  and  not  to  the  vendee 
himself  without  giving  notice  to  the  carrier.® 
This  notice  and  demand  on  behalf  of  the  con- 
signor need  not  be  made  by  any  person  spe- 
cially authorized  for  that  purpose ;  it  may  be 
made  by  a  general  agent  of  the  consignor ;  or 
even  by  a  stranger,  if  it  be  ratified  by  the  ven- 
dor before  the  delivery  to  the  vendee.'  But  a 
ratification  of  a  notice  and  demand  by  an  unau- 
thorized person,  not  made  until  after  delivery 
to  the  vendee,  will  not  suffice.* 

When  and  how  the  right  may  be  ex- 
ercised. Generally,  this  right  exists  as  long 
as  the  goods  are  in  transitu.  They  are  in 
transitu  not  only  while  in  motion,  and  not  only 
V  liile  in  possession  of  the  carrier  (although  he 
v.as  appointed  and  specified  by  the  consignee), 
but  also  while  they  are  deposited  in  any  place 
not  actually  or  constructively  the  place  of  the 
consignee,  or  so  in  his  possession  or  under  his 
control,  that  the  putting  them  there  implies  the 
intention  of  delivery.  Thus,  if  goods  are 
lodged  in  a  public  warehouse  for  non-payment 
of  duties,  they  are  not  in  the  possession  of 
the  vendee,  and  the  vendor  may  stop  them.'' 
They  are  in  transit  until  they  pass  into  the 
possession  of  the  vendee.  But  this  possession 
may  be  actual  or  constructive.  Thus,  suffering 
the  goods  to  be  marked  and  resold,  and  marked 
again  by  the  second  purchaser,  is  a  constructive 
deliveiy.'  So,  a  delivery  by  the  vendor,  to  the 
vendee,  of  the  key  of  the  vendor's  warehouse, 
where  the  goods  were  stored,  amounts  to  a 
delivery.^  So,  demanding  and  marking  the 
goods  by  the  vendee's  agent  at  the  inn  where 
the  goods  arrived  at  their  destination.''  So,  if 
the  vendor  agreed  to  let  the  goods  lie  in  his 
warehouse,  for  a  short  time,  although  free  of 
rent,  and  to  accommodate  the  vendee.'  So, 
if  rent  be  paid.™  So,  delivering  to  the  vendee 
a  bill  of  parcels  with  an  order  on  the  store- 
keeper for  the  delivery  of  the  goods."     So,  giv- 

a-2  Pick.  813  ;  3  Ho.  of  L.  Cas.  309 ;  8  M.  &  W.  321 ; 
10  Barb.  193.  b-2  Kent  Comm.  543  ;  but  this  right  ex- 
ists only  in  cases  of  insolvency  of  the  vendee  ;  6  Rob. 
Adm.  321.  C-7  Taunt.  i6q  ;  j  Esp.  2^0;  13  Me.  93. 
tI-5  Denio,  629  ;  5  Whart.  189  ;  2  Esp.  613  ;  9  M.  &  W. 
518.  e-5  Denio,  629.  f-9  M.  &  W.  518  ;  5  Whart.  189  ; 
13  Me.  93.  g-4  Exch.  786.  I1-2  Esp.  613;  Id.  490  :  5 
Denio,  629.  I-14  East.  308.  j-3  T.  R.  464.  li-3  T. 
R.  464.  I-3  Mason,  107  Contra;  4  A.  &  E.  58.  iii-i 
Campb.  453.     u-3  Ciunpb.  343;  3  Caines,  183.     0-3 


ing  an  order  by  the  vendor  to  the  keeper  of  a 
warehouse,  for  the  delivery  of  the  goods.* 
Delivery  to  a  mercantile  house,  merely  for 
transmission  to  the  vendee,  by  a  forwarding 
house,  does  not  take  away  the  right  of  step- 
page.p  If  the  carrier  by  reason  of  an  arrange- 
ment with  the  consignee,  or  for  any  cause,  re- 
mains in  possession,  but  holds  the  goods  only 
as  the  agent  of  the  consignee,  and  subject  to 
his  order,  this  is  the  possession  of  the  con- 
signee.t  Yet,  even  in  cases  where  an  existing 
usage  authorizes  the  carrier  to  retain  the  goods 
in  his  hands  as  security  for  his  whole  claim 
against  the  consignee,  the  consignor  may  still 
stop  them  as  in  transitu,  and  take  them  from 
the  carrier,  by  paying  him  the  amount  dua 
specifically  for  the  carriage  of  those  goods.' 

As  the  goods  may  pass  constructively  into 
the  possession  of  the  consignee,  so  they  may  be 
transferred  by  him  before  they  reach  him,  in 
such  a  way  as  to  destroy  the  consignor's  right 
of  stoppage  in  transitu.  This  may  be  done  by 
an  indorsement  and  delivery  of  the  bill  of 
lading.  This  instrument  is  now  by  the  custom 
of  merchants,  which  is  adopted  by  the  courts, 
and  made  a  rule  of  law,  regarded  as  negoti- 
able ;  its  indorsement  and  delivery  operating  as 
a  symbolic  delivery  of  the  goods  mentioned  in 
it."  And  such  transfer,  if  it  is  in  good  faith 
and  for  a  valuable  consideration,  passes  the 
property  to  the  second  vendee,  who  holds  it 
free  from  the  right  of  the  original  vendor  to 
step  the  goods  in  transitu}  But  a  second 
vendee,  to  whom  the  bill  of  lading  is  not  trans- 
ferred, or  not  so  transferred  as  to  carry  good 
title,  and  who  neglects  to  take  actual  or  con- 
structive possession,  is  in  no  better  position 
than  the  first  vendee,  under  whom  he  claims ; 
and  the  goods  may  be  taken  from  him  by  the 
first  vendor,  on  the  insolvency  of  the  first 
vendee. 

WARRANTY  IN  SALES. 

In  General.  The  warranties  which  ac- 
company a  sale  of  chattels  are  of  two  kinds  in 
respect  to  their  subject-matter:  a  warranty  of 
TITLE  and  a  warranty  of  QUALITY.  And  also 
of  two  kinds  in  respect  to  their  form,  as  they 
may  be  express  or  implied. 

The  seller  of  a  chattel,  if  in  possession, 
warrants  by  implication  that  it  is  his  own,  and 
is  answerable  to  the  purchaser  if  it  be  taken 
from  him  by  one  who  has  a  better  title  than  the 
seller,  whether  the  seller  knew  of  the  defect  of 
his  title  or  not,  and  whether  he  did  or  did  not 
make  a  distinct  affirmation  of  his  title.  But  if 
the  seller  is  out  of  possession,  and  no  affirma- 
tion of  title  is  made,  then  the  purchaser  buys  at 


Campb.  243 ;  2  Strob.  L.  309.  p-i4  Penn.  St.  48.  q-2 
Cr.  &  J.  218,  S.  C;  2Tyr.  217;  6  E.  &  C.  107,  S.  C.; 
9  Dow.  &  R.  108 ;  3  B.  &  P.  469.     r-3  B.  &  P.  42. 


oBingh.  574;  5B.  &Ad.  313:  7Man.  &G.  678;  14 
M.  &  W.  402  ;  7  A.  &  E.  29  ;  5  Whart.  189,  205  ;  £ 
East.  41  ;  12  Barb.  310.  f-2  T.  R.  63 ;  6  East.  21,  «; 
Abb't  Shipping,  471 ;  4  Bingh.  516,  S.  C. ;  i  Mo.  &  P. 
394 ;  7  Man.  &  G.  678 ;  i  C.  &  P.  53  ;  11  Jur.  265  ;  a 
Ho.  of  L.  Cas.  309;  4  A.  &  E.  58;  3  Caines,  182  ;  a 
Wash.  C.  C.  283 ;  Id.  403;  35  E.  L.  &  E.  128,  S.  C. ;  » 
E.  &  B.  633. 


•32 


SALES. 


hi«  peril.  In  any  cnse  where  there  was  this 
warranty  of  title,  a  title  subsequently  acquired 
by  the  vendor  would  inure  to  the  benefit  of  the 
vendee."  If  the  seller  is  in  possession,  but  if 
the  possession  is  of  such  a  kind  as  not  to  de- 
note or  imply  title  in  him,  there  will  be  no 
warranty  of  title.  A  general  warranty  does 
not  cover  defects  plain  and  obvious  to  the  pur- 
chaser, or  of  which  he  has  had  cognizance : 
thus,  if  a  horse  be  warranted  perfect,  and  want 
a  tail  or  as  ear.^  This  rule  must  not  be  mis- 
understood. A  man  may  warrant  against  a 
defect  which  is  patent  and  obvious  as  well  as 
against  any  other.  And  a  general  warranty 
that  a  horse  was  sound  vioxxMl  be  broken,  if  one 
eye  was  so  badly  injured,  or  so  malformed  as 
to  be  entirely  useless,  although  this  defect 
might  have  been  noticed  at  the  time  of  sale.* 
And  if  a  defect  is  obvious,  yet  if  the  purchaser 
be  misled  as  to  the  character  or  extent,  a  war- 
ranty is  implied.' 

if  there  be  no  express  warranty,  the  common 
law,  in  general,  implies  none.  Its  rule  is, 
unquestionably,  caveat  emptor^ — let  the  pur- 
chaser take  care  of  his  own  interests.  One 
important  and  universal  exception  is  this :  the 
rule  never  applies  to  cases  of  fraud,  never 
proposes  to  protect  a  seller  against  his  own 
fraud,  nor  to  disarm  a  purchaser  from  a  defence 
or  remedy  against  a  seller's  fraud.*  The  com- 
nio)i  law  does  not  oblige  the  seller  to  disclose 
all  that  he  knows,  which  lessens  the  value  of 
the  property  he  would  sell.  He  may  be  silent, 
leaving  the  purchaser  to  inquire  and  examine 
for  himself,  or  to  require  a  warranty.  He  may 
he  silent,  and  be  safe;  but  if  he  be  more  than 
silent,  if  by  acts,  and  certainly  if  by  words,  he 
leads  the  buyer  astray,  inducing  him  to  suppose 
that  he  buys  with  warranty,  or  otherwise  pre- 
venting his  examination  or  inquiry,  this  be- 
comes a  fraud,  of  which  the  law  will  take 
cognizance.  The  seller  may  let  the  buyer 
cheat  himself  ad  libilum,  but  must  not  actively 
as:5ist  him  in  cheating  himself.*  As  mere 
silence  implies  no  warranty,  neither  do  remarks 
which  should  be  construed  as  simple  praise  or 
commendation;''  but  any  distinct  assertion  or 
affirmation  of  quality  made  by  the  owner 
during  a  negotiation.  It  is  essential  that  a 
warranty,  to  be  binding,  be  made  during  the 
negotiation ;  if  made  after  the  sale  is  completed, 

n-31  Vt.  162  :  I  Head.  506.  v-13  H.  4, 1 3,  pi.  4 ;  11  Ed. 
4,6  /',pl.  10;  3  RoUe,  5  ;  2  Humph.  303  :  2  Caines,  202  :  5 
Mo  &  P.  606 ;  2  Eng.  166 ;  34  Barb.  367  ;  i  La.  An.  389. 
W-See8  Bing.  454,  S.  C.  ;  7  Bing.  603  :  2  Bing.  183.  x- 
^  Sttobh.  L.  64.  y-i  Met.  550;  18  Pick.  59;  2  East. 
^21  ;  Doug,  ao;  3  Harr.  &  Johns.  89  ;  2  Caines,  48  ;  4 
Johns.  421  ;  4  Conn.  428 ;  9  Pore.  (Ala.)  104  ;  i  Denio, 
378;  10 Texas,  220.  K-i8Me.  418;  loS.  &M.476.  a- 
2  Wheat.  178  :  14  Barb.  66  ;  5  Penn.  St.  467 ;  3  E.  L.  & 
E.  17;  I  Baldw.  331 ;  3  Wash.  C.  C.  165  ;  i  Yeates, 
307  ;  12  Ired.  L.  49 ;  1  Stark.  434 ;  2  E.  L.  &  E.  318,  S. 
C.  ;  10  C.  B.  591 ;    2  Bro.  Ch.  420  ;    8  Ired.  L.  297;    22 


Pick.  48;  I  Ves.  Sen.  95  ;    14  Barb.  66;  3  Story,  700;  i 
":  M.  90  ;    3  Williams,  - 

ent  Comm.   482,   et  itQ-: 
Fairf.  262;    13  Ired.  L.  350  ;    3  Strob.  L.  64 ;    37  Penn. 


Id.  172;    X  Woodb.  &  M.  00  ;    3  Williams,  470.     Whole 
subject  examined   in  a   Kent  Comm.   482,   et  itq.:    3 


St.  147.      b-Chitty  Contr.  393,  «;  4  N.  &  H.  412.     c-3 
^,  £•  0>4 :  5  Vt.  38;  a  Scam.  as.    d-ix  Wend.  584;  L. 


it  is  without  consideration  and  void.*  If,  how- 
ever, the  vendor,  in  a  negotiation  between  the 
parties  a  few  days  before  the  sale,  offer  to  war- 
rant the  article,  the  warranty  will  be  binding* 
for  the  sale  of  a  chattel,  which  it  may  be  sup- 
posed was  intended  to  cause  the  sale,  and  was 
operative  in  causing  it,  and  will  be  regarded  as 
implying  or  as  constituting  a  warranty.  If  such 
affirmation  were  made  in  good  faith  it  is  still  a 
warranty;  and  if  made  with  a  knowledge  of 
its  falsity,  it  is  a  warranty,  and  it  is  also  a 
fraud.  It  is  certain  that  the  word  warrant 
need  not  be  used,  nor  any  other  of  precisely { 
the  same  meaning.  It  is  enough  if  the  words- 
used  import  an  undertaking  on  the  part  of  the 
owner  that  the  chattel  is  what  it  is  represented 
to  be,  or  an  equivalent  to  such  undertaking.* 
One  exception  to  the  rule  of  caveat  emptor 
springs  from  the  rule  itself.  For  a  require- 
ment that  the  purchaser  should  "  beware,"  or 
should  take  care  to  ascertain  for  himself  the 
quality  of  the  thing  he  buys,  becomes  utterly 
unreasonable  under  circumstances  which  make 
such'  care  impossible.  If,  therefore,  the  seller 
alone  possesses  the  requisite  knowledge,  or 
means  of  knowledge,  and  offers  his  goods  for 
sale  under  circumstances  which  compel  the 
purchaser  to  rely  upon  the  judgment  and  hon- 
esty of  the  seller,  without  any  examination  on 
his  own  part  as  to  the  quality  of  the  thing 
offered,  the  rule  caveat  emptor  does  not 
apply.' 

If  goods  are  sold  by  sample,  there  can  be 
no  examination  of  the  goods,  but  there  may  be 
of  the  sample.  There  is,  therefore,  an  implied 
warranty  that  the  goods  correspond  to  the 
sample.'  If  there  be  an  express  warranty,  an 
examination  of  samples  is  no  waiver  of  the 
warranty ;  nor  is  an  inquiry  or  examination  into 
the  character  or  quality  of  the  things  sold;  for 
a  man  h.os  a  right  to  protect  himself  by  such 
inquiry,  and  also  by  a  warranty. s 

If  a  thing  be  ordered  from  a  manufacturer 
for  a  special  purpose,  and  it  be  supplied  and 
sold  for  that  purpose,  there  is  an  implied  war- 
ranty that  it  is  fit  for  that  purpose."*  If  the 
thing  is  itselt  specifically  selected  and  ordered, 
the  purchaser  takes  upon  himself  the  risk  of  its 
effecting  its  purpose.  But  where  he  orders  a 
thing  for  a  special  purpose,  or  to  do  a  specifio 

Raym.  T120;  26  E.  L.  &  E.  254,  S.  C. ;  15  C.  B.  130. 
e-Cro.  J.  4 ;  3  Bibb.  35  ;  5  Johns.  354  ;  8  King.  52  ;  a 
Caines,  48  ;  4  Johns.  421  ;  20  Id.  iq6  ;  15  Mass.  320 ;  3 
Dana,  479  ;  4  Blackf.  203  ;  15  111.  345 ;  i  Bing.  344 ; 
Peake's  Cas.  123 ;  4  A.  &  E.  473 ;  2  Esp.  571 ;  4  Fos- 
ter, 271.  f-aLitt.  227;  4  Camp.  144;  17C.  13.619:5 
G.  &J.  no;  iMd.  Ch.  446;  a  Wood.  &  M.  217;  i 
Barb.  471.  X-13  Mass.  139  ;  4  Cowcn,  440  ;  6  Id.  354  : 
o  Wend.  20;  12  Id.  413;  Id.  566;  i  Denio,  386;  19 
Barb.  574 ;  i  Seld.  95 :  Id.  73  ;  3  Rawle,  37 ;  2  Nott.  & 
M'Cofd,  538:  2  Sandf.  89;  18  Wend.  434;  19  Id.  159:  8 
Pick.  250.  |f-4  H.  &  N.  412.  I1-24  Vt.  114:  5  Bingh. 
533;  8  Blackf.  317;  II  Ohio  St.  48;  8  Wis.  362  :  12  Id. 
276;  6  Taunt.  108 ;  2  Man.  &  G.  279 ;  3  Id.  868;  Addi- 
son, 150;  5  Q.  B.  288:  2  Ala.  195;  2  Watu,  367;  4 
Gilman,  69  ;  i  S.  &  Marsh.  381 :  33  Wend.  351 :  17 
Wend.  267:  S.  C.  18  Id.  449;  aChand.  28;  28  E.  L.  ft 
E.  586  S.  C;  xo  Ejcch.  342  ;  x  Wms.  237  ;  i  Ired  L 
x66. 


SALES. 


633 


work,  the"e  he  puts  UAs  risk  upon  the  person 
who  is  to  supply  the  thing.* 

No  warranty  can  be  implied  from  circum- 
stances, if  there  be  an  express  refusal  to  war- 
rant.' And  where  the  contract  of  sale  is  in 
writing,  and  contains  no  warranty,  there  parol 
evidence  is  not  admissible  to  add  a  warranty.! 
And  if  there  be  a  warranty  in  writing,  it  can- 
not be  enlarged  or  varied  by  parol  evidence.* 

The  rule  as  to  unsoundness  is,  that  if  at  the 
time  of  sale  the  animal  has  any  disease  which 
either  actually  does  diminish  the  natural  sound- 
ness of  the  animal,  so  as  to  make  him  less 
capable  of  work  of  any  description,  or  which, 
in  its  ordinary  progress,  will  diminish  the  use- 
fulness of  the  animal ;  or  if  he  has,  either  from 
disease  or  accident,  undergone  any  alteration 
of  structure  that  either  actually  does  at  the 
time,  or  in  its  ordinary  effect  will  diminish  his 
natural  usefulness,  such  animal  is  unsound.' 
So,  if  a  horse  has  at  the  time  of  sale  the  seeds 
of  disease,  which  in  its  ordinary  progress  will 
rliminish  his  natural  usefulness,  this  is  unsound- 
ness."" But  a  temporary  and  curable  injury, 
although  it  existed  at  the  time  of  sale,  if  it  does 
not  injure  the  animal  for  present  service,  is  not 
an  unsoundness."  It  seems  to  be  immaterial 
whether  the  injury  be  permanant  or  temporary, 
curable  or  incurable,  if  it  render  the  animal 
Jess  fit  ^ox present  usefulness  and  convenience." 
The  question  of  soundness  or  unsoundness  is 
particularly  for  the  jury ;  and  the  court  will  not 
set  aside  a  verdict  on  account  of  a  preponder- 
ance of  the  testimony  the  other  way.P 

Any  property  may  be  sold  "  with  all  faults." 
This  is  an  emphatic  exclusion  of  all  warranty. 
But  it  gives  the  seller  no  right  to  commit  a 
fraud,  nor  will  it  prevent  the  sale  from  being 
avoided  on  proof  of  fraud.  And  it  is  fraud  if 
the  seller  conceal  existing  faults,  and  draws  the 
attention  of  the  buyer  away  so  as  to  prevent  his 
discovering  them,  or  places  the  property  in  such 
circumstances  that  discovery  is  impossible,  or 
made  very  difficult.*! 

In  general,  there  is  no  implied  warranty 
whatever  arising  from  judicial  sales.' 

RIGHTS  AND  REMEDIES  OF 
PARTY  UPON  BREACH  OF  WAR- 
RANTY. When  warranty  has  been  broken, 
the  buyer  may  either  bring  his  action  at  once, 
founding  it  upon  the  breach  of  warranty,  with- 
out returning  the  goods;  but  his  continued  pos- 
session of  the  goods,  and  their  actual  value, 
will  be  considered  in  estimating  the  damages.* 
Or,  he  may  return  the  goods  forthwith ;  and  if 
he  does  so  without  unreasonable  delay,  this 
will  be  a  recission  of  the  sale,  and  he  may  sue 


for  the  price  if  he  has  paid  it,  or  defend  against 
an  action  for  the  price,  if  one  be  brought  by  the 
seller.  But  if  he  has  sold  a  part  before  his  dis- 
covery of  the  breach,  and  therefore  cannot  re- 
turn them,  he  may  still  rescind  the  sale,  and 
will  be  liable  for  the  market  value  of  what  he 
does  not  return.'  And  if  the  vendor  refuse  to 
receive  the  goods  back,  when  tendered,  the 
purchaser  may  .sell  them ;  and  if  he  sells 
them  for  what  they  are  reasonably  worth,  and 
within  a  reasonable  time,  he  may  recover  of 
the  vendor  the  loss  upon  the  resale,  with 
the  expense  of  keeping  the  goods  and  selling 
them." 

BTIil.  OF  8AI.E  FORMS. 
Use  Assignment  Forms,  ante. 

Bill  of  Sale— Oon<>ral  Form  with 
Warranty. 

Know  all  men  by  these  presents,  that  in  con- 
sideration of dollars,  the  receipt  of  which  is 

hereby  acknowledged,  I  do  hereby  grant,  sell, 
transfer,  and  deliver  unto  C.  D.,  his  heirs,  execu- 
tors, administrators,  and  assigns,  the  following 
goods  and  chattels,  viz.  (describing  it): 

To  have  and  to  hold  all  and  singular  the  said 
goods  and  chattels  forever.  And  the  said  grantor 
hereby  covenants  with  said  grantee  that  he  is 
the  lawful  owner  of  said  goods  and  chattels ; 
that  they  are  free  from  all  incumbrances  ;  that 
he  has  good  right  to  sell  the  same,  as  aforesaid  ; 
and  that  he  will  warrant  and  defend  the  same 
against  the  lawful  claims  and  demands  of  all 
persons  whomsoever. 

In  witness  whereof,  the  said  grantor  has  here- 
unto set  his  hand  this day  of . 

Witness —  A.  B. 

BUI  of  Sale— of  a  ITorse— with 
Warranty. 

Know  all  men  by  these  presents,  that  in  con- 
sideration of dollars  {or  other  consideration),  to 

me  paid  by  C.  D.,  the  receipt  of  which  is  hereby 
acknowledged,  I,  A.  B.,  by  these  presents  do 
bargain,  sell,  and  convey  to  the  said  C.  D.,  his 
heirs,  executors,  administrators,  and  assigns,  one 
bay  horse  (giving  the  sex,  size,  color,  age,  marks, 

and  brands),  known  as  the horse,  to  have  and 

to  hold  the  same  unto  the  said  C.  D.,  his  heirs, 
executors,  administrators,  and  assigns  forever. 

And  I,  for  myself,  my  heirs,  executors,  and  ad- 
ministrators, will  warrant  and  defend  said  horse 
unto  him  the  said  C.  D.,  his  heirs,  executors,  ad- 
ministrators, and  assigns,  against  the  lawful 
claims  and  demands  of  all  and  every  person  or 
persons  whatsoever. 

Witness  my  hand  this day  of . 

{Signed]    A.  B. 

V^itnesses — 

See  Conveyances  ;  Mortgages,  ante. 

Sample.  See  Sales. 
Sanity.  See  Medical  Law. 
Secret.  See'  Patents. 
Sedition.  See  Criminal  Law. 
Self-Defenoe.  See  Criminal  Law. 
Senility.  See  Conveyances,  "  Wills." 
Servants.  See  Agency. 
Sheriff.  See  Criminal  Law,  "Arrest." 
Ship's  IlnNhniid.  See  Agency. 
Shipping  Artiole<4.  See  Contracts. 
Si§;naturc.  See  Agency;  Contracts. 

Foster  (N.  H.)  116.  0-4  Campb.  281 ;  i  Stark.  127;  10 
Ala.  225  :  2  Esp.  673.  p-7  Taunt.  153.  q-3  Campb. 
154  ;  Peake's  Cas.  115:4  Taunt.  785  ;  3  Campb.  508  ;  a 
Stark.  561.  r-9  Wheat.  644;  19  Law  Rep.  18.  8-1  H. 
Bl.  17;  3  A.  &  E.  103  ;  2  Harr.  &  Johns.  353  ;  14  Conn. 
411;  18  Wend.  425;  8  Mo.  710;  3  Rawle.  23;  10  B. 
Mon.  250 ;  2  Strobh.  L.  242  ;  1 1  Ala.  732  ;  8  S.  &  Marsh. 
332:  8  Cow.  31;  I  Taunt.  566;  3  Stark.  32:  Hill,  625; 
2  Id.  288;  10  Barb.  211  ;  28  Conn.  343;  21  III.  180.  t-4 
Comst.  122.  «-2  A.  &  E.  179  ;  Ry.  &  M.  436;  4  Biagh. 
722;  21  Vt.  580;  17  Penn.  St.  310. 


634 


TIME. 


Silence.  See  Contracts. 
Slander.  See  Torts. 

SinHrt  Money.    See    Dahagks,   "Exemplary 
Damages." 
Sodomy.  See  Criminal  Law. 
Soninainbull!«ni.  See  Mbdicai.  Law. 
Specialty.    See  Bonds  ok  Obligations  ;  Con- 

TEYANCKS,  ETC. 

Spelling^.  See  Contracts. 

Statute.  See  Law. 

Stealing^.  See  Criminal  Law. 

Sterility.  See  Medical  Law. 

Stipulation.  See  Contracts. 

Stoppag^c  In  Transitu.  See  Sales. 

Submission.  See  Agency;  Arbitration. 

Suicide.  See  Medical  Law. 

Sunday.  See  Contracts. 

Suretyship.  See  Contracts  ;  Payment,  etc. 

Surg;</On.  See  Medical  Law. 

Swear.  See  Evidence,  "Affirmation,"  "Oaf'i." 

Tenant.  See  Landlord  and  Tenant. 

Testament.  See  Conveyances,  "  Wills." 

TIME. 

Generally  in  computing  time  one  day  is  in- 
cluded and  one  excluded  ;*  excluding  the  day 
on  which  an  act  is  done,  when  the  computa- 
tion is  to  be  made  from  such  an  act.''  Includ- 
ing it,"  except  where  the  exclusion  will  prevent 
forfeiture."*  Time  from  and  after  a  given  day 
excludes  that  day." 

In  pleading,  time  is  a  point  in  or  space  of 
duration  at  or  during  which  some  fact  is  alleged 
to  be  committed. 

In  criminal  actions  both  the  day  and  year  of 
the  commission  of  the  offence  must  appear;  but 
there  need  not  be  an  express  averment  if  they 
can  be  collected  from  the  whole  statement.'' 
The  prosecutor  may  give  evidence  of  an  offence 
committed  on  any  day  which  is  previous  to  the 
making  of  the  complaint  or  finding  of  the  infor- 
mation or  indictment  ;8  but  a  day  subsequent 
to  the  trial  cannot  be  alleged.'' 

In  personal  actions  all  traversable  affirmative 
facts  should  be  laid  as  occurring  on  some  day,* 
but  no  day  need  be  alleged  for  the  occurrence 
of  negative  matter.^  A  failure  in  this  respect 
is,  in  general,  aided  after  verdict.''  Where  the 
cause  of  action  is  a  trespass  of  a  permanent  na- 
ture or  constantly  repealed,  it  should  be  laid  as 
continuing.  The  day  need  not,  in  general,  be 
the  actual  day  of  commission  of  the  fact.'  The 
exact  time  may  become  material  and  must  then 
be  correctly  stated,""  as,  the  time  of  execution 
of  an  executory  written  document."  The  de- 
fence must  follow  the  time  laid  in  the  plaintiff's 
complaint  if  the  time  is  not  material,"  but  need 
not  when  it  becomes  material,?  or  in  pleading 
matter  of  discharge,"!  or  a  record.' 

a-2  P.  A.  Browne,  i8;  4  Monr.  464;  26  Ala.  (N.  S.) 
547  ;  see  2  Harriiig.  461  ;  5  Blackf.  319  ;  16  Ohio,  408  ; 
10  Rich.  395.  b-15  Ves.  Ch.  248;  i  Ball.  &  B.  Ch. 
196  ;  16  Cow.  659  ;  It  Mass.  204  ;  1  Pick.  485  ;  i  Met. 
(Mass.)  I27;  Anihon.  179;  3  Denio,  12;  i  Mod.  8;  27 
Ala.  311  ;  19  Mo.  60;  see  18  Conn.  18.  c-According  to 
Doiigl.  463 ;  Hob.  ng  :  3  T.  R.  623  ;  3  East.  417  ;  2  P. 
&  Browne,  18  :  15  Mass.  193;  4  Blackf.  320;  18  How. 
151.  d-Hob.  139;  2  Campb.  294;  Cowp.  714;  4  Me. 
298;  see  2  Sharsw.  Bl.  Comm.  140,  «.  3;  13  Vin.  Abr. 
5a,  499  :  15  Id.  554  ;  20  Id.  266 ;  Com.  Dig.  Temps.  ;  i 
Roper  Leg.  518  ;  Graham  Pr.  185  ;  2  Potfi.  Ob.  (Evans 
Ed.)  50.  e-ii  Pick.  48s;  7  J.  J.  Marsh.  302  ;  i  Blackf. 
392  ;  9  Cranch  104  :  4N.  H.207;  3Penn.  zoo;  i  Nott. 
&  McC.  561 ;  but  see  9  Cranch.  104.  f-Com.  Dig.  In- 
dictments (G.  2) ;  5  S.  &  R.  315.  gr-Arch.  Cr.  PI.  o<; ; 
Phill.  Ev.  203 ;  9  East.  157;    5  S.  &  R.  316.     ll- Addis. 


Generally  he  who  has  precedency  in  time 
has  the  advantage  in  right ;  not  that  time,  con- 
sidered in  itself,  can  make  such  a  difference, 
but  because  the  whole  power  over  a  thing  being 
secured  to  one  person,  bars  all  others  from  ob- 
taining a  title  to  it  afterwards." 

Date.  Written  instruments  generally  take 
effect  from  the  day  of  their  date,  but  the  actual 
date  of  their  execution  may  be  shown,  though 
different  from  that  which  the  instrument  bears. 
But  it  is  said  that  the  date  is  not  of  the  essence 
of  a  contract,  but  is  essential  to  the  identity  of 
the  writing  by  which  it  is  to  be  proved.'  And 
if  the  written  date  is  an  impossible  one,  the 
time  of  delivery  must  be  shown."  In  general 
it  is  sufficient  to  insert  the  day,  month,  and 
year ;  though  in  process  from  courts  the  hour  is 
sometimes  required  in  addition. 

See  Contracts  ;  Conveyances,  etc. 

A  Day  is  generally,  but  not  always,  regarded 
in  law  as  a  part  of  time ;  and  fractions  will  not 
be  recognized.^  By  custom  the  word  day  may 
be  understood  to  include  working  days  only,* 
and  in  a  similar  manner  only  a  certain  number 
of  hours,  then  the  number  during  which  the 
work  actually  continued  each  day ;"  as  a  business 
day,  those  hours  during  which  business  is  trans- 
acted, and  this  varies  in  different  localities. 
Also,  a  banking  day,  extending  from  9  or  10 

A.  M.,  to  3  or  4  p.  M.  A  solar  day  is  that 
portion  of  time  during  which  the  sun  is  shining 
or  which  the  features  of  a  man  can  be  reason- 
ably discerned.y  Generally,  in  legal  significa- 
tion, a  day  includes  the  time  elapsing  from  one 
midnight  to  the  succeeding  one.* 

Lapse  of  Time  often  furnishes  a  presump- 
tion, stronger  or  weaker,  according  to  the  length 
of  time  which  has  passed,  of  the  truth  of  certain 
facts,  such  as  the  legal  title  to  rights,  payment, 
of  or  release  from  debts. 

Month.  See  Bills,  Bonds  and  Notes; 
Time  of,  etc.,  p.  i66. 

Night  is  that  space  of  time  during  which 
the  sun  is  below  the  horizon  of  the  earth,  ex- 
cept that  short  space  which  precedes  its  rising 
and  follows  its  setting,  during  which,  by  its 
light,  the  countenance  of  a  man  may  be  A\s- 
covered.* 

Sunday.  The  time  within  which  an  act  is 
to  be  done  must  be  computed  by  excluding  the 
first  day  and  including  the  last ;  if  the  last  day 
be  Sunday  it  must  be  excluded.  Where  the 
year  expires  on  Sunday,  such  Sunday  is  not 

36.  I-Gould  PI.  c.  3,  ?63  :  Steph.  PI.  292  ;  Yelv.94.  J- 
Cora.  Dx?..  Pleader  (C.ig);  Pluwd.  24,rt.  K- 13  East. 
407.  l-2Saund.  5,rt  ;  Co.  Litt.  283,0;  12  Johns.  287  ;  3 
N.H.299.     m-Cowp.  671 ;  4Esp.  152;  6T.  R.  463;  lo 

B.  &  C.  215  ;  I  Cr.  &  J.  391  ;  4  S.  &  R.  S76 ;  7  Id.  40s  : 

1  Story  C.  C.  528.  n-Gould  PI.  c.  3.  ?  67.  o-i  Chitty 
PI.  509;  1  Saund.  14,  82.     p-2  Saund.  5,  a,  ^(«.  3).     «|- 

2  Burr.  944:  2  Wils.  150;  Plowd.  46;  2  Str.  944.  r- 
GouldPl.  c.  3,?83.  s-i  Fonbl.  F.q.  320.  t-2  Greenl.  Ev. 
??  12,  13,  480,  n.  ;  8  Mass.  i^q;  4  Cush  403  ;  1  Johns. 
Cas.  91  ;  3  Wend.  233  ;  31  Me.  243;  17  Eng.  L.  &  F.q. 
548;  2  Greenl.  Cruise  Dig.  618,  n.  u-Shepp.  Touchst. 
72;  Cruise  Dig.  Ch.  2,  g  6i.  v-15  Vcs.  Ch.  257;  4 
Campb.  397;  11  Conn.  17.  w-3  Esp.  121.  x-5  HtU 
N.  Y.  437.  y-Co.  3d.  Inst.  63.  iB-2  Bl.  Coinm.  141. 
a-i  Hale  PI.  Cr.  550;  4  Bl.  Comm.  224.  Cac.  Abr 
Burgl.  (D) ;  a  Russ.  Cr.  32 ;  Roscoe  Cr.  £v.  378. 


TIME— TORTS. 


635 


excluded  from  the  computation  of  the  thirty 
days  preceding  the  expiration  of  the  year.*" 

The  Week  commences  immediately  after 
twelve  o'clock  on  the  night  between  Saturday 
and  Sunday,  and  ends  at  twelve  o'clock  seven 
days  of  twenty-four  hours  each  thereafter.  The 
first  day  of  the  week  is  called  Sunday;  the 
second,  Monday,  etc." 

The  Year.  The  civil  year  differs  from  the 
astronomical,  the  latter  being  composed  of 
three  hundred  and  sixty-five  days,  five  hours, 
ijrty-eight  seconds  and  a  fraction,  while  the 
former  consists  sometimes  of  three  hundred 
and  sixty-five  days,  and  at  others  (leap  years) 
of  three  hundred  and  sixty-six  days. 

The  year  is  divided  into  half  year,  which 
consists'*  of  one  hundred  and  eighty-two  days; 
and  quarter  of  a  year,  which  consists  of  ninety- 
one  days.*  It  is  further  divided  into  twelve 
months. 

The  civil  year  commences  immediately  after 
twelve  o'clock  at  night  of  the  thirty-first  day 
of  December,  that  is,  the  first  moment  of  the 
first  day  of  January,  and  ends  at  midnight  of 
the  thirty-first  day  of  December  twelve  months 
thereafter.' 

Title.  See  Conveyances. 

Title  DeCKls.  See  Conveyances. 

TORTS  OR  WRONGS.  See  Contracts. 
A  Tort  is  a  private  or  civil  wrong  or  injury. 
A  wrong  independent  of  contract.*  The  com- 
mission or  omission  of  an  act  by  one  without 
right  whereby  another  receives  some  injury, 
directly  or  indirectly,  in  person,  property,  or 
reputation. 

Distinguished  from  Agreements  or 
Contracts.  As  recognized  by  the  law  for  the 
enforcement  of  rights  and  redress  of  injuries, 
torts  may  be  distinguished  from  contracts  or 
agreements  by  these  qualities :  That  parties 
jointly  committing  torts  are  severably  liable 
without  right  of  contribution  from  each  other; 
that  the  death  of  either  party  destroys  the  right 
of  action ;  that  persons  under  personal  disabili- 
ties to  contract  are  liable  for  their  torts;  that 
attachment,  arrest,  and  imprisonment  are  al- 
lowed on  claims  arising  under  contracts.**  A 
tort,  however,  may  grow  out  of,  or  make  part 
of,  or  be  coincident  with,  a  contract,  as  in  the 
familiar  case  of  a  fraudulent  sale,  or  fraudulent 
recommendation  of  a  third  person ;  the  wrong 
of  fraud  almost  necessarily  implies  an  accom- 
panying contract.  In  these  cases  the  law  often 
allows  the  party  injured  an  election  of  re- 
medies; that  is,  he  may  proceed  agamst  the 
other  party  either  as  a  debtor  or  contractor,  or 

b-7  Ohio  St.  198.  C-See  4  Pet.  ^61 .  d-Co.  Litt.  135,  h. 
e-Id.  2  Rolls.  Abr.  521,  i.  40.  l-SeeComm.  Dig.  Annus : 
2  Chitty  Bl.  Comm.  i40».;  Chitty  Pr.  Index  Time,  a-i 
HiUiard  Torts,  i.  b-Id.  3.  c-io  Id.  28;  10  C.  B. 
83;  24  Conn.  502.  <l-i  Chitty  PI.  83;  10  Mass.  435  ;  i 
firay,  509 ;  2  Greenl.  Ev.  §  108.  e-i  Bos.  &  P.  191  ;  3 
Sh.irsw.  Bl.  Comm.  122.  A  private  tort  is  not  merged 
in  a  felony;  1  Gray,  83;  6  N.  H.  454;  2  Root,  90;  i 
Miles,  312;  I  Coxe,  113  ;  16  Miss.  77 ;  3  Bland,  114;  6 
Rand,  223;  Hawks.  251;  4  Ohio,  376;  15  Ga.  349;  6 
Humph.  433  ;  6  B.  Mon.  38  ;  22  Wend.  285,  n.  ;  1  Hil- 
.iard  Torts,  71,  et  seq.  :  see  22  Ala.  (N.  S.)  613  ;  i  Bishop 
£r.  L.  329.     f-23  Wend.  422 ;  i  Ga.  381 ;  4  ^icLean  C. 


as  a  wrong-doer."  Where  personal  property 
has  been  tortuously  taken  and  turned  into 
money  or  money's  worth,  the  party  injured 
may  proceed  upon  the  supposition  of  a  contract 
implied  by  law  in  his  favor.  In  such  cases  he 
is  said  to  waive  the  tort.^ 

Distinguished  from  Crimes.  The  same 
act  may  constitute  a  public  wrong  (crime),  and 
a  private  wrong  (tort),  and,  either  at  the  same 
time  or  at  different  times,  be  the  subject  of  a 
criminal  prosecution  and  a  private  action  for 
damages." 

In  reference  to  the  nature  of  the  act,  manual 
taking,  interference,  or  removal  is  not  neces- 
sary to  constitute  a  tort.  Any  act  of  a  party 
who  has  come  rightfully  into  the  possession  of 
property  in  excess  of  or  contrary  to  his  author- 
ity over  it,  and  which  negatives  or  is  incon- 
sistent with  the  rights  of  the  owner,  constitutes 
a  tort.' 

ACTIONS  FOR. 

The  liability  to  make  reparation  for  an  in- 
jury rests  upon  an  original  moral  duty.s  And 
an  action  on  the  case  lies,  in  general,  where 
one  may  sustain  an  injury  by  the  misconduct 
or  negligence  of  another  for  which  the  law  has 
provided  no  other  adequate  remedy.''  But 
to  justify  an  action  there  must  be  a  loss  as  well 
as  a  wrong.'  But  in  a  variety  of  cases,  a 
wrong  being  proved,  consequent  damage  will 
be  presumed.* 

In  order  to  maintain  an  action  the  relation 
of  cause  and  effect  must  be  shown  between  the 
act  and  the  injury ,J  and  the  damage  must  not 
be  remote  or  indirect,^  although  every  person 
who  does  a  wrong  is  responsible  for  all  the 
mischievous  consequences  that  may  reasonably 
be  expected  under  ordinary  circumstances  from 
such  misconduct.*  In  general,  courts  can  en- 
force only  local  obligations  and  redress  injuries 
to  local  rights.™  Hence  the  legality  or  illegal- 
ity of  any  act  may  sometimes  determine  whe- 
ther it  is  to  be  viewed  as  a  tort.  In  general, 
if  a  party  in  the  exercise  of  a  legal  right,  more 
especially  if  conferred  by  express  statute,  does 
an  injury  to  another's  property,  he  is  not  liable 
for  damages,  unless  caused  by  the  want  of  or- 
dinary care  and  skill." 

In  general,  no  right  of  action  can  arise  from 
an  illegal  transaction."  But  the  rule  does  not 
interfere  with  the  right  of  property  even  in 
articles  the  sale  of  which  is  forbidden  by  law.P 
A  party  may  be  debarred  from  an  action  by  a 
license,  by  estoppel,  or  by  a  waiver.i 

In  general,  a  party  injured  cannot  maintain 

C.  378:  2  Harring.  71 :  8  Pick.  543 ;  15  M.  &  W.  448. 
Jf-3  Ohio  St.  172.  h-2o  Vt.  151.  \-Damnutn  absque 
injuria  and  injuria  absque  dainno  ("a  loss  without  an 
injury,"  and  vice  versa)  are  alike  regarded  as  beyond 
the  reach  of  legal  redress.  Xi  Hilliard  Torts,  82;  36 
Me.  32J ;  Broom  Comm.  76:  16  Pick.  64;  i  Gray,  186: 
2  Ld.  Raym.  948.  j-12  Barb.  657.  It-ii  Met.  (Mass.) 
290.  I-5  Exch.  243  :  see  2  Greenl.  Ev.  (*  224  :  i  Chitty 
PI.  115-120;  17  III.  580.  iin-i2  La  An  255.  n-24  Miss. 
91;  2  Stock.  352;  see  i  Str.  634.  o-ii  Cush.  322;  w 
Met.  (Mass.)  363;  12  Id.  24;  2  Conn.  13,  501  ;  9  J.  B. 
Moore,  586.  p-i  Gray,  i ;  20  N.  H.  181.  q-8  Met. 
(Mass.)  34;  7  Bingh.  682;  10  Ad.  &  El.  90,  18  Barb 
599;  7  Watts.  337;  19  Ala.  (N.  S.)  252. 


636 


TORTS. 


an  action  for  the  injury  if  caused  in  any  degree 
by  his  own  neglect  or  wrong.'  Various  and 
nice  distinctions,  however,  are  made  upon  this 
general  subject,  involving  the  degree  of  neglect 
or  wrong  on  the  part  of  the  plaintiff,  which 
will  debar  him  from  maintaining  an  action,  and 
its  nature,  as  being  proximate  or  only  the  re- 
mote cause  of  the  injury.'  But  the  whole 
question  is  in  general  for  the  jury.* 

COMMISSION  OF  AND  LIABIL- 
ITY FOR  TORTS. 

A  wrongful  or  malicious  intent  is  an  essen- 
tial element  in  many  torts,  as,  for  example,  as- 
sault, fraud,  slander,  and  malicious  prosecution. 
In  general  a  prominent  distinction  between 
torts  and  crimes  is  that  in  the  former  the  party's 
intent  is  immaterial,  while  in  a  prosecution  for 
the  latter  a  criminal  purpose  must  always  be 
alleged  and  proved.  On  the  other  hand,  an 
act  which  does  not  amount  to  a  legal  injury 
and  violates  no  legal  right,  is  not  actionable 
because  done  with  a  bad  intention." 

A  tort  may  consist  in  the  violation  of  a  stat- 
ute,^ or  the  abuse  of  a  privilege  given  by 
statute.''  And,  in  general,  though  a  party's 
original  act  or  conduct  may  have  been  right 
and  lawful,  there  may  be  such  an  abuse  of  the 
powers  and  privileges  which  the  law  confers 
upon  him  as  will  render  him  liable  to  an  action 
. — as  for  a  trespass,  in  the  first  instance — or 
make  him  a  trespasser  ab  initio.'^  Acts  lawful 
and  innocent  in  themselves  may  also  become 
wrongful  when  done  without  just  regard  for  the 
rights  of  others,  and  without  suitable  reference 
to  the  time,  place,  or  manner  of  performing 
them.y  But  an  action  cannot  be  maintained 
for  annoyance  received  from  acts  done  on  land 
adjoining  the  plaintiff's,  which  the  proprietor 
might  lawfully  do  in  exercise  of  his  dominion 
over  his  own.* 

The  most  comprehensive  and  various  class 
of  torts  consists  of  wrongs  to  property.  In 
general,  possession  alone  is  sufficient  to  main- 
tain an  action  for  tort;  while  property  alone  is 
not  sufficient  without  possession,  or  the  right 
of  possession.*  Even  a  wrongful  pxDSsessor 
may  maintain  an  action  against  a  third  person 
in  the  title;  and  the  title  of  a  third  person,  un- 
less the  defendant  claims  under  him,  is  no  de- 
fence.*"  But  where  no  one  is  in  actual  pv)sses- 
sion,  the  title  is  sufficient  constructive  possession 
to  maintain  an  action  ;  more  especially  posses- 
sion of  a  part  gives  constructive  possession  of  the 
whole."  And  title  is  generally  a  good  defence 
to  an  action  founded  upon  mere  possession.* 

DEFENCE.  "With  respect  to  the  defence 
of  one's  self,  wife,  children,  servants,  etc.,  from 
torts,  etc.  See  Criminal  Law,  "  Self-de- 
fence."    With  respect  to  the  defence  or  pro- 

r-i  Hniiard  Torts,  <-.  4:  6  Hill  rN.  Y.')  592;  9  Md. 
160;  19  Conn.  507;  4  Zabr.  824;  35  Me.  422  ;  3  C.  B.  i. 
B-16  Penn  St.  463;  5  Duer,  21:  12  C.  B.  742;  16  Id. 
179;  2Taunt.  3T4;  iiCush.  364;  3M.  &W.  248;  6 
Ind.  82  ;  I  Denio,  91.  t-19  Conn.  566;  28  Eng.  L.  & 
Eq.  4S  ;  30  Id.  473 ;  3  Man.  &  G.  59 ;  12  Ad.  &  EI.  4.'?9  ; 
.....  g^.  28  vt. 

-2  Grecnl. 


16  III.  277  :  7  Met.  (Mass. )  274.  n-13  C.  B.  285 ;  28  Vt. 
49.  ^-2  Ld.  Raym.  953.  w-io  III.  425.  x-2  Grecnl. 
Kv.  2^15;  8  Co.  14s;  II  Barb.  390.     y-4  Const,  no. 


tection  of  one's  personal  property  a  man  may 
repel  force  by  force  in  its  defence,  and  even 
justify  homicide  against  one  who  manifestly  in- 
tends or  endeavors,  by  violence  or  surprise,  to 
commit  a  known  felony,  as  robbery.  With 
respect  to  the  defence  or  protection  of  real 
property,  although  it  is  justifiable  to  even  kill  a 
person  in  the  act  of  attempting  to  commit  a 
forcible  felony,  as  burglary  or  arson ;  yet  this 
justification  can  only  take  place  when  the  party 
in  possession  is  wholly  without  fault."  And 
when  an  illegal  forcible  attack  is  made  upon  a 
dwelling-house,  with  the  intention  merely  of 
committing  a  trespass,  and  not  with  any  feloni- 
ous intent,  it  is  generally  lawful  for  the  rightful 
occupant  to  oppose  it  with  force.'  See  De- 
tainer, above,  and  Trespass,  below. 

Harboring.     See  Apprenticeship. 

INJURIES  arise  in  three  ways:  i.  By 
nonfeasance,  or  the  not  doing  what  was  a  legal 
obligation,  or  duty,  or  contract,  to  perform.  2. 
Misfeasance,  or  the  performance  in  an  improper 
manner  of  an  act  which  it  was  either  the 
party's  duty  or  his  contract  to  perform.  3. 
Malfeasance,  or  the  unjust  performance  of  some 
act  which  the  party  had  no  right,  or  which  he 
had  contracted  not  to  do. 

The  remedies  are  different  as  the  injury 
affects  private  individuals  or  the  public.  When 
the  injuries  affect  a  private  right  and  a  private 
individual,  although  often  also  affecting  the 
public,  there  are  three  descriptions  of  remedies. 
I.  The  preventive,  such  as  defence,  resistance, 
recaption,  abatement  of  nuisance,  surety  of  the 
peace,  injunction,  etc.  2.  Remedies  for  com- 
pensation, which  may  be  by  arbitration,  suit, 
action,  or  summary  proceedings  before  a  justice 
of  the  peace.  3.  Proceedings  for  punishment, 
as  by  indictment,  or  complaint,  and  prosecution 
before  a  justice  of  the  peace.  When  the  in- 
jury is  such  as  to  affect  the  public  it  becomes  a 
crime  or  misdemeanor,  and  the  party  may  be 
punished  by  indictment  or  conviction  for  the 
public  injury  or  offence,  and  by  civil  action,  at 
the  suit  of  the  party,  for  the  private  wrong. 
But  in  cases  of  felony,  the  remedy  by  action 
for  the  private  injury  is  generally  suspended, 
until  the  party  particularly  injured  has  fulfilled 
his  duty  to  the  public  by  prosecuting  the  offender 
for  the  public  crime ;  and  in  cases  of  felony 
the  remedy  is  merged  in  the  felony.* 

There  are  many  injuries  for  which  the  law 
affords  no  remedy.  In  general,  it  interferes 
only  where  there  has  been  a  visible  physical 
injury  inflicted,  while  it  leaves  almost  wholly 
unprotected  the  whole  class  of  the  most  malig- 
nant mental  injuries  and  sufferings,  unless  in  a 
few  cases  where  by  a  fiction  it  supposes  some 

«-5  Rich.  583.  «-r  Dutch,  443  ;  22  N.  H.  468;  15  Vt. 
119  ;  15  Mo.  403;  6  Nev.  &  M.  422.  b-22  N.  H.  468  : 
30  Me.  451;  1  Str.  505;  II  Johns.  529;  16  Mass.  125;  8 
Blackf,  175  ;  25  Me.  453;  9  Gill.  7.  C-i  Hill  (N.  Y.) 
312  ;  6  Dowl.  &  R.  572  ;  s  Md.  540 :  14  Wend.  239.  d- 
8  Humph.  412;  18  Ga.  539;  5  Met.  (Mass.)  509;  3 
Zabr.  155.  e-i  Hale  PI.  Cr.  440,  444  ;  1  East.  PI.  Cr. 
259,  277.  f-7  Bingh.  305  ;  20  Eng.  C.  L.  139  ;  .<!r<  Chitty 
Pr.  589;  Gratiiis  Lib.  2,  Ch.  i  ;  Rutherford  Inst.  B.  i. 
Ch.  16.    §p-i  Chitty  Pr.  10;  Ayli£fe  Pand.  592. 


TORTS. 


637 


J^uniary  loss,  and  sometimes  affords  compen- 
sation to  wounded  feelings.  A  parent,  for 
example,  cannot  sue  in  that  character  for  an 
injury  inflicted  on  his  child,  and  when  his  own 
domestic  happiness  has  been  destroyed,  unless 
the  fact  will  sustain  the  allegation  that  the 
daughter  was  the  servant  of  her  father,  and 
that  by  reason  of  such  seduction  he  has  lost 
the  benefit  of  her  services.  Again,  a  party 
cannot  recover  damages  for  verbal  slander  in 
many  cases,  as,  where  the  facts  published  are 
true;  for  the  defendant  would  justify  their 
utterance  by  their  truth,  and  the  party  injured 
must  fail,  nor  will  the  law  punish  criminally  the 
author  of  a  verbal  slander,  imputing  even  the 
most  infamous  crimes,  unless  done  with  the  in- 
tent to  extort  a  chattel,  money,  or  valuable 
thing.  The  law  presumes  that  a  man  is  in- 
capable of  being  alarmed  or  affected  by  such 
injuries  to  his  feelings. •»  The  true  and  sufficient 
reasons  for  these  rules  are,  the  uncertain  char- 
acter of  the  injury  inflicted,  the  impossibility 
and  the  danger  supposing  a  pecuniary  compen- 
sation to  be  attempted,  that  injustice  would  be 
done  under  the  excitement  of  the  case,  hence 
the  sound  principle  of  the  law,  confirmed  by 
experience,  to  inflict  a  punishment  for  crime; 
but  not  sell,  through  the  agency  of  its  courts, 
those  wounded  feelings  which  would  constitute 
the  grounds  of  such  actions.  See  LiBEL; 
Slander,  below. 

LIBELf  is  any  matter,  written  or  printed, 
and  published,  and  calculated  to  injure-  the 
character  of  another  by  bringing  him  into  ridi- 
cule, hatred,  or  contempt.'  Everything  written 
or  printed,  which  reflects  upon  the  character 
of  another,  and  is  published  without  lawful 
justification  or  excuse,  is  a  libel,  whatever  the 
intention  may  have  been. J  A  malicious  defa- 
mation, expressed  either  in  printing  or  writing, 
lending  either  to  blacken  the  memory  of  one 
who  is  dead,  or  the  reputation  of  one  who  is 
.ilive,  and  expose  him  to  public  hatred,  con- 
t  ^mpt,  or  ridicule,  is  libel.*  A  censorious  or 
ri  'iculous  writing,  picture,  or  sign  made  with 
a  malicious  or  mischievous  intent  towards  gov- 
ernment, magistrates,  or  individuals,  is  libel.' 
Tliere  is  a  great  and  well-settled  distinction 
between  verbal  and  written  slander;  and  this 
not  only  in  reference  to  the  consequences,  as 
subjecting  the  party  to  an  indictment,  but  also 
as  to  the  character  of  the  accusations  or  im- 
^'utations  essential  to  sustain  a  civil  action  to 
I  cover  damages.  To  write  and  publish  mali- 
ciously anything  of  another  which  either  makes 
him  ridiculous,  or  holds  him  out  as  a  dishonest 
man,  is  held  to  be  actionable,  or  punishable 
criminally,  when  speaking  the  same  words 
would  not  be  so.*  The  reduction  of  the  slan- 
derous matter  to  writing  or  printing  is  the  most 

h-See  1  Chitty  Med.  Jur.  320.  I-Parke  J.  15  M.  & 
W.  344.  J-TS  M.  &  W.  437.  fc-i  Hawk.  PI.  Cr.  B.  i 
Ch.  73,  ?  V  4  Mas.s.  i63;  2  Pick.  115;  9  Johns.  214;  i 
Denio,  347;  S4  Wend.  434;  9  B.  &  C.  172;  4  M.  &  R. 
127;  3  Kent  Coram.  13.  I-3  Johns.  Cas.  354;  g  Johns. 
sis;  5  Binn.  340.  x-i  Saund.  (6  Ed.)  247  a;  4  Taunt. 
355:  5  Binn.  219;  Hurd.  Lib.  &  S.  J  74;   6  Cush.  75. 


usual  mode  of  conveying  it.  The  exhibition 
of  a  picture  intimating  that  which  in  print  would 
be  libellous  is  equally  criminal.'"  Fixing  a  gal- 
lows at  a  man's  door,  burning  him  in  effigy,  or 
exhibiting  him  in  any  ignominious  manner,  is 
a  libel."  The  above  is  a  general  description  of 
libel,  a  branch  of  the  law  which  is  one  of  the 
most  difficult  to  compress  into  a  small  com- 
pass. 

Any  publication  which  has  a  tendency  to 
disturb  the  public  peace,  or  good  order  of 
society,  is  indictable  as  a  libel.  This  crime  is 
committed  by  the  publication  of  writings  blas- 
pheming the  Supreme  Being,  or  turning  the 
doctrines  of  the  Christian  religion  into  con- 
tempt and  ridicule;  or  tending,  by  their  im- 
modesty, to  corrupt  the  mind,  and  to  destroy 
the  tone  of  decency,  morality,  and  good  order; 
or  wantonly  to  defame  or  indecorously  to  ca- 
lumniate the  economy,  order,  and  constitution 
of  things  which  make  up  the  general  system 
of  the  law  and  government  of  the  country;  to 
degrade  the  administration  ofgovernment,  orof 
justice ;  or  to  cause  animosities  between  our  own 
and  any  foreign  government,  by  personal  abuse 
of  its  sovereign,  its  ambassadors,  and  other 
public  ministers;  and  by  malicious  defamation, 
expressed  in  printing  or  writing,  or  by  signs  or 
pictures,  tending  either  to  blacken  the  memory 
of  one  who  is  dead,  or  the  reputation  of  one 
who  is  living,  and  thereby  to  expose  him  to 
public  hatred,  contempt,  and  ridicule.  This 
descriptive  catalogue  embraces  all  the  several 
species  of  this  offence  which  are  indictal)le  at 
common  law;  all  of  which  are  indictable 
either  at  common  law  or  by  virtue  of  particulat 
statutes."  Libels  against  the  memory  of  the 
dead,  which  have  a  tendency  to  create  a  breach 
of  the  peace,  by  inciting  the  friends  and  rela- 
tives of  the  deceased  to  avenge  the  insult  of 
the  family,  render  their  authors  liable  to  indict- 
ment. The  malicious  intention  of  the  defend- 
ant to  injure  the  family  of  the  deceased  must  be 
expressly  avowed  and  clearly  proved. p  If  the 
matter  is  understood  as  scandalous,  and  is  cal- 
culated to  excite  ridicule  or  abhorrence  against 
the  party  intended,  it  is  libellous,  however  it 
may  be  expressed.'  The  publisher  of  a  libel 
is  liable  to  be  punished  criminally  by  indict- 
ment,' or  is  subject  to  a  civil  action  for  dam- 
ages by  the  party  aggrieved.  Both  remedies 
may  be  pursued  at  the  same  time.* 

Malice.     See  Slander,  below. 

Nuisance.     See  that  title,  ante. 

Piracy.     See  Copyrights;  Patents. 

SLANDER  is  any  words,  spoken  or  written, 
which  are  injurious  to  the  character  of  another. 
The  ground  of  all  liability  to  an  action  for 
words  spoken  or  written  consists  in  the  injury 


in-2  Campb.  512  ;  5  Co.  125  ;  2  S.  &  R.  91.  n-IIawk. 
PI.  Cr.  B.  I  Ch.  73,  ?  2  ;  11  East.  227.  0-3  Greenl.  Er. 
\  164;  see  4  Mass.  163;  9  Johns.  214;  4  M'Cord,  317; 

?N.  H.  34.  p-5  Co.  125 ;  4  T.  R.  126.  129,  n. ;  $ 
Unn.  281 ;  Heard.  Lib.  &  S.  72,  383.  q-5  East.  463;  i 
Price  Exch.  11-17;  Hob.  215;  Chitty  Cr.  L.  868 ;  a 
Campb.  512.  r-2  Chitty  Cr.  L.  875.  B-See  3  BishoB 
Cr.  L. ;  Heard.  Lib.  &  S. 


638 


TORTS. 


to  character ;  and  an  action  may  be  maintained 
in  the  following  cases:  To  be  actionable  in 
themselves,  the  words  when  only  spoken  (not 
written)  must  be  such  as  in  their  plain  and 
popular  sense  convey  to  the  minds  of  the 
hearers  a  charge  of  some  offence  for  which 
the  plaintiff  is  amenable  to  the  law,  or  of  hav- 
ing some  disease  which  will  exclude  him  from 
society.  Words  which  are  not  actionable  in 
themselves  become  so  when  they  are  spoken  of 
a  person  in  his  profession,  office,  or  trade,  and 
necessarily  or  naturally  tend  to  injure  him 
therein.  And  any  words  defamatory  or  injuri- 
ous in  their  nature,  spoken  of  another,  without 
legal  justification,  are  actionable,  if  productive 
of  special  damage  flowing  naturally  from  slan- 
der. The  term  "libel"  is  applied  to  written 
or  printed  slander.* 

In  verbal  slander.  Actionable  words  are  of 
two  descriptions :  first,  those  actionable  in 
themselves,  without  proof  of  special  damages; 
and,  secondly,  those  actionable  only  in  respect 
of  some  actual  consequential  damages. 

Words  of  the  first  description  must  impute  : 

1.  The  guilt  of  some  offence  for  which  the 
party,  if  guilty,  might  be  indicted  and  punished 
by  the  criminal  courts :  as,  to  call  a  person  a 
"  traitor,"  "  thief,"  "  highwayman,"  or  to  say 
that  he  is  guilty  of  "  perjury,"  "  forgery," 
"  murder,"  and  the  like.  And  although  the 
imputation  of  guilt  be  general,  without  stating 
the  particulars  of  the  pretended  crime,  it  is 
actionable."  An  action  will  lie  for  all  wo.ds 
spoken  of  another  which  impute  to  him  the 
commission  of  a  crime  involving  moral  turpi- 
tude and  which  is  punishable  by  law.^ 

2.  That  the  party  has  a  disease  or  distemper 
which  renders  him  unfit  for  society.^  An  ac- 
tion can,  therefore,  be  sustained  for  calling  a 
man  a  leper.*  Imputations  of  having  at  the 
present  time  the  venereal  disease  or  tiie  gonor- 
rhoea are  actionable  in  themselves.'  But  charg- 
ing -nother  with  having  had  a  contagious 
disease  is  not  actionable,  as  he  will  not  on  that 
account  be  excluded  from  society.* 

3.  Unfitness  in  an  officer,  who  holds  an  office 
to  which  profit  or  emolument  is  attached,  either 
in  respect  of  morals  or  inability  to  discharge  the 
duties  of  the  office :  in  such  a  case  an  action 
lies." 

4.  The  want  of  integrity  or  capacity,  whether 
mental  or  pecuniary,  in  the  conduct  of  a  pro- 
fession, trade,  or  business,  in  which  the  party 
is  engaged,  is  actionable  -^  as,  to  accuse  an 
attorney  or  artist  of  inability,  inattention,  or 
want  of  integrity,'  or  a  clergyman  of  being  a 
drunkard,*   is   actionable.      It  is   one   of  the 

t-Heard.  Libel  &  Slander,  8.  n-Croke  Jac.  114,  142  ; 
6  Term.  674;  3  Wils.  186;  2  Ventr.  266;  5  Bos.  &  P. 
335.  v-Heard,  Libel  &  S.  §  24  ;  see  3  Serg.  &  R.  Penn. 
255;  7  Id.  4SI  ;  10  Id.  44:  8  Mass.  248;  13  Johns.  N. 
y.  114,  275;  Starkie,  Slander,  13-42.  w-nacon  Abr. 
Slandrr  (B  2).  x-Croke  Jac.  J44  ;  Starkie  Slander,  67. 
y-8  C.  B.  N.  S.  9;  7  Gray,  Mass.  181  ;  22  Barb.  N.  Y. 
396 ;  2  Ind.  82 ;  2  Ga.  57.  «-2  Term.  473,  474 :  2 
Strange,  J189;  I  aeon  Abr.  Slander  (B  2'^.  »-i  Salk. 
695,  ^8 ;  Rolle  Abr.  65  ;  2  Esp.  500;  4  Coke,  16  a.  ;  5 
Id.  125:  X  Strange,  617;  3  Ld.  Raym.  1169:  Biiller^ 
Kisi  P.  4 ;  Starkie  Slander,  100.     b-i  Mai.  £ntr.  234^ 


general  rules  governing  the  aciii  n  kn  words 
spoken,  that  words  are  actioi  able,  when  spoken 
of  one  in  an  office  of  profit,  which  have  a  natu- 
ral tendency  to  occasion  the  loss  of  his  office, 
or  when  spoken  of  persons  touching  their 
respective  professions,  trades,  and  business,  and 
which  have  a  natural  tendency  to  their  damage. 
The  ground  of  action  in  these  cases  is  that  the 
party  is  disgraced  or  injured  in  his  profession 
or  trade,  or  exposed  to  the  hazard  of  losing  his. 
office,  in  consequence  of  the  slanderous  words; 
not  that  his  general  reputation  and  standing  in 
the  community  are  affected  by  them.  It  will 
be  recollected  that  the  words  spoken,  in  this 
cla.ss  of  cases,  are  not  actionable  of  themselves, 
but  that  they  become  so  in  consequence  of  the 
special  character  of  the  party  of  whom  they 
were  spoken.  The  fact  of  his  maintaining  that 
special  character,  therefore,  lies  at  the  very 
foundation  of  the  action." 

Of  the  second  class  are  words  which  are 
actionable  only  in  respect  of  special  damages 
sustained  by  the  party  slandered.  Though  the 
law  will  not  permit  in  these  cases  the  inference 
of  damage,  yet  when  the  damage  has  actually 
been  sustained,  the  party  aggrieved  may  support 
an  action  for  the  publication  of  an  untruth;* 
unless  the  assertion  be  made  for  the  assertion 
of  a  supposed  claim  ;8  but  it  lies  if  maliciously 
spoken.  In  this  case  special  damage  is  the 
gist  of  the  action,  and  must  be  particularly 
specified  in  the  declaration.  For  it  is  an  estab- 
lished rule  that  no  evidence  shall  be  received 
of  any  loss  or  injury  which  the  plaintiff  had 
sustained  by  the  speaking  of  the  words,  unless 
it  be  specially  stated  in  the  declaration.  And 
this  rule  applies  equally  where  the  special 
damage  is  the  gist  of  the  action  and  where  the 
words  are  in  themselves  actionable.'' 

The  charge  must  be  false}  The  falsity  of 
the  accusation  is  to  be  implied  till  the  contrary 
is  shown.J  The  instance  of  a  master  making 
an  unfavorable  representation  of  his  servant, 
upon  an  application  for  his  character,  seems  to 
be  an  exception,  in  that  case  there  being  a 
presumption,  from  the  occasion  of  the  speaking, 
that  the  words  were  true.'' 

The  slander  must,  of  course,  be  published, 
— that  is,  communicated  to  a  third  person, — 
and,  if  verbal,  then  in  a  language  which  he 
understands;  otherwise  the  plaintiff's  reputa- 
tion is  not  impaired.'  A  letter  addressed  to 
the  party,  containing  libellous  matter,  is  not 
sufficient  to  maintain  a  civil  action,  though  it 
may  subject  the  libeller  to  an  indictment,  as 
tending  to  a  breach  of  the  peace."    The  slander 

r-3  Wils.  187;  2  W.  Blackst.  750.  d-i  Binn.  Penn. 
178.  e-Heard  Libel  &  S.  (:§  41,45.  f-t  Lev.  53;  i  bid. 
79,80;  3  Wood,  210;  2  Leon.  111.  g-Comyns  Dig. 
Action  upon  ike  Cast  /or  Defamation  {Ji  ■^o);  Bacon 
Abr.  Slander  (B).  h-Heard  Libel  &  S.  j>  51  ;  see  i 
Rolle  Abr.  36  ;  i  Saund.  243  ;  Bacon  Abr.  Slander  (C); 
8  Term.  130;  8  East,  i;  Starkie  Slander,  157.  J-5 
Coke,  125,  126;  Hob.  253.  j-2  East.  4^6;  1  Saund. 
242.  li-i  Term,  iii  ;  3  Bos.  &  P.  587;  Starkie  Sland. 
44,  175,  223.  l-i  Rolle  Abr.  74 ;  Croke  Eliz.  857 ;  i 
Saund.  242,  n.  3;  Bacon  Kbr.  Slander  (D  3).  m-3 
Blackst.  Comm.  1038;  t  Term.  110;  i  Saund.  X32,  n.  2; 
2  Ksp.  623 ;  4  Id.  117;  3  Ease  361, 


TORTS. 


630 


must  be  published  respecting  the  plaintiff.  A 
mother  cannot  maintain  an  action  for  calling 
her  daughter  a  bastard."  In  an  action  for 
slander,  whether  oral  or  written,  it  will  afford 
no  justification  that  the  defamatory  matter  has 
been  previously  published  by  a  third  person, 
that  the  defendant  at  the  time  of  his  publication 
disclosed  the  name  of  that  third  person  and 
believed  all  the  statements  to  be  true.P  And  a 
repetition  of  oml  slander  already  in  circulation, 
without  expressing  any  disbelief  of  it,  or  any 
purpose  of  inquiring  as  to  its  truth,  though 
without  any  design  to  extend  its  circulation  or 
credit,  or  to  cause  the  person  to  whom  it  is 
addressed  to  believe  or  suspect  it  to  be  true,  is 
actionable."! 

The  words  must  be  tittered  without  legal  occa- 
tiffi,  to  render  them  actionable.  On  some 
occasions  it  is  justifiable  to  utter  slander  of 
another;  in  others  it  is  excusable,  provided  it 
be  uttered  without  express  malice.''  It  is  justi- 
fiable for  an  attorney  to  use  scandalous  expres- 
sions in  support  of  his  client's  cause  and  perti- 
nent thereto."  Members  of  Congress  and  other 
Itjgislative  assemblies  cannot  be  called  to  account 
for  anything  said  in  debate. 

Malice  is  essential  to  the  support  of  an  action 
for  slanderous  words.  But  malice  is,  in  general, 
to  be  presumed  until  the  contrary  be  proved,' 
except  in  those  cases  where  the  occasion  pri?na 
facie  excuses  the  publication." 

SLANDER  OF  TITLE,  or  statements 
tending  to  cut  down  the  extent  of  title,  if 
malicious,  injurious,  and  false,  is  actionable. 
The  malice  need  not  be  in  its  worse  sense,  but 
with  intent  to  injure  the  plaintiff.  If  the  state- 
ment be  true,  if  there  is  really  the  infirmity  in 
the  title  that  is  suggested,  no  action  will  lie,  no 
matter  however  malicious  the  defendant's  inten- 
tion may  have  been.^ 

TRESPASS  is  any  misfeasance  or  act  of 
one  person  whereby  another  is  injuriously 
treated  or  damnified.'  Any  unlawful  act  com- 
mitted with  violence,  actual  or  implied,  to  the 
person,  property,  or  rights  of' another.  Any 
unauthorized  entry  upon  the  realty  of  another 
to  the  damage  thereof. 

Upon  Personal  Property. 

An  action  lies  for  injuries  to  personal  prop- 
erty, which  may  be  committed  by  the  several 
acts  of  unlawfully  striking,  chasing  if  alive, 
and  carrying  away  to  the  damage  of  the  plain- 

O-ii  Serg.  &  R.  Penn.  343.  p-Heard  Bbel  &  S.  ?? 
148,  149.  n-5  Gray,  Mass.  3.  r-Bacon  Abr.  Slander 
(D  4);  Rolle  Abr.  87;  i  Viner  Abr.  540.  s-i  Maule 
&  S.  280  :  1  Holt,  S31 ;  I  Barnew.  &  Aid.  232  ;  see  i 
Serg.  &  R.  Penn.  469;  i  Binn.  Penn.  178;  11  Vt.  536; 
Starkie  Slander,  182.  t-4  Barnew.  &  C.  247;  i 
Saund.  242,  n.  2 ;  i  Term,  iii,  544;  i  li^st.  563  ;  2  Id. 
436 :  5  Bos.  &  P.  335 ;  BuUer,  Nisi  P.  8.  n-4  Barnew. 
&  C.  247 :  see  14  Serg.  &  R.  Penn.  359  ;  Starkie  Sland. 
201.  v-Heard  Lib.  &  S.  §?  lo,  59,  et  sea.  W-3  Bl. 
Conn.  208  ;  7  Conn.  125.  x-i  Wms.  Saund  84,  nn  23  ; 
Fitzherbert  Nat.  Brev.  86 :  Brooke  Abr.  Trespass,  pi. 
407:  Cro.  Jac.  362.  y-2  Root.  200;  5  Vt.  97.  «-i  Me. 
117;  12  Id.  122  ;  13  Pick.  139;  5  Johns."  348.  a-ii  Pick. 
382:21^.360;  13  Johns.  141;  iN.H.  ijo;  4  J.  J. 
Marsh.  18:  2  Bail.  4^6 ;  4  Munf.  444 ;  6  Blackf.  136;  4 
111.9;  6W.  &S.  323.  b-iT.  R.  480:  7  Johns.  535:  8 
Id.  432;  II  Id.  377;  s  Vt.  274;    I  Penn.  St.  238;  17  S. 

41 


tiff,*  or  by  defacing,  corrupting,  or  otherwise 
injuring,  either  by  direct  or  remote  means,  a 
personal  chattel,  of  which  another  is  the  owner, 
and  in  possession,'  and  for  the  removal  or  in- 
jury of  inanimate  personal  property,*  of  which 
another  has  the  possession,  actual  or  construc- 
tive,' without  the  owner's  assent.  A  naked 
possession  or  right  to  immediate  possession  is 
sufficient  to  support  an  action.'' 
Upon  Real  Property. 
An  action  lies  for  injuries  to  realty  conse. 
quent  upon  entering  without  right  upon  anotlier 
man's  land.  The  enclosure  may  be  purely  im. 
aginary,'  but  reaches  to  the  sky  and  to  the  cen- 
tre of  the  earth.*  The  plaintiff  must  be  in 
possession  with  some  title,"  though  mere  title  is 
sufficient  where  no  one  is  in  possession,'  as  in 
the  case  of  an  owner  to  the  centre  of  a  high- 
way,* and  mere  possession  is  sufficient  against 
a  wrong-doer,""  and  the  possession  may  be  by 
an  agent'  but  not  by  a  tenanti  other  than  a  ten- 
ant at  will.'' 

An  action  will  not  lie  unless  some  damage  is 
committed;  but  slight  damage  only  is  re- 
quired. Some  damage  must  have  been  done 
to  sustain  the  action,™  though  it  may  have  been 
very  slight;  as  breaking  glass."  An  action 
will  not  lie  where  the  defendant  has  a  justifica- 
tion sufficient  to  excuse  the  act  committed, 
though  he  acted  without  authority  from  the 
owner  or  the  person  affected,"  and  accident 
may  in  some  cases  excuse  a  trespass.? 

The  gist  of  an  action  for  trespass  is  the  in- 
jury done  to  the  ^zSnix^^s  possession.  To  con- 
stitute trespass  there  must  be  a  disturbance  of 
the  plaintiff's  possession  .1  Where  no  one  is  in 
possession  (the  land  being  vacant  and  unculti- 
vated) the  party  having  the  title  or  right  of 
possession  may  maintain  trespass.'  It  is  set- 
tled that  the  owner  of  wild  and  uncultivated 
land  is  to  be  deemed  in  possession  so  as  tq 
maintain  trespass,  until  an  adverse  possession 
is  clearly  made  out.»  Therefore,  the  plaintiff 
must  allege  and  prove : 

1.  That  the  property  was  in  his  possession  at 
the  time  of  the  injury,  and  this  rightfully  as 
against  the  defendant ;  and, 

2.  That  the  injury  was  committed  by  the  d«. 
fendant  with  force.  The  law  always  couples 
the  idea  of  force  with  that  of  intrusion  upon 
the  property  of  another.* 

&  R.  251;  II  Mass.  70;  II  Vt.  521;  I  Ired.  163:  10 
Vt.  165.  C-3  Bl.  Comm.  209;  1  Dev.  &  B.  371.  d-19 
Johns.  381.  e-s  East.  485;  9  Johns.  61;  11  Id.  140, 
385:  12  Id.  183;  I  Nott.  &  M'C.  356;  2  Id  68;  10 
Conn.  225;  II  Id.  60;  6  Rand.  8,  <;56;  4  Watts  377;  4 
Pick.  305;  IS  Id.  32;  4  Bibb.  218;  2  Hill  (S.  C.)  466  : 
1  Harr.  &  J.  295;  31  Penn.  St.  304;  5  Harring  320;  11 
Ired.  417.  f-2Ala.  229;  i  Wend.  466;  1  Vt.  485 ;  8 
Pick.  333;  I  Dev.  &  B.  68.  8:-4  N.  H.  36:  i  Penn. 
St.  336:  sec  17  Pick.  357.  I1-9  Ala.  82;  i  Rice,  368; 
23Ga.  590;  see  22  Pick.  295.  I-3  M'Cord,  422.  J-8 
Pick.  235;  I  Hill  (S.  C.)  260;  see  13  Ind.  64.  k-is 
Pick.  102.  1-2  Johns.  357;  9  Id.  113,377;  2  Mass. 
127;  4  Id.  266.  ni-2  Bay,  421.  11-4  Mass.  170.  0-8 
Law  Rep.  77.  p-7  Vt.  62  ;  4  M'Cord,  61 ;  12  Me.  67. 
<|-3  Gray,  329,  330 ;  7  Cush.  355 ;  3  Id.  306.  r-i  Stew. 
2»9 ;  I  Wend.  466 ;  i  Vt.  485.  s-3  S.  &  R.  513 ;  2  GU- 
man,  652 ;  3  English,  470 ;  B  Oranch,  349.  t-3  BU 
Comm.  211. 


640 


TORTS. 


Plaintiff's  Possession.  The  possession  of  the 
plaintiff  may  be  actual  or  constructive.  And 
it  is  constructive  when  the  property  is  either  in 
the  actual  custody  and  occupation  of  no  one, 
but  rightfully  belongs  to  the  plaintiff.  A  ten- 
ant at  will  and  one  entitled  to  the  mere  profits 
of  the  soil,  with  the  right  of  culture,  may  also 
sue  and  recover  for  an  injury  to  the  emble- 
ments to  which  he  is  entitled."  A  general 
owner  has  also  a  constructive  possession  as 
against  his  tenant,  who  having  a  special  prop- 
erty, has  violated  his  trust  by  injuring  or  de- 
stroying that  which  was  confided  to  him.  Thus, 
if  a  tenant  at  will  cuts  down  trees,  the  interest 
of  the  wrong-doer  is  thereby  determined,  and 
the  possession,  by  legal  intendment,  immedi- 
ately reverts  to  the  owner  or  co-tenant,  and 
proof  of  the  wrongful  act  will  maintain  the  alle- 
gation that  the  thing  injured  was  in  his  posses- 
sion.^ So,  if  one  enters  upon  land,  and  cuts 
timber  upon  a  parol  agreement  for  the  purchase 
of  the  land,  which  he  afterwards  repudiates  as 
void  under  the  statute  of  frauds,  his  right  of 
possession  also  is  avoided  ab  initio,  and  is  held 
to  have  remained  in  the  owner,  who  may  main- 
tain trespass  for  cutting  the  trees.'  And  gen- 
erally, where  a  right  of  entry,  or  other  right  of 
possession,  is  given  by  law,  and  it  is  afterwards 
abused  by  any  act  of  unlawful  force,  the  party 
is  a  trespasser  ab  initio.^ 

But  where  the  general  owner  has  conveyed 
to  another  the  exclusive  right  of  present  posses- 
sion and  enjoyment,  retaining  to  himself  only 
a  reversionary  interest,  the  possession  is  that  of 
the  lessee,  who  alone  can  maintain  an  action 
of  trespass  for  a  forcible  injury  to  the  property. 
Thus,  a  tenant  for  years  may  have  an  action 
of  trespass  for  cutting  down  trees.y  And  a 
tenant  at  will,  for  throwing  down  fences 
erected  by  himself,  and  destroying  the  grass." 
The  lessor  or  general  owner  nerer  being  per- 
mitted to  maintain  this  action  for  an  injury  done 
to  the  property  while  it  is  in  the  possession  of 
a  lessee  entitled  to  its  exclusive  enjoyment.* 

Where  the  subject  of  the  action  is  &  partition 
fence  between  the  lands  of  two  adjoining 
proprietors,  it  is  presumed  to  be  the  common 
property  of  both,  unless  the  contrary  is  shown.'' 
If  it  is  proved  to  have  been  originally  built 
upon  the  land  of  one  of  them,  it  is  his ;  but  if 
it  were  built  equally  upon  the  land  of  both, 
though  at  their  joint  expense,  each  is  the  owner 
in  severalty  of  the  part  standing  on  his  own 
land ;'  if  the  boundary  is  a  hedge  and  one  ditch, 
it  is  presumed  to  belong  to  him  on  whose  side 
the  hedge  is ;  it  being  presumed  that  he  who 
dug  the  ditch  threw  the  earth  upon  his  own 

n-Co.  Litt.  ^h  ;  3  Burr.  1824 ;  6  East.  602 ;  7  Id. 
200  ;  9  Johns.  ro8  ;  5  Bing.  285  ;  9  Cowen,  39  ;  7  Cush. 
467  ;   II  Id.  181 ;   10  Id.  99,  103  ;  2  Id.  237  ;  8  Met.  i  ;   n 


Cush.  147,  150;  37  Me.  14;  Id.  52  ;  Id.  239;  5  Kas. 
4^3.  v-Co.  Litt.  570;  Cro.  E.  777,  784  ;  560.13,8. 
C. ;  iijur.  104;  I  Pick.  43;  17  Mass. 282.     w-9johns. 


35.  x-8  Co.  145 ;  12  Johns.  408  ;  12  Met.  279  ;  3  Cush. 
438.  y-3  Campb.  491  ;  2  M.  &  S.  499.  Z-3  Greetil.  6. 
tk-i  Johns.  511 ;  3  Id.  46S.  b-8  B.  &  C.  2^9,  and  note 
a  :  Id.  257.  c-s  Taunt.  20.  d-3  Taunt.  138,  per  Law- 
rence, J.      e-Archibold's  N.  P.  328,      f-i  Moody  & 


land,  which  alone  was  lawful  for  him  to  do, 
and  that  the  hedge  was  planted  as  is  usual  on 
the  top  of  the  bank  thus  raised,*  but  if  there  is 
a  ditch  on  each  side  of  the  hedge,  or  no  ditch 
at  all,  the  hedge  is  presumed  to  be  the  common 
property  of  both  proprietors.*  If  a  tree  grows 
so  near  the  boundary  line,  that  the  roots  extend 
into  the  soil  of  each  proprietor,  yet  the  property 
in  the  tree  belongs  to  the  owner  of  the  land  in 
which  the  tree  was  originally  sown  or  planted.' 
But  if  the  tree  stands  directly  upon  the  line  be- 
tween adjoining  owners,  so  that  the  line  passes 
through  it,  it  is  the  common  property  of  both, 
whether  it  be  marked  as  a  boundary  or  not ; 
and  trespass  will  lie  if  one  cuts  it  down  with- 
out the  consent  of  the  other.* 

Proof  of  an  actual  and  exclusive  possession 
by  the  plaintiff,  even  though  it  be  by  wrong,  is 
sufficient  to  support  an  action  against  a  mere 
stranger  or  wrong-doer,  who  has  neither  title 
to  the  possession  in  himself,  nor  authority  from 
the  legal  owner.'' 

Injury  to.     The  plaintiff  must,  in   the 

next  place,  prove  that  the  injury  was  committed 
by  the  defendant,  with  force.  And  the  de- 
fendant will  be  chargeable,  if  it  appear  that  the 
act  was  done  by  his  direction  or  command,  or 
by  his  servant  in  the  course  of  his  master's 
business,  or  while  executing  his  orders  with 
ordinary  care ;  or  if  it  be  done  by  his  domestic 
or  reclaimed  animals.'  The  law  of  this  State 
as  to  enclosures  makes  the  party  having  a  fence 
insufficient  in  law,  guilty  of  negligence,  and  he 
cannot  recover  for  injuries  done  his  crops  by 
stock  running  at  large  and  roaming  upon  his 
land  through  such  insufficient  fence,  nor  can 
such  a  party  recover  even  if  the  owner  of  the 
stock  was  himself  chargeable  with  negligence, 
unless  it  amounts  to  a  wilful,  wanton  or  mali- 
cious want  of  care.J  The  object  of  the  law 
regulating  fences  is  not  to  protect  a  wanton 
trespass,  nor  a  trespass  with  intent  to  injure.* 
It  will  not  be  necessary  for  the  plaintiff  to  prove 
that  the  act  was  done  with  any  wrongful  intent; 
it  being  sufficierit  if  it  was  done  without  a  justi- 
fiable cause  or  purpose,  though  it  were  done 
accidentally,  or  by  mistake.'  And  though  the 
original  entry  or  act  of  possession  were  by 
authority  of  law,  yet  if  a  subsequent  act  of 
force  be  unlawfully  committed,  such  as  would 
have  made  the  party  a  trespasser  if  no  authority 
or  right  existed,  he  is  a  trespasser  ab  initio.^ 
Nor  is  it  necessary,  in  order  to  enable  a  party 
to  recover  for  injuries  done  to  his  property, 
caused  by  the  negligence  of  others,  that  he 
should  be  entirely  free  from  all  negligence 
himself;    but  if  his  negligence  is  slight,  and 

Malkin,  112  ;  2  Roll.  Rep.  141 ;  Dig.  lib.  47,  tit.  7,  i,  6, 
<S  2  ;  Coop.  Just.  p.  80.  g;'-i2  N.H.  454.  h-i  East. 
244  ;  3  Burr.  1556,  1563  ;  4  Taunt.  547 ;  2  Watts.  180; 
3  Met.  S39  :  14  Pick.  297:  12  Shep.  453;  Id.  411 ;  39 
ftle.  4';i  ;  sMd.  540;  10  Texas,  462;  8  Gray,  415.  I-9 
B.  &  C.  591;  8  Wend.  474;  6  Com.  Dig.  392;  Tres- 
pass C.  I ;  10  Wend,  no  ;  4  D.  &  R.  202.  J-s  Kas. 
433.  k-Id.  1-Chitty  PI.  192;  J  Camp.  407;  2  Id. 
57i; ;  3  Lev,  37;  5  Mass.  341;  11  Id.  500;  Id.  507;  aa 
Miss.  322  ;  I  Williams  fVt.)  657;  15  111.  53.  Ml-8  Co. 
145 ;  5  B.  &  C.  48s ;  3  Wils.  20. 


TORTS. 


64 1 


that  of  the  other  party  fs  gross,  or  if  his  is  re- 
mote, and  that  of  the  other  is  the  proximate 
cause  of  the  injury,  he  may  recover."  It  is  a 
question  of  fact  for  the  jury  to  determine, 
whether  there  has  been  negligence,  and  its 
nature  and  degree  ;  but  it  is  a  question  of  law, 
for  the  court  to  determine,  what  degree  of  care 
and  diligence  on  the  one  side,  and  of  negligence 
on  the  other,  will  entitle  the  plaintiff  to  re- 
cover.o  The  allegation  of  the  time  when  the 
trespass  was  committed  is  not  ordinarily  mate- 
rial to  be  proved ;  the  plaintiff  being  at  liberty 
to  prove  a  trespass  at  any  time  before  the  com- 
taencement  of  the  action,  whether  before  or 
after  the  day  laid  in  the  complaint. 

Defences.  In  the  defence  of  this  action,  the 
general  issue  is  not  guilty ;  under  which  the 
defendant  may  give  evidence  of  any  facts  tend- 
ing to  disprove  either  of  the  propositions  which, 
as  we  have  seen,  the  plaintiff  is  obliged  to 
make  out  in  order  to  maintain  his  action.  And 
any  matters  which  go  to  show  that  he  never 
did  the  acts  complained  of  may  be  given  in 
evidence  under  the  general  issue.  He  may 
show  under  this  issue  that  the  freehold  and 
immediate  right  of  possession  is,  in  himself, 
or  in  one  under  whom  he  claims  title;  thus 
disjjroving  the  plaintiff's  allegation  that  the 
right  of  possession  is  in  him.P  But  if  he  acted 
by  license  even  from  the  plaintiff,  without 
claiming  title  in  himself  ;"i  or  if  he  would  jus- 
tify under  a  custom  to  enter,'  or  under  a  right 
of  way  ;■  or  if  the  injury  was  occasioned  by  the 
plaintiff's  own  negligence,  or  was  done  by  the 
defendant  from  any  other  cause,  short  of  any 
of  such  extraneous  force  as  deprived  him  of  all 
agency  in  the  act,  it  cannot  be  shown  under 
this  issue,  but  must  be  specially  pleaded.*  So, 
also,  matters  in  discharge  of  the  action ;  but 
matters  in  mitigation  of  the  wrong  and  dam- 
ages which  cannot  be  so  pleaded,  may  be  given 
in  evidence  under  the  general  issue."  The 
general  rule  is,  that  all  matters  which  confess 
and  avoid,  whether  alleged  by  the  plaintiff  or 
defendant,  must  be  specially  pleaded,  otherwise 
the  proof  of  them  is  not  admissible.^ 

In  some  cases  trespass  is  justifiable,  or,  in 
other  words,  entry  on  another's  land  or  house 
is  not  accounted  trespass ;  as  if  a  man  comes  to 
demand  or  pay  money  there  payable,  or  to 
execute  in  a  legal  manner  the  process  of  the 
law.  So,  entering  into  an  inn  or  public  house 
without  first  asking  the  owner's  leave,  because 
when  a  man  professes  to  keep  an  inn  or  public 
house,  he  thereby  gives  a  general  license  to  any 
person  to  enter  his  doors."  In  like  manner  the 
law  warrants  the  hunting  of  ravenous  beasts  of 
prey,  because  the  destroying  of  such  creatures 
is  said  to  be  profitable  to  the  public.^  But  he 
cannot  justify  breaking  the  soil  and  digging  him 

11-5  Kas.  J67;  Id.  191.  O-Id.  p-i  Chitty  PI.  437>' 
7  T.  K.  354;  I  Mass.  159;  4  Blackf.  348;  4  Pick.  127; 
12  Met.  183.  q-2  Campb.  378  ;  i  Peake,  67 ;  24  Pick. 
187;  26  Vt.  178.  r-4  Pick.  145.  s-7  Mass.  385.  t-i 
Cliitty  PI.  437,  438 ;  2  Camp.  500.  u-i  Chitty  PI.  441, 
442 ;  31  Vt.  433  :  Id.  624 ;  2  H.  &  N.  276  ;  6  Ad.  &  El. 
J74,  1^.  S.  'V-2  Stark.  Ev.  825  ;  5  Dutcher,  571.  w-3 
tf.C01n1n.s12.     X-Id.  313.     y-Id.  314.     ■-Id.313.      a- 


out  of  the  earth ;  for  though  the  law  warrants 
the  hunting  of  such  no^cious  animals  for  the 
public  good,  yet  it  must  be  done  in  the  ordi- 
nary and  usual  manner.!  But  in  cases  where  a 
man  misdemeans  himself  and  makes  ill  use  of 
the  authority  with  which  the  law  intrusts  him, 
he  is  a  trespasser  ab  initio.*  If  a  defendant 
justifies  the  destruction  of  the  plaintiff's  prop- 
erty, by  the  defence  of  his  own,  he  must  aver 
and  prove  that  he  could  not  otherwise  preserA-e 
his  own  property.*  If,  however,  the  plaintiff's 
dog  were  killed  in  the  act  of  pursuing  the  de- 
fendant's deer  in  his  park,  or  rabbits  in  his 
warren,  or  poultry  within  his  own  grounds, 
or  worrying  or  injuring  sheep,  this  will  jus- 
tify the  killing  without  any  higher  necessity.'' 
If  the  issue  is  upon  a  right  to  dig  and  take 
gravel  or  other  material  for  necessary  repairs, 
the  defendant  must  allege  and  prove  that  the 
repairs  were  necessary,  and  that  the  materials 
were  used  or  in  the  process  of  being  used  for 
that  puriDose." 

If  the  defendant  succeeds  in  establishing  a 
title  to  that  part  of  the  premises  on  which  the 
trespass  was  committed,  he  is  entitled  to  re- 
cover, though  he  does  not  prove  a  title  to  the 
whole  premises."* 

VEXATIOUS  SUITS,  which  are  in 
stituted  maliciously,  without  probable  cause . 
whereby  damage  has  resulted  to  the  defendant 
whether  they  are  criminal  prosecutions  befor 
a  magistrate  or  civil  actions,  are  another  clas 
of  torts  or  wrongs.  Such  a  suit  need  not  bt 
altogether  without  foundation ;  if  the  part  whicl ' 
is  groundless  has  subjected  the  party  to  an  in 
convenience  to  which  he  would  not  have  been 
exposed  had  the  valid  cause  of  complairit 
alone  have  been  insisted  on,  it  is  injurious.*  To 
make  it  vexatious  the  suit  must  have  been  in- 
stituted maliciously,  as  malice  in  any  case  of 
injurious  conduct  necessarily  to  be  inferred 
frorj  the  total  absence  of  probable  cause  for 
exciting  it,  and  in  the  present  instance  the  law 
will  not  allow  it  to  be  so  inferred  from  that  cir- 
cumstance, for  fear  of  being  mistaken ;  it  casts 
upon  the  suffering  party  the  burden  of  proving 
express  malice.'  It  is  necessary  that  the  prose- 
cution should  have  been  carried  on  without 
probable  cause;  the  law  presumes  that  prob- 
able came  existed  until  the  party  aggrieved 
can  show  the  contrary,  hence  he  is  bound  tc 
show  the  total  absence  of  probable  cause  ;*  he  is 
also  under  the  same  obligation  when  the  origin.nl 
proceeding  was  a  civil  action.''  The  damage 
which  the  party  injured  sustains  from  a  vexa- 
tious suit  for  a  crime,  as  either  to  his  person, 
his  reputation,  his  estate,  or  his  relative  rights : 
I.  Whenever  imprisonment  is  occasioned  by  0 
malicious,  unfounded  criminal  prosecution,  the 
injury  is  complete,  although  the  detention  may 

I  Sand.  84 ;  11  East.  568;  i  Camp.  41.  b-3  Lev.  28 ; 
Cro.  Jac.  45  ;  i  Camp.  41 ;  11  East.  568,  569.  e-6  T. 
R.  748.  d-8  M.  &  W.  381 ;  2  B.  &  C.  918.  e-4  Taunt. 
616  ;  4  Co.  14 ;  1  Pet.  C.  C.  210  ;  4  S.  &  R.  19,  23.  f 
2Wils.307;  2  B.  &  P.  129  ;  Carth.  417;  see  5  Taunt 
583 ;  I  Pet.  C.  C.  210 ;  2  Browne  Apx.  42,  49  ;  Addis 
270.  i^-5  Taunt.  580;  z  Campb.  199.  I1-2  Wili, 
30T- 


642 


TORTS— USAGE— WEIGHTS  AND  MEASURES. 


have  been  momentary,  and  the  party  released 
on  bail.*  2.  When  the  bill  of  indictment  con- 
tains scandalous  aspersions  likely  to  impair  the 
reputation  of  the  accused,  the  damage  is  com- 
plete.! 3.  Notwithstanding  his  person  is  left  at 
liberty,  and  his  character  is  unstained  by  the 
proceedings  (as  when  the  indictment  is  for 
trespass)  ;•'  yet  if  he  necessarily  incurs  expense 
in  defending  himself  against  the  charge,  he  has 
a  right  to  have  his  losses  made  good.'  If  a 
master  loses  the  services  and  assistance  of  his 
domestics  in  consequence  of  a  vexatious  suit, 
he  may  claim  a  compensation.™ 

ConcerniTig  the  damage  resulting  from  a  civil 
action,  when  prosecuted  in  a  court  of  competent 
jurisdiction,  the  only  detriment  a  party  can  sus- 
tain is  the  imprisonment  of  his  person,  or  the 
seizure  of  his  property;  as  to  any  expense  he 
may  be  put  to,  the  law  contemplates  that  the 
costs  adjudged  fully  compensate  him."  It 
would  be  otherwise  if  the  suit  were  brought  in 
an  improper  court,  and  imprisonment  of  the 
person  or  seizure  of  one's  property  is  made." 

Total  liOSSi.  See  Insuranck. 

Trade-inarks.  See  Patents. 

Transfer.  See  Acts. 

Translations.  See  Copyrights  ;  Evidence. 

Transportation.    See  Bailments,  "  Common 
Carriers,"  etc. 

Treason.  See  Criminal  Law. 

Trespass.  See  Torts. 

Ultra  Vires.  See  Corporations. 

Umpires.  See  Agency  ;  Arbitrators. 

Underlease.  See  Conveyances,  "  Leases." 

Unintelligible.  See  Contracts;  Convey- 
ances. 

Unsound  Mind.  See  Medical  Law,  "In- 
sanity." 

USAGE.  See  Contracts,  "Custom,"  "Usage." 
Usage  of  trade  does  not  require  to  be  im- 
memorial to  become  established;  if  it  be 
known,  certain,  uniform,  reasonable,  and  not 
contrary  to  law,  it  is  sufficient.  But  evidence 
that  a  thing  has  been  done  in  few  instances 
does  not  establish  usage.P  The  usages  of  trade 
afford  ground  upon  which  a  proper  construction 
may  be  given  to  contracts.  By  their  aid  the 
indeterminate  intention  of  the  parties,  and  the 
nature  and  extent  of  their  contracts  arising  from 
mere  implications  or  presumptions,  and  acts  of 
an  equivocal  character,  may  be  ascertained,  and 
the  meaning  of  words  and  doubtful  expressions 
may  become  known.i  Courts  will  not  readily 
adopt  these  usages,  because  they  are  not  unfre- 
quently  founded  in  mistake.' 

Usary.  See  Interest. 

Tagri'ancy.  See  Criminal  Law. 

Tenue.  See  Affidavit. 

"Vice.  See  Animals,  "  Horses." 

VlH  Mai***"'  See  Accident. 

Voire  Dire.  See  Evidence,  "Witnesses." 

Voluntary.  See  Conveyances. 

Vouchers.  See  Accounts. 

Warelionsenien.  See  Bailments. 

1-Carth.  416.  J-See  12  Mod.  210;  2  B  &  Aid.  494  ; 
3  Dowl.  &  R.  669.  K-Carth.  416.  l-io  Mod.  148, 214  ; 
Gelf,  186.  m-Hammond  N.  P.  275.  n-4  Taunt.  7;  i 
Mod.  4:  2ld.  306.  o-Seei  Wils.  316:  Carth.  189.  p- 
3  Watts.  178 ;  3  Wash.  C.  C.  150 ;  i  Gall.  C.  C.  443  :  S 
Binn.  287  ;  9  Pick.  426;  4  B.  &  Aid.  210;  7  Pet.  i  ;  2 
Wash.  C.  C.  7.  <l-2  Met.  (Mass.)  65  ;  13  Pick.  182  ;  2 
Sumn.  C.  C.  569  :  2  Gill.  &  J.  136 ;  Story  Ag.  ?  77 ;  2 
Kern  Comm.  66a  (3d  Ed.) ;    5  Wheat  336 ;   a  C.  &  P. 


IVarrant  of  Attorney.  See  Agency,  "Attor- 
neys at  Law." 

Warranty.  See  Insurance,  "  Sales." 

WeiKht  of  Evidence.  See  I^vidbncb. 

WEIGHTS  AND  MEASURES. 

A  Measure  is  a  means  or  standard  for  com- 
puting amount.  A  certain  quantity  of  soiiu- 
thing  taken  for  a  unit,  and  which  expresses  a 
relation  with  other  quantities  of  the  same  thing. 

Weight  is  a  quality  in  natural  bodies  by 
which  they  tend  towards  the  centre  of  the 
earth.  The  weights  now  generally  used  in  the 
United  States  are  the  same  as  those  of  England. 

The  Constitution  of  the  United  Stales  giveS) 
•  power  to  Congress  to  "fix  the  standard  of 
weights  and  measures."*  This  power  has  never 
been  exercised.  By  a  resolution  of  Congress 
of  the  14th  of  June,  1836,  the  secretary  of  the 
treasury  is  directed  to  cause  a  complete  set  of 
all  weights  and  measures  adopted  as  standards, 
and  now  either  made  or  in  the  progress  of 
manufacture,  for  the  use  of  the  several  custom 
houses,  and  for  other  purposes,  to  be  delivered 
to  the  governor  of  each  State  in  the  Union,  or 
to  such  person  as  he  may  appoint,  for  the  use 
of  the  Slates  respectively,  to  the  end  that  a 
uniform  standard  of  weights  and  measures  may 
be  established  throughout  the  United  States.' 
The  Slates  possess  the  power  to  legislate  on 
this  subject,  or  at  least  the  existing  standards 
at  the  adoption  of  the  constitution  remain  in 
full  force." 

METRIC  SYSTEM  OF  WEIGHTS 
AND  MEASURES. 

In  the  year  1866  the  Congress  of  the  United 
States  passed  a  bill  authorizing  the  use  of  a 
new  system  of  weights  and  measures.  In  this 
system  the  principal  denomination  is  the  metre, 
from  which  all  the  other  denominations  in  all 
the  tables  are  derived.  Hence,  this  system  is 
called  the  metric  system. 

The  principal  denomination  for  the  measure 
of  surface  is  the  are;  for  the  measure  of 
capacity,  the  litre ;  and  for  weight,  the  gram. 

The  lower  denominations  in  each  table  are 
tenths,  hundredths,  or  thousandths  of  these; 
and  their  names  are  formed  by  prefixing  deci, 
centi,  or  milH  to  the  name  of  the  principal  de- 
nomination. 

The  higher  denominations  are  xo,  loo,  1,000, 
or  10,000  times  the  principal  denomination  of 
any  table ;  and  their  names  are  formed  by  pre- 
fixing deka,  hecto,  kilo,  or  myria  to  the  name 
of  that  principal  denomination. 

The  weights  and  measures  of  this  system  are 
in  general  use  in  France,  Belgium,  Spain,  and 
Portugal ;  and  their  use  has  been  legalized  by 
Great  Britain,  Italy,  Norway,  Sweden,  Greece, 
Mexico,  and  most  of  the  South  American  gov- 
ernments. 

525;  3  B.  &  Aid.  728  ;  Park.  Ins.  30;  i  Marsh.  Ins. 
186,  n.  120  ;  I  Caines,  45  ;  Gilp.  3=6,  486  ;  i  Edw.  Ch. 
146 ;  I  Nott.  &  M'Cord.  519  ;  is  M.iss.  433  :  i  Hill  (S. 
C.)  270  ;  Wright,  573  ;  Pet.  C.  C.  230  ;  5  Ohio,  4-16 ;  i 
Pet.  25,  89  ;  2  Id.  148  ;  6  Id.  715  :  15  Ala.  123  ;  i  Hall, 
612;  9  Mass.  > 55;  9  Wheat.- 582  ;  11  Id.  430.  r-a 
Sumn.  C.  C.  377.  »-Art.  i,  J  8,  Subdiv.  5.  t-Lawa 
1861,  S.  &  S.  Ch.  103,  g  2.  n-3  Story  Const,  ai ; 
Rawle  Const,  xoa. 


WEIGHTS  AND  MEASURES. 


643 


METRIC  STSTEM  OF  WEIOHTS  AJTD 
MCASURES. 

Table  of  Denominations  and  their 
Relative  Values. 

Names  of  Principal  Denominations. 
Metre. 
Are. 
Litre. 
Gram. 

Prefixes  for  Higher  Denominations. 
Deka  10. 
Hecto  100. 
Kilo  X.OOO. 
Myria  10,000. 

Prefixes  for  Lower  Denominations. 
Milli  .001  of 
Centi  .or  of 
Deci  .1  of 

Measures  of  CapacitT- 

10  millilitres  =  1  centilitre. 
10  centilitres  —  1  decilitre. 
10  decilitres  =-  I  litre. 
10  litres  =-  I  dekalitre. 
xo  dekalitres  =.  I  hectolitre. 
10  hectolitres  =  1  kilolitre,  or  stere. 
X  millilitre  ■=  .001  litre. 
I  centilitre  =  .01  litre. 
X  decilitre  =  .X  litre. 

1  litre  =  1  cubic  decimetre,  or  .908  dry  quart, 
or  1.0567  liquid  quart. 
I  dekalitre  =  xo  litres. 
X  hectolitre  =  xoo  litres. 
I  kilolitre  or  stere  ==  xooo  litres. 

Measures  of  I^engrtli. 

10  millimetres  •=  1  centimetre. 

xo  centimetres  =  x  decimetre. 

xo  decimetres  =  x  metre. 

xo  metres  =»  x  dekametre. 

10  dekametres  —  x  hectometre. 

xo  hectometres  =  X  kilometre. 

xo  kilometres  — •  x  myriametre. 

X  millimetre  =  .oox  metre. 

X  centimetre  =  .ox  metre. 

X  decimetre  =  .x  metre. 

1  metre  =  39.37  inches. 

X  dekametre  -=  xo  metres. 

X  hectometre  =—  xoo  metres. 

X  kilometre  — .  x,ooo  metres. 

X  myriametre  =-  xo.ooo  metres. 

Measures  of  Sarfisce. 

xoo  centares  =.  i  are. 

xoo  ares  —  X  hectare. 

X  centare  =  .OX  are. 

1  are  =  100  square  metres,  or  110.6  square 
yards. 

X  hectare  =  xoo  ares. 

'Weigrlit. 

xo  milligrams  =  x  centigram. 

xo  centigrams  =  X  decigram. 

xo  decigrams  =<  x  gram. 

xo  grams  =  I  dekagram. 

xo  dekagrams  =  X  hectogram. 

10  hectograms  ==  x  kilogp-am. 

10  kilograms  or  kilos  >—  X  myriagrasi. 

xo  myriagrams  =  x  quintal. 

ID  quintsUs  =  x  millier,  or  tonneau. 

X  milligram  =  .001  gram. 

I  centigram  =  .01  gram. 

X  decigram  ==  .x  gram. 

1  gram  —  15.432  grains. 

X  dekagram  >=  xo  grams. 

X  hectogram  =  xoo  grams. 

1  kilogram  or  i  kilo  =  1000  grams,  or  2.2046 
pounds. 

X  myriagram  :=  xo  kilos. 

X  quintal  ==»  xoo  kilos. 

X  millier  ->  x,ooo  kilos. 

ORDIITART  STSTEM  OF  WEIGHTS 

ASTD  MEASURES. 

Angrnlar  Measure  or  DlTlsion  of  a 

Circle. 

60  seconds  =  x  minute. 
to  minutes  ^b  i  degree. 
|o  degrees  =■  i  sign. 


90  degrees  =  x  quadrat. 
360  degrees  or  13  signs  =  I  circumference. 
Apothecaries'  or  Pbarniaeeatlsta* 
Measures,  etc. 

60  minims  (M)  =  I  fluid-drachm,  f  J 

8  f  5  ==  X  fluid-ounce,  f  ^ 

x6f^  =  X  pint,  O 

8  O  =  I  gallon,  C 

When  Roman  numerals  are  used  after  the  sign*  to 
which  they  relate :  thus  3  7  =  x  drachm ;  3  "^  ™  4 
drachms,  they  indicate  troy  weight. 

ss  =  one-half;  thus  3  ss  =  one-half  drachm. 

When  Arabic  numerals  are  used  before  the  signs  to 
which  they  relate:  thus  73  ""  *  drachm;  STS  —  4 
drachms,  they  indicate  avoirdupois  weight. 

a  a  =  of  each. 

Measures  of  Fineness  of  Powders. 

80  meshes  to  an  inch  =  very  fine. 

60  meshes  to  an  inch  =  fine. 

50  meshes  to  an  inch  =  moderately  fine. 

40  meshes  to  an  inch  =  moderately  coarse. 

30  meshes  to  an  inch  =  coarse. 
Astronomers'  and  Geograpbers'  Meas« 
ures. 

60"  (seconds)  =  x'  (minute),  or  I  geographical  mile. 

60'  =  1°  (degree). 

30°  =  I  sign  of  the  zodiac  (S). 

X3  S  =  X  great  circle  of  the  heavens. 

60°  =  X  sextant. 

360°  or  6  sextants  =  x  C.  circumference. 

X  geographic  mile  =  x.15  statute  mile. 

3  geographic  miles  =  x  league  (L). 

60  geographic  miles,  or  6g.i6  statute  miles  *=  degree 
(Deg.)  of  latitude  or  of  longitude  on  the  equator. 

69.  x6  miles  is  the  average  degree  of  latitude  a»  U5«d 
by  the  United  States  Coast  Survey. 

Measure  of  Books. 

X  sheet  folded  in — 

3  leaves  ^  a  folio. 

4  leaves  =  a  quarto  (4to.) 

8  leaves  =  an  octavo  (8vo.) 

X3  leaves  =  a  duodecimo  (xsmo.) 

x6  leaves  =  a  i6mo. 

18  leaves  =  a  l8mo. 

34  leaves  =  a  34mo. 

t3  leaves  =  a  33 mo. 
4  leaves  =  a  04mo. 

Civil  En^neers'  Measures. 

I  link  (1)  =  X  foot  (ft.) 

100  I  (or  ft.)  =  X  chain. 

5380  ft.  (X769  yds.)  =  X  mile  (mi.) 

Measures  of  Copyingr. 

73  words  =  I  folio,  common  law. 
90  words  =  X  folio,  chancery. 
xoo  words  =  X  folio,  statute  law. 
3  figures  =  X  word,  statute  law. 

For  Measuring:  Goods  Sold  by  the  Tard. 

3Ji  inches  =  l  sixteenth. 

3  sixteenths  or  4J^  inches  =■  x  eighth. 

3  eighths  or  9  inches  =  x  quarter  (qr)  or  fourth. 

4  qrs  =  X  yard. 

1  yard  U.  S.  Standard  =  3  feet  or  36  inches. 

Mariners'  Measures. 
6  feet  =  X  fathom  (depth  at  sea). 
X30  fathoms  =  x  cable's  length. 
X  nautical  mile  or  knot  =  X.X5  statute  miles. 
3  nautical  miles  or  knots  =  x  league. 

Measures  of  liCng^b. 

Generally. 
13  inches  =  x  foot. 

3  feet  =  X  yard. 

S}4  yards  =  x  rod  or  pole. 
40  poles  =  X  furlong. 
8  furlongs  ^  I  mile. 

69  X-15  miles  =  X  degree  of  a  great  circle  of  th« 
earth. 

Measures  of  Cloth. 
I  nail  =  a%  inches. 

4  inches  =  x  quarter. 

4  quarters  =  x  yard. 

5  quarters  =  x  ell. 


Cfeet: 


Measures  of  Depth. 

I  iathom. 


644 


WEIGHTS  AND  MEASURES. 


Measure  of  Height  of  Horses. 
In  measuring  horses  4  inches  =:>  x  hand,  the  measure 
being  taken  directly  over  the  foreshoulder. 
Measure  of  Land. 

7  ga-ioo  inches  =  l  link. 
xoo  links  =:  I  chain. 

10  square  chains  =  X  acre. 

640  acres  =  i  square  mile  or  section. 

36  square  miles  =  I  township. 

Heasnres  of  Paper. 

34  sheets  =  x  quire. 
30  quires  =  I  ream. 
3  reams  =  I  bundle. 
5  bundles  =  I  bale. 

Measures  of  MoIldltT  and  Capacity. 

Measures  of  Capacity  for  Commodities  Sold  by 
Heaped  Measure. 
3  gallons  =  I  peck. 

8  gallons  ^  I  bushel. 

1  bushel  U.  S.  Standard  =  2150.42  cubic 
inches. 

3  bushels  =  I  sack. 

13  sacks  =  I  chaldron. 

Measures  of  Capacitjr  of  Liquids,  etc. 

For  liquids  several  denominations  have  heretofore 
been  adopted  :  for  beer  the  firkin  of  g  gallons,  thekidder- 
kiii  of  18,  the  barrel  of  36,  the  hogshead  of  54,  and  the 
l5utt  of  X08  gallons.  For  wine  or  spirits  there  are  the 
anker,  runlet,  tierce,  hogshead,  puncheon,  pipe,  butt, 
and  tun ;  these  are,  however,  rather  the  names  of  the 
casks  in  which  the  commodities  are  imported  than  as 
expressing  any  definite  number  of  gallons.  It  is  the 
practice  to  gauge  all  such  vessels  and  to  charge  them 
according  to  their  actual  contents. 

4  gills  =  X  pint. 

3  pints  :=  X  quart. 

4  quarts  =  I  gallon. 

1  gallon  U.  S.  Standard  —  231  cubic  inches. 
3  gallons  =  I  peck. 
8  gallons  =  I  bushel. 

8  bushels  =  x  quarter. 

3  quarters  =  X  load. 

The  last  four  denominations  are  used  only  for  goods, 
not  liquids. 

Measures  of  Solidity. 
X738  cubic  inches  =  i  cubic  foot. 

37  cubic  feet  =  X  cubic  yard. 

X  cord  stove  wood  =  X38  cubic  feet. 

Measnres  of  Sarface. 

X44  inches  =  l  square  foot. 

9  square  feet  X  square  yard. 

3054!  square  yards  =  x  perch  or  rod. 
40  perches  =  I  rood. 

4  roods  or  x6o  perches  =  X  acre. 
640  acres  =>  i  square  mile. 

Surveyors*  Measures. 

7.93  inches  «=  i  link  (1). 

xoo  1  =  X  chain  (ch). 

80  ch  =  I  mile  (mi). 

See  Measures  of  Length,  above. 

Measnres  uf  Tblng:s. 
X3  =  X  dozen. 
X3  dozen  =  x  gross. 
X3  gross  =  X  great  gross. 

Measures  of  Time. 
60  seconds  =  X  minute. 
60  minutes  =  I  hour. 
34  hours  =  I  day. 
7  days  =  X  week. 

28  days  or  4  weeks  =  x  lunar  month. 
38,  39,  30,  or  31  days  =  x  calendar  month. 
13  calendar  months  =  x  year. 

365  days  =  X  year. 

366  days  =s  I  leap  year. 

The  second  of  time  is  subdivided  like  that  of  angular 
measure. 


Measnres  by  Welgrht. 

The  following  articles  arc  generally  sold  by  the  buthel, 
hundredweight,  or  tor,  and  are  generally  regulated  by 
statute : 

Apples,  dried;  barley;  beans,  white;  beans,  castor; 
bluegrass  seed ;  bran ;  buckwheat ;  clover  seed ;  coal 
(anthracite,  bituminous,  cannel,  stone,  and  all  other 
mined  coals) ;  corn,  Indian,  in  the  ear ;  corn,  Indian, 
shelled;  com  meal;  flax  seed:  hair  (for  plastering) ; 
hay ;  hemp  seed  ;  hominy ;  Hungarian  grass  seed ;  lime 
(unslaked);  malt;  millet  seed;  oats,  shelled;  onions; 
peaches,  dried  ;  peas,  ground  ;  potatoes,  Irish  ;  potatoes, 
sweet ;  rye ;  salt ;  salt,  fine ;  timothy  seed ;  turnips ; 
wheat,  etc.,  etc. 

Weights  are  of  two  kinds,  avoirdupois  and  troy. 

Apothecaries'  or  Pharmaceutists* 
Weights. 

Used  in  Prescribing  and  Mixing  Dry  Medicines. 

(Dry  medicines  are  sold  by  avoirdupois  weight,  and 
prescribed  and  mixed  by  troy  weight.) 

80  grains  (gr.)  =  x  scruple  (Sc.  or)  ^ 
3^=1  drachm  (Dr.  or)  J 
8  2(  =  I  ounce  (oz.  or)  2 
X3  ^  =  X  pound  troy  (fc). 
See  Measures,  above. 

Avoirdupois  Welg^ht. 
For  Butter  and  Cheese. 

3  pounds  =  X  clove. 
56  pounds  ^  X  firkin. 

In  most  Commercial  Transactions  and  Common 
Dealings  among  Individuals. 
V]%  grains  =  X  drachm. 
16  drachms  =  X  ounce  (oz). 
x6  ounces  =  X  pound  (lb.) 

1  pound  ^  7000  troy  grains,  U.  S.  Standard. 
35  pounds  and  38  pounds  =  x  quarter  (qr.) 

4  quarters  =  X  hundredweight  (cwt.) 
30  hundredweight  =  x  ton. 

For  Fish  and  Meat. 

8  pounds  =  X  stone. 

For  the  Wool  Trade. 

7  pounds  =  X  clove. 

X4  pounds  =  X  stone. 

3  stones  =  X  tod. 

ej^  tods  =  X  wey. 

3  weys  =  X  sack. 

13  sacks  =  X  last. 

Troy  Welsht. 

These  are  the  denominations  of  troy  weight  when  used 
for  weighing  gold,  silver,  and  precious  stones,  except  dia- 
monds. Troy  weight  is  also  used  by  apothecaries  in  com- 
pounding medicines  ;  and  by  them  the  ounce  is  divided 
into  eight  drachms,  and  the  drachm  into  three  scruples, 
so  that  the  latter  is  equal  to  twenty  grains.  For  scien- 
tific purposes  the  grain  only  is  used,  and  sets  of  weights 
are  used  constructed  in  decimal  progression  from  xo,ooo 
grains  downward  to  one-hundreth  of  a  grain.  The  carat 
used  for  weighing  diamonds  is  three  and  one-sixth 
grains. 

34  grains  =  l  pennyweight. 

30  pennyweights  =  I  ounce. 

1  ounce  =  480  grains,  U.  S.  Standard. 

13  ounces  =  l  pound. 

1  pound  =-  5,760  grains,  U.  S.  Standard. 

Wharflnj^er.  See  Bailments. 

Wife.  See  Acts;  Marriage. 

Wild.  See  Animals. 

Will.  See  Conveyances,  "Wills." 

Witness.  See  Evidence. 

Wounds.  See  Medical  Law. 

Wrltlngrs.  See  Agency;  Bills,  Bonds,  an» 
Notes;  Bonds  or  Obligations;  Contracts;  Con- 
veyances, etc.,  ETC. 

Wrongrs.  See  Torts. 

Ifonngp.  See  Animals. 


PART  II. 

Collection 

OF 

Claims,  Debts  and  Demands. 


When  a  claim,  debt  or  demand  is  due  or 
overdue;  when  payment  is  unreasonably  de- 
ferred or  refused  ;  when  satisfaction  can  only 
l)e  had  by  aggressive  action  on  the  part  of  the 
creditor,  it  becomes  necessary  for  him  to  in- 
quire into  the  various  methods  of  collecting  or 
securing  such  claim,  etc. 

1.  Amicable  adjustment  of  Claims, 
Debts  and  Demands  by  parties.  As  be- 
tween parties  a  claim  may  be  satisfied,  paid  or 
adjusted  in  any  manner,  as  by  part  payment, 
services,  goods,  etc.,  etc.  It  may  also  be 
secured  in  various  ways,  by  note  of  hand ;  by 
note  of  hand  with  a  sufficient  indorser;  by  an 
order  on  and  accepted  by  a  third  responsible 
party;  by  a  mortgage, pledge,  etc.,  etc. 

2.  Arbitration  by  third  persons  when  a 
Claim,  Debt  or  Demand  is  disputed.  When 
parties  are  unable  to  adjust  claims,  debts  or 
demands  between  themselves,  and  wish  to 
avoid  the  expense  and  incident  of  a  suit  at 
law,  they  may  agree  upon  a  person  or  persons 
before  whom  to  submit  thi  points  of  contro- 
versy, and  abide  his  or  their  decision. 

See  Index.  Arbitration. 

3.  Action  or  suit  to  recover  or  defeat  a 
Claim,  Debt  or  Demand.  Whether  the  de- 
mand, debt  or  claim  be  disputed  or  not,  it  is 
often  necessary  to  commence  an  action  or  suit 
for  its  recovery,  to  which  suit  a  legal  defence, 
set-off  or  counter-claim  must  be  interposed,  or 
judgment  will  be  obtained  so  far  as  far  as  the 
demand,  etc.,  is  proved,  often  for  the  amount 
(sometimes  unjustly)  claimed.  Where  the 
parlies  are  in  the  same  neighborhood,  or  at 
a  convenient  distance,  the  matter  may  be  at- 
tended to  personally  or  by  agent  or  attorney. 
Where  they  reside  or  do  business  at  a  dis- 
tance from  each  other,  this  must  be  done 
through  agents  or  attorneys.  In  the  latter  case, 
the  following  forms  of  correspondence  may  be 
observed  by  the  creditor : 

Ijetter  of  Inquiry. 

Place ,  Date ,  18—. 

A.  y .  I  Esq. ,  Attorney-at-la w ,  at ,  in ,  in  — 

county.  State  of . 

Dear  Sir: — I  herewith  enclose  you  a  copy  of  an 
accounti'r  note,  or  other  e7'ir/ence  of  debt  {naming  it), 

in  my  favor  and  against  D.  R.,of ,  engaged  in 

(ttaie  business)  at ,  in  your  city  for  county).    Be 

kind  enough  to  state  your  terms  and  prospect  of 
collection,  and  oblige  yours,  etc.,  Q.  R. 


Order  to  Collect. 

Place ,  Date ,  18—. 

A.  Y. ,  Esq. ,  Attorney-at-law ,  at ,  in ,  in 

county.  State  of 

Dear  Sir  : — Please  collect  the  enclosed  (account 
or  note,  etc.;  in  my  favor  and  against  D.  R., 
and  remit  the  same,  less  your  fees,  as  per  terms 

stated  in  your  note  of ,  inst.:  Providing,  That 

if  the  same  is  found  to  be  worthless,  that  it  be 
returned  to  me  without  charge, 

Yours,  etc.,  C.  R. 

(  When  security  for  costs  is  required  add  :") 

Enclosed  find  $ — ,  as  per  your  request,  to  pay 
cost  in  advance  (or  to  secure  the  costs  of  this 
suit). 

WHAT  COURTS  TO  SUE  IN. 

Justices'  Courts  afford  a  simple  and  speedy 
means  of  collecting  small  claims  and  demands 
without  delay,  and  their  judgments  are,  when 
filed  in  the  office  of  the  clerk  of  the  proper 
court,  as  efficient  a  lien  of  the  debtor's  real 
estate,  as  the  judgment  of  a  court  of  reccnd. 
This  is  a  simple  and  inexpensive  mode  of  ob- 
taining a  judgment  and  lien.  The  proceedings 
of  courts  of  general  jurisdiction  are  more  di- 
rect, and  must  be  resorted  to  for  the  collection 
of  large  claims  and  enforcing  general  remedies. 

When  an  Action  or  Suit  May  be  Com- 
menced. 

Limitation.  By  the  common  law,  a  party 
who  had  any  legal  ground  of  complaint  against 
another,  might  compel  him  to  answer  in  a  court 
at  such  time  as  suited  his  convenience.  This 
privilege  was  not  only  productive  of  incon- 
venience, but  often  of  great  injustice.  Parties 
might,  and  often  did,  wait  till  witnesses  were 
(lead,  or  papers  destroyed,  etc.,  and  then  pro- 
ceed to  enforce  claims  which  at  an  earlier  date 
might  have  been  honestly  defeated.  To  pre- 
vent these  evils,  insecurity  in  title,  uncertainty 
of  tenure  of  property,  and  fruitful  subjects  of 
litigation,  statutes  were  passed,  limiting  the 
time  within  which  a  party  having  a  cause  of 
action  should  appeal  to  courts  for  redress. 
These  statutes  are  called  Statutes  of  limita- 
tion. 
When  Costs  are  Required  in  Advance. 

Costs.  The  object  of  requiring  security  for 
costs  in  any  case  is,  that  the  defendant  may 
have  some  responsible  party  within  the  juris- 
diction of  the  court  to  whom  he  can  look  for  the 
payment  thereof  in  the  event  he  succeeds  in 
the  actiQQ  or  suit  (15  Wis,  54).   When  .security 

{645) 


646 


COLLECTION  OF  CLAIMS,  DEBTS  AND  DEMANDS. 


for  costs  is  required,  a  fee  should  accompany 
the  claim,  so  that  the  costs  may  be  secured  by 
resident  surety  or  paid  at  the  commencement 
of  the  action  or  suit. 

Process  In  an  Action  or  Salt. 

In  a  Suit  or  Action  a  Summons  notifies 
the  defendant  to  appear  at  a  certain  time  and 
place  to  answer  whether  he  owes  the  debt  or 
not,  and  if  he  has  a  set-off  or  defence,  to  then 
present  it. 

An  Order  of  Arrest  or  Capias  compels  him 
not  only  to  answer  the  debt,  but  also  the  acts  of 
fraud  in  contracting  or  afterwards  trying  fraudu- 
lently to  cheat  his  creditor  out  of  his  dues,  and 
may  also  commit  him  to  prison. 

An  Order  of  Attachment  effects  the  seizure 
of  such  goods  and  property  as  can  be  found. 

Garnishee  or  Trustee  Process  effects  a 
discovery  of  goods,  debts,  effects,  etc.,  etc.,  in 
ihe  hands  of  outside  or  third  parties,  and 
compels  their  delivery  of  the  same  to  satisfy 
such  judgment  as  may  be  obtained. 

Judgment,  Execution,  etc.,  are  noticed 
above  and  below. 

Arrest  and  Inaprlsonment  for  Debt. 

Arrest  and  Imprisonment  for  Debt  are 
proceedings  of  so  summary  a  character  that  few 
persons  of  responsibility  will  risk  either  with- 
out the  strongest  evidence  to  support  the  one, 
or  as  a  last  means  of  obtaining  satisfaction  of  a 
judgment  through  the  other.  Arrest  is  allowed 
in  many  of  the  States,  but  only  in  cases  of 
fraud;  fraud  in  obtaining  goods,  moneys,  etc., 
or  fraudulently  secreting,  selling,  removing  his 
property  to  avoid  the  payment  of  just  debts, 
etc.,  etc.  Imprisonment  for  debt  is,  with  a 
few  exceptions,  generally  abolished. 

The  proceedings  are  generally  as  follows : 
An  affidavit  is  made  by  the  creditor,  his  agent, 
or  attorney,  charging  the  debtor  with  the  acts 
of  fraud,  etc.  A  bond  is  given  by  the  creditor 
to  indemnify  the  debtor  if  his  arrest  should  be 
wrongful,  etc.  A  writ  is  then  issued  for  the 
apprehension  of  the  debtor.  When  arrested, 
the  debtor  is  brought  before  court  to  answer 
the  charges  of  fraud,  which,  if  proved,  justify 
his  imprisonment  until  he  gives  up  the  goods, 
property,  etc.,  or  is  lawfully  discharged  from 
CDnfinement. 

Attacbmeut,  Oarnlshment,  Trustee 
Process. 

Attachment,  Garnishment,  Trustee 
Process,  etc.  (t.  e.,  seizing  goods  or  property 
of  the  debtor  either  before,  during,  or  after  the 
suit),  is  common  to  every  State. 

Attachment  Proper  is  seizing  either  goods 
or  property  of  the  debtor  for  the  debt,  where  he 
is  charged  withfraudulently  concealing,  selling 
or  removing,  etc.,  of  them.  Garnishment, 
Trustee  Process,  etc.,  is  as  follows  :  D  owes 
C  a  debt,  D  has  no  property  of  his  own,  in  his 
own  hands  or  possession,  but  some  one  else  has, 
or  is  indebted  to  him.  C  discovers  this,  and  as 
an  attachment  proper  could  only  take  property 
of  D,  in  D's  own  hands,  or  some  place  where 
it  could  be  com?  ^t  directly^  C  must  resort  to 


some  other  process.  This  is  called  a  Garni- 
shee or  Trustee  Process — that  is,  a  writ  which 
compels  this  outside  party  to  come  into  court 
and  tell  what  he  has,  holds,  controls,  or  owes 
to  D,  and  to  deliver  it  over  to  the  officer  hold- 
ing the  garnishee  or  trustee  writ,  that  it  may 
be  used  to  satisfy  the  creditor's  claim  or  de- 
mand. 

The  Trial  of  an  Action  or  Snlt  and  its 
Incidents.    See  below. 

The  Nature  and  Kffect  of  a  Jadgment. 

Judgments,  once  obtained,  are  evidence  to 
the  whole  world  of  the  facts  they  contain — they 
cannot  be  impeached  or  disputed.  The  only 
way  to  affect  them  is  to  pay  or  satisfy  them. 
They  may  be  transferred  from  one  county  to 
another,  from  State  to  State,  from  country  to 
country,  and  from  court  to  court ;  they  always 
face  the  debtor,  and  are  always  ready  for  any 
excess  over  and  above  the  exemptions  allowed 
by  law.  They  gradually  increase  by  the  addi- 
tion of  interest. 

COURTS  Ajri>   PARTIES  APPEARING 

THEREIN,  etc. 

Jndg^es  and  Officers  of  Courts. 

A  judge  or  justice  cannot  sit  or  act  in  cases 
where  he  is  a  party,  or  is  interested,  or  where  he 
is  related  to  either  party  by  consanguinity  or 
affinity. 

A  judge  or  justice  cannot  practice  in  his  own 
court. 

A  judge  or  justice  will  not  have  a  partner 
practice  in  his  own  court. 

A  judge  or  justice  will  not  take  part  in  a 
trial  when  his  partner  is  attorney  or  counsel 
therein. 

A  judge  or  justice  will  not  have  a  voice  in 
decisions  where  he  has  been  attorney  or 
counsel. 

Partners  of  clerks  of  judges  or  Court  officers 
do  not  practice  before  their  judges. 

Clerks  of  Courts  and  other  ministerial  officers 
do  not  practice  as  attorneys  in  their  own  courts. 

Courts  are  always  open  to  the  public. 

I^egal  Proceedlni^s. 

Legal  Proceedings  must  be  in  the  English 
language,  without  abbreviation;  numbers  may 
be  expressed  in  figures. 

A  party  may  always  appear  in  person  or  by 
attorney.  Any  person  of  full  age  and  sound 
mind,  may  prosecute  or  defend  any  action  or 
suit  of  his  own,  or  any  defense  against  an  ac- 
tion or  suit  brought  against  him  by  another,  in 
any  court  or  tribunal. 

Any  person  of  good  moral  character,  although 
not  an  attorney,  may  manage,  prosecute,  or  de- 
fend the  suit  of  another  person,  if  he  is  speci 
ally  authorized  to  do  so  by  the  party  for  whom 
he  appears.  This  authority  may  be  by  request 
when  in  court,  or  by  written  authority  when 
the  party  suing,  or  sued,  is  absent. 

Costs  of  suit  generally  fall,  upon  the  losing 
party;  whatever  costs  have  been  prepaid  ar« 
included  in  the  bill  of  costs, 


COLLECTION  OF  CLAIMS,  DEBTS  AND  DEMANDS. 


647 


WIIERK  TO  COIWMEXCE   AN  ACTION 
OR   SUIT. 

An  action  or  suit  must  be  brought  before  a  court 
or  judge  or  justice,  who  has  a  right  to  and  can 
legally  hear  and  determine  it,  otherwise  his 
judgment  would  be  like  that  of  any  other  per- 
son without  authority. 

For  example  : 

1.  A  justice  of  the  peace  has  the  right  and 
authority  to  hear  and  determine  actions  or  suits 
upon  accounts,  bills,  bonds,  contracts,  judg- 
ments, notes,  etc.,  etc.,  as  well  as  for  damages 
in  some  instances,  and  many  other  things,  up 
to  a  certain  sum  or  amount,  beyond  which  he 
cannot  lawfully  go,  even  though  the  parlies  to 
the  suit  agree  that  he  may ;  for  the  law  has  said 
what  he  shall  do,  and  this  is  his  only  authority. 
On  the  other  hand  justices  of  the  peace  cannot 
sit  to  try  the  title  to  land,  suits  for  slander,  libel, 
breach  of  marriage  contract,  etc.,  for  they  have 
no  authority  by  law  to  do  so,  and,  besides,  they 
are  specially  prohibited  by  law  from  trying  suits 
of  this  character. 

2.  The  justice  having  the  right  and  author- 
ity to  try  the  matter,  in  order  to  exercise  it  upon 
application  of  a  party  suing,  must  bring  the 
party  required  to  answer  before  him ;  this  is 
done  by  a  summons,  and  in  suits  before  justices 
it  is  often  absolutely  necessary  to  sue  a  person 
in  the  same  town  or  township  in  which  he  re- 
sides, though  generally  he  riiay  be  sued  any- 
where in  the  county. 

Parties  may,  however,  a])pear  before  any 
justice  or  court,  and  in  any  county,  township 
or  place  they  choose,  and  iliere  submit  their 
controversy. 

How  to  Commence  an  Action  or  Suit. 

An  action  or  suit  may  be  commenced  by  volun- 
tary appearance  and  agreement  of  parties,  or 
by  legal  processes  issued  at  the  instance  and 
request  of  the  party  complaining. 

1.  If  by  agreement  the  parties  appear  before 
the  court  or  justice,  and  submit  their  contro- 
versy, with  such  evidence  as  they  may  require 
or  present,  and  the  court  or  justice  decides  such 
controversy,  and  so  enters  his  judgment  upon 
his  docket  or  record,  and  judgment  stands  and 
execution  issues,  in  the  same  manner  as  in  an 
ordinary  action  or  suit. 

2.  When  by  legal  process.  Upon  application 
(and  filing  one's  account,  bill,  bond,  claim,  de- 
mand, note  or  other  "  cause  of  action,"  which  is 
called  a  "complaint,"  "  statement  of  demand," 
"  bill  of  particulars,"  etc.,  etc.,  according  to  the 
custom  of  the  court),  a  summons  is  issued  and 
directed  to  the  constable  or  other  officer,  who 
serves  it  upon  the  party  complained  of,  who  is 
called  the  defendant.  This  summons  com- 
mands the  defendant  to  appear  before  the  court 
or  justice  at  a  certain  place  and  time,  to  answer 
tlie  plaintiff's  demand  (describing  it),  and  to  set 
up  whatever  defense  he  may  have  to  it.  In 
addition  to  the  tummons  (which  is  merely  a 
notice  to  appear  and  answer),  there  are  cases 

NoTH. — The  plaintiff's  demand  or  cause  of  action 
»hould  be  g^ren  to  the  court  o»  justice  to  be  filed,  when 
he  obtains  his  summons.  The  defendant's  set-off  or 
defence  should  be  given  to  the  court  or  justice  when  he 
appears  on  the  day  of  trjal  or  by  his  evidenc?, 


in  which  the  defendant  may  be  arrested,  and 
also  cases  where  his  goods  and  effects  may  be 
attached,  and  also  the  money  and  property  due 
him  from  persons  indebted  to  him  or  having 
such  property,  may  be  taken  or  retained. 

These  forms  of  process  are  described  under 
Arrest  and  Attachment  above. 

Witnesses  may  be  compelled  to  attend  and 
give  their  evidence.  The  party  desiring  their 
evidence  should  give  their  names  to  the  court 
or  justice  and  request  him  to  subpoena  them  for 
the  trial ;  and  if  they  fail  to  attend,  he  should 
request  the  court  to  compel  their  attendance, 
which  is  done  by  attaching  them  and  bringing 
them  forcibly  into  court,  there  to  answer  for 
their  contempt  or  excuse  it,  and  give  their  evi- 
dence in  the  case  as  well. 

Every  person  offered  as  a  witness  must  be 
affirmed  or  sworn  before  giving  any  testimony. 
How  to  Try  an  Action  or  Suit. 

On  the  day  of  trial  the  party  may  conduct 
his  own  suit  or  defense,  or  have  ah  attorney  or 
other  competent  person  do  so  for  him. 

If  a  party  is  under  twenty-one  years  of  age, 
he  must  sue  or  defend  by  guardian  or  next 
friend.  (The  court  will  attend  to  this  upon  the 
suggestion  of  any  person.) 

All  parties  should  be  in  prompt  attendance 
at  the  time  fixed  for  trial  (and  in  no  event  later 
than  within  one  hour  thereafter,  though  in  some 
cases  this  will  he  too  late) 

Trial  by  Jury. 

If  a  jury  is  desiredhy  either  party,  such  party 
should  request  it  of  the  court  or  justice,  who 
issues  a  summons  or  venire  for  the  number  of 
jurors  required  by  law  or  agreed  on  by  the 
parties. 

When  it  is  time  for  the  jurors  to  appear  their 
names  are  called  out  by  the  officer,  and  they 
are  .seated  togethe;  and  sworn  for  the  purpose  of 
ascertaining  their  competency  to  sit  in  the  case. 

If  there  are  persons  upon  the  jury  that  a 
party  would  rather  dispense  with,  he  can  re- 
quest the  court  or  justjce  to  excuse  them  from 
serving.  The  number  of  objections  are  limited, 
and  therefore  a  party  should  discreetly  choose 
the  most  objectionable  persons  first. 

The  jury  will  then  be  sworn  by  the  court  or 
justice,  and  hear  the  proofs  and  allegations  of 
parties,  and  after  the  court's  remarks  or  charge, 
if  there  be  any,  they  retire  and  agree  upon  their 
verdict,  and  return  it  to  the  court,  and  the  court 
thereupon  gives  judgment  accordingly. 
Trial  by  the  Court. 

If  a  jury  is  not  desired  by  either  party,  the 
parlies,  if  present,  submit  their  proofs  by  wit- 
nesses or  other  testimony,  and  make  whatever 
argument  they  wish  to,  and  thereupon  the  court 
or  justice  finds  for  the  party  having,  in  his  ' 
opinion,  the  preponderance  or  greater  weight 
of  evidence  to  support  his  side  of  the  case,  and 
renders  and  enters  judgment  accordingly. 
The  I^aw  and  Evidence. 

For  points  in  the  various  subjects  concerning 
ACCOUNTS,  BILLS,  BONDS,  NOTES,  EVIDENCE, 
CONTRACTS,  etc.,  etC. 

See  Index  to  Law,/<7/A 


M 


COLLECTION  OF  CLAIMS,  DEBTS  AND  DEMANDS. 


Ineldcnta  to  the  Trial  by  the  Conrt  or 
a  Jury. 

If  the  defendant,  being  served  with  a  sum- 
mons, neglects  to  appear,  the  court  or  justice 
will  proceed  to  hear  the  proofs  of  the  plaintiff, 
and  give  judgment  thereon. 

The  plaintiff's  account,  bill,  bond,  claim,  de- 
mand, note,  or  other  cause  of  action,  and  de- 
fendant's matters  of  defense,  when  required  by 
the  law,  the  court  or  justice  or  plaintiff,  being 
filed  and  their  substance  or  copy  entered  by 
thz  justice  on  his  docket  or  record,  the  plaintiff 
proceeds  and  proves  his  account,  demand,  etc., 
by  such  proofs  as  is  necessary,  and  the  defend- 
ant, on  the  close  of  the  plaintiff's  evidence, 
produces  his  proofs,  in  case  he  has  any,  to  de- 
feat, lessen,  or  modify  the  plaintiff's  demands 
or  charges  against  him. 

When  a  defendant  establishes  a  set-off  equal 
or  exceeding  the  plaintiff's  claim,  judgment  will 
be  rendered  in  his  favor,  and  also  for  the  costs 
of  this  suit.  But  if  it  be  for  less  than  the  plain- 
tiff's claim,  the  plaintiff  will  have  judgment  for 
the  residue  and  also  for  costs. 

When  the  defendant's  defense  defeats  the 
plaintiff's  claim  only,  judgment  will  be  in  the 
defendant's  favor  for  costs. 

If  the  plaintiff  fails  to  appear  on  the  day  of 
trial,  the  case  may  be  dismissed  with  costs ;  and 
if  the  defendant  have  a  set-off,  this  may  be 
proven  and  judgment  obtained. 

If  the  defendant  fails  to  appear  on  the  day 
of  trial,  the  plaintiff  will  take  judgment  for  so 
much  of  his  claim  as  he  proves,  for  the  full 
amount  oflen,  although  it  really  exceed  his  just 
dues. 

Adjournments. 

A  trial  may  be  adjourned  for  a  reasonable 
time  by  consent  of  parties,  or  on  the  applica- 
tion and  oath  of  a  party,  on  sufficient  cause,  as, 
the  absence  of  a  material  witness  or  testimony, 
etc.,  but  the  application  should  be  made  before 
proceeding  to  trial. 

Judgement. 

Judgment  may  be  rendered  upon  tVie  admis- 
sion or  confession  in  person  by  the  defendant, 
or  upon  being  established  by  competent  wit- 
nesses. 

Judgment  may  also  be  rendered  by  dismiss- 
ing the  case  without  affecting  its  merits  in  any 
way ;  this  occurs  where  a  plaintiff  fails  to  ap- 
pear at  trial,  or  at  the  time  to  which  the  case  is 


adjourned,  also  when  the  plaintif!  discontinues 
or  withdraws  his  action.  In  such  case  the  judg- 
ment is  for  costs  only. 

Execntlon,  etc. 

Execution  follows  upon  judgment,  in  favor 
of  the  successful  party  in  the  action.  It  may 
issue  at  once,  in  a  few  days,  weeks,  or  months, 
at  the  option  of  the  party  succeeding  in  thesui>^. 
After  a  time  (generally  defined  by  law)  from  tha 
date  of  serving  the  last  execution,  the  judgment, 
in  general,  must  be  revived  before  an  execution 
can  issue. 

Execution  is  of  four  kinds : 

1.  Against  the  goods  and  chattels  of  the 
debtor. 

2.  Against  the  lands  and  tenements  of  the 
debtor. 

3.  Against  the  body  of  the  debtor. 

4.  Against  all  or  either  goods,  chattels,  lands, 
tenements,  and  the  body  of  the  debtor. 

The  first  may  be  effectual  by  an  imme- 
diate  issue  and  levy  upon  what  goods  may  be 
found,  and  may  be  further  assisted  by  the  attach- 
ment, garnishee,  or  trustee  process. 

It  may  be  defeated  by  the  exemption  law, 
assignment  or  insolvency  law,  or  the  corrupting 
of  the  officer  who  serves  it. 

The  second  is  made  unnecessary  by  hav- 
ing a  transcript  of  the  judgment  filed  in  the 
office  of  every  clerk  of  a  court  of  record  of 
every  county  wherein  the  judgment  debtor  has 
lands,  in  the  State  where  this  judgment  was 
rendered.  (Executions  must  then  be  issued, 
within  say years — different  times  in  differ- 
ent States — or  the  judgment  will  cease  to  be  a 
Hen  upon  the  real  estate.) 

If  judgment  is  rendered  in  another  State, 
then,  in  order  to  have  it  effectual  in  this  State, 
suit  must  be  brought  on  it,  and  then  upon  judg- 
ment on  such  judgment,  a  filing  of  transcripts 
in  the  offices  of  clerks  of  courts  of  record  in  each 
county  where  the  debtor  has  lands,  effects  a 
lien  as  above  s'aled,  wherever  filed. 

The  third  is  allowed  in  cases  of  fraud. 

Fourth.  Execution  also  issues  against 
goods,  chattels,  lands,  tenements  and  effects  of 
the  debtor.  It  also  issues  against  goods,  chat- 
tels, lands,  tenements  (and  the  body  of  the  deb- 
tor, whenever  fraud  is  shown). 

See  Akkest  above. 


Summary  of  Collection  Laws 

In  the  United  States. 


AffAlnst  EHlntes  of  Heceased  Persons. 

See  title  "  Limitations,"  post. 
ANHiKnment    aiid    IiiNoliency.  —  See   that 

title,  post. 
Exemption  I^aws. — See  that  \M\c,post. 
Interest  upon  9Ion«,y. — See  that  title, /o*^ 
Limitation  of  Actions  or  Suits.    See  that 
title, /<jj/. 

AL.ABA3IIA. 
Ill  general. — A  claim,  debt  or  demand 
for  less  than  $loo  may  be  collected  in  a  Justice's 
Court,  except  for  torts,  when  jurisdiction  is 
limited  to  ^$50,  appeals  may  be  taken  to  Cir- 
cuit Court. 

Arrest  or  Imprisonment  for  debt  is  uot 
allowed. 

Attachment  is  allowed  against  Non-Resi- 
dents,  and  against  Debtors  in  cases  ol  fraud, 
whether  the  debt  is  due  or  not. 

Parties  to  the  suit,  or  interested  therein, 
are  competent  Witnesses. 

Costs  of  suit  must  be  secured  in  advance, 
or  suit  dismissed,  where  plaintiff  is  a  Non- 
Resident. 

It  is  at  least  20  Days  between  the  service 
of  summons  on  the  Debtor  and  obtaining  of 
judgment  in  the  Circuit  Court,  and  3  Days  in 
Justices'  Courts. 

Execution  may  issue  in  the  Circuit  Court 
immediately  after  adjournment  of  court,  and  in 
Justice's  Court  in  5  Days,  unless  such  execu- 
tion is  stayed.  Such  stay  is  allowed  in  Jus- 
fices'  Courts. 

The  judgment  of  a  Justice  of  the  Peace, 
wlien  a  transcript  thereof  is  filed  in  the  office 
uf  the  Clerk  of  the  Circuit  Court  of  the  county 
wtiere  rendered,  is  a  lien  upon  the  Debtor's 
real  estate  in  such  county.  The  judgment  is 
a  lien  upon  personal  property  only  after  levy- 
ing of  an  execution. 

ARIZONA. 

In  general. — A  claim,  debt  or  demand 
for  less  than  $100  may  be  collected  in  a  Justice's 
Court  when  title  to  real  estate  is  not  involved. 
When  over  j5loo  in  the  District  Court. 

Arrest  and  Imprisonment  for  debt  is  not 
allowed,  except  in  cases  of  fraud. 

Attachment  is  allowed  against  Non-Resi- 
dents,  and  against  Debtors  in  cases  cf  fraud, 
whether  the  debt  is  due  or  not. 

Parties  to  the  suit,  or  interested  therein, 
are  competent  Witnesses. 

Costs  of  suit  must  be  secured  in  advance 
when  the  plaintiff  is  a  non-resident,  or  a  foreign 
corporation  if  required  by  the  defendant,  or 
the  suif  will  be  dismissed. 

It  is  at  least  10  to  40  Days  between  the 
service  of  summons  on  the  Debtor  and  obtain- 
ing of  judgment  in  the  District  Court,  and  3 
Days  in  Justices'  Courts. 

Execution  may  issue  at  any  time  after 
entering  of  judgment,  unless  such  execution 
b  stayed. 


The  Judgment  of  a  Justice  of  the  PeacCi 
when  a  transcript  thereof  is  filed  in  the  office 
of  the  Clerk  ot  the  District  Court  of  the  county 
where  rendered,  is  a  lien  upon  the  Debtor's 
real  estate  in  such  county.  The  judgment  is  a 
Hen  upon  personal  property  only  upon  the  levy 
of  an  execution. 

ARKANSAS. 

In  general. — A  claim,  debt  or  demand 
for  less  than  ^Sjoo  may  be  collected  in  a  Justice'* 
Court.     When  over  $100  in  the  Circuit  Court. 

Arrest  and  Imprisonment  for  debt  is  not 
allowed,  except  in  cases  of  fraud. 

Attachment  is  allowed  against  Non-Resi- 
dents,  and  against  Debtors  in  cases  of  fraud, 
whether  the  debt  is  due  or  not. 

Parties  to  the  suit,  or  interested  therein, 
are  competent  Witnesses. 

Costs  of  suit  must  be  secured  by  non-resi- 
dents in  advance,  or  the  suit  will  be  dismissed. 

It  is  at  least  10  Days  between  the  service  of 
summons  on  the  Debtor  and  obtaining  of 
judgment  in  the  Circuit  Court,  and  5  Days  in 
Justices'  Courts  where  the  amount  does  not 
exceed  %^o. 

Execution  may  issue  in  the  Circuit  Court 
after  entering  of  judgment,  and  in  Justice's 
unless  such  execution  is  stayed. 

The  judgment  of  a  Justice  of  the  Peace, 
when  a  transcript  thereof  is  filed  in  the  office 
of  the  Clerk  of  the  Circuit  Court  of  the  county 
where  rendered,  is  a  lien  upon  the  Debtor's 
real  estate  in  such  county.  The  judgment  is 
a  lien  upon  personal  property  only  upon  levy 
of  an  execution. 

CAI^IFORiriA. 

In  general. — A  claim,  debt  or  demand 
for  less  than  $300  may  be  collected  in  a  Justice's 
Court,  and  when  over  $300  in  the  Superior 
Court.  ' 

Arrest  and  Imprisonment  for  debt  is  not 
allowed,  except  in  cases  of  fraud  or  intended 
removal  from  State. 

Attachment  is  allowed  against  Non  Resi- 
dents, ard  against  Debtors  in  cases  of  fraud, 
whether  the  debt  is  due  or  not. 

Parties  to  the  suit,  or  interested  therein,  are 
competent  Witnesses. 

Cost?  of  suit  must  be  secured  in  advance 
when  the  plain^ifi  is  a  non-resident,  or  a  foreign 
corporation  wher.  required  by  the  defendant,  or 
the  suit  will  he  dismissed. 

It  is  at  least  10  to  66  Days  between  the 
service  of  summons  on  the  Debtor  and  obtair<» 
ing  of  judgment  in  the  Superior  Court,  and  5 
Days  in  Justices'  Courts. 

Execution  may  issue  from  the  SuperiorCourl 
after  entering  of  judgment. 

(649; 


6so 


COLLECTION  OF  CLAIMS,  DEBTS  AND   DEMANDS. 


Tlie  Judgment  of  a  Justice  of  the  Peace, 
when  an  abstract  thereof  is  filed  and  recorded 
in  the  office  of  the  Recorder  of  the  county 
where  rendered,  is  a  lien  upon  the  Debtor's 
real  estate  in  such  county.  The  judgment  is  a 
lien  upon  personal  properly  only  on  levying 
of  an  execution. 

COLORADO. 

In  gfeneral. — A  claim,  debt  or  demand 
for  less  than  ^300  may  be  collected  in  a  Justice's 
Court.  When  less  »han  ^2,000  in  the  County 
Court.     When  ovc  ^300  in  the  District  Court. 

Arrest  or  Impnsonment  for  debt  is  not 
allowed,  except  ii^  ^;ases  of  fraud. 

Attachment  >*  allowed  against  Non-Resi- 
dents.  Foreign  Corporations,  and  against  Debt- 
ors in  cases  of  ^aud,  whether  the  debt  is  due 
or  not. 

Parties  to  tVs  suit,  or  interested  therein,  are 
competent  Witnesses, 

Costs  of  >sMit  must  be  secured  in  advance, 
or  the  suit  H^ill  be  dismissed. 

It  is  at  kH-it  10  to  40  Days  between  the  ser- 
vice of  sutnmons  on  the  Debtor  and  obtaining 
of  judgnncnt  in  the  District  or  County  Court, 
and  5  to  IS  Days  injustices'  Courts. 

Execution  may  issue  in  Justices',  County 
and  District  Courts  after  entering  of  judgment. 

The  Judgment  of  a  Justice  of  the  Peace, 
when  a  transcript  thereof  is  filed  in  the  office  of 
the  Recorder  of  the  county  where  rendered, 
is  a  lien  upon  the  Debtor's  real  estate  in 
such  county.  The  judgment  is  a  lien  upon  per- 
sonal property  only  upon  levy  of  an  execu- 
tion. 

CONNECTICUT. 

In  g^eneraL — A  claim,  debt  or  demand 
for  less  than;gioomay  be  collected  in  a  Justice's 
Court.  When  less  than  $500  in  _  Hartford, 
New  London  and  Fairfield  counties,  and  less 
than  $1,000  in  New  Haven  county,  in  the 
Common  Pleas  Court.  City  Courts  also  vary 
in  jurisdiction.  The  Superior  Court  is  not  lim- 
ited in  amount. 

Arrest  and  Imprisonment  for  debt  is 
allowed  in  cases  of  Iraud  and  torts. 

Attachment  is  allowed. 

Parties  to  the  suit,  or  interested  therein, 
are  competent  Witnesses. 

Costs  of  suit  must  be  secured  in  advance, 
or  the  suit  will  be  dismissed. 

It  is  at  least  12  Days  between  the  service  of 
summons  on  the  Debtor  and  obtaining  of 
(udgment  in  the  Superior,  Common  Pleas,  or 
District  Court,  and  6  Days  in  Justices'  Courts. 

Execution  may  issue  in  any  Court  after  en- 
tering of  judgment.  The  judgment  is  a  lien 
upon  personal  property  only  upon  levy,  and 
upon  real  estate  upon  filing  certificate  of  record. 
The  latter  may  be  foreclosed  as  a  mortgage. 

DAKOTA,  NORTH. 

In  gpeneral. — District  Courts  have  un- 
limited jurisdiction ;  Justices'  Courts  where 
amt.  is  not  over  $200,  and  no  realty  in  dispute. 

Arrest  and  Imprisonment  for  debt  is  not 
allowed,  except  in  cases  of  fraud. 

Attachment  is  allowed  against  Non-Resi< 


dents,  and  against  Debtors  in  cases  of  fraud 
whether  the  debt  is  due  or  not. 

Parties  to  the  suit,  or  interested  therein, 
are  competent  Witnesses. 

Costs  of  suit  must  be  secured  in  advance 
if  demanded,  or  the  suit  will  be  dismissed. 

It  is  at  least  30  Days  between  the  service  dt 
summons  on  the  Debtor  and  obtaining  of  judg- 
ment in  the  District  Court,  and  3  Days  in  Jus- 
tices' Courts. 

Execution  may  issue  in  District  and  Jus 
tices'  Courts  alter  entering  of  judgment. 

The  Judgment  of  a  Justice  of  the  Peace, 
when  a  transcript  thereof  is  filed  in  the  office 
of  the  Clerk  of  the  District  Court  of  the  county 
where  rendered,  is  a  lien  upon  the  Debtor's 
real  estate  in  such  county.  The  judgment  iy 
a  lien  upon  personal  property  only  upon  levy 
of  an  execution. 

DEI^AWARK. 

In  g-eneral. — A  claim,  debt  or  demand 
for  less  than  ;?200  may  be  collected  in  a  Justice'« 
Court.    When  over  $200  m  the  Superior  Court. 

Arrest  for  debt  is  allowed  in  cases  of  fraud. 

Attachment  is  allowed  against  Non-Resi- 
dents,  and  asjainst  Debtors  in  cases  of  fraud, 
whether  the  debt  is  due  or  not. 

Parties  interested  in  the  suit,  or  non-resi 
dents,  are  competent  witnesses. 

Costs  of  suit  must  be  secured  in  advance, 
or  the  suit  v\ill  be  dismissed. 

It  is  at  least  six  Days  between  the  service  of 
summons  on  the  Debtor  and  obtaining  of  judg- 
ment in  the  Supreme  Court,  and  i  to  15  Days 
in  Justices'  Courts. 

Execution  may  issue  after  entering  of  judg- 
ment. 

The  judgment  recovered  in  a  Superior 
Court,  from  the  time  of  entry  is  a  lien  upon 
the  Debtor's  real  estate  in  such  county.  The 
judgment  is  a  lien  upon  personal  property  only 
upon  the  levy  of  an  execution. 

DISTRICT  OF  COIiUMBIA. 

In  generaL — A  claim,  debt  or  demand 
for  less  than  ;?  100  may  be  collected  in  a  Justice's 
Court.  When  over  ^^50  in  the  Supreme  Court 
of  the  District. 

Arrest  or  Imprisonment  for  debt  is  not 
allowed. 

Attachment  is  allowed  against  Debtors  in 
cases  of  fraud,  whether  the  debt  is  due  or  not. 

Parties  to  the  suit,  or  interested  therein, 
are  competent  Witnesses. 

Costs  of  suit  must  be  secured  in  advance  in 
Justices'  Courts,  or  the  suit  will  be  dismissed, 
and  so  on  demand  in  Circuit  Court. 

It  is  at  least  20  Days  between  the  service  of 
summons  on  the  Debtor  and  obtaining  of  judg- 
ment in  the  Supreme  Court,  and  5  Days  in 
Justices'  Courts. 

Execution  may  issue  in  the  Supreme 
Court  after  entering  of  judgment,  and  in  Jus- 
tices' Court  in  4  Days,  unless  such  execution 
is  stayed.  Such  stay  is  allowed  in  Justices' 
Courts  only. 


COLLECTION  OP  CLAIMS.  t)£BtS  AND  DEMAMIA 


6$i 


Tl'*  Judgment  of  a  Justice  of  the  Peace, 
wh^.n  ail  abstract  thereof  is  filed  in  the  office 
i>l  ihd  Clerk  of  the  Circuit  Court  of  the  county 
where  rendered,  execution  will  issue  upon  the 
Debtor's  real  estate  in  such  county.  The  judg- 
ment is  a  lien  upon  personal  property  only 
upon  levy  of  an  execution. 

FI^ORIDA. 
In  generaL — a  claim,  debt  or  demand 
fcr  less  than  ;giC)o  may  be  collected  in  a  Jus- 
lice's  Court.     The  Circuit  Court  is  unlimited. 
Arrest  for  debt  is  not  allowed. 
Attachment  is  allowed  against  Debtors  in 
cases  of  fraud,  whether  the  debt  is  due  or  not. 

Parties  to  the  suit,  or  interested  therein, 
are  competent  Witnesses. 

Costs  of  suit  must  be  secured  in  advance, 
or  the  suit  will  be  dismissed. 

It  is  at  least  lo  Days  before  time,  exclusive 
of  rule  day  afterward,  between  the  service  of 
summons  on  the  Debtor  and  obtaining  of 
judgment  in  the  Circuit  Court,  and  lo  Days 
in  Justices'  Courts. 

Execution  may  issue  in  any  Court  after  en- 
tering of  judgment. 

The  Judgment  of  a  Justice  of  the  Peace, 
when  a  transcript  thereof  is  filed  in  the  Clerk's 
office  of  the  County  where  rendered,  is  a  lien 
upon  the  Debtor's  real  estate  in  such  county. 
The  judgment  is  a  lien  upon  personal  property 
only  upon  levy  of  an  execution. 
GEORGIA. 
In  general. — Less    than  ^loo  may  be 
collected  in  a  Justice's  Court.     Not  less  than 
J50  nor  over  ;S300  in  a  County  Court.     The 
Superior  Court  has  general  jurisdiction. 
Arrest  for  debt  is  not  allowed. 
Attachment  is  allowed  against  Non-Resi- 
dents, and  against  Debtors  in  cases  of  fraud, 
whether  the  debt  is  due  or  not. 

Parties  to  the  suit,  or  interested  therein, 
are  competent  Witnesses. 

Costs  of  suit  must  be  secured  in  advance 
only  when  demanded. 

It  is  at  least  15  Days  between  the  service  of 
Itmimons  on  the  Debtor  and  obtaining  of 
udgment  in  the  Superior  Court,  in  Savannah 
City  Court  10  Days,  Atlanta  City  Court  15 
Davs.  and  lo  Days  in  Justices'  Courts. 

Execution  may  issue  in  any  Court   after 

entry  of  judgment,  unless  stayed.     Judgment 

is  general  property  of  Defendant,  except  choses 

in   action,  and   on  these  from   date  of  levy. 

Judgment  in  Justice's  Court  must  be  recorded 

in  office  of  Clerk  of  Supreme  Court  in  10  Days. 

IDAHO. 

In  general. — A  claim,  debt  or  demand  for 

less  than  $300  may  be  collected  in  a  Justice's 

Court.     When  $500  or   less   in   the  Probate 

Court.    When  over  ;gl,ooo in  the  District  Court. 

Arrest  and    Imprisonment   for  debt  is 

allowed  in  cases  of  Iraud. 

Attachment  is  allowed  against  Non- Resi- 
dents, and  against  Residents  in  case  of  un- 
secured contract  debts. 

Parties  to  the  suit,  or  interested  therein, 
are  competent  Witnesses. 


Costs  of  suit  must  be  secured  in  advance, 
or  the  suit  will  be  dismissed. 

It  is  at  least  10  to  30  Days  between  *.ho 
service  of  summons  on  the  Debtor  and  obtain- 
ing of  judgment  in  the  District  Court,  and 
3  Days  in  Justices'  Courts. 

Execution  may  issue  in  any  Court  after  en- 
tering of  judgment. 

The  Judgment  of  a  Justice  of  the  Peace, 
when  an  abstract  thrreof  is  filed  and  recorded 
in  the  office  of  the  Clerk  of  District  Court  of 
the  county  where  rendered,  is  a  lien  upon  the 
Debtor's  real  estate  in  such  county.  The 
judgment  is  a  lien  upon  personal  property  only 
upon  levy  of  an  execution  or  attachment. 
ILLINOIS. 
In  l^enernl. — A  claim,  debt  or  demand  for  \e»i 
than  $200  may  be  collected  in  a  Justice's  Court  Wh.ii 
less  than  $1,000  in  County  Court  The  Circuit  Cotiny 
are  unlimited 

Arrest  and  Imprisonment  for  debt  is 
allowed  in  cases  of  traud. 

Attachment  is  allowed  against  Non-Resi- 
dents,  and  against  Debtors  in  cases  of  fraud, 
whether  the  debt  is  due  or  not. 

Parties  to  the  suit,  or  interested  therein,  are 
competent  Witnesses. 

Costs  of  suit  must  be  secured  in  advance, 
or  the  suit  will  be  dismissed. 

It  is  at  least  10  Days  between  the  service 
of  summons  on  the  Debtor  and  obtaining  of 
judgment  in  a  Court  of  Record,  and  3  Days 
in  Justices'  Courts. 

iSxecution  may  issue  from  Courts  of  rec- 
ord any  time  after  entering  of  judgment,  and 
in  Justice's  Court  after  20  Days,  except  in 
special  emergencies. 

The  judgment  of  a  Justice  of  the  Peace,  when 
a  transcript  thereof  is  filed  in  the  office  of  the 
Clerk  of  the  Circuit  Court  of  the  county  where 
rendered,  is  a  lien  upon  the  Debtor's  real  estate 
in  such  county.  The  judgment  is  a  lien  upon  per- 
sonal property  only  upon  levy  of  an  execution. 

INDIANA. 

In  gfeneral. — A  claim,  debt,  or  demand 
for  less  than  $200  may  be  collected  in  a  Justice's 
Court.     The  Circuit  Courts  are  unlimited. 

Arrest  for  debt  is  not  allowed  except  in 
cases  of  actual  fraud. 

Attachment  is  allowed  against  Non-Resi- 
dents, and  Debtors  concealing  themselves  so 
that  service  cannot  be  had  on  them  when  the 
debt  is  due. 

Parties  to  the  suit,  or  interested  therein, 
are  competent  Witnesses. 

Costs  of  suit  must  be  secured  in  advance,  or 
suit  dismissed,  in  Circuit  Court  if  plaintiff  is  a 
Non-Resident  of  State,  or  in  Justice's  Court  if 
plaintiff  is  Non-Resident  of  the  county.  Costs 
not  required  to  be  secured  in  other  Courts. 

At  least  ID  Days  in  Circuit  and  3  in  Justice's 
Court  must  intervene  between  summons  and 
judgment.  In  Justices'  Courts  execution  may 
issue,  unless  stayed,  in  4  to  10  Days  after 
judgment. 

A  transcript  of  a  Justice  of  the  Peace  judg- 
ment, filed  in  Circuit  Court  of  any  county,  is 
a  lien  on  Debtor's  real  estate  in  said  coimty. 


6sa 


COLLECTION   01-   CLAIMS,   bl  !;TS   ANb  DEMANDS. 


A  judgment  is  a  lien  on  personalty  only  from 
the  time  execution  comes  into  the  hands  of  the 
officer. 

IOWA. 

In  generaL— A  claim,  debt  or  demand 
for  less  than  $ioo  may  be  collected  in  a  Jus- 
tice's Court ;  l)y  Consent,  S300.  The  District 
and  Circuit  Courts  have  unlimited  jurisdiction. 

Arrest  and  Imprisonment  for  debt  is 
not  allowed,  except  m  cases  of  fraud,  and  in 
proceedings  supplemental  to  execution. 

Attachment  is  allowed  against  Non-Resi- 
dents,  and  against  Debtors  in  cases  of  fraud, 
whether  the  debt  is  due  or  not. 

Parties  to  the  suit,  or  interested  therein,  are 
competent  Witnesses. 

Costs  of  suit,  when  plaintiff  is  a  Non-Resi- 
dent may  be  secured  in  advance,  in  Courts  of 
general  jurisdiction,  when  required,  or  the  suit 
will  be  dismissed—not  in  Justices'  Courts. 

It  is  at  least  10  to  20  Days  between  the 
service  of  summons  on  the  Debtor  and  obtain- 
ing of  judgment  in  the  District  and  Circuit 
Courts,  and  5  to  15  Days  in  Justices'  Courts. 

£xecution  may  issue  in  any  Court  after  en- 
tering of  judgment,  unless  such  execution  is 
stayed. 

The  Judgment  of  a  Justice  of  the  Peace, 
of  the  U.  S.  District  and  of  the  U.  S.  Circuit 
Court,  when  a  transcript  thereof  is  filed  in  the 
office  of  the  Clerk  of  the  State  District  Court  of 
the  county  where  rendered,  is  a  lien  upon  the 
Debtor's  real  estate  in  such  county.  The 
judgment  is  a  lien  upon  personal  property  only 
upon  levy  of  an  execution. 

KANSAS. 

In  general. — A  claim,  debt  or  demand 
for  less  than  ^^300  may  be  collected  in  a  Jus- 
tice's Court.     The  District  Court  is  unlimited. 

Arrest  for  debt  is  not  allowed  except  in 
cases  of  fraud. 

Attachment  is  allowed  against  Non-Resi- 
dents,  and  against  Debtors  in  cases  of  fraud, 
whether  the  debt  is  due  or  not. 

Parties  to  the  suit,  or  interested  therein, 
are  competent  Witnesses. 

Costs  of  suit  must  be  secured  in  advance, 
or  the  suit  will  be  dismissed. 

It  is  at  least  ID  to  60  Days  between  the 
service  of  summons  on  the  Debtor  and  obtain- 
ing of  judgment  in  the  District  Court,  and  3 
to  12  Days  in  Justices'  Courts. 

Execution  may  issue  in  any  Court  after  en- 
cering  of  judgment,  unless  such  execution  is 
stayed. 

The  Judgment  of  a  Justice  of  the  Peace, 
when  an  abstract  or  transcript  thereof  is  filed 
va  the  office  of  the  Clerk  of  the  District  Court 
of  the  county  where  rendered,  is  a  lien  upon 
the  Debtor's  real  estate  in  such  county.  The 
judgment  is  a  lien  upon  personal  property  only 
apon  levy  of  an  execution. 

KEXTUCKY. 

In  generaL — A  claim,  debt  or  demand 
ht  less  than  1 1 00  may  be  collected  in  a  Jus- 


tice's Court  in  any  county  in  the  State.  In 
Quarterly  Courts  when  less  than  $200.  The 
Circuit  Courts  are  unlimited  (except  where 
jurisdiction  is  given  exclusively  to  another 
Court). 

Arrest  and  Imprisonment  for  debt  i« 
allowed  in  cases  of  fraud. 

Attachment  is  allowed  against  Non-Resi- 
denis.  Foreign  Corporations,  etc.,  and  against 
Debtors  in  cases  of  fraud,  whether  the  debt  is 
due  or  not. 

Parties  to  the  suit,  or  interested  therein,  are 
competent  Witnesses. 

Costs  of  suit  must  be  secured  in  advance, 
or  the  suit  will  be  dismissed. 

It  is  at  least  ID  to  60  Days  between  the  ser- 
vice of  summons  on  the  Debtor  and  obtaining 
of  judgment  in  the  Circuit  Court,  and  5  Days 
in  Justices'  Courts. 

Execution  may  issue  in  10  Days  after  en- 
tering  of  judgment,  unless  such  execution  if 
stayed. 

The  Judgment  of  the  Circuit  Court  is  a  lien 
upon  the  Debtor's  real  estate  in  such  county. 
The  judgment  is  a  lien  upon  personal  property 
only  upoi:  levy  of  an  execution. 
J.01JISIANA. 

Ill  general. — Justices'  Courts  and  in 
New  Orleans  city  Courts  have  jurisdiction 
where  claim  is  not  over  $100.  District  and 
Justices'  Courts  concurrent  in  claims  over  J50 
and  less  than  $100,  in  New  Orleans,  and  in 
State  the  District  Court  has  exclusive  jurisdic- 
tion in  claims  over  ]^loo. 

Arrest  for  debt  is  allowed  only  to  se. 
cure  the  person  of  the  Debtor  to  answer  'he 
suit. 

Attachment  is  allowed  against  Debtors 
in  cases  of  fraud,  whether  the  debt  is  due  oi 
not. 

Parties  to  the  suit,  or  interested  therein,  are 
competent  Witnesses. 

Costs  of  suit  must  be  secured  in  advance, 
or  the  suit  will  be  dismissed. 

It  is  at  least  10  Days  between  the  service  of 
summons  on  the  Debtor  and  obtaining  of 
judgment  in  the  District  Court,  and  5  Days 
in  Justices'  Courts. 

Execution  may  issue  in  the  District  Court 
in  3  to  10  Days  after  entering  of  judgment, 
and  in  Justice's  Court  in  3  Days,  unless  such 
execution  is  stayed. 

The  Judgment  of  a  Justice  of  the  Peace, 
when  a  transcript  thereof  is  filed  in  the  office 
of  the  Clerk  of  the  District  Court  of  the  county 
where  rendered,  is  a  lien  upon  the  Debtor'* 
real  estate  in  such  county.  The  judgment  is  a 
lien  upon  personal  property  only  upon  levy  of 
an  execution. 

MAiNi:. 

In  general. — A  claim,  debt  or  demand 
for  less  than  $20  may  be  collected  in  a  Jus- 
tice's Court.  When  in  Cumberland  and  Ken- 
nebec counties  for  ;J!20  to  $500  in  the  Superioi 
Court.  When  over  j^^*^  ^"  '^^  Supreme  Ju 
dicial  Court. 


COLLECTION  OF  CLAIMS,  DEliTS  AM)  I;L:MaXIjS. 


6S3 


Arrest  and  Imprisonment  for  debt  is  not 
allowed  on  debts  contracied  since  April  l8, 
1887. 

Attachment  allowed  in  cases  of  fraud, 
whether  debt  is  due  or  not. 

Parties  to  the  suit,  or  interested  therein, 
are  competent  Witnesses. 

In  Justices'and  Municipal  Courts  7  Days  must 
intervene  between  service  of  summons  and  judg- 
ment; in  the  other  Courts,  14  Days.  Corpora- 
tions must  have  30  Days'  notice  in  all  Courts, 
either  as  trustees  or  principal  defendants. 

Execution  may  issue  in  any  Court  in  24 
hours  after  judgment,  unless  stayed  by  appeal. 
Judgment  is  a  lien  on  personalty  only  upon 
levy. 

MAKYrAKD. 
Ill  g'eneral. — a  claim,  debt  or  demand  for 
less  than  jgioo  may  be  collected  in  a  Justice's 
Court.  When  over  ;j!ioo  in  the  Superior 
Court  of  Baltimore,  Court  of  Common  Pleas 
and  Baltimore  City  Court.  When  over  ^50  in 
the  Justice  of  the  Peace  and  Circuit  Courts  of 
counties  having  concurrent  jurisdiction. 

Arrest  or  Imprisonment  for  debt  is  not 
allowed. 

Attachment  is  allowed  against  Non-Resi- 
dents,  and  against  Debtors  in  cases  of  fraud, 
whether  the  debt  is  due  or  not. 

Parties  to  the  suit,  or  interested  therein,  are 
competent  Witnesses. 

Costs  of  suit  must  be  secured  in  advance, 
or  the  suit  will  be  dismissed. 

It  is  about  7  to  15  Days  between  the  service 
of  summons  on  the  Debtor  and  obtaining  of 
judgment  in  various  Courts,  and  6  to  14 
Pays  in  Justices'  Courts. 

Execution  may  issue  in  any  Court  after  en- 
tering of  judgment,  unless  such  execution  is 
Stayed. 

The  Judgment  of  a  Justice  of  the  Peace, 
when  a  transcript  thereof  is  filed  in  the  office 
fif  the  Clerk  of  the  Circuit  Court  of  the  county 
where  rendered,  is  a  lien  upon  the  Debtor's 
real  estate  in  such  county.  The  judgment  is  a 
lien  upon  personal  property  only  upon  levy  of 
an  execution. 

MAKSACHUSBTTS. 
In  general. — A  claim,  debt  or  demand 
for  less  than  $1,000  may  be  collected  in  Mu- 
nicipal, District  and  Police  Courts;  and  in  the 
Boston  Municipal  Courts.  When  over  $20  in 
the  Supreme  Judicial  Court,  or  Superior  Courts. 
Arrest  or  Imprisonment  for  debt  allowed 
if  Debtor  is  known  to  have  properly  which  he 
will  not  apply  in  payment. 

The  poor  debtor's  oath  when  taken  (voluntarily  or 
by  permission  of  the  court),  exempts  the  debtor  from 
imprisonment,  or  releases  him  if  in  custody. 

Attachment  is    allowed    in    all    cases   on 
commencement  of  suit ;  any  creditor  may  at- 
tach first  and  prove  his  debts,  etc.,  afterwards. 
Parties  to  the  suit,   or  interested  therein, 
are  competent  Witnesses. 

Costs  of  suits  must  be  secured  in  advance 
by  Non-Residents,  or  the  suit  will  be  dismissed. 
It  is  at  least  14  Days  between  the  service  of  summons 
on  the  Debtor  and  obtaining  of  judgment  in  the  Su- 
preme, Judicial  or  Superior  Court  do  Days  is  given 
to  appear  and  30  Days  to  file  an  answer),  and  7  to  60 
Days  in  Justices'  Courts. 

Execution  may  issue  in  the  Supreme  Judi- 


cial or  Superior  Court  on  the  ist  Monday  of 
the  month  after  entering  of  Judgment,  and  in 
Justices'  and  other  Courts  in  i  Day,  unless 
such  execution  is  stayed. 

The  judgment  is  a  lien  upon  personal  prop, 
erty  only  upon  levy  of  an  execution. 
MICillOAIV. 

In  g'eneral. — A  claim,  debt  or  demand  for 
less  than  S300  may  be  collected  in  a  Justice's 
Court.     When  over  ;5ioo  in  the  Circuit  Court. 

Arrest  and  Imprisonment  for  debt  is 
allowed  in  cases  of  Iraud  and  breach  of  trust. 

Attachment  is  allowed  against  Non-Resi- 
dents and  against  Debtors  in  cases  of  fraud, 
whether  the  debt  is  due  or  not. 

Parties  to  the  suit,  or  interested  therein,  are 
competent  Witnesses. 

Costs  of  suit  in  Circuit  Courts  must  be 
secured  in  advance  where  plaintiff  is  a  Non- 
Resident,  or  the  suit  will  be  dismissed. 

It  is  at  least  ID  to  19  Days  iietween  the  ser- 
vice of  summons  on  the  Debtor  and  obtaining 
of  judgment  in  the  Circuit  Courts,  and  6 
Days  in  Justices'  Courts. 

Execution  may  issue  in  any  Court  after  en- 
tering of  judgment,  unless  such  execution  is 
stayed. 

A  transcript  of  a  Justice's  Judgment  with 
security  for  stay  of  execution  may  be  filed  in 
the  Circuit  or  District  Court  Clerk's  office,  and 
will  then  have  the  same  effect  as  a  judgment 
of  such  Circuit  or  District  Court. 

The  judgment  is  a  lien  upon  property  only 
upon  levy  of  an  execution. 

MISriVESOTA. 

In  greneral. — A  claim,  debt  or  demand 
for  less  than  $100  may  be  collected  in  a  Jus- 
tice's Court.     The  District  Court  is  unlimited. 

Arrest  and  Imprisonment  for  debt  is  not 
allowed. 

Attachment  is  allowed  against  Non-Resi- 
dents, Foreign  Corporations,  etc.,  and  against 
Debtors  in  cases  of  fraud,  whether  the  debt  is 
due  or  not. 

Parties  to  the  suit,  or  interested  therein, 
are  competent  Witnesses. 

Costs  of  suit  must  be  secured  in  advance, 
or  the  suit  will  be  dismissed. 

It  is  at  least  20  Days  between  the  service  of 
summons  on  the  Debtor  and  obtaining  ol 
judgment  in  the  District  Court,  and  6  to  20 
Days  in  Justices'  Courts. 

Execution  may  issue  in  the  District  Court 
at  once  after  entering  of  judgment,  and  in  Juf- 
tice's  Court  m  10  Days,  unless  such  execution 
is  stayed. 

The  Judgments  of  United  States  Courts,  Cir- 
cuit Courts  of  other  counties,  and  Justices  of  the 
Peace,  when  a  transcript  thereof  is  filed  in  the 
office  of  the  Clerk  of  the  District  Court  of  the 
county  where  rendered,  is  a  lien  upon  the 
Debtor's  real  estate  in  such  county.  The  judg- 
ment is  a  lien  upon  personal  property  only  up)04 
levy  of  an  execution. 

MISSISiSIPPI. 

In  generaL — A  claim,  debt  or  demand 
for  less  than  $200  principal  may  be  collected  in 
a  Jus  ices'  Court.  When  over  ;g200  in  the 
Circuit  Court. 


^ 


cOtLECtiOM  Ot'  CLAIMS,  bEfttS  ANt)  DEMANDS. 


Arrest  or  Imprisonment  for  debt  is  not 
allowed. 

Attachment  is  allowed  against  Non-Resi- 
dents,  and  against  Debtors  in  cases  of  fraud, 
whether  the  debt  is  due  or  not. 

Parties  to  the  suit,  or  interested  therein, 
are  competent  Witnesses. 

Costs  of  suit  must  be  secured  in  advance, 
or  the  suit  will  be  dismissed. 

It  is  at  least  5  Days  between  the  service  of 
summons  on  the  Debtor  and  obtaining  of  judg- 
ment in  the  Circuit  Court,  and  5  Days  in 
Justices'  Courts.  Non-Residents  may  be 
summoned  by  3  weeks'  publication. 

Execution  may  issue  in  any  Court  after  en- 
tering of  judgment,  unless  such  execution  is 
stayed.  Such  stay  is  allowed  in  Justices' 
Courts  only. 

Judgments,  whether  rendered  in  Justice  of 
the  Peace  or  Circuit  Courts,  when  properly 
enrolled,  are  a  lien  in  order  of  enrollment, 
and  from  the  date  thereof,  on  all  of  debtor's 
property,  not  otherwise  exempt.  Code  1892, 
Sees.  757  and  2413. 

MISSOURI. 

In  general. — Justices'  Courts  have  juris- 
diction in  cities  or  counties  with  over  50,000 
population,  in  cases  where  claim  is  not  over 
5300  exclusive  of  interest ;  in  replevins,  $350; 
in  other  cities  and  counties,  ;?250.  Circuit 
Court  has  unlimited  jurisdiction  in  cases  ex- 
ceeding $$0.  In  some  counties  Common  Pleas 
Courts  concur  with  District  Court. 

Arrest  or  Imprisonment  for  debt  is  not 
allowed. 

Attachment  is  allowed  against  Non-Resi- 
dents, Foreign  Corporations,  and  against  Debt- 
ors in  cases  of  fraud,  whether  the  debt  is  due 
or  not. 

Parties  to  (he  suit,  or  interested  therein, 
are  competent  Witnesses. 

Costs  of  suit  must  be  secured  in  advance, 
or  the  suit  will  be  dismissed. 

It  is  at  least  15  Days  between  the  service  of 
summons  on  the  Debtor  and  obtaining  of 
judgment  in  the  Circuit  Court,  and  10  Days 
in  Justices'  Courts. 

Execution  may  issue  in  any  Cmirt  .ifter  en- 
tering of  judgment,  unless  such  cxiciition  is 
stayed. 

The  Judgment  of  a  Justice  of  the  Peace, 
when  a  transcript  thereof  is  filed  in  the  office 
of  the  Clerk  of  the  Circuit  Court  of  the  county 
where  rendered,  is  a  lien  upon  the  Debtor's 
real  estate  in  such  county.  The  judgment  of 
the  Circuit  Court  is  a  lien  upon  personal  prop- 
erty only  upon  levy  of  an  execution  of  a  Jus- 
tice's Court  when  delivered  to  the  constable. 
MONTANA. 

In  general. — A  claim,  debt  or  demand 
for  less  than  iJSioo  may  be  collected  in  a  Jus- 
lice's  Court.  When  over  $$0  in  the  District 
Court. 

Arrest  for  debt  is  allowed  in  cases  of  fraud. 
Attachment  is  allowed  where  debt  is  due, 
and  where  defendent  is  about  to  leave  State  or 
dispose  of  his  properly  to  defraud  creditors. 


Parties  to  the  suit,  or  interested  therein, 
are  cunipelcnt  Witnesses. 

Costs  of  suit  must  be  secured  in  advance  of 
Non-Residents  and  Foreign  Corporations,  or 
the  suit  will  be  dismissed. 

It  is  at  least  10  to  40  Days  between  the  ser- 
vice of  summons  on  the  Debtor  and  obtaining 
of  judgment  in  the  District  Court  and  4  to 
10  Days  in  Justices'  Courts. 

Execution  may  issue  in  any  Court  after 
entering  of  judgment. 

The  Judgment  of  a  Justice  of  the  Peace, 
when  a  transcript  thereof  is  filed  in  the  office 
of  the  Clerk  of  the  District  Court  of  the  county 
where  rendered,  is  a  lien  upon  the  Debtor's 
real  estate  in  such  county.  The  judgment  is  a 
lien  upon  personal  property  only  upon  levy  of 
an  execution. 

NEBRASKA. 

In  general. — A  claim,  debt  or  demand 
for  less  than  gaoo  may  be  collected  in  a  Justice's 
Court.  \\'hen  over  $100  and  less  than  $1,000 
then  in  the  County  Court.  When  over  ;5!5o 
\n  the  District  Court. 

Arrest  for  debt  is  allowed  in  cases  of  fraud. 

Attachment  is  allowed  against  Non-Resi- 
dents, and  against  Debtors  in  cases  of  fraud, 
whether  the  debt  is  due  or  not. 

Parties  to  the  suit,  or  interested  therein,  are 
competent  Witnesses. 

Costs  of  suit  must  be  secured  in  advance, 
or  the  suit  will  be  dismissed. 

It  is  at  least  10  to  30  Days  between  the  ser- 
vice of  summons  on  the  Debtor  and  obtaining 
of  judgment  in  the  District  Court,  and  3  to  12 
Days  ill  Justices'  Courts. 

Execution  may  issue  in  any  Court  after  en- 
teri.ig  of  judgment,  unless  such  execution  is 
staytd. 

Tlie  Judgment  of  a  Justice  of  the  Peace, 
when  a  transcript  thereof  is  filed  in  the  office 
of  the  Clerk  of  the  District  Court  of  the 
county  where  rendered,  is  a  lien  upon  the 
Debtor's  real  estate  in  such  county.  The 
judgment  is  a  lien  upon  personal  properly 
only  upon  levy  of  an  execution. 
NETADA. 

In  general. — A  claim,  debt  or  demand 
for  less  than  $300  may  be  collected  in  a  Justice's 
Court.    When  over  $300  in  the  District  Court. 

Arrest  for  debt  is  allowed  in  cases  of  fraud. 

Attachment  is  allowed  against  Non-Resi- 
dents, and  against  Debtors  in  cases  of  fraud,  or 
where  money  is  not  secured  by  lien  or  pledge. 

Parties  to  the  suit,  or  interested  therein, 
are  competent  Witnesses. 

Costs  of  suit  must  be  secured  in  advance^ 
or  the  suit  will  be  dismissed. 

Il  is  at  least  10  to  40  Days  between  the  ser- 
vice of  summons  on  the  Debtor  and  obtaining 
of  judgment  in  the  District  Court,  and  i  to 
10  Days  in  Justices'  Courts. 

Execution  may  issue  in  any  Court  after  en- 
tering of  judgment,  unless  such  execution  is 
stayed.  Such  stay  is  allowed  by  order  of  the 
Court. 


COLLECTION  OF  CLALMS.  DEBTS  AND  DEMANDS. 


6SS 


The  Judgment  of  a  Justice  of  the  Peace, 
when  a  transcript  thereof  is  filed  in  the  office 
of  the  Recorder  of  the  county  where  rendered, 
is  a  lien  upon  the  Debtor's  real  estate  in  such 
county.  The  judgment  is  a  lien  upon  personal 
property  only  upon  levy  of  an  execution. 
NEW  HAMPSHIRK. 
In  generaL — A  claim,  debt  or  demand 
for  less  thin  JS13.33  may  be  collected  in  a  Jus- 
tice's Court,  and  if  less  than  ;^oo  in  a  Police 
Court.  When  over  ^loo  in  the  Supreme  Judi- 
cial Court. 

Arrest  for  debt  is  allowed. 
Attachment  is  allowed. 
Parties   to  the  suit,  or   interested  therein, 
are  competent  Witnesses. 

Costs  of  suit  must  be  secured  in  advance  or 
the  suit  will  be  dismissed. 

It  is  at  least  14  to  28  Days  between  the  ser- 
vice of  summons  on  the  Debtor  and  obtaining 
of  judgment  in  the  Supreme  Judicial  Court, 
and  14  Days  in  Justices'  Courts. 

Execution  may  issue  in  any  Court  immedi- 
ately after  24  hours'  entering  of  judgment. 

The  Judgment  is  a  lien  upon  personal  property 
only  upon  levy  of  an  execution  or  attachment. 
NEW  JERSEY. 
In  generaL — A  claim,  debt  or  demand, 
for  less  than  $200  may  be  collected  in  a  Justice's 
Court ;  $300  in  District  Courts  in  cities ;  over 
j(loo  in  the  Court  of  Common  Pleas  or  Circuit 
Court ;  over  ^200  in  the  Supreme  Court. 

Arrest  (except  females)  for  debt  is  only  al- 
lowed in  cases  of  fraud,  or  on  the  Debtor's 
removal,  transfer  or  concealment  of  property 
to  prevent  its  being  realised  by  his  creditors. 

Attachment  is  allowed  against  Non-Resi- 
idents,  and  against  Debtors  in  cases  of  fraud, 
whether  the  debt  is  due  or  not.  Other  creditors 
inay  apply  under  the  writ  and  receive  pro  rata. 
Parties  to  the  suit,  or  interested  therein, 
are  competent  Witnesses. 

Costs  of  suit  must  be  secured  in  advance, 
if  required  by  the  defendant,  the  plaintiff  being 
a  Non-Resident,  or  the  suit  will  be  dismissed. 
It  is  at  least  10  to  30  Days  between  the  ser- 
vice of  summons  on  the  Debtor  and  obtaining 
of  judgment  in  the  Common  Pleas,  Circuit 
or  Supreme  Court,  and  5  Days  in  Justice's 
Court,  or  City  District  Courts. 

Execution  may  issue  in  any  Court  after  enter- 
ag  of  judgment,  unless  such  execution  is  stayed. 
The  Judgment  of  a  Justice  of  the  Peace, 
when  a  transcript  thereof  is  filed  in  the  office 
of  the  Clerk  of  the  Common  Pleas  Court  of  the 
county  where  rendered,  is  a  lien  upon  the 
Debtor's  real  estate  in  such  county.  The  judg- 
ment is  a  lien  upon  personal  property  only 
upon  levy  of  an  execuuon. 

WEW   MEXICO. 
In  generaL — A  claim,  debt  or  demand 
for  less  than  $  lOO  may  be  collected  in  a  Justice's 
Court.     When  over  $\oo  in  the  District  Court. 
Arrest  for  debt  is  allowed. 
Attachment   is  allowed  against  Non-Resi- 
dents,  and  against  Deblors  in  cases  of  fraud, 
whether  the  debt  is  due  or  not. 


Parties  to  the  suit,  or  interested  therein, 
are  competent  Witnesses. 

Costs  of  suit,  if  demanded,  must  be  secured 
in  advance,  or  the  suit  will  be  dismissed. 

It  is  at  least  5  to  30  Days  between  the  ser- 
vice of  summons  on  the  Debtor  and  obtaining 
of  judgment  in  the  District  Court,  and  5 
Days  in  Justices'  Courts. 

Execution  may  issue  in  any  court,  after  en- 
tering of  judgment. 

The  Judgment  of  a  Justice  of  the  Peace, 
when  a  transcript  thereof  is  filed  in  the  office 
of  the  Clerk  of  the  Probate  Court  of  the  county 
where  rendered,  is  a  lien  upon  the  Debtor's 
real  estate  in  such  county.  The  judgment  is  a 
lien  upon  personal  property  only  upon  levy  of 
an  execution. 

NEW   TORK. 

In  g'eneral. — A  claim,  debt  or  demand 
for  less  than  f  200  may  be  collected  in  a  Justice's 
Court.  When  less  than  ^6250  in  the  New  York 
City  District  Courts.  When  less  than  $1,000 
in  a  County  Court.  When  less  than  $2,000  in 
the  New  York  City  Marine  Court.  The  Su- 
preme Cf)urt  has  unlimited  jurisdiction. 

Arrest  and  Imprisonment  for  debt  is  not 
allowable  except  for  fraud  and  tort  damages. 

Attachment  is  allowed  against  Non-Resi- 
dents,  and  against  Debtors  in  cases  of  fraud, 
whether  the  debt  is  due  or  not. 

Parties  to  the  suit,  or  interested  therein, 
are  competent  Witnesses. 

Costs  of  suit  must  be  secured  in  advance, 
if  required  by  the  defendant,  or  the  suit  will  be 
dismissed. 

It  is  at  least  6  to  20  Days  between  the  ser- 
vice of  summons  on  the  Debtor  and  obtaining 
of  judgment. 

Execution  may  issue  in  any  Court,  after  en- 
tering of  judgment. 

The  Judgment  of  a  Justice  of  the  Peace, 
when  a  transcript  thereof  is  filed  in  the  office 
of  the  Clerk  of  the  County  Court  of  the  county 
where  rendered,  is  a  lien  upon  the  Debtor's 
real  estate  in  such  county.  The  judgment  is 
a  lien  upon  personal  property  only  upon  lexy 
of  an  execution. 

NORTH    CAROIilNA. 

In  generaL — A  claim,  debt  or  demand 
for  less  than  $200  may  be  collected  in  a  Justice's 
Court.  When  over  $200  in  the  Superior 
Court.   When  over  $200  in  the  Superior  Court. 

Arrest  allowed  only  in  frauds,  tort  dam- 
ages, etc. 

Attachment  is  allowed  against  Non- Resi- 
dents, and  against  Debtors  in  cases  of  fraud, 
whether  the  debt  is  due  or  not. 

Parties  to  the  suit,  or  interested  therein,  are 
competent  Witnesses. 

Costs  of  suit  must  be  secured  in  advance, 
or  the  suit  will  be  dismissed. 

It  is  at  least  10  Days  between  the  service  of 
summons  on  the  Debtor  and  obtaining  of  Judg- 
ment in  the  Superior  Court,  and  2  Days  in 
Justices'  Courts. 

Execution  may  issue  in  any  Court,  after 
entering  of  judgment,  unless  such  execution  is 


6s6 


COLLECTION  OF  CLAIMS,   DEBTS  AND   DAMAGES. 


stayed.      Such   stay   is   allowed   in  Justices' 
Courts  only. 

The  Judgment  of  a  Justice  of  the  Peace, 
when  a  transcript  thereof  is  filed  in  the  office 
of  the  Clerk  of  the  Superior  Court  of  the  county 
where  rendered,  is  a  lien  upon  the  Debtor's 
real  estate  in  such  county.  The  judgment  is  a 
lien  upon  personal  property  only  upon  levy  of 
an  execution. 

OHIO. 

In  general. — A  claim,  debt  or  demand 
for  less  than  ^^300  may  be  collected  in  a  Justice's 
Court.  When  over  ;j!ioo  in  the  Common 
Pleas  and  Superior  Courts. 

Arrest  for  debt  is  allowed  in  cases  of  fraud. 

Attachment  is  allowed  against  Non- Resi- 
dents, Foreign  Corporations  and  against  Debt- 
ors in  cases  of  fraud,  whether  the  debt  is  due 
or  not. 

Parties  to  the  suit,  or  interested  therein, 
are  competent  Witnesses. 

Costs  of  suit  need  not  be  secured  in  ad- 
vance, except  as  to  Non- Residents  and  Cor- 
porations. 

It  is  at  least  29  Days  between  the  service  of 
summons  on  the  Debtor  and  obtaining  of 
f  udgment  in  the  Common  Pleas  or  Superior 
Court,  and  3  Days  in  Justices'  Courts. 

Execution  may  issue  in  the  Common  Pleas 
or  Superior  Court  after  entering  of  judgment, 
and  in  Justices'  Court  in  10  Days,  unless  such 
execution  is  stayed. 

The  Judgment  of  a  Justice  of  the  Peace, 
when  a  transcript  thereof  is  filed  in  the  office 
of  the  Clerk  of  the  Common  Pleas  Court  of  the 
county  where  rendered,  is  a  lien  upon  the 
Debtor's  real  estate  in  such  county.  The 
|udgment  is  a  lien  upon  personal  property  only 
upon  levy  of  an  execution. 

OREGO^r. 

In  general. — A  claim,  debt  or  demand 
for  less  than  $250  may  be  collected  in  a  Jus- 
tice's Court.  When  less  than  $500  in  the 
County  Court.  The  Circuit  Court  has  unlim- 
ited jurisdiction. 

Arrest  for  debt  is  allowed,  in  case  of  fraud. 

Attachment  is  allowed  upon  an  unsecured 
contract  for  the  direct  payment  of  money. 

Parties  to  the  suit,  or  interested  therein, 
are  competent  Witnesses. 

Costs  in  actions  in  Justices'  Courts  may,  in 
the  discretion  of  the  Justice,  be  secured  in 
advance  when  demanded  by  the  defendant, 
or  the  action  will  be  dismissed. 

It  is  at  least  10  Days  between  the  service 
of  summons  on  the  Debtor  and  obtaining  of 
judgment  in  the  Circuit  Court,  and  at  least  5 
Days  in  Justices'  Courts. 

Execution  may  issue  in  any  Court  immedi- 
ately after  entering  of  judgment,  unless  such 
execution  is  stayed. 

The  Judgment  of  a  Justice  of  the  Peace, 
when  a  transcript  thereof  is  filed  in  the  office 
of  the  Clerk  of  the  County  Court  and  docketed 
in  the  Circuit  Court  of  the  county  where  ren- 
dered, is  a  lien  upon  the  Debtor's  real  estate 


in  such  county.  The  judgment  is  a  lien  upon 
personal  property  only  upon  levy  of  an  ex- 
ecution. 

PESTNSTI.VAXIA. 

In  ipenernl.— A  claim,  debt  or  demand  for  less 
than  {300  may  be  collected  at  an  Alderman's,  Justice's 
or  Magistrate's  Court.  In  Philadelphia,  less  than 
^ico,  Nlagistrate's  Court.  When  over  5100  in  the  Com- 
mon Pleas  Court. 

Arrest  for  debt  is  allowed  in  cases  of  fraud. 

Attachment  is  allowed  against  Debtors  in 
cases  of    fraud,   and  against   Non-Residents. 

Parties  to  the  suit,  or  interested  therein,  are 
competent  Witnesses. 

Costs  of  suit  must  be  secured  in  advance, 
when  required  by  the  defendant,  if  plaintiff  is 
a  Non-Resident,  or  the  suit  will  be  dismissed. 

It  is  at  least  15  to  30  Days  between  the  ser- 
vice of  summons  on  the  l^ebtor  and  obtaining 
of  judgment  in  the  Common  Pleas  Court,  and 
5  to  8  Days  in  Justice's  Court. 

Execution  may  issue  in  any  Court  after 
entering  of  judgment,  unless  such  execution  is 
stayed. 

The  Judgment  of  a  Justice  of  the  Peace, 
when  a  transcript  thereof  is  filed  in  the  office 
of  the  Clerk  of  the  Common  Pleas  Court  of  the 
county  where  rendered,  is  a  lien  upon  the 
Debtor's  real  estate  in  such  county.  The  judg- 
ment is  a  lien  upon  personal  property  only  upon 
levy  of  an  execution. 

RHODE  ISIiAND. 

In  general. — District  Courts  have  ex- 
clusive jurisdiction  except  as  otherwise  pro- 
vided, in  civil  cases  up  to  $300.  Common 
Pleas  Courts  have  original  jurisdiction  of  claims 
of  $300  and  upwards,  and  are  concurrent  with 
Supreme  Court. 

Arrest  for  debt  allowed,  except  as  provided. 
Females  not  arrestable  on  original  writ  on 
contracts. 

Attachment  allowed  against  Non-Resi- 
dents,  and  against  Debtors  in  cases  of  conceal- 
ment, fraud  or  absconding. 

Interested  parties  are  competent  Witnesses. 

Costs  must  be  secured  in  advance,  or  suit 
dismissed. 

District  Court  writs  are  returnable  in  not 
less  than  6,  or  more  than  20  Days  before  return 
day. 

Judgment  may  be  entered  on  second  day 
of  term,  where  no  defence  offers.  Judgment 
is  not  a  lien  on  real  estate. 

Execution  may  issue  in  24  hours  after  judg- 
ment, unless  otherwise  ordered.  Court  may 
stay  for  cause. 

SOUTH  CAROI.IIVA. 

In  general. — A  claim,  debt  or  demand 
for  less  than  ^Sioo  may  be  collected  in  a  Jus- 
tice's Court.  The  Common  Pleas  Court  has 
unlimited  jurisdiction. 

Arrest  for  debt  is  not  allowed. 

Attachment  is  allowed  against  Non-Resi 
dents,  Foreign  Corporations  and  against  Debt- 
ors in  cases  of  fraud,  whether  the  debt  is  due  or 
not. 

Parties  to  the  suit,  or  interested  therein, 
are  competent  Witnesses. 


For  Oklahoma  and  South  Dakota  see  page  665. 


COLLECTION  OF  CLAIMS,  DEBTS  AND  DEMANDS. 


6S7 


It  is  at  least  20  Days  between  the  service  of 
summons  on  the  Debtor  and  obtaining  of 
judgment  in  the  Common  Pleas  Court,  and 
20  Days  in  Justice's  Court,  where  more  than 
25  dollars  are  demanded,  and  5  Days  where 
less  than  that  amount  is  demanded. 

A  certified  transcript  of  a  judgment  dock- 
eted in  the  Circuit  Court  Clerk's  office  of  the 
county  where  rendered,  is  a  lien  upon  the  real 
property  of  the  judgment  debtor  therein. 

Execution  may  issue  in  any  Court  after  en- 
tering of  judgment. 

TENNESSEE. 

In  g'eneral. — A  claim,  debt  or  demand 
for  less  than  as  follows ;  Accounts,  Bills  of 
Exchange  against  acceptor,  $50x3,  Promissory 
notes  against  makers  and  indorsers,  where  de- 
mand and  notes  are  expressly  waived,  $1,000 
(against  other  indorsers,  $500),  may  be  col- 
lected in  a  Justice's  Court.  When  over  $50 
in  the  Circuit  Court, 

Arrest  for  debt  is  not  allowed. 

Attachment  is  allowed  against  Non-Resi- 
dents, and  against  Debtors  in  case  of  fraud, 
whether  the  debt  is  due  or  not. 

Parties  to  the  suit,  or  interested  therein, 
are  competent  Witnesses. 

Costs  of  suit  must  be  secured  in  advance, 
or  the  suit  will  be  dismissed. 

It  is  at  least  5  Days  between  the  service  of 
summons  on  the  Debtor  and  obtaining  of 
judgment  in  the  Circuit  Court;  in  Justices' 
Courts  the  date  of  return  is  fixed  by  the  officer 
and  judgment  had  on  day  of  trial. 

Execution  may  issue  in  any  Court  after  en- 
tering of  judgment. 

The  Judgment  of  a  Justice  of  the  Peace, 
when  a  transcript  thereof  is  filed  in  the  office 
of  the  Register's  office  of  the  county  where 
rendered,  is  a  lien  upon  the  Debtor's  real  es- 
tate in  such  county.  The  judgment  is  a  lien 
upon  personal  property  only  upon  levy  of  an 
execution. 

TEXAS. 

In  gfeneral. — A  claim,  debt  or  demand 
for  less  than  |200  may  be  collected  in  a  Jus- 
tice's Court.  When  over  $200  and  under 
J! 1, 000,  in  the  County  Court.  When  over 
^[500  in  the  District  Court. 

Arrest  for  debt  is  not  allowed. 

Attachment  is  allowed  against  Non-Resi- 
dents,  and  against  Debtors  in  cases  of  fraud, 
whether  the  debt  is  due  or  not. 

Parties  to  the  suit,  or  interested  therein, 
are  competent  witnesses. 

Costs  of  suit  must  be  secured  in  advance, 
or  the  suit  will  be  dismissed. 

Citations  shall  be  served  at  least  ten  days 
before  return  day  of  Courts,  to  compel  defend- 
ant to  plead  at  return  day.  Citations  issued 
too  late,  or  which  cannot  be  served  in  time, 
must  seek  service  to  next  term  of  Court. 

Execution  may  issue  in  any  Court  after  en- 
tering of  judgment,  unless  such  execution  is 
stayed.  Such  stay  is  allowed  in  Justices' 
Courts  only. 


UTAH. 

In  g'eneral. — A  claim,  debt  or  demand 
for  less  than  ^$300  may  be  collected  in  a  Jus- 
tice's Court.  When  over  ^^300,  in  the  Dis- 
trict Court. 

Arrest  for  debt  is  allowed  after  judgment, 
and  execution  returned  unsatisfied,  and  on 
affidavit  of  judgment  creditor,  and  then  only 
for  nomination  as  to  his  property. 

Attachment  is  allowed  against  Non-Resi- 
dents, and  against  Debtors  in  cases  of  fraud, 
whether  the  debt  is  due  or  not. 

Parties  to  the  suit,  or  interested  therein, 
are  competent  Witnesses. 

Costs  of  suit  must  be  secured  in  advance, 
or  the  suit  will  be  dismissed  if  plaintiff  is  a 
Non- Resident. 

It  is  at  least  10  to  40  Days  between  the  ser- 
vice of  summons  on  the  Debtor  and  obtaining 
of  judgment  in  the  District  Court,  and  2  to 
10  Days  in  Justices'  Courts. 

Execution  may  issue  in  any  Court  after  en- 
tering of  judgment  in  that  Court. 

The  Judgment  of  a  Justice  of  the  Peace, 
when  a  transcript  thereof  is  filed  in  the  office 
of  the  Clerk  of  the  District  Court  of  the  county 
where  rendered,  is  a  lien  upon  the  Debtor's 
real  estate  in  such  county.  The  judgment  is 
a  lien  upon  personal  property  only  upon  levy 
of  an  execution. 

TERMONT. 

In  general. — A  claim,  debt  or  demand 
not  above  ;J200  may  be  collected  in  a  Justice's 
Court.   When  over  ;f  200  in  the  County  Court. 

Arrest  for  debt  only  in  special  cases  is  al- 
lowed. Females  are  not  subject  to  arrest  for 
debt. 

Attachment  is  allowed  against  Non-Resi- 
dents, and  against  Debtors  in  cases  of  fraud, 
whether  the  debt  is  due  or  not. 

Trustee  Process  is  allowed  in  all  actions 
founded  upon  contract,  express  or  implied, 
where  the  claim  sought  to  be  enforced  and 
the  credits  in  the  hands  of  the  trustee  exceed 
$10. 

Parties  to  the  suit,  or  itnerested  therein, 
are  competent  Witnesses. 

Costs  of  suit  must  be  secured  in  advance, 
or  the  suit  will  be  dismissed. 

It  is  at  least  1 2  Days  between  the  service  of 
summons  on  the  Debtor  and  obtaining  of 
judgment  in  the  County  Court,  and  6  Days 
in  Justices'  Courts. 

Execution  may  issue  in  any  Court  after 
entering  of  judgment. 

VIRGINIA. 

In  generaL — A  claim,  debt  or  demand 
for  less  than  ;Jioo  may  be  collected  in  a  Jus- 
tice's Court,  but  if  over  ;g2o,  defendant  may 
remove  to  County  Court.  The  Circuit  Court 
has  general  jurisdiction. 

Arrest  for  debt  not  allowed,  except  of  ab- 
sconding debtors. 

Attachment  is  allowed  against  Non-Resi- 
dents,  and  against  Debtors  in  cases  of  fraud* 
whether  the  debt  is  due  or  not. 


658 


COLLECTION  OF  CLAIMS,   DEBTS   AND   DEMANDS. 


Parties  to  the  suit,  or  interested  therein, 
are  competent  Witnesses, 

Costs  of  suit  must  be  secured  in  advance, 
or  the  suit  will  be  dismissed. 

It  is  at  least  2  rule  Days  between  the  ser- 
vice of  summons  on  the  Debtor  and  obtaining 
of  judgment  in  the  Circuit  Court,  and  60 
Days  in  Justices'  Courts. 

Execution  may  issue  in  any  Court  after 
entering  of  judgment,  unless  stayed  by  forth- 
coming bond. 

The  judgment  of  a  Justice  of  the  Peace, 
when  a  transcript  thereof  is  filed  in  the  office 
of  the  Clerk  of  the  County  Court  of  the  coun- 
ty where  rendered,  is  a  lien  upon  the  Debtor's 
real  estate  in  such  county.  The  judgment  is 
■{  lien  upon  personal  property  only  upon  levy 
of  an  execution. 

•WASHINGTON. 

In  gfeueraL — A  claim,  debt  or  demand 
for  less  than  ;f  100  may  be  collected  in  a  Jus- 
tice's Court.  The  Superior  Court  has  general 
jurisdiction. 

Imprisonment  for  debt  not  allowed  ex- 
cept in  case  of  absconding  debtors.  (Con.  of 
State.) 

Attachment  is  allowed  against  Non-Resi- 
dents,  and  against  Debtors  in  cases  of  fraud, 
whether  the  debt  is  due  or  not. 

Parties  to  the  suit,  or  interested  therein, 
are  competent  Witnesses. 

Costs  of  suit,  if  brought  ^y  a  Non-Resident 
of  the  State,  must  be  secured  in  advance,  if 
demanded  by  the  defendant,  or  the  suit  will 
be  dismissed. 

It  is  at  least  20  to  60  Days  between  the  ser- 
vice of  summons  on  the  Debtor  and  obtaining 
of  judgment  in  the  Superior  Court,  and  6  to 
20  Days  in  Justices'  Courts. 

Execution  may  issue  in  any  Court  after 
entering  of  judgment,  unless  such  execution 
s  stayed. 

The  Judgment  of  a  Justice  of  the  Peace, 
when  a  transcript  thereof  is  filed  in  the  Coun- 
ty Clerk's  office  of  the  county  where  rendered, 
is  a  lien  upon  the  Debtor's  real  estate  in  such 
county.  The  judgment  is  a  lien  upon  personal 
property  only  upon  lew  of  an  execution. 
W^EST  VIRGINIA. 

In  generaL — A  claim,  debt  or  demand 
for  less  than  JJ300  may  be  collected  in  a  Jus- 
tice's Court.  When  over  $^0,  in  the  Circuit 
Court. 

Arrest  for  debt  is  allowed. 

Attachment  is  allowed  against  Non-Resi- 
dents,  and  against  Debtors  in  cases  of  fraud, 
whether  the  debt  is  due  or  not. 

Parties  to  the  suit,  or  interested  therein, 
are  competent  Witnesses. 

Costs  of  suit  must  be  secured  in  advance, 
or  the  suit  will  be  dismissed. 

It  is  at  least  2  rule  Days  between  the  ser- 
vice of  summons  on  the  Debtor  and  obtaining 
of  judgment  in  the  County  Courts,  and  any 
time  in  6  to  30  Days  in  Justices'  Courts. 
Execution  may  issue  in  any   Court  after 


entering  of  judgment,  unless  such  execution 
is  stayed.  Such  stay  is  allowed  in  Justices' 
Courts. 

The  Judgment  of  a  Justice  of  the  Peace, 
when  a  transcript  thereof  is  filed  in  the  office 
of  the  Clerk  of  the  County  Court  of  the  county 
where  rendered,  is  a  lien  upon  the  Debtor's 
real  estate  in  such  county.  The  judgment  is 
a  lien  upon  personal  property  only  upon  levy 
of  an  execution. 

WISCONSIN. 

In  gfeneral* — A  claim,  debt  or  demand 
for  less  than  $200  may  be  collected  in  a  Jus- 
tice's Court.  The  Circuit  Court  has  general 
jurisdiction. 

Arrest  allowed  in  tort  actions  only. 

Attachment  is  allowed  against  Non-Resi- 
dents, and  against  Debtors  in  cases  of  fraud, 
whether  the  debt  is  due  or  not. 

Parties  to  the  suit,  or  interested  therein, 
are  competent  Witnesses. 

Costs  of  suit  must  be  secured  in  advance, 
or  the  suit  will  be  dismissed. 

It  is  at  least  20  Days  between  the  service 
of  summons  on  the  Debtor  and  obtaining  of 
judgment  in  the  Circuit  Court,  and  6  Days 
in  Justices'  Courts. 

Execution  may  issue  in  any  Court  imme- 
diately after  entering  of  judgment,  unless  such 
execution  is  stayed.  Such  stay  is  allowed  in 
Justices'  Courts  only. 

The  Judgment  of  a  Justice  of  the  Peace, 
when  a  transcript  thereof  is  filed  in  the  office 
of  the  Clerk  of  the  Circuit  Court  of  the  county 
where  rendered,  is  a  lien  upon  the  Debtor's 
real  estate  in  such  county.  The  judgment  is 
a  lien  upon  personal  property  only  when  lev- 
ied upon  under  an  execution. 
TTYOMING. 

In  general. — A  claim,  debt  or  demand 
for  less  than  $200  may  be  collected  in  a  Jus- 
tice's Court.  The  District  Court  has  general 
jurisdiction. 

Arrest  for  debt  is  allowed.  (Except  fe- 
males.) 

Attachment  is  allowed  against  Non-Resi- 
dents,  and  against  Debtors  in  cases  of  fraud, 
whether  the  debt  is  due  or  not. 

Parties  to  the  suit,  or  interested  therein, 
are  competent  Witnesses. 

Costs  of  suit  must  be  secured  in  advance, 
or  the  suit  will  be  dismissed. 

It  is  at  least  30  to  35  Days  between  the  ser- 
vice of  summons  on  the  Debtor  and  obtaining 
of  Judgment  in  the  District  Court  and  3  Days 
in  Justices'  Courts. 

Execution  may  issue  in  any  Court  after 
entering  of  judgment,  unless  such  execution  is 
stayed.  Such  stay  is  allowed  in  Justices' 
Courts. 

The  Judgment  of  a  Justice  of  the  Peace, 
when  a  transcript  thereof  is  filed  in  the  office 
of  the  Clerk  of  the  District  Court  of  the  county 
where  rendered  is  a  lien  upon  the  Debtor's 
real  estate  in  such  County.  The  judgment  is 
a  lien  upon  personal  property  only  upon  levy  | 
i  of  an  execution. 


COLLECTION   OF   CLAIMS,    DEBTS  AND   DEMANDS. 


659 


OKI.AHOMA. 

The  civil  code  of  Kansas  is  in  force,  with 
few  changes. 

SOUTH   DAKOTA. 

In  geiieraL — Circuit  Courts  have  un- 
limited jurisdiction.  County  Courts  have  orig- 
inal probate  jurisdiction  and  concurrent  juris- 
diction with  Circuit  Courts  in  counties  whose 
population  is  over  10,000,  to  amount  of  $1,- 
000;  in  other  counties  to  $500.  Justices' 
Courts  have  jurisdiction  where  claim  does  not 
exceed  ^loo  and  title  to  real  estate  is  not  in- 
volved. 

Arrest  allowed  in  cases  not  arising  out  of 
contract,  where  defendant  is  Non-Resident  or 
about  to  remove,  for  penalties,  damages  for 
breach  of  promise,  embezzlement,  concealment 
of  property,  fraud. 

Attachment  issues  against  Non-Residents, 


and  against  Debtors  for  concealment  of  prop- 
erty, removal,  or  fraud. 

Interested  parties  may  be  witnesses. 

In  Circuit  or  County  Courts  defendant  has 
30  Days,  exclusive  of  day  of  service,  in  which 
to  answer  before  judgment  can  be  had  for  de- 
fault. In  Justices'  Courts  summons  returnable 
in  not  less  tlian  three  nor  more  than  12  Days, 
and  judgment  may  be  entered  on  day  of  re- 
turn. Service  may  be  had  by  6  weeks'  publi- 
cation in  newspapers,  where  defendant  can- 
not be  found. 

Money  judgments  in  Circuit  or  County 
Courts  are  a  lien  on  all  real  property  except 
homestead,  in  any  county  where  judgment  or 
transcript  of  same  is  entered.  Execution  may 
issue  any  time  in  5  years,  returnable  to  Cir- 
cuit and  County  Courts  in  60,  and  to  Justices' 
Courts  in  30  Days. 


Summary  of  Collection  Laws 

In  the  Dominion  of  Canada. 


Agralnst  Rstates  of  Deceased  Persons. 

See  title  "  Limitationg,"^<7f/. 
Assignment    and    Insolvency.— See  that 

title,  post. 
Exemption  liaws. — See  that  title, /cj/. 
Interest  upon  Money. — See  that  title, /of/. 
Ltmitntiou  of  Actions  or  Suits. — See  that 

title,  post. 

PROVINCE  OF  NEW  BRUNSWICK. 

Jurisdiction  of  Courts. — Magistrates  $20, 
in  tort  $8;  Parish  Courts,  $80  in  debt,  $32  in 
tort ;  County  Courts,  j$20  to  ;SS400  in  debt,  ^200 
in  tort ;  Supreme  Court,  $400  and  upwards. 

Arrest. — On  affidavit  setting  forth  cause  of 
action,  amount  due,  and  that  arrest  is  not  made 
for  the  purpose  of  vexing  or  harrassing  debtor. 
Discharge  upon  showing  no  property. 

Attachment  is  allowed  against  Non-Resi- 
dents, and  against  Debtors  in  cases  of  fraud, 
for  $40  and  upwards. 

Parties  to  the  suit,  or  interested  therein, 
are  competent  Witnesses. 

Costs  of  suit  must  be  secured  in  advance, 
when  required  by  the  defendant,  or  the  suit 
will  be  dismissed. 

It  is  at  least  30  Days  between  the  service  of 
summons  on  the  Debtor  and  obtaining  of  judg- 
ment in  the  County  Court,  and  60  Days  in  the 
Supreme  Court. 

Execution  may  issue  in  any  Court  after 
entering  of  judgment. 

PROVINCE  OF  NOVA  SCOTIA. 

In  g^eneral. — A  claim,  debt  or  demand 
for  less  than  JSo  may  be  collected  in  a  Justice's 
Court.  When  less  than  $20  and  not  over  $400 
in  the  County  Court.  When  over  J80  in  the 
Supreme  Court. 

Arrest  for  debt  is  allowed. 

Attachment  is  allowed  against  Non-Resi- 
dents, and  against  Debtors  in  cases  of  fraud, 
whether  the  debt  is  due  or  not. 

Parties  to  the  suit,  or  interested  therein, 
are  competent  Witnesses. 

Costs  of  suit  must  be  secured  in  advance, 
if  required,  or  the  suit  will  be  dismissed. 

Execution  may  issue  in  any  Court  after  en- 
tering of  judgment. 

PROVINCE  OP  ONTARIO. 

In  g^eneral. — Claims  for  iSloo  or  less  on 
open  accounts,  and  $200  or  less  on  defendant's 
signature,  collectible  in  Division  Court,  but 
personal  actions  limited  to  ;$6o.  Claims  and 
personal  actions  from  t\<X)  to  ;S!2oo,  collectible 
in  County  Court,  and  up  to  JI400  where  claim 
is  ascertained  by  defendant's  signature  or  act 
of  parties.  High  Court  of  Justice  has  juris- 
diction of  all  other  cases. 

Arrest  and  Imprisonment  for  debt  is  re- 
stricted to  $100  and  over  and  to  cases  of  ab- 

(660) 


sconding  or  fraudulent  creditors.  Privileged 
Persons  and  Married  Women  cannot  be  ar- 
rested ;  there  can  be  no  arrest  for  non-pay- 
ment of  costs,  nor  on  judgments  for  penalties 
or  forfeitures,  etc.'> 

Attachment  for  Debt  is  allowed  against 
property  of  and  debts  due  absconding  debtors.^ 

Parties  to  a  Suit,  or  persons  in  whose  be- 
half any  suit,  action  or  other  proceeding  is 
brought,  instituted,  or  opposed,  or  defended, 
are,  with  some  exceptions,  competent  and  com- 
pellable to  give  evidence  viva  voce  or  by  de- 
position, etc.* 

Costs  of  Suits  by  non-residents  should  be 
secured  in  advance,  or  the  suit  may  be  dis- 
missed. 

Judgments  of  Division  Courts  are  obtained 
in  from  12  to  16  Days  and  execution  had 
against  lands  after  return  of  N.  B.  where 
amount  is  over  $40. 

Execution  writs  issue  from  the  offices  where 
judgment  is  entered ;  in  the  Superior  Courts 
of  Law  after  transmission  of  judgment  roll  to 
the  principal  office.  Such  writs  may  issue  at 
once  into  any  county,  etc' 

PROVINCE  OF  QUEBEC. 

In  general. — A  party  having  a  claim, 
debt,  or  demand  against  another,  enjoying  the 
free  exercise  of  his  rights,  may  sue  therefor 
in  the  proper  court. 

Action  before  the  Superior  Court  is  insti- 
tuted by  summons,  issued,  sealed  and  signed 
by  the  prothonotary  upon  written  requisition 
of  the  plaintiff,  either  in  the  French  or  English 
language. 

Jurisdiction  of  Courts. — Circuit  Court  up 
to;$ioo;  Superior  Courts  all  amounts  above 
;5!ioo.     Judgment  notes  not  allowed. 

Parties  may  appear  in  person  or  by  attor« 
ney.  Parlies  cannot  avail  themselves  of  their 
own  testimony  except  in  commercial  matters. 
Relationship  or  interest  does  not  render  a 
witness  incompetent;  it  merely  affects  his 
credibility. 

Arrest  and  Imprisonment  for  debt  and 
damages  is  allowed,  on  certain  conditions, 
where  amount  exceeds  $40. 

Simple  Attachment  for  debt  is  allowed, 
also  Attachment  by  Garnishment,  Attach- 
ment in  revendication  and  Attachment 
for  rent. 

Judgments  may  generally  be  enforced  by 
execution  15  Days  after  their  date  and  8  Days 
after  they  are  rendered  in  summary  matters, 
as  bills,  notes,  accounts,  etc. 

b-C.  S.  U.  C.  c.  24.  o-C.  S.  U.  C.  c.  24 :  Id.  c.  19  ; 
8. 10?.  d-33  V.  c.  13,  s.  4 ;  36  V.  c  10,  s.  I.  f-C.  S 
U.C.C.  23,  s.  346-7.    Id.c.  <9,s.  13$.    Id.  c.  IS,  (,  33. 


IVATIOlVAIi    BA]¥KRIJPT€Y    liAW. 


The  Act  of  Congress  entitled  "An  act  to 
establish  a  uniform  system  of  bankruptcy 
throughout  the  United  States,"  approved  July 
I,  1898,  while  it  does  not  render  State  insolv- 
ency or  bankruptcy  laws  void,  yet  makes  them 
inoperative  in  so  far  as  they  conflict  with  those 
of  Congress,  and  so  long  as  the  national  act 
remains  unrepealed. 

TO  WHOM  THE  ACT  APPLIES. 

Any  f>erson  who  owes  debts,  except  a  cor- 
poration, shall  be  entitled  to  the  benefits  of 
the  act  as  a  voluntary  bankrupt  and  become 
discharged  from  his  debts  as  hereinafter  stated, 
and  may  file  his  own  petition  for  that  purpose. 

Any  natural  person,  except  a  wage-earner 
or  a  person  engaged  chiefly  in  farming  or  the 
tillage  of  the  soil,  any  unincorporated  com- 
pany, and  any  corporation  engaged  principally 
in  manufacturing,  trading,  printing,  publish- 
ing, or  mercantile  pursuits,  owing  debts  to  the 
amount  of  one  thousand  dollars  or  over,  may 
be  adjudged  an  involuntary  bankrupt  upon 
default  or  an  impartial  trial,  and  shall  be  sub- 
ject to  the  provisions  and  entitled  to  the  bene- 
fits of  this  act.  Private  bankers,  but  not  na- 
tional banks  or  banks  incorporated  under  State 
or  Territorial  laws,  may  be  adjudged  involun- 
tary bankrupts. 

A  partnership  may  be  adjudged  a  bankrupt ; 
its  property  will  be  applied  primarily  to  paying 
partnership  debts,  and  that  of  an  individual 
bankrupt  partner  will  be  applied  primarily  to 
the  payment  of  his  individual  debts.  Sliould 
any  surplus  of  the  partnership  assets  remnin 
after  paying  his  individual  debts,  it  will  be 
applied  to  payment  of  the  partnership  debts, 
and  if  any  surplus  remains  of  the  partnersliip 
assets,  after  payment  of  the  partnership  debts, 
such  portion  of  it  as  the  individual  partner  is 
entitled  to  will  be  applied  to  paying  his  indi- 
vidual debts.  Where  one  partner  is  a  bank- 
rupt and  another  not,  he  who  is  not  can  pre- 
vent the  partnership  property  being  adminis- 
tered in  bankruptcy  by  himself  settling  the 
partnership  business  as  expeditiously  as  its 
nature  will  admit,  and  accounting  for  the  in- 
terest of  the  bankrupt  partner. 
WHAT  ARE  ACTS  OF  BANKKiCPTCY. 

Acts  of  bankruptcy  by  a  person  (and  this  in- 
cludes corporations,  partnerships,  and  women) 
shall  consist  of  his  having  (i)  conveyed,  trans- 
ferred, concealed,  or  removed,  or  permitted  to 
be  concealed  or  removed,  any  part  of  his 
property,  with  intent  to  hinder,  delay,  or  de- 
fraud his  creditors,  or  any  of  them;  or  [2) 
transferred,  while  insolvent,  any  portion  of  his 
property  to  one  or  more  of  his  creditors  with 
intent  to  prefer  such  creditors  over  his  other 
creditors  ;  or  (3)  suffered  or  permitted,  while 
insolvent,  any  creditor  to  obtain  a  preference 
through  legal  proceedings,  and  not  having  at 
least  five  days  before  a  sale  or  final  disposition 
of  any  property  aflTected  by  such  preference 
vacated  or  discharged  such  preference ;  or  (4) 
made  a  general  assignment  for  the  benefit  of 


his  creditors;  or  (5)  admitted  in  writing  his 
inability  to  pay  his  debts  and  his  willingness 
to  be  adjudged  a  bankrupt  on  that  ground. 
In  case  of  a  contest  the  burden  of  proof  as  to 
his  solvency  is  upon  the  alleged  bankrupt. 

A  person  is  deemed  insolvent  within  the 
meaning  of  the  act  whenever  the  aggregate  of 
his  property,  exclusive  of  any  property  which 
he  may  have  conveyed,  transferred,  concealed, 
or  removed,  or  permitted  to  be  concealed  or 
removed,  with  intent  to  defraud,  hinder,  or 
delay  his  creditors,  shall  not,  at  a  fair  valua- 
tion, be  sufficient  in  amount  to  pay  his  debts. 

Proceedings  may  be  instituted  against  a 
person  who  is  insolvent  and  who  has  com- 
mitted an  act  of  bankruptcy  within  four  months 
after  the  commission  of  such  act.  Such  time 
shall  not  expire  until  four  months  after  the 
date  of  the  recording  or  registering  of  the 
transfer  or  assignment,  when  the  act  consists 
in  having  made  a  transfer  or  assignment  of 
any  of  his  property  with  intent  to  hinder,  delay 
or  defraud  his  creditors,  or  for  the  purpose  or 
giving  a  preference  as  above  mentioned,  of 
when  it  consists  of  a  general  assignment  for 
the  benefit  of  his  creditors,  if  by  law  such  re- 
cording or  registering  is  required  or  permitted, 
or  if  it  is  not,  from  the  date  when  the  bene- 
ficiary takes  notorious,  exclusive  or  continuous 
possession  of  the  property,  unless  the  petition- 
mg  creditors  have  received  actual  notice  of 
such  transfer  or  assignment. 

If  a  bankrupt  shall  have  given  a  preference 
within  four  months  before  the  filing  of  a  peti- 
tion, or  after  the  filing  of  the  petition  and  be- 
fore the  adjudication,  and  the  person  receiving 
it,  or  to  be  benefited  thereby,  or  his  agent  act- 
ing therein,  shall  have  had  reasonable  cause 
to  believe  that  it  was  intended  thereby  to  give 
a  preference,  it  shall  be  voidable  by  the  trustee, 
and  he  may  recover  the  property  or  its  value 
from  such  person. 

If  pending  a  decision  as  to  whether  a  person 
has  committed  an  act  of  bankruptcy,  the  appli- 
cant desires  the  alleged  bankrupt  property  to 
be  taken  charge  of,  he  must  give  bond  to  in- 
demnify the  respondent  against  costs,  expenses, 
and  damages,  by  reason  of  such  seizure;  and 
if  the  petition  for  a  decree  of  bankruptcy  be 
dismissed  by  the  court  or  withdrawn  by  the 
petition,  the  respondent  or  respondents  shall 
be  allowed  all  costs,  counsel  fees,  expenses, 
and  damages  occasioned  by  such  seizure  or 
detention.  Counsel  fees,  costs,  expenses,  and 
damages  shall  be  fixed  and  allowed  by  the 
court  and  paid  by  the  obligors  in  such  bond. 

COURTS  or  BANKRUPTCY. 

The  District  Courts  of  the  United  States, 
the  Supreme  Court  of  the  District  of  Colum- 
bia, the  District  Courts  of  the  several  Territo- 
ries, and  United  States  courts  in  the  Indian 
Territory  and  of  Alaska  are  courts  of  bank- 
ruptcy. 

United  States  Circuit  Courts  have  concur- 
(661) 


663 


NATIONAL   BANKRUPTCY   LAW. 


rent  jurisdiction  with  the  courts  of  bankruptcy 
within  their  respective  territorial  limits  of  ol- 
fenses  against  the  bankruptcy  act.  Appeals 
may  be  taken  to  the  higher  United  States 
courts  under  circumstances  and  upon  compli- 
ance with  the  conditions  imposed  by  law. 
DUTIES  OF  BANKKUPTS. 

A  bankrupt  must  obey  all  lawful  orders  of 
the  court,  examine  the  correctness  of  all  proofs 
of  claims  filed  against  his  estate,  and  generally 
furnish  such  information  as  shall  facilitate  the 
settlement  of  his  estate  to  the  end  that  equity 
and  justice  may  be  done.  If  he  be  an  insolv- 
ent bankrupt  he  must  prepare,  make  oath  to 
and  file  within  lo  days  after  he  is  declared  a 
bankrupt  by  the  court,  unless  specially  allowed 
a  longer  time,  a  complete  itemized  schedule 
of  his  property,  with  the  value  thereof  and  a 
list  of  his  creditors,  with  the  particulars  of  his 
debt  to  each. 

If  it  appear  that  a  bankrupt  is  about  to  leave 
to  avoid  being  examined  as  to  his  affairs,  and 
that  his  departure  will  defeat  the  proceedings 
in  bankruptcy,  the  court  or  a  judge  may  order 
the  marshal  to  keep  him  in  custody,  but  not 
imprison  him,  temporarily,  or  until  he  give 
bond  to  appear  for  such  examination. 
COMPOSITIONS. 

A  bankrupt  may  make  a  composition  with 
his  creditors  with  the  consent  of  a  majority  of 
them  in  numbers,  representing  a  majority  in 
amount  of  claims,  if  the  money  necessary  to 
pay  them  the  amount  agreed  upon  and  to  pay 
preferred  claims  and  the  costs  of  proceeding 
be  actually  deposited  subject  to  the  order  of 
the  judge,  said  bankrupt  having  been  first  ex- 
amined as  to  his  assets  and  liabilities  in  open 
court  or  at  a  meeting  of  his  creditors,  and 
having  filed  in  court  a  schedule  of  his  property 
and  a  list  of  his  creditors  above  referred  to, 
provided  the  judge  be  satisfied  that  the  com- 
position is  for  the  best  interests  of  his  creditors, 
and  that  the  bankrupt  has  done  his  duty  and 
acted  in  good  faith  in  the  premises.  A  com- 
position may  be  set  aside  within  six  months 
after  comfirmation  of  the  same  by  the  court, 
if  it  appear  that  fraud  was  practiced  in  procur- 
ing the  same. 

A  certified  copy  of  an  order  confirming  a 
composition  shall  constitute  evidence  of  re- 
vesting of  title  of  his  property  in  the  bankrupt, 
and  if  recorded  shall  impart  the  same  notice 
that  a  deed  from  the  trustee  to  the  bankrupt, 
if  recorded,  would  impart. 

DISCHARGE   OF  DEBTS 

When  Granted. — Any  person  may,  after 
the  expiration  of  one  month  and  within  the 
next  twelve  months  subsequent  to  being  ad- 
judged a  bankrupt,  file  an  application  for  a 
discharge  in  the  court  of  bankruptcy  in  which 
the  proceedings  are  pending ;  if  it  shall  be 
made  to  appear  to  the  judge  that  the  bankrupt 
was  unavoidably  prevented  from  filing  it  within 
such  time,  it  may  be  filed  within  but  not  after 
the  expiration  of  the  next  six  months. 

The  judge  shall  hear  an  application  for  a 


discharge,  and  such  proofs  and  pleas  as  may 
be  made  in  opposition  thereto  by  parties  in 
interest,  at  such  time  as  will  give  parties  in 
interest  a  reasonable  opportunity  to  be  fully 
heard,  and  investigate  the  merits  of  tne  appli- 
cation and  discharge  the  applicant  unless  he 
has  (i)  committed  an  offense  punishable  by 
imprisonment  as  herein  provided ;  or  (2)  with 
fraudulent  intent  to  conceal  his  true  financial 
condition  and  in  contemplation  of  bankruptcy, 
destroyed,  concealed,  or  failed  to  keep  books 
of  account  or  records  from  which  his  true  con- 
dition might  be  ascertained. 

The  confirmation  of  a  composition  shall 
discharge  the  bankrupt  from  his  debts,  other 
than  those  agreed  to  be  paid  by  the  terms  of 
the  composition  and  those  not  affected  by  a 
discharge. 

When  Revoked, — The  judge  may,  upon 
the  application  of  parties  in  interest  who  have 
not  been  guilty  of  undue  laches,  filed  at  any 
time  within  one  year  after  a  discharge  shall 
have  been  granted,  revoke  it  upon  a  trial  if  it 
shall  be  made  to  appear  that  it  was  obtained 
through  the  fraud  of  the  bankrupt,  and  that 
the  knowledge  of  the  fraud  has  come  to  the 
petitioners;  since  the  granting  of  the  discharge, 
and  that  the  actual  facts  did  not  warrant  the 
discharge. 

Co-debtors  of  Bankrupts. — The  liability 
of  a  person  who  is  a  co-debtor  with,  or  guar- 
antor or  in  any  manner  a  surety  for,  a  bank- 
rupt shall  not  be  altered  by  the  discharge  of 
such  bankrupt. 

Debts  not  Afifected  by  a  Discharge, — A 
discharge  in  bankruptcy  shall  release  a  bank- 
rupt from  all  of  his  provable  debts,  except  such 
as  (i)  are  due  as  a  tax  levied  by  the  United 
Stales,  the  State,  county,  district,  or  municipal- 
ity in  which  he  resides  ;  (2)  are  judgments  in 
actions  for  frauds,  or  obtaining  property  by 
false  pretenses  or  false  representations,  or  for 
willful  and  malicious  injuries  to  the  person  or 
property  of  another ;  (3)  have  not  been  duly 
scheduled  in  time  for  proof  and  allowance, 
with  the  name  of  the  creditor  if  known  to  the 
bankrupt,  unless  such  creditor  had  notice  or 
actual  knowledge  of  the  proceedings  in  bank- 
ruptcy ;  or  (4)  were  created  by  his  fraud,  em- 
bezzlement, misappropriation,  or  defalcation 
while  acting  as  an  officer  or  in  any  fiduciary 
capacity. 

CREDITORS. 

Meetings — The  court  shall  cause  the  first 
meeting  of  the  creditors  of  a  bankrupt  to  be 
held,  not  less  than  ten  nor  more  than  thirty 
days  after  the  adjudication,  at  the  county  seat 
of  the  county  in  which  the  bankrupt  has  had 
his  principal  place  of  business,  resided,  or  had 
his  domicile ;  or  if  that  place  would  be  mani- 
festly inconvenient  as  a  place  of  meeting  for 
the  parties  in  interest,  or  if  the  bankrupt  is  one 
who  does  not  do  business,  reside,  or  have  his 
domicile  within  the  United  States,  the  court 
shall  fix  a  place  for  the  meeting  which  is  the 
most  convenient  for  parties  in  interest.     If 


NATIONAL  BANKRUPTCY   LAW. 


663 


such  meeting  should  by  any  mischance  not  be 
held  within  such  time,  the  court  shall  fix  the 
date,  as  soon  as  may  be  thereafter,  when  it 
shall  he  held. 

At  the  first  meeting  of  creditors  the  judge  or 
referee  shall  preside,  and,  before  proceeding 
with  the  other  business,  may  allow  or  disallow 
the  claims  of  creditors  there  presented,  and 
may  publicly  examine  the  bankrupt  or  cause 
him  to  be  examined  at  the  instance  of  any 
creditor. 

The  creditors  shall  at  each  meeting  take 
such  steps  as  may  be  pertinent  and  necessary 
for  the  promotion  of  the  best  interests  of  the 
estate  and  the  enforcement  of  this  act. 

A  meeting  of  creditors,  subsequent  to  the 
first  one,  may  be  held  at  any  time  and  place 
when  all  of  the  creditors  who  have  secured 
the  allowance  of  their  claims  sign  a  written 
consent  to  hold  a  meeting  at  such  time  and 
place. 

The  court  shall  call  a  meeting  of  creditors 
whenever  one-fourth  or  more  in  number  of 
those  who  have  proven  their  claims  shall  file 
a  written  request  to  that  effect ;  if  such  request 
is  signed  by  a  majority  of  such  creditors,  which 
number  represents  a  majority  in  amount  of 
such  claims,  and  contains  a  request  for  such 
meeting  to  be  held  at  a  designated  place,  the 
court  shall  call  such  meeting  at  such  place 
within  thirty  days  after  the  date  of  the  filing 
of  the  request. 

Whenever  the  affairs  of  the  estate  are  ready 
to  be  closed  a  final  meeting  of  creditors  shall 
be  ordered. 

Voters  at  Meetings  of  Creditors. — Cred- 
itors shall  pass  upon  matters  submitted  to  them 
at  their  meetings  by  a  majority  vote  in  number 
and  amount  of  claims  of  all  creditors  whose 
claims  have  been  allowed  and  are  present, 
except  as  by  law  otherwise  provided. 

Creditors  holding  claims  which  are  secured 
or  have  priority  shall  not,  in  respect  to  such 
claims,  be  entitled  to  vote  at  creditors'  meet- 
ings, nor  shall  such  claims  be  counted  in  com- 
puting either  the  number  of  creditors  or  the 
amount  of  their  claims,  unless  the  amounts  of 
such  claims  exceed  the  values  of  such  securi- 
ties or  priorities,  and  then  only  for  such  excess. 

Proof  and  Allowance  of  Claims. — Proof 
of  claims  shall  consist  of  a  statement  under 
oath,  in  writing,  signed  by  a  creditor  setting 
forth  the  claim,  the  consideration  therefor, 
and  whether  any,  and,  if  so,  what,  securities 
are  held  therefor,  and  whether  any,  and,  if  so, 
what,  payments  have  been  made  thereon,  and 
that  the  sum  claimed  is  justly  owing  from  the 
bankrupt  to  the  creditor. 

Whenever  a  claim  is  founded  upon  an  in- 
strument of  writing,  such  instrument,  unless 
lost  or  destroyed,  shall  be  filed  with  the  proof 
of  claim.  If  such  instrument  is  lost  or  de- 
stroyed, a  statement  of  such  fact  and  of  the 
circumstances  of  such  loss  or  destruction  shall 
be  filed  under  oath  with  the  claim.  After  the 
claim  is  allowed  or  disallowed,  such  instru- 


ment may  be  withdrawn  by  permission  of  the 
court,  upon  leaving  a  copy  thereof  on  file  with 
tlie  claim. 

Claims  after  being  proved  may,  for  the  pur- 
pose of  allowance,  be  filed  by  the  claimants  in 
the  court  where  the  proceedings  are  pending, 
or  before  the  referee  if  the  case  has  been  re- 
ferred. 

Claims  which  have  been  duly  proved  shall 
be  allowed,  upon  receipt  by  or  upon  presen- 
tation to  the  court,  unless  objection  to  their 
allowance  shall  be  made  by  parties  in  interest, 
or  their  consideration  be  continued  for  cause 
by  the  court  upon  its  own  motion. 

Claims  of  secured  creditors  and  those  who 
have  priority  may  be  allowed  to  enable  such 
creditors  to  participate  in  the  proceedings  at 
creditors'  meetings  held  prior  to  the  determin- 
ation of  the  value  of  their  securities  or  priori- 
ties, but  shall  be  allowed  for  such  sums  only 
as  to  the  courts  seem  to  be  owing  over  and 
above  the  value  of  their  securities  or  priorities. 

The  claims  of  creditors  who  have  received 
preferences  shall  not  be  allowed  unless  such 
creditors  shall  surrender  their  preferences. 

The  value  of  securities  held  by  secured 
creditors  shall  be  determined  by  converting 
the  same  into  money  according  to  the  terms  of 
the  agreement  pursuant  to  which  such  securi- 
ties were  delivered  to  such  creditors  or  by 
such  creditors  and  the  trustee,  by  agreement, 
arbitration,  compromise,  or  litigation,  as  the 
court  may  direct,  and  the  amount  of  such 
value  shall  be  credited  upon  such  claims,  and 
a  dividend  shall  be  paid  only  on  the  unpaid 
balance. 

Whenever  a  creditor,  whose  claim  against  a 
bankrupt  estate  is  secured  by  the  individual 
undertaking  of  any  person,  fails  to  prove  such 
claim,  such  person  may  do  so  in  the  creditor's 
name,  and  if  he  discharge  such  undertaking 
in  whole  or  in  part  he  shall  he  subrogated  to 
that  extent  to  the  rights  of  the  creditor. 

Debts  owing  to  the  United  States,  a  State,  a 
county,  a  district,  or  a  municipality  as  a  pen- 
alty or  forfeiture  shall  not  be  allowed,  except 
for  the  amount  of  the  pecuniary  loss  sustained 
by  the  act,  transaction,  or  proceeding  out  of 
which  the  penalty  or  forfeiture  arose,  with 
reasonable  and  actual  costs  occasioned  thereby 
and  such  interest  as  may  have  accrued  thereon 
according  to  law. 

Claims  which  have  been  allowed  may  be 
reconsidered  for  cause  and  reallowed  or  re- 
jected in  whole  or  in  part,  according  to  the 
equities  of  the  case,  before  but  not  after  the 
estate  has  been  closed. 

Ordinarily,  claims  cannot  be  proved  afler 
the  expiration  of  one  year  from  the  date  when 
the  party  is  adjudged  a  bankrupt. 

Notice  to  Creditors. — Creditors  are  en- 
titled to  ten  day's  notice  by  mail  of  nearly  all 
important  steps  in  the  proceedings  after  pre- 
sentation of  the  petition.  Notice  of  the  first 
meeting  of  creditors  shall  be  published,  the 
last  publication  to  be  at  least  one  week  prior 


664 


NATIONAL  BANKRUPTCY  LAW. 


to  the  date  fixed  for  the  meeting.  All  notices 
shall  be  given  by  the  referees  unless  otherwise 
ordered  by  the  judge. 

Who  may  File  Petitions  in  Involuntary 
Bankruptcy. — Three  or  more  credilors  who 
have  provable  claims  against  any  person  which 
amount  in  the  aggregate,  in  excess  of  the  value 
of  securities  held  by  them,  if  any,  to  five  hun- 
dred dollars  or  over  ;  or  if  all  of  the  creditors 
of  such  person  are  less  than  twelve  in  number, 
then  one  of  such  creditors  whose  claim  equals 
such  amount  may  file  a  petition  to  have  him 
adjudged  an  involuntary  bankrupt. 

Petitions  shall  be  filed  in  duplicate,  one  copy 
for  the  clerk  and  one  for  service  on  the  bank- 
rupt. 

If  it  be  averred  in  the  petition  that  the  cred- 
itors of  the  bankrupt  are  less  than  twelve  in 
number,  and  less  than  three  creditors  have 
joined  as  petitioners  therein,  and  the  answer 
avers  the  existence  of  a  larger  number  of  cred- 
itors, there  shall  be  filed  with  the  answer  a  list 
under  oath  of  all  the  creditors,  with  their  ad- 
dresses, and  thereupon  the  court  shall  cause 
all  such  creditors  to  be  notified  of  the  pendency 
of  such  petition  and  shall  delay  the  hearing 
upon  such  petition  for  a  reasonable  time,  to 
the  end  that  parties  in  interest  shall  have  an 
opportunity  to  be  heard  ;  if  upon  such  hearing 
it  shall  appear  that  a  sufficient  number  have 
joined  in  such  petition,  or  if  prior  to  or  during 
such  hearing  a  sufficient  number  shall  join 
therein,  the  case  may  be  proceeded  with,  but 
otherwise  it  shall  be  dismissed. 

In  computing  the  number  of  creditors  of  a 
bankrupt  for  the  purpose  of  determining  how 
many  creditors  must  join  in  the  petition,  such 
creditors  as  were  employed  by  him  at  the  time 
of  the  filing  of  the  petition  or  are  related  to 
him  by  consanguinity  or  affinity  within  the 
third  degree,  as  determined  by  the  common 
law,  and  have  not  joined  in  the  petition,  shall 
not  be  counted. 

Creditors  other  than  original  petitioners  may 
at  any  time  enter  their  appearance  and  join  in 
the  petition,  or  file  an  answer  and  be  heard  in 
opposition  to  the  prayer  of  the  petition. 

A  voluntary  or  involuntary  petition  shall  not 
be  dismissed  by  the  petitioner  or  petitioners 
or  for  want  of  prosecution  or  by  consent  of 
parties  until  after  notice  to  the  creditors. 
TRIALS  AND  PROCEDURE. 

A  person  against  whom  an  involuntary  peti- 
tion has  been  filed  is  entitled  to  have  a  trial 
by  jury  in  respect  to  the  question  of  his  in- 
solvency, except  as  in  the  act  otherwise  pro- 
vided, and  in  respect  to  any  act  of  bankruptcy 
alleged  to  have  been  committed,  but  he  must 
promptly  avail  himself  of  the  right,  or  it  will 
be  deemed  waived. 

The  trustee  may,  pursuant  to  the  direction 
of  the  court,  submit  to  arbitration  any  contro- 
versy arising  in  the  settlement  of  the  estate. 
Three  arbitrators  shall  be  chosen  by  mutual 
consent,  or  one  by  the  trustee,  one  by  the  other 
party  to  the  controversy,  and  the  third  by  the 


two  so  chosen  ;  or  if  they  fail  to  agree  in  five 
days  after  their  appointment,  the  court  shall 
appoint  the  third  arbitrator.  A  written  finding 
of  the  arbitrators,  or  a  majority  of  them,  shall 
be  filed  in  court  and  shall  have  like  force  and 
eff^ect  as  the  verdict  of  a  jury. 

A  court  of  bankruptcy  may  require  any  des- 
ignated person  (including  the  bankrupt),  who 
is  a  competent  witness  under  the  laws  of  the 
State  in  which  the  proceedings  are  pending, 
to  appear  in  court  or  before  a  referee  or  the 
judge  of  any  State  court,  to  be  examined  con- 
cerning the  acts,  conduct,  or  property  of  a 
bankrupt  whose  estate  is  in  process  of  admin- 
istration. 

After  a  person  has  been  adjudged  a  bank- 
rupt the  judge  may  cause  the  trustee  to  pro- 
ceed with  the  administration  of  the  estate,  or 
refer  it  generally  to  a  referee  or,  specially,  with 
only  limited  authority  to  act  in  the  premises, 
or  to  consider  a  report  in  specific  issued. 

A  case  may  be  transferred  from  one  referee 
to  another. 

Courts  of  bankruptcy  may  designate  a  news- 
paper, or  in  particular  cases  two  newspapers, 
in  which  necessary  notices  and  orders  shall  be 
published. 

OFFENSES  AND  PUNISHMENT 
THEREOF. 

A  person  shall  be  punished,  by  imprison- 
ment for  a  period  not  to  exceed  five  years, 
upon  conviction  of  the  offense  of  having  know- 
ingly and  fraudulently  appropriated  to  his  own 
use,  embezzled,  spent,  or  unlawfully  trans- 
ferred any  property,  or  secreted  or  destroyed 
any  document  belonging  to  a  bankrupt  estate 
which  came  into  his  charge  as  trustee. 

A  person  shall  be  punished,  by  imprison- 
ment for  a  period  not  to  exceed  two  years, 
upon  conviction  of  the  offense  of  having 
knowingly  and  fraudulently  (i)  concealed 
while  a  bankrupt,  or  after  his  discharge,  from 
his  trustee  any  of  the  properly  belonging  to  his 
estate  in  bankruptcy ;  or  (2)  made  a  false  oath 
or  account  in,  or  in  relation  to,  any  proceed- 
ing in  bankruptcy;  (3)  presented  under  oath 
any  false  claim  for  proof  against  the  estate  of 
a  bankrupt,  or  used  any  such  claim  in  composi- 
tion personally  or  by  agent,  proxy,  or  attorney, 
or  as  agent,  proxy,  or  attorney ;  or  (4)  re- 
ceived any  material  amount  of  property  from 
a  bankrupt  after  the  filing  of  the  petition,  with 
intent  to  defeat  this  act ;  or  (5)  extorted  or 
attempted  to  extort  any  money  or  property 
from  any  person  as  a  consideration  for  acting 
or  forbearing  to  act  in  bankruptcy  proceedings. 

A  person  shall  be  punished  by  fine,  not  to 
exceed  five  hundred  dollars,  and  forfeit  his 
office,  and  the  same  shall  thereupon  become 
vacant,  upon  conviction  of  the  off^ense  of  hav- 
ing knowingly  (i)  acted  as  a  referee  in  a  case 
in  which  he  is  directly  or  indirectly  interested ; 
or  (2)  purchased,  while  a  referee,  directly  or 
indirectly,  any  property  of  the  estate  in  bank- 
ruptcy of  which  he  is  referee ;  or  (3)  refused, 
while  a  referee  or  trustee,  to  permit  a  reason- 


NATIONAL  BANKRUPTCY  LAW. 


665 


able  opportunity  for  the  inspection  of  the  ac- 
counts relating  to  the  affairs  of,  and  the  papers 
and  records  of,  estates  in  his  charge  by  parties 
in  interest  when  directed  by  the  court  so  to  do. 
A  person  shall  not  be  prosecuted  for  any 
offense  arising  under  this  act  unless  the  indict, 
ment  is  found  or  the  information  is  filed  in 
court  within  one  year  after  the  commission  of 
the  offense. 

REFERKES. 

Courts  of  bankruptcy  must  appoint  referees, 
each  for  a  term  of  two  years.  There  must  be 
at  least  one  in  each  county. 

Referees  must  not  fill  any  office  of  profit  or 
emolument  under  the  laws  of  tlie  United 
States  or  any  State  other  than  commissioner 
of  deeds,  justice  of  the  peace,  master  in  chan- 
cery, or  notary  public;  must  not  be  related, 
unless  very  distantly,  to  any  of  the  judges  of 
the  courts  of  bankruptcy  or  Circuit  Courts  of 
the  United  States,  or  any  of  the  justices  or 
judges  of  the  Appellate  Courts  of  the  districts 
wherein  they  may  be  appointed  ;  and  they  must 
be  residents  of,  or  have  their  offices  in,  the 
territorial  districts  for  which  they  are  ap- 
pointed. 

Subject  to  review  by  the  judge,  they  shall 
consider  all  petitions  referred  to  them  by  the 
clerks,  and  make  adjudications  or  dismiss  the 
petitions,  administer  oaths,  examine  witnesses, 
employ  stenographers,  and  require  the  produc- 
tion of  documents  and  proceedings  before 
them ;  and  generally  exercise  many  of  the 
powers  of  the  judge  in  order  to  lighten  the 
labors  of  the  court  itself. 

Referees  shall  (i)  declare  dividends  and 
prepare  and  deliver  to  trustees  dividend  sheets 
showing  the  dividends  declared  and  to  whom 
payable;  (2)  examine  all  schedules  of  prop- 
erty and  lists  of  creditors  filed  by  bankrupts 
and  cause  such  as  are  incomplete  or  defective 
to  be  amended;  (3)  furnish  such  information 
concerning  the  estates  in  process  of  adminis- 
tration before  them  as  may  be  requested  by 
the  parties  in  interest ;  (4)  give  notices  to 
creditors  as  herein  provided;  (5)  make  up 
records  embodying  the  evidence,  or  the  sub- 
stance thereof,  as  agreed  upon  by  the  parties 
in  all  contested  matters  arising  before  them, 
whenever  requested  to  do  so  by  either  of  the 
parties  thereto,  together  with  their  findings 
therein,  and  transmit  them  to  the  judges  ;  (6) 
prepare  and  file  the  schedules  of  property  and 
lists  of  creditors  required  to  be  filed  by  the 
bankrupts,  or  cause  the  same  to  be  done,  when 
the  bankrupts  fail,  refuse,  or  neglect  to  do  so ; 
(7)  safely  keep,  perfect,  and  transmit  to  the 
clerks  the  records  herein  required  to  be  kept 
by  them,  when  the  cases  are  concluded  ;  (8) 
transmit  to  the  clerks  such  papers  as  may  be 
on  file  before  them  whenever  the  same  are 
needed  in  any  proceedings  in  courts,  and  in 
like  manner  secure  the  return  of  such  papers 
after  they  have  been  used,  or,  if  it  be  imprac- 
licahle  to  transmit  the  original  papers,  transmit 
certified  copies  thereof  by  mail ;  (9)  upon  ap- 


plication of  any  party  in  interest,  preserve  the 
evidence  taken  or  the  substance  thereof  as 
agreed  upon  by  the  parties  before  them  when 
a  stenographer  is  not  in  attendance;  and  (10) 
whenever  their  respective  offices  are  in  the 
same  cities  or  towns  where  the  courts  of  bank- 
ruptcy convene,  call  upon  and  receive  from  the 
clerks  all  papers  filed  in  courts  of  bankruptcy 
which  have  been  referred  to  them. 

Referees  shall  not  (i)  act  in  cases  in  which 
they  are  directly  or  indirectly  interested  ;  (2) 
practice  as  attorneys  and  counselors-at-law  in 
any  bankruptcy  proceedings  ;  or  (3)  purchase, 
directly  or  indirectly,  any  property  of  an  estate 
in  bankruptcy. 

Compensation  of  Referees. — Referees 
shall  receive  as  full  compensation  for  their 
services,  payable  after  they  are  rendered,  a 
fee  of  ten  dollars  deposited  with  the  clerk  at 
the  time  the  petition  is  filed  in  each  case,  ex- 
cept when  a  fee  is  not  required  from  a  volun- 
tary bankrupt,  and  from  estates  which  have 
been  administered  before  them  one  per  centum 
commissions  on  sums  to  be  paid  as  dividends 
and  commissions,  or  one-half  of  one  per  cen- 
tum on  the  amount  to  be  paid  to  creditors 
upon  the  confirmation  of  a  composition. 

Contempts  before  Referees. — A  person 
shall  not,  in  proceedings  before  a  referee,  (l) 
disobey  or  resist  any  lawful  order,  process,  or 
writ ;  (2)  misbehave  during  a  hearing  or  so 
near  the  place  thereof  as  to  obstruct  the  same ; 

(3)  neglect  to  produce,  after  having  been  or- 
dered to  do  so,  any  pertinent  document ;  or 

(4)  refuse  to  appear  after  having  been  sub- 
poenaed, or,  upon  appearing,  refuse  to  take 
the  oath  as  a  witness,  or,  after  having  taken 
the  oath,  refuse  to  be  examined  according  to 
law  :  Provided,  That  no  person  shall  be  re- 
quired to  attend  as  a  witness  before  a  referee 
at  a  place  outside  of  the  State  of  his  residence, 
and  more  than  one  hundred  miles  from  such 
place  of  residence,  and  only  in  case  his  lawful 
mileage  and  fee  for  one  day's  attendance  shall 
be  first  paid  or  tendered  to  him. 

The  referee  shall  certify  the  facts  to  the 
judge,  if  any  person  shall  do  any  of  the  things 
forbidden  in  this  section.  The  judge  shall 
thereupon,  in  a  summary  manner,  hear  the 
evidence  as  to  the  acts  complained  of,  and,  if 
it  is  such  as  to  warrant  him  in  so  doing,  punish 
such  person  in  the  same  manner  and  to  the 
same  extent  as  for  a  contempt  committed  be- 
fore the  court  of  bankruptcy,  or  commit  such 
person  upon  the  same  conditions  as  if  the  do- 
ing of  the  forbidden  act  had  occurred  with 
reference  to  the  process  of,  or  in  the  presence 
of,  the  court.        TRUSTEES. 

The  creditors  of  a  bankrupt  estate  shall  at 
their  first  meeing  after  adjudication  (that  is, 
after  the  finding  by  the  court  that  the  party  is 
a  bankrupt),  or  after  a  vacancy  has  occurred 
in  the  oflSce  of  a  trustee,  or  after  an  estate  has 
been  reopened,  or  after  a  composition  has 
been  set  aside  or  a  discharge  revoked,  appoipt 
one  trustee  or  three  trustees  for  each  estate. 


666 


NATIONAL   BANKRUPTCY  LAW. 


If  the  creditors  do  not  appoint  a  trustee  or 
trustees,  the  court  shall  do  so. 

Trustees  may  be  (i)  individuals  who  are  re- 
spectively competent  to  perform  the  duties  of 
that  office,  and  reside  or  have  an  office  within 
the  judicial  district  within  which  they  are  ap- 
pointed, or  (2)  corporations  authorized  by  their 
charters  or  by  law  to  act  in  such  capacity, 
and  having  an  office  in  such  judicial  district. 

Duties. — Trustees  shall  respectively  (i) 
account  for  and  pay  over  to  the  estates  under 
their  control  all  interest  received  by  them 
upon  property  of  such  estates ;  (2)  collect  and 
reduce  to  money  the  property  of  the  estates 
for  which  they  are  trustees,  under  the  direc- 
tion of  the  court,  and  close  up  the  estate  as 
expeditiously  as  is  compatible  with  the  best 
interests  of  the  parties  in  interest;  (3)  deposit 
all  money  received  by  them  in  one  of  the  des- 
ignated depositories ;  (4)  disburse  money  only 
by  check  or  draft  on  the  depositories  in  which 
it  has  been  deposited;  (5)  furnish  such  in- 
formation concerning  the  estates  of  which  they 
are  trustees  and  their  administration  as  may 
be  requested  by  parties  in  interest ;  (6)  keep 
regular  accounts  showing  all  amounts  received 
and  from  what  sources  and  all  amounts  ex- 
pended and  on  what  accounts;  (7)  lay  before 
the  final  meeting  of  the  creditors  detailed 
statements  of  the  administration  of  the  estates; 

(8)  make  final  reports  and  file  final  accounts 
with  the  courts  fifteen  days  before  the  days 
fixed  for  the  final  meetings  of  the  creditors; 

(9)  pay  dividends  within  ten  days  after  they 
are  declared  by  the  referees;  (10)  report  to 
the  courts,  in  writing,  the  condition  of  the 
estates  and  the  amounts  of  money  on  hand, 
and  such  other  details  as  may  be  required  by 
the  courts,  within  the  first  month  after  their 
appointment  and  every  two  months  thereafter, 
unless  otherwise  ordered  by  the  courts ;  and 
(11)  set  apart  the  bankrupt's  exemptions  and 
report  the  items  and  estimated  value  thereof 
to  the  court  as  soon  as  practicable  after  their 
appointment. 

Whenever  three  trustees  have  been  ap- 
pointed for  an  estate,  the  concurrence  of  at 
least  two  of  them  shall  be  necessary  to  the 
validity  of  their  every  act  concerning  the  ad- 
ministration of  the  estate. 

Compensation. — Trustees  usually  receive 
$$,  paid  at  ihe  time  the  original  petition  is 
filed,  and  in  addition  are  entitled,  from  estates 
which  they  have  administered,  to  such  com- 
missions as  the  court  shall  allow,  not  exceed- 
ing three  per  centum  on  the  first  $5,ocx>,  two 
per  centum  on  the  second  $5,000,  and  one 
per  centum  on  sums  in  excess  of  $10,000. 
BONDS  OF   REFEREES  AND   TRUSTEES. 

Both  referees  and  trustees  must  give  bond 
conditioned  for  the  faithful  performance  of 
their  duties,  with  at  least  two  sureties  to  be 
approved  by  the  court,  the  former  in  an 
amount  not  exceeding  $5,000,  to  be  fixed  by 
the  court,  and  the  latter  in  such  sum  as  the 
creditors  shall  determine. 


CXiERKS  AND  MARSHALS. 

Clerks  and  United  States  marshals  usually 
receive  from  the  estate  $10  at  the  commence- 
ment of  the  proceedings,  and  in  addition  such 
fees  as  are  allowed  by  law  for  whatever  ser- 
vices they  perform  in  each  case. 

APPRAISEMENT  AND  SATE. 
All  real  and  personal  property  belonging  to 
bankrupt  estates  shall  be  appraised  by  three 
disinterested    appraisers;    they   shall   be   ap- 
pointed  by,  and  report  to,  the  court.     Real 
and  personal  property  shall,  when  practicable, 
be  sold  subject  to  the  approval  of  the  court ; 
it  shall  not  be  sold  otherwise  than  subject  to 
the  approval  of  the  court  for  less  than  -sev- 
enty-five per  centum  of  its  appraised  value. 
DEBTS  WHICH  HAVE  PRIORITY. 
United  States,   State,   county,  district,  and 
municipal  taxes  are  payable  under  order  of 
court  in  advance  of  payments  of  dividends  to 
creditors. 

Other  debts  having  priority,  and  to  be  paid 
in  full  out  of  the  bankrupt  estate,  and  the  order 
of  payments  are,  (l)  the  actual  and  necessary 
cost  of  preserving  the  estate  subsequent  to 
filing  the  petition ;  (2)  the  filing  fees  paid  by 
creditors  in  involuntary  cases ;  (3)  the  cost  of 
administration,  including  fees  and  mileage 
due  witnesses,  and  one  reasonable  attorney's 
fee ;  (4)  wages  due  to  workmen,  clerks,  or 
servants  earned  within  three  months  before 
the  date  of  commencement  of  proceedings, 
not  to  exceed  $300  to  each  claimant ;  (5)  debts 
owing  to  any  person  who  by  the  laws  of  the 
States,  or  the  United  States,  is  entitled  to 
priority. 

In  the  event  of  the  confirmation  of  a  com- 
position being  set  aside,  or  a  discharge  re- 
voked, the  property  acquired  by  the  bankrupt 
in  addition  to  his  estate  at  the  time  the  com- 
position was  confirmed,  or  the  adjudication 
was  made,  shall  be  applied  to  the  payment  in 
full  of  the  claims  of  creditors  for  property  sold 
to  him  on  credit,  in  good  faith,  while  such 
composition  or  discharge  was  in  force,  and  the 
residue,  if  any,  shall  be  applied  to  the  pay- 
ment of  the  debts  which  were  owing  at  the 
time  of  the  adjudication. 

Expenses. — Expenses  incurred  in  the  ad- 
ministration of  estates  shall,  except  where 
other  provisions  are  made  for  their  payment, 
be  reported  in  detail,  under  oath,  and  exam- 
ined and  approved  or  disapproved  by  the 
court.  If  approved,  they  shall  be  paid  or  al- 
lowed out  of  the  estates  in  which  they  were 
incurred. 

DIVIDENDS. 
A  dividend  of  at  least  five  per  centum  shall 
be  paid  within  30  days  from  the  time  the  party 
is  adjudged  a  bankrupt  if  the  funds  on  hand 
will  permit  it ;  other  dividends  of  ten  per 
centum  or  more  shall  be  subsequently  paid  as 
promptly  as  possible,  but  the  court  may  order 
smaller  dividends  if  deemed  desirable. 

Dividends  which  remain  Unclaimed  for  six 
months  after  the  final  dividend  has  been  de- 
clared shall  be  paid  by  the  trustee  into  couit, 


NATIONAL  BANKRUPTCY  LAW. 


667 


and  if  remaining  unclaimed  for  one  year  shall, 
under  the  direction  of  the  court,  be  distributed 
to  the  other  creditors,  but  minors  may  have 
one  year  after  arriving  at  majority  to  claim 
such  dividends. 

I.IENS. 

A  lien  created  by  or  obtained  in  or  pursu- 
ant to  any  suit  or  proceeding  at  law  or  in 
equity,  including  an  attachment  upon  mesne 
process  or  a  judgment  by  confession,  which 
was  begun  against  a  person  within  four  months 
before  the  filing  of  a  petition  in  bankruptcy 
by  or  against  such  person,  shall  be  dissolved 
by  the  adjudication  of  such  person  to  be  a 
bankrupt  if  (i)  it  appears  that  said  lien  was 
obtained  and  permitted  while  the  defendant 
was  insolvent  and  that  its  existence  and  en- 
forcement will  work  a  preference,  or  (2)  the 
party  or  parties  to  be  benefited  thereby  had 
reasonable  cause  to  believe  the  defendant  was 
insolvent  and  in  contemplation  of  bankruptcy, 
or  (3)  that  such  lien  was  sought  and  permitted 
in  fraud  of  the  provisions  of  the  bankruptcy 
act. 

All  conveyances,  transfers,  assignments,  or 
incumbrances  of  his  property,  or  any  part 
thereof,  made  or  given  by  a  person  adjudged 
a  bankrupt,  and  within  four  months  prior  to 
the  filing  of  the  petition,  with  the  intent  and 
purpose  on  his  part  to  hinder,  delay,  or  de- 
fraud his  creditors,  or  any  of  them,  shall  be 
null  and  void  as  against  the  creditors  of  such 
deirtor,  except  as  to  purchasers  in  good  faith 
and  for  a  present  fair  consideration ;  and  all 
property  of  the  debtor  conveyed,  transferred, 
assigned,  or  encumbered  as  aforesaid  shall,  if 
he  be  adjudged  a  bankrupt,  and  the  same  is  not 
exempt  from  execution  and  liability  for  debts 
by  the  law  of  his  domicile,  be  and  remain  a 
part  of  the  assets  and  estate  of  the  bankrupt 
and  shall  pass  to  his  said  trustee,  whose  duty 
it  shall  be  to  recover  and  reclaim  the  same  by 
legal  proceedings  or  otherwise  for  the  benefit 
of  the  creditors.  And  all  conveyances,  trans- 
fers, or  incumbrances  of  his  property  made  by 
a  debtor  at  any  time  within  four  months  prior 
to  the  filing  of  the  petition  against  him,  and 
while  insolvent,  which  are  held  null  and  void 
as  against  the  creditors  of  .such  debtor  by  the 
laws  of  the  State,  Territory,  or  district  in 
which  such  property  is  situate,  shall  be  deemed 
null  and  void  under  this  act  against  the  cred- 
itors of  such  debtor  if  he  be  adjudged  a  bank- 
rupt, and  such  property  shall  pass  to  the  as- 
signee and  be  by  him  reclaimed  and  recovered 
for  the  benefit  of  the  creditors  of  the  bankrupt. 

All  levies,  judgments,  attachments,  or  other 
liens,  obtained  through  legal  proceedings 
against  a  person  who  is  insolvent,  at  any  time 
within  four  months  prior  to  the  filing  of  a 
petition  in  bankruptcy  against  him,  shall  be 
deemed  null  and  void  in  case  he  is  adjudged 
a  bankrupt,  and  the  property  aflfecled  by  the 
levy,  judgment,  attachment,  and  other  lien 
shall  be  deemed  wholly  discharged  and  re- 


leased from  the  same  and  shall  pass  to  the 
trustee  as  a  part  of  the  estate  of  the  bankrupt, 
unless  the  court  shall,  on  due  notice,  order 
that  the  right  under  such  levy,  judgment,  at- 
tachment, or  other  lien  shall  be  preserved  for 
the  benefit  of  the  estate ;  and  thereupon  the 
same  may  pass  to  and  shall  be  preserved  by 
the  trustee  for  the  benefit  of  the  estate  as 
aforesaid,  and  the  court  may  order  such  con- 
veyance as  shall  be  necessary  to  carry  the 
purposes  of  this  section  into  effect :  Provided, 
that  nothing  herein  contained  shall  have  the 
effect  to  destroy  or  impair  the  title  obtained 
by  such  levy,  judgment,  attachment,  or  other 
lien,  of  a  bona  fide  purchaser  for  value  who 
shall  have  acquired  the  same  without  notice 
or  reasonable  cause  for  inquiry. 

MISCELLANEOUS  PROVISIONS. 

Set-off. — A  set-off  or  counter-claim  shall 
not  be  allowed  in  favor  of  any  debtor  of  the 
bankrupt  which  was  purchased  by  or  trans- 
ferred to  him  after  the  filing  of  the  petition, 
or  within  four  months  before  such  filing,  with 
a  view  to  such  use  and  with  knowledge  or 
notice  that  such  bankrupt  was  insolvent  or 
had  committed  an  act  of  bankruptcy. 

Exemptions. — The  bankrupt  law  does  not 
affect  the  allowance  to  bankrupts  of  the  ex- 
emptions which  are  prescribed  by  the  State 
laws  in  force,  at  the  time  of  the  filing  of  the 
petition  to  have  said  person  adjudged  a  bank- 
rupt, in  the  State  wherein  they  had  their  dom- 
icile for  six  months  or  the  greater  portion 
immediately  preceding  the  filing  of  the  petition. 

Widows. — In  case  of  the  death  of  the 
bankrupt,  the  widow  and  children  shall  be 
entitled  to  all  rights  of  dower  and  allowances 
fixed  by  the  laws  of  the  Slate  of  the  bankrupt's 
residence. 

Depositories. — Courts  of  bankruptcy  shall 
designate  banking  institutions  as  depositories 
for  the  money  of  bankrupt  estates  as  conven- 
ient as  may  be  to  the  residences  of  trustees 
and  require  bonds  from  them. 

Patents,  etc. — Interests  in  patents,  patent- 
rights,  copyrights,  and  trade-marks  are  in- 
cluded amongst  the  assets  of  a  bankrupt's 
estate. 

Life  Insurance. — A  bankrupt  having  an 
insurance  policy  with  a  cash  surrender  value, 
payable  to  himself,  his  estate  or  personal  rep- 
resentatives, may,  within  30  days  after  the 
cash  surrender  value  has  been  ascertained  and 
stated  to  the  trustee  by  the  company  issuing 
the  same,  pay  or  secure  to  the  trustee  the 
sum  so  ascertained  and  stated,  and  continue  to 
own,  hold,  and  carry  such  policy  free  from  the 
claims  of  creditors  participating  in  the  distri- 
bution of  his  estate  under  the  bankruptcy  pro- 
ceedings, otherwise  the  policy  shall  pass  to  the 
trustee  as  assets. 

Right  to  Damage. — Rights  of  action  aris- 
ing upon  contracts  or  from  the  unlawful  taking 
or  detention  of  or  injury  to  a  bankrupt's  prop- 
erty are  included  in  the  assets  of  the  estate. 


In   the   United  States,   Territories,    £tc. 

The  United  States  bankruptcy  act  of  July  ist,  1898,  has  rendered  the  several  State  laws, 
relating  to  assignment  and  insolvency,  inoperative  in  so  far  as  it  may  conflict  with  them,  but 
no  further.  The  authority  of  Congress,  under  the  Constitution  of  the  United  States,  is  para- 
mount in  the  matter  of  enactment  of  uniform  bankruptcy  laws  for  tht  whole  country.  It 
should  be  particularly  observed  that  the  bankruptcy  law  does  not  apply  in  all  cases  or  under 
all  circumstances. — For  information  on  this  subject  see  title  "The  Bankruptcy  Law,"  in 
this  book. 


AI.ABAMA. 

No  insolvent  lawr. 

Assignments. — If  debtor  seeks  by  confess- 
ing judgment,  or  through  an  attachment,  to 
give  unlawful  preference,  this  operates  as  a 
general  assignment.  So  also  preference  can- 
not be  given  in  the  assignment  itself.  Cred- 
itor can  require  trustee  to  give  bond. 
ARIZONA. 
In  assignments,  claims  must  be  presented 
within  six  months  from  publication  of  notices. 
No  preferences  permitted. 

ARKANSAS. 
Insolvent  law. — Debtor  may  ask  to  be  de- 
clared insolvent  and  turn  over  property  to  re- 
ceiver, excepting  what  is  exempted.  Receiver 
may  contest  any  attachment  issued  ten  days 
before  debtor  files  his  application.  After  set- 
tlement debtor  released  of  his  debts.  Wages 
and  salaries  for  three  months  preferred.  No 
other  preferences  among  creditors. 

Assignments  may  be  made  with  prefer- 
ences. Must  be  contested,  if  at  all,  within 
six  months.  If  set  aside  it  becomes  an  assign- 
ment for  all  creditors  pro  rata.  Assignee  gives 
bond.  Insolvent  corporations  cannot  prefer. 
CAUCFORNIA. 
A  resident  owing  more  than  $^do  may 
petition  the  Superior  Court  with  schedule. 
The  court  orders  the  sheriff  into  possession 
until  creditors  appoint  an  assignee,  not  less 
than  thirty  days  after  published  date  of  order. 
Preferences  not  allowed.  Dividends  declared 
from  time  to  time  on  all  proven  claims.  As- 
signee gives  bond  with  two  sureties.  In- 
voluntary insolvency  is  by  petition  of  not  less 
than  five  creditors  with  claims  aggregating  not 
less  than  $500,  and  verified  by  at  least  three 
petitioners  showing  fraudulent  intentions  or 
acts,  or  (unsatisfied)  legal  process  for  four 
days,  or  suspension  of  payments  for  forty 
days.  If  petition  is  granted,  proceedings 
same  as  involuntary  insolvency.  Discharge, 
except  in  case  of  corporations,  may  be  ob- 
tained after  three  months  from  time  of  adjudi- 
cation. Any  creditor  may  oppose  discharge, 
and  have  issue  tried  by  jury.  Fraud  punished 
by  imprisonment. 

COLORADO. 
No  insolvent  law. 

Assignments. — No  preferences.  Claims 
filed  within  three  months  have  preference  over 
those  filed  after,  unless  creditor  had  no  notice 
to  present  his  claim.  Estate  must  be  closed 
up  within  one  year  unless  court  extend  the 
time.  Wages  earned  within  six  months  before 
(668) 


assignment,  not  exceeding  $$0,  and  taxes  have 
priority.  Assignor  may  obtain  discharge  from 
debts. 

CONNECTICUT, 

Any  creditor  having  a  claim  for  ^Jioo  or 
over,  founded  on  a  contract,  may  cause  a  writ 
of  attachment  to  issue.  The  officer  returns 
he  can  find  no  property  to  attach,  and  then 
the  creditor  brings  a  petition  to  the  Court  of 
Probate  asking  for  the  appointment  of  a  trustee 
to  take  charge  of  the  debtor's  estate.  The 
trustee  sells  the  property  and  pays  the  credit- 
ors pro  rata.  The  debtor  obtains  no  discharge 
unless  he  pays  70  per  cent.  The  debtor  can 
also  make  a  voluntary  assignment,  and  the 
trustee  acts  the  same  as  in  an  involuntary  case. 
No  preferences. 

DELAWARE. 

Assignments  must  be  for  all  creditors 
alike.  Debtor  is  not  discharged  from  his 
obligations  except  as  far  as  paid.  Debtor  be- 
fore assignment  may  prefer  creditors  by  con- 
fessed judgment  or  otherwise,  but  the  debt 
must  be  bona  fide. 

Insolvent  laws. — Practically  obsolete. 
DISTRICT  OF  COLUMBIA. 

Assignments. — All  debts  must  be  paid 
pro  rata.  List  of  debts,  also  of  assets,  must  be 
attached  to  assignment.  Assignee  must  reside 
in  district. 

No  insolvent  law  applies  in  the  district  ex- 
cept the  national   bankruptcy  act.      See  title 
"  The  Bankruptcv  Law,"  in  this  book. 
FLORIDA. 

Assignment. — Distribution  must  be   pro- 
portional to  amount  of  claims.    Exempt  prop- 
erty reserved  to  assignor.     No  insolvent  law. 
GEORGIA. 

Assignments  may  prefer  creditors,  but  a 
corporation  may  prefer  only  creditors  entitled 
to  priority  under  the  general  laws  of  the  State. 
A  levy  made  under  attachment,  before  assign- 
ment, will  stand.  Assignor  and  assignee  must 
make  complete  list  of  property,  and  assignor 
must  make  affidavit  of  its  completeness.  If 
one  who  is  insolvent  purchases  goods,  without 
intending  to  pay  for  them,  the  vendor  may 
annul  the  sale  and  recover  the  goods,  if  no 
innocent  third  party  has  acquired  rights  there- 
in. An  insolvent  corporation,  or  trader,  not 
paying  a  debt  at  maturity  is  liable  to  have  his 
property  placed  in  the  hands  of  a  receiver  on 
petition  of  creditors  representing  one-third  or 
more  of  unsecured  debt.  By  trader  is  meant 
one  who  does  business,  buys  and  sells  realty 
or  personalty  of  any  kind,  a  banker,  broker, 


ASSIGNMENT  AND  INSOLVENCY. 


66g 


or  commission  merchant,  or  one  manufactur- 
ing ^(5,000  worth  of  goods  or  more  per  annum. 
No  preferences  allowed  after  application  for 
receiver.  Court  may  discharge  debtor  from 
his  debts,  but  this  is  not  usually  done. 
IDAHO. 
Insolvent  debtor  may  apply  to  court,  sur- 
render all  he  owns  to  the  sheriff  till  appoint- 
ment of  an  assignee  to  take  charge  (reserving 
for  himself  what  is  exempt  from  execution). 
The  creditors  elect  the  assignee.  The  debtor 
may  be  discharged  from  debts  of  residents  of 
the  State;  also  of  non-residents  who  present 
their  claims. 

CLLENOIS. 
Assignments. — Assignee  must  send  notice 
to  each  creditor  to  present  his  claim  under 
oath  within  three  months.  If  not  so  presented 
the  claim  is  deferred  to  those  of  creditors  who 
comply.  Assignee  must  render  final  account 
within  a  year,  but  dividend  may  be  ordered 
meantime  by  the  court.  List  of  claims  proven 
must  be  filed  by  assignee  at  the  end  of  three 
months,  and  claims  may  be  contested  within 
thirty  days  after  list  is  filed.  Preferences 
whether  made  in  assignment  or  in  contempla- 
tion of  assignment  are  void.  Wages  are  pre- 
ferred, otherwise  distribution  is  pro  rata  to 
creditors. 

DTDIANA. 
No  preference  in  assignments,  but  prefer- 
ence may  be  effected  by  prior  confession  of 
judgment  or  mortgage.  Assignor  is  not  dis- 
charged from  debts,  unless  ihey  are  paid  in 
full.  Claims  filed  must  be  under  oath.  The 
trustee  or  a  creditor  may  cause  the  arrest  of 
assignor  or  person  to  whom  a  fraudulent  trans- 
fer of  property  has  been  made,  and  subject 
him  to  examination  in  court.  Dividend  may 
be  compelled  when  assets  on  hand  sufficient 
to  pay  ten  per  cent.  Creditors  representing 
half  of  the  liabilities  may  cause  removal  of 
trustee.  To  be  effective  deed  of  assignment 
must  be  recorded. 

INDIAN  TERRITORY. 
Assignee  must  sell  property  at  public  sale 
within  120  days  after  giving  bond. 

Insolvent  law  applies  only  to  releasing  per- 
sons imprisoned  for  certain  causes. 
IOWA. 
Assignments  must  be  for  the  benefit  of  all 
the   creditors.     No  preferences  permitted    in 
assignment.     Property  exempt  from  execution 
may  be  reserved.     Assignee  must   notify  all 
creditors  known  to  him  to  present  claims  un- 
der oath  within  three  months,  at  the  end  of 
which  time  he  must   file   list  of  creditors  so 
presenting  claims,  and  within    three  months 
thereafter  interested  parties  may  file  objections 
to  any  claim.     Assignment   does  not  effect  a 
discharge  from  debts.     Taxes  and  wages  not 
exceeding  one  hundred   dollars  to  any  em- 
ployee for  work  done  within  ninety  days  pre- 
ceding the  assignment  are  preferred. 
KANSAS. 
All  creditors  participate  in  proportion  to 
amounts  of    claims.      They   are   entitled   to 


notice  by  advertisement  and  also  by  letter,  so 
far  as  their  addresses  are  known,  of  time  and 
place  of  adjusting  and  allowing  demands.  A 
dividend  must  be  paid  not  more  than  a  month 
after  the  allowance  of  demands,  and  thereafter 
as  often  as  five  per  centum  can  be  paid  there- 
on. A  schedule  of  liabilities  must  be  filed  on 
the  day  assignment  is  executed. 
KENTUCKY. 
Assignments  are  for  the  benefit  of  all 
creditors.  Exempt  property  does  not  pass  by 
the  deed.  Preferences  made  within  six  months 
before  assignment  are  void,  and  assignee  is 
authorized  to  recover  property  transferred  in 
hand  of  creditors. 

Creditors  living  out  of  the  county  are  en- 
titled to  notice  by  mail.  Claims  must  be  pro- 
bated, and  if  not  properly  presented  are  deemed 
waived  unless  the  court  order  otherwise. 
LOUISIANA. 
A  debtor  may  ask  his  creditors  for  a  res- 
pite, and  a  majority  may  grant  such,  not  ex- 
ceeding three  years. 

Should  this  be  refused,  surrender  follows ; 
but  preference  to  any  creditor  is  void. 

The  debtor  obtains  a  discharge  from  his 
debts  upon  surrender  of  his  property,  and  all 
creditors  proving  their  debts,  and  accepting  a 
dividend,  are  barred  from  further  proceedings 
for  the  balance,  but  the  debtor  is  debarred 
from  this  right  if  he  has  given  an  unjust  pref- 
erence within  three  months  before  surrender. 
A  debtor  who  has  issued  execution  and 
found  no  property  thereon  may  force  a  sur- 
render. 

MAINE. 
A  debtor  owing  over  JS300  may  apply  for 
benefit  of  insolvent  act  by  paying  $2^  into  In- 
solvent Court  with  his  petition. 

When  two  or  more  creditors  make  oath  as 
to  their  belief  in  the  insolvency  of  a  debtor, 
and  that  they  believe  their  aggregate  debts 
amount  to  more  than  one-fourth  part  of  the 
debts  provable  against  a  debtor,  the  judge 
shall  declare  him  insolvent,  if  such  allegations 
are  proved. 

An  assignee  is  chosen  at  the  first  meeting  of 
creditors,  such  choice  being  made  by  three  ox 
more  in  number  of  the  unsecured  creditors 
present  at  the  meeting,  whose  debts  amount 
collectively  to  one-half  in  number  of  the 
amount  proved ;  and  in  the  interval  between 
the  declaration  of  insolvency  of  debtor  and 
choice  of  assignee  by  creditors,  the  court  mes- 
senger shall  hold  the  estate  of  debtor. 

An  assignee  may  recover  any  money  paid  a 
creditor  on  writ,  judgment  or  execution,  when 
such  payment  is  made  within  four  months 
prior  to  commencement  of  insolvency  pro- 
ceedings, when  such  money  is  received  as  a 
preference,  and  known  at  the  time  that  debtor 
is  insolvent. 

A  discharge  shall  not  be  granted  if  debtor 
has  sworn  falsely,  conco'led  assets,  or  other- 
wise fraudulently  acted. 

A  discharge  may  be  granted  any  time  after 


670 


ASSIGNMENT  AND   INSOLVENCY. 


four  months  from  the  time  of  issuing  the  war- 
rant of  insolvency. 

Should  debtor  at  first  meeting  produce  an 
agreement,  signed  by  a  majority  of  the  credit- 
ors, representing  three-fourths  of  his  indebted- 
ness, agreeing  to  accept  a  certain  percentage, 
the  judge  shall  grant  a  discharge  when  debtor 
has  paid  or  secured  such  percentage. 

Creditors  out  of  the  State,  who  have  not 
proved  their  claims,  are  not  affected. 
MABYI.ANI>. 

Deeds  of  trust  for  the  benefit  of  creditors 
may  be  made  if  not  to  burden,  delay,  or  de- 
fraud creditors.     No  preferences  allowed. 
MASSACHUSETTS. 

Debtor  may  assign  all  his  property,  reserv- 
ing what  is  exempt,  and  if  a  majority  (in  num- 
ber and  amount  of  claims)  of  the  creditors 
who  are  unsecured  and  not  privileged  under 
the  law  assent  in  writing,  the  assignment  will 
be  valid.  Those  assenting  will  share  to  the 
exclusion  of  those  not  assenting,  unless  the 
instrument  expressly  makes  the  assignment  for 
the  benefit  of  all  creditors.  The  assignment 
may  be  superseded  any  time  within  six  months, 
however,  by  the  institution  of  insolvency  pro- 
ceedings under  the  State  laws.  Known  cred- 
itors are  entitled  to  notice  by  mail. 

A  State  insolvency  law  is  in  force  so  far  as 
not  superseded  by  the  United  States  bank- 
ruptcy act  of  1898.  It  enables  a  debtor,  mak- 
ing an  honest  surrender  of  his  property,  to 
obtain  a  discharge  from  his  debts,  or  to  effect 
a  compromise  with  all  creditors  with  the  con- 
sent of  three-fourths  of  them  in  number  and 
amount  of  claims. 

MICHIGAJSr. 

Assignments  for  creditors  must  contain  no 
preferences.  Property  exempt  from  execution 
is  allowed  the  debtor.  Claims  must  be  proved 
by  affidavit,  showing  the  consideration  for  the 
debt,  when  contracted,  when  due,  all  pay- 
ments on  account,  and  what  collateral  is  held 
therefor. 

MINNESOTA. 

Exempt  property  excluded  from  the  assign- 
ment. Attachment  or  levy  becomes  dissolved 
by  an  assignment  made  within  ten  days  there- 
after. Complete  schedule  of  debts  must  be 
filed  by  assignor.  Known  creditors  must  have 
notice  by  mail.  Claims  must  be  itemized, 
verified,  and  filed  within  time  fixed  by  court. 
If  debtor  does  not  assign  in  such  manner  and 
at  such  time  as  to  prevent  parties  from  ob- 
taining preferences,  creditors  may  have  re- 
ceiver appointed.  All  payments  and  transfers 
made  within  ninety  days  before  assignment  or 
receivership  to  those  having  reason  to  believe 
debtor  insolvent  may  be  set  aside.  Taxes  and 
$50  wages  owing  any  person  earned  within 
ninety  days  preceding  assignment,  or  receiver- 
ship, are  preferred  by  law. 

Debtor  may  be  discharged  only  from  claims 
proven  or  participating  in  the  distribution. 
Secured  creditors  must  exhaust  security  before 
participating  in  general  assets. 


MISSISSIPPI. 

Assignment  act  of  1892  compels  assignee 
to  file  petition  and  bond  in  twenty-four  hours. 
He  then  becomes  an  officer  of  the  court  for 
the  purpose  of  the  assignment.  Preferences 
are  allowed,  and  creditors  may  attack  by  com- 
petition. 

MISSOURI. 

No  insolvent  law. 

Assignments. — No  preferences  allowed. 
Not  more  than  one  month  after  allowance  of 
claims  a  dividend  must  be  paid  and  thereafter 
as  often  as  funds  on  hand  warrant  a  dividend 
of  five  per  cent.  State  taxes  and  wages  ac- 
crued within  six  months,  not  exceeding  ;55ioo 
to  each  employee,  have  priority.  Debts  are 
not  discharged  unless  paid  in  full. 
MONTANA. 

No  insolvent  law. 

Insolvent  debtors  may  make  assignments 
and  prefer  creditors,  but  the  preference  must 
be  absolute  and  without  power  of  revocation. 
Wages  for  sixty  days  preceding  assignment, 
not  exceeding  ;^200,  have  priority  to  all  other 
claims. 

The  debt  is  not  discharged  ;  creditors  to  be 
bound  must  be  notified.  Fraudulent  proceed- 
ings subject  the  debtor  to  imprisonment  till  he 
makes  full  surrender. 

NEBRASKA. 

Sheriff  takes  charge  of  assigned  estates  in 
the  first  place.  Subsequently  creditors  meet 
and  choose  an  assignee,  and  notice  of  meeting 
must  be  given  creditors.  Claims  must  be  filed 
by  a  day  fixed,  or  be  barred.  Debtor  must 
file  statement  giving  particulars  as  to  assets 
and  liabilities.  Only  property  exempt  from 
execution  can  be  reserved.  Within  three 
months  after  date  of  inventory  court  orders 
distribution  of  funds  on  hand.  No  preferences 
allowed  unless  it  be  for  $ioo  or  less  for  wages. 
Transfers  made  in  contemplation  of  insolvency 
within  thirty  days  before  making  the  assign- 
ment to  a  person  having  cause  to  believe  the 
assignor  insolvent  are  void.  So  also  are  pref- 
erences to  creditors  with  like  intent  within 
the  thirty  days. 

NEVADA. 

Insolvent  debtor,  owing  I500  or  more, 
residing  one  year  in  any  county,  may  make 
assignment.  Creditors  choose  assignee,  or  on 
their  failure,  the  court  appoints  the  sheriff. 
To  secure  a  discharged  debtor's  property  sur- 
render must  equal  fifty  per  cent,  of  debts  un- 
less three-fourths  in  number  and  one-half  in 
amount  of  creditors  consent.  No  discharge 
granted  where  fraud  proven.  Partners  and 
corporations  may  be  driven  into  involuntary 
insolvency  on  petition  of  five  creditors,  resi- 
dents of  the  State,  whose  claims  reach  ^^500. 
NEW  HAMPSHIRE. 

No  preferences  allowed,  and  assignment 
must  include  the  whole  estate  of  assignor.  A 
composition  will  be  allowed,  three-fourths  of 
the  creditors  in  number  and  amount  of  claims 
consenting  (claims  to  exceed  ^^50  each),  and 
the  judge   of  probate   also   consenting,  thus 


ASSIGNMENT  AND   INSOLVENCY. 


671 


effecting  a  discharge  from  debts.  A  creditor 
may  dissent,  take  no  benefit  under  the  assign- 
ment, and  still  hold  his  claim. 
NEW  JERSET. 
Assignment  must  be  of  all  the  debtor's 
estate  without  preference.  Judgment  con- 
fessed to  give  a  preference  will  not  be  pre- 
ferred. Time  for  filing  claims  may  be  limited 
by  order  of  court,  and  claims  not  filed  in  ac- 
cordance therewith,  or  within  three  months 
after  the  assignment,  may  become  barred  of  a 
dividend.  Goods  and  chattels  to  the  value  of 
$200  and  wearing  apparel  shall  be  reserved 
from  estate  of  one  having  a  family.  Wages 
not  exceeding  ^300  to  one  person  have  prior- 
ity. Rent  for  one  year  is  preferred  out  of 
proceeds  of  personalty  on  property  leased. 
Claims  presented  will  be  discharged;  others 
will  not. 

NETT  MEXICO. 
Debtor  may  make  a  voluntary  assignment 
of  all  his  property,  resulting  in  a  distribution 
pro  rata  among  the  creditors,  or  the  court  will, 
on  application  of  adverse  parties,  appoint  an 
assignee  if  application  thereof  is  made  within 
six  months  after  any  sale,  mortgage  or  trans- 
fer made  by  the  debtor  or  judgment  suffered 
or  act  done  by  him  in  contemplation  of  in- 
solvency with  design  to  prefer  one  or  more 
creditors.  No  preferences  are  allowed  in  any 
case,  but  the  debtor  is  allowed  property  ex- 
empt from  execution.  He  is  not  discharged 
from  debts  not  fully  paid  upon  distribution  of 
the  assets. 

NEW  YORK. 

Wages  and  salaries  earned  within  a  year 
prior  to  assignment  are  preferred,  and  prefer- 
ences to  creditors  may  be  given  with  respect 
to  one-third  of  the  balance  of  the  estate,  but 
assigning  partnerships  and  corporations  can 
make  no  preferences.  After  one  year  from 
date  of  assignment  a  creditor  may  compel  as- 
signee to  account.  Assignor  is  not  discharged 
from  unpaid  portions  of  his  debts. 
NORTH  CAROIilNA. 

Insolvent  debtors,  in  order  to  obtain  a 
discharge,  must  file  a  petition  and  full  schedule 
of  property  and  debts,  when  a  trustee  will  be 
appointed  to  hold  the  property  for  the  benefit 
of  creditors.  The  debtor  is  then  entitled  to  a 
personal  discharge. 

Assignments. — Debtors  may  make  prefer- 
ences, but  within  five  days  after  making  as- 
signment assignor  must  file  statement  contain- 
ing list  of  preferred  creditors,  amount  due 
each,  when  contracted,  and  consideration 
therefor,  otherwise  the  deed  is  invalid.  As- 
signee must  file  account  every  three  months, 
and  his  final  account  within  twelve  months, 
unless  good  cause  be  shown  to  the  contrary. 
Claims  must  be  probated  and  filed. 
NORTH  DAKOTA. 

An  assignment  in  good  faith  may  be 
made  in  trust  for  creditors. 

An  insolvent  cannot  give  a  preference  to 
one  or  more  of  his  creditors. 

An  insolvent  debtor  owing  $500  or  more 

43 


may  take  the  benefit  of  the  insolvent  law  and 
become  discharged  from  his  debts,  if  he  has 
acted  fairly  and  honestly,  upon  surrendering 
all  but  his  exempt  property.  The  court  directs 
notice  to  be  given  all  creditors. 

Any  person  owing  {((500  or  more  acting 
fraudulently,  seeking  to  escape  creditors,  or 
committing  acts  designed  to  prefer  creditors 
contrary  to  the  insolvent  law  of  the  State,  or, 
while  insolvent,  suffering  an  execution  of  ^^500 
or  more  to  be  returned  unsatisfied,  or,  if  a 
merchant,  suspending  payment  for  thirty  days 
or  more  of  commercial  paper,  may  be  driven 
into  involuntary  insolvency  by  creditors  hav- 
ing claims  amounting  to  J(5400  or  more.  Notice 
is  given  to  creditors  and  they  choose  an  as- 
signee. All  levies  under  any  process  made 
within  sixty  days  before  proceedings  are  com- 
menced are  dissolved,  and  any  transfers  to  de- 
fraud creditors  made  within  thirty  days  are 
void,  and  no  judgment  will  be  a  lien  if  suit 
was  commenced  within  six  months  and  en- 
tered within  thirty  days  before  proceedings  are 
commenced.  Debtor  may  be  discharged  from 
debts  if  he  has  practiced  no  frauds.  Life  in- 
surance is  not  included  in  the  insolvent  es- 
tate. 

OHIO. 

Assignor  retains  property  exempt  from  exe- 
cution, unless  waived  in  the  assignment. 
Court  may  order  business  to  be  carried  on 
on  application  of  three-fourths  of  the  credit- 
ors. Claims  must  be  probated  and  filed  with- 
in six  months  after  assignment.  Taxes  on 
personal  property,  wages  earned  within  twelve 
months  prior  to  assignment  not  exceeding 
$300,  are  preferred,  but  not  to  the  prejudice 
of  a  lien.  Debtor  is  not  discharged  from  his 
debts  so  far  as  unpaid.  A  debtor  may,  in 
good  faith,  prefer  a  creditor  before  assign- 
ment. 

OKLAHOMA. 

Must  be  no  preferences  in  assignments, 
though  bona  fide  creditors  may  be  preferred 
before  assignment. 

OREGON. 

An  assignment  by  one  insolvent  is  not  good 
if  it  contains  preferences.  The  assignment 
dissolves  all  attachments  on  which  judgment 
has  not  been  obtained.  The  creditors  may 
select  the  assignee.  Debtor  may  be  discharged 
from  his  debts  if  his  estate  has  paid  fifty  per 
cent. 

PENWSY1.VANIA. 

Assignment  without  preferences  may  be 
made  of  all  or  part  of  one's  estate,  but  it  will 
not  work  a  discharge  from  unpaid  portions  of 
debts.  Bona  fide  creditors  may  be  prefeiTed 
before  assignment.  Debtor  may  reserve  J300 
worth  of  his  property,  or  waive  his  right  to  it. 
Certain  taxes  are  preferred,  as  are  also  wages 
earned  within  six  months  not  amounting  to 
over  ])(200  in  any  one  case.  Distribution  of 
personalty  proceeds  is  then  to  all  creditors 
pro  rata;  likewise  as  to  realty  proceeds  after 
lien  creditois  are  satisfied.  Levies  and  attach- 
ments  of  personalty   before  the  assignment 


67a 


ASSIGNMENT  AND   INSOLVENCY. 


hold  good.  Assignee  may  be  required  to  file 
an  account  after  one  year,  or  show  cause  why 
he  should  not.  Distribution  is  by  an  auditor 
appointed  by  court  after  the  account  is  con- 
firmed, and  claims  must  be  presented  to  the 
auditor. 

RHODE  ISLAND. 

An  insolvent  resident  owing  $300  or  more 
may  ask  relief  under  insolvency  law  and  be- 
come discharged  from  debts,  or  creditors  rep- 
resenting one-fourth  of  his  debts  may  insti- 
tute insolvency  proceedings  if  he  has  assigned 
for  the  benefit  of  creditors,  or  has  taken  steps 
to  defraud  creditors  or  give  preferences,  or  ob- 
tained credit  by  false  statements,  or  has  failed 
to  pay  his  commercial  paper  for  thirty  days. 
Claims  must  be  probated  and  filed.  Preferred 
creditors,  other  than  those  named  by  law,  must 
surrender  preferences  or  take  nothing.  Credit- 
ors choose  assignees.  A  composition  with 
creditors  may  be  ordered  by  court  under  cer- 
tain circumstances,  and  debtor,  in  case  of  com- 
position or  otherwise,  may  be  discharfjed  from 
all  claims  of  citizens  of  the  State  and  others 
participating.  Taxes  and  w.^ges  (not  over 
i5loo)  earned  within  six  months  are  preferred. 
SOUTH  CAROLINA. 

Assignments  giving  preferences  are  void, 
and  all  conveyances,  mortgages,  etc.,  within 
ninety  days  before  assignment,  are  void  unless 
made  for  present  consideration.  Creditors 
proving  their  claims  before  the  assignee,  and 
executing  releases  in  full  of  their  claims,  are 
entitled  to  entire  assets,  if  required  to  pay  them 
in  full.  If  anything  remains,  other  creditors 
take  it  pro  rata. 

SOUTH  DAKOTA. 

Insolvent  debtor  may  assign,  reserving  prop- 
erty exempt.     Preferences  are  forbidden. 
TENNESSEE:. 

In  a  general  assignment  no  preferences  are 
allowed.  A  conveyance  or  a  judgment  con- 
fessed within  three  months  before  assignment 
and  in  contemplation  thereof  is  void.  Debtor 
must  file,  under  oath,  schedule  of  assets.  At- 
tachment or  execution  levied  on  property  be- 
fore recording  assignment  is  good. 

By  a  special  assignment,  as  by  deed  of 
trust,  a  debtor  may  secure  one  or  more  of  his 
creditors. 

A  foreign  general  assignment,  without  regis- 
tration in  the  State,  will  not  avail  against  a 
subsequent  attachment. 

TEXAS. 

Insolvent  debtors  may  transfer  all  their 
property,  reserving  that  exempted  by  law,  but 
this  will  not  discharge  them  from  unpaid  por- 
tions of  their  debts. 

Also,  an  assignment  may  be  made  to  benefit 
only  such  creditors  as  release  the  assignor  from 
further  liability,  provided  the  assignee  pays  at 
least  one-third  of  their  claims.  Accepting 
creditors  must  give  notice  of  willingness  to 
release  within  four  months  unless  they  did  not 
know  of  assignment,  and  must  file  probated 
claims.  When  funds  permit  it,  dividends  of 
10  per  cent,  must  be  paid. 


UTAH. 

Any  creditor  or  creditors  may  be  preferred. 
Joint,  or  joint  and  several,  debtors  can  prefer 
joint  creditors  only  from  joint  property,  and 
can  prefer  individual  creditors  only  out  of 
separate  property.  The  deed  must  reserve  no 
benefits  to  the  assignor,  but  exempt  property 
and  life  insurance  will  not  be  transferred  by 
it  unless  the  contrary  intention  be  expressed. 
Creditors  are  entitled  to  notice  by  mail.  Claims 
must  be  probated  and  filed. 

VERMONT. 

An  inhabitant  contracting  and  owing  debts 
over  $300  may  petition  court  stating  his  in- 
ability to  pay  and  his  desire  to  assign.  The 
creditors  elect  the  assignee  or  the  judge  ap- 
points. Known  creditors  are  entitled  to  notice 
by  mail  to  prove  claims  and  elect  assignee. 
Claims  not  filed  within  six  months  after  debtor 
is  adjudged  insolvent  are  barred. 

Creditors  having  claims  of  $250  or  more 
may  force  the  debtor  into  involuntary  bank- 
ruptcy. Preferences  within  four  months  before 
filing  petition  are  set  aside.  Debts  and  taxes 
due  the  United  States  and  the  State,  not  ex- 
ceeding $^0,  for  services  performed  within 
six  months  before  adjudication  of  insolvency, 
have  priority.  Discharges  from  debts  are 
granted  only  where  the  estate  pays  30  per 
cent,  or  more,  unless  a  majority  in  number 
and  amount  of  creditors  assent.  Corporations 
are  not  discharged. 

VIRGINIA. 

Assignments  may  contain  preferences  with- 
out limit. 

WASHINGTON. 

Where  the  assignment  is  honest,  the  debtor 
may  be  discharged  from  all  prior  indebtedness. 
Property  exempt  from  levy  by  execution   or 
attachment  may  be  retained  by  the  assignor. 
WEST  VIRGINIA. 

An  insolvent  debtor  may  not  make  prefer- 
ences, yet  creditors  must  take  steps  to  resist 
them  in  order  to  prevent  them  becoming  oper- 
ative. 

WISCONSIN. 

Preferences  in  assignments  are  void,  as  also 
are  preferences  sought  to  be  effected  within 
sixty  days  prior  to  assignment  and  in  contem- 
plation thereof.  Claims  must  be  filed  within 
three  months  from  time  notice  is  given.  As- 
signee must  mail  notice  to  creditors. 

If  insolvent  debtor's  property  is  attached  or 
levied  upon,  he  may  within  ten  days  assign 
all  his  property  not  exempt  for  all  creditors, 
whereupon  such  levies,  etc.,  will  be  dissolved. 
An  insolvent  debtor  seeking  to  prefer  creditors 
may  be  driven  into  bankruptcy  by  other  cred- 
itors, a  receiver  taking  charge  of  all  except 
exempt  property. 

WYOMING. 

Any  person  may  assign  all  his  property  for 
his  creditors.  Any  attachment  or  execution, 
payment  or  transfer  within  twenty  days  of  as- 
signment is  void  if  the  party  to  be  benefited 
had  reasonable  cause  to  believe  the  party  in- 
solvent. Wages  for  three  months  before  as- 
signment have  priority. 


E3CElllPTIO!ir   OF  PJftOPCRTr   FROIW   ISAL£,   ET€^ 

In  the  United  States,  Territories,  Etc. 

Exemption  is  the  right  of  a  Debtor  to  retain  a  certain  amount  of  property  without  Its  being 
liable  to  attachment,  distress  or  execution,  or  any  other  process  at  the  suit  of  a  Creditor. 

A  judgment  creates  no  lien  upon  property  exempt  from  execution,  etc.,  and  execution  creates 
no  power  over  it.  (21  Illinois,  p.  105;  14  Ben.  Monroe,  p.  475.)  It  is  placed  beyond  the 
reach  of  the  law,  in  the  absolute  control  of  its  Owner.  The  law  will  take  cognizance  of  it  only 
for  the  purpose  of  protecting  the  Owner  in  its  enjoyment.     (40  Mississippi,  p.  49.) 

Property  exempt  before  the  death  of  a  Debtor  continues  exempt  afterward  in  favor  of  his 
Widow  and  Children.     (47  Barbour,  7,  479.) 

specified   articles  of   personal    property;   all 

laborers'    wages   exempt   from    garnishment; 

,  exemption  may  be  waived  in  writing,  except 

;S!2,ooo;  also  personalty,  ;?l,ooo;  wages,  $25  i  jg^oo  worth  of  furniture 


ALABAMA. 

House   and    lot   in    city,   town,  etc.,  or  in 
country,    160   acres   not   exceeding  in    value 


per  month. 

ALASKA. 

No    homestead ;    but    specified    articles   in 
value  from  $750  to  $1,000;  also  earnings  for 
thirty  days  next  preceding  judgment. 
ARIZONA. 
Homestead  not  exceeding  $4,000  in  value  ; 
household  furniture,  etc.,  $1,000;  no  exemp- 
tion to  persons  without  family  or  dependents ; 
earnings,  thirty  days  preceding  levy. 
ARKANSAS. 
Personalty — unmarried    man,    $200;    mar- 
ried, $500;    homestead — not   exceeding   $2.- 
500.     In  cities  and  towns,  one  acre;  in  coun- 
try, 160  acres;  but  if  homestead  be  no  more 
than  eighty  acres  in  country,  or  one-quarter 
acre  in  town,  its  value  is  unlimited ;    wages 
for   sixty  days,  not   in  addition   to  personal 
property. 

CALIFORNIA. 
A  homestead  of  $5,000,  if  declaration  of 
homestead  is  properly  filed;  also  a  large  num- 
ber of  specified  articles  of  personalty ;  per- 
sonal property  with  homestead  not  to  exceed 
$1,000. 

COLORADO. 
Homestead  not  to  exceed   $2,000;  claims 
must  be  recorded ;  large  number  of  specified 
articles   of  personalty,  in  favor  of  heads  of 
families ;    library  and   implements  of  profes- 
sional men  exempt ;  wages  not  to  exceed  $60. 
CONNECTICUT. 
Homestead,  $  l  ,000 ;  claim  must  be  recorded ; 
necessary  household  furniture  ;  implements  of 
Debtor's    trade  ;    library ;    live-stock ;    wages, 

$50- 

DELAWARE. 

No  homestead;  $75  to  $175  in  New  Castle 
County  ;  $50  to  $150  in  Kent ;  none  in  Sussex. 
DISTRICT  OF  COLUMBIA. 

Furniture,  $300;  tools,  $200;  stock,  $200; 
professional  library,  $300;  family  library,  $400; 
earnings  not  above  $ioo  per  month  to  married 
persons;  wages  for  two  months  not  to  exceed 
$203 ;  salary  of  Government  emploves. 
FLORIDA. 

Homestead.  160  acres  of  land;  one-half 
acre  in  city;  ^1,000  personalty  to  "heads  of 
families;"  all  wages 


IDAHO. 

Homestead,  $5,000.  Furniture,  etc.,  farm- 
ing utensils,  tools  of  trade,  mining  implements, 
professional  library,  instruments,  wardrobe, 
cartman's  team,  eic. ;  wages  for  thirty  days. 
ILLINOIS. 
$1,000  homestead,  and  $400  personalty,  to 
head  of  family;  to  others,  $100  only;  all 
wages  above  $S  per  week  liable  to  garnish- 
ment. 

INDIAN.^.. 
$600  to  householder.     No  property  can  be 
sold    for    less    than    two-thirds   its   appraised 
valuf,   unless    Debtor  waive  the   relief;    one 
month's  wages. 

IOWA. 
Homestead,  in  town,  half-acre ;  country, 
forty  acres;  also  certain  articles  of  personalty, 
and  household  and  kitchen  furniture,  not  to 
exceed  $200;  wearing  apparel;  wages  for 
ninety  days. 

KANSAS. 
In    country,    160    acres;    one  acre  in    city. 
Stock  in  trade,  $400;   furniture,  farming  tools, 
livestock,    professional    library,    etc.;    wages 
for  three  months  under  certain  conditions. 
KEN'ITJCKY. 
Land    and    dwelling  house    not  exceeding 
$i,ooo,  specifie<l  articles  of  personal  property 
of   limited    value,   professional  library  to  the 
value  of  $500;  wages,  $50. 

LOUISIANA. 
One  hundred   and   sixty  acres  of  land  not 
exceeding  $2,000   in  value.     Claim  must  be 
registered.     Certain    enumerated    articles   of 
personalty  ;  all  wages  of  laborers. 
MAINE. 
Homestead,    if   daily    claimed,    $500.      A 
large    number    of    enumerated     articles     of 
personalty ;  limited  wages. 

MARYLAND. 
One  hundred  dollars  of  property,  except  for 
breach  of  promise  or  seduction. 
MASSACHUSETTS. 
Homestead  valued  at  $800,  if  properly  re- 
corded   as   homestead   property ;    also  certain 
articles    of    personalty ;    wages,    $20,    under 
conditions. 

MICHIGAN. 
$1,500  homestead;    furniture,  $250;   stock. 


GEORGIA. 

Constitutional,    real  and  personal  property  j  $250 ;  books,  $150  ;  live-stock  ;  wages,  $25 
to    value    of    $1,600;    statutory,    fifty    acres;  j  MINNESOTA. 

five    acres    additional    for   every    child    under  1       Eighty  acres  homestead,  or  lot  and  house  in 
sixteen,  with  certain  restrictions — must  select;  |  platted  city  or  village  of  over  5,000  population, 

(673) 


674 


EXEMPTION. 


or  one-half  acre  if  population    is  less  than 
5,000;  sundry  articles  of  peisonalty;  life  in- 
surance to  survivors,  $10,000;  wages,  $2^. 
MISSISSIPPI. 

Homestead  not  over  160  acres,  or  jS2,ooo 
in  value.  May  be  increased  to  ^3,000  by 
proper  proceedings;  wages  to  head  of  family, 
j  I  CO  per  month;  other  persons,  ;^20 ;  sundry 
other  articles  of  personalty. 
MISSOURI. 

Homestead,  ^1,500,  and  ;J300  personalty  to 
heads  of  families.  In  cities  of  40,000  inhab- 
itants, homestead  may  be  ;S3,ooo  in  value ; 
wages  for  thirty  davs. 

MONTANA. 

Homestead,  country,  used  for  agricultural 
purposes,  160  acres,  with  buildings,  etc.  ;  in 
town,  one-fourth  acre;  value,  ;^2,500,  and  the 
usual  amount  of  personalty  exempt  in  such 
cases ;  wages  for  thirty  days. 
NEBRASKA. 

Homestead,  $2,000,  or  in  lieu  thereof  ^$5500 
as  personalty ;  also  specified  articles  of  person- 
alty to  heads  of  families ;  wages  for  sixty  days. 
NEVADA. 

Books,  etc.,  5100;  furniture,  live-stock, 
seeds,  etc.,  $400 ;  tools  and  professional  in- 
struments; miner's  cabin  and  tools,  $500 
each;  wages,  $50;  homestead,  ;5S5,ooo  to 
heads  of  families. 

NEW  HAMPSHIRE. 

Homestead,  ;?500;  furniture,  tools,  certain 
live-stock ;  wages,  |20,  not  good  as  against 
necessaries. 

NEW  JERSEY. 

Homestead,   $1,000,  if   advertised   and   re- 
corded, $200  selected  by  the  debtor  from  the 
goods  levied  on  and   appraised,  and  all  wear- 
ing apparel  of  head  of  a  familv  ;   all  wages. 
NEW  MEXICO. 

Homestead,  $1,000;    specified  articles  and 
$500  when  not  owning  a  homestead ;   wages 
for  three  months  under  certain  circumstances. 
NEW  YORK. 

Certain    specified   articles,  and    $250  worth 
in  addition,   except    for   purchase   price;   also 
$1,000  homestead,  when  recorded  as  such  and 
occupied  by  debtor;  wages  for  sixty  days. 
'north  CAROI.INA. 

One  thousand  dollars  real  estate  and  $500 
of  personal  property;  wages  for  sixty  days 
under  certain  conditions. 

NORTH  DAKOTA. 

Homestead  to  the  value  of  $5,000.  If 
widow  or  widower  occupy  premises,  the 
same;  also  personalty,  $1,500;  partnership 
firms,  $1,500. 

OHIO. 

Certain  specific  articles  of  household   furni- 
ture, etc.      Homestead,  $1,000,  or  to  head  of 
family  in  lieu  of  homestead,  $500  personalty; 
wages  under  certain  conditions. 
OKLAHOMA. 

To  head  of  family    160  acres,   outside   of 
city ;  inside  of  city  one  acre ;  furniture,  live- 
stock;  ninety   days'   wages;   to  single  person 
only  apparel,  books,  wages,  etc. 
OREGON. 

Household  furniture,  etc.,  $300.  Tools, 
etc.,    ;P400;    other    personalty,    about  $225;  J 


family  homestead,  $1,500;    Wages    for   thirty 
days  under  certain  conditions. 

PENNSYLVANIA. 

Personal  or  real  estate  to  the  amount  of 
$300.  It  may  be  waived  in  writing;  all 
wages. 

RHODE  ISLAND. 

Household  furniture  and  family  stores  not 
exceeding  $300 ;  wearing  apparel  and  tools  to 
value  of  $300;  debts  secured  by  note;  limited 
wages  under  certain  conditions. 

SOUTH  CAROLINA. 
A  homestead  exemption  of  one  thousand, 
and  $500  in  personalty  are  allowed ;  wages  for 
sixty   days,   if   family    depends    on   them    (to 
married  or  single  men). 

SOUTH  DAKOTA. 
Homestead,  160  acres  in  country,  or  one 
acre  in  town  or  city,  to  the  value  of  $5,000; 
also  exempt  $750  personalty  on  all  debts 
created  since  July  I,  1890,  to  heads  of  families, 
and  $300  to  single  persons,  not  heads  of 
families;  otherwise  $1,500  to  all  persons;  all 
life  insurance  money  received  by  widow  or 
children;  no  exemption  against  purchase 
price  ;  wages  for  sixty  days  if  necessary  to 
support  of  familv. 

TENNESSEE. 
Homestead,    $1,000;    a    large    number   of 
specified  articles  of  personal  property;  wages, 
$30,  for  laborers  and  mechanics. 
TEXAS. 
Specified  articles  of  personalty ;  homestead 
in   country  200  acres,  in  city,  land  $5,000  in 
value  at  time  of  designation,  without  reference 
to  value  of  improvements;  all  wages. 
UTAH, 
Homestead    of  Value   equal   to  $1,500  for 
judgment  Debtor,    $500  for    wife,  and  $250 
for  each   child;   also  specified  articles  not  ex- 
ceeding $i,ooo;   and   one-half  of  wages  for 
sixty  days,  not  exceeding  $100. 
VERMONT. 
Homestead,     $500;     specified    articles    of 
personalty. 

VIRGINIA. 
Two    thousand    dollar    homestead,    except 
when  waived.     Specified  articles  of  personal 
property  which  could  seldom  exceed  $300  in 
value;  wages,  $50  per  month. 
WASHINGTON. 
Homestead,  $2,000,  homestead  declaration 
being  necessary;    to    householder,  $1,000,  in 
addition     of     personal     property;      specified 
articles;   current   wages    to   amount  of  $100, 
if  family  is  dependent  thereon. 
WEST  VIRGINIA. 
To  head  of  iamily,  $200  personalty  ;  $I,000 
homestead,  if  recorded  as  such. 
WISCONSIN. 
Homestead,  in  country,  forty  acres;  in  city 
or    village,    one-quarter    of    acre;    furniture, 
$200;    also   certain   specified   articles;    wages 
for  three  months,  not  exceeding  $60  a  month. 
WYOMING. 
Homestead,    $1,500.     Tools,    library,    etc., 
$300.     Household  property, '  $500.     Wearing 
apparel,  $150,  etc.,  etc.;  wages  not  exceeding 
$100. 


STATUTES  or   MHIITATIOIV. 

THE  TIME  WITHIN  WHICH  AN  ACTION  OR  SUIT  may  be  Commenced 
on  a  Claim,  Debt  or  Demand  after  the  Right  of  Action  Accrues  (arises,  com- 
mences), and  before  the  same  is  Barred  (outlawed). 

*  Under  seal,  lo  years,  f  If  made  in  State ;  if  outside,  2  years.  J  No  law  and  no  decision 
regarding  judgments.  |{  Under  seal,  20  years.  ^  Under  seal,  12  years.  **Real  estate,  20 
years.  J|  Becomes  dormant,  but  may  be  revived.  ^^  Under  seal,  14  years,  (a)  Action  on 
Merchants'  accounts  must  be  commenced  in  two  years,  (c)  Ten  years  in  New  Castle  County, 
twenty  years  in  Kent  and  Sussex  Counties,  Del.  [e)  Negotiable  notes  6  years,  non-negotiable 
17  years.     (/)  Ten  years  in  new  law,  20  years  in  old  law. 

(^)  These  are  Instruments  of  Writing  under  seal,  as  Bonds,  Contracts,  Conveyances,  Deeds, 
Mortgages,  and  the  like.  They  are  not  merely  written,  but  signed,  sealed  and  delivered  by  the 
party  bound  by  them.  Witnesses  and  seals  are  often  required  by  these  instruments,  (t)  If 
discounted  in  banks,  5  years.     (/ )  When  acknowledged  in  writing,  6  years. 


THE 
UNITED  STATES 
AND 
TERRITORIES. 


Claims  Against 

Estates  of  Deceased 

Persons. 


Months.        Years 


18 


4-10 


12-18 


Alabama 

Alaska 

Arizona 

Arkansas   

California 

Colorado : 

Connecticut 6-io-i8 

Delaware .'. 

District  of  Columbia 1       13-'? 

Florida ' 

Georgia i  12 

Idaho 4-10 

Illinois ' 

Indiana I 

Indian  Territory \ 

Iowa 6-12 

Kansas 

Kentucky 

Louisiana !  12 

Maine 4 

Maryland 

Massachusetts 

Michigan 

Minnesota 

Mississippi 

Missouri 

Montana 

Nebraska 

Nevada 

New  Hampshire 

New  Jersey 

New  Mexico 

New  York 

North  Carolina 

North  Dakota 

Ohio 

Oklahoma  Territory 

Oregon 

Pennsylvania 

Rhode  Islaird 

South  Carolina 

South  Dakota 

Tennessee 

Texas 

Utah 

Vermont 

Virginia 

Washington 

West  Virginia 

■Wisconsin 

Wyoming 

THE   DOMINION 
OF  CANADA. 

Manitoba 

New  Brunswick 

Newfoundland 

Nova  Scotia 

Ontario 

Prince  Edward  Island 

Quebec 


18 


4-6 


Injuries 

and 
Wages. 
Years. 


18 


2M-3J4 


3 

X 

1-6 


3 
i-a 


>-4 
i-a 

1-6 


2-6 
3 


5 

i-a-3 

5 


Accounts 

Notes 

Judg. 

and  Book 

and 

Debts. 
Years. 

Bills. 
Years. 

Years. 

3 

•6 

30 

6 

6 

10 

3 

5 

5 

3 

5 

10 

3 

t4 

S 

6 

6 

JJio 

6 

(') 

X 

3 

6 

w 

3 

3 

13 

4 

5 

20 

4 

6 

tt7 

4 

5 

6 

5 

10 

20 

6 

10 

**  10 

3 

5 

xo 

S 

10 

20 

3 

^    S 

S 

(«)5 

(O15 

»5 

3 

5 

to 

6 

|6 

20 

»*3 

113 

13 

6 

|6 

30 

6 

6 

10 

6 

6 

10 

0)3 

6 

7 

S 

xo 

xo 

3 

8 

10 

4 

5 

ao 

4 

6 

6 

6 

6 

ao 

6 

6 

30 

4 

6 

7 

6 

6 

ao 

3 

•3 

10 

6 

6 

(/)»o 

6 

IS 

ai 

3 

6 

6 

6 

10 

6 

6 

ao 

6 

6 

ao 

6 

6 

ao 

6 

6 

ao 

6 

6 

xo 

6 

4 

t 

xo 
8 

6 

%6 

8 

a 

5 

10 

3 

6 

6 

5 

xo 

xo 

6 

6 

ao 

8 

5 

ax 

6 

6 

10 

6 

6 

20 

6 

6 

20 

6 

6 

30 

6 

6 

ao 

6 

6 

ao 

S 

5 

30 

Special- 
ties.A 
Yean. 


4 
5 

4 

3-« 

»7 


»S 

5-15 


10-30 
6 


(675) 


IIITTEREIST  IJPOiV  ]?IOIVEY,  ETC. 
Interest  in  the  United  States,  Territories,  Etc. 


Status,  Etc. 


Pbnaltibs  for  Usurious  Contracts. 


Alabama Loss  of  interest  and,  in  some  cases,  costs.. 

Alaska Forfeiture  of  debt  to  school  fund 

Arizona No  penalty 

Arkansas Contract  voided 

California No  penalty 

Colorado '  "  

Connecticut No  recovery  beyond  legal  rate 

Delaware Forfeiture  of  principal,  or  equivalent. 


of  all  interest  if  sued  for  in  one  year 

of  all  the  interest 

of  excess 

of  lo  per  cent,  of  principal 

of  entire  interest 

of  all  over  6  per  cent 

of  principal  and  interest 

of  interest  and  costs  of  suit 

of  double  the  sum  in  excess  of  lo  per  cent. 

of  excess  interest 

of  interest 


District  of  Columbia 

Florida 

Georgia 

Idaho 

Illinois 

Indiana 

Indian  Territory 

Iowa 

Kansas 

Kentucky 

Louisiana 

Maine  No  penalty 

Maryland Forfeiture  of  excess  interest 

Massachusetts No  penalty 

Michigan Forfeiture  of  entire  interest 

Minnesota i        "  of  debt  and  interest 

Mississippi "  ofall  interest 

Missouri :        "  of  lo  per  cent,  interest  to  school  fund 

Montana JNo  penalty 

Nebraska Forfeiture  of  all  interest 

Nevada No  penalty 

New  Hampshire 

New  Jersey 

New  Mexico 

New  York 

North  Carolina 

North  Dakota 

Ohio 

Oklahoma  Territory 

Oregon 

Pennsylvania 

Rhode  Island 

South  Carolina 


Forfeiture  of  three  times  amount  of  illegal  interest , 

of  interest  and  costs ; 

double  amount  excess  interest.     Fine 

of  debt  and  interest 

of  all  interest 

of  interest 

of  excess  over  6  per  cent 

of  all  interest , 

of  principal  and  interest  to  school  fund 

of  excess  interest 

Any  rate  fixed  by  parties  is  legal 

Forfeiture  of  double  the  sum  received,  to  be  collected  by  a 
separate  action,  or  allowed  as  a  counter  claim.... 

South  Dakota "  of  interest;  usury  is  a  misdemeanor 

Tennessee \        "         of  excess  interest 

Texas "  ofall  interest 

Utah [No  penalty 

Vermont lExcess  may  be  recovered  back 

Virginia Forfeiture  of  all  interest 

of  twice  the  amount  of  accrued  interest  and  costs.. 

of  excess  interest 

of  all  interest ;   also   right  of  recovery  of  treble 
amount  of  usuVious  interest  which  may  have  been 

paid 

of  all  interest 


Washington.... 
West  Virginia. 
Wisconsin 


Wyoming.. 


Legal. 


Agreed. 


S^c. 

8ftc. 

8    " 

lO    ■' 

7     " 

No  limit. 

6    " 

io«c. 
No  limit. 

7    " 

8    " 

" 

6     " 

" 

6    " 

6^e. 

6    •' 

lo    " 

8    " 

lO     " 

7    " 

8    " 

7    " 

12      " 

5 

7    " 

6     " 

8    " 

6    " 

lO    " 

6    " 

8    " 

6    " 

lo    " 

6    " 

6    " 

5    " 

8    " 

6    " 

No  limit. 

6    " 
6    " 

6«ic. 
No  limit. 

6    "    ' 

8^c. 

7    " 

lO     " 

6    " 

lo    " 

6    " 

8    " 

lo    " 

No  limit. 

7     " 
7 

lO  »  c. 
No  limit. 

6     " 

61^c. 

6    " 

6    " 

6    " 

12      " 

6    " 

6    " 

6    " 

8    " 

7    " 

12      " 

6    " 

8    " 

7    " 

12      " 

8    " 

lO     " 

6    " 

6    " 

6    " 

No  limit. 

7    " 

8Vc. 

7    " 

12     " 

6    " 

6    " 

5    " 

lO     " 

8    " 

No  limit. 

6    " 

6  inc. 

6    " 

6    " 

7    " 

12      " 

6     " 

6    " 

6    " 

lO     " 

8    " 

12     " 

Interest  in  the  British  American  ProTinces. 


Provinces,  Etc. 

Penalty  for  Usury. 

Legal. 

Agreed. 

Ontario 

6flc. 
6    " 
6    " 
6.  " 
6    " 
6    " 
6    " 

No  limit. 

Manitoba 

British  Columbia 

(676) 


DAYS  OF  GRACE. 


STATES. 


Alabama 

Arizona  

Arkansas 

California 

Colorado 

Connecticut 

Delaware 

District  of  Columbia... 

Florida 

Georgia 

Idaho 

Illinois 

Indian  Territory 

Indiana 

Iowa 

Kansas 

Kentucky 

Louisiana 

Maine 

Maryland 

Massachusetts 

Michigan 

Minnesota 

Mississippi 

Missouri 

Montana 

Nebraska 

Nevada 

New  Hampshire 

New  Jersey 

New  Mexico 

New  York 

North  Carolina 

North  Dakota 

Ohio 

Oklahoma  Territory... 

Oregon 

Pennsylvania 

Rhode  Island 

South  Carolina 

South  Dakota 

Tennessee 

Texas 

Utah 

Vermont 

Virginia 

Washington 

West  Virginia 

^Visconsin 

Wyoming „ 

Canada 


Is  Gracb  Allowed  on 


Sight  or  Demand  Paper  ?     ^'"J*. 


yes 
yes 
yes 


Sight, 

Sight, 

Sight, 

Sight, 

Sight, 
Sight, 
Sight, 


yes ;  demand,  no 

yes 
yes  ;  demand,  no 

no 
yes ;  demand,  no 

no 
yes ;  demand,  no 

no 
yes ;  demand,  no 
yes ;  demand,  no 
yes ;  demand,  no 
yes 


yes ;  demand,  no 
no  ;  demand,  yes 


yes 
no 
yes  ;  demand,  no 


yes 
yes  ;  demand,  no 
yes 


Sight,  yes  ;  demand,  no 


yes 
yes 


yes 
yes 


Sight, 
Sight, 


Sight, 


Sight, 


yes 
yes 
yes 


yes 

yes 

yes 


yes 


yes 
yes 
yes 
yes 
yes 


ryes 
yes 


yes 

yes 


Saturday 
Half  Holiday. 


no 
no 
ryes 
yes 
yes 
yes 
yes 
no 
no 


yes 

no 

yes 

no 

yes 

ryes 

yes 

no 

yes 

no 

yes 

yes 

no 

no 

no 

Baltimore  only 

no 

yes 

yes 

yes 

yes 

ryes 

yes 

no 

yes 

^yes 

ryes 
yes 


Ayes 


yes 

yes 
*Cha'ston  only 


yes 
ryes 


NoTBs  Maturing  on 


Saturday. 


Payable 
Same  day. 


Next  bus.  day. 

Monday. 

Next  bus.  day. 

Same  day. 


Monday. 
Same  day. 

Monday. 

Same  day. 

Monday. 
Same  day. 


Monday. 

Next  bus.  day. 

Monday. 

Same  day. 


Next  bus.  day. 

Monday. 

Same  day. 


Monday. 


Sundays  and 
Holidays. 


Payable 
Day  after. 


before. 

after. 

before. 

after. 

before. 

after. 

before. 


after. 
Next  bus.  day. 
Day  before. 


r  " 


after, 
before. 

after. 

before. 

after. 

before, 
after. 


before, 
after. 


Next  bus.  day. 
Day  after. 
"     before. 


after. 


before, 
after, 
before, 
after. 


a — When  a  holiday  falls  on  Saturday,  notes  due  Saturdays  and  Sundays  are  payable  on  Friday. 
i — If  a  Sunday  and  a  holiday  come  together,  that  is  Sunday  and  Monday,  the  paper  maturing  on  Monday  is 
payable  on  Tuesday. 
ti — Unless  a  holiday. 

e — If  the  day  before  is  Sunday  or  holiday,  then  the  day  after. 
y^If  in  Baltimore,  next  business  day. 

g' — When  holiday  occurs  Monday,  note  is  payable  Tuesday. 
A — In  cities  having  100,000  inhabitants  or  more. 

I— When  two  holidays  come  together,  the  first  the  day  before  and  the  second  the  day  after. 
/—If  holiday  falls  on  Saturday,  notes  are  payable  on  Monday. 
i — In  towns  and  cities  of  over  50,000  inhabitants. 
/ — In  city  of  Charleston  only. 
m — By  custom  only,  during  the  summer. 
n — If  grace  is  waived,  the  day  after. 
/—Notes  dated  prior  to  May  i,  1896,  the  day  before, 
r — By  custom  only. 
t — If  without  grace. 
/—Unless  grace  is  allowed.    If  last  day  of  grace  fiJls  on  Sunday  or  a  holiday,  then  tke  previous  business  day. 


(677) 


INDEX  TO  LAW. 

See  INDEX  TO  FORMS,  post. 


Page 

Abandonment 1 

of  Contract 1»5 

of  Insurance 464 

ofliand 613 

Abatement  In  Contracts 195 

of  Iieipacies 866 

Abduction 488 

Abbreviations 109 

Abetting:  Crimes 485 

Abortion 483 

evidence  of. 516 

Abridgrnients,  Copyrlgtat 397 

Absolute  Conveyances 365-313,363 

Abstracts  of  Title 263-365 

Forms 264,365 

Abuse 482 

Acceptance 1 

of  Bills  of  Exctaanse 160-163 

of  Payment 606 

Acceptances  by  Partners 656 

Accessary  in  Crimes 482 

Accessions,  Copyright 807 

Accessory  Contracts 195 

Accident 1-2 

Accord 195 

A'Bcouctament,  Evidence  of 616 

Account 2-14 

Books 2 

Copyrlgrbt 898 

Forms 4-14 

Stated 2-3 

Accuracy  in  Contracts 199 

Accusation 482 

Acknowledgements 14-45 

Forms 14-~i5 

Acquiescence 45 

Copyrigrbt 897 

Acquittances 197,  633 

Acquittal 484 

Actions,  Between  Partners 560 

by  Iiimlted  Partnerships 663 

for  Torts 635 

for  Wrongrs 635 

Civil,  Evidence  In 450 

Criminal,  Evidence  in 450 

Acts 45-50 

of  Congrress.   See  Copyrig^iit.  898-416 

See  Patents 665,678,605 

of  God 45 

Overt 507 

Partners 658 

Acts  or  Omissions 197 

Actual  Damag^es 421 

Additions,  Copyright 898 

Ademption  of  liCgracies 366 

▲de^naey  of  Consideration 902 

678 


Page 

AdJ  ustmen  t  of  Insurance 465 

Administration,  Ad  Interim 430 

Ancillary 4SO 

To  Collect  and  Deliver,  etc 431 

De  Bonis  Non 431 

During:  Absence 431 

During:  Minority 431 

of  Estates 430-432 

Foreig:n 431,480 

Pendente  lilte 432 

Public 482 

Special  or  Umited 482 

With  Will  Annexed 482 

Admiralty 476-477 

Admission  of  New  Partners 558 

to  Corporations 418 

Admissions,  Evidence 434 

Admonition 484 

Adulteration 484 

Adultery 484 

Adverse  Enjoyment,  Real  Property   611 

Possession,  Real  Property 611 

Affection  as  a  Consideration 202 

Natural,  in  Conveyances 271 

Affidavits 50-53 

■ Evidence 50 

Forms 51-53 

Affirmance  of  Contracts 197 

Affirmation  of  Issue,  Evidence 450 

Affirmations 435 

Affray 484 

Affront 484 

Aforethought 484 

Age  of  Testator S70 

Agency 68-88 

Agent 54 

Agents 45-64 

Authority 113 

Bills,  Bonds,  and  Notes 158 

Confidential     Communications 

to 438 

Agistry  of  Cattle 89 

Agreed  I<lens 530 

A  groemen  ts 193-263 

Distinguished    flrom    Torts    or 

Wrongs 635 

for  Insurance 463 

Liossof. 542 

Aggravation 484 

Aiding  and  Abetting  in  Crimes 485 

Aid  and  Comfort  to  Criminals 485 

Air 612 

Alibi,  in  Evidence 435 

Aliens 513 

Copyright 398 

AUowance^f  Interest- ■••>■•< ••••T--..  499 


UIDEX   TO   I^W. 


679 


Page 

Allnnde  ETtdence 435 

Alluvion,  Keal  Property 612 

Alteration  of  <'on tracts 197 

AiteratioiiM  by  PiibiiMliers 898 

Ambij^uity  of  Contracts .-.    197 

Ambig^nous,   Conditional,  and  Ir- 
regular Bills,  Bonds,  and  Notes. .    154 
Amendment  of  Accusation  or  Com* 

plaint 483 

Amendment  of  an  Affidavit 60 

Copyright 408 

Amercement 485 

Amnesty 485 

Amotion 418,485 

Amount  Covered,  Insurance 465 

of  Insurance 465 

AmouBt$t,  Descriptions,  etc 50 

Analysis  of  Poisons 530 

Animal  Poisons 630 

Animals 89-92 

Anticipation 45 

Apoplexy,  Evidence  of. 516 

Evidence  of  Death  from 520 

Apothecaries'  Weights  and   Meas- 
ures  643,644 

Appearance  by  Attorney 81 

Applications  for  Insurance 463 

for  Patent 582 

of  Payments  to  Bills,  Bonds,  and 

Notes 173 

Appointment  of  Agent 54 

of  Attorneys 72-80,  82,  83 

of  Arbitrators 64 

Apportionment 197 

Apprenticeship 92-95 

Forms 94,95 

Arraignment 485 

Arrangements  Between  Creditors 

and  Debtors 198 

Between  Partners 557 

Arbitration 64-72 

Forms 67-72 

Arbitrators,    Referees     and     Um- 
pires   64-72 

Areas,  Real  Property 612 

Arrest 485-489 

Arson 489 

Articles,  Copyright 399 

of  Agreement 223-263,  402 

Artifices  in  Contracts 198 

Artificial  Boundaries  to  Real  Prop- 
erty     612 

Asphyxia,  Evidence  of. 516 

Evidence  of  Death  from 520 

Asportation 489 

Assault 489 

Assembly,  Unlawful 490 

Assessment  of  Damages 422 

Assent  in  Contracts 194, 108, 199 

Assignments 96-108 

of  Apprenticeship 92 

. Conflict  of  liaw  of. 479 

of  Copyright 398 

of  a  Debt  as  a  Consideration 203 

Forms 97-108 

. of  Mortgages 335 

of  Patents 693 

Assurance,  Covenant  of. 266 

4istrononilcal  aieasnre«. ...,.,...,....   643 


Page 

Atheists,  Evidence 458 

Attainder 490 

Attempts  to  Commit  Crlm« 490 

AttoHtiitioa  of  Contraota 19S 

of  Conveyances 266 

of  Witnesses 273 

Attorneys 72-88 

Confidential     Conimunlcstlons 

to 438 

atlAW  .^ 80 

Forms.' 72-80,  82,88 

in  Fact 72 

in  Patents 6*» 

Auctioneers 88 

Authentlcatloii 109 

Forms 109 

Authorities 108-110 

Authority  of  Agents 45,  SS 

Authors,  Accounts 898 

Contracts 401 

Who  are 40« 

Avoirdupois  Weight 644 

Avulsion,  Real  Property 612 

Award  of  Arbitrators,  etc 66 


Backside  Tard 266 

Baggage 113 

Bailees 88-111 

Bailments 110-143 

Bailor 112 

Banishment 490 

Bank  Account S 

Bills,  Payment  of. 218 

Notes 144 

Forms 144 

Bankruptcy 400 

Bargain  and  Sale 266 

Bargains 193-263 

Catching 199 

Barratry 490 

Barter 199 

Battery 490 

Bawdy-Bouses 491 

Bearing  Date 266 

Beasts 89 

Bees 89 

Behavior,  Surety  for  Good 002 

Behoof 266 

Belief,  Evidence 435 

Bequest  of  Copyright 400 

Best  Evidence 435 

B<>rjnenthing 363 

Betterments,  Real  Property 612 

Bigamy 491 

Bills  of  Exchange 143-17» 

Drawn  by  Partners 056 

Forms 147 

Foreign 480 

Bills  of  Indictment 491 

Bills  of  leading 113-121 

Forms 114-121 

Lien  on 640 

of  Sale 633 

Forms 633 

Bills  of  Pains  and  Penalties 491 

Binding  Apprentices 92 

Partners,  etc 658 

Bipartite  Contracts 199 

Conveyances ft *6* 


INIIKX.   TO   UkM, 


680 

Page 

Birth,  Crtdenee  Of. 517,526 

Blanks  in  Contracts 19» 

Evidence  Concerning 4S5 

Blindness  of  Testator STO 

Blasphemy *** 

noCopyrlgrht  in 400 

Blood,  Cool  Blood 495 

Bodies  Politic 46 

Body  Corporate 419 

Body,  Dead 496 

Body  of  theOflTence 495 

Body  Politic 419 

Bona  Fide 19» 

Bonds  or  Obllgrations 179-192 

Forms 181-192 

l<08S0f. 542 

Bonds  Negotiable 144-146 

Book 418 

Book-Keeping 7-14 

Forms 7-14 

Book  Measure 643 

Books.  See  Copyright 413 

Books  of  Account 2-14 

Borrowing  Horses 90 

Boundaries  to  Real  Property 612 

Breach  of  Contract 199 

Breach  of  Warranty 633 

Breaking  Bulk  491 

Breaking  Doors  to  Arrest 488 

Breaking  House 503 

Bribery 492 

Brokers 84 

Forms 84 

Brothel 492 

Bruises,  Evidence  of. 518 

Buggery.  See  Sodomy 509 

Builders'  liien 540 

Buildings 613 

Bulk-Breaking 491 

Burden  of  Proof 435,  449,  450 

Burglary 492 

Burning,  Evidence  of  Death 520 

Business,  Course  of. 121 

By-la^s  of  Carriers 128 


Pag* 


Calendar,  Criminal 492 

Calendars,  Copyright 400 

Cancellation  of  Wills 363 

Capacity  for  Crime 492 

Measures  of. 643 

CapaxDoli 492 

Capital  Stock  of  Corporations 419 

Carnal  Knowledge 493 

Carriers 84,112-131 

Measure  of  Damages 423 

Carrying  Away 493 

Castration 493 

Catching  Bargain 100 

Cattle 89 

Caveat  Emptor 618 

■ in  Sales  of  Personal  Prop« 

erty 637 

Caveats  in  Patent  Office 593 

Cerebral  Poisons 530 

Cerebro-Spivial  Poisons 530 

Certainty  in  Contracts 199 

Certifleates  of  Deposit 149 

Certified  Checks 148 

Challengos 498 


Champerty  In  Contraeta 199 

Chance  Medley 498 

Change  of  Domlcil 426 

of  Name 561 

Character,  in  Evidence 436 

Charges  in  Account  Books 2 

Charities 363 

Charts.  See  Copyright 418,414 

Chastity 49.^ 

Offences  Against 482 

Chattel  Mortgages 384,  480 

-^-of  Copyright 40t 

Chattels,  Tender  of 222 

and  Ooods 502 

and  Ooods,  in  Wills 364 

Cheat 493 

Checks 148 

Forms 149 

Payment  in 218 

Chemical  Analysis  of  Poisons 580 

Children 46 

l^egatees 367 

Chromos.   See  Copyrights 413 

Circumstances,  In  Evidence 436 

Circumstantial  Evidence 447 

Citations 109 

Citizens 413 

Civil  Actions,  Evidence  in 450 

Civilliaw 477 

Civil  Pleadings 609,  610 

Clauses  in  Contracts 200 

Clergymen,   Confidential  Commu- 
nications to 48S 

Clerks 84 

Closinga  liCdger 10 

Cloth  Measure 648 

Coasts,  Real  Property 618 

Code  liaw 471 

Codicils 363 

Coercion 46,498 

in  Contracts 200 

Cold,  Evidence  of  Death  by 520 

Collateral    Agreements     in    Bills, 

Bonds,  and  Notes 154 

Collision,  Wen  for 540 

Collusion  in  Contracts 200 

Commission 131 

Merchants 85 

—of  Torts  or  Wrongs 686 

in  Contracts 200 

Common  Carriers  of  Freight 112-127 

of  Passengers 127-131 

Common,  Estate  in 614 

taw -..477,478 

Scolds 494 

Seal  of  Corporations 419 

Sense 518 

Communications,  Confidential 438 

Priorto  Contract 487 

Privileged 450 

Company 419 

Competency  of  Witnesses 452 

Compilations,  Copyright 401 

Compilers,  Copyright 400 

Complaints 494 

Compound  Interest ^ 469 

Compounding  Crimes 494 

Felonies 4»4 

Misdemeanors 4W 


IHDEX   TO   LAW. 


6Sr 


Page 

Compromlnes 200 

Compulsion 46 

—in  Contracts 200 

Compulsory  Confessions,  Evidence   437 

Computing:  Interest 469 

Concealed  Delivery,  Evidence  of. . .    517 

Concealment  in  Contracts 201 

Conclusions,  Evidence 444 

C'Onelusive  Evidence 434-437 

Conditions  in  Bonds 179,180 

in  Contracts 201 

Conditional  Con  vey ances . .  263, 312, 334 

Sales 627 

Conditional   and   Irreg^ular   Bills, 

Bonds,  and  Notes 154 

Confederacy 494 

Confessions,  Evidence 437 

Confidence  and  Trust  as  a  Consid- 
eration     206 

Confidential  Communications,  Evi- 
dence    438 

Confirmation  of  Agrency 53 

'■—of  Contracts 202 

of  Conveyances 266 

Confiict  of  I.aw 478-481 

<^nj«ctnre.  Evidence 439 

Connecting:   Railroad   Companies' 

Duties 128 

Consequences  of  Divorce 546 

Consideration  of  Assig^nment 96 

in  Bills,  Bonds,  Jk  Notes  150-153,  203 

-• — in  Contracts 194,202 

Consigrnees 84 

Conspiracy 494 

Constraint 46 

Construction  of  Agrents'  Authority      55 

^— of  Bills,  Bonds,  and  Notes 153 

• of  Contracts,  etc 206,  213 

of  Copyright 401 

——of  legacies 366 

of  Statute  Eaw 538 

Consultations  Prior  to  Contract 437 

Contag^ious  Disorders 495 

Contracts 193-263 

of  Apprenticeship 93 

—of  Authors  and  Publishers 401 

^Distingfuished    from    Torts     or 

Wrongrs 635 

in  Evidence 455 

Forms 223-263,  402 

I^aw  Of  Place  of. 635 

Iiossof 542 

of  Marriage 543 

Measure  of  Damagres,  Partly  in 

One  State  and  Partly  in  An- 
other     535 

of  Partnership 549,  555,  556,  558 

Receipts  in 623 

Contingrent  Estates 429 

Contusions,  Evidence  of. 518 

Conversations  Prior  to  Contract. . .    437 
Conveyances  Aflecting:  Real  Estate, 

Acknowledgement  of. 14-45 

Covenants  in 266-268 

Forms 273-396 

Loss  of 542 

Mode  of  Execution 263-396 

Conviction 495 

Co-OhUyor«  tu  Contract* -r.  809 


Page 

Cool  Blood 495 

Cooling:  Time 495 

Coparcenary  Estates 429,615 

Co-Pledgee 137 

Copies,  Evidence 439,442 

of  Laws   and   Ordinances,  Evi- 
dence      444 

of  Records,  etc 451 

Copy 403 

Copying:,  Measure 643 

Copyists  4C3 

Copyrig:htS 396-417 

Forms,  Assigrnments 399 

Certificates 415 

Contracts 242-244,  402,  403 

Correspondence 414,  415 

Pleadings 411,413 

Coroners 519-521 

Corporations 46,  417-420 

Bills,  Bonds,  A  Notes  of. .  159, 144-146 

Real  Estate 613 

Corpus  Delicti 495 

Correction,  House  of. 502 

Correspondence  with  Patent  Office  596 

Corruption 496 

Counsellors  at  Law 89 

Confidential     Commnntcatlons 

to 438 

Counter  Affidavit 50 

Bond .' 179 

Course  of  Business 121 

Courses  of  Real  Property 613 

Court  Guides,  Copyrig-ht 400 

Court,  Payment  into 607 

Cousins,  Eegpatees 367 

Covenants  in  Conveyances 266-268 

Credibility  of  Witnesses 439 

Creditors  of  Partnership 553 

Creeks 613 

Crimes,  Disting:uished  from  Torts. .   635 

Criminal  Actions,  Evidence  in 450 

Law 481-510 

OflTences 481-510 

Plcading^s 610 

Criminating:  Witness 439 

Crops,  Emblements,  etc 473 

Cross-Examination  of  Witnesses.. .    455 

Cruelty  to  Animals 89 

Cucking  Stool 496 

Culprit 496 

Cumulative  Legracies 366 

Currency,  Ofl'ences  Ag:ainst 482 

Curtesy,  Estates  in 429,  613,  615 

Curtilag:e,  Real  Property 613 

Custody  and  Work 133 

Custom  in  Contracts 207,209 

Evidence  of 439 

Cuts.    See  Copyrig:ht 413 

Cypres :863 


Damage  Feasant 422 

Damages 421 

on  Bills  and  Notes,  etc  176 

Carriers 121,128 

in  Contracts 209 

— -Evidence  of. 439 

in  Insurance 466 

Date,  in  Bonds 180 

— In  ContriMJtw »!• 


682 


nn>Ex  TO  laAW. 


Page 

IHkteof  Patent S86 

of  Written  Instmmenta 634 

Day 634 

Day'Book 12,13 

Dead  Body 496 

Dead  Freight  Uen 540 

Death 426 

Gifts  In  Prospector 461 

Effect  Upon  Contracts 210 

Evidence  of - 439 

of  Partners 559 

Debt  of  Another.   See  Fraud 458 

Debts,  Affecting  I<egacies 367 

l^vldence  of 210 

of  Partners 558 

Decay,  Internal 123 

Decency,  Offences  Against 482 

Declarations,  Evidence 439 

Deed  Poll 268 

Deeds 265-312 

Acknowledgment 14-45 

In  Evidence 455 

Forms 273-312 

Eossof 542 

Receipts  In 624 

Default  of  Another.    See  Fraud 458 

In  Contracts 210 

Defaulting 496 

Defeasance  In  Con  veyances 268 

Defects  In  Horses 90 

Defendants,  Evidence 454 

Defences  in  Divorce 646 

- — to  Torts  or  Wrongs 636 

- — to  Trespass 641 

Delay 403 

Del  Credere  Commission 55 

Delegation  of  Agents'  Authority ...      55 

Delirium  Febrile,  Evidence  of 518 

ofTestator 370 

Tremens,  Evidence  of. 518 

Deliberation  In  Contracts 210 

Delivery  of  Bonds 179 

in  Contracts 210 

of  Conveyances 269 

Evidence  of 517 

In  Sales 628 

Delusion,  Evidence  of 521 

Demand  In  Actions  on  Contract. . . .    211 

Dementia,  Evidence  of 621 

Senile 870 

Demonstration,  Evidence 440 

Demurrage 122 

Dependent  Contracts 211 

Deposit 131 

Depositions,  Evidence 440 

for  Patent  Cases 595 

Derelict  Eand 613 

Deri  vatl  ve  Conveyances 265 

Discrediting  Parties 441 

Witnesses 441 

Description  In  Contracts 211 

DcNortion 496 

Designation  In  Wills 864 

Designs.  See  Copyright 413,414 

How  to  Obtain  Patent  for 

673,  574, 591 

Destruction  of  Real  Property 621 

Detainer  of  I^and 613 

Pe viwtlons  from  Cpntracia , . , . ,  ?ll 


Pat« 

Deviations  in  Insurance 465 

Devise 304 

Dictionaries,  Copyright 400,  403 

Digests,  Copyright   403 

Diligence 46 

Direct  Evidence 441 

Directors  of  Corporations 410 

Directories,  Copyright 404 

Disaflirniance  of  Contracts 211 

Disclaimers  in  Patent  Cases 590 

Disfranchisement  in  Corporations   419 

Disorderly  House 496 

Disorders,  Contagious 495 

Disputing  Wills 365 

Dissent  in  Contracts 211 

Dissolution  of  Agents'  Authority  . .      56 

of  Partnership 551 

Dissuading  Witnesses 496 

Distinctness  in  Contracts 199 

Dividends 419 

Divorce 544-546 

Documents,  Public,  Evidence. .  434,  450 

Dogs 89 

Domain,  Eminent 614 

Domldl 425,426 

Eawof 510,511 

Doors,  Breaking  to  Arrest 488 

Dormant  Partners 555 

Donble  Damages 422 

Double  Entry,  Accounts 7-14 

Doves 96 

Dower,  Estate  in 615 

Drainage  of  I^and 614 

Dramatic  Compositions.  See  Copy- 
right     413 

Drawing  Bills  of  Exchange 153, 154 

Drawings.  See  Copyright 413 

for  Patents 583 

Dripping  Water  on  Eand 614 

Drowning,  Evidence  of  Death  by. . .   520 

Drunkenness 159,  521 

Duelling 496 

Duress 46 

Duties  of  Agents   60 

of  Apprentices *S 

of  Arbitrators; 64 

of  Attorneys 81 

of  Carriers 123 

of  Coroners 619-521 

Earnest  in  Contracts 211 

Esisenients,  Real  Property 614 

Eavesdroppers 497 

Effect  of  Delivery  in  Sales. . . •. 629 

of  Dissolution  of  Partnership. .    553 

of  Fraud 457 

of  Evidence 441 

of  Payment ^^^ 

Effects,  in  Wills 864 

Elements  of  Crimii^al  Offences 481 

EmbesEKlement 497 

Entitlements 473 

Embracery 497 

Eminent  Domain ^14 

Emission ^^^ 

Employment  of  Apprentices 93 

Engraving.  See  Copyright 404,413 

£ngrossin|P t 1 ,,...,...   407 


tirOElC  To   tAW. 


Page 
EiOoynient,  Adverse,  Real  Prop'ty  611 

Covenant  for 267 

£ntiolng^  Away  Apprentices 93 

Entirety  In  Contracts 211 

Entries,  Orlg^inal,  in  Accounts 3 

Entry 426 

Epilepsy,  Evidence  of. 522 

Equality  of  Contracts 212 

Equity 426-429 

Pleading 428,607 

Practice   428 

of  Redemption,  Real  Property . .    614 

Equivocal  Contracts 212 

Erasure  of  Contracts 212 

Escape 497 

Escrow  in  Conveyancing 269 

Estates 429-433 

in  Real  Property 614,  615 

Estimation  in  Conveyances 269 

Estray  Animals 90 

Eviction,  Real  Property 615 

Evidence 434-456 

in  Actions  on  Bills,  Bonds,  and 

Notes 176,  177 

Extrinsic  in  Contracts 207 

of  Payment 607 

Exaction 498 

Examined  Copies,  Evidence 442 

Examination,  Cross  Examination.    454 

Direct  Examination 455 

for  Patents 585 

Preliminary  Examination 441 

Rc-Examination 455 

of  Witnesses 454 

Exceptions  in  Contracts 212 

Excessive  Damages ...   422 

Exchange  Brokers 84 

Excn.xable  Homicide 498 

Executed  Considerations   In   Con- 
tracts     203 

Executed  Estates 429 

Execution  of  Conveyances 269 

by  Death  Penalty 498 

Executors,  Bills,  Bonds,  and  Kotes   159 

Foreign 480 

Executing  Estates 429 

Exemplary  Damages 422 

Exercise  of  Agents'  Authority 57 

Existing  Eiens 539 

Expectancy,  Estate  in 615 

Expense  in  Conveyances 269 

Experts,  Evidence 442 

Ex  Post  Facto  l.aw 511,  512 

Exposure  of  Person 498 

Express,  Parcels  by 125 

Warranty  in  $iales 631 

Expulsion  from  Corporations 419 

Extension  of  Copyright 

of  Patent 590 

Extent  of  Agents'  Authority 56 

Extenuation  of  Crime 498 

Extortion 498 

Extradition 501 

Extracts  of  Works 410 

>—— Evidence 442 

Extrinsic  Evidence  in  Contracts 

207,442 


Facts,  Evidence 442 


683 

Pafft 

Facts,  Ignoranee  of. 463 

FactorN 85, 187 

Failure  of  Consideration  in  Bills, 

Bonds,  and  Notes 151 

in  Contracts 203 

False  Personation 508 

Pretences 498 

Falsifying  Records 499 

Farm,in  Wills 864 

Fear 499 

Fee  Simple,  Conveyances  In 269 

Estate  in 249,615 

Fee  Tail,  Conveyances  In 269 

Estate  in 615 

Fees,  Copyright 415 

Patent 574-594 

Felonies 499 

Fences,  Real  Property 616 

Feofftaientin  Conveyances 270 

Fines 499 

Finders'  Duties  and  Rights  and  Re- 
sponsibilities  542,  543 

Firm  Name 560,561 

Fish 90 

Fixtures  to  Real  Property 473,  616 

I'light 499 

Fcetlcide,  Evidence  of 522 

Fcetns,  Evidence  of. 523 

Forbearance,  etc.,  as  Consideration   203 

Foreign  Eaws,  Conflict  of. 479 

Patents 592,593 

Forestalling  the  Market 499 

Forfeiture 499 

of  Bonds 180 

Forgery 499 

of  Receipts 625 

Formal  Requisites  in  Bonds 180, 181 

Formality  in  Assignment 96 

in  Contracts 212 

FORMS.    See   INDEX   TO  FORMS, 
post. 

Fornication 500 

Forthcoming  Bond 179 

Forum,  Eaw  of S12,  513 

Forwarding  Merchants 85, 132 

Fraud 47 

in  Contracts 218 

— Criminal 500 

in  Oeneral 456,  460 

of  Partners 556 

Fraudulent  Conveyances 266 

Free  Passes 129 

Freight 128 

Common  Carriers  of. 112-127 

Elen 540 

Fugitives  from  Justice 501 

Full,  Receipts  in 624 

Furniture,  Household,  in  Wills. . . .    364 

Future  Contracts  of  Partners 556 

Estates 42* 


Game 90 

Oaming SOI 

Contracts 212 

Houses 509 

Oaseons  Poisons 530 

General  Partnership  549 

General  Rules  of  Construction  In 
Contracts 208 


6S4 


IBTACX   TO    LAW. 


Pace 

(teoirr»phlcRl  Mcannre 643 

testation,  Evidence  of 523 

Gifts  Between  111  viii§r  Persons 461 

In  Prospect  of  Deatb 461 

Gist  of  Trespass 639 

Good  Behavior 602 

Consideration 204 

Faith  in  Bills,  Bonds,  and  Notes   151 

Goods  In  IVllls 364 

Measure  of 643 

and  Chattels 602 

^In  Wills 864 

Gont,  Evidence  of 623 

Grand  Jnrors,  Evidence 453 

Larceny 602 

Grant,  etc , 270 

Gratis 132 

Gratuitous      Distribution,      Copy- 
right     404 

Grave,  Violation  Of. 602 

Ground  Bent 617 

Growing;  Crops 473 

Guaranty 155 

Guardians,  Foreign 4S0 

Guests 133 

Guide  Books 404 

Guilt 602 

Habendum  in  Conveyances 270 

Hallucination,  Evidence  of. 623 

Handwriting;,  Evidence 442 

Hanging,  Evidence  of  Death  by. . .  .*  620 

See  Execution 498 

Hard  Labor 602 

Hazardous  Contracts 213 

Heaped  Measure 643 

Hearings  in  Patent  Cases 687 

Hearsay  Evidence.  ..^^ 443 

Heirlooms,  Beal  Property 617 

Heirs,  Legatees 367 

Hereditaments 270 

Hermaphrodites 624 

Hire  of  Things 132 

Hiring  Horses 90 

Homicide 602 

Excusable 498 

Horses 90 

Measure  of. 643 

Household  Furniture  in  Wills 364 

Stuff 365 

Houses,  Bawdy 491 

Breaking 603 

of  Correction 602 

Gaming 602 

of  Ill-Fame 602 

Beal  Property 617 

How  to  Obtain  Copyright 414 

Patent 682-605 

Hunting  Animals 91 

Husband,  Obligations,  Bights 644 

and  Wife,  Evidence  by 438, 453 

Identity,  Evidence 443 

of  Partnership  Name 661 

Idiocy,  Evidence  of. 624 

Idiots, etc 47,870 

Ignorance  of  Fact ,   462 

of  Law 462 

Ill-Fame,  House 602 


9*f 

Illegal  Considerations 204 

in  Bills,  Bonds,  and  Notes. . .    151 

Illegality  of  Contracts 213 

Illusion,  Evidence  of. 624 

Imbecility,  Evidence  of. 525 

Immoral  Considerations 204 

W^orks,  no  Copyright  in 409 

Immovable  Fixtures 473 

Impairing  the  Obligation  of  Con- 
tracts      217 

Impeachment,  of  Public  Oliicers. . .   503 

of  Witnesses 443,  455 

Implied  Warranty  in  Sales 631 

Importation  of  Literature 401 

Impossible  Considerations 204 

Impossibility  of  Performance 219 

Impotence,  Evidence  of 626 

Improvements,  Beal  Property 617 

Inadequate  Damages 422 

Inception  of  Wills 365 

Incest 603 

In  Chief,  Evidence 443 

Incumbrances,  Covenant  Against.    267 

Beal  Property 617 

Indecency 503 

Indecent  Works,  No  Copyright 409 

Indenture,  Conveyances 870 

Indictment 603 

Bills  of. 491 

Indirect  Evidence 443 

Individual  Name  Used  as  Partner- 
ship Name 661 

Offences  Against 482 

Indorsee's  Bights 157 

Indorsement  of  Bills,  Bonds,  and 

Notes 155 

by  Partners 656 

Indorser's  Liability 156 

Bights 167 

Infanticide,  Evidence  of 686 

Infants,  Evidence 463 

Bills,  Bonds,  and  Notes  of. 159 

Inferences,  Evidence 444 

Influence,  Undue.  See  Persuasion, 

in  Wills 870 

In  formation 60S 

Infringement  of  Copyright 404 

Inheritance 429 

Estate  in 615 

Injuries 636 

Malicious 605 

to  Passengers 128-130 

to  Plaintiff's  Possession  in  Tres- 
pass     640 

Innings,  Beal  Property 617 

Innkeepers 133-135 

—Lien 134 

Insanity,  Evidence  of. 627 

Inscriptions,  Evidence 444 

Inspection,  Personal 484 

Instructions  to  Agents 67 

Instruments  Affecting  Beal  Estate, 

Acknowledgment  of 14-45 

Instruments  of  Evidence 484 

Insurable  Interest,  Insvranee 466 

of  Carriers 124 

Insurance 468-468 

Brokers 84 

Intended  to  be  Recorded 97* 


lllil>£X    to   JUAW. 


6S5 


Pkcm 

Intention  In  Contracts SOS 

to  ConiHiit  Crime 503 

Inter  Partes 270 

Intercourse  Between  Nations 513 

Interest,  Ag^eut's  Powers  Coupled 

With 58 

Insurable 465 

on  Money 468-471 

In  Property  Bequeatbed 367 

Interferences  In  Patent  Cases 587 

iL  nteruatlonal  I<aw 513-515 

Interpretation  of  Contracts S13 

Interpreters,  Confidential  Commu- 
nications to 438 

Evidence  of 453 

K vidence  Throngrli 444 

Intestacy  of  Owner  of  Copyright . .    405 

Inventors 414 

In  Ter rornm  In  Wills . . .  .^ .  ..^. 865 

In  Testimony  Whereof... ^...» 270 

In  Witness  Whereof 270 

Irregular  Bills,  Bonds,  and  Notes. .    154 

Irrelevant  Evidence 444 

Irrigation,  Real  Property 617 

Irritant  Poisons 530 

Islands,  Real  Property 618 

Issue,  Proof  of. 449 

JaiL 503 

Jeopardy 503 

Joint    Bonds,    Joint    and    ScTeral 

Bonds 179 

Contracts .^ .-.«»^.   214 

Owners  of  Copyright..... 405 

Tenancy 429,  615 

Tenants,  Partners  as 657 

Jointure 429 

Journal 12,13 

Journalizing «» 9 

Judicial  Acts ^^^ 47 

> Mortgages. ...»^.»^....^ 270 

Notice 434,444 

Recognition 434,444 

Records  and  Transcripts  in  Evi- 
dence     451 

Sales 270 

Judges'  Evidence 444,453 

Judgment  Contracts 214 

and  Warrant  of  Attorney 83 

Jurat 51 

Jurisprudence.    See  I<aw^ 476,  538 

Justice,  Fugitives  from 501 

Public  Offences  Against 481 

Justifiable  Homicide 498-502 

Justification  of  Agents,  etc 57 

Keys,  Real  Property 618 

Kidnapping 504 

Kinds  of  Consideration 204 

of  Performance 219 

Knowledge  of  Crime 504 

I^abor,  Bard 502 

as  a  Consideration 206 

leading.  Bill  of. 113-121 

liand 618,611-622 

' Measure  of 643 

landlord  and  Tenant 471-476 

I<audlords 474 


I<apse  of  Time ...«««« .—^^..^^ 634 

larceny .^>..^». 502,  504 

Grand ^ 503 

of  Receipts 685 

I^ast  Will 865 

Eatitude,  Measure  of. 643 

Eaws 109,434,444.  476-538 

Eaw,  Admiralty 476,477 

Civil ^^ 477 

Code 477 

Common 477,478 

Conflict  of 478-481 

Criminal 481-510 

of  Domidl   510,511 

Ex  Post  Facto 511,512 

Foreign 512 

Forum 512,513 

Ignorance  of 462 

International 513-515 

Medical 515-534 

Military 584 

Municipal 584 

of  Place 129,534-586 

—of   Place    of  Situation    of   the 

Thing 586 

Presumptions  in  Contracts 209 

Prospective 586 

^Report 536 

Retrospective 536,537 

Statute 537.538 

Eawyers 80 

Eeading  Cases 109 

Questions 445 

Eeases 312,313 

— Acknowledgment  of. 14-45 

Forms 313-334 

Eedger 11,12,14 

Eegades 365 

Eegal  Forms,  Copyright  tn 406 

Estates 429 

Eegality  of  Contract  Determined 

by  Eaw  of  Place 585 

Eegatees  S67 

Eegislation,  Contracts  Concerning  214 

Eength,  Measures  of 643 

Eetters  of  Attorney 72,  80 

as  Contracts 214 

Payment  by 218 

Eetting  Things 132 

Eiabilities  of  Agents 60 

—of  Principals  Concerning  Ag'ts, 

etc 86,87 

Elability  for  Torts  or  Wrongs 636 

Elbel 687 

Eibellous  Works,  no  Copyright 409 

Eibrarlan  of  Congress 406,  407 

Eibrary  at  Patent  Ottice 597 

Elens 538-542 

Copyright 408 

for  Freight 123 

Upon  Pledge 137 

Elfe,  Evidence  of,  in  Infanticide —  526 

Estates 429,615 

Elghtning,  Evidence  of  Death  by. .   520 
Eimltation    to    Actions    in     Bills, 

Bonds,  and  Notes 177 

of  Estates 482 

of  Interest 469 

of  Prosecutions  for  Crlm« 54N( 


6S& 


iHl>t:X    ffO   LAW. 


Page 

litmltations  In  Contracts 201 

litmlted  Partnership S61,  S62 

Lines,  Real  Property 618 

—and  Corners,  Real  Property  271,  618 

Liquid  Measure 643 

Liquidated  Damagres 423 

Literature.    See  Copyrights 413 

Litigration,  Prevention  of,  a  Con« 

slderatlon 204 

Lives     of      Individuals,     Offences 

Agralnst 481 

Loans  for  Consamptlon 135 

for  Use 135 

Local  Copyrlg^ht 408 

Locative  Calls 271 

Loss,  Insurance 465-467 

of  Pledgee ^^.   137 

Lost  Papers 445,542 

Property 542,543 

Lucid  Intervals,  Evidence  of......^.    528 

Lunatics,  etc 47,370 

Lying-in  Walt 605 


Maintenance,  Crime  of. 505 

In  Contracts 199 

Making  Promissory  Notes 153, 154 

Malice ^ 505 

in  Slander 639 

Malicious  Injuries 505 

Mischief ^ 505 

Trespass 505 

Malpractice 529 

Management  of  Partnership  Basi- 

ness > .,1 .^^    555 

Mandate 136 

Mania-a-Potn 518 

Manslaughter 505 

Mansteallng 504 

Manuscripts,  Infringement  on.  .^..^   408 

Maps.    See  Copyright......^ 413,  414 

Mariners'  Measures. ^ 643 

Maritime  Contracts 215 

Liens 541 

Market,  Forestalling 499 

Marriage 543-546 

as  a  Consideration 204 

Married  Women's  Bills,  Bonds,  and 

Notes 159 

Injuries  to 129 

Masters  of  Ships 86 

Hen 541 

Material  Men's  Lien 541 

Maxims 110 

Mayhem 506 

Measure  of  Damages 423 

in  Insurance 466 

Measures  and  Weights 642-644 

Medical  Evidence 445 

Law 515-534 

Members  of  a  Partnership 554 

Memorandums 215 

Insurance 466 

Memory,  Refreshing 451 

in  Wills 370 

Mercantile  Definitions 8 

Law.  See  Accounts  ;  Agency  ;  Bail- 
ments ;  Bills,  Bonds,  and  Notes  ;  Con- 
tracts; Insurance;  Interest;  Law; 
Paktnxkship,  etc.,  etc. 


P«gt 

Merger  of  Crimes 506 

—of  Estates 432 

Method  or  Plan  in  Copyright 411 

Metric    System    of    Weights     and 

Measures 643,  64S 

Midwife 529 

Military  Law 5S4 

Mills,  Real  Property 618 

Mind  and  Memory  in  Wills 370 

Mineral  Poisons 530 

Mines,  Real  Property 618 

Ministerial  Acts 47 

Miscarriage 516 

Miscarriage  of  Another.  See  Fraud   458 

Mischief,  Malicious 505 

Mischievous  Animals 01 

Misconduct 47 

Misdemeanors 506 

Misnomer  in  Contracts S15 

Misreading  of  Contracts 215 

Conveyances 271 

Misrecital  of  Contracts  215 

^^of  Conveyances 2!71 

Misrepresentation  in  Contracts —   215 

Mistakes  in  Contracts 215 

Mitigation  of  Damages 424 

Mode  of  Presentment  of  Bills  and 

Notes 166 

Models  for  Patents 585,  501 

Modifications  of  Contracts 215 

Moiety 868 

Money.    See  Interest 468-471 

Real  Property 619 

Repayment  by  Patent  Ofllee 595 

Tenderof. 222 

Monomania,  Evidence  of. 529 

of  Testator 370 

Monsters 518 

Month 634 

Monuments,  Real  Property 610 

Moral  Obligations  as  a  Considera- 
tion     204 

Morals,  Contracts  Contrary  to 203 

Morality,  Offences  Against 482 

More  or  Less  in  Conveyances 271 

Mortgagee 334,  335,  480 

^Acknowledgment 14-45 

Judicial 270 

Forms 335-363 

of  Personal  Property 334-363 

of  Real  Property .^^.....  834-363 

Movables  in  Ci^neral,  Law  of. 471 

in  Wills 868 

Municipal  Law....^ 584 

Muniments  of  Title 273 

Murder 506 

Musical   Compositions.    See  Copy* 

right 413 

Mutilation.    See  Mayhem 506 

Mutiny 60« 

Mutual  Promises  as  a  Considera- 
tion    205 

Mutual   Rights    and    Obligations. 

See  Agency  ;  and  Landlord  and  Tenant 
Mystic  Testaments 868 


Naked  Contracts 215 

Naked  Powers  of  an  Agent  Coupled 
with  an  Interest 58 


IjnftEX   TO   114W. 


48; 


Pag* 

^Vames 50 

of  Corporations 420 

of  Lcgratees 368 

of  JPurtuersbips 560,061 

Narcotic  Poisons 630 

Natural  Affection  in  Conveyances. .    271 

Boundaries  to  Beat  Property...    612 

Nature  of  Evidence 434 

Necessaries 547 

Necessity 47 

In  Crime 606 

NeKllgrence 47 

of  Carriers 130 

Negrotlable 143 

Bonds 144-146 

Notes 143-178 

Ijossof 542 

Nephews,  liCgtitees 368 

Newly-Discovered  Evidence 446 

Nieces,  I^egratees 368 

Nlffht  Walkers 507 

Nominal  Damag'es 424 

Non  Coinpotls  Slentis 47 

Bills,  Bonds,  and  Notes  of 159 

Non-Acceptance   of    Bills    of    Ex- 
changee  163-165 

Non-Ncifotiable  Bills  and  Notes 143 

Non-Payment  of  Bills  and  Notes  168-172 

N  on-Performance 47 

Note  Brokers 84 

Notes 143-178 

. Banlc 144 

< — Drawn  by  Partners 556 

. Forms  of. 149,150 

' liOss  of 542 

■ Promissory,  Foreign,  Iiost 470 

. Sale  of,  etc 470 

Notice 47 

by  Carriers 126,127 

in  Contracts 216 

of  Copyrigrht 415 

Judicial 437,444 

of  Non-Payment  of  Bills,  etc., 

Service  of. 160-172 

— of  Protest 164 

Novation 547 

Nuisance 548 

Number  in  Corporations 420 

Sing^ular 369 

.af uncnpative  Wills : . . .   363 

Oaths,  Evidence 446 

Obedience 48 

Object  of  Evidence 434 

Obligation  of  Bonds 180 

of  Contracts 216 

Obligations  of  Partners 559 

Obscene  Works,  no  Copyright 409 

Obscenity 503 

Obstructing  Process 507 

Oiibnces,  Pnblie 481r«10 

Offers  to  Contract ^^.   217 

Olographs 368 

Omissions 48 

of  Partners 558 

Open  Accounts 2 

Opinions,  Evidence 446 

Oral  Evidence,  Cannot  be  Substi- 
tuted for  Writing,  etc 449 

44 


Pag* 

Original  Conveyances aas 

Entries,  Accounts 3 

Originality  in  Copyright 410 

Originators,  Copyright 40O 

Originals  in  Evidence 447 

Overt  Acts 48,507 

Owners 549 

Joint,  of  Copyright 405 

of  Ships,  Ueu  of 041 

Package,  Bad,  in  Shipping 123 

Pains  and  Penalties,  Bills  of 491 

Paintings.    See  Copyrights 413 

Paper,  Measure  of. 643 

Papers,  Eost 445,042 

Paralysis,  Evidence  of. 516 

Pardon .*.   507 

Parol  Contracts 217 

Evidence 447 

Part  Owners  of  Ship's.  l<len  of. . .  .^.   541 

Payment 218 

Performance »...   210 

Particular  Estates 430 

Partition  in  Conveyances .^   271 

Partial  Insanity  of  Testator 370 

Eoss,  in  Insurance 465,  466 

Parties  to  Bonds 181 

to  Bills,  Bonds,  and  Notes.. . .  158-160 

Character  in  Evidence 436 

to  Contracts 194,217 

Dlscrediting,.in  Evidence 441 

^Entitled  to  Copyright. 413 

Evidence  by 408 

in  Sales 629 

Partners 86,009 

Bills,  Bonds,  and  JTotes  of. . .  109,  160 

Eien 041,558 

Partnership 549-562 

Parts  of  Works,  Ck>pyright 410 

Pass,  Free 129 

Passengers,  Common  Carriers  of 

127-131 

Patent  Office 565,567 

Patents,  Designs,  and  Trade^Marks 

562-605 

Forms 597-605 

How  to  Obtain 567-597 

Practice  Concerning 578-605 

Pathology 530 

Pawn 136-138 

Brokers .-.     84 

Payment 605-609 

of  Bills  and  Notes 160, 165, 172 

of  Contracts 218 

into  Court 130,607 

-^-of  I<egacies 368 

—of  Freight 124 

Peace,  Public  Ofltences  Against 482 

Penalty  in  Bonds 181 

Penalties 507 

Bills  of;  etc 491 

Pencil 268 

Perfldy 48 

Performance 48 

of  Contracts 219 

Perils  in  Insurance 467 

Periodicals,  Copyright 410 

Perjury 507 

Permanent  Fixtorss. .^   473 


688 


limEX   TO   LAW. 


Permissive  Waste,  Real  Property. .    621 

Perpetnatini:  Evidence 447 

Person,  Indecent  Exposure  of 498 

Personal  Inspection 484 

Property 609 

Trespass  on 639 

Represen  tatl  ves 48 

Personam,  Proceedings  In 479 

Personation,  False 008 

Persons 609 

Persuasion 48 

in  Wilis 370 

PewN,  Real  Property 619 

Photograpliingr,  Copyrig^lits 410 

Pliysicians 530 

Coniidential     Communications 

to 439 

Piano  Scores,  Copyrlg^iit 410 

Piracy 608 

in  Copyright 405,411 

Place,  l.aw  of 535,  536 

^— of  Situation  of  a  Tbing 536 

Plaintiff's  Possession  in  Trespass.    640 

I'lan  or  Method,  Copyright 411 

■*lats.  Real  Property 619 

Pleadings 609,  610 

in  Bills,  Bonds,  and  Notes.. .  177, 178 

finder  the  Copyright  I<aw 411 

Pledge 136,138 

Point  in  Issue,  Evidence 449 

Poisons,  Evidence  of. S30 

Policies  of  Insurance 464 

Policy,  Public,  Offences  Against . . .    482 

Possessed 619 

Possession,  Adverse,  Real  Property  611 

Covenant  of 267 

Estate  in 615 

Plaintiffs  in  Trespass 640 

Positive  Evidence 447 

Possibilities,  Real  Property 619 

Pounds  for  Animals 91 

Powers  of  Agents 57 

Coupled  with  an  Interest.  58,  59 

of  Attorney,  Aclcnowledgment  14-45 

Forms 72-80 

of  Partners 555,  558 

Practice 611 

in  Bills,  Bonds,  and  Notes. . . .  176-178 

Concerning  Patents 578-605 

Precatory  Words 370 

Pregnancy,  Evidence  of 530,  531 

Preliminary  Examinations 441 

Premises 271 

Prescription,  Real  Property 619 

Presence  of  Parties  in  Contracts. . .    219 
Presentment  and  Payment  of  Bills 

and  Xutes 160-165 

for  Payment  of  Bills  and  Notes 

165-172 
Presumptions  of  I<aw  in  (k>ntracts  209 

President  of  Corporation 420 

Presumptions,  Conclusive 447,  448 

Disputable 447,448 

of  Fact 448 

of  I^aw 448 

Rebuttable 448 

Presumptive  Evidence 447 

Pretences,  False 499 

Pretended  Delivery,  Evidence  of. . .   017 


Pac« 

Price,  in  Kales 629 

Prima  Facie  Evidence 434,448 

Primary  Evidence 434,  448 

Principals 86 

Duties      and      Elabllltles     and 

Rights  of  Agents  to 60,62 

Prin ciples no 

of  Criminal  I.aw 481 

Printed  Copies  of  l>aws.  Evidence. .    444 
Private     Arrangements     Between 

Partners 557 

Carriers 181 

Property,  Offences  Against 481 

Securities,  Offences  Against 482 

Writings,  Evidence 484,455 

Privileged  Communications 450 

Probability,  Evidence 450 

Probate  of  Wills 369 

Proceedings  of  Arbitrators 64 

Process,  Obstructing 507 

Profanity,  no  Copy  right 400 

Proflts  in  Partnership 555 

Distribution 550 

Promises,  Mutual,  as  a  Consldera* 

tion 205 

Promissory  Notes 148-178 

Drawn  by  Partners 556 

Foreign 147 

Forms  of 149,150 

Loss  of 642 

Proof  of  Assignment 96 

Burden  of 435 

of  Issue 449,450 

Property  in  Animals 91 

in  Divorce 646 

Lost 542 

Offences  Against 481,482 

of  Partners 557 

in  Pledges 138 

Proposals  for  Contracts 220 

Propositions  Prior  to  Contract 437 

Proprietors 414 

Prosecutions,    Criminal,    Limita- 
tion of 505 

Prospective  Law 536 

Protest 163-165 

Forms 164 

Provocation 608 

Proxies 88 

Public  Documents,  Evidence  . .  434,  450 

Justice,  Offences  Against 481 

Offences 481-510 

Offences  Against 482 

Peace,  Offences  Against 482 

Policy,  Offences  Against 482 

Property,  Offences  Against 481 

Records,  Evidence 434 

Securities,  Offences  Against 482 

Publication 48 

Publicity    ** 

Publisher's  Contracts 401 

Pulsation,  Evidence  of 032 

Punctuation  in  Contracts S20 

of  Statute  Law 538 

Punishment 008 

Quadripartite  Conveyances 271 

Qnaliflcations  of  an  Attorney 81 

in  Contracts 201 


UTDEX   TO   I<AW. 


689 


Page 

<|ni»rries.  Real  ProiMrty 619 

4|naNi  Corporations 420 

4tii<^!<tloii!t  in  Evidence 450 

lj«a<linK«  In  Evidence 445 

<|Hici<ening^,  Evidence  of 532 

^aiet  Enjoyment,  Covenant 267 

Quit-Claim  Deeds 271 

<tuotatiou.  In  Copyright 411 

Rape 508 

Ratification 48 

of  Af^ent's  Antborlty 58 

Ileadingr  of  Contracts 220 

Keal  Estate 611-622 

Brokers 84 

ileal  Property 611-622 

Conveyances  of 263-296 

Trespass  on 639 

Reason 110 

flensonable  Acts 48 

Receiptor 138 

Receipts 623-625 

Books  of,  Copyriiptat 411 

in  Conveyances 272 

Forms 139,625 

Receivers,  Forelgrn 480 

Recission  of  Contracts 220 

Recitals  in  Conveyances 272 

Recogpnition  of  Agpent's  Antiiorlty.      58 

Judicial 434,444 

Recommendatory  Words 370 

Record  of  Copyrigrbt 411 

Recording:  Conveyances 272 

Records,  Copies,  etc 451 

Records,  Public,  Evidence 434 

Reddendum  in  Conveyances 272 

Redelivery  Bond 179 

Redemption  of  Pledge 138 

of  Real  Property 614 

Re-Entry,  Conveyances  Providing 

for 272 

Re-Examination  of  Witnesses 455 

Refreshing  Memory 451 

Refuge,  House  of. 503 

Refusal 48 

Registers,  Evidence 451 

Re-Issues  of  Patents 589 

Rei eases 625,  626 

of  Contracts 220 

in  Conveyances 272 

Forms 626 

of  I^egacy 367 

of    Principal   Debtor   in    Bills, 

Bonds,  andNotes 175 

Reliction,  Real  Property 619 

Religion,  Offences  Against 482 

tlem.  Proceedings  in 479 

Remainder,  Estate  in 615 

iiteiuainders.  Real  Property 619 

Vested  Real  Property 621 

Remedies    Under     the    Copyright 

I^w 411-413 

for  Breach  of  Warranty  in  Sales  633 

Removable  Fixtures 473 

Rent,  Ground 617 

Repairs,  Real  Property 619 

Repeated  Legacies 866 

Replevin  Bond 179 

Report,  liaw 536 


Pag» 

Representations  for  Insnranee 463 

Reprief 508 

Reprimand 509 

Republication  of  Wills 36fl 

Reputation,  Evidence 451 

Requests  in  Contracts 22* 

Requisites  of  a  Valid  Copyright  413-416 

of  a  Valid  Uen 540 

Requisition 501 

Reservation  in  Conveyances 272 

Residence 426 

Residents 414 

Residue  in  Wills 369 

Responsibility  of  Carriers 125-127 

Restraint  of  Trade,  Contracts  for. .   220 

ReHtrictions  in  Contracts 201 

Retainer,  Retaining  Fee 82 

Retrospective  liaw 53C,  537 

Reversion 436 

Estate  in 615 

Real  Property 620 

Revocation  of  Agent's  Authority..      58 

of  Arbitrator's  Powers 64 

Rejected  Applications  for  Patents.    586 
Right    of   Stoppage    of    Goods    in 

Transitu 630 

Rights  of  Partners 559 

of  Principals  Concerning  Ag'ts      87 

Rings,  Inscriptions  on.  Evidence. .    444 

Riots 509 

Risk,  etc..  Interest 470 

Risks  in  Insurance 467 

Robbery 509 

Highway 502 

Routs 509 

Rules  of  Construction  in  Contracts  208 

of  Practice  in  Patent  Cases. .  578-597 

Rumor,  Evidence 451 

Said,  in  Contracts 220 

Sales 626-633 

Animals 92 

Bills  of.  Forms 633 

Copyright 416 

Edition  of  Copyright 416 

Horses 91 

Judicial 270 

Measure  of  Damages 424 

Kotes,  etc 470 

Pledge 138 

Satisfaction  of  liCgacies 367 

of  Mortgages 335 

Scores,  Piano,  Copyright 41* 

Seamen's  liien 541 

Sea  Shore,  Real  Property 62t» 

Sea  Weed,  Real  Property 620 

Seals 51,110 

—of  Corporations 419 

Secondary  Evidence 434,  451 

Secrets  of  State,  in  Evidence 453 

Securities  in  Assignment 96 

Offences  Against 483 

Seeds,  Real  Property 620 

Seizin,  Covenant  of. 867 

Real  Property 620 

Self-Defence 509 

Senility S70 

Separate  Estates 430 

Servants 40 


690 


i!ifi>rx  rrt  LAW. 


Page 

SerranM,  Authority 118 

Servicer  at*  a  Consideration 306 

8et-Oflr  in  Contracts S21 

Settlement  or  Kesidence 425 

Settlements  in  Contracts 221 

Severalty  Estates 480,  615 

Severance  of  Estates 433 

Shares  of  Partners 557 

Sharing:  Profits  in  Partnerships. . .   555 

Ship  Brokers 85 

Lien 542 

Shipmaster 86 

Shipowner's  liien 541 

Shipper's  Iden 543 

Forms 114-121 

Shipplngr  Articles 221 

Ship's  Husband 88 

Men , 642 

Shore»  Real  Property 620 

Sifpnatare  to  an  Affidavit 50 

by  Ag:ent 63 

of  Contracts 221 

Silence  in  Contracts 221 

Simple  Contracts 193,  221 

Sing^le  Entry  Accounts 7-14 

Singrnlar  Knmber 369 

sum '  49 

Slander 637-639 

of  Title 639 

Smugrgrling: 509 

Sodomy  500 

Solicitors 80 

Confidential  Communications..    438 

Solid  measure 643,644 

Somnambulism,  Evidence  of 533 

Specialties 193,221 

Specification  for  Patents 583 

Spelling' in  Contracts 221 

Spinal  Poisons 630 

Springrs,  Real  Property 620 

Stakeholders 221 

Starvation,  Evidence  of  Death  by . .   521 

State  Copyrigrht 408 

Secrets  in  Evidence 453 

Sovereigrnty,  Ofi'ences  Agpainst . .    481 

Statute  I.aw 537,538 

of  Frauds 458 

Statutes  Aflectingr  Contracts 221 

of  Carriers 128 

See  Copyrig^ht 398-416 

Statutory  Mens 542 

Sterility,  Evidence  of 633 

Stock  Brokers 84 

Stool,  Cucking: 496 

Btoppag:ein  Transitu 127,630 

Strangper's  Rigrhts  to  Consideration  205 
Strangulation,  Evidence  of  Death..    521 

Stnfl;  Household  in  Wills 865 

Stultification 49 

Sub- Agents 63 

Sub-Contracts 221 

Subject-Matter  in  Contracts 194 

Submission  to  Arbitration 65 

Subornation  of  Perjury 609 

Subscriptions 205 

Sue,  Covenant  Not  to 267 

Sufiierance,  Estates  at 430,  615 

Suicide 533 

Suits,  Abatement  of  Contracts 221 


Suits  by  liimlted  Partnerships 562 

in  Partnership  Name 561 

Vexatious 641 

Sunday 684 

Contracts 221 

Supercargoes 88 

Superfcetation,  Evidence  of. 584 

Sureties,  Foreign 480 

Surface  Measure 644 

Surplusage  in  an  Affidavit 51 

Surrender  in  Conveyances 273 

Surveys,  Real  Property 620 

Tax  Deeds 273 

Telegrams,  Evidence 452  ■ 

Forms 140-142 

Telegraph  Companies 139-142 

Tenant  and  landlord 471-476 

Tenants 474 

Tender  in  Contracts 222. 

Tenendum  in  Conveyances 278 

Tenure,  Real  Property 62C, 

Term  of  Contracts 228/ 

of  Copyright 41V, 

of  Estates 433 

Termination  of  Apprenticeship.. ..      9U 

of  Partnership 551-55:i 

Territory  of  Nations 514 

Terror  in  Wills 365 

Testament,  Mystic 36im 

Testate 36'? 

Testator 36'» 

Testatnm  in  Conveyances 27:it 

Testimony  or  Evidence 434-456 

of  Witnesses,  How  Taken 452 

for  Patent  Cases 595 

Tests,  in  Evidence 45ri 

Things,  Measure  of. 644 

Third  Parties,  in  Agency,  etc. 61,  62 

Threats,  Confessions  Obtained  by . .    452 

in  Wills 370 

Through  Tickets 139 

Time...   49,634,635 

—-of  Consideration 205 

Cooling 495 

Measure 644 

— ^-of  Performance  of  Contracts 219 

——ofPresentment,  etc.,  of  Bills,  etc.  166 

Title,  Abstracts  of 263-265 

to  an  Affidavit 50 

of  Copyright 416 

Deeds 273 

to  Estates 433 

Slander  of 639 

Tombstone,  Inscriptions,  Evidence   444 

Torts,  l,aw  of  Place  of 536 

— -or  Wrongs 635-643 

Total  Eoss,  Insurance 467 

Trade,  Contracts  in  Restraint  of. . . .   220 

Fixtures 474 

Usages  of 121,642 

Trade-Marks 574-576,592 

How  to  Obtain  Patent  for  . . .  574-576 

Transcripts,  Evidence 434,451 

Transfers 49 

of  Bills,  Bonds,  and  Notes  ...  155-158 

Confiictof  Eawof... 479 

of  Copyright 417 

of  Pledge 188 


IVDBX   TO    I.A.W. 


691 


Page 

Transitn,  Stoppa|r«  In 127,  630 

Translation  of  liegacies 868,  870 

Translations,  Evidence 452 

Translator's  Copyright 400 

Travellers 133 

Treason 010 

Trees.  Real  Property 620 

Trespass 005,  689-641 

Hallclons 505 

Tripartite  Conveyances 273 

Triple  Damagres  422 

*rroy  Welisrht 644 

Trnst,  etc.,  as  a  Consideration 206 

Ultra  Tires 420 

Unconscionable  Contracts 223 

Undne  Influence.    See  Persuasion.    370 

Unintelligible  Wills 370 

Unity  of  Estates 430 

Unknown  Authors 400 

Unlawful  Assembly 490,  510 

Contracts 223 

Unpublished  Works 417 

Unsoundness  in  Horses 91 

Unwritten  I^aws 479 

Usagre 642 

in  Contracts 207 

E  vidence  of 439 

of  Trade 121,207 

Use  of  Pledge 138 

Usurious  Interest 470 

Tacatlon 49 

Vagrancy 510 

Tagrants 510 

Val  uable  Considerations 206 

Talue  in  Bills,  Bonds,  and  Bfotes 151 

Validity  of  Divorce 546 

Vegetable  Poisons 530 

Venue 51 

Vest,  Real  Property 621 

Vexatious  Suits 641 

Vice  In  Morses 91 

View,  Real  Property 621 

Violation  of  Grave 502 

Violence,  Evidence  of  Death  by.  519, 520 

Viva  Voce,  Evidence 452 

Void  Contracts 223 

Voidable 49 

Voidable  Contracts 223 

Voluntary  Confessions,  Evidence. .    437 

Considerations 206 

Conveyances 265 

Waste,  Real  Property 621 

Voire  Dire,  Evidence 452 

Wait,  Eying  in 505 

Waiver  in  Contracts 223 

of  Eien 638 

Walkers,  Night 607 

Want  of  Consideration,  etc 152 

Warehousemen 88,  141 

Warfare 614 

Warnings  in  Wills 365 

Warrant  of  Arrest 488 

of  Attorney,  Forms 83 

Warranty  in  Assignment 96 

Breach  of. 633 

Covenantor 267 


Page 

Warranty  Of  Horses 91 

in  Insurance 467 

in  Sales 681 

Waste,  Real  Property 621 

Water  Drip,  on  Eand 614 

Courses,  Real  Property 622 

Real  Property 622 

Week 635 

Weights 644 

of  Evidence 452 

Weights  and  Measures 642-644 

Wharfingers 88, 142 

Wharfs,  Real  Property 623 

When  Bills  and  Notes  Presented  . .    166 

Payments  to  be  Made 607 

in  Wills 370 

Where  Bills  and  Notes  Presented. .    167 

Payments  to  be  Made 607 

Who  Are  Partners 554 

to  Make  Payments 608 

to  Present  Bills  and  Notes 167 

to  Receive  Payments 608 

Whom  Bills  and  Notes  Presented  to   167 

Wife 49 

Eegatee 368 

Obligations,  Rights,  etc 543 

and  Husband,  Evidence  by.  438,  453 

Will,  Estates 430,615 

Wills  and  Testaments 363-379 

of  Copyright  Matter 417 

in  Evidence 455 

Forms 371-396 

Eaw  of  Domicil  CU>verns 511 

Eoss  of 542 

W^ithdrawn  Patent  Applications . . .   586 

Witnesses 452-455 

Attestation  by 273 

Character,  in  Evidence 436 

Competency  of. 454 

Credibility  of 439 

Cross-Examlnation  of. 454 

Criminating  Self. 439 

Direct  Examination  of 455 

Discrediting 441 

Examination  of 454,  455 

Evidence  of 454 

Impeachment  of 443 

Re- Examination  of. 455 

Words  in  Assignments 96 

— r-ln  Contracts 223 

- — in  W^ills 370 

Work  as  a  Consideration 206 

and  Custody 133 

Wounds,  Evidence  of 534 

W^ritten  Instruments,  Date 634 

Eaws 479 

Writing 50 

Hand- Writing,  Evidence. . . .  442,  455 

Writings    Affecting    Real     Estate, 

Acknowledgment  of. 14-4o 

in  Evidence 455 

in  Pencil 368 

Private,  Evidence 434 

Wrongs  or  Torts 635-642 

Tard 273 

Year 635 

Tears,  Estate  for 48*,  615 

Young  Animals 92 


INDEX  TO  FORMS. 


See  IHTDEX  TO  liAW,  ante. 


Page 

▲bstracte  of  Title 204, 265 

Acconrttii 4-14 

Administrators 4-5 

Advertising 14 

Affidavit  to 51 

Assignees  5 

Assignment  of 97 

Authentication  of  Copy  of 109 

Balance,  Trial 14 

Bills— Payable 14 

Receivable 14 

Brokers 84 

Cash   7,14 

Day  Book 7,  12, 13 

Discount  and  Interest 14 

Double  Entry 11-14 

Executors 6 

Exemplification  of  Copy  of. 109 

Expense 14 

Fixtures 14 

Guardians 5,6 

Interest  and  Discount 14 

Journal 12,13 

Ledger 7,11,14 

Loss — Profit  and 14 

Merchandise 14 

Payable— Bills 14 

Profit  and  Loss 14 

Receipts  for 625 

Receivable— Bills 14 

Single  Entry 7 

Statements  of  Account 6 

Stock 14 

Store  and  Lot 14 

Trial  Balance 14 

Verification  of 51 

Acknowledgement,  Asslgrnment of..      97 
of  Certificate  of  liimited  Part- 
nership     562 

—of  Deeds,  etc.   See  Acknowlbdgmsnt, 
ETC.,  below. 
Instruments  AlTectlng:  Real 

Estate,  Writings,  etc.,  etc 14-45 

Alabama 16, 17 

Arkansas 17 

California 17,18 

Canada 18 

Colorado  18,  19 

Connecticut 19 

Dakota 19 

Delaware 19 

District  of  Columbia 19,  20 

Florida 20,21 

Georgia 21 

Waho 21,22 

Illinois 22,23 

Indiana 23 

Iowa 23,24 

Kansas 24,  25 

Kentucky 25,26 

Louisiana 26 

Maine 26,27 

Maryland 27 

Massachusetts 27 

Michigan SS7,  28 

Minnesota 28 

Mississippi 28,  29 

Missouri 29 

Montana S9 

692 


Page 
Aeknowledipnient  of  Instr«vient«, 

etc.    (Continued.) 

Nebraska  29,  SO 

Nevada 30 

New  Hampshire SO,  31 

New  Jersey 31 

New  Mexico) 31,  32 

New  York 82-37 

North  Carolina 37 

Ohio 37,38 

Oregon 38 

Pennsylvania 38-41 

Rhode  Island 41 

South  Carolina 41 

Tennessee 41,42 

Texas 42 

Utah 42,43 

Vermont 43 

Virginia , 43 

Washington  Territory. 4S,  44 

West  Virginia 44 

Wisconsin 44,  45 

Wyoming 45 

of    licases.      See    Acknc'Vlkdgment, 

above. 

Of  Mortgragres.    See  title  Acknowledg- 

MBNT,  above. 

Acquittances 629 

Action,  Title  to 51 

Additional  Charge  on    Mortgagred 

Premises 352 

Administrator's  Accounts 4-5 

Acknowledgment 16 

Covenants  in  Deeds 301 

Deeds,  of— 

General  Forms 303,  304 

Forms  used  in  Kansas 274 

Kentucky 281 

New  York 287 

Ohio 291 

Pennsylvania 294 

Signatures  and  Seal  to  Deeds 302 

Title,  Recital  of  in  Deeds,  etc 299 

Agents. 

Acknowledgments  by 16 

Contracts  by 224 

Agents   and    Manufacturers,   Con- 
tracts of 249,250 

Agreements.  See  Contracts,  below. 

In  General 223-263,402 

Apprenticeship 94-95 

Arbitration 67,  68 

to  Continue  Arbitration  ...   69 

Copyright 402,  403 

Affidavits 51-53 

of  Accounts 51,  52 

of  Acknowledgments 52 

of  Arbitrators 69 

of  Assets 52 

to  Award 71,  72 

Chattel  Mortgage,  Renewals  by 360 

Commencement 51 

Conclusions' > 51 

Foreign 58 

General  Forms '51 

to  I  ndenture  of  Apprenticeship 226 

Jurats  to 51 

of  Notice 9S 


nrOEX   TO    FORMS. 


693 


Paca 
AflSdavlto.    (Contlnmcd.) 

to  Nuncupative  Will 896 

Partners 58 

to  Petition 53 

of  Publication '. 63 

Renewals  by,  of  Chattel  Mortgages S60 

Signature  of 5R 

of  Sureties 53 

Witnesses'   Affidavit  to    Nuncupative, 
Verbal,  or  Unwritten  WiU 896 

ACHrmHtion  of  Arbitrators 69 

of  Witness 69 

Arbitration 67-72 

Alabama. 

Acknowledgments 16,  17 

Deeds 274 

Mortgages 835 

Wills 371 

Animals,  Contracts  for  Sale  of. 257 

Annual  Statements  for  Contlnnlng: 
Chattel  illortgragres  in  Force 360 

Annuities.  See  Wills 380,381,391 

Annuity,  Bond  for  Payment  of 183 

Appeals,     Trade-Marks,     Patents, 
and  Desigrns 601-603 

Appendix  to  Trade-Marks,  Patents, 
and  Uesigrns 605 

Appointment  of  Arbitrators 69 

Attorney  at  Law 82 

in  Fact / 73-80 

Apprentice. 

Assignment  of 98 

Parent's  Bond  for 183 

Apprenticeship 04,  95,225,226 

Affidavit  to  Indentures 226 

Contracts 94,95,225 

Arbitration  Forms 67-72 

Accounts 68 

Administrators 67 

Affidavits 67 

Agreements  to  Submit  to 67,  68 

All  Controversies,  etc 67 

AH  Mattersof  Difference 67 

in  Variance 6'7 

Appointments 69 

Awards 69-72 

Bonds 68 

Suits 67 

Boundaries 68 

Horse  Trade 68 

Particular  Matters  Only 68 

Partnership  Matters 68 

Submission  to 67,  68 

Suits,  etc 68 

Provisions  for,  in^ Wills 881,382 

Aw  kansas. 

Acknowledgments 17 

Deeds 274 

Mortgages 335 

Wills 371 

Articles  of  Ag:reement 223-263,  402 

Artists'       Contracts       Concerning 
Their  Copy rig:ht 402 

Assets,  Attldavit  of. 52 

Assij^nce's  Accounts 5 

Acknowledgment 16 

4ssiKrnnieuts 97-108 

Account 97 

Acknowledgment 97 

Apprentice 98 

Billsof  Sale 98 

Bonds 98,99 

Bonds  and  Mortgages 105,  106 

Chattels 107 

Claims 90 

Clause — Security 107 

Company  or  Corporation 09,  lOO 

Compound 107 

Contracts 99 

Consent  to 99 

Copyright 898,  399 

Corporation 99,  lOO 

Debts 100 


Asslirninents.    (Contlnncd.. 

Debtors— Insolvent lOl-lOS 

Deeds 100 

Dower 100 

Formulse 109 

General  Forms 97 

Ground  Rents lOO 

Indenture 98 

Indorsed  on  a  Writing 97-101 

Insolvent  Debtors 101-103 

Insurance  Policy 103 

Interest  of  Partnership 106 

Judgments 103 

Leases 103,104 

Legacies 104,  105 

Letters  of  Attorney 105 

Moneys 105 

Mortgages 105 

Mortgages  and  Bonds 105, 106 

Notes,  etc 106 

Orders 106 

Partnership  Interests 106 

Property 106,  107 

Patent  Rights 603 

Personal  Property ,    109 

Policy  of  Insurance 103 

Powers  of  Attorney 105 

Powers  of  Attorney  Attached 97 

Prizes  Taken  at  Sea 107 

Property  of  Partnership 106,  107 

Recipe 107 

Recourse— Without 108 

Rights— Patent 603 

Sale— Bills 98 

Schedules  Attached 97 

Seamen's  'Wages 108 

Security  Clause 107,  108 

Servants 108 

Shares  of  Stock lOg 

Simple  Forms 97 

Stock,  Shares  of 168 

Wages  in  General 108 

Seamen,  etc 108 

Without  Recourse 108 

Assig^nments  of  Copyrigrht 399 

Assignment  of  Incase,  Contract  for.   248 

of  nurtg:a,ges 348,349 

by  a  Corporation 349 

Covenants  for 343 

Short  Form 348 

With  Power  of  Attorney 348,  349 

Assigrnments  of  TradvMarks,  Pat- 
ents, and  Desig^ns 608 

Assurance  Covenant  in  Mort^ag^es .  343 
Attached  Property,,  kteceipt  for.  . . .  139 
Attestation    of  IrVi-itten  Wills    by 

Witnesses 884,385 

EnglishForm 384 

Massachusetts  Form 384 

New  York  Form 385 

Pennsylvania  Form 385 

Attorney  in  Faci.    (liCtters  or  Pow- 
ers)  72-80 

Acknowledgment 16 

Contracts  by     224 

Deeds  by 304 

Lease  by 322 

Letters  or  Powers  of  Attorney 72-80 

Signature  and  Seal  to  Deeds  by 302 

Title  by.  Recital  of,  in  Deeds,  etc 299 

Attorneys  at  l.aw 82,  83 

Appointment  of.  General  Forms 82 

by  Defendant 82 

by  Plaintiff,  to  Commence  Suit 8S 

to  Conduct  Suit  Already  Commenced 

and  Pending 82 

Contract  with  Clerk 244 

Employment  Contracts 82 

Anthentication  Certificate,  Bonds.    145 

by  Trustee,  of  Bonds 145 

Authentications 109 

Copy  of  Account 109 

on  File 109 

of  Inventory 109 

of  Record 109 


694 


IHDEX   TO   FORKS. 


Paf* 
|latb«ntle»tlonH.   (Coatlaned.) 

of  Will 109 

Official  Character 109 

Transcript  of  Judgment 109 

Anctloneerti,     Contracts     by     and 
With 225 

Awards. 

General  Forma 69,70 

by  Umpires 70 

Service  of 71 

Verification  of 71 


Hail  Bond 183 

Bank  Notes 144 

Barrels,  Contracts  for  Mannfactnr- 

Ingr 250 

Barter  and  Trade  Contracts 225 

Bequests  and  I<eg:acle8  of  Personal 

Property 391-393 

Annuity,  Payment  of 391 

Purchase  of 391 

to  Wife  During  Widowhood 391 

Charitable  Bequests 391,  393 

Children,  Bequests  to,  etc 392 

Corporations,  Bequests  to 392 

Death  of  Legatee 392 

Debts,  etc 392 

Dress  and  Ornaments 392 

Furniture,  etc 392 

Books  and  Provisions,  etc 392 

Good-will  of  Business 392 

Infant's  Legacy 392 

Jewelry,  Plate,  and  Household  Effects, 

etc 393 

Payment  of  Legacies,  etc 393 

Pecuniary  Legacies,  etc 393 

Resid ue  of  Estate 393 

Share  Under  Another  Will 393 

Stock,  for  Support  of  Family 393 

Trust,  for  Unincorporated  Society 393 

BriIlH  of  Credit 184 

of  Exchangee 147 

After  Date 147 

Sight 147 

as  per  Letter  of  Advice 147 

atSight 147 

General  Form 147 

Set  of  Foreign  Bills 147 

— of  liadlngr 114-131 

Petroleum 242 

Penal 184 

of  Sale 633 

Assignment  of 98 

Bond,  to  Execute 188,  189 

General  Form 633 

of  a  Horse,  With  Warranty 633 

of  Sale,  or  Chattel  Kfortg^ages  357-359 

SlnfiTle 184 

Blind  Person's  Slffnato'e  to  Deeds, 


etc. 


303 


Bonds. 

Assignment  of. 98,99 

Forthcoming 179 

Secured  by  Mortgage..    349 

for  n«eds.  See  Bonds  and  Obligations, 

ETC.,  below. 

and  9Iortf^ag:es. 

Assignment  of 105,  106 

Contract  For  Sale  of 257 

— XoRotlable 144,146 

Authentication,  Certificate  145 

Authentication  by  Trustee 145 

of  Corporations 144-146 

County  Bonds 145 

Coupons 145, 146 

Interest  Coupons 145,146 

Warrants 145,146 

Municipal  Bonds 145,  146 

Private  Corporation  Bonds 145 

Registration 145 

State  Bonds 146 

Township  Bonds 146 

Warrants,  Interest 140,146 


Pag« 

Bonds  or  Obllipatlona 181-192 

Annuity,  Payment  of 188 

Apprentice,  Father's  Bond 183 

BailBond 183 

Bill  of  Credit 184 

Penal 184 

of  Sale,  to  Execute 188,189 

Single 184 

Bottomry  Bond 184 

by  Part  Owner 184, 185 

Clauses,  Various 188-192 

Conditions,  to  be  Inserted  When  Ap- 
plicable    188-192 

for  Conveyance  of  Land 185-189 

^— on  Coming  of  Age 189 

by  Corporation  Bond 185 

Covenants 188-193 

for  Deeds  for  Land 185,186 

to  Deliver  Lost  Deeds,  etc 189 

to  Execute  Bills  of  Sale 188-189 

for  Execution  of  Conveyance 186 

by  Executors 186 

Father's  Bond  for  Apprentice,  etc 183 

General  Forms 181-183 

to    Indemnify    Acceptor    or    Maker    of 

Lost  Bill  or  Note 190 

Partners  for  Accommodation 191 

Surety  in  a  Bond 191 

Title  m  Dispute 191 

by  Indorsement  on  Agreement  or  Con- 
tract     187 

for  Instalments,  Annual 181 

for  Insurance 182 

for  Interest,  Periodical 181 

for  Judgment,  Power    of  Attorney  to 

Confess 183 

to  Keep  Person  During  Life 191 

Land,  Conveyance  of 185 

for  Deeds  for 185-186 

Legatees 186 

Marriage,  on  Payment,  etc 191 

Money,  Payment  of 181 

Mortgage,  to  Pay  and  Cancel 191 

Obligees,  Obligors,  Joint,  Several,  One 

or  More,  etc 187, 188 

One  Obligee  and  Several  Obligors..    187 

Parties.    See   Obligees,  Obligors,  etc., 

above. 
for  Payment  After  Death  of  Third  Per- 
son     182 

for  Payment  of  Annuity 183 

for  Payment  in  Instalments 181 

for  Payment  of  Money  with  Penalty 181 

for  Payment  of  Money  without  Penalty    181 
for  Performance  of  Agreement  or  Con- 
tract  •    187 

for  Periodical  Interest 181 

for  Redelivery  of  Goods  Levied  on 186 

of  Representatives 186, 187 

Respondentia  187,  188 

to  Return  Goods,  etc 190 

for  Services 188 

by  Several  Persons  Severally 188 

Sheriff,  Redelivery  of  Goods  to 186 

Short  Forms 181 

by  Two  Obligors 187 

for  an  Unliquidated  (or  Unascertained) 

amount  of  Bond 188 

that  Warranty  Shall  be  Kept 188 

with    Power    of   Attorney    to    Confess 

Judgment 182 

with  Warrant  of  Attorney  to  Confess 

Judgment 188 

without  Condition 181 

Boob-Keeper,  Contract  Witli 245 

Keeping' ''-14 

Books. 

Contracts  to  Compile,  etc.  

242-244, 402,  403 

to  Correct,  Enlarge,  and  Revise,  etc. .   402 

Edit.etc 402,403 

Boots,  etc..  Contract  to  Hamnftec- 

tnre. 25« 

Bottomry  Bond ••■•    184 

by  Part  Owner I»4, 180 


IMOEX   TO    FORm. 


695 


Page 
Bonndaries,    Natural,    Highways, 

etc..  How  Described  In  I»ee«ls,  etc.   300 
Brick,  Contract  to  Manufacture  250, 251 

^pqI^^pj^ S4k 

Contracts  with  Manufacturers 249,  250 

Orders  to  Buy  Stock 84 

toSell  Stock 84 

Receipt  for  Money  for  Stock 84 

Statement  of  Account,  etc 84 

Bniidinip.  See  Building  Dwelling  Housbs, 
KTC,  ETC.,  below. 

Buildina:   and    €onstrnction.  Con- 

tracts  for 230-238 

Engines  and  Machinery,  etc 230 

Locomotive 230 

Railroad 232-234 

Subdivision 234,235 

Ticket  Office 235-237 

Sewers 237 

Ships 231 

Steamships 232 

Streets   230,231 

Turnpike  Roads 238 

Vessels 231,232 

Yachts 231,232 

Dwelling:   Houses,    Mills,   Resi- 
dences, etc 226-230 

Long  Forms 226-228 

Short  Forms 228-230 

BnildiniT  liCase SS2,  323 


Cablegrams 140, 141 

California. 

Acknowledgments 7, 18 

Deeds 275 

Mortgages 335 

Wills 871 

Canada. 

Acknowledgments 18 

Deeds 275 

Wills 371,872 

Cancellation    of     Agreement,   Ap- 
prenticeship        95 

Carrier's  Notices.   See  Bills  of  Iiad- 
Ing 114-121, 140-142 

Causes  of  Action,  Release  of  All,  etc.  626 

Certiflcate. 

of  Acknowledgment  15 

of  Partnership  Agreement 592 

Commencement  of 15 

Conclusion  of 15 

Seal  of  Officer 15 

Signature  of  Officer 15 

Statement  of  Venue 14 

of  Copies  of  Charter  Parties 239 

of  Deposit 149 

Storage  of  Petroleum 242 

,  of  WjCftSC 

Landlords 823,  824 

Tenants 823,  324 

Certificates  of  Iiibrarian  of    Con- 
gress  399,  415 

Character,  Official  Authentication 

or  £xemplllication  of. 109 

Charitable  Bequests.  See  Wills  891,  392 

Charter  Parties 238-242 

Cuba,  Porto  Rico,  etc 238,  239 

Direct  Port  (Approved  form) 239,  240 

General  Forms 238,  239 

Mediterranean,  Out  and  Home 240 

Orders,  Charter  for  (Approved  formj  240,  241 
Petroleum  Charter  (Approved  form)  241,  242 
Timber,  to  Gulf  Ports 242 

Checks 149 

Chattel  Mortgages.    See  Mortgages  of 
Personal  Property,  above 856-368 

Chattels. 

Assignment  of 107 

Receipt  for 625 

Children,  Bequests  to 892 


Claims. 

Assignment  of •• 

Release  of  all ««• 

Clerk. 

Contract  with 245 

Contract  of,  with  Attorney 244,  245 

Clause,  Security  in  Assignment  —    107 

Clauses,  Various. 

in  Assignments 97 

Bonds 188-192 

Contracts 224-263 

Conveyances 224-395 

Deeds 301,302 

Leases 326-328 

Mortgages 343-345 

Wills 391-395 

Codicils  to  Written  Wills 395,  396 

Appointment  of   Executors,   Trustees, 

etc 395 

Indorsement  of,  on  Will 395 

Ratifications  of  Prior  Codicils  to  Will 

395,  396 
Revocations  of  Prior  Codicils  to  Will 

895,  896 

Colorado. 

Acknowledgments 19 

Deeds 275 

Mortgages 885 

Wills 872 

Commencing  Clauses. 

in  Acknowledgments 15 

Affidavits 51 

Assignments 97 

Contracts 224 

Deeds,  etc 298,299 

Leases 314 

Mortgages 848 

Wills,  etc 88<^ 

Commission  Merchants,  Contracts 
with  Manufacturers 249.  250 

Commissioner's  Deeds 304 

in  Partition 287 

Committee's  Deeds 805 

Common,  Tenancy  in.  Deed  for 210 

Communications   to  liibrarian   of 
Congress 399,  414,  415 

Company,  Assignment  by  99,100 

Compilation,   etc.,   of  Books,  etc.. 
Contracts  for 242-244,  402,  408 

Compound,  Assignment  of. 107 

Concluding  Clauses. 

of  Acknowledgments  ...   • 15 

Affidavits 51 

Assignments 97 

Contracts 224 

Deeds 802 

Leases 817 

Mortgages 845 

Wills,  etc 884 

Conditional  Habendum  In  Deeds, 
etc 8')0 

Conditions  or  Provisos. 

in  Bonds 188.199 

Deeds,  etc 801 

Leases S15 

Death  of  Lessor 815 

Notice,  to  Determine  Lease 815 

Re-entry  on  Non-payment  of  Rent 315 

if  Occupation  orTrade  is  Offensive.    815 

for  Various  Causes,  etc 815 

Mortgages 

Declarations,  Directions,  Pow- 
ers, Provisions,  etc..  In  Wills, 

etc 880,884 

Advancements  to  be  Deducted 380 

not  to  be  a  Satisfaction    of  Debts, 

etc 880 

Annuity,  Power  to  Grant 380,  3SX 

Preventing  Parting  with 381 

Appointment  of  Guardian  and  Substi- 
tutes      881 

Appointment  of  Executors  and  Substi- 
tutes    8»i 


696 


IHDEX   TO   FOBira. 


Page 
Condltiona,     I>cclaratlon«i,    I>lrec> 
tions,  etc..  In  Wills.    (Contlnned.) 

Arbitration 881 

Arrangements  and  Compromises 881 

Assignment  to  New  Trustee,  etc 881 

Children  Born  After  Testator's  Death..    881 

Custody  and  Tuition  of 381 

Repayment  of  Loans  by 383 

Debts  Due  from  Relations,  Release  of..    383 

Disputes,  Arbitration  of 383 

Dwelling-house,  Wife  to  Reside  in 383 

Investment  of  Personal  Estate,  etc 383 

Marriage  of  Daughter,  etc 383,  383 

Marriage  of  Nieces,  etc ...    383 

Name  of  Testator  to  be  Taken  with  Es- 
tate      383 

Repayment  of  Loans  by  Children 383 

Revocation  of  Bequests  and  Legacies, 

etc 383 

Sale,  Power  of,  etc 383 

\Vinding  Up  Testator's  Estate 383,  384 

Conflrinatloii. 

Deeds  for 305,  306 

by  Indorsement 386,306 

of  Power  of  Attorney 79 

Connecticnt. 

Acknowledgments 19 

Deeds 375 

Mortgages 335,  336 

Wills 373 

Consent. 

to  Assignment 99 

of  Guardians  to  Apprenticeship 95 

Magistrates  to  Apprenticeship 95 

Officers  to  Apprenticeship 95 

Parents  to  Apprenticeship 95 

Trustees  to  Apprenticeship 95 

CoiiHtrnctioii    nnd    Interpretation 
of  Previous  Contracts,    Contract 


for. 


338 


ContlnniniT  Chattel  Mortgragres  in 
Force  by  Affidavits  and  Annual 
Statements 360 

Contracts 334-363,403 

Agents 324 

Agents  and  Manufacturers 349,  350 

Apartments,  etc 348,  349 

Animals,  Sale  of  357 

Apprenticeship 94,  95,  325 

Arbitration 67,  68,  335 

Artists,  Copyright  Contracts 403 

Assign  Lease,  Contract  to 348 

Assignment  of 99 

Attorney  and  Clerk,  Employment 244 

in  Fact  334 

at  Law,  Employment  of 83 

Auctioneers 335 

Barrels,  Manufacturing 350 

Barter  or  Trade 335 

Bills  of  Lading,  Petroleum   343 

Bond  and  Mortgage,  Sale  of 357 

Bookkeeper,  Employment  of. 345 

Books 342-244,  403,403 

Compilation,  etc 403 

Correcting,  Enlarging,  Revising,  etc....    403 

Editing,  etc 403,403 

See  Copyright  Mmtkr,  below. 

Boots,  Manufacturing   250 

Bricks,  Manufacturing 350,  251 

Brokers  and  Manufacturers 249,  250 

Building  Houses,  etc.,  etc 226-230 

Long  Forms 226-338 

Short  Forms  228-230 

Building  and  Construction 23<^238 

Engines  and  Machinery,  etc 230 

Locomotive 230 

Railroad 233-334 

Subdivision 284,  335 

Ticket  Office 2.35-237 

Sewers 237,238 

Ships 231 

Steamships 233 

Streets 2.30,231 

Turnpike  Roads 338 

Ves-sels 231,2.32 

Vachts 331,232 

Charter  Party 238-243 


Page 
Contracts.    (Continued.) 

Cuba,  Porto  Rico,  etc 239 

Direct  Port  (Approved  form) 339,  240 

General  Forms 238,  339 

Mediterranean,  Out  and  Home 340 

Orders,  Charter  for  (Approved  form)  340, 341 
Petroleum  Charter  (Approved  form)  341,  243 

Timber  to  Gulf  Ports 242 

Certificates  of  Copies  of  Charter  Parties   339 

of  Stowage  of  Petroleum 342 

Clerk  to  Attorney,  Employment. . .  344,  345 

Clerk  or  Workman 345 

Commencing  Clauses  in  Contracts 324 

Concluding  Clauses  in  Contracts 224 

Commission  Merchants  and  Manufac- 
turers    249.  250 

Compilations  of  Books,  etc 403 

Correcting,  Enlarging,  Revising,  etc.,  of 

Books 403 

Construction  and  Interpretation  of  Pre- 
vious Contract 338 

Copyright  Matter 343,  344,  403.  403 

Artist's  Rights  Reserved 403 

Compilation,  etc.,  of  Books 403 

Correcting,  Enlarging,  and  Revising. . .  .    403 

Editing,  etc.,  of  Works 402,  403 

General  Forms 243-244 

Limiting  Edition  Published 402 

Memorandums,  etc 403,  403 

Publications  on  Joint  Account 344 

Cuba,  Porto  Rico, "etc..  Charter  Party. . .  239 
Cultivate  Land  on  Shares,  Employment 

to 345 

Cuts,  Employment  to  Engrave 345 

Damages,  Fixed  in  Contract 334,  335 

Direct  Port  Charter  Party 339,  340 

Dwelling,  Building  of 336-230 

Leasing  of 248 

and  Furniture,  Leasing  of. 248 

and  Store,  Leasing  of 348 

Employment 344-346 

Attorney 88 

Attorney  with  Clerk 344 

Bookkeeper 345 

Clerk  to  Attorney 344,  34.5 

Clerk  or  Workman  345 

Cultivating  Land  on  Shares 345 

Cuts,  Engraving  of. 345 

Engravi  ng  Cuts ,  Steel  Plate,  etc 245 

Freighting  Ship  or  Vessel 245,  246 

Furnace  Manager 246 

Journeyman 345 

Land,  Cultivation  on  Shares 345 

Merchant  and  Bookkeeper 345 

Ship  Owner  with  Surgeon 246 

Ships,  Freighting 245,  246 

Surgeon 246 

Vessels,  Freighting  of. 346 

Workman 345 

Engines,  Building  and  Construction  of. .    330 
Engraving  Cuts,  Steel  Plates,  etc..  Em- 
ployment for 345 

Expenses  of  Law  Suit  Equally 347,  348 

Farm  and  Mill  Property,  Sale  of  . .  358,  359 
Formal  Requisites  of  Contracts. . .  333,  234 
Freiehting  Ships,  etc..  Employment  for 

*  345,346 

Fruit  Trees,  Sale  of 361 

Furnace  Manager,  Employment  of 346 

General  Forms  of  Contract 324,325 

Goods  in  Store,  Sale  of 257 

Grocery,  Sale  of. - .  - 257 

Guaranty  of  Performance  of  Contract. .    231 

Horse  Racing 515' „1Z 

In  Genera! ***' 212 

Rules  and  Subscriptions *« 

Sale  of        *'** 

Houses,  Building 55«:l^2 

Long  Forms ^tzUn 

Short  Forms ^.?i?"«„2 

Indenture  of  Apprenticeahip  . . .  94,  95,  225 

Insurance ^47 

to  Effect  or  Procure 347 

Renewal  of 247 

Interpretation  and  Construction  of  Pre- 
vious Contract 238 

Introductory  Clauses  to  Contracta 324 


IHDEX   TO   FOKMfl. 


697 


Page 
OAHtracts.    (Contlnned.) 

{ourneyman.  Employment  of 245 
«aw  Suits 247,  248 

to  Bear  Expenses  Equally,  etc. . . .  247,  248 
Lands,  Cultivating  in  Shares,  Employ- 
ment for 245 

Sale  of. 258-260 

Lease,  Contract  to  Assign 248 

Leasing 248 

Assign  Lease 248 

Dwelling. 248 

and  Furniture 248 

and  Store 248 

Legal  Requisite»of  Contract  Forms  223,  224 

Limiting  Edition  of  Publication 402 

Liquidated  Damages  in  Contracts 

224.  225,  228 
Locomotive,  Building  and  Construction   230 

Lodgings 248,  249 

Machinery,  Building  and  Construction.    230 

Manager,  Furnace,  Employment  of 246 

Manufacturers  and  Agents,  etc 249,  250 

Brokers,  etc 249,  250 

Commission  Merchant,  etc.  ...  249,  250 

Manufacturing 250,  251 

Barrels 250 

Boots 250 

Bricks 250,251 

Patented  Articles 251 

Shoes 251 

Mediterranean,  Out  and  Home  Charter 

Party 240 

Memorandums,  Copyright.   402,  403 

Merchant  and  Book-Keeper 245 

Mill  Property  and  Farm,  Sale  of.. .  258,  259 

Mortgage  and  Bond,  Sale  of. 257 

Mortgage  Security,  Charge  of 261 

Obstructions  to  Light 251 

Orders,  Charter  Party  for 240,  241 

Partnership 251,  255 

Accounting 252 

Active  and  Silent  Partners 253,  254 

Arbitration 252 

Assignment  of  Partner's  Interest. ......    252 

Business  Management 253 

CapiulStock 252 

Interest 252 

Cashier  or  Receiver 253 

Continuance  of  Partnership 253 

Credit 252 

Decease 252 

Dissolution 252 

Duties,  Division  of.. 253 

Expulsion  of  Members 553 

Firm  Name,  etc 253 

General  Forms 251,  252 

New  Partners 263 

Profits  and  Losses 253 

Release  of  Debts 253 

Retiring  Partners 253,  255 

Settlements 253 

Silent  Partners 253,  254 

Party  Walls 255,256 

Patented  Articles,  Manufacturing 251 

Performance 256 

Petroleum,  Charter  Party   ...  241-242 

Plans,  Building  Contract,  Annexed 228 

Publications  on  Joint  Account 244 

Purchase 256 

Cord  Wood 256 

Several,  Jointly 256 

Racing  Contracts 246,  247 

Railroad,  Building  and  Construction  of 

232-234 

Subdivision,  Building,  etc.,  of...  234,  235 

Toilet  Office,  Building,  etc.,  of..  235-237 

Real  Estate,  Sales  of 258-260 

Reassignment 256,  267 

Rebuilding 228,  229 

Remainder,  Sale  of 259 

Renewal  of  Insurance 247 

Requisites  of  Contract  Forms 223,  224 

Residences,  Building 226-230 

Reversion,  Sale  of 259 

Sale 257-261 

Animals 257 

Appraised  Value,  at 257 

Bond  and  Mortgage 257 


Page 
Contracts.    (Continued.) 

Farm  and  Mill  Property 358,  250 

Fruit  Trees 261 

General  Forms 257 

Goods  in  Grocery  Store 257 

in  Store 257 

Horse 258 

Real  Estate 258-260 

Remainder  or  Reversion 259 

Shares  of  Stock 260 

Stone 261 

Timber  Growing. 260,  261 

Trees.  Fruit 261 

Vessel,  Enrolled  or  Registered 261 

Wheat 261 

Wood  or  Stone 261 

Security,  Change  of. 261 

Sewers,  Building  and  Construction  of 

237,  238 

Shares  of  Stock,  Sale  of 260 

Ship  Owner,  Employment  of  Surgeon . .    246 

Shipping  Seamen 261,  262 

Ships,  Building  and  Construction 231 

Shoes,  Manufacturing 251 

Steamships,  Building  and  Construction .    232 

Stone, Saleof 261 

Store  and  Goods,  Sale  of 257 

Streets,  Building  and  Construction  230,  231 

Subscriptions 262 

Suit,  Contract  to  Bear  Expenses  Equally 

247,  248 
Surgeon,  Employment  of  by  Ship  Owner  246 

Taking  Down  and  Rebuilding 229,  230 

Testatum  Clauses  in  Contracts 224 

Ticket  Office,  Building  and  Construction 

235-237 

Timber,  Charter  Party 243 

Growing,  Sale  of 260,  261 

Towing  Boats 263,  263 

Trade  or  Barter 225 

Trees,  Fruit,  Sale  of 261 

Turnpike    Roads,    Building    and    Con- 
struction      238 

Vessels,  Building  and  Construction  231,  233 

Freighting 246 

• Sale  of 261 

Witr  ess  Clauses  in  Contracts  224 

Wheat,  Saleof 261 

Wood, Saleof. 261 

Work  in  General 263 

Workmen,  Employment  of 245 

Yachts,  Building  and  Construction 232 

Controversies,  Release  of  all,  etc.. .   626 
Conveyances  of  I^and,  Bond  for  185-189 
Conies,  Antbenticated  or  Exempli- 
fied     109 

of  Account 109 

of  Inventory 109 

of  Record 109 

of  Will 109 

Copyrigrht 399 

Agreements 402,  403 

Assignments 399 

Certificate  of  Librarian  of  Congress  399, 415 

Contracts  402,403 

Librarian  of  Congress. 

Certificate  of  Copyright,  etc 399,  4 15 

Communications  to 399,  414,  415 

Memorandums  or  Agreement,  Concern- 
ing   402,  403 

Notice  of  Copyright 416 

Pleadings 411-413 

Postmasters,  Receipts  by 414-415 

Receipts. 

of  Librarian  of  Congress 415 

of  Postmasters 414,  415 

Copyri^tat  Matter 242-244, 402,  403 

Artist's  Rights  Reserved 402 

Assignments  of 399 

Certificate  of 415 

Compilation,  etc.,  of  Books 403 

Contracts 243-244,  402,  403 

Correcting,  Enlarging,  Revising,  etc 402 

Correspondence 414,  413 

Editing,  etc. ,  of  W^orks 402,  403 

General  Forms M2-244 


69S 


IHItEX   TO   FOKMS. 


Page 
liopyrlgrht  Matter.    (Continued.) 

Memorandum,  General 402,  403 

Pleadings 411-41S 

Publications  on  Joint  Account 844 

Corporati  ons. 

Acknowledgment 16 

Assignment  99,100 

Assignments  of  Mortgages S49-351 

Bequests  to S92 

Bonds 144-146,185 

Deeds 287,306 

Correct  Mistakes,  Deeds  to  .... .  307,  808 

<;orreotin(p.  Enlarging:,  and  Revis- 
iiig-  Books,  Contracts  for,  etc 402 

<'onnty  Bonds 145 

Coupons,  of  Bonds 145,  146 

Covenants. 

in  Bonds 188-192 

■ In  Deeds 301 

Administrators 301 

Against  Grantor's  Acts 301 

Executors 301 

Further  Assurance 801,  303 

Incumbrances,  Against 301 

Husband  for  Self  and  Wife 802 

Joint  and  Several 802 

Mutual,  to  Convey 802 

One  Person  to  Another 301 

Power  to  Convey 803 

Quiet  Enjoyment 303 

Seizin 303 

Several 303 

'Warranty  Against  Incumbrances 301 

In  Leases 315-317,326-328 

Assignment  of  Lease  Allowed 315,  328 

Drains,  Fences,  Sewers,  Walls,  etc.,  Re- 
pairing    328 

Dwelling  in  Premises 316 

Entry  on  Non-Paymirnt  of  Rent 326 

to  View  Premises 326,  327 

Finishing  House 328 

Fixtures 316 

Improvements 316 

Insurance  by  Lessee,  etc 316,  328 

Noxious  or  Offensive  Occupation 316 

Obstructing  Light  with  Blinds,  etc 316 

Painting 328 

Paying  Rents,  etc 816,  327 

Possession,  to  Deliver,  etc 327 

Quiet  Enjoyment  326,327 

Quit  on  Notice 327 

at  End  of  Term  ^Vithout  Notice....    316 

Rebuilding,  Repairs,  etc 328 

Renewal  of  Lease 316 

Repairs,  etc ;.  327,328 

Sell  on  Request 316 

Straw,  etc 327 

Taxes,  Payment  of. 316,  827,  328,  332 

and  Repairs 316,  317 

Timbei-,etc 328 

Trees,  etc 828 

Under  Lease,  Prohibited 817 

Use  of  Premises  Limited 317 

Water  Rate  or  Tax,  etc 817 

in  Mort^ag^es 848-345 

Assignment 343 

Assurance 343 

Enjoyment  of  Premises 343 

Entry  on  Default 343 

Fire  Clause 343 

Incumbrances,  Free  From 343 

Lease,  Mortgage  of 343 

Payment  of  Money 344 

of  Taxes 844 

Power  to  Assign 844 

Reassignment 844 

Receipt,  etc 844 

Right  to  Convey 844 

Sale  on  Default,  etc 844,845 

on  Delivery,  etc 844 

—on  Notice 344 

Cnba,  etc..  Charter  Parties 239 

Cnltivation  of  I^and,  Contract  for. .  245 
Custom  House  Power  of  Attorney  80 
Cuts  and  £msra^ngs,  Contraets  for  24^ 


Dakota. 

Acknowledgments 19 

Deeds 275 

Wills 872 

Damagres,   Amount   Fixed  In  Con- 
tracts  224,225 

Day  Book  Entries 7,12, 13 

Deaf   and    Dumb   Person's   Sig^na- 

tnre,  etc.,  to  Deeds,  etc 30.^ 

Debtors,  Insolvent,  Assignment  by 

101-103 
Debts. 

Assignment  of 100 

Receipts  for 625 

Declarations  in  Wills,  etc.     See  Con- 
ditions, ETC.,  ETC.,  above 880-S84 

Delaware. 

Acknowledgments 19 

Deeds 275 

Mortgages 336 

Wills 872 

Deeds 273-312 

Alabama 274 

Arkansas... 274 

California 275 

Canada 275 

Colorado  275 

Connecticut 275 

Dakota 275 

Delaware 276 

District  of  Columbia 275 

Florida 275 

Georgia 276 

Idaho 276 

Illinois 276 

Indiana 276,  277 

Iowa 277,  278 

Kansas 278-281 

Kentucky 281 

Louisiana 281,  283 

Maine 282 

Maryland 282 

Massachusetts 282 

Michigan 282 

Minnesota 282 

Mississippi 282 

Missouri 282,  283 

Montana 283 

Nebraska    283 

Nevada 283 

New  Hampshire 288 

New  Jersey 283 

New  Mexico 283 

New  York 283-289 

North  Carolina 289 

Ohio 290,293 

Oregon 293 

Pennsylvania 293-297 

Rhode  Island 297 

South  Carolina 297 

Tennessee 297 

Texas 297 

Utah 297 

Vermont 297,298 

Virginia 298 

■Washington  Territory 298 

AVest  Virginia 298 

AVisconsin 298 

Wyoming 298 

Ocneral  Forms 298-312 

Acknowledgment    of  Deeds,  etc.    See 

Acknowledgment,  etc.,  above. 
Administrator's  Deeds. 

General  Forms    803,  304 

Forms  used  in  Kansas 279 

Kentucky 281 

New  York 287 

Ohio 291 

—Pennsylvania 294 

Assignment  of  Deeds lOO 

Attorneys  in  Fact,  Deeds  by 304 

Bonds  for  Deeds.    Sec  Bonds  and  Odliga- 
TIONS,  above. 

Commencements  of  Deeds,  etc 298,  299 

C«mmissioner's  Deed 804 


i]fi>£at  TO  roHBUi. 


699 


Page 
Deeds.   (Continned.) 

in  Partition ^.    287 

Committee's  Deed 805 

Common,  Tenancy  in.  Deed  Creating.. .    310 

Conditions  in  Deeds,  etc 301 

Confirmation,  Deeds  for 305,306 

Indorsement  of 306 

New  York 286 

Corporation  Deeds 287,  306 

Correct  Mistakes,  Deed  to 307,  308 

Covenants  in  Deeds,  etc 301 

Administrators 301 

Against  Acts  of  Grantor 301 

Executors 30 

Further  Assurance 801,  303 

Incumbrances,  Against 301 

Husband,  for  Self  and  Wife 302 

Joint  and  Several  302 

Mutual,  to  Convey 302 

One  Person  to  .'Vnother 301 

Power  to  Convey 302 

Quiet  Enjoyment 302 

Seizin 302 

Several 302 

Warranty  Against  Incumbrances 301 

Descriptions  in  Deeds,  etc 300 

Easement  for  Drainage  Reserved 300 

Party  Walls  Reserved 300 

Metes  and  Bounds 300 

Natural  Boundaries,  Highways,  etc 300 

Drunkard,  Deed,  by  Committee  for 305 

Exchange  Deeds 286,306 

Executor's  Deeds. 

General  Forms 306,307 

Forms  used  in  Kansas 279 

Kentucky 281 

Ohio 291 

Pennsylvania 294,295 

Foreclosure,  Master's  Deed,  N.  Y 289 

General  Deed  Forms 303-312 

Gift,  Deed  of 307 

Ground-Rent  Deed,  Pennsylvania 295 

Guardian's  Deed. 

Forms  used  in  Kansas 279 

Ohio » 291 

Pennsylvania 294,  295 

Habendum  in  Deeds,  etc 300 

To  Have  and  to  Hold  in  Fee  Simple 300 

for  Life 300 

— —  with  Conditions,  etc •    300 

Habitual  Drunkard,  Committee's  Deed 

for 305 

Idiot,  Deed  by  Committee  for 305 

Indorsement  of  Confirmation  on  a  Prior 

Voidable  Deed 306 

Introductions  to  Deeds,  etc 298,  299 

Life  Estate  Deed,  Virginia 298 

Lunatic,  Deed  of  Committee  for 305 

Masters  in  Chancery  Deed 307 

Deed  in  Foreclosure,  N.  Y 289 

Partition 288,  289 

Mistakes,  Deed  to  Correct 307,  308 

Mortgage,    Deed    of      Land,     Subject 

to 285 

Premises,  Deed  of 285 

Names  of  Parties  in  Deeds,  etc....  298,  299 

Parties'  Names  in  Deeds,  etc 298,  299 

Partition  Deed 308 

by  Commissioner 304 

by  Master 288,289 

Pew  Deed 308 

Premises  in  Deeds,  etc 299,  300 

Quit-Claim  Deeds. 

Forms  used  in  Indiana 277 

Kansas 278 

Kentucky 281 

Missouri 283 

New  York 285,286 

Ohio   290 

Pennsvlvani« 294 

Virginia..    298 

Recitals  in  Deeds,  etc 299 

Administrator's  Title 299 

Attorney's  in  Fact  Title 299 

Executor's  Title...    299 

Deed,  Title  by 299 

Deed,  Descent,  Patent  Title  by 299 

Partition,  Title  by 20» 


Deeds.    (Continned.) 

Referee's  Deed 308,308 

Recitals  of  Title,  etc 299 

Reddendum  in  Deeds,  etc 800,  301 

Reserving  Annuity 300,  301 

Reserving  for  Streets,  etc 301 

Release  Deed 309 

Rent,  Ground  Rent  Deed,  Pennsylvania   295 
Reservation  in  Deeds,  etc.    See  Redden- 
dum, etc.,  above 300,301 

Reversion,  Deeds  of. 309,  310 

Right  of  Way  Deed  286 

Sheriff's  Deeds. 

Forms  used  in  Kansas 270,  280 

NewYork 289 

Ohio 291,292 

Pennsylvania 295-297 

Short  Deed  Forms 303 

Signatures  and  Seals  in  Deeds,  etc 302 

Agent  or  Attorney  in  Fact 302 

Administrator 302 

Administratrix 302 

Corporations 306 

Executor,  Executrix 802 

Guardian 802 

Sheriff. 802 

Trustee 802 

Tax  Deeds. 

Forms  used  in  Kansas 280,  281 

Ohio 292 

Tenancy  in  Common,  Deed  for 310 

Testatum  Clauses  of  Deeds 208,  299 

Trust  Deeds. 

General  Forms .> 810,311 

Forms  used  in  Kansas 279 

Kentucky 281 

Ohio  291 

Virginia 298 

Trustee's  Deeds. 

Forms  used  in  Kentucky 281 

Pennsylvania 294,  295 

Voidable,  Deed  Confirming,  etc....  305,  306 
Warranty  Deeds. 

General  Forms 811,312 

Warranty  by  Attorney 312 

Full  Covenants 311,  312 

General  Forms  used  in  Alabama 274 

California 295 

Illinois 276 

Indiana 276,277 

Kansas 278 

Kentucky 281 

-^—Massachusetts 282 

—^Missouri 283 

New  Jersey 283 

NewYork 284,285 

Ohio 290 

—Pennsylvania 293 

South  Carolina 297 

Virginia 298 

—Special  Forms 312 

Forms  used  in  Indiana 277 

Kansas 278 

Kentucky 281 

New  Jersey 283 

Pennsylvania 293,  294 

Witness  Clauses  in  Deeds,  etc 302,  303 

Blind  Person 303 

Deaf  and  Dumb  Person 303 

Erasures  or  Interlineations 302 

Illiterate  Persons 303 

Interlineations  or  Erasures 302 

Power  of  Attorney 303 

Self  and  for  Another 303 

Water  Course  Deed  286,287 

-i^Asslsrnment  of  Deed lOO 

Descent,  Patent,  etc..  Recital  of  Title 

by,  in  Deeds,  etc 29fc 

Recital  of  Title  by,  in  Deeds,  etc 299 

for  liAnd,  Bond  to  Execute. . .  185, 18« 

Default  in   Condition    of    Chattel 
Morteaee,   Possession   of    doods 

Until ««a 

Demands.  ___ 

Receipt  in  Full  of  all •»• 

Release  of  all •»* 


rod 


Iim^X   TO   FOBM8. 


Page 

■tomnrrnice  and  liay-Bajr  Scale 122 

Deposit,  Cerliflcateof 14» 

DepositioiiN  in  Trade-lKarks,  Pat- 
ents, and  I>C8i(^ns,  etc 604,605 

Descent,    Recital   of    Title     by   In 

Deeds,  etc 299 

Descriptions  In  Deeds,  etc 300 

Easement  for  Drainage  Reserved 800 

for  Party  Walls  Reserved SOO 

Metes  and  Bounds SOO 

Natural  Boundaries,  Highways,  etc 800 

Dcslgrns,  Patent'Forms  ....  598,  600,  605 

l»evises  of  Real  Property 898-395 

Dower,  in  Lieu  of 893 

Friend,  Devise  to 394 

Grandchildren,  Devise  to 394 

Houses  and  Lands 894 

Lapse  of  Devise 894 

Life,  Devise  for 394 

School  or  College,  etc 394 

In  Trust,  with  Power  to  Sell,  etc...  898,  894 

To  Trustees  During  a  Life  or  Lives 394 

Direct  Port  Cliarter  Party 289, 240 

Dischariires   or   Releases   of   Blort- 

grasses 851,  354 

< in  Part,  of  >Iortg^ag;e 354 

Disputes,  Arbitration  of.  Provided 

for  in  Wills 882 

District  of  Colnmbla. 

Acknowledgments 19,  20 

Deeds 275 

Mortgages 338 

Wills 372 

Domestic  Bills  of  leading 114-118 

Donble  Entry  Book-Keepingp 7-14 

Dower. 

Assignment  of 100 

Homestead  Exemption  Released 349 

Not  Released 350 

Drainajife,  Easement  for  in  Deeds, 

How  Described 303 

Drunkard,  Habitnal,  Deed  by  Com- 
mittee for 805 

Dwellings,  Contracts  for  Buildlnsr 

226-280 

, — for  Kicase  of 248 

. and  Furniture,  Contract  for 

Eease  of. 248 

and  Store,  Contract  for  I^ease 

of. 248 


Execution  of  C^nTeyanees,  Beads 

for 186 

Executors. 

Accounts 56 

Acknowledgment 16 

Appointment  of  by  Will S81 

Bonds \ 186 

Covenants  in  Deeds 801 

Deeds. 

General  Forms 306,307 

Forms  used  in  Kansas 270 

Kentucky 281 

Ohio 29L 

Pennsylvania 294,  295 

Signature    and     Seal,    etc.,     to 

Deeds 802 

Title,  Recital  of  in  Deeds,  etc. . . .   399 

Executrix,  Signature  and  Seal  to 

Deeds 302 

9Iortg:ag:e  to 851, 852 

Exemplifications 109 

of  Copy  of  Account 109 

on  File 109 

of  Inventory  109 

of  Record 109 

of  Will lOd 

Official  Charactsr 109 

Transcript  of  Judgment 109 

Expenses  of  I^aw  Suit,  Contract  to 

Bear  Equally 247,248 

Extensions   of  Trade-Marks,   Pat- 
ents, and  Deslg^ns 603,604 


Easements— Drainagre,  Party  IrValls, 
etc.,  How  Reserved  in  Deeds 800 

Employment,  Contracts  for 244-246 

Attorneys 82 

Attorney  with  Clerk 244 

Bookkeeper 245 

Clerk  to  Attorney 244,245 

Clerk  or  Workman 245 

Cultivate  Land  on  Shares 245 

Cuts,  Engraving  of 245 

Engravings,  Cuts,  Steel  Plates,  etc 245 

Freighting  Ships,  Vessels,  etc 245,246 

Furnace  Manager 246 

{ourneyman    245 
<and.  Cultivating  on  Shares 245 

Merchant  and  Bookkeeper 245 

Ship  Owner  with  Surgeon 246 

Ships  Freighting 245,246 

Surgeons  with  Ship  Owners 246 

Vessels,  Freighting  of 246 

Workmen 245 

Engrlnes,  Contract  for  Buildinji:  and 

Construction  of. 230 

En)(ravinfcs,    Cuts,     Steel     Plates, 

Contracts  for 945 

Enloynient  of  Premises,  Covenant 

for 343 

Erasures   and   Interlineations    in 

Deeds,  etc 802 

■KClaaiiKe  De«ds 286,806 


Farm,  l^ease 324 

and  Mill  Property,  Contract  for 

Sale  of 258,25* 

Father's  Bond  for  Apprentice 183 

Fee  Simple  Habendum   in   Deeds, 

etc 300 

Fire  Clause  in  Mortgagees 343 

Florida. 

Acknowledgments 20,  SI 

Deeds 275 

Mortgages 336 

Wills 372-373 

Foreclosure  Deed,  Masters,  ST.  T.. . .   289 

in  Mortgages 348 

Foreign 52 

Bills  of  Exchange 147 

of  Eading 117-121 

Formal  Requisites,  etc. 

Acknowledgments 14-45 

Assignments 96 

Bonds 180,  181 

Contracts 228,  224 

Deeds 273-298 

Leases    313.314 

Mortgages 335-343 

Powers  of  Attorney 72 

Wills 371-880 

Formula,  Assignment  of. 107 

Forthcoming  Bond 179 

Freighting  Ships  and  Tessels,  Con- 
tracts for 245,  246 

Fruit  Trees,  Contract  for  Sale  of 261 

Full  of  All  Demands,  Receipt  for  in   685 

Furniture,  Bequests  of 892 

Furnace  Manager,  Contract  With. .  246 
Furniture  and  Goods,  Eease. . . .  324.  825 
Further   Assurance,  Covenants  of 

in  Deeds 801,  30a 

Further     Charge     on      Mortgaged 

Premises 352 

General  Forms,  ete. 

of  Assignment ^ 97 

Bonds 181-189 

Deeds 303-312 

Leases 317-322 

Mortgages  of  Personal  Property.. .  356-869 


lJtl>£X  f O   rOIIMft. 


;of 


Page 
fi>«n«ral  Forms,  etc.    (Contlnaed.) 

Mortgages  of  Real  Property 345-347 

Warranty  Deeds.    See  Warranty  Dkkds, 

Wills,  etc 385-389 

Acknowledgments 21 

Deeds 275 

Mortgages 336 

Wills 873 

«lft,  Deedof. 807 

ttoods  in  Grocery,  Contract  for  Sale 

of 257 

•■ — in  Store,  Contract  for  Sale  of. . . .   257 
Mortgrage  of.    See  Mortgages  op  Per- 
sonal Property,  above 356-363 

and  Furniture,  I^ease 324,325 

Good-will  of  Business,  Bequests  Of.    392 

Grocery.  Contract  for  Sale  of. 257 

Ground  L.ease 325,326 

Rents. 

Assignment  of lOO 

Deed ,  Pennsylvania 295 

Guaranty  of  Fidelity. 

Apprenticeship 95 

of  Notes 150 

of  Performance  of  Contract 231 

Guardians. 

Accounts 6-6 

Acknowledgment 16 

Appointment  of,  in  Wills 381 

Deeds. 

Used  in  Kansas 279 

Ohio 291 

Pennsylvania 294,  295 

— Sigrnatnres  and  Seals  to  Deeds. . .   302 

Habendum  in  licases 814 

for  Life  or  Lives 314 

for  Lives  or  Years 314 

. — in  Beeds,  etc 300 

To  Have  and  to  Hold  in  Fee  Simple 300 

for  Life 300 

with  Conditions 300 

— in  Mortgragres 342,343 

Habitual  Drunkard,  Committee's 

Deed  for 805 

Hig^liways,     How      Described      in 
Deeds,  etc 800 

Homestead  Exemption  and  Dower, 
Release  of  in  Mor tgrng:es 349 

Horse,  Contract  for  Sale  of. 258 

' — Racing:. 

Contracts 246,247 

In  General 246,247 

Rules  and  Subscriptions 247 

House,  I.ease 326 

and  liand,  L.ease 327,328 

Unfurnislied,  l^ease 328 

Houses. 

Contracts  for  Building 226-230 

Long  Forms 226-228 

Short  Forms 228-230 

Husband  for  Self  and  Wife,  CoTe^ 
nants  of,  in  Deeds  302 

Idaho. 

Acknowledgments 21,22 

Deeds 276 

Mortgages 336 

Wills 373 

Idiot,  Committees'  Deed  for SOS 

Illinois. 

Acknowledgments 22.23 

Deeds * 276 

Mortgages  886,337 

WilU    r. 873 

■literate  Persons'  Slffnatare,  etc., 
fit— On ~^^ -^ »03 


Pag* 
Incumbrances. 

Covenants  against SOI 

in  Mortgages S4S 

Indemnity  Bonds 190,191 

to  Mortg^ttg^ee 355 

Indenture. 

Assignment 98 

of  Apprenticeship 94,  95,  225,  226 

Deeds,  etc 270 

of  Lease 814 

Indiana. 

Acknowledgments 98 

Deeds 276,277 

Mortgages 337 

Wills 373 

Indorsed  Assig^nment 97-101 

Indorsement  of  Bonds  on   Ag:ree> 
ments,  Contracts,  etc 187 

Indorsement  of  Confirmation  and 
Prior  Voidable  Deed 306 

Infant's  Acknowledgement 16 

Insolvent  Debtor's  Assig^nment  101-108 

Instalments. 

Bonds  for  Payments  by 181,  182 

Payment  in,  on  Chattel  Mortgages 362 

Insurance  Contracts,  to  Fifect 247 

to  Renew 247 

Policy,  Assignment  of. 108 

Interest. 

Coupons 145,146 

Receipt  for 625 

Warrants 145,  146 

of   Mortgragror,  Continuance  of, 
on  Goods  !Mortg:ag:ed 360 

of  Partnership,  Assig^nmentof. .    103 

Interlineations    and   Erasures   In 
Deeds,  etc 302 

Interpretation  or  Construction  of 
Previous  Contracts,  Contract  for  238 

Introductory  Clauses. 

Contracts 224 

Deeds,  etc 298,  299 

Leases 314 

Mortgages 342 

■Wills,  etc 380 

Inventory,  Authentication  or  Ex- 
emplification of. 109 

Invoices  to  Bills  of  liadinff 114-121 

Iowa. 

Acknowledgments 23,  24 

Deeds 277,278 

Mortgages 337 

Wills 373 


Jewelry,  Bequests  of,  etc 399 

Joint  Notes 150 

and  Several  Xotes 150 

Covenants  in  Deeds 302 

Journal  Entries 12, 13 

Journeyman,  Contract  to  Employ.    245 
Judgement. 

Assignment  of 108 

Bond  and  Warrant  to  Confess 182 

Notes 150 

Transcript  of,  Authenticated  or  Exem- 
plified     109 

on  Warrant  of  Attorney 88 

Jurat  to  Affidavits 51 


Kansas. 

Acknowledgments 24,  29 

Deeds 7. 278-281 

Mortgages 337 

Wills..   373.374 

Keep  for  l.ife.  Bond  to  Keep  Person   191 

Kentucky. 

Acknowledgments 25,  26 

Deeds 281 

Mortgages 837 

Wills " »74 


702 


IMBEX  TO   FOBMft. 


Pace 

Lwdlnff,  Bills  of. 114-121 

I<and,  Bonds  for  Conveyance  of.  —   185 

for  Deeds  to 185,186 

Contracts  for  Sale  of 258-S60 

to  Cultivate  on  Sbares 245 

and  House,  liCase 327,  328 

Oil,  Mineral,  or  Salt  liCase 331 

landlord's  Certificate  of  lieaalni; 

323,  324 
JUast  Will.    See  Wills  and  Testaments; 

Nuncupative  Wills;  Codicils,  above..  371-396 
I<aw  Suits,  Contracts  to  Bear  Ex- 
penses Equally 247,248 

I<ay-Day  and  Demnrrase  Scale 122 

liCase. 

Assignments  of 103,  104 

Contract  to  Assign 248 

Mortgage  of. 353 

I^eased  Premises,  Mortij^ai^e  of 353 

Leases  of  Property 313-334 

Attorney-in-Fact,  Lease  by 322 

Building  Lease 322,  323 

Certificate,   Lease,   Landlord's    Agree- 
ment   323,  324 

Certificate,     Lease,     Tenant's     Agree- 
ment    323,  324 

Commencing  Clauses  in  Leases 314 

Conditions  or  Provisos  in  Leases 315 

Death  of  Lessor 315 

Notice  to  Determine  Lease 315 

Re-entry  on  Non-Payment  of  Rent 315 

Occupation  or  Trade  being  Offensive    315 

Various  Causes,  etc 315 

Covenants  in  Leases 315-317 

Assignment  of  Lease  Allowed 315,  328 

Drains,  Fences,  Sewers,  Wells,  Repair- 
ing of,  etc 328 

Dwelling  in  Premises 316 

Entry  on  Non-Payment  of  Rent 326 

to  View  Premises 326,  327 

Finishing  House 328 

Fire  Clause 316 

Fixtures 316 

Improvements  . .   316 

Insurance  by  Lessee,  etc 316,  328 

Noxious  or  Offensive  Occupation 316 

Obstructing  Lights  with  Blinds,  Boards, 

etc 316 

Painting 328 

Paying  Rents,  etc 316,  327 

Possession,  to  Deliver,  etc 327 

§uiet  Enjoyment 826,  327 
uiton  Notice 327 

at  End  of  the  Term,  Without  Notice    316 

Rebuilding,  Repairs,  etc 328 

Renewal  of  Lease 316 

Repairs,  etc 327,328 

Sell  on  Request .^ 316 

Straw,  etc 327 

Taxes,  Payment  of. 316,  327,  328 

and  Repairs 316,317 

Timber,  etc 328 

Trees,  etc 328 

Under-Lease  Prohibited 317 

Use  of  Premises  Limited 317 

Watsr-Rate  or  Tax 317 

Farm,  Lease  of 324 

Formal  Requisites  of  Lease 313 

Furniture  and  House  Lease.  248 

General  Form  Leases 317-322 

Goods  and  Furniture  Lease 324,  325 

Ground  Lease 825,326 

Habendum  in  Leases 314 

for  Life  or  Lives 314 

for  Lives  or  Years 314 

House  Lease 320,827 

and  Land  Lease 827,  328 

Unfurnished 328 

Indenture  of  Lease 328,  329 

Introductions  to  Leases 314 

Land  and  House  Lease 327,  328 

Landlord's  Certificate  of  Leasing.  323,  324 

Life  Lease 329,330 

Maaufactory,  Lease 330,  331 


Leases  of  Property.    (Continued.) 

Mill  Lease 331 

Mining  Lease 331 

Oil,  Mineral,  or  Salt  Land  Lease 331 

Pew  Lease 331,  332 

Provisos.     See  Conditions,  etc.,  above. 
Reddendum   or  Reservation  in 

Leases 314,  315 

Balcony,  Observatory,  etc 314 

Drive,  Roadway,  etc 314 

Private  Passage,  etc 314,  315 

Timber,  etc 315 

Water-Course,  etc 315 

Renewal  Lease 83S 

Requisites  in  Leases SmS 

Reservation  in  Leases.    See  Reddendum 

IN  Leases,  above 314,  31S 

Short  Form  Leases 317 

Surety  to  Lease 332 

Surrender  of  Lease  by  Indorsement ....    332 

of  a  Term  of  Years  of  Lease 332 

Tenant's  Certificate  of  Leasing 323,  324 

Under-Lease 332,333 

Unfurnished  House  Lease 328 

Water-Rate  or  Tax  in  Lease 319,  320 

Wharf  and  Machinery  Lease 333 

Years,  Lease  for 333,  334 

Leasin«f,  Contracts  for 248 

Dwelling:,  Contracts  for 248 

and  Furniture,  Contracts  for  248 

Store,  Contracts  for 248 

Ledg^er  Entries 7-14 

JLegticles. 

Assignments  of 104,  10.1 

See  Bequests  &  Legacies,  etc.,  above  384,  885 

Iieii:acy,  Receipt  for 620 

Le^al  Requisites  of 

Acknowledgment  Forms 14-4{ 

Assignment  Forms 9(» 

Bond  Forms 180,181 

Contract  Forms 223,  224 

Deed  Forms 273-298 

Lease  Forms 313,  314 

Mortgage  Forms 335-34'A 

Power  of  Attorney  Forms 74 

Will  Forms 371-3S0 

Letters  of  Attorney 72-80 

Assignment  of 105 

Librarian  of  €on{;ress. 

Certificate  of  Copyright  by,  etc 399,  4^5 

Life. 

Habendum  in  Deeds,  etc. ,  for 300 

Lease 329,  830 

Mortgage  for  Support  of  Person  During   35.'t 

Limited  Partnership. 

Affidavit  of  Stock,  etc.,  etc 562 

Certificate  of  Partnership,  etc 562 

Notice  of  Dissolution,  etc 56S 

Llmitingr  Edition  of  a  Publication, 
Contract  lor 40« 

Llauldated  Damaees  In  Contracts 

224,  225,  228 

Loans  to  Children,  etc.,  Provisions 
for  Repayment,  etc..  In  Wills 383 

Locomotive,  Contract  for  Building 

and  Construction 2SO 

Lodg^iii^  or  Apartments,  Contracts 
Concerning: 248,  249 

Louisiana. 

Acknowledgments 26 

Deeds 281,282 

Mortgages 337 

Wills 374,375 

Lunatic,  Deed  of  Committee  for —   305 

Machinery,  Contracts  for  Building: 
and  Construction  of. 230 

Maine. 

Acknowledgments '. J6,  27 

Deeds  282 

Mortgages 837,  338 

Wills. 875 


niDEX  TO   FOBMS. 


705 


Page 
M»aas«r«rFant«c«,0«iito«ctwltli  246 

Mannfoetory,  licaiw 330,331 

Mannfttctnrer's      Contracts      with 
Aj^entN,  Brokers,  and  Commiaaloii 

HercbantN,  etc 249,250 

HanafacturinKT,  Contracts  for..  250,  251 

Barrels 250 

Boots,  etc 250 

Brick 250,251 

Patented  Articles 251 

Shoes 251 

Marginal  InTOlces  to  Bills  of  I<ad- 

Inar 118-121 

]IIarrlag;e  of  Daughter,  Niece,  etc.. 

Provisions  in  Will 382,383 

or  Forfeiture,  Bond  for 191 

Harried  Woman's  Will,  etc 380 

Maryland. 

Ackno\vledgments ., 27 

Deeds 282 

Mortgages 338 

Wills 375 

Massachusetts. 

Acknowrledgments 27 

Deeds 882 

Mortgages 338 

Wills 375 

Master's  Deed  in  Chancery 307 

in  Foreclosure 289 

in  Partition 288,  289 

Measures  and  Weigrhts 642, 644 

Mediterranean    Out     and     Home, 

Charter  Party  for 240 

Memorandums    in    Chattel    Mort- 

gra§rcs 360 

of  Copyrlirht  Ag^reements. . .  402, 403 

-^-of  Unwritten,  Verbal,   or  Hfun- 

cupative  Will 396 

Merchant   and   Bookkeeper,   Con- 

tract  Between 245 

Metes  and  Bounds,  How  Described 

in  Deeds,  etc 300 

Michig^an. 

Acknowledgments 27,  28 

Deeds 282 

Mortgages 338 

Wills 375 

Mill  licase 331 

^Property,  Contract  for  Sale  of 

258, 259 

Mining: licase ^.^.   331 

Minnesota. 

Acknowledgments 28 

Deeds 282 

Mortgages 338 

Wills - 375-376 

Minor's  Acknowledgment 16 

Mississippi. 

Acknowledgments 28,  '29 

Deeds .._    282 

Mortgages „   338 

Wills 876 

Missouri. 

Acknowledgments 29 

Deeds 282,283 

Mortgages 838 

Wills 876 

Mistakes,  Deed  to  Correct 307, 308 

Moneys. 

Assignment  of » 105 

Bonds  for  Payment  of 181 

Receipt  for ^25 

Montana. 

Acknowledgments 29 

P"ds 283 

Mortgages 838    339 

AVills 378 

Mortsase  and  Bond,  Contract  for 
Sale  01......^ »...-.^ .^..„, .   257 

45 


P«Ce 

Mortgaites. 

Assignment  of lOtt 

Bond  to  Pay  and  Cancel 191 

Deeds  of  Tenants,  Subject  to 285 

Security,  Contract  to  Change 261 

Mor tgagred  Prem  Ises,  Deed  of 285 

Mortgages 335,  363 

Alabama 335 

Arkansas 335 

California 335 

Colorado 33S 

Connecticut 335,  83V 

Delaware 336 

District  of  Columbia 336 

Florida 33tf 

Georgia 336 

IlUnois 336 

Indiana 336,  337 

Iowa 837 

Kansas 337 

Kentucky.. 837 

Louisiana 337 

Maine 337 

Maryland 837,338 

Massachusetts. 338 

Michigan 338 

Minnesota 838 

MississippL 888 

Missouri 388 

Montana 838 

Nebraska  838,339 

Nevada 339 

New  Hampshire 339 

New  Jersey 339 

New  Mexico 340 

New  York 839,340 

North  Carolina 340 

Ohio 340 

Oregon 340 

Pennsylvania 840,  341 

Rhodelsland 341 

South  Carolina 341 

Tennessee 341 

Texas 341 

Utah 841 

Vermont 841,342 

Virginia 342 

^Vest  Virginia 342 

Wisconsin ".    842 

f  Personal  Property 856-363 

Affidavits  for  Renewal 360 

Annual  Statement  of  Mortgagees'  Inter- 
est, etc 360 

Bill  of  Sale  and  Chattel  Mortgage 

357,  358,  359 
Continuing  Chattel   Mortgages,  Affida- 
vits and  Statements  for 360 

Default,  Possession  of  Goods,  etc.,  until   362 

General  Forms 856,862 

Instalments,  Payment  by 362 

Interest    of    Mortgage,    Affidavits   and 

Statements  of 360 

Memorandums,  etc 360 

Notice  of  Sale  of  Mortgaged  Property, 

etc 361 

Payments 362 

Renewal,  Affidavits 360 

Schedules 361 

Security  on  a  Note  362,863 

Statements,  Annual,  of  Mortgagees'  In- 
terest, etc 360 

Stock,  Chattel  Mortgage  of 362 

Surety  on  a  Lease 363 

Warranty  Covenant,  etc 863 

With  Powers  of  Sale 360,  861 

of  Beal  Property. 

Acknowledgment  of    Mortgages.     See 
title  Acknowledgments,  etc.,  above. 

Additional  Charge  on  Mortgaged  Prem- 
ises    352 

Assignments  of  Mortgages 848,  849 

By  a  Corporation 8M 

Covenants  for S4S 

ShortForm 348 

With  Power  of  Attorney 848,  849 

Assurance  Covenant. MS 


704 


INDEX   TO   FOBKS. 


Face 
norifraKes  of  Real  Property.  (Con- 
tluued.) 

Bond,  Secured  by  Mortgage 349 

Commencing  Clauses  in  Mortgages....    343 

Conclusions  in  Mortgages 345 

Conditions  and  Provisos  to  Mortgages  .    343 

Corporation  Assignment 349 

. ^Mortgages 350,  351 

Covenants  in  Mortgages 343,  345 

A.isigninent 343 

Assurance 343 

Enjoyment  of  the  Premises,  etc 843 

Entrj'  upon  Default 343 

Fire  Clause 843 

Incumbrances,  Free  of 343 

Lease,  Mortgage  of 343 

Payment  of  Money 344 

of  Taxes 844 

Power  to  Assign 344 

Reassignment,  etc 344 

Receipt,  etc ^ 344 

Right  to  Convey 344 

Sale  on  Default,  etc 344,  345 

on  Delivery 344 

on  Notice 345 

Discharges  or  Releases  of  Mortgages. . 

351,  354 

in  Part 354 

Dower  and  Homestead  Exemption  Re- 
leased     349 

Dower  not  Released 350 

Enjoyment  of  Premises,  Covenant  for. .    343 

Executors,  Mortgage  to 351,  353 

Extension  of  a  Mortgage 353 

Fire  Clause 343 

Foreclosure,  Covenant  for 343 

Further  Charge  on  Mortgaged  Premises   353 

General  Forms  of  Mortgages 345--347 

Habendum  in  Mortgages 343,343 

in  Fee  Simple 343 

Homestead  Exemption  and  Dower  Re- 
leased     349 

Incumbrances,  Covenant  Against 343 

Indemnity  to  Mortgagee,  etc 353,  353 

Indorser's  Security  by  Mortgage 355 

Introductions  to  Mortgages  343 

Lease,  Covenant  Concerning 343 

Leased  Premises,  Mortgage  of 353 

Life,  Mortgage  for  Support  During 353 

Note,  Secured  by  Mortgage 354 

Payment  of  Money,  Covenant  for.  344 

of  Taxes,  Covenant  for 344 

Power  to  Assign,  Covenant  of. 344 

Promissory  Note  Secured  by  Mortgage   354 
Provisos  and  Conditions  in  Mortgages  .    343 

Receipt,  etc. ,  Covenant  Concerning 344 

Reddendum    or    Reservation    in  Mort- 
gages     343 

Release  of  Dower  and  Homestead  Ex- 
emption      349 

Releases  or  Discharges  of  Mortgages. . . 

351,  354 

in  Part 354 

Reservation.     See  Reddendum,  etc.,  in 

Mortgages,  above 343 

Right  to  Convey  Covenant  for 344 

Sale  on  Default,  Covenant  for S44,  345 

Sale,  Security,  etc 355,  356 

Satisfaction  of  Mortgages 851,  355 

of  a  Part 354 

Security  for  an  Indorsee 355 

—Sale,  etc 355,  356 

for  an  Unliquidated   or    Unascertained 

Amount 356 

Short  Form  Mortgages   345 

Unliquidated  or  Unascertained 

Amounts,  Mortgage  for 356 

Term  of  Years,  Mortgage  for 356 

Years,  Term  of.  Mortgage  for 356 

Hortyafces      and      Bonds,     Assl{ni- 

ment  of 105,106 

Mnnlclpal  Bonds 145,146 

IHatoal     Covenants   to   Convey   in 
Deeds 302 


If  ame  of  Testator  to  be  Taken  witli 
Estate,  in  WIU .  S8S 


Page 
Names  of  Parties  in  Deeds,  etc.  298, 290 
KatlonalBank  Notes 144 

Natural    Boundaries,     Hlirbways, 
Ilo w  Described  in  Deeds,  etc. 300 

Nebraska. 

Acknowledgments 29,  30 

Deeds 283 

Mortgages 339 

Wills 376 

Neg^otlable Bills.  See  Bills  op  Exchamgb   147 

Bonds.    See  Bonds — Negotiablk  . .  144-146 

Notes.    See  Promissory  Notes.  . . .  149,  150 

Nevada. 

Acknowledgments 30 

Deeds 283 

Mortgages 339 

Wills 876 

New  Sampsliire. 

Acknowledgments 30,  81 

Deeds 283 

Mortgages 339 

WiUs 876,877 

New  Jersey. 

Acknowledgments , 31 

Deeds ., ...    2S3 

Mortgages 839 

Wills 877 

New  Mexico. 

Acknowledgments 81,  82 

Deeds 283 

Wills -^ 877 

New  Tork. 

Acknowledgments 82-37 

Deeds 283-389 

Mortgages 839,  340 

Wills ^.. 377 

Nortli  Carolina. 

Acknov^rledgments. . . . ..... ..-.,... 37 

Deeds 289 

Mortgages 840 

Wills 877 

Note  Secured  by  Mortg^ag^e 854 

Notes,  etc. 

Assignment  of 106 

of  Hand 149,150 

Negotiable.    See  Promissory  Notes  149, 150 

Notice. 

Affidavit  of. 53 

to  Arbitrators 69 

of  Carriers  of  Goods.    See  Bills  of  Lad- 
ing   114-121,140-142 

of  Dissolution  of  Limited  Partnership. .   562 

of  Protest 164 

of  Sale  of  Mortgaged  Goods,  etc 861 

Witness  in  Arbitration 39 

Nuncupative,  Verbal,   or   Unwrit- 
ten Wills 896 

Affidavit  of  Witnesses  to  Memorandum 
of 89« 


Oaths   for   Trade-SIarks,   Patents, 
and  Designs 600,  601 

Obligations  or  Bonds 181-192 

Obligees  and   Obligors,  Joint  and 

Several,    One    or    More,    etc.,   to 

Bonds  or  Obligations 1S7, 188 

Obstructions   to  liigtat.   Contracts 

for 251 

Official  Character,  Authentication, 

or  Exemplification  of. 109 

Seals  and  Signatures 15 

Ohio.  _  ,^ 

Acknowledgments 37,  38 

Deeds f. 290-292 

Mortgages •' •••■    »*» 

Wills 877,378 

Oil,  Mineral,  or  Salt  Eand  tease. . . .    881 
One  Person  Covenants  to  Another, 
in  Deeds,  etc •—   •• 


nn>EX   TO   FORHS. 


705 


Page 

Orders. 

Assignment  of ^.»-»^ 106 

To  Buy  or  Sell  Stock,  Broker's 84 

Charter  Party  for... 840,241 

Oregon. 

Acknowledgments 88 

Deeds 292 

Mortgages - 340 

Wills 878 


Papers,  et«..  Receipt  for 625 

Parties,  KTames  in  Deeds,  etc.. .  298, 299 

Partition  Deeds 808 

by  Commissioner 304 

Master 288,  289 

Recital  of  Title  by,  in  Deeds,  etc.  299 

Partners,  Affidavit 62 

Partnership  Contracts 251-255 

Accounting 252 

Active  and  Silent  Partners 253,  254 

Arbitration 252 

Assignment  of  Partner's  Interest 252 

Business  Management.... 252 

Capital  Stock 252 

Interest 252 

Cashier  or  Receiver 252 

Continuance  of  Partnership 252 

Credit 252 

Decease  252 

Dissolution 252 

Duties,  Division  of 253 

Expulsion  of  Members 253 

Firm  Name,  etc 253 

General  Forms 251,  252 

New  Partners 253 

Profits  and  Losses 253 

Release  of  Debts 253 

Retiring  Partners 253,  255 

Settlements 253 

Silent  Partners 253,  254 

— -'Interests,  Assig^nment  of ^...    106 

•—Property,  Assignment  of. . . .  106, 107 
•— Iiimited. 

Affidavit  of  Stock,  etc 662 

Certificate  of  Partnership,  etc 662 

Notice  of  Dissolution 662 

Party  IValls. 

Contracts'  Concerning 255,  256 

Easements  for.  How  Described  in 

Deeds,  etc 300 

Patent,    Recital    of    Title    by,    in 

Deeds,  etc „ 299 

Rights 697-605 

Assignment  of 603 

Forms  Relating  to.     See  Index  to  Patent 

Forms 597-598 

Patented    Articles,    Contracts  for 

Manufacture  of. 251 

payment. 

Bonds  for 181-187 

of  Money  on  Mortgage,  Covenant  for. . .    344 
in  Satisfaction  of  Chattel  Mortgages  . . .    362 

of  Taxes 344 

Pecuniary  liCg^acies 392 

Pennsylvania. 

Acknowledgments 38-41 

Deeds 2  93-297 

Mortgages 340,  341 

Wills 378 

Performance,  Contract  for 256 

Personal  Property.    See  Bequests  and 

Legacies  of,  etc.,  above 391-393 

Assignments  of 107 

Representatives,  Bonds 186, 187 

Petition,  Affidavit .^ 63 

Petitions    for     Trade-Marks,    Pat- 
ents, and  Desig^ns - ^.  698,  699 

Petroleum. 

Bill  of  Lading 242 

Charter-Party  for 241,  242 

FawDeed.....^ « 308 


P«8« 

Pewl<eaae 831,332 

Plans,  Buildingr  Contract  with 228 

Pleading^s,  Copyrig^bt 411-413 

Policy  of  Insurance,  Assig^nmentof  103 
Postmaster's  Receipts,   Copyriebt 

Matter 414,415 

Power  to  Convey,  Covenant  of  in 

Deeds 302 

Powers,  etc.,  in  Wills.    See  Conditions, 

ETC.,  ETC.,  above 380-384 

Powers  of  Attorney. 

Assignment  of 105 

Assignment  Attached 97 

Attestation  of  Deed,  etc.,  Executed  by 

Virtue  of 303 

—of  Attorney  to 73-80 

Accept,  Pay,  Sell,  etc 74 

Acknowledge  Conveyances,  etc 73 

Satisfaction,  etc 73 

Appoint  Appraisers 74 

Arbitrate  Matters 74 

Carry  on  Business,  etc 74 

Mercantile  Concerns 74,  75 

Collect  Debts  for  Corporations 75,  76 

Dividends 76 

Rents 76, 

Confirm  Acts  of  Attorney '7ft 

Deliver  Possession  of  Goods  70 

Demand  Rents 76 

Draw,  Indorse,  and  Negotiate  Bills  of 

Exchange,  etc 76 

Fill  Out  Blanks  in  Writings 77 

Fit  Out,  Furnish,  and  Let  Vessel 70 

Insure  Property,  etc 77 

Lease  Lands TV 

and  Sell  Lands TS 

Make  Partition 7V 

Manage  Real  Property 7V 

Mortgage  Real  Property 77 

Prosecute  and  Defend  Suits 77 

Ratification 78 

Receive  Dividend 78 

Legacy 78 

Money  from  Underwriters 78 

Possession  of  Real  Estate 78 

Principal  and  Interest 78 

Renew  Lease,  and  Sell,  etc 77 

Sell  Real  Estate 79 

Stock 79 

^Vessel 79 

Sign  \Vriting3 79 

Subscribe 79 

Substitute 79 

Survey  and  Lease 77 

Vote 77,78 

of  Sale  in  Cbattel  Mortg:ag:es 363 

Premises. 

in  Deeds,  etc 299,  30O 

Leases 314 

Mortgages 343 

Pri  vate  Corporation  Bonds 145 

Prizes,  Asslg^nment  of 107 

Promissory  Note  Secured  by  Mort- 
gage     354 

Promissory  STotes 149, 150 

Chattels,  for 149 

Demand,  on 149 

General  Form..  149 

Guaranty  of 150 

Joint 150 

and  Several 150 

Judgment  Note 150 

Payable  at  a  Particular  Place 150 

Several,  and  Joint 150 

Proof  of  Unacknowledged  Deeds, 
Mortgages,  etc.,  etc.     Sec  Acknowl- 
edgment Forms,  above. 
Property  Attached. 

Receipt  for 139 

of  Partnership,  Assignment  of 106,  107 

Receipt  for  redelivery  of,  etc 625 

Protest 164 

Notice ..,., 164 


7o<5 


IHBEX   TO   FOBHS. 


PrOTislons,  ete.,  in  Wills.    See  Condi- 
tions, ETC.,  BTc,  above 880-384 

ProvlHOS    In    I^eases.    See  Conditions, 

BTc,  IN  Leases,  above S15 

and  Conditions  in  Mort§raffes....    843 

Publication,  Affidavit  of 53 

Publications    on    Joint    Account, 

Contracts  for 244 

Purchase,  Contracts  for 256 

■ Cord  Wood 256 

SeveralJolntly 256 

•—Money,  Receipt  for 625 


Qniet  Enjoyment,  Covenant  for,  in 

Deeds 302 

4|nit-Clalni  Deeds. 

Forms  used  in  Indiana 277 

Kansas 278 

Kentucky 881 

Missouri 282 

New  York 285,286 

Ohio 290 

Pennsylvania 294 

Virginia 298 


Racing:,  Horse,  Contracts  Concern- 
ini: 246,247 

Railroad,   Contracts  for   Building: 
and  Construction 232-234 

Subdivision,  Contracts  for,  etc. 

234,  235 

Ticket  Office,  Contracts  for,  etc. 

235-237 

Ratifications  of  Former  Codicils, 
and  Will 395,  396 

Real  Estate,  Contracts  for  Sales  of 

258,  260 

and  Personal   Property,  Wills, 

etc.,  Concernlngr 389,390 

Property,  in  Devises  of,  in  Wills, 

etc 393,395 

Reassig^nment,  Contracts  for...  256,  257 

Rebuilding:,  Contracts  for 228,  229 

Receipt. 

for  Attached  Property 139 

of  Broker  for  Stock 84 

in  Mortgages,  Covenant  Concerning. . . .    344 

Receipts 625 

Accounts  Generally 625 

Chattels,  Papers,  etc 625 

Debt,  etc 625 

Full  of  All  Demands 625 

Interest 625 

Legacy 625 

Librarian  of  Congress 415 

Money 625 

postmaster,  for  Copyright  Matter  .  414,  415 

Purchase-Money ...    625 

Redelivery  of  Property,  etc 625 

Rent 625 

Recipe,  Assigrnment  of 107 

Recitals  in  Deeds,  etc 299 

Administrator's  Title 299 

Attorney's  in  Fact  Title 299 

Executor's  Title.    299 

Deed,  Title  by 299 

Descent,  Patent,  etc..  Title  by 299 

Partition,  Title  by 9»9 

Record,  Authentication  or  Exem- 
plifloation 109 

Recourse,  Assig:nment  Without ....    108 

Reddendum    or    Reservations    In 

Deeds,  etc 300,301 

Reserving  Annuity 800,  301 

for  Streets,  etc 801 

— in  I^eases 814,815 

Balcony,  Observatory,  etc 814 

Drive,  Roadway,  etc 814 

Private  Passage 814,  315 

Timber,  etc 315 

Water-Course,  etc .^   SIS 

43 


Pag« 

Reddendnm    or    Reservation    In 

Mortg:ag:es 343 

Redelivery  Bonds I86 

Referee's  Deed 808,  309 

Reg:i8tratlon  of  Bonds 145 

Releases 626 

Apprenticeship 95 

Claims,  Demands,  etc.,  etc 626 

Deed  of 309 

Dower  and   Homestead  Exemption  in 

Mortgages 349 

Mortgages  in  Full 351-354 

in  Part 354 

Remainder,  Contract  for  Sale  of . . . .  250 
Renewal  Affidavits. 

in  Chattel  Mortgages 860 

of  Insurance,  Contract  for 247 

of  licase 332 

Rent. 

Ground-Rent  Deed 295 

Receipt  for 625 

Representatives,  Personal,  Bonds 

of 187 

Requisites  in 

Acknowledgments 14-45 

Assignments 96 

Bonds 180,  181 

Contracts 223,224 

Deeds 273-298 

Leases 313,314 

Mortgages 335-343 

Powers  of  Attorney 72 

Wills 371-380 

Reservations  in  Deeds,  etc.    See  Red- 
dendum, ETC.,  above 300,  301 

in  liCases.    See  Reddendum  in  Leases, 

above 814,815 

Reservation     or     Reddendnm     in 
mortgages ■ 343 

Residence,  Rebuilding: 226-230 

Respondentia  Bonds 187, 188 

Reversion,  Contract  for  Sale  of 259 

Deeds  of 309,310 

Revocation  of  Arbitrators'  Powers      69 

Notice  of 69 

Powers  of  Attorney , 80 

Substitution  of  Attorney 80 

Revocations   of     Former    Codicils 

and  Will 395,396 

Rhode  Island. 

Acknowledgments 45 

Deeds 297 

Mortgages 841 

Wills 878 

Riffht  to  Convey,  Covenant  of,  in 

Mortgages 344 

Rights,  Patent,  Assignment  of. 593 

Right  of  Way  Deed 286 

Sale,  Security,  etc 855, 866 

Bills 683 

Assignment  of 98 

General  Form 683 

of  a  Horse,  With  Warranty 633 

on  Default,  Covenant  for 844,  345 

Sales,  Contracts  for 257-261^ 

Animals 257 

Appraised  Value 257 

Bond  and  Mortgage 257 

Farm  and  Mill  Property . .  258,  259 

Fruit  Trees 261 

General  Forms 257 

Goods  in  Grocery 25"? 

in  Store 257 

Horse , 258 

Real  Estate 258-260 

Remainder  or  Reversion 259 

Shares  of  Stock 260 

Stone 261 

Timber,  Growing 260,261 


INDEX   TO   FOBMS. 


707 


Page 
Bales,  Contraets  for.   (Continued.) 

Trees,  Fruit 261 

Vessel  Enrolled  or  Registered 261 

Wheat 261 

Wood  or  Stone 261 

Hatisractlon  of  91  ortipayes 351,  355 

In  Part 354 

Scale,  Demnrraire  nnd  lAy-Day 122 

Schedules  to  AssiKninents 97 

in  Chattel  JHort^Hgem  and  Bills 

of  Sale 361 

Seal  of  Officers 15 

Seamen,  Contract  for  Sbippingr  261,  262 
Seamen's  Wag^es,  Assigrnment  of. . . .  lOS 
Security  Clansc  to  Assignments. . . .    108 

Contract  for  Change  of 261 

by  Mortgage  for  an  Indorser 355 

on  a  Note  by  Chattel  Mortgage  . . .  362,  363 

Sale,  etc 355,  356 

for    Unliquidated    or    Unascertained 
Amount  by  Mortgage 356 

Seizin,  Covenant  of,  in  Deeds 302 

Self,  and  for  Another,  Attestation 

of  Deed  Executed  by 303 

Servants,  Assig'nment  of. 108 

Service  of  A  ward  71 

Services,  Performance  of 256 

Several,  Covenants  of.  In  Deeds 302 

and  Joint  Notes 150 

Sewers,  Contract  for  Building'  and 

Construction  of 237,238 

Shares  of  Stock. 

Assignment  of 108 

Contract  for  Sale  of 260 

Sheriff's  Acknowledgment 16 

Deeds. 

Forms  Used  in  Kansas 279,  280 

New  York 289 

Ohio 291,292 

Pennsylvania 295-297 

Signature  and  Seal  to  Deeds 302 

Ship-Owner's    Contract  with   Sur- 
geon    246 

Shippers 114-121 

Shipping  Seamen,  Contract  for  261, 262 

Ships,  Contracts  for  Building  and 

Construction  of. 231 

Shoes,  Contract  for  Manufacturing, 

etc 251 

^hort  Forms. 

Assignments 97 

Bonds ISl 

Building  Contracts 228-230 

Deeds 803 

Leases 317 

Mortgages 345 

Powers  of  Attorney 73 

Substitutions  of  Attorney 80 

W^ills 385 

Signature  to  Affidavits 53 

of  Officers 15 

Signatnres  and  Seals  to  Deeds,  etc.  302 

Agents 302 

Attorney-in-Fact 302 

Administrator  or  Administratrix 302 

Corporations 806 

Executor  or  Executrix 302 

Guardian 802 

Sheriff. 802 

Trustee 302 

llmple  Forms  of 

Assignment , 97 

Bonds  181 

Building  Contracts 228,  230 

Deeds 303 

Leases SI7 

Mortgages 345 

Powers  of  Attorney 73 

Wills 885 


Pac« 

Single  Entry  Boofckeeplnff 7 

South  Carolina. 

Acknowledgments 41 

Deeds 297 

Mortgages 841 

Wills 878 

Special  Warranty  Deeds. 

General  Forms 312 

Forms  Used  in  Indiana. 277 

Kansas 278 

Kentucky 281 

New  Jersey 283 

Ohio 290 

Pennsylvania 293,  294 

Speciflcations     for     Trade-Marks, 

Patents,  and  Designs 599,  600 

State  Bonds 146 

Statements  of  Account 6 

by  Brokers 84 

Statement,  Annual,  of  Mortgiu^ee's 

Interest  in  Goods  MortgagedT 360 

of  Tenue. 

in  Acknowledgments 14 

in  Affidavits 51 

Steamship,  Contract  for  Building 

and  Construction  of 232 

Stock,  Chattel  Mortgage  of 362 

Shares,  Assignment  of. 108 

Stone,  Contract  for  Sale  of 261 

Store,  Goods  in.  Contract  for  Sale. .    257 

Streets,  Contract  for  Building  and 

Construction  of 230,  231 

Subscription,  Contracts  by 262 

Substitution  of  Attorney 80 

by  Power  of. 80 

Suits,  Contracts  to  Bear  Expenses 

of.  Equally 247,248 

Release  of  All,  etc 626 

Surety  to  l^ease 332 

by  Chattel  Mortgage 363 

Sureties,  Affidavits 53 

Surgeons,     Contract      witli      Ship 

Owner 246 

Surrender  of  Iicase 333 

of  a  Term  of  Years  of  liCase 332 

Taking  Down  and  Rebuilding,  Con- 
tracts for 229,  230 

Tax  Deeds. 

Forms  Used  in  Kansas 280 

Ohio 292 

Telegrams 140-142 

Telegraphic  Messages 140-142 

By  Cable 140,141 

Half-Rate 141,142 

Tenancy  in  Common,  Deed  for 310 

Tenant's  Certificate  of  Incasing  323,  324 

Tennessee. 

Acknowledgments 41,  42 

Deeds 297 

Mortgages 341 

Wills 378 

Term  of  Tears,  Mortgage  of 35« 

Testaments.    See  Wills  and  Testaments  ; 

Nuncupative  Wills  ;  Codicils,  above. .  371-396 

Testatum  Clauses.  (Introductions.) 

in  Contracts 224 

Deeds,  etc 298,  299 

Leases 314 

Mortgages 342 

Texas. 

Acknowledgments 42 

Deeds 297 

Mortgages 341 

Wills 378,379 

Ticket  Office,  Contracts  for  Build- 
ing and  Construction  of 235-237 

Timber,  Cbarter  Parties  for 242 


7oS 


Iin>EX   TO    FORMS. 


Page 
Timber  Orown,  Contract  for  S«le 

of  360,261 

Title,  Abstracts  of 264,  265 

to  an  Action  at  I<aw 51 

loan  Affidavit 51 

Towing:  Boats,  Contracts  for  ...  262,  263 

Township  Bonds 146 

Trade  and  Barter,  Contracts  for.....   225 

Slaric  Forms 59S,  600,  605 

Translations,  Acknowledgrment —      16 
Transcript  of  Jnd^^'ment,  Antlien- 
tication  or  Exemplification  of....    109 

Treasury  Xote,  U.  S 144 

Trees,  Fruit,  Contracts  for  Sale  of. .    261 
Trust  Deeds. 

General  Forms 810,  811 

Forms  Used  in  Kansas 279 

Kentucky 281 

Ohio 291 

Virginia 298 

Trust,  Mill  in, etc 390 

by  Widow 390,391 

Trustee's  Deeds. 

Forms  Used  in  Kentucky 281 

Pennsylvania 294,295 

Signature  and  Seals  to  Deeds 302 

Turnpike    Roads,     Contracts     for 
Building:  and  Construction  of. ... .   238 

Umpires,  Appointment 69 

—Submission  to  Arbitrator  iritb 

Provisions  for 67 

Unliquidated     or     Unascertained 

Amounts,  Bonds  for 188 

3Iortg:ag:es  to  Secure 845 

Unw^ritten   'Wills.      See   Ndncttpativb 
Wills,  etc.,  above. 

Unfurnisbed  House,  liCaae 828 

U.  S.  Treasury  Notes 144 

Utah. 

Acknowledgments 42,  43 

Deeds 297 

Mortgages 841 

Wills 879 

Verbal  Wills.    See  NuNctjPATiVB  Wills, 
etc. ,  above 896 

Teriflcation  of  Awards 71,  72 

Terified  Account 51,  52 

Vermont. 

Acknowledgments 43 

Deeds 297,298 

Mortgages 341,342 

Wills  379 

Vessels. 

Contracts  for  Building  and   Construc- 
tion of 231,  232,  246 

for  Sale  of 261 

Virsrinia. 

Acknowledgments 43 

Deeds 298 

Mortgages 842 

■Wills  879 

Voidable   Deed,  Deed  ConflrminK', 
-^tc 805,806 

Wag:es  In  Oeneral,  Assignment  of. .    108 

Seamen's,  Assignment  of 108 

Warrant  and  Bond  to  Confess  Judg- 
ment     182 

Warrants  of  Attorney 88 

— -for  Interest  on  Bonds 145,146 

Warranty,  Bond  to  Keep 188 

' — Covenant  In  Chattel  Mortgages.   868 
- — Covenant  of.  In  De«4s..., ,,,  902 


Page 

Warranty  Deed* ^^ 811,312 

General  Forms. 

by  Attorney 312 

With  Full  Covenants fttl,  312 

Forms  Used  in  Alabama 274 

California 275 

Illinois 276 

Indiana 276,277 

Kansas 278 

Kentucky 281 

Massachusetts 282 

Missouri 283 

New  Jersey 283 

New  York 284,  285 

Ohio 290 

Pennsylvania 293 

South  Carolina 297 

Virginia 298 

Special  Forms 312 

Forms  Used  in  Indiana 277 

Kansas 278 

Kentucky 281 

New  Jersey  283 

Pennsylvania 293,294 

Wash  i  n  gto  n . 

Acknowledgments 43,  44 

Deeds 298 

Wills 379 

Watercourse  Deed 286,  287 

Rate  or  Tax  L.ease 319,  320 

Weights  and  Measures 642-644 

West  Virginia. 

Acknowledgments 44 

Deeds 298 

Mortgages 342 

Wills 379 

Wharf  and  Machinery  I<ease 333 

Wlieat,  Contracts  for  Sale  of. 261 

Widow's     Will,     etc..     Containing 

Trusts 390,  391 

Wills  and  Testaments,  etc. 

Alabama 371 

Arkansas  371 

California 371 

Canada 371,372 

Colorado 372 

Connecticut  872 

Dakota 872 

Delaware 372 

District  of  Columbia 372 

Florida 372,373 

Georgia 373 

Idaho 373 

Illinois 878 

Indiana 873 

Iowa 373 

Kansas 873,374 

Kentucky 374 

Louisiana 374,  375 

Maine 375 

Maryland 375 

Massachusetts 375 

Michigan 375 

Minnesota 375,  376 

Mississippi 376 

Missouri 376 

Montana 376 

Nebraska 376 

Nevada 376 

New  Hampshire 376,  377 

New  Jersey 377 

New  Mexico 377 

New  York 377 

North  Carolina 377 

Ohio 877,378 

Oregon 378 

Pennsylvania 878 

Rhode  Island 378 

South  Carolina 378 

Tennessee 378 

Texas 878,  879 

Utah 879 

Vermont 879 

Virginia S79 


IITDEX   TO    FOBMS. 


709 


Page 
Wtlla  and  Testaments,  et«.    (<k»n- 
tlnund.) 

Washington  Territory 379 

West  Virginia 379 

Wisconsin 379,380 

> GenernI  rormN 380-396 

Attestation  of  Written  Wills  by  \Vit- 

nesses 384,  885 

English  P'orms 384 

Massachusetts  Form 384 

New  York  Form 385 

Pennsylvania  Form  385 

Authentication  or  Exemplification  of. . .    109 
Bequests    and    Legacies    of    Personal 

Property 391,  393 

Annuity,  Payment  of. 391 

Purchase  of -.    391 

to  Wife  During  Widowhood 391 

Charitable  Bequests    391,  392 

Children,  Bequests  to,  etc 392 

Conditional  Bequest 392 

Corporation,  Bequest  to 392 

Death  of  Legatee 392 

Debts,  etc 392 

Dress  and  Ornaments,  etc 392 

Furniture,  etc 392 

Books,  Provisions,  etc 393 

Codicils  to  Wills,  etc 395,  396 

Appointing  Executors,  Trustees,  etc.. . .    395 

Indorsement  of,  on  Will 395 

Ratification  of  Former  Codicils  and  Will 

395,  396 
Revoking  Former    Codicils  and  Will . . 

395,  396 

Good-will  of  Business 392 

Infant's  Legacy 392 

Jewelry,  Plate,  and  Household  Effects, 

etc 392 

Payment  of  Legacies,  etc 392 

Pecuniary  Legacies,  etc 393 

Residue  of  Estate 393 

Share  Under  Another  Will 393 

Stt>ck,for  Support  of  Family 393 

Trust  for  an  Unincorporated  Society. .. .    393 

Commencing  Clauses  to  Wills,  etc 380 

Concluding  Clauses  to  Wills,  etc 384 

Conditions,    Declarations,    Directions, 
Powers,  Provisions,  etc. ,  etc. ,  in  Wills, 

etc 380-384 

Advancements  to  be  Deducted 380 

Not  to  be  a  Satisfaction  of  Debts. . .    380 

Annuity,  Powei  to  Grant,  etc 380,  381 

Preventing  Parting  With 381 

Appointment  of  Guardian  and  Substi- 
tutes      381 

Executors  and  Substitutes 381 

Arbitration 381 

Arrangements  or  Compromises 381 

Assignment  to  New  Trubtee,  etc 381 

Children  Born  After  Tests-tor's  Death  . .    381 

Custody  and  Tui  tion  of. 381,  382 

Repayment  of  Loans  by .  i 383 

Debts  Due  From  Relatives,  Release  of..    382 

Disputes,  Arbitration  of. 382 

Dwelling-House,  Wife  to  Reside  in 382 

Investment  of  Personal  Estate,  etc 382 

Marriage  of  Daughter,  etc 382,  383 

of  Nieces,  etc 383 

Name  of  Testator  to  be  Taken,  ttc 383 

Repayment  of  Loans  by  Children 383 

Revocation    of    Bequests  and  Legacies, 

etc 383 

Sale,  Power  of,  etc 883 

Winding  Up  Testator's  Estate 883,  384 

*Dc*Iarations.    See  Conditions,  etc., cited 
abort - 380-S84 


Page 
Wills  and  Testaments,  etc.     (Con- 
tlnuetl.) 

Devises  of  Real  Property 393-895 

Dower,  in  Lieu  of 393 

Friend,  Devise  to 394 

Grandchildren,  Devise  to 394 

Hou.ses  and  Lands 394 

Lapse  of  Devise 394 

Life,  Devise  for 394 

Residue  of  Esute 894 

School  or  College 894,  895 

in  Trust,  With  Power  to  Sell,  etc..  898,  394 

to  'i'rustces,  During  a  Life  or  Lives 894 

General  Forms  of  Wills,  etc 385,  389 

Introductions  to  Wills,  etc 389 

Legacies.     See   Bequests  and  Lbgacies, 

ETC.,  above 384,  385 

Married  Woman's  Will 386 

Personal  Property.      See  Bequests  and 

Legacies  of,  etc..  above 391-393 

Powers,  etc.    See  Conditions,  etc.,  etc., 

above 880-884 

Provisions,  etc.     See  Conditions,  etc., 

ETC.,  above 380-384 

Real  and  Personal  Property,  Wills,  etc., 

Concerning 889 

in  Trust 889,390 

Property.    See  Devises  of,  above 

398,  395 

Short  Form  Wills 385 

Trust,  Will  in,  etc 390 

by  Widow 890,  391 

•Widow's  Will,  Containing  Trusts.  390,  391 
Witnesses.     See  Attestation  to  Writ- 
ten Wills,  etc.,  above 384,885 

Wisconsin. 

Acknowledgments 44,  45 

Deeds 298 

Mortgages 842 

Wills 379,  880 

Witlion  t  Reconrse,  Assignment  —    108 

Indorsements 155 

Witness  in  Arbitration,  Notice  to. .      69 
— Ailidavit     to    Memorandnm    of 

Nuncupative  H'iil 396 

Clauses  in  Contracts 224 

. to  needs,  etc 302,  303 

Blind  Person 303 

Deaf  and  Dumb  Person 303 

Erasures  and  Interlineations 302 

Illiterate  Persons 303 

Interlineations  and  Erasures 302 

Power  of  Attorney 803 

Self  and  for  Another 308 

■Witnesses.    See  Attestation  to  Written 

Wills,  etc.,  above 884,  38S 

W^oman,   Married   Woman's    Will, 

etc 386 

Wood,  Contracts  for  Sale  of 261 

Work,  Contract  for 263 

Workmen,    Contract    for  Employ- 

ment  of 24S 

W^ritten   Wills.     See  Wills  and  Testa. 

MENTS,  above. 
Wyoming'. 

Acknowledgments 45 

Deeds 29S 

Tears,  I^ease  for SS3,  334 

^Term  of,  Mortsage  of iM6 


THE  LIBRARY 
UNIVERSITY  OF  CALIFORNIA 

Santa  Barbara 


THIS  BOOK  IS  DUE  ON  THE  LAST  DATE 
STAMPED  BELOW. 


Series  9482 


